IN_RE_DUNBAR.93-276; 162 Vt. 209; 647 A.2d 316
[Opinion Filed June 17, 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.
In re Vernon Dunbar Supreme Court
On Appeal from
Caledonia Superior Court
May Term, 1994
Walter M. Morris, Jr., J.
Brian L. Porto of Plante, Hanley & Gerety, P.C., White River Junction, for
Robert M. Butterfield, Caledonia County Deputy State's Attorney, St.
Johnsbury, for respondent-appellee State of Vermont
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
JOHNSON, J. Defendant appeals from a decision of the Caledonia
Superior Court denying his petition for post-conviction relief, which
alleged ineffective assistance of counsel and failure of the State to
disclose exculpatory evidence. We affirm.
In 1986, defendant was convicted of sexual assault and lewd and
lascivious conduct with a child. This Court affirmed his convictions in
State v. Dunbar, 152 Vt. 399, 566 A.2d 970 (1989). In May 1990, defendant
filed a petition for post-conviction relief (PCR) with the Caledonia
Superior Court, which conducted evidentiary hearings and subsequently denied
the petition. Defendant now appeals to this Court.
Defendant argues on appeal that the trial court erred in concluding
that defendant's two attorneys met the standard of reasonable competence.
Defendant makes several allegations in support of this argument, the most
important of which is his contention that he received ineffective assistance
of counsel because his attorneys failed to present a defense that the two
child witnesses had been coached by adults. Defendant also argues that the
PCR court erred in concluding that the original trial court properly denied
defendant's request for substitute counsel. Finally, defendant contends
that the trial court erred in concluding that evidence the State failed to
disclose was not exculpatory.
On a PCR appeal, we review the findings of fact by the clearly
erroneous standard. State v. Bristol, 159 Vt. 334, 336, 618 A.2d 1290, 1291
(1992). If there is any credible evidence to support the findings, and the
conclusions follow from the findings, this Court will uphold the trial
court's judgment. Id.
On a petition for post-conviction relief, defendant bears the burden of
proving "by a preponderance of the evidence, that fundamental errors
rendered his conviction defective." In re Liberty, 154 Vt. 643, 644, 572 A.2d 1381, 1382 (1990) (mem.). When the claimed error is ineffective
assistance of counsel, defendant must show by a preponderance of the
evidence that counsel's performance fell below an objective standard of
reasonableness informed by prevailing professional norms. Strickland v.
Washington, 466 U.S. 668, 687-688 (1984); In re Pernicka, 147 Vt. 180, 182-
183, 513 A.2d 616, 618 (1986). If that burden is met, defendant must then
show that counsel's deficient performance prejudiced the defense.
Strickland, 466 U.S. at 688. A defendant proves prejudice by demonstrating
"a reasonable probability that, but for counsel's unprofessional errors, the
result of the trial would have been different." Id. at 694.
Defendant's burden is a heavy one. Trial counsel are permitted a great
deal of discretion in decisions regarding trial strategy, and even the
failure of that strategy is not the standard by which a reviewing court will
measure trial counsel's competence. In re Mecier, 143 Vt. 23, 31-32, 460 A.2d 472, 477 (1983). "[R]ather, we must look to whether such decisions
were within the range of competence demanded of attorneys in a criminal case
at that time." Id. at 32, 460 A.2d at 477. Moreover, as this Court stated
A fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects
of hindsight, to reconstruct the circumstances of
counsel's challenged conduct, and to evaluate the
conduct from counsel's perspective at the time. Because
of the difficulties inherent in making the evaluation, a
court must indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance . . . .
Pernicka, 147 Vt. at 183, 513 A.2d at 618 (quoting Strickland, 466 U.S. at
Defendant argues that he met his burden by showing that trial counsel
failed to pursue what he contends was the only credible defense to the
charges of sexual assault: that the child victim and another witness were
coached by the victim's cousin, the person to whom the child victim
initially reported the events and who wrote down the victim's story at the
police station. In support of his contention, he points to trial counsel's
failure to pursue a vigorous cross-examination of the child witnesses, J.S.
and A.C., and the cousin. Defendant argues that vigorous cross-examination
would have highlighted prior inconsistent statements by the children,
suggesting that they did not see or observe the events alleged, and raised
doubt in the jurors' minds about the plausibility of defendant, a 440-pound
man, committing a sexual assault on a five-year-old girl in the manner
alleged. Defendant emphasizes, with citations to the original trial
transcript, that counsel were well aware of the issue of coaching and had
argued the issue to the trial court on a motion to dismiss the charges.
