In re Barry Babson, No. 471-12-07 Bncv (Wesley, J., Feb. 23, 2011)

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
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                                                    STATE OF VERMONT
                                                     SUPERIOR COURT


IN RE BARRY BABSON                                                  │
                                                                    │
                                                                    │           BENNINGTON UNIT, CIVIL DIVISION
                                                                    │           Docket No.471-12-07 Bncv
                                                                    │
                                                                    │
                                                                    │

                                                   OPINION & ORDER

       Trial on the issues raised by the petition for post-conviction relief was held on
October 26 and October 28, 2010. Petitioner was present, represented by Mark Furlan,
Esq. The State was represented by Deputy Bennington State’s Attorney Christina
Rainville. After requests to extend the deadline for filing proposed findings of fact and
conclusions of law were granted, the trial record was closed on January 20, 2011.1

Procedural History

       After a jury trial in November 2004, Petitioner was convicted of aggravated
sexual assault and sexual assault based on two separate informations filed in Doc. No.
399 & 399-3-02 BnCr. At the conclusion of the sentencing hearing, Judge David Suntag
sentenced Petitioner to concurrent terms of 34-35 years to serve and 40-100 years to
serve. The convictions were affirmed by the Vermont Supreme Court, State v. Babson,
2006 VT 96, 180 Vt. 602.

       Petitioner filed the current claim for post-conviction relief on December 6, 2007,
making numerous claims of constitutional error and seeking the appointment of counsel.
Pursuant to the terms of a scheduling order, Attorney Furlan amended the petition on
September 22, 2009. The amended petition is limited to the claim that Petitioner was
denied his Sixth Amendment right to a fair trial on account of ineffective assistance of
counsel. In particular, Petitioner complains that his trial counsel “failed to (1) object to
the admissibility of the testimony offered by Dr. Scattergood reiterating the

1
  Petitioner was granted until January 10, 2011 to submit his post-hearing memorandum, and the State’s
deadline was extended until January 20. On January 20, the State had filed its brief, although the Court had
yet to receive Petitioner’s submission. This opinion was drafted and about to be issued on January 31, at
which point Petitioner’s memorandum was filed in the Clerk’s office. Although the cover letter and
certificate of service suggest that the memorandum was placed in the mail on or about January 11, 2011, it
is likely that the delay in filing is due to counsel’s continued use of a post office box as the Court’s mailing
address. Months ago, accompanied by notice to the bar, that address was abandoned as a cost-saving
measure in favor of direct delivery to the courthouse. Thus, filing delays associated with continued use of
the old address are difficult to countenance as excusable neglect. Nevertheless, although consideration of
Petitioner’s memorandum does not alter the principal thrust of the Court’s analysis, the attached addendum
addresses a few particular arguments not directly treated in the main opinion.
complainant’s statements to her detailing the crime and (2) to object to the testimony of
Penny Babson under V.R.E. 801(d)(1)(A).”

Discussion

        Consideration of the merits of Petitioner’s claims properly begins with a summary
of the Supreme Court’s opinion on appeal, which is substantially dispositive of the issues
framed for post-conviction relief as well.

         Petitioner was charged with sexually assaulting his eleven-year old stepdaughter,
N.C., over a period of several months. N.C. gave extensive and detailed testimony
concerning the assaults, which took place most often in her older sister’s bedroom before
school, when her mother was sleeping and after her sister had left for school. N.C.’s
older sister testified that when she left for school Petitioner was often awake, but her
mother was asleep. N.C.’s mother, Penny Babson, was called as a witness by the State.
She testified that after her daughter told her that Petitioner had touched her, she
confronted him and he denied it. Recalling the following argument when she told him to
leave, Ms. Babson testified that Petitioner said, “Well, I did do it, is that what you want to
hear or I did touch them, is that what you want to hear?” Ms. Babson denied telling
anyone that Petitioner confessed to her, but two investigators and her sister later testified
that she had told them of Petitioner’s confession. Petitioner elected to testify and denied
having assaulted N.C., but he testified consistently with Ms. Babson’s account of his
argument with her, acknowledging the statement she attributed to him that he “did do it”.
Babson, 2006 VT 96, ¶¶ 2-4.

