In re Wilkinson

In re Wilkinson  (95-156); 165 Vt 183; 678 A.2d 1257

[Opinion Filed 12-Apr-1996]

       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. 95-156


In re Charles Wilkinson                      Supreme Court

                                             On Appeal from
                                             Windham Superior Court

                                             January Term, 1996


Richard W. Norton, J.

Robert Appel, Defender General, and Judith A. Ianelli, Prisoners'
  Rights Office, Montpelier, for petitioner-appellant

Dan M. Davis, Windham County State's Attorney, and Christopher C.
  Moll, Deputy State's Attorney, Brattleboro, for respondent-appellee


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

       JOHNSON, J.  Petitioner appeals the district court's denial of
  post-conviction relief, arguing that the court erred (1) by permitting the
  judge who presided over defendant's original trial to testify as the
  State's expert witness; and (2) in finding that petitioner was not
  prejudiced by defense counsel's failure to adequately impeach the State's
  expert witness.  We reverse, and remand for a new post-conviction relief
  hearing.

                                I.

       In 1990, following a trial by jury, petitioner was convicted of both
  sexual assault on a minor and lewd and lascivious conduct.  On appeal, this
  Court upheld the conviction.  State v. Wilkinson, No. 90-418 (Vt. Oct. 10,
  1991) (mem.).  Petitioner then moved for post-conviction relief, pursuant
  to 13 V.S.A. § 7131, claiming that he had been denied effective assistance
  of counsel at trial.  Specifically, petitioner argued that defense counsel
  did not impeach the State's expert witness with allegations of past
  professional misconduct and perjury, and that counsel failed to object when
  the same expert testified that the victim had been sexually abused by

 

  petitioner.  The latter claim is based on our decision in State v. Weeks,
  160 Vt. 393, 403, 628 A.2d 1262, 1267 (1993), where we held that the
  admission of expert testimony identifying the defendant as the perpetrator
  and implying that the child victim was telling the truth was plain error.

       Defendant had a right, under both the United States and Vermont
  constitutions, to reasonably effective assistance of counsel.  In re
  Trombly, 160 Vt. 215, 217, 627 A.2d 855, 856 (1993).  To challenge his
  conviction on the basis of ineffective assistance of counsel, defendant
  must show by a preponderance of the evidence (1) that defense counsel's
  performance fell below the prevailing standard of competency, and (2) that
  but for counsel's unprofessional errors, the result of the proceeding would
  have been different.  Id. at 217-18, 627 A.2d  at 856; State v. Bristol, 159
  Vt. 334, 337, 618 A.2d 1290, 1291-92 (1990).

       At the post-conviction relief hearing, petitioner presented two
  witnesses.  The first, attorney Edmund Burke, was petitioner's counsel at
  his original trial.  Burke testified about his inadequate impeachment of
  the expert witness and his failure to object to the expert's statement that
  petitioner sexually abused the victim.  The second witness, attorney David
  Howard, testified as petitioner's expert.  Howard testified about the
  impact of the mistakes made by Burke and concluded that, in the absence of
  those mistakes, the verdict might have been different.  To counter this
  testimony, the State called one expert witness, Judge Robert Grussing, III,
  who presided over petitioner's original criminal trial.  Judge Grussing
  acknowledged that Burke's failure to object to the expert testimony was a
  deviation from the standard of a reasonably competent attorney, but
  testified that the error did not affect the outcome of the trial.  The
  district court concluded that defendant had not shown that, but for Burke's
  deviation from the standard of competence, the outcome of his trial would
  have been different .

                                II.

       Petitioner argues that the court erred by permitting Judge Grussing,
  as the State's expert witness, to testify that the jury would probably not
  have reached a different result had defense 

 

  counsel's performance met the prevailing standard of competency.  Judge
  Grussing testified as to the weight of the evidence at trial, comparing the
  relative strength of the State's witnesses, and in effect, gave his opinion
  on how the jury reached its verdict:

  Q: And the next question I have is: Do you think [the failure to
  object] would . . . have made a difference here, . . . a reasonable
  probability of a different outcome?

  A: I do not believe that but for that evidence the outcome would have
  been any different. I think --

  Q: [W]hy?

  . . .

  A: Well, I sat through the trial.  I heard all of the witnesses, the
  testimony of [the child victim].  The child, was, in my opinion, extremely
  strong. . . .  There were attempts made to discredit that child's testimony
  . . . .  But she was an extremely convincing witness.  And it seemed to me
  that these other issues were peripheral in nature and that that case turned
  on the testimony of the child.
  
