*1 In re Russo Vito 1073] [991 08-070 No. Burgess, Johnson, Skoglund Dooley, JJ. Reiber, C.J., Present: February Opinion Filed *2 N. Associates, Barre, Allison Fulcher of Martin & and Vito J. Russo, Se, Pro Springfield, Petitioner-Appellee. Shriver,
Tracy Kelly County Windham Attorney, Brattleboro, for Respondent-Appellant. Skoglund, Petitioner, J. jailed for a term of twelve-to- years
fifteen on a aggravated assault, conviction for sought (PCR) post-conviction relief grounds that he did not receive effective assistance of counsel at his trial. The agreed, PCR court concluding trial attorney him deprived of effective representation by failing to a engage testify at trial and failing to test-fire the rifle at issue. appeals The State argues that the trial attorney’s tactical decisions were within an acceptable range and, of professional judgment even if there errors, were unprofessional petitioner produced no evidence show- ing, within a reasonable probability, absent those errors the outcome of his trial would have been different. We affirm.
I. Factual Background A. Petitioner’s Criminal Trial ¶ 2. In case, the underlying petitioner criminal was charged with and convicted of aggravated in assault violation of 13 V.S.A. 1024(a), § the result of an altercation with a mortgage former case, holder. To prove this the State had to petitioner show attempted to bodily injury cause with deadly weapon, a bolt- rifle, action it pointing at the complaining witness and firing 1024(a)1; § his vehicle. Pratt, See 13 V.S.A. 116, State v. 147 Vt. 1 person guilty aggravated “A person: assault if the (2) attempts purposely knowingly bodily injury to cause or causes to another deadly weapon.” with a curiam) (1986)
118, 606, (attempted aggravated (per harm). decision intent to Our specific includes element of assault a full appeal direct contains conviction on affirming petitioner’s Russo, 103, 3, case, account of the facts of the State 655, In briefly. recount them here 864 A.2d but we Vt. motel, under complaining petitioner witness sold witness held the deed while complaining their agreement, point on the At some payments property. made petitioner complaining and the witness petitioner payments failed to make family, and evicted and his property petitioner foreclosed on the eviction, on Following on the living premises. who had been 17, 2002, to the the afternoon of November went business, lot, car sales to offer to place complaining family with his permission to reside the motel pay $5000 de- holidays. complaining immediately witness through property. point, according manded that leave his At this him, petitioner pointed plow to flee the causing property *3 Dodge. truck. in his standard-transmission It Petitioner followed that, in dodged as the two vehicles and out of traffic alleged Brattleboro, at five during through a five-mile chase around afternoon, a bolt-action rifle from his petitioner o’clock fired Eventually complain- car at the witness’s vehicle. Station, into Police followed ing pulled the Brattleboro who was then arrested. petitioner, vehicle, police During subsequent petitioner’s search ammu-
found .22 caliber rifle with one live round of petitioner’s chamber, it, nition in one in the rifle’s bullets spent cartridge box, the vehicle’s spent casings an ammunition and four bullet items, took of these their police possession floor. Once the They gun operability, ended. did not assess the investigation in the car fit casings nor determine whether the bullets and found or the they petitioner’s fingers gun the rifle. Nor did casings. firing, age recent or determine the ¶ 4. an criminal defense assigned experienced Petitioner was arose attorney. attorney between and his trial Conflict steadfastly that he did not immediately. almost Petitioner asserted a defense of total denial. The weapon pursue fire and wanted hand, insanity or attorney, pursue trial on the other wanted to on his intoxication at the time capacity diminished defense based and the emotional stress that had resulted great the incident from the foreclosure and eviction. that they Petitioner insisted defense, and, formally pursue that line of consistent with his instructions, insanity filed no notice of an defense or of expert testimony required by the Vermont Rules 12.1(a) of Criminal Procedure. (requiring V.R.Cr.P. defense counsel give advance written notice of expert testimony relating to defect, insanity, mental disease or or other mental condition trial). that counsel intends to use as a at The trial attorney’s resulting strategy was a mixture of both denial incapacity. She cast sought shooting doubt on whether a occurred undermining the State’s evidence that petitioner shot at shots, witness and that he multiple fired while that, arguing also if he did commit alleged, petitioner’s the acts him intoxication and mental anguish incapable rendered of form- ing the specific necessary intent for the assault charge. trial, 5. At aggravated State’s evidence of the assault consisted of testimony from the complaining two wit- nesses to the sounds of the gunshots around the time of the chase, arresting and the officer’s testimony about the physical evidence of gun and ammunition in petitioner’s found vehicle. The complaining provided only direct evidence that petitioner shot the rifle at him. He testified that he chase, heard four during shots the car saw least one mirror, muzzle flash his vehicle’s rear-view and could tell that the flash was directed him. The arresting officer admitted that the police had not tested the rifle to determine operability or whether it had recently. been fired He further admitted that no testing had been done to casings determine whether the found in rifle, be, vehicle fit the casings how old the might whether gun recently. fired a It developed further the ammunition box types found held two of .22 caliber bullets, some of which matched casings found in the vehicle and others that did not. The questions State asked no of this *4 witness regarding muzzle flashes or if one could determine directionality any from flash seen.