         The State called Dr. Nancy Scattergood, a family physician who had examined
N.C. Dr. Scattergood found no physical evidence indicating anal sex, but she testified
that the absence of physical signs was not conclusive evidence that anal sex had not
occurred. Judge Suntag permitted juror questions, and one juror wrote “What did [N.C.]
state when she was asked why she was there?” According to the Supreme Court’s review
of the record, no one objected to this inquiry. When it was posed by the trial judge, Dr.
Scattergood began, “I can read it. I have it in quotes. I asked her why she’s here. She
said, ‘I’m here because my stepdad molested her, started when.” At that point,
Petitioner’s attorney, Frederick Bragdon, Esq., objected. By the Supreme Court’s
characterization, the grounds as set forth during the ensuing bench conference were
limited to “an instruction that the doctor isolate the victim’s exact statements rather than
paraphrase them”. Dr. Scattergood was then allowed to continue: “[N.C.] said it started
when they moved. He puts his private in her butt, sometimes inside, it hurts sometimes.
There’s no bleeding, never puts his private in her mouth. He did ejaculate, and the
quotation is, ‘Liquid come out of his penis’, and the last time was about two weeks ago.”
The prosecutor repeated some of Dr. Scattergood’s testimony about what N.C. had told
her during closing argument. Id. ¶¶ 5-6.

        Petitioner claimed on appeal that Dr. Scattergood’s testimony was admitted in
error and highlighted by the prosecutor in closing argument. Concluding that defense
counsel had not preserved an objection to the doctor’s testimony, the Supreme Court



                                              2
applied the standard for plain error, and found none. Plain error is “so grave and serious
that it strikes at the very heart of defendant’s constitutional rights” resulting in a
miscarriage of justice, and it must have “an unfair prejudicial impact on the jury’s
deliberations.” Id. ¶ 8 (citing State v Oscarson, 2004 VT 4, ¶ 27, 176 Vt. 176). The
“obviousness of the error and prejudice to the defendant are key factors.” Id. (citing State
v. Weeks, 160 Vt. 393, 400 (1993)). Here, the Supreme Court acknowledged, and the
State did not contest, that Dr. Scattergood’s testimony as to N.C.’s statement was
impermissible hearsay. Although made in connection with the doctor’s examination, the
statement was not covered by V.R.E.803(4), the hearsay exception for declarations made
for the purpose of medical diagnosis or treatment. Unlike the federal rule, Vermont’s rule
excludes from the exception “statements of the inception or cause of a condition or
symptoms”. Id. ¶ 9 (citing State v. Derouchie, 153 Vt. 29 (1989); State v. Gallagher, 150
Vt. 341, 349 (1988)).

         Notwithstanding the erroneous admission of N.C.’s statement to Dr. Scattergood,
however, the Supreme Court found no plain error, because there was no showing that the
jury had been “substantially affected”. The Court concluded “[t]he State’s independent
evidence of defendant’s guilt overwhelms any effect the erroneous testimony may have
had on the verdict.” Id. ¶ 10. Important to this conclusion, the Court held that the jury
“could well have believed that defendant admitted to Penny that he touched the victim”.
Although defense counsel attempted to characterize Petitioner’s statement to Ms. Babson
as something other than a confession, the jury was free to reject that attempt, particularly
in light of the attack on Ms. Babson’s credibility by three other witnesses. Id. Finally, the
Court found the likely impact of the hearsay diminished in consideration of N.C.’s
primary testimony, since her “account of the abuse was both broader in scope and far
more detailed than the doctor’s hearsay testimony.” Under all the circumstances, the
hearsay was “merely cumulative to N.C.’s own testimony”, and of the type whose
admission was deemed harmless error “under very similar circumstances”. Id. (citing
Deroshie, 153 Vt. at 31-33, and Gallagher, 150 Vt. at 349).

        At the trial on the post-conviction relief petition, Petitioner’s case rested
exclusively on expert testimony by Charles Martin, Esq. in support of the claim of
ineffective assistance of counsel. The State’s only witness was Frederick Bragdon, Esq.,
Petitioner’s trial counsel, called here to explain the tactical basis for pertinent decisions
with respect to evidentiary matters as they arose during the original trial testimony. Atty.
Martin urges the conclusion that Atty. Bragdon’s representation fell below the acceptable
level of skill and competence when he failed to preserve an objection to Dr.
Scattergood’s testimony, which put N.C.’s incriminating out-of-court declaration before
the jury. Atty. Martin further believes that this error was harmfully compounded by Atty.
Bragdon’s failure to make timely objections to other witnesses, who were called by the
State to supply additional emphasis to the testimony by Ms. Babson, which arguably had
implicated Petitioner in making a confession.2

