Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2015-084

                                     NOVEMBER TERM, 2015

 In re Roger Clinton Brown                             }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Windham Unit,
                                                       }    Civil Division
                                                       }
                                                       }
                                                       }    DOCKET NO. 654-12-10 Wmcv

                                                            Trial Judge: John P. Wesley

                          In the above-entitled cause, the Clerk will enter:

        Petitioner appeals from a superior court judgment denying his petition for post-conviction
relief. He contends the court erred in rejecting a claim that his trial attorney provided ineffective
assistance of counsel. We affirm.

        In February 2009, petitioner was convicted by a jury of engaging in lewd and lascivious
conduct with his step-granddaughter, who was between eight and ten years old at the time the
charged conduct occurred. This Court affirmed the conviction on appeal. State v. Brown, 2010
VT 103, 189 Vt. 88. In December 2012, petitioner filed this PCR action, claiming that his trial
counsel was ineffective in: (1) eliciting testimony from petitioner’s wife and doctor that
confirmed the victim’s testimony describing the distinctive physical appearance of petitioner’s
penis; (2) failing to proffer evidence that would have established an innocent explanation for the
victim’s knowledge of the physical appearance of petitioner’s penis; and (3) failing to object and
move for a mistrial when the investigating officer testified that petitioner had been instructed by
his attorney not to talk to the police.

        In response to the parties’ cross-motions for summary judgment, the court denied
petitioner’s motion, granted the State’s motion, and dismissed the petition. Petitioner appealed.
Noting that each side had presented the expert affidavit of an experienced attorney and that the
experts had reached opposite conclusions as to whether, on the facts presented, trial counsel’s
performance fell below prevailing standards of professional practice, we concluded that
petitioner had demonstrated a genuine dispute inappropriate for summary judgment, and
accordingly reversed and remanded. In re Brown, No. 2014-028 (Vt. Sept. 1, 2014), 2014 WL
5314706.

        The trial court held an evidentiary hearing over the course of two days in December
2014. Petitioner’s trial counsel and the expert witnesses for both parties testified. In January
2015, the court issued a written ruling containing extensive findings and conclusions. In
summary, the court found as follows with respect to defense counsel’s alleged errors: During
interviews with the police, the victim described petitioner’s penis as darker than the skin on his
body. Petitioner informed defense counsel that the victim’s description was wrong, insisting that
the victim had never seen his penis. Petitioner identified his wife and doctor as witnesses who
could provide accurate descriptions contradicting the victim. Petitioner signed a medical release
for his doctor to testify. According to both witnesses, defendant has a condition known as
vitiligo, which destroys pigment and creates a lighter area of skin; both informed counsel that
petitioner had an area like this on the left side of his penis toward the base. At trial, defense
counsel noted in her opening statement that the victim omitted any mention of this condition,
suggesting that her testimony was not credible. On cross-examination of the victim, defense
counsel confirmed that the victim had described petitioner’s penis as darker. For the first time,
however, the victim also added that petitioner had a “lighter spot near the head of his penis.”

        Petitioner’s doctor was called by the State and testified without objection about
petitioner’s condition. On cross-examination, defense counsel elicited testimony emphasizing
that the skin on petitioner’s penis was not merely lighter, but completely white. Defense counsel
also called petitioner’s wife, who testified that the area was located on the left side of petitioner’s
penis, near his torso, and was very light compared to the rest of the skin. During closing
argument, defense counsel argued that the victim’s initial description lacked critical details; that
her description changed only after she became aware of petitioner’s condition; and that the
victim was therefore not credible.

        With respect to petitioner’s claim that defense counsel erroneously failed to proffer
evidence establishing an innocent explanation for the victim’s knowledge about the appearance
of petitioner’s penis, the court found as follows: In her deposition, the victim’s mother recalled
that the victim had told her of occasions when she was a toddler or preschooler in which she
entered the bathroom while petitioner was using it, or in which petitioner had entered the
bathroom while the victim was using her “training potty.” The timing and circumstances of
these occasions were vague. The victim’s mother did not testify at trial, and defense counsel did
not question the victim about the incidents referred to by her mother.

        In his PCR petition, petitioner claimed that defense counsel was ineffective in eliciting
the descriptions of his penis from petitioner’s wife and doctor because counsel should have
known that they would effectively corroborate the victim’s description. Instead, he should have
entirely avoided the line of questioning, and should have proffered an innocent explanation for
the victim’s apparent observations of petitioner’s penis based on the incidents alluded to by her
mother in her deposition. Petitioner’s expert supported this argument. The State’s expert
disagreed, however, concluding that defense counsel pursued a sound strategy that allowed him
to contrast the victim’s initial description of petitioner’s penis as darker than the rest of his skin
with the other witnesses’ descriptions, to argue that the victim only described a lighter area after
she learned of petitioner’s medical condition, and to emphasize that her subsequent description
of the area as being near the head of the penis was inconsistent with its actual location on the left
side near the base. The State’s expert also disputed the wisdom of pursuing the alternative
innocent-explanation strategy, observing that the evidence was vague and was based on hearsay
from the victim’s mother; that petitioner did not demonstrate that the victim herself would have
recalled the bathroom incidents; that the argument would have conflicted with petitioner’s claim
that the victim had never seen his penis; and that highlighting the fact that petitioner exposed
himself to a three-year-old may have done more harm than good.