¶ 6. The trial attorney’s cross-examination of this officer estab- lished him as knowledgeable about firearms. She then asked questions never-deposed witness that allowed the officer to that, indeed, answer with his opinion probably a flash could be seen a gun night from fired at and that a person seeing a muzzle — probably flash could tell gun pointed which direction the not what wanted to the jury hear.
¶ to noises “hearing] The ear witnesses testified 7. two Both time of the the [chase].” shots about gun could have been — trying one was witness complaining to had some connection motel same from purchase to conflicting versions and they presented lost just occurred. of when noises
¶ his upheld This Court jury petitioner guilty. found 8. ¶ Russo, 1. appeal. conviction on direct Proceedings Post-Conviction Relief B. The ¶ filed petition a PCR appeal, petitioner After on direct losing trial counsel was ineffective superior claiming court to first, prior depose she failed to witnesses three reasons: second, trial; regarding testify failed to retain an she ability rifle and the petitioner’s of muzzle flashes from likelihood flash; and from a muzzle a tell the direction of a shot person rifle to third, have an she failed to fired or a muzzle flash when produced determine whether directionality shot person generally tell whether flash. from muzzle case, testimony petitioner presented expert 10. To make his as experienced attorney, experimental as well investigators of two who tested private
results court variety of for evidence of muzzle flash. The PCR in the At one firings. found that “No muzzle flash was observed revolver, an flash’ This apparent ‘cylinder shot with the was seen. flash area of of a revolver and cylinder is a from the obviously . original from . . muzzle. The rifle [bolt-action] tests, not have The PCR court found these cylinder.” conducted, sufficiently were not similar conditions guns enough and the were not similar original incident tested alleged provide in the results. used assault rehable probably court that the not have been PCR concluded tests Testimony additionally PCR hearing admissible at trial. at the Alcohol, Bureau of Tobacco Firearms held established that the permit petitioner’s experts the actual and would not weapon illegal, for the it was hearing use it because preparation gun’s illegally nor could make an exact because of the they copy shortened barrel. he drove 11. One also testified that petitioner’s investigators
the route witness and followed *5 during the incident while trying operate bolt-action BB gun. He said that he was operate unable to the rifle with any success. investigator other testified that an probably observer aimed, not tell which direction a gun was even if he or she observed muzzle flash.
¶ 12. attorney Petitioner’s expert witness testified performance of petitioner’s trial attorney relative to the profes- sional standards for criminal attorneys defense in Vermont. The expert testified that the was ineffective because she made an unprofessional error in not deposing at least officer, witness and the lead investigating as well as by not other investigating possible witnesses the incident. While the expert agreed witnesses, that a lawyer depose need not all he stated that pinning the complaining witness down on his version of events outweigh any concerns over revealing defense strat- egy. Additionally, expert faulted the trial attorney’s trial strategy generally, opining that she failed to have a coherent “theory of the case” and up ended jumping between denial of shots being fired and an intent defense that focused on intoxica- tion and emotional distress.
