LaBounty v. State (2003-504); 177 Vt. 635; 869 A.2d 120
2005 VT 6
2005 VT 6
SUPREME COURT DOCKET NO. 2003-504
NOVEMBER TERM, 2004
Aime B. LaBounty } APPEALED FROM:
v. } Caledonia Superior Court
State of Vermont }
} DOCKET NO. 116-4-00 Cacv
Trial Judge: M. Kathleen Manley
In the above-entitled cause, the Clerk will enter:
¶ 1. Petitioner, Aime LaBounty, appeals a superior court judgment
denying his petition for postconviction relief alleging that his
convictions for aggravated sexual assault were caused by the ineffective
assistance of his trial counsel. We affirm.
¶ 2. On January 31, 1996, petitioner was convicted of two counts
of aggravated sexual assault, each count involving a different minor
victim. The victims in the case had attended a daycare center run by
petitioner's wife. In February 1995, one child, B.M., disclosed to her
mother that petitioner had put his "peepee" in her mouth. B.M.'s mother
phoned the mother of another child, S.J., who had also attended the daycare
center. After some questioning, the mother asked S.J. if petitioner had
engaged in similar conduct with her and she responded "No, he made me suck
it." Both victims were four years old at the time of the relevant acts.
The mothers reported the incidents, and the police and SRS workers
interviewed the children and the mothers. Based on the interviews, the
State charged defendant with two counts of aggravated sexual assault.
¶ 3. Petitioner was represented by Attorney Rachael Hexter. He
consistently maintained his innocence. He explained that B.M.'s allegation
may have arisen from a misunderstanding following an incident where B.M.
entered the bathroom while he was using it. He also explained that S.J.'s
parents may have fabricated her story in retaliation for other conflicts
between him and the parents.
¶ 4. Counsel deposed several witnesses in preparation for trial, but
did not depose the minor victims. The State did not intend to call the
victims as witnesses, relying instead on the admission of the testimony of
the mothers and others who had interviewed the victims. See V.R.E. 804a.
(FN1) The main defense trial strategy was to concentrate on the lack of
corroboration of the complainants' stories. In addition, at this point,
petitioner did not want the children to be deposed.
¶ 5. Before trial, counsel made several unsuccessful motions,
including one to sever the two charges and one to exclude the statements of
the victims, which the State sought to admit through others under Rule
804a. Before arguing the Rule 804a motion, counsel did not have an
opportunity to listen to the tape of the SRS worker interview of S.J. The
case went to trial and resulted in a hung jury. In preparing for a
retrial, counsel again decided not to depose the children and used the same
defense strategy. At the second trial, the jury convicted on both counts.
Petitioner appealed the convictions, and we affirmed. State v. LaBounty,
168 Vt. 129, 131, 716 A.2d 1, 3 (1998). The main errors alleged in the
appeal were the denial of the motion to sever and the admission of the Rule
804a evidence, and this Court specifically upheld the trial court's
decisions on each issue. Id. at 133-39, 716 A.2d at 4-8. Petitioner then
filed a postconviction relief petition, claiming ineffective assistance of
¶ 6. The superior court conducted a three-day hearing on
petitioner's claims. The court found that trial counsel's performance at
the severance hearing, her failure to request a continuance of the Rule
804a motion hearing to listen to the tape of S.J.'s interview, and her
failure to depose the victims fell below required norms. The court
concluded, however, that there was no reasonable probability that in the
absence of these failures there would have been a different trial outcome.
For this reason, the court denied the petition.
¶ 7. The findings in a post-conviction relief proceeding will not
be disturbed unless they involve clear error, and in the case of
conflicting evidence, we will defer to the trial court's judgment. In re
Quinn, 174 Vt. 562, 563, 816 A.2d 425, 427 (2002) (mem.). A PCR court's
conclusions will be affirmed if supported by the findings. Id.