The difficulty with defendant's argument is that the trial of the case,
and particularly the cross-examination of the witnesses, was susceptible to
more than one strategy. The proper question is whether trial counsel had
any reasonable strategy and whether they pursued it with adequate
preparation and diligence. If they did, then defendant cannot meet the
Strickland/Pernicka test by showing that counsel did not choose the defense
he now contends was the only viable approach to the case. See Pernicka, 147
Vt. at 183, 513 A.2d at 618 (Court must be wary of concluding with the
benefit of hindsight that attorney acted unreasonably after chosen defense
The evidence showed, and the trial court found, that assigned counsel,
William Neylon and Charles Hickey, were lawyers experienced in criminal law.
Mr. Neylon provided sole representation from the time defendant was charged
through a hearing on a motion to dismiss. The motion to dismiss was
prompted by Mr. Neylon's deposition of the victim, at which she was unable
to talk about the crime. At the hearing, however, the witness was able to
speak convincingly of what had happened to her, which prompted the trial
court judge to comment that defendant was "getting murdered" by her
After the hearing and upon defendant's request for additional counsel,
the court appointed Mr. Hickey, an experienced criminal defense lawyer.
Counsel deposed numerous State witnesses, and filed a motion for individual
voir dire and a sequestered jury. Counsel also filed a motion for a
pretrial hearing to address important issues related to the child victim,
such as the seating arrangement at trial, the scope of questioning of the
victim, and the allowable scope of expert testimony. Counsel filed a notice
of an alibi defense, and it challenged the State when it attempted to amend
the informations to broaden the time of the events from July 1985 to the
summer of 1985. They also sought discovery of medical examinations, notes
of police officers or Social and Rehabilitation Services workers, and any
reports or statements made by experts. With specific reference to coaching,
Mr. Neylon successfully moved to depose the victim's parents in an effort to
explore this defense.
Despite considerable pretrial activity on the part of counsel, the
trial court found that counsel were unable to produce credible, objective
evidence that the children had been coached, and they were faced with a
sympathetic victim who was now able to tell her story in a credible manner.
Rather than pursue the coaching defense aggressively through cross-
examination of the children, which counsel believed might "backfire," they
made the tactical decision to try to emphasize the implausibility of the
particular events and to rely on an alibi defense. Moreover, they were
concerned that overemphasis on the coaching theme might produce prior
consistent statements in rebuttal or redirect that would bolster the
The trial court concluded Mr. Hickey did pursue the inconsistencies in
the children's accounts of the events and the implausibility of their
stories to the extent he felt appropriate, considering the risk of eliciting
damaging testimony or appearing to take advantage of the children's lack of
sophistication. We cannot agree with defendant's contention that this
conclusion was erroneous. At the PCR hearing, defendant's own expert
admitted that pursuing prior inconsistent statements in this case called for
the exercise of careful discretion because the information that had to be
produced to show the inconsistency was prejudicial to defendant. In closing
argument, counsel contended that the children were coached, but the argument
had to be made without specific evidence, other than that the children were
rehearsed for the court proceedings.
Defendant argues, however, that counsel could have avoided the problems
inherent in cross-examination of the children by bringing out the coaching
defense through the cousin. He points to the fact that the cousin inter-
viewed the victim and took down the victim's statement at the police
station. She later added an interlineation to the statement directly impli-
cating defendant as "the big fat man," which defendant argues is evidence of
coaching that should have been explored. Again, counsel's strategy was to
limit the cousin's testimony on hearsay grounds, and they made repeated
unsuccessful objections to it. Counsel then made the judgment at trial that
her brief testimony had not been particularly damaging and that it was best
to leave it alone. The testimony of the State's expert witness at the PCR
hearing supported this strategy.