2
 The State strenuously objects to any consideration of this claim of error, asserting that it has been waived
by failing to frame it properly by the amended petition, and by its omission from the initial disclosure of
Atty. Martin’s expert opinions. Indeed, much of Atty. Martin’s wide-ranging opinions during his two
appearances on the stand expanded well outside the issues narrowly identified by the amended petition,


                                                      3
         Despite his belief that he had preserved a proper objection to Dr. Scattergood’s
testimony, Atty. Bragdon acknowledges that it was not as clearly stated as it might have
been. However, he defends his tactics regarding Petitioner’s so-called confession,
believing they were correctly aligned with the Rules of Evidence, and consistent with the
only reasonable theory for addressing a problematic piece of evidence. As discussed
below, based on the Supreme Court’s analysis and Atty. Martin’s opinion, this Court
holds that Atty. Bragdon’s failure to make an effective objection to N.C.’s statement, as
offered through Dr. Scattergood, deviated from the standard of practice expected of
reasonably skilled defense attorneys. However, the Court rejects Petitioner’s claims of
other instances of ineffective representation. Finally, for the same reasons the Supreme
Court articulated in finding no plain error, this Court concludes that Atty. Bragdon’s
failure to make an effective hearsay objection did not have a substantial impact on the
outcome of the trial, see Strickland v. Washington, 466 U.S. 668 (1983), and thus the
petition must be DENIED.

        Dr. Scattergood’s Testimony

        As suggested by Atty. Martin’s testimony, the conclusion that Atty. Bragdon
breached the standard of adequate representation by failing to properly object to Dr.
Scattergood’s response to the juror inquiry follows directly from the Supreme Court’s
analysis, and is further supported by a closer review of the trial transcript than is reflected
by the opinion on appeal.

        On its direct examination, the State had made no attempt to elicit from Dr.
Scattergood either her notes or her recollection of what N.C. had told her concerning any
understanding of the reason for the medical examination. Upon the conclusion of the
examination by the advocates, Judge Suntag asked if jurors had questions for the witness.
After counsel approached the bench, presumably to hear the question sought to be posed,
the record is initially inaudible. Tr. 228 (11/12/04). However, just later in the colloquy,
Judge Suntag repeats the substance of the juror’s question, “What did [N.C.] say when
she was asked why she was there?”, and asks if there are any objections. Tr. 229-30. The
record then reflects the following:

        Mr. Bragdon: I wish I could figure out (inaudible).
        The Court: You’re okay?
        Mr. Fenster: I’m fine. Thank you.

Tr. 230. Having heard no objection from Atty. Bragdon, the Court posed the question to
Dr. Scattergood. Upon offering to read from her notes, stating “I have it in quotes”, the
witness begins “I’m here because her stepdad molested her, started when…” Mr.



went beyond those disclosed in response to the State’s interrogatories regarding expert testimony, and were
occasionally at odds with opinions he had offered earlier. Nevertheless, in light of the Court’s conclusion
that there was no departure from the standard of professional competence, it declines to address the waiver
argument.


                                                     4
Bragdon then objects, and counsel engages in a further colloquy with Judge Suntag at the
bench.

       Mr. Bragdon: (Inaudible) the first line is quoted, so that’s the actual
       words. I would hazard a guess that the rest is not quoted.
       The Court: Could I see?
       Mr. Bragdon: …so that becomes more of a ...
       The Court: Where am I looking?
       Mr. Bragdon: …I think more of a summary by the doctor.

Tr. 231. Then follows the Court’s review with counsel of the substance of the notes Judge
Suntag had asked to see, which include details of the sexual assault.

       Mr. Bragdon: I do see the first..what I’m..what I’m objecting to is the first
       (inaudible) clearly are words. I would assume meaning [N.C.]’s words
       because they’re quoted in—the doctor’s report. The rest, except for one
       thing down near the bottom after ejaculation is not in quotation, so I think
       the doctor needs to differentiate what are Noreen’s words and what are her
       summaries or whether this refreshes her memory to the actual words that
       were spoken to her.

