State v. Wool

STATE_V_WOOL.93-023; 162 Vt. 342; 648 A.2d 655

[Opinion Filed July 8, 1994]


 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 93-023


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 2, Chittenden Circuit

 Kirk Wool                                    March Term, 1994


 Linda Levitt, J.  (motion for investigator & expert witness)

 Ronald F. Kilburn, J.  (trial & post-trial motions)

 Scot Kline, Chittenden County State's Attorney, and Pamela Hall Johnson,
   Deputy State's Attorney, Burlington, for plaintiff-appellee

 Dori Jones, Burlington, for defendant-appellant


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      ALLEN, C.J.   Defendant Kirk Wool appeals his conviction on two counts
 of aggravated sexual assault, 13 V.S.A. {{ 3252(a)(1), 3253(a)(3), following
 a jury trial.  We affirm.
      At trial, the victim testified as follows.  A few minutes past midnight
 on January 18, 1992, she was walking the short distance home from a
 friend's house in downtown Burlington.  Defendant stopped his car and
 offered her a ride.  The victim did not know defendant, but she accepted the
 ride because it was snowing and she was carrying a table that a friend had
 lent her to furnish her new apartment.  Defendant drove toward the victim's
 house, but when they approached her residence he did not stop.  Instead, he

 

 grabbed the victim in a head-lock and drove to his house several blocks
 away.  Rather than risk harm by resisting defendant, the victim submitted to
 his control.  When they arrived at his house, defendant held the victim's
 arms behind her back and ushered her inside.
      The victim testified that defendant brought her upstairs to his
 bedroom, locked the door behind them, and ordered her to remove her clothes.
 He prepared to inject himself with cocaine, and said that he was going to
 play with her until he had finished the cocaine and would hurt her if she
 refused to comply.  Defendant bound her hands and feet with a leather belt
 and a dirty towel.  Over the next few hours, defendant performed anal
 intercourse and oral sex on the victim, and forced her to perform oral sex
 on him.  He forced her to lick his feet and anus.  The victim also reported
 being struck on the back, possibly by a stick that defendant had in the
 room.  According to her story, defendant repeatedly injected himself with
 cocaine during the night.  She attempted to reason with him and calm him
 down by getting him to talk about himself and his family, and talking about
 herself.  Toward morning, defendant "came down" from the drugs and let her
 leave.  He offered to drive her home or get her a taxi, but she declined.
 She retrieved the table and rug, and returned to her friend's apartment
 where she had eaten dinner the night before.
      Defendant told a very different story.  He admitted meeting the victim
 that night and offering her a ride home.  They chatted for the fairly brief
 drive to her apartment.  He asked her to come to his house to watch a
 movie, and she agreed.  On arriving at defendant's house, they sat together
 in the living room, and then went upstairs to meet his roommates.  He
 discovered that they were not home, contrary to their usual practice and

 

 his expectations.  They proceeded to his room, where they chatted about
 themselves and their families.  He turned the conversation to sex, and they
 engaged in consensual foreplay.  He denies any intercourse took place, but
 admits that the victim indicated she wanted him to penetrate her anus with
 his penis, and that he did so briefly until she indicated discomfort.
 According to defendant, they spent the rest of the night together engaged in
 conversation, foreplay-type activity, and mutual masturbation.  He
 maintains that their interaction was completely consensual.
      A couple of hours after returning to her friend's apartment, the victim
 went to the hospital and was given a thorough medical examination by Dr.
 Misty Porter.  The victim explained that she had been bound and raped.
 According to her trial testimony, Dr. Porter's examination revealed tears in
 the superficial tissues of the victim's rectum, but uncovered no other cuts
 or bruises on her body.  The doctor performed the standard protocol for
 gathering evidence of sexual assault in the course of the examination.
      Defendant was arrested and charged with two counts of aggravated sexual
 assault, 13 V.S.A. {{ 3252(a)(1), 3253(a)(3).  A public defender was
 appointed to represent defendant before his arraignment on January 20, 1992.
 On June 9, 1992, defendant filed a motion requesting to proceed pro se, and
 the motion was granted after a lengthy colloquy between defendant and the
 court.  The court ordered the public defender, Jerry Schwarz, to act as
 standby counsel to defendant, which meant that Schwarz should be present in
 the ensuing proceedings as much as possible, and that he provide defendant
 the materials and services to take depositions.
      On appeal, defendant claims the following errors:  (1) denial of
 investigative services and expert testimony, (2) failure to appoint counsel