¶ 13. Finally, petitioner’s expert was most critical of the trial attorney’s failure to have the rifle tested for muzzle flash and to call her own expert testify as to the flash and directionality. He discounted the State’s contention that conducting such tests could have hurt the defense by giving the State more incriminating evidence or foreclosing certain arguments for the defense. He believed the defense had little other evidence on its side case; thus, proving there was no flash would be worth the risk. Furthermore, he explained, tests, even without the muzzle-flash defense counsel could have had an expert testify that a muzzle flash does not accurately indicate the direction of gunshots. The stated that cross-examining the State’s the police officer, in an effort to bring out evidence regarding whether the direction of a gunshot could be determined from a muzzle flash was “grossly ineffective” because she asked questions these with- deposing out the witness and proper because a level of represen- tation would have using involved a defense expert on this question. State, too, 14. The an experienced called criminal defense attorney as an expert testify attorney’s the trial repre- sentation, while not of the highest possible quality, adequate. State’s own expressed doubt about the trial attorney’s officer police decision to question her
performance, specifically him and deposed she had not flash when about muzzle However, opined he questions. answer the how he would know not worth in this case was for muzzle flash testing foreclosing incriminating evidence revealing the risk of attorney could instead especially when strategy, *6 tests. to conduct such focus on the State’s failure ¶ evidence, the court hearing granted PCR 15. After this failure attorney’s perform petition, concluding that flash the rifle and to have tests for muzzle that, and at the standard of testify professionalism, trial fell below failures, reasonably likely to have petitioner was but for these two at trial. received different result
II. Discussion
evaluating
an ineffeetive
16. The
standard
two-part
equivalent
is
under
essentially
claim
assistance-of-counsel
and Vermont constitutions. See Strickland Wash
United States
(1984) (federal
In re
668,
habeas
ington,
corpus);
466
687-88
U.S.
(1986)
Pernicka,
182-83,
616,
180,
A.2d
617-18
(post-
147 Vt.
513
Dunbar,
209, 213,
see also In re
relief);
162 Vt.
647
conviction
test).
(1994)
316,
The
(referring to
A.2d
320
Strickland/Pemicka
into
of this test
is an
the “reasonable
prong
inquiry
first
as measured
stan
competence
lawyer]
prevailing
[of
Pernicka, 147
at
conduct
the defendant’s case.”
Vt.
dards
omitted).
182,
In
(quotations
evaluating
513
at 617
this
standard,
permit
“we are not
objectively
professional
reasonable
¶98, 8,
In re
Washington,
VT
hindsight.”
ted to use
2003
176 Vt.
(mem.).
529,
also
that “trial of
recognize
[a]
¶ 17. In reviewing
standard,
a PCR court’s application of this
we strike a characteristically deferential pose. Specifically, we
apply
“clearly
erroneous” standard to the PCR court’s findings
of fact
uphold
and will
judgment
PCR court’s
if “the
—
conclusions follow from the findings”
again reversing only for
Dunbar,
clear error.
atVt.
¶ 18. Studying facts of the underlying case and keeping in mind that the legal standard for a criminal conviction is guilt — beyond a reasonable doubt acquittal and thus required only injecting such doubt it is clear that the State’s case was weak. And, because “a verdict or conclusion only weakly supported by the record is likely more to have been affected than errors one Strickland, with overwhelming record support,” 466 U.S. at bears highlighting the insubstantial nature of the evidence that put the State forth at assessing deeply how the errors of petitioner’s trial attorney affected his case. above, 19. As noted to obtain a conviction under 13 V.S.A. 1024(a)(2),
§ the State had to show petitioner “attempted] bodily cause . . . injury . . . with a deadly weapon,” the bolt-action rifle, by pointing it at the complaining witness and it at firing noted, vehicle. As the PCR court only direct evidence of the *7 charged crime was from the complaining witness himself. Despite the fact that the alleged chase in dodged and out of traffic for five at miles around five o’clock in the Brattleboro, afternoon in the only witnesses called to corroborate the complaining witness’s story that bullets had been fired were ear witnesses who merely “heard noises that could have been gun shots at about the time of the Both ear [chase].” witnesses were identified the PCR court as having some connection to the complaining witness “that could have caused them to be biased his favor.” any 20. Lacking physical evidence, direct holes, i.e. bullet the State’s only evidence that petitioner all, had any fired at weapon other than the complaining