Furthermore, a petitioner seeking postconviction relief based on
ineffective assistance of counsel "must demonstrate first 'that counsel's
performance fell below an objective standard of reasonableness informed by
professional norms' and second, 'that counsel's deficient performance
prejudiced the defense.' " In re Washington, 2003 VT 98, ¶ 8, 14 Vt.
L.Wk. 311, 838 A.2d 87 (mem.) (quoting In re Dunbar, 162 Vt. 209, 212, 647 A.2d 316, 319 (1994)). Prejudice results when "counsel's errors were so
serious as to deprive the defendant of a fair trial, a trial whose result
is reliable." Strickland v. Washington, 466 U.S. 668, 687 (1984). In
other words, "[t]he defendant must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome." Id. at
694; see In re Plante, 171 Vt. 310, 313, 762 A.2d 873, 876 (2000) (holding
that petitioner must demonstrate that "his counsel's inadequate
representation caused a breakdown in the adversary process that rendered
his conviction defective.").
¶ 8. On appeal, petitioner reiterates the arguments made at the
PCR hearing and claims that trial counsel failed to test and investigate
the testimony of the two victims, whose accounts formed the basis of the
State's case. At the hearing, both the State and petitioner presented
expert witnesses. Petitioner's expert witness, an experienced criminal
defense lawyer, testified that trial counsel's representation was deficient
in several areas, and the combination of these deficiencies prejudiced
petitioner such that it was reasonably probable that, in the absence of the
deficiencies, there would have been a different outcome. Specifically, he
faulted the defense for failing to: obtain an expert to explain the
victims' accusations; obtain an expert to attack the SRS interview of S.J.
as professionally defective and unreliable; conduct a deposition of the
victims; and properly prepare for and present the motion to exclude the
Rule 804a evidence and the motion to sever.
¶ 9. The State's expert, also an experienced criminal defense
lawyer, admitted that trial counsel's handling of the severance motion and
the admissibility hearings fell below a reasonable standard of practice,
but opined that such failures did not affect the trial's outcome. He also
agreed that trial counsel should have deposed the victims, but concluded
that the depositions would not have changed the result at trial.
¶ 10. Much of the difference between the experts' opinions focused
on whether trial counsel should have vigorously attempted to have the Rule
804a evidence excluded, specifically the SRS worker's interview of S.J. In
the view of petitioner's expert, this interview was conducted
unprofessionally, and trial counsel should have retained an expert witness
to so testify. The expert believed that trial counsel should have forced
the State to have S.J. testify, as the weight of that testimony could be
challenged. Trial counsel and the State's expert took a different view,
believing that there was no incentive for the defense to prevail on a
motion to exclude Rule 804a evidence as it was preferable to have the
victims' statements come in through the testimony of third parties, rather
than through direct victim testimony. They also believed that, in any
event, defendant was not likely to prevail on the motion to exclude the
Rule 804a evidence.
¶ 11. The court denied the postconviction relief petition in a
carefully-considered, detailed, written decision. The PCR court largely
accepted the view of the State's expert witness and rejected that of
petitioner's expert where they disagreed. Thus, the court did not find
that trial counsel's failure to retain an expert witness in support of the
motion to exclude the Rule 804a evidence constituted ineffective
representation. With respect to the instances where the court found that
trial counsel's representation fell below minimum standards, the court
agreed with the State's expert that this did not prejudice defendant
because there was no reasonable probability that the outcome would have
been different if trial counsel had committed no such errors.
¶ 12. With respect to the severance motion, the court acknowledged
that trial counsel could have presented more compelling arguments in favor
of severance, but concluded that there was no reasonable probability that
this would have changed the outcome because: (1) the trial court probably
still would have denied the severance motion, see State v. Johnson, 158 Vt.
344, 350-51, 612 A.2d 1114, 1117-18 (1992) (upholding trial court's denial
of severance where separate sexual allegations were connected in time,
space, victim profile and type of act); and (2) any victory on the motion
for severance would have been hollow as each girl's statement could have
been admitted at the other's trial as "bad act" evidence under V.R.E.
