In re Lowry
195 Vt. 14
Vt.2013Background
- In 2005 Lowry lived with his girlfriend witness and their two children.
- Infant daughter hospitalized July 2005 for head trauma; in May 2006 Lowry was charged with two counts of first-degree aggravated domestic assault.
- Petitioner was assigned counsel; trial set for February 2007; defense planned to show others had access to the child and considered using the witness's Fifth Amendment privilege.
- Witness consulted counsel, ultimately chose not to invoke the Fifth; testified that Lowry encouraged her to invoke it.
- Counsel objected to testimony on privilege; after objection was denied, counsel did not cross-examine or address the issue in closing.
- Jury convicted Lowry of one count of aggravated domestic assault and he was sentenced to five to fifteen years; Petitioner filed a PCR petition claiming ineffective assistance of counsel; the PCR court granted summary judgment for the State.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there a material dispute about counsel anticipated risks of the Fifth Amendment strategy? | Lowry argues disputes exist on whether counsel anticipated risks. | State contends strategy was reasonable and risks were not prejudicial. | Yes, dispute exists; summary judgment improper. |
| Was counsel's decision to pursue the strategy and not cross-examine reasonable? | Disputes about whether decision was adequately advised and informed. | Strategy originated with counsel and was a reasonable trial tactic. | Disputes material; requires evidentiary hearing. |
| Did the alleged failure to inform Lowry of risks prejudice the outcome? | Risk awareness could have altered approach and outcome. | No clear showing of prejudice from the strategy. | Prejudice unresolved; remand for evidentiary proceedings. |
Key Cases Cited
- In re Combs, 190 Vt. 559 (VT 2011) (IAC standard; reasonable probability of different outcome)
- State v. Yoh, 180 Vt. 317 (VT 2006) (defense must consult with counsel on strategic decisions)
- In re Trombly, 160 Vt. 215 (VT 1993) (defendant decides after consultation; some tactics remain counsel’s call)
- In re Mercier, 143 Vt. 23 (VT 1983) (consider full defense context; not in isolation at PCR)
- Berlin Dev. Assocs. v. Dep’t of Soc. Welfare, 142 Vt. 107 (VT 1982) (summary judgment should avoid useless trials; genuine issues require trial)
- Sykas v. Kearns, 135 Vt. 610 (VT 1978) (trial required when material facts are in dispute at summary judgment)
- Pierce v. Riggs, 149 Vt. 136 (VT 1987) (issues tested in open court where necessary)