allegation, came from a petitioner’s search of car, vehicle upon arrest. In the police found bullets, rifle, casings, shell and a which petitioner told police he used for target shooting and regularly noted, left in the car. As once the police items, found these there was no further investi- gation. The gun was not assessed for operability, police nor did determine whether the bullets and casings found the car fit the gun at all. They likewise neglected to test petitioner’s fingers firing recent or to determine the age casings. the ¶21. had doubt beyond a reasonable To prove loading traffic, simultaneously while shifting gears through sped intending and to his rifle out window firing a bolt-action muster no more the State could injure witnesses. and these few ear muzzle flash than claimed bluntly described hearing the PCR witness at expert own State’s “terrible, frankly.” Given strength the State’s case surely could be trial, verdict underlying at presented evidence af- to have been “likely “weakly supported” described as attorney. trial blatant mistakes fected” Strickland, 466 U.S. found, mistakes attorney made 22. As PCR court case, pretrial planning, inadequate poor
throughout this At case, at trial. flawed execution patently organization witnesses, any the State’s outset, depose chose not to she case and few sworn on her own sense relying instead depose court failure to PCR held statements. While was not impeachment purposes interview witnesses or them se, in this case the tactical per it noted that ineffective counsel have, badly “may hindsight, decision backfired.” ¶23. trial of her part inadequate preparation, As attorney any challenge to retain witnesses failed had aimed and fired central contention that court found that she at the witness. believed, would experience, petitioner’s gun based on her own — she saw this issue as produce though not a muzzle flash and to enlist an “crucial” to the State’s case she failed that it theory. The trial believed support apparently be how difficult it would have been jury clear operating rifle with one hand while a vehicle work bolt-action direct or speed any the benefit of assumed without found, court testimony. As the PCR court she did seek rifle experi- on the authorization to tests conducted lack of operation. preparation ment with it as far as its This proved costly.
¶24. or employed she not deposed Because witnesses *8 to use other means experts, attorney attempted the trial trial testimony alleged elicit about muzzle flash supportive noted, of the responding shot direction. As the State called one chief, asked this witness questions officers its case but directionality. In her cross- muzzle flashes or regarding witness, examination of this the trial questions asked the PCR court found “clearly inferred a muzzle flash could be gun seen if a night,” was fired at thus supporting central element of the State’s case. The State’s expert witness at the hearing agreed that the trial attorney’s questioning appeared to assume shot had been fired. She ques- continued witness, tioning this attempting to testimony elicit that a muzzle flash would not show the direction of the shot. He responded that one probably “could tell what direction gun was pointed [from flash],” seeing the what the PCR court rightly characterized as a “damaging response.” found, As the PCR court her failure to provide an expert on ballistics left the jury “with damaging testimony about muzzle flash and bullets and ballistics from state (cid:127)witnesses, who might not have been even qualified to give such testimony but for defense counsel initiating inquiries from an apparent lack of her own experts.”
¶ 25. Her cross-examination of the complaining witness was inconsistent with her claimed focus the evidence of a muzzle flash as crucial to the State’s required element of showing shots were fired at the complaining just randomly or not at all. In reporting the incident police, the complaining witness had claimed he saw a “big ball of fire” when petitioner was chasing him. At the PCR hearing, the trial attorney testified that she believed the witness’s credibility at trial would be weakened by such apparent exaggeration. However, at trial she never challenged the witness as to gunshots flash or and left the presented, that he merely flash,” saw “a uncontested. As the PCR court noted:
[S]he made no effort to obtain an pre-trial work and preparation or to testify about such fire and muzzle flashes. . . . She had nothing to challenge [the complaining witness’s] assertion he saw a flash. For a case that counsel indicated clearly depended on firearms and ballistics to a great degree, especially if eyewit- ness claims to being shots heard and seen were to be challenged, it is impossible to understand how an of one’s own in the field would not be the minimal expected level of representation.