       With respect to the State's expert witness, Judge Grussing testified
  that the expert "was not an impressive witness" and did not have an "aura
  of expertise."  Judge Grussing also noted that he had addressed Burke's
  failure to object to the expert's testimony by giving the jury a curative
  instruction in "very strong language."

       Judge Grussing's role at the post-conviction relief hearing is
  disturbing, both because he was asked to speculate about the evidentiary
  basis for the jury verdict and because he testified to the basic fairness
  of a criminal trial for which he was the presiding judge.  In essence,
  Judge Grussing asked the court to believe, as a matter of expert testimony,
  that his own conduct of the trial cured counsel's shortcoming.  Perhaps the
  most pointed example is Judge Grussing's testimony about the curative
  instruction that he gave the jury.  After recognizing counsel's error, he
  was obligated to respond and mitigate the effect of the error.   Although
  Judge Grussing stopped short of testifying that his jury instruction cured
  the error, he did evaluate his own efforts, stating that he made a
  "particular effort" and tried to make it "very forceful."

       The State correctly points out that Vermont has no statutory provision
  or case law that

 

  explicitly bars testimony from the trial judge.  Nonetheless, basic
  principles of fairness and due process suggest that Judge Grussing's
  testimony at the hearing was improper.  The statute governing
  post-conviction relief, 13 V.S.A. § 7131, and relevant provisions of the
  Code of Judicial Conduct also support this conclusion.

       The Legislature has explicitly prohibited the judge who presided over
  a defendant's criminal trial from hearing an application for
  post-conviction relief.  13 V.S.A. § 7131.  This prohibition reflects an
  obvious and serious concern: a judge is unlikely to conclude that a trial
  over which that judge presided was fundamentally unfair to the criminal
  defendant.  See Bristol, 159 Vt. at 337, 618 A.2d  at 1291 (to obtain
  post-conviction relief, petitioner must establish that fundamental errors
  rendered conviction defective).  The presiding judge, after all, had a
  responsibility to ensure that the trial was fair.  Assigning a new and
  disinterested judge ensures that an applicant receives a fair opportunity
  to be heard, and avoids even the appearance of bias.

       Although here Judge Grussing did not entertain the application for
  post-conviction relief, he did give crucial testimony evaluating the
  evidence and the verdict at petitioner's trial.  Judge Grussing's role at
  the original trial does give him the benefit of first-hand knowledge;
  because of that role, however, and his obligations as presiding judge, he
  cannot testify as a neutral and impartial observer of the trial.  See
  Helmbrecht v. St. Paul Ins. Co., 362 N.W.2d 118, 125-26 (Wis. 1985) (in
  malpractice action, trial court erred by permitting original judge to
  testify as to outcome of divorce proceeding had case been properly
  presented; requiring such testimony places judge in situation where
  position of neutrality would unavoidably be compromised, and judge would be
  forced to defend actions in original suit).

       The State argues that Judge Grussing's testimony cannot be excluded
  merely because of his possible bias.  Of course, many witnesses are biased
  or have some interest in a proceeding; typically, bias of a witness goes
  only to the weight of evidence, not to its admissibility.  Judge Grussing,
  however, was not an ordinary witness.  The State essentially argues that we
  should permit judges, clothed in the authority of the office, to testify at
  post-conviction relief hearings

 

  that the criminal trials over which they presided were conducted fairly and
  resulted in the correct verdict.  We are convinced that such a practice
  would undermine both the propriety of the judicial office and the fairness
  of post-conviction relief proceedings.

       The Code of Judicial Conduct also provides guidance on this issue. 
  Judges are required to "act at all times in a manner that promotes public
  confidence in the integrity and impartiality of the judiciary,"  A.O. 10,
  Canon 2(A), and to "perform judicial duties without bias or prejudice." 
  A.O. 10, Canon 3B(5).  Although we assume that Judge Grussing was not
  motivated by actual bias, his testimony was unduly prejudicial given its
  elevated aura of expertise.  Moreover, "A judge shall not, while a
  proceeding is pending or impending in any court, make any public comment
  that might reasonably be expected to affect its outcome or impair its
  fairness . . . ."  A.O. 10, Canon 3B(9).  Although Judge Grussing's
  "comment" was his expert testimony, such testimony is certainly public, and
  is no more appropriate than the same comments expressed in a newspaper
  editorial or interview.  In fact, the testimony is more troubling because
  it was not only likely to affect the outcome of the proceeding but the
  State intended that it do so. Although this is the first time this issue
  has been addressed in Vermont, several federal courts in habeas corpus
  proceedings have excluded testimony from the judge who presided over the
  original trial.  See, e.g., Perkins v. LeCureux, 58 F.3d 214, 220 (6th Cir.
  1995) (statement made by sentencing judge ten years later regarding judge's
  thought processes at time of sentencing must not be considered in habeas
  proceeding); Washington v. Strickland, 693 F.2d 1243, 1263 (Former 5th Cir.
  Unit B 1982) (en banc) (state trial judge's testimony explaining reasons
  for imposing death penalty and probable response to evidence adduced at
  habeas hearing was inadmissible evidence), rev'd on other grounds, 466 U.S. 668 (1984); Morrison v. Kimmelman, 650 F. Supp. 801, 805 (D.N.J. 1986) (in
  habeas proceeding, court would not receive evidence from state trial judge,
  sitting as trier of fact, concerning how judge weighed evidence and whether
  judge would have convicted defendant absent illegally obtained evidence;