Tr. 232. When Judge Suntag states “how about we just let her answer the question as she
was and then you both follow up and make it clear one way or the other”, Atty. Bragdon
makes no other objection, simply affirming, “Well, we have follow up”. Dr. Scattergood
is then permitted to complete her testimony, aided by her notes, which includes “he puts
his private in her butt” and “he did ejaculate, and the quotation is, ‘Liquid came out of his
penis,’ and the last time was two weeks ago.” Tr. 233.

         Although elicited by a question from a juror, the request of Dr. Scattergood to
state, “What did [N.C.] say when she was asked why she was there?” was plainly a
solicitation of hearsay. Atty. Bragdon’s proper response to Judge Suntag’s query as to
objections should have been, “It is impermissible hearsay, not covered by any exception”.
Particularly once he had the opportunity to examine Dr. Scattergood’s notes as to what
she was likely to say, the harmful nature of any repetition of N.C.’s out-of-court
declaration ought to have been obvious, as the jury was bound to consider it for the truth
of what had been asserted. As the Supreme Court concluded, the objection as Atty.
Bragdon attempted to frame it – that Dr. Scattergood should only be allowed to testify to
the extent that her notes reflected exact quotes of N.C.’s statement – did not supply
adequate notice to the trial judge of the conclusive objection provided by V.R.E. 802.
Under all the circumstances, the Court concurs with Atty. Martin’s opinion that the
standard of competent criminal defense representation was breached by Atty. Bragdon’s
failure to make the hearsay objection at this juncture of Petitioner’s trial.




                                             5
        Testimony by Nora Siemen, Garry Briggs & David Rolland

         Atty. Martin’s additional claims of sub-standard trial practice are far less
persuasive, as relates to the witnesses called by the State to impeach Ms. Babson’s
credibility.

        As Atty. Martin emphasizes, and as noted in the Supreme Court opinion, the State
called Penny Babson, Petitioner’s wife and N.C.’s mother, who initially denied that
Petitioner had ever confessed to molesting N.C. in any conversation for which she had
been present. However, in describing an argument after she confronted him with N.C.’s
accusation, which culminated in her demand that Petitioner leave, Ms. Babson testified
that Petitioner told her, “Well, I did do it, is that what you want to hear or I did touch
them, is that what you want to hear?” Thereafter, the State called three witnesses – Nora
Siemen, Investigator Garry Briggs, and Officer David Rolland - whose respective
testimonies variously suggested that Ms. Babson admitted that Petitioner had confessed
to her. As to each of these witnesses, Atty. Martin contends that Atty. Bragdon failed to
make proper objections, to the ultimate prejudice of his client.

         The basis for Atty. Martin’s claims of sub-standard representation as to inquiries
regarding Petitioner’s ostensible confession to Ms. Babson became something of a
moving target during his testimony. As the Court attempted to understand his principal
claim of error, it involved the application of V.R.E.613(b), which precludes extrinsic
evidence of the prior inconsistent statement of a witness “unless the witness is afforded
an opportunity to explain or deny the same and the opposite party is afforded an
opportunity to interrogate him thereon, or the interest of justice otherwise require”.
Relying on this rule, Atty. Martin initially asserted that Atty. Bragdon should have
objected to the testimony of each of the State’s impeachment witnesses – Siemen, Briggs
and Rolland – because Ms. Babson had not been asked about her statements to them
during her testimony. However, as Atty. Martin was compelled to acknowledge during
cross-examination when confronted by the trial transcript, Atty. Bragdon did object on
that basis to the State’s line of questioning with Investigator Briggs, and was met by
Judge Suntag’s ruling: “prior inconsistent statement”. Cross-examination also produced
Atty. Martin’s further acknowledgment from the transcript evidence that the State had
opened the subject of Ms. Babson’s conversation with Officer Roland prior to calling the
latter as an impeachment witness. Thus, Atty. Martin admitted that there would have
been no basis for an objection under Rule 613(b).

        Atty. Martin’s reliance on Rule 613(b) suffers from other infirmities in addition to
the scant support in the record for any objection whatever.3 An additional potent
explanation for trial counsel’s failure to make any objection is that the testimony of all
the so-called impeachment witnesses was consistent with the theory of the defense. As

3
  As the State also elicited from Atty. Martin, consistently with concerns noted by Atty. Bragdon in his
testimony, the State might have sought to cure any objection made in reliance on Rule 613(b) by asking
leave to recall Ms. Babson; a concession which further highlights how the issue of making objections,
always fraught with tactical considerations, could hardly be deemed a non-discretionary judgment in this
particular instance.