The trial court's findings and conclusions demonstrate that at each
stage of the pretrial proceedings and the trial, counsel were prepared, were
aware of the relevant issues in child sexual assault cases, and that counsel
made informed and calculated decisions about trial strategy and the cross-
examination of the child witnesses and the cousin. This strategy included a
consideration of how best to use the "coaching" defense. Although other
counsel might have tried the case differently, the critical evidence with
which defendant is concerned was put before the jury, albeit not with the
emphasis he now argues. The PCR court was entitled to credit the expert
testimony produced by the State that, although "coaching" may be an
effective defense in some cases, defense counsel did as much as the facts
permitted in this case. We cannot say that the trial court's thorough
analysis of defendant's attorneys' performance, its consideration of the
expert testimony in the PCR hearing, and its review of the original trial
transcripts and exhibits should have compelled a different conclusion.
Consequently, we affirm the trial court's conclusion that counsel's
performance did not fall below a reasonable standard of competence in the
cross-examination of these witnesses.
Defendant also takes issue with the cross-examination of psychologist
Donald Hunt, the State's expert witness at the original trial, who testified
that bedwetting and loss of appetite are symptoms of post-traumatic stress
syndrome that frequently result from sexual abuse. Defendant claims that
defense counsel should have made a stronger challenge to the syndrome
evidence and produced an expert for the defense. This claim is without
Although Hunt had a therapeutic relationship with the victim, the fact
of the relationship was not known to the jury. His testimony was entirely
general, and he offered no opinion relative to the victim. Hunt testified
on cross-examination that the victim's symptoms could result from causes
totally unrelated to sexual assault, which was the major point to be made.
Thus, the PCR court could properly conclude that, given the limited nature
of the testimony and the point made on cross-examination, the examination
was adequate, and defense counsel made a reasonable decision not to produce
their own expert.
Defendant makes one additional claim is made with respect to Hunt. The
original trial court failed to order the State to reveal to defendant
information about the therapeutic relationship between Hunt and the victim.
Defendant argues the court's action deprived him of the opportunity to
present, by foreclosing an inquiry that might may have revealed material
relevant to the credibility of the victim. Counsel failed to preserve this
issue for appeal and, therefore, the claim was rejected on direct appeal.
Dunbar, 152 Vt. at 411, 566 A.2d at 977.
The PCR court found that the legal right to the materials sought was
not clear at the time of trial, and there was no evidence to suggest that,
even if the right existed, the State had possession of any records relating
to the victim's therapy. See State v. Percy, 149 Vt. 623, 634-35, 548 A.2d 408, 415 (1988) (denying access to information obtained in therapeutic
relationship and not held by State). Therefore, the PCR court could
properly conclude that counsel did not fail to meet prevailing standards of
competence when they failed to preserve this issue for appeal.
Defendant also argues that a reasonably competent lawyer would have
called a physician to testify, as an expert witness, to the inherent
improbability of sexual relations occurring between a 440-pound man and a
five-year-old girl in the manner alleged. This claim is without merit. The
court found, and defendant does not dispute, that trial counsel did consult
with a physician about plausibility and were told such contact was possible.
Accordingly, counsel pursued this argument without expert testimony.
In short, defendant's principal claims on ineffective assistance of
counsel relate to the cross-examination of witnesses. Lawyers may disagree
about the tactics that were pursued, but the essential nature of the dis-
agreement is a strategic one. We conclude that the PCR court's findings
are not clearly erroneous and its conclusions are supported by the findings.
Cf. In re Mecier, 143 Vt. at 30, 460 A.2d at 476 (cross-examination essen-
tially tactical decision by trial counsel). Because defendant has not met
his burden on the first prong of the Strickland/Pernicka test, we need not
reach the issue of prejudice. In re Trombly, ___ Vt. ___, ___, 627 A.2d 855, 856 (1993).(FN1)
Defendant argues next that the PCR court's conclusion that defendant's
request for substitute counsel on the eve of trial was properly denied was
clearly erroneous and ignored compelling evidence that defense counsel were
inattentive to defendant's case and ineffective in preparing it. We dis-
The record reveals that defendant moved for new counsel five days
before the trial was to begin. The trial court held both an in camera
hearing with defendant and a hearing in open court with counsel present.