 

 for defendant at the start of the third day of trial, (3) jury prejudice,
 and (4) prejudicial remarks by the prosecution during jury voir dire.
                                     I.
                                     A.
      On July 8, 1992, defendant filed a motion requesting in part that the
 court approve an investigator to research an expert witness to respond to
 Dr. Porter's examination report of the victim.  The motion was denied.
 Defendant maintains that denial of the services of an investigator and
 expert witness, at public expense, contravened his constitutional rights to
 present evidence and call for witnesses in his defense, and his rights under
 the Public Defender Act (PDA), 13 V.S.A. {{ 5201-5277.  Defendant makes the
 constitutional claims for the first time on appeal; therefore, we do not
 consider them.  State v. Prue, 138 Vt. 331, 331-32, 415 A.2d 234, 234
 (1980).
      Defendant bases his claim of entitlement to investigative and expert
 witness services at public expense on { 5231 of the PDA.  The State contends
 that defendant failed to raise the statutory claim as well as the
 constitutional claim.  Specifically, the prosecution argues that defendant
 did not direct the court's attention to the PDA in arguing that he had the
 right to investigative and expert witness services, even though he did not
 accept a public defender.  In considering this claim of non-preservation, we
 acknowledge that defendant exercised his constitutional right to represent
 himself at trial, and was aware that "he [might] conduct his own defense
 ultimately to his own detriment."  Faretta v. California, 422 U.S. 806, 834-
 35 (1975); accord State v. Dragon, 135 Vt. 168, 169, 376 A.2d 12, 13 (1977);
 cf. Olde & Co. v. Boudreau, 150 Vt. 321, 322, 552 A.2d 793, 794 (1988)

 

 (court responsible to insure only that pro se litigant not be unconscionably
 disadvantaged).
      Aside from exceptional instances of plain error, a party must make a
 timely objection to preserve an issue for review.  State v. Ayers, 148 Vt.
 421, 425, 535 A.2d 330, 333 (1987).  This rule ensures that the trial court
 first addresses correctable error, and facilitates the development of a
 record for appeal.  State v. Kasper, 137 Vt. 184, 190, 404 A.2d 85, 89
 (1979).  The preservation rule promotes fair trials and minimizes mistrials
 and retrials, because it guarantees that attorneys will not reserve trial
 court errors for first airing on appeal in the event of an unfavorable
 outcome.  Id. at 190-91, 404 A.2d  at 89.
      In his motion, defendant reiterated that he was found indigent, that
 there had been no change in his financial status, and that he had waived
 appointed counsel.  Defendant went on to request "that the Court appoint an
 investigator for the purpose of researching an 'expert witness' -- defense
 would call to testify in his defense of Complainant's story as related to
 (State's medical exam and report of) State's Witness Misty Porter M.D."  In
 a hearing on the motion held July 17, 1992, the following exchange occurred:
         THE COURT:  Well, the . . . problem is you've asked for
         a number of things to take place pretrial, and it's
         still going to be impossible for you to accomplish it,
         and Mr. Schwarz [defendant's former counsel, acting as
         "standby counsel"] might be able to accomplish some of
         those things.

         THE DEFENDANT:  I'm not sure what you would be referring
         to, Judge.

         THE COURT:  Well, investigator, for instance.

         THE DEFENDANT:  Okay.

         THE COURT:  I mean, we don't pay for an investigator.
         So that would not be something that's doable.

 

                                  * * *

         THE DEFENDANT:  I think what I detailed was for a
         specific reason.  It wasn't that I wanted an
         investigator to run around town.  It was for a specific
         reason, and that was to research a professional witness
         with regards to responding to the medical report.

         THE COURT:  That would be more possible with Mr.
         Schwarz, than if he wasn't in, because if he's not in,
         then there is just no resources available.