                                                    6
Atty. Bragdon testified, the subject of his client’s statements in the seeming nature of a
confession presented a profound tactical dilemma. Petitioner was not going to deny
having made the statements when he took the stand, since his testimony was not different
from Ms. Babson’s regarding their argument. Rather, as Ms. Babson also attempted to
explain, Petitioner’s strategy for addressing the statement, “Well, I did do it, is that what
you want to hear or I did touch them, is that what you want to hear?” was to characterize
it as sarcasm brought on by the heat of the moment, as distinct from an admission of
culpability. Indeed, it is difficult to imagine any other approach, since Ms. Babson had
never denied having heard the statement, and had related it to several others. Still, the
statement is fairly susceptible of multiple interpretations, and Ms. Babson’s denial of
having told anyone that Petitioner “confessed” could predictably and fairly be
characterized as inconsistent. Given these strictures, objections to the testimony of those
who heard Ms. Babson relate Petitioner’s statement that “he did do it” would have been
doubly perilous, tactically; the objections likely would have been overruled (as indeed
one was), and they might have further caused the jury to question Petitioner’s credibility
if he admitted making the statement, while challenging the State’s witnesses who claimed
that Ms. Babson told them about it.

         In assessing claims of ineffective assistance of counsel, there is a strong
presumption that counsel’s performance was both competent and professionally adequate.
In re Grega, 2003 VT 77, ¶ 7, 175 Vt. 631; In re Cohen, 161 Vt. 432, 434–35 (1994). An
attorney has "wide latitude" to make reasonable tactical decisions with respect to trial
strategy. In Re Kasper, 142 Vt. 31, 37 (1982). The assessment of counsel’s performance
is undertaken in consideration of the entire record and the situation at the time of trial,
without the benefit of hindsight. In re Hatten, 156 Vt. 374, 378 (1991). Importantly, the
“trial of [a] case ... [is] susceptible to more than one strategy. The proper question is
whether trial counsel had any reasonable strategy and whether they pursued it with
adequate preparation and diligence.” In re Dunbar, 162 Vt. 209, 213 (1994). In
consideration of these governing precepts, the Court is simply unable to credit Atty.
Martin’s charge that Atty. Bragdon failed his client by neglecting objections during the
testimony of Ms. Siemen, Inspector Briggs or Officer Rolland.

       Second Prong of Strickland Not Met

         As set forth in the foregoing discussion, and as to the claim of ineffective
assistance of counsel, Petitioner has shown only that Atty. Bragdon failed to adequately
frame a hearsay objection to Dr. Scattergood’s response to a question from a juror.
Notwithstanding any opinions by Atty. Martin, the Court finds no support in the trial
transcript or the rules of evidence to establish any other claims of prejudicial error,
particularly when considered against the wide latitude permitted counsel’s discretion over
trial tactics. For the reasons identified by the Supreme Court in finding no prejudicial
error on direct appeal, this Court must conclude that Petitioner has not shown “a
reasonable probability that, but for counsel’s unprofessional errors, the proceeding would
have resulted in a different outcome.” Grega, 2003 VT 77, ¶7 (citing Dunbar, 162 Vt. at
212); In re Pernicka, 147 Vt. 180 (1986)(citing Strickland v. Washington, 446 U.S. 668,
687-88 (1984)).



                                             7
         What the Supreme Court characterized as harmless error cannot be considered
sufficient to support proof of a likely different outcome during post-conviction review.
Furthermore, based on its own consideration of the evidence reflected by the trial
transcript, this Court agrees with the Supreme Court’s view that “[t]he State’s
independent evidence of defendant’s guilt overwhelms any effect the erroneous testimony
may have had on the verdict.” Babson, 2006 VT 96, ¶ 10. Despite Petitioner’s efforts, as
deployed by Atty. Bragdon along the only tactical lines plausibly available, the jury
“could well have believed that defendant admitted to Penny that he touched the victim”.
Id. Finally, and importantly, any prejudice associated with Dr. Scattergood’s response to
the juror’s question was significantly mitigated in consideration of N.C.’s primary
testimony, since her “account of the abuse was both broader in scope and far more
detailed than the doctor’s hearsay testimony.” Id.4

         For the reasons stated in this opinion, the Court concludes that Petitioner has
failed to demonstrate any grounds for overturning his conviction by way of post-
conviction relief pursuant to 13 V.S.A.7131.