¶ 26. The PCR court went on to conclude that attorney’s failure to “perform[] at the required standard” created *9 criminal trial in petitioner’s result” “likelihood of a different the the trial so the results of “that efforts made found counsel’s and a new trial.” require as to or unreliable suspect testimony on expert the opined court that the PCR While have been hearing would not at the PCR flash submitted muzzle its decision noted that trial, court unequivocally at the admissible “clearly It tests. held that admissibility of such rely not on the did it have been hearing, at would testimony the expert the and the lack testify muzzle flash for an about expert possible it observable being the issue and likelihood of direction account. complaining to discredit the generally,” Thus, hearing offered at the PCR the fact that the test results from the actual many variables and differences may have too part not at the criminal trial was event be admissible claimed it trial failure to holding; attorney’s was the of the PCR court’s damaged on issue expert obtain And, attorney’s failure to have the at trial. it was trial case led to available initially being longer tested that rifle hearing. the PCR testing purposes directionality muzzle flash or any testing 28. Without — could not the most petitioner important refute general, — in the whether fired petitioner element State’s case: weakest It was this failure on specific at witness. that the PCR court felt created “a part trial attrib missteps of a different result.” Given the serious likelihood ¶ 24, supra, see expert testimony, to this lack of utable suspect results trial or unreliable. central failure made the by attorney actually eliciting The trial bolstered State’s case hamstrung peti from a State’s witness. She damaging testimony conten case rebuttal evidence to lacking support tioner’s not on a directionality be determined based muzzle tion and, thus, failing to counter the State’s evidence flash shot at court deter witness. of this created a reasonable argument mined absence Pernicka, 147 Vt. of a outcome at trial. See different probability shown when there “a (prejudice 513 A.2d at that, er but for counsel’s probability unprofessional reasonable rors, would have been different” proceeding the result of 694)). Strickland, 466 U.S. at (quoting ¶29. of shot direction was vital to issue aim, complain- (specifically Direction aim case. showed witness) ing injure showed the central element intent to a 1024(a)(2). § charge aggravated assault under 13 V.S.A. As court, specially charged noted the PCR 1024(a)(1), § under recklessly discharging where a firearm would come play. attorney engaged into Had the the services of a and tested the rifle even had part examine the rifle as there investigation, reasonable no need attempt prove been to use the State’s witness to flash, petitioner’s gun produced no muzzle nor that a muzzle flash directionality; not indicate she would have prepared been *10 question and impeach witness about his claimed And, sighting of “ball of muzzle quote fire” flash. to the PCR court, even import, “of more had counsel pursued initially, gun access to the actual have possible.” would been
¶ recognize 30. Because we that “[t]he benchmark for claim of judging any ineffectiveness must be whether counsel’s conduct so the proper functioning undermined of the adversarial process that the trial cannot be produced relied as having just result,” Strickland, we affirm. 466 U.S. at The 686. fully court’s opinion by substantiated and the evidence law. Affirmed.
¶ Burgess, J., dissenting. 31. To prevail on his post-conviction (PCR) relief claim prejudicial by of to failure counsel test his flash, weapon for muzzle petitioner all had to do was the rifle for flash and introduce the results to the PCR For court. reasons Instead, known to petitioner, but he did so.2 petitioner not do presented a case of purely prejudice, theoretical and unfounded prejudice rather than fact any existed. Having failed to prove flash, that the muzzle not petitioner further failed to establish that his trial counsel’s lack of challenge to State’s gunflash purposes reference to for of proving preju- aim was so dicial have likely as to affected the verdict his criminal trial. Speculation contrary court, to the by the PCR and as now affirm, adopted by to majority is no substitute for 2 testing, Petitioner not claim does the State withheld the or that it was by prosecution. otherwise made unavailable The docket no reflects Indeed, weapon testing up hearing. motion to obtain the to the time of requested granted petitioner record and the State access indicate that was hearing after the PCR concluded.