 

  judge may not be asked to testify about mental processes in reaching
  judicial decision); cf. Schultz v. Thomas, 832 F.2d 108, 110 (7th Cir.
  1987) (in civil rights action against police officers alleging false arrest
  and use of excessive force, allowing state trial judge to testify as to
  credibility of witnesses in plaintiff's criminal trial usurped jury's role
  and unfairly prejudiced officers).  This case poses a somewhat different
  question, because Judge Grussing was not the trier of fact in the original
  trial.  Nonetheless, we find the reasoning of these courts instructive. For
  example, the "firmly established rule . . . that a judge may not be asked
  to testify about his mental processes in reaching a decision," Washington,
  693 F.2d  at 1263, was violated when Judge Grussing was asked to testify
  about his curative instruction.  These cases support our conclusion that
  the court erred by permitting Judge Grussing to testify.

                                II.

       Having determined that the superior court erred by admitting Judge
  Grussing's testimony, we must decide what effect the error had on the
  proceeding.  We will reverse the court only if the error resulted in undue
  prejudice, not if the error was harmless.  In re M.B., 147 Vt. 41, 44, 509 A.2d 1014, 1016 (1986).  Error is harmless if it "does not affect the
  substantial rights of the parties."  V.R.C.P. 61; Riess v. A.O. Smith
  Corp., 150 Vt. 527, 533, 556 A.2d 68, 72 (1988).

       A review of the transcript indicates that the court found Judge
  Grussing's testimony persuasive.  When counsel for petitioner objected to a
  portion of the testimony, the court responded that Judge Grussing's opinion
  would be "helpful" in determining whether defense counsel's errors had made
  a difference in the outcome of the trial.  The court later overruled a
  second objection, stating that Judge Grussing's testimony was "really an
  opinion of an expert who has been on the bench 14 years, practically
  exclusively in the district court where criminal proceedings are heard."

       As both petitioner's expert and Judge Grussing as the State's expert
  agreed that defense counsel's performance at trial had not met the
  prevailing standard of competency, the crucial

 

  issue at the hearing was whether, but for counsel's errors, the outcome of
  petitioner's trial would have been different.  On this issue, Judge
  Grussing's testimony directly conflicted with that of petitioner's expert. 
  Although the opinion below suggests that the court reviewed the trial
  transcripts independently, the court's view of the case was likely colored
  by reliance on Judge Grussing's testimony.  For example, the court points
  to the "credibility" and "compelling testimony" of the child victim as
  other evidence supporting the jury's verdict; this finding, however, may
  have been influenced by Judge Grussing's description of the child as an
  "extremely convincing" witness.

       As Judge Grussing gave persuasive testimony on a critical and
  contested issue, we are unable to conclude that allowing the testimony was
  harmless error.  See, e.g., Riess, 150 Vt. at 533, 556 A.2d  at 72
  (admission of expert's statement that defendant's negligence was proximate
  cause of accident was not harmless error, because statement was practically
  only evidence of causation).  Petitioner asks the Court to vacate his
  conviction and remand for a new trial.  In the absence of reliable findings
  of fact and conclusions of law from the court below, however, we prefer to
  remand the case for a new post-conviction relief hearing.  See In re Kraatz,
  137 Vt. 533, 534, 409 A.2d 576, 576 (1979) (consideration of appeal of
  denial of post-conviction relief foreclosed by lack of findings of
  superior court; case reversed and remanded). Because we remand for a new
  hearing, we do not reach petitioner's second claim of error.

       Reversed and remanded for new hearing on petitioner's application for
  post-conviction  relief.


                              FOR THE COURT:


                              _______________________________________
                              Associate Justice