                                  * * *

         THE COURT:  I think that we understand.  So those are --
         that's what you're missing if you go on your own, or
         you can have some limited services from Mr. Schwarz [as
         standby counsel], or you can have all of the services.
 Defendant never cited the PDA in support of his contention that he was
 entitled to defense-related services at public expense.  He argued, however,
 that he would have been afforded these services had he accepted the public
 defender, and should not be penalized by his decision to exercise his right
 to represent himself.  Defendant raised the issues embodied in the language
 and contents of the statute -- the right to a public defender and
 associated services of a constitutionally adequate defense.  Cf. Rowe v.
 Brown, 157 Vt. 373, 378, 599 A.2d 333, 336 (1991) (statutory remedy need not
 be cited at trial if party "clearly and adequately describe[s] the relief
 sought at trial").  Moreover, the court's ruling illustrates that the court
 squarely addressed the issue and reasoned that an indigent's right to a
 defense paid from the public fisc is an "all or nothing" proposition.
 Defendant raised the issue of assistance and the court considered and ruled
 on it, leaving an ample record for appellate review.  Therefore, the issue
 has been preserved and may be examined on appeal.

  

                                     B.
      Section 5231 of the Vermont Public Defender Act provides:
            A needy person who is being detained by a law
         enforcement officer without charge or judicial process,
         or who is charged with having committed or is being
         detained under a conviction of a serious crime, is
         entitled:

            (1)  To be represented by an attorney to the same
         extent as a person having his own counsel; and

            (2)  To be provided with the necessary services and
         facilities of representation as authorized or later
         approved by the court.  The attorney, services and
         facilities, and court costs shall be provided at public
         expense to the extent that the person, at the time the
         court determines need, is unable to provide for their
         payment without undue hardship.
 13 V.S.A. { 5231.  Our goal is to effect the intent of the legislature,
 which we attempt to discern first by looking to the language of the
 statute.  Spears v. Town of Enosburg, 153 Vt. 259, 261, 571 A.2d 604, 605
 (1989).  Section 5231 describes the defense services available to an
 indigent in two discrete subsections, an indication that the right to an
 attorney stands separate and distinct from the right to the services and
 facilities of representation.  Had the legislature intended to link the two
 rights, { 5231 would not likely have been drafted with separate subsections.
      This interpretation dovetails with the criterion for qualification
 under the Act.  "Needy person" is defined as "a person who at the time his
 need is determined is financially unable, without undue hardship, to provide
 for the full payment of an attorney and all other necessary expenses of
 representation or who is otherwise unable to employ an attorney."  13 V.S.A.
 { 5201(3) (emphasis added).  Thus, an individual may qualify as "needy"
 despite the fact that the person can afford to pay for the services of or
 can otherwise retain an attorney, but cannot afford other necessary

 

 representation expenses.  It follows that { 5231 must be construed to
 entitle needy persons who are represented, either by an attorney or
 themselves, to public funding for other necessary expenses.  Otherwise, the
 test of need under { 5201(3) would be reduced to a question of whether a
 person can afford to pay for an attorney, a result contrary to the plain
 meaning of the statute.
      Support for this interpretation of { 5231 comes from commentary to the
 Model Public Defender Act, which was adopted as Vermont's PDA.  See State v.
 Caron, 155 Vt. 492, 511, 586 A.2d 1127, 1138 (1990); see also State v.
 Papazoni, 159 Vt. 578, 581, 622 A.2d 501, 503 (1993) (examination of the
 intent and purposes behind model act offers valuable guidance in construing
 statute based on act).  The National Conference of Commissioners on Uniform
 State Laws explained:
         The approach of the new Model Act is not to define the
         exact limits of the right to an adequate defense, but to
         provide that, whatever the Supreme Court says it
         consists of for persons of adequate means, the needy
         person is entitled to the same protection and that, to
         the extent he is unable to pay for it, he is entitled to
         have it paid for by the state.
 Handbook of the National Conference of Commissioners on Uniform State Laws
 270 (1970).  The Model Act focuses on the right to put forward a defense,
 which generally includes the services of an attorney.  It makes sense to
 view the Act as providing any necessary services of defense that an
 indigent cannot otherwise obtain.  Other jurisdictions have adopted the
 similar reasoning in construing their public defender statutes.  See, e.g.,
 Thompson v. State, 525 So. 2d 1011, 1011-12 (Fla. Dist. Ct. App. 1988) (per
 curiam); State v. Manning, 560 A.2d 693, 698-99 (N.J. Super. Ct. App. Div.
 1989).  This interpretation also fosters sound fiscal and public policy,