379 respect- I by petitioner. not below necessary evidence submitted dissent. fully muzzle would even, flash that the absence Assuming, exonerating point impeached
have to support evidence is moot without point petitioner, flash muzzle trial court determined premise. to demonstrate simulation attempted failed in their experts leaped court then unlikely produce gunflash. his rifle was conclude, an iota without experiment failed over critical committed a trial counsel prejudice, demonstrable To obtain firearm. with actual experimenting error not evidence, bore petitioner trial counsel’s omission relief showing potential what the evidence affirmatively the “burden of produced have have and how it would would been different 316, n* 209, n*, 322 Dunbar, In 162 Vt. result.” re 318, added); Plante, 171 (1994) In re see also Vt. (emphasis (2000) of claimed (declining address merits 762 A.2d trial counsel when inadequate performance resulting prejudice). demonstrate rejected muzzle only proffer on the lack of flash 33. With his unreliable, showed neither what court been,” “how test “would have nor
the results of a relevant flash
Grisby Blodgett,
different results.” See
produced
(9th
1997)
prejudice
where
(finding
Cir.
F.3d
372-73
— and
piece
unable
test a certain
petitioner
*11
from
tests that he believed
therefore
to show results
such
unable
(Cal.
him);
374,
Bolin,
P.2d
400
People v.
956
would exonerate
1998)
no evidence
prejudice
petitioner presented
no
where
(finding
if
exculpatory evidence
provided
that
“would have
expert
called”).
helpful
evidence would have been
Whether
therefore whether the omission
such evidence
petitioner, and
muzzle
remains in the
prejudicial,
was
is unknown
answer
by petitioner.
of the rifle left untested
¶
second
agreement
petitioner’s
court’s
with
counsel’s
resulted
trial
argument,
prejudice
that substantial
testimony
dispute
State’s evidence
expert
failure
secure
not
gunflash,
discerned from
was
shooting
that
direction could be
Again,
had the burden to show
sufficiently supported.
how
exculpatory testimony
presented,
been
what
reasonably likely
change
testimony
that
would have been
Dunbar,
n.*,
n.*.
at 216
Petitioner’s an observer of expert muzzle flash particular could not tell gunfire, opposed direction of as to it being air or wildly expert fired towards the elsewhere. not police testimony gunflash refute the that could indicate gunfire. general direction expert 35. Even if that proffered muzzle flash indicated no whatsoever, testimony
direction
such
would still
suffice to
that,
result,
establish
likely.
a different verdict was
It was
petitioner’s
showing
“burden
the decision reached would
reasonably
have been
if
likely
testimony
different”
such
had been
Washington,
Strickland v.
668,
(1984).
presented.
466 U.S.
696
claim,
This is not examined within
four
corners of
in light
totality
but
of the
at trial. Id.
presented
evidence
at 695.
must prove
prejudice
Petitioner
claimed
a prepon-
¶98, 8,
In Washington,
re
derance of the
evidence.
2003 VT
529,
(mem.).
Vt.
¶ 36. Petitioner’s would have neither overwhelmed nor significantly undermined the State’s case. It settled evidence, including the complaining testimony witness’s gunfire about his in direction based his observation of at least single gunflash, enough prove petitioner’s guilt beyond a Russo, State 7, reasonable doubt. 177 Vt. A.2d 655. Petitioner’s testified gunflash could not direction, a specific shooting establish while the State’s investigat- witnesses, ing police trial, who were available testified that flash could indicate direction. That are merely there competing opinions on this lone issue does not make a reasonably different result Link, See State v. likely. (Mo. 2000) (en banc) S.W.3d (concluding could not meet prejudice requirement because had defense called expert, prosecution would have called counter, its own expert to resulting likelihood different outcome). Moreover, the verdict was not the complaining based on alone, of gunflash observation the corroborating but on shots, of witnesses who heard what sounded like police found petitioner’s who rifle leaning against the front car, passenger’s seat spent loaded and with a shell in the chamber, spent car, four other casings and live rounds on petitioner who followed the complaining witness to the police station at the end what the complaining described as chase.