       The trial court concluded that the evidence did not support a conclusion that defense
counsel’s decisions in these areas fell below the standard of care. Based on the evidence and the
expert testimony, the court concluded that defense counsel’s decision to contrast the victim’s
                                                  2
descriptions with that of the other witnesses was “a reasonable trial strategy designed to point out
the inconsistencies and changing story provided by the [v]ictim and argue that the victim was not
believable.” Considering the wide latitude afforded counsel’s trial strategy, the court concluded
that the decision was “well within the range of competence demanded of attorneys.” Similarly,
the court concluded that petitioner had not demonstrated an evidentiary basis for the innocent-
explanation alternative, and that the decision not to pursue it was reasonable given its inherent
weaknesses and uncertainties.

        With respect to petitioner’s final claim of ineffective assistance, the court found as
follows. Following the victim’s initial disclosures, Trooper Dean with the Vermont State Police
interviewed petitioner, who made a number of statements. At trial, defense counsel elicited
Trooper Dean’s acknowledgment on cross-examination the petitioner had repeatedly denied that
he sexually abused the victim. Defense counsel also elicited information that the victim had
stated that petitioner generally locked the bedroom door before abusing her, although
investigation had revealed no lock on the door. Defense counsel called a police sergeant to
determine whether the police had thoroughly examined petitioner’s home to corroborate the
victim’s account. The sergeant responded that petitioner’s lawyer had told him at the time, after
petitioner’s arraignment, not to speak with petitioner, so he did not go into the house. The State
then briefly questioned the officer on the same subject, and elicited the same response.

        Petitioner claimed that defense counsel was ineffective by eliciting the officer’s reference
to his post-arrest silence and failing to move for a mistrial on that ground. The court here
rejected the claim, noting that the reference was indirect and brief; that it referred to petitioner’s
lawyer rather than any direct invocation by petitioner of the right to silence; and that it was not
brought up again at trial. The court thus concluded that any error in failing to object was
harmless, and that any motion for mistrial would likely have been futile, and would not have
affected the outcome. Accordingly, the court denied the petition for post-conviction relief, and
entered judgment for the State. This appeal followed.

        “When considering a PCR appeal, we review the superior court’s findings of fact under a
clearly erroneous standard. . . . If conclusions follow from the findings they must be affirmed.”
In re Washington, 2003 VT 98, ¶ 8, 176 Vt. 529 (mem.) (citations omitted). A petitioner seeking
relief on the basis of ineffective assistance of counsel must demonstrate first “that counsel’s
performance fell below an objective standard of reasonableness informed by prevailing
professional norms,” and second “that counsel’s deficient performance prejudiced the defense.”
In re Dunbar, 162 Vt. 209, 212 (1994) (citing Strickland v. Washington, 466 U.S 668, 687-88
(1984)). Further, as the trial court here noted, we do not judge counsel’s tactical decisions in
hindsight based on their ultimate success, but rather on “whether such decisions were within the
range of competence demanded of attorneys in a criminal case at the time.” In re Mercier, 143
Vt. 23, 32 (1983).

       Petitioner first contends that the court erred in rejecting his claim that defense counsel
was deficient in failing to pursue the innocent-explanation defense. The argument is
unpersuasive. First, it overlooks the court’s finding that the evidentiary basis for such a claim
was lacking; the mother’s deposition statement that the victim recalled petitioner entering her
bathroom when she was as toddler was hearsay, and petitioner did not call the victim at the PCR
hearing to corroborate her mother’s statement directly. Moreover, the argument fails to
overcome the court’s considered judgment that counsel acted well within the range of
competence in concluding that, even if the mother’s statements were true, it might have been
                                                  3
more damaging than helpful to rest his defense on a claim that the victim recalled the petitioner
exposing himself when she was a toddler. See Dunbar, 162 Vt. at 213 (where case was
susceptible of more than one defense strategy, the “proper question is whether trial counsel had
any reasonable strategy and whether they pursued it with adequate preparation and diligence”). 1
We find no error.

       Petitioner also reasserts the claim that defense counsel erroneously elicited testimony
from petitioner’s wife and doctor corroborating the victim’s description of his penis. The
argument overlooks the court’s findings—supported by the record evidence—that the witnesses’
testimony demonstrated inaccuracies in the victim’s initial and subsequent descriptions,
highlighted the variable nature of her descriptions, and supported a challenge to her credibility.
These inconsistencies were also highlighted in defense counsel’s closing argument. The trial
court here properly concluded that defense counsel’s decision was reasonable and well within the
scope of professional competence.

        Finally, petitioner claims that counsel was ineffective in eliciting testimony that his
attorney told a police sergeant not to speak to him, and failing to move for a mistrial based on the
testimony. The argument does not address, or undermine, the trial court’s well-supported
findings that the brief and indirect reference to petitioner’s silence was insignificant in the
context of the trial as a whole and did not prejudice defendant, and that a motion for mistrial
likely would not have been successful. Accordingly, we find no error, and no basis to disturb the
judgment.

       Affirmed.




                                                BY THE COURT:


                                                _______________________________________
                                                Paul L. Reiber, Chief Justice

                                                _______________________________________
                                                Beth Robinson, Associate Justice

                                                _______________________________________
                                                Harold E. Eaton, Jr., Associate Justice




       1
           Because we affirm the trial court’s conclusion that defense counsel’s decision not to
pursue the “innocent explanation” defense urged by defendant’s PCR expert did not fall below
the standard of reasonableness, we need not consider petitioner’s claim that the court applied the
incorrect legal standard in concluding that petitioner had not demonstrated “that [the evidence]
would likely have changed the outcome.”
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