In re Dunbar

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.


                                 No. 93-276


 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
    petitioner-appellant

 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.
                                     I.
      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
 in Pernicka,

           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
 689).
      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
 proved unsuccessful).
      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
 testimony.

 

      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
 children's testimony.

 

      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
 merit.
      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)

                                     II.

      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-
 agree.
      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.
                                    III.
      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
 disagree.
      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
 state's attorney.
      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
 436.
      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.
      Affirmed.

                                    FOR THE COURT:


                                    _______________________________
                                    Associate Justice





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                                 Footnotes


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.