        WHEREFORE it is hereby ORDERED: Judgment is entered for the State, and
the petition for post-conviction relief is DISMISSED WITH PREJUDICE.

         Dated at Bennington this                     day of                              , 2011.



                                                       _____________________________
                                                       John P. Wesley
                                                       Superior Court Judge




4
  Atty. Martin’s testimony included extensive focus on his belief that the “outcome” of Petitioner’s case
would have been different if the appeal had not been limited to a search for plain error. Thus, he insists, if
Atty. Bragdon had effectively challenged Dr. Scattergood’s testimony as hearsay, and if he had likewise
limited the impeachment of Ms. Babson, the case on appeal would have been seen in a far different light.
According to Atty. Martin, given a sexual assault conviction characterized almost entirely as a credibility
contest between the complaining witness and the defendant, the Supreme Court would have been much
more likely to find reversible prejudice in errors as to the admissibility of evidence. The problem with this
reasoning is twofold. First, neither Atty. Martin nor Petitioner offer authority for the proposition that
Strickland is satisfied by demonstrating an enhanced likelihood of prevailing on appeal, as distinguished
from showing that the outcome of the trial would have been different. More importantly, Petitioner has
demonstrated no other error which would likely have changed the calculus on appeal, given the
independent force of the testimony by the complaining witness abetted by consideration of Petitioner’s
statement as a confession, a conclusion properly within the jury’s purview.


                                                       8
                                 APPENDIX
                        RE PETITIONER’S LATE-FILED
                     PROPOSED FINDINGS & CONCLUSIONS

       To the extent certain matters raised by Petitioner’s submission were not fully
addressed in the foregoing opinion, the Court adds the following discussion:

         i) On redirect examination at Petitioner’s trial, the State asked Penny Babson
whether she told Detective Rolland that “when [she] confronted Barry, Barry said he
touched [NC] and that he tried to blame [Penny] for staying up late and working on the
computer as the reason why he had touched [NC].” Petitioner now faults Atty. Bragdon
for failing to object to this question as being beyond the scope of redirect. He claims that
the attempt to “blame” Ms. Babson “carries with it the obvious admission or confession
to the crimes”
         First, as generally discussed in the opinion with respect to the “moving targets” of
Atty. Martin’s opinion, the Court is unclear that this claim of unprofessional conduct is
properly supported by expert testimony. However, even assuming Petitioner’s expert
unambiguously identified this failure to object as ineffective representation, the Court
places no reliance on the opinion. Indeed, since the principal thrust of Atty. Martin’s
opinion centered on his claim that the State’s impeachment witnesses were allowed to
testify without a proper foundation under V.R.E. 613(b), it is ironic that he would also
chide trial counsel for failing to object to a question that is plainly aimed at laying just
such a foundation with respect to Det. Rolland’s anticipated testimony. In any event,
other than objections challenging “leading questions”, it is difficult to imagine an
evidentiary ruling imbued with greater judicial discretion than an objection that testimony
is “beyond the scope” established by previous examination. Thus, whether or not to
interpose such an objection is a quintessentially tactical determination. Certainly, in this
instance, Petitioner’s attempt at second-guessing does not plausibly rise to a failure of
reasonably competent representation.

        ii) Following the testimony of Penny Babson, the State called her sister, Nora
Siemen, as an impeachment witness. In response to the State’s question whether “she
recalled telling her sister Nora that Barry had confessed to her that she had done it”, Ms.
Babson had responded, “No, another person I definitely wouldn’t say anything like that
to”. However, Ms. Siemen testified that Ms. Babson had told her “that something had
occurred”, and that Ms. Sieman had told Ms. Babson “to call the police or I would”.
           Again, this was proper impeachment testimony, since Ms. Babson had denied
describing Petitioner’s confession to Ms. Siemen. As stated in the main body of this
opinion, Atty. Bragdon knew that it was well within the trial court’s discretion to have
treated Ms. Babson’s testimony on this point as inconsistent with prior statements to Ms.
Siemen. Furthermore, since the State had given Ms. Babson an opportunity to explain
her conversation with Ms. Siemen, there could be no Rule 613(b) basis for objection.
          On his second day of testimony, having never identified the matter in response to
expert interrogatories, Atty. Martin for the first time attempted to identify a separate basis
for his claim that trial counsel fell below professional standards of competence in failing
to object to Ms. Siemen’s account of her conversation with Ms. Babson. Even assuming