Defendant's allegations amounted to a "strained relationship" with counsel,
in part over defendant's refusal of a plea agreement and his perception that
his counsel had determined he was guilty. The original trial judge found,
however, that the attorney-client relationship was still viable, that
defendant was engaged in the conduct of his case and that the attorneys were
exercising reasonable professional judgment on defendant's behalf. The
motion was denied.
It is within the trial court's discretion to assign substitute counsel
when there is a complete breakdown in the attorney-client relationship or
counsel is incompetent. State v. Ahearn, 137 Vt. 253, 263, 403 A.2d 696,
703 (1979). With respect to the attorney-client relationship, there must be
more than a strained relationship or "lack of rapport." See State v.
Bruley, 131 Vt. 366, 367, 306 A.2d 672, 673 (1973). In exercising its
discretion, the trial court may take into account whether the defendant has
unduly delayed in seeking a new assignment and whether the defendant is
seeking merely to delay. Ahearn, 137 Vt. at 263, 403 A.2d at 703.
No evidence was produced at the PCR hearing to suggest that the trial
court's ruling deprived defendant of the effective assistance of counsel.
To the contrary, the evidence showed that counsel consulted with defendant
on numerous occasions and solicited his opinions, that defendant was
involved in defense preparations and kept informed of developments, and that
despite disagreements, there was no serious breakdown in the attorney-client
relationship. The most that was shown was that defendant was not completely
satisfied with counsel's approach to the case. With respect to incompe-
tence, we have already discussed that trial counsel were neither inattentive
nor ineffective, although defendant may have disagreed with their tactical
approach to the case, and were competent to handle a sexual assault trial.
Considering the late filing of the motion by defendant, and the trial
court's view that the attorney-client relationship was viable, it was not
clearly erroneous for the post-conviction court to hold there was no denial
of effective assistance of counsel.
Finally, defendant claims that the post-conviction court erred in
concluding that the State did not violate the rule in Brady v. Maryland, 373 U.S. 83 (1963), and V.R.Cr.P. 16 when the State failed to disclose
potentially exculpatory evidence. See State v. Lewis, 151 Vt. 38, 40, 556 A.2d 59, 61 (1988) (duty imposed under Rule 16 and Brady is identical). We
The evidence in question was the original handwritten statement by the
cousin, and is an account of the victim's story as told to the cousin. The
handwritten statement referred in several places to the perpetrator as "the
man." An interlineation added the words "big fat" between "the" and "man"
where "the man" appeared in the statement. Defendant argues that the added
words suggest an adult's attempt to strengthen the statement by making an
identification of defendant, who was obese, and was relevant to the
"coaching" defense. What defendant received was not the original hand-
written statement, but exactly the same statement in typed form. The typed
form included the words "big fat," but did not indicate that it was an
interlineation. The handwritten statement was not in the possession of the
Defendant and the State stipulated to the fact that the original
statement should have been disclosed to defendant under V.R.Cr.P. 16(a)(1),
but that the failure to do so was not the product of bad faith. The
question, then, is whether the evidence was "favorable to the accused and
material to the accused's guilt or innocence." State v. Goyette, 156 Vt.
591, 597, 594 A.2d 432, 436 (1991). The evidence is material only if there
is a reasonable probability -- a probability sufficient to undermine
confidence in the verdict -- that the result of the proceeding would have
been different had the evidence been disclosed. Id. at 597-98, 594 A.2d at
There is no evidence in the record below to suggest that this evidence
would have provided damaging impeachment material for the defense. The
cousin testified, and the trial court found, that "big fat" was added in the
nature of a correction to the statement. This is supported by the victim's
own tape-recorded description of her assailant as the "fat man," given at
the police station before the cousin wrote a statement of what the victim
had told her. Far from being material to the defense, the revelation of
this evidence at trial would have served only to bolster the State's case.
FOR THE COURT:
FN1. Defendant also argues on appeal that a reasonably competent attorney
would have elicited testimony from Dr. Toll, a pediatrician who had examined
the victim, about whether the victim had vaginal scarring. Defendant bears
the burden of affirmatively showing what the potential evidence would have
been and how it would have produced a different result. Brown v. McGinnis,
922 F.2d 425, 428 (7th Cir. 1991). Defendant failed to make any such showing.