 

 because a defendant would not be required to forego pro bono counsel or
 self-representation simply to obtain associated services at the public
 expense.  Manning, 560 A.2d  at 699.
      In summary, we hold that a defendant who qualifies as a needy person
 under Vermont's Public Defender Act has a distinct right "[t]o be provided
 with the necessary services and facilities of representation as authorized
 or later approved by the court."  13 V.S.A. { 5231(2).  Exercise of that
 right cannot be conditioned on acceptance of the services of an attorney
 appointed under 13 V.S.A. { 5231(1).
      Defendant, however, fails to demonstrate reversible error from the
 ruling regarding investigation and expert witness assistance, because he
 did not make the requisite showing that the expert witness was necessary to
 his defense.(FN1) See id. { 5231(1).  This entails showing that an adequate
 defense cannot be mounted without that expertise.  State v. Pizzuto, 810 P.2d 680, 713 (Idaho 1991); State v. Fecteau, 587 A.2d 591, 599-600 (N.H.
 1991); State v. Gleason, 785 P.2d 376, 377 (Or. Ct. App. 1990).  A defendant
 requesting expert assistance at state expense must demonstrate specifically
 the purpose and nature of the expert assistance; bare assertions of need do
 not suffice to meet this burden.  See Caldwell v. Mississippi, 472 U.S. 320,
 323-24 n.1 (1985) ("undeveloped assertions that the requested assistance
 would be beneficial" insufficient to establish need); Hough v. State, 560 N.E.2d 511, 517 (Ind. 1990) (no abuse of discretion for trial court to deny
 indigent defendant's request for ballistics expert, where defendant made no
 showing to suggest error in tests by State's experts, offered no new

 

 evidence to render experts' testimony questionable, and failed to show new
 evidence was available or likely from other experts).
      Defendant's request for assistance did not rise to the level of a
 proper showing of necessity, as he did no more than claim that he needed an
 expert to respond to Dr. Porter's medical examination report.  He never
 detailed that he wished the assistance of expert testimony to challenge Dr.
 Porter's opinion that the rectal damage was consistent with forced anal sex,
 or that the expert would respond to Dr. Porter's testimony that the absence
 of bruising was consistent with the victim's story.  Defendant had the
 opportunity to depose Dr. Porter, and could have based a specific need for
 an expert on her deposition testimony rather than claim, after cross-
 examination, an inability to rebut her in-trial testimony effectively.  Cf.
 Woodard v. State, 743 P.2d 662, 664 (Okla. Crim. App. 1987) (assessing need
 for responsive scientific expert testimony, court reasons that "scientific
 expert is often able to explain to the jury how a conclusion was reached[;]
 the [defendant] can attack that conclusion, and then the jury can decide
 whether there was a sound basis for the conclusion").  Defendant's task of
 demonstrating need might have been easier had he not been incarcerated or
 had he been represented by counsel, but he knowingly and intelligently
 accepted the formidable obstacles associated with self-representation.  In
 failing to make the requisite demonstration of need for an expert witness,
 defendant cannot benefit from the court's erroneous ruling that a needy
 person must accept a public defender to obtain other necessary defense
 services at state expense.


 


                                     II.
      At the start of the third day of the four-day trial, defendant told the
 court that he felt overwhelmed by the task of presenting his defense, and
 said that he might need an attorney.  The trial court reviewed with
 defendant the fact that he had knowingly and intelligently waived his right
 to an attorney after being warned of the difficulties of self-
 representation.  The court also noted, and the record bears out, that
 defendant had performed very well at trial despite his protestations of
 ineffectiveness.  The State was unwilling to brook any delay for a change in
 defense representation, and the court informed defendant he would have to
 live with his decision to represent himself.  However, defendant was given
 the opportunity to consult with standby counsel and a mental health
 counselor, after which he informed the court he was prepared to proceed with
 the remainder of the trial.
      The decision whether to appoint counsel mid-trial for a defendant who
 had been acting pro se will be disturbed only for an abuse of discretion.
 United States v. Solina, 733 F.2d 1208, 1211 (7th Cir.), cert. denied, 469 U.S. 1039 (1984); cf. State v. O'Connell, 147 Vt. 60, 63, 510 A.2d 167, 168
 (1986) (same standard for appellate review of ruling on motion for
 substitute counsel).  Even had defendant not agreed to continue after
 consulting with standby counsel and a mental health counselor, the trial
 court did not abuse its discretion in denying the request for an attorney.
 Defendant waived his right to an attorney and adamantly asserted his right
 to represent himself.  At this point in the trial, the State had presented
 all but one of its witnesses, including lengthy testimony by the victim.
 Furthermore, despite the contention on appeal that standby counsel should