404(b), see id. at 352, 612 A.2d at 1119 (noting that evidence of other
sexual acts may be admitted if they are similar and close in time). The
latter reason is strongly supported by our direct appeal decision. We
[W]e do not find that the denial of a severance resulted in any
prejudice to defendant at trial. Evidence relating to both
offenses would have been admissible in separate trials to show a
common scheme or plan under V.R.E. 404(b). As previously
discussed, the offenses revealed a common objective, plan and
method. Therefore, as we explained in Johnson, "the common
features of defendant's conduct, the settings, and the victims,
would have permitted admission of the evidence under 404(b)." We
note further that joinder did not inhibit defendant from
testifying with regard to either of the charged offenses.
LaBounty, 168 Vt. at 135, 716 A.2d at 6 (citations omitted) (quoting
Johnson, 158 Vt. at 352, 612 A.2d at 1119). We conclude that the PCR
court's conclusion on the severance motion is fully supported by the
findings and in turn by the evidence.
¶ 13. With respect to the motion to exclude the Rule 804a evidence,
the State's expert faulted trial counsel for going forward without
listening to the tape of S.J.'s SRS interview. The court also found that
trial counsel's representation was inadequate because she failed to attack
the victims' statements as untrustworthy. The court found, however, that
the Rule 804a evidence generally would have been admitted even if trial
counsel made an effective challenge. As to the SRS interview of S.J. where
the interview technique was suspect, the court found that there was a
reasonable likelihood that S.J.'s statements would have been admitted
despite the flaws in technique. Specifically, the court noted that S.J.'s
statement was consistent with what she had told her mother the day before,
contained supporting detail, used the language of a four-year old, and
described sexual acts beyond the normal knowledge of a young child. These
factors were also cited in our direct appeal decision to affirm the
admission of the Rule 804a statements. See LaBounty, 168 Vt. at 137-38,
716 A.2d at 7. Again, we conclude that the PCR court's decision was
supported by its findings, which were in turn supported by the evidence.
¶ 14. Third, the PCR court found that no evidence was presented to
demonstrate that deposing the victims would have resulted in a different
outcome. On this point, the expert witnesses agreed, each faulting trial
counsel for failing to conduct the depositions but testifying that they
could not say with reasonable probability that conducting the depositions
would have created a different result. Petitioner's expert witness
concluded that trial counsel should have deposed the victims to determine
whether, when separated from their mothers, they would have told the same
story. (FN2) At this point, it is speculative whether inconsistencies
would have developed. We find that the PCR court's conclusion is supported
by the evidence and findings.
¶ 15. Finally, the court's findings in so far as they resolved the
dispute between the expert witnesses and rejected petitioner's expert's
additional grounds for finding ineffective assistance of counsel are
supported. The PCR court could determine which expert opinion to accept.
See In re Grega, 2003 VT 77, ¶ 8, 175 Vt. 631, 833 A.2d 872 (mem.).
BY THE COURT:
John A. Dooley, Associate Justice
Denise R. Johnson, Associate Justice
Marilyn S. Skoglund, Associate Justice
Paul L. Reiber, Associate Justice
Frederic W. Allen, Chief Justice (Ret.),
FN1. Vermont Rule of Evidence 804a allows a court to admit hearsay
statements of children ten years or under if the child is a victim of
sexual assault, the statements were not taken for a legal proceeding, the
child is available to testify, and "the time, content and circumstances of
the statements provide substantial indicia of trustworthiness." V.R.E.
FN2. Appeal counsel argues a different reason in his brief-to determine
whether the young victims were competent to testify to meet the
availability requirement of Rule 804a(a)(3). In fact, petitioner's own
expert witness rejected that rationale, testifying that it was unlikely
that the victims would have been found to be unavailable.