                                              9
the testimony qualified as proper impeachment, Atty. Martin claimed that an objection
should have been made as to hearsay, because under V.R.E. 801(d)(1), even as a prior
inconsistent statement, Ms. Babson’s statement could not be considered to prove the truth
of any assertions as it was not made under oath. As an example of incompetent
representation, this is patently unconvincing.
         As Petitioner acknowledges in his submission, Ms. Siemen’s account of her
conversation with Ms. Babson to the effect “that something had occurred” was extremely
vague. This Court is surely not bound to uncritical acceptance of Petitioner’s
characterization that it was “nevertheless damaging to the defense”. However, since the
testimony was plainly likely to be sustained as proper impeachment, trial counsel’s only
approach would have been to ask for a cautionary instruction to the effect that the jury
only give weight to the effect of the testimony on its consideration of Ms. Babson’s
credibility, and not for the truth of the suggestion “that something had occurred”. Yet, as
Atty. Bragdon testified, experienced defense counsel rarely ask for such an instruction
since it has the potential effect of highlighting and reinforcing the prejudicial aspects of
testimony. As to the vague suggestion created by Ms. Siemen’s statement, whether or
not to seek a cautionary instruction was too discretionary to form a credible basis for a
claim of substandard representation.

        iii. As with its strategy involving Ms. Siemen, the State called Investigator Garry
Briggs to rebut the testimony by Ms. Babson that she told no one that Petitioner had
confessed to her. As explained above, and in the main body of the opinion, this inquiry
proceeded with a proper foundation under Rule 613(b) and was plainly proper
impeachment. Indeed, when Atty. Bragdon attempted to limit certain aspects of Briggs’
testimony on relevance grounds, Judge Suntag squarely ruled: “It’s a prior inconsistent
statement”. Petitioner claims unpersuasively that the Court’s ruling was “in error”; but
even if it was, it certainly informed trial counsel of the likely futility of making further
such objections to discretionary rulings, potentially costing him credibility with the jury.
        As with his opinion regarding Ms. Siemen’s testimony, Petitioner’s expert
augmented his previous disclosed opinions by claiming at trial that Atty. Bragdon should
have objected under Rule 801(d)(1). Yet, Briggs testified that Ms. Babson told him that
“Barry admitted to her that he had touched [NC]”. This statement by Petitioner to Ms.
Babson was an admission, making it separately exempt from the hearsay exclusion under
V.R.E. 801(d)(2).
        Atty. Bragdon persuasively explained a trial strategy that did not include vigorous
challenge to testimony related to Petitioner’s statement to Ms Babson that “he did it”. As
noted in the main body of the opinion, counsel had little choice in this regard; Petitioner’s
belated attempts to suggest means by which such testimony might have been excluded
remain unconvincing.

       iv. Petitioner also challenges aspects of trial counsel’s handling of State’s witness
Detective David Rolland. Although suggesting that testimony relating to the discovery of
pornographic materials was “extremely prejudicial”, and acknowledging that Atty.
Bragdon successfully objected to limit the scope of such testimony, Petitioner fails to
explain what trial counsel should have done to more completely contain this line of
inquiry. Furthermore, there is no claim of ineffective assistance in this regard which was



                                             10
either properly noticed to the State, or supported by a cogent opinion by Plaintiff’s legal
expert.
        Det. Rolland also testified that Ms. Babson told him that N.C. had stated to her
“this happened [to me] because [I] had been bad”. Petitioner now claims this was
“double-hearsay”, and that trial counsel’s failure to object amounted to ineffective
representation. To the contrary, the statement is not hearsay because it contains no
assertion of fact. Rather, it portrays N.C.’s state of mind as related to her mother. On its
face, the statement does not incriminate Petitioner; indeed, it could easily be construed as
more helpful than damning. Any other objection - on relevance grounds, for example –
would have to be seen as within trial counsel’s broad discretion, especially since the
success of such an objection would have been eminently unpredictable.

        Conclusion: As explained herein, having given due consideration to Petitioner’s
post-trial submissions, the Court finds no reason to alter the conclusions reached in the
main body of this opinion.

       Dated at Bennington this             day of                         , 2011.



                                              _____________________________
                                              John P. Wesley
                                              Superior Court Judge




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