 

 have been permitted to "step in and continue with the trial," defendant
 offered no evidence that standby counsel or any other attorney could take
 over without considerable delay.  The trial court did not abuse its
 discretion in denying defendant's eleventh-hour request for professional
 assistance.  See State v. Morse, 126 Vt. 314, 320, 229 A.2d 232, 237 (1967)
 (defendant must accept results of self-representation).(FN2)
                                    III.
      After his conviction, defendant was reassigned a public defender at his
 request.  He moved for a new trial, alleging in part that a biased jury had
 deprived him of a fair trial.  According to an affidavit in support of the
 motion, before the start of proceedings on the final day of trial a friend
 of defendant's mother overheard part of a conversation in a group that
 included at least one juror.  The juror allegedly said, "I don't come to
 downtown Burlington anymore because the streets are just not safe," and
 after noticing the affiant, said, "Oops, I guess I wasn't supposed to say
 that."  Also, a man in the group, who was not identified as a juror,
 allegedly said, "He had to be under the influence of something," at another
 point in the conversation.  Soon thereafter, the jury reassembled for the
 resumption of trial, and the court inquired whether anything about the case
 had come to the jury's attention since leaving the courthouse the day
 before.  None of the jurors raised a hand, which the court took as a
 negative response.

 

      Defendant found out about the alleged statements only after the jury
 returned a guilty verdict.  In an order denying the new trial motion, the
 court found the woman juror's statement ambiguous and not directed to the
 merits or probable outcome of the case.  The court concluded that the
 unidentified man's statement also did not necessarily concern the case.
 Most important, the court found that none of the jury responded
 affirmatively when asked at the start of proceedings that morning whether
 anything about the case had come to their attention.  Based on the ambiguity
 of the statements and the lack of juror response, the court rejected
 defendant's claim of juror misconduct.
      Since it was never determined whether the unidentified man was part of
 the jury, we examine defendant's claim both as a question of improper
 communication between jurors and third parties, and as a question of
 extraneous influences on the jury's consideration of the case.  In either
 scenario, we review the trial court's denial of the motion for a new trial
 based on alleged jury prejudice only for an abuse of discretion.  See State
 v. Wheel, 155 Vt. 587, 602, 587 A.2d 933, 942 (1991) (expression of opinion
 by juror); State v. Dragon, 135 Vt. 168, 170, 376 A.2d 12, 13 (1977)
 (alleged external influence).  In this case, defendant bears the burden of
 demonstrating that the court exceeded its discretion by ruling that he
 failed to demonstrate jury bias.  Dragon, 135 Vt. at 170, 376 A.2d  at 13.
      Turning first to the statement of the woman juror, we are guided by
 similar circumstances in State v. Wheel, in which a juror expressed to a
 court officer frustration with the lengthy trial process and sequestration,
 and resentment over what she considered time wasted in the courtroom.  This
 Court held that the trial court had not abused its discretion in concluding

 

 that the jury was not unfairly biased, because the statement was "ambiguous
 and [did] not include a comment on the merits or on the probable outcome of
 the case."  Wheel, 155 Vt. at 602, 587 A.2d  at 942.  In this case, the trial
 court made a similar finding of ambiguity in the juror's statement.  The
 trial court reasonably concluded that defendant had not demonstrated juror
 bias, and therefore did not abuse its discretion.  Dragon, 135 Vt. at 170,
 376 A.2d  at 13.
      We reach the same conclusion regarding the statement of the
 unidentified man outside the courthouse, which we treat as an alleged
 outside influence upon the jury.  A defendant is entitled to a fair trial
 free of the suspicious taint of extraneous influences.  State v. Griffin,
 152 Vt. 41, 45, 563 A.2d 642, 645 (1989).  Defendant, alleging such
 irregularity in his trial, must demonstrate that the statement had the
 capacity to influence the jury, id., and the proof must be more than mere
 speculation, Dragon, 135 Vt. at 170, 376 A.2d  at 13-14.  We acknowledge that
 the statement, "He had to be on something," presents a closer question than
 the juror's statement discussed above, in light of the fact that defendant's
 drug use during the assault was a significant aspect of the victim's
 account.  On its face, however, the statement did not unambiguously refer to
 defendant or the trial.
      At the start and end of the first three days of trial, the court
 explicitly warned the jury against discussion of the case among themselves
 and exposure to outside influences.  On the fourth day, the day of the
 alleged comments, there was no individual examination of the jurors because
 the court was not informed of the alleged statement before proceeding with
 the final day of trial.  Nevertheless, the court asked if anything about the

