In re Thomas S. Sharrow, 175 A.3d 1236

Background

Petitioner (Sharrow) was convicted of attempted second-degree murder after a jury acquitted him of attempted first-degree murder and convicted him of aggravated assault; he is serving 20 years to life.
At trial, complainant testified petitioner broke into her home, strangled and repeatedly stabbed her; she had multiple knife wounds, one potentially life-threatening.
Petitioner testified he entered to avoid injury, engaged in a violent struggle with complainant over a knife, and picked up a knife later but did not stab her; he had a cut on his hand consistent with a struggle.
Trial court instructed on attempted first- and second-degree murder and aggravated assault, and on self-defense; earlier drafts included attempted voluntary manslaughter and an absence-of-provocation element for second-degree murder, but those were omitted and defense counsel did not object.
In PCR proceedings the court found counsel ineffective for failing to secure instructions (absence of provocation and attempted voluntary manslaughter) because the evidence supported those instructions; the PCR court concluded petitioner was prejudiced and vacated the conviction.
On appeal the State conceded ineffectiveness but argued no prejudice; the Vermont Supreme Court affirmed the PCR decision, applying the Strickland reasonable-probability standard and finding the omission undermined confidence in the verdict.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel’s failure to object to jury instructions constituted ineffective assistance	Counsel erred by not insisting on absence-of-provocation element and including attempted voluntary manslaughter instruction	State did not challenge PCR court’s ineffective-assistance finding on appeal	Ineffective-assistance finding not disputed on appeal; PCR court correctly found counsel fell below professional standards
Whether petitioner was prejudiced by counsel’s error (prejudice standard)	PCR: reasonable probability the verdict would differ without the errors; confidence in outcome undermined	State: prejudice standard nearly equivalent to more-likely-than-not; argues PCR misapplied standard	Court applied Strickland standard (reasonable probability to undermine confidence) and rejected a more-likely-than-not test; found prejudice existed
Whether evidence supported instructions on absence of provocation and attempted voluntary manslaughter	Petitioner’s testimony and expert showed sufficient evidence of provocation and struggle to warrant instructions	State argued evidence and corroboration of complainant undermined petitioner’s provocation claim	Court held sufficient evidence supported giving those instructions; omission removed an essential element from jury’s consideration
Whether a jury could reasonably acquit on murder and convict on voluntary manslaughter despite mixed testimony	Petitioner: juries routinely accept/reject parts of testimony; acquittal on first-degree supports provocation inference	State: jury’s acquittal on first-degree and conviction on second-degree shows it disbelieved provocation; jury would not split testimony favorably to petitioner	Court agreed juries can parse testimony; given the omitted element and high burden on State, there was a reasonable probability the outcome would differ

Key Cases Cited

State v. Hatcher, 167 Vt. 338, 706 A.2d 429 (Vt. 1997) (when provocation implicated, jury must be instructed that State must prove absence of passion or provocation)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (ineffective-assistance prejudice: reasonable probability sufficient to undermine confidence in outcome)
Harrington v. Richter, 562 U.S. 86 (U.S. 2011) (discussion of Strickland standard; difference from more-probable-than-not is slight)
State v. Bolaski, 196 Vt. 277, 95 A.3d 460 (Vt. 2014) (defendant entitled to full, fair, and correct instructions on issues presented by evidence)
State v. LaBounty, 177 Vt. 635, 869 A.2d 120 (Vt. 2005) (applying Strickland standard)
In re Towne, 195 Vt. 42, 86 A.3d 429 (Vt. 2013) (review of prejudice requires considering the trial as it actually unfolded)
State v. Couture, 146 Vt. 268, 502 A.2d 846 (Vt. 1985) (conviction may be vacated when jury instructions permit conviction on less proof than elements require)
State v. Caron, 155 Vt. 492, 586 A.2d 1127 (Vt. 1990) (emphasizing the high standard of proof beyond a reasonable doubt for criminal elements)
State v. Shabazz, 169 Vt. 448, 739 A.2d 666 (Vt. 1999) (definition of voluntary manslaughter)