¶ 37. No were suggested shots fired other *12 in than the complaining witness’s direction. Petitioner’s From the available testify. and did not he was absolute denial beyond reasonable reasonably concluded could be witness gun complaining the pointed that petitioner doubt confrontation, petitioner that then chased their initial during car, and armed his was petitioner complaining trial, at the car. nor fired from his Neither that shots had been to any credible evidence petitioner present hearing, later PCR of gunflash witness’s observation complaining contradict the It by may be petitioner. being pursued car while petitioner’s rifle to shooting his witness complaining chased petitioner autumn, to unfortunate dark of celebrate early leaven truck, just annoy or to eviction, to witness’s complaining tattoo offered no alternative rationales were neighborhood, but such likely they appear especially do jury’s consideration. Nor such notions dispel and it was not the State’s burden Derouchie, 149-50 event. State v. 140 Vt. (1981) every of hypothesis reasonable (rejecting “exclusion direct, evidence is innocence” and “whether holding circumstantial, both,” its prosecution or a combination of satisfies evidence, light if viewed in most favorable burden when proof doubt). State, beyond The a reasonable persuasive guilt corroborating gunfire no evidence on jury required specialized who petitioner, a most conclusion that direction reach obvious gun pursued with a and then complaining threatened the witness him was to cause the witness shooting, attempting complaining as “bodily injury deadly weapon” charged.3 with experts petitioner’s 38. Given the PCR court’s conclusion that complaining which to sink the reliable evidence him underlying impeach observation of muzzle flash witness’s only counter exaggerator, experts complaining particu- described witness gunflash available, in were larly police directional. The State’s witnesses turn, testimony police this contention. counter the balance of the entirely would be consistent with threaten, chase, evidence that used at the witness. shoot
expert might
partially
contradicted
acquittal
jury’s
Similarly,
denying petitioner’s
after the
verdict of
motion for
guilty,
there was no evident
the trial court concluded from this evidence
bodily injury
weapon
cause
to fire the
other than to
reason
victim.
*13
direction,
being
aimed in his
perception
gunfire
but offered
to
nothing
derail the essential elements of the State’s
of
version
the
offense
a version
remains uncontroverted.
¶
expressly
39. The PCR court
noted that
“experiment
many
had too
variables
differences
and
from the
Thus,
actual event to have been admissible at trial.”
the court did
perceive
not
exculpatory,
this evidence
and
particularly
it does
appear
not
more
appeal.
so on
Whatever
the
question
expert could
raise concerning the
on
lay-observation
not,
of
evidence,
direction
fire would
of
preponderance
lead
v.
jury
Thompson,
See Evans
to a different verdict.
F.
465
(D.
2006)
Supp. 2d
(rejecting
82
Mass.
ineffective-assistance-
of-counsel claim premised on failure
call
to
ballistics expert
because none of proposed expert
testimony would have signifi-
Strickland,
events);
cantly
challenged State’s version of
see also
(noting
¶ 40. expert opinion Petitioner’s so exculpatory was not as to have had a “pervasive effect on the inferences be drawn from trial], [presented evidence at the criminal altering the entire evidentiary picture” that a reasonably such different verdict likely. Strickland, fact, U.S. at Avoiding 466 695-96. court and majority draw possibilities too much on mere and hindsight. To the extent the majority finds State’s case weak its claims implausible, seems to judgment substitute its jury and for the trial court that already it has once affirmed. PCR is only concerned with what able to show and, court, the PCR court according to the PCR only showed criminal his negligently counsel failed to an opinion secure shooting direction of may not neces- sarily be determined from visible gunflashes. This would no cast monkey wrench into the State’s overall circumstantial eye- and witness case.
¶ 41. That his trial counsel may have
below
performed
profes-
sional standards does not earn petitioner post-conviction relief
Strickland,
re
proof
694;
without
of prejudice.
In
466 U.S. at
¶98, 8;
Washington,
Dunbar,
2003
Vt. at
VT
319. Risking what
the PCR court
to be an
found
unreliable
simulation, rather
test firing
weapon, petitioner
than
offered
from trial counsel’s
prejudice resulting
utterly
evidence
court,
for muzzle flash.
conclusion
failure
here,
are
prejudice
majority’s
conclusion
and
erroneous,
evidence,
clearly
by any
are
wholly unsupported
Hrostek,
70, 16,
Vt.
Massey
be
cannot
sustained.
support
insufficient to
(reversing
findings
where
dissent. Christopher v. Wilder
State Vermont Lonny Campbell R. State Vermont 174] [996 Nos. 08-134 & 08-349 Johnson, Reiber, C.J., Dooley, Skoglund Burgess, Present: JJ. February 26, Opinion Filed