 

 case had come to the jury's attention since the day before, and the jury's
 response indicated no cause for concern.  Considering the ambiguous
 statement and the lack of response to the court's general inquiry about
 extraneous influences, the court acted within its discretion in denying
 defendant's motion for a new trial based on alleged jury bias.  Cf. State v.
 Onorato, 142 Vt. 99, 106-07, 453 A.2d 393, 396-97 (1982) (issue of bias
 sufficiently resolved when court, after learning that juror had discovered
 that proceedings were defendant's second trial, determined through general
 inquiry that jury not prejudiced).
                                     IV.
      Finally, defendant contends that one of the prosecution's comments to
 the panel during jury selection unfairly appealed to the passion and
 prejudice of the jury, depriving him of a fair trial.  Early in the voir
 dire by the State, the prosecution said the following:
         Now, do any of you have any idea what a rapist should
         look like?  Do you all agree with me that they can be
         very different and look very different or look the same?

                                  * * *

         Have any of you ever seen movies or read books, any of
         you, on Ted Bundy?

                                  * * *

         It's fair to say that Mr. Bundy, who was charged and
         convicted of raping several women, looked very clean-cut
         . . . intelligent, a year of law school?

                                  * * *

         So we all know that they can both be good or bad
         looking, educated or not, and they can sometimes look no
         different than anyone else.  Do you all agree with that?
 When it came time for defendant's voir dire, he said the following:

 

         And [the prosecuting attorney], in her first
         presentation to you folks, has referred to a Mr. Bundy.
         I mean, the real concern that I have is that she's made
         that reference, and she's made that reference with
         regards to crimes that he was convicted of, and which
         later apparently he admitted to.  I'm not sure -- and I
         guess there's some real concern on my part -- how much
         weight you folks here may have given to that statement.
 Defendant then asked if any of the jurors would be swayed by the reference,
 or have any emotional reaction that might prevent them from considering the
 case impartially, based on the evidence adduced at trial.  The one member
 who had seen a movie about Bundy was excused from the panel; the rest of the
 panel said the Bundy reference would have no impact on their consideration
 of the case.  After his conviction, defendant moved unsuccessfully for a new
 trial, alleging that the prosecution's reference to Bundy so tainted the
 jury that it deprived him of his right to a fair trial.
      In ruling that the prosecution's statements did not unfairly prejudice
 defendant, the trial court acted within its discretion.  State v. Richards,
 144 Vt. 16, 22, 470 A.2d 1187, 1191 (1983); see V.R.Cr.P. 33 ("The court . .
 . may grant a new trial . . . if required in the interests of justice.").
 The record shows that the State did not make a direct comparison between
 defendant and Ted Bundy; Bundy was offered as an example to discover
 whether any potential jurors had preconceived notions of how a rapist should
 look.  Defendant himself inquired regarding any potentially prejudicial
 effect of the statement, and secured disqualification of one person as a
 result.  Considering the minimal chance that defendant was prejudiced by a
 relatively brief series of questions and statements during jury draw, the
 trial court did not abuse its discretion in denying defendant's motion.

 


      Affirmed.
                                    FOR THE COURT:



                                    _____________________________
                                    Chief Justice



-------------------------------------------------------------------------------
                              Footnotes


FN1.    We assume, for purposes of analysis only, that reimbursement for the
 services of an investigator would have been authorized had defendant made
 the necessary showing regarding the medical expert.

FN2.    Defendant contends that 13 V.S.A. { 5233 gives him the right to an
 attorney despite the earlier waiver, but { 5233(b) says only that waiver of
 counsel at an earlier stage of a criminal proceeding, such as trial, does
 not act as waiver at a later stage, such as an appeal or petition for post
 conviction relief.