Cooley v. State, No. 403-7-97 Wncv (Toor, J., Oct. 27, 2005)

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                                     STATE OF VERMONT
                                   WASHINGTON COUNTY, SS

                                            │
GARY RAY COOLEY,                            │
 Plaintiff                                  │
                                            │       SUPERIOR COURT
 v.                                         │       Docket No. 403-7-97 Wncv
                                            │
STATE OF VERMONT,                           │
 Defendant                                  │
                                            │


                   RULING ON MOTION FOR SUMMARY JUDGMENT

       This is a post-conviction relief (PCR) case initiated by Gary Ray Cooley, now pro se,

following convictions in 1995 of simple assault and obstruction of justice. Cooley asserts a

claim of ineffective assistance of counsel pursuant to 13 V.S.A. § 7131. The State seeks

summary judgment, arguing that even if the performance of Cooley’s attorneys was deficient in

the manners alleged, he cannot prove any prejudice to the outcome of his criminal case. The

material facts are undisputed. No hearing pursuant to 13 V.S.A. § 7133 is necessary. See In re

Bashaw, 129 Vt. 393, 394 (1971).

                                        Findings of Fact

       The PCR claims are not set out with any clarity in the petition. Following the State’s

summary judgment motion, Cooley generally describes his ineffective assistance of counsel

claim as follows: “Ineffective Assistance of Counsel by the extremely corrupt, intensely evil,
extremely dishonest, ‘jew’ (Rev. 2:9, 3:9), child of satan: [his defense counsel].” He then cites

numerous instances of “lies” in the testimony of witnesses at trial, and “lies” and other “improper

tactics” used by the “Extremely Corrupt and Dishonest” prosecutor. Cooley counts each such

instance as an example of ineffective assistance because his attorney failed to object. Cooley

claims his “extremely corrupt and dishonest” appellate counsel was ineffective precisely for not

having pursued these same claims in the appeal of the criminal case. Nowhere does Cooley

meaningfully addresses the State’s legal argument: that any deficiencies in his representation did

not prejudice the fairness of his trial. Instead, Cooley merely claims that it is obvious that he is

innocent.

        The following is a representative example of the alleged “lies” to which Cooley’s counsel

failed to object. The prosecutor—evidently arguing during closing that an “implied” threat is not

different from a “direct” one—stated: “And frankly, it doesn’t matter whether Gary Cooley said

to Walter Brown tell Christine I’ll kill her or Gary Cooley simply left a message on the

answering machine, ‘I hope God kills both of you.’ Either way it amounts to the same thing.”

Trial Transcript, p. 167. Cooley argues:

                Another gigantic lie by [Prosecutor]. My statement that, I hope God kills
        both of you for the horrible things you’ve done to me in the past[] is NOT a
        threat; and obviously was NOT intending to influence anyone to not testify the
        TRUTH; and does NOT make me guilty of Obstructing Justice! My statement
        was not a significant implied threat.

               [Defense Counsel] should have aggressively objected to this lie AND had
        the judge instruct the jury that that statement does NOT make me guilty of
        Obstruction of Justice.

Plaintiff’s Memorandum at 2 (filed May 31, 2005). That is, Cooley agrees generally that he

made the statement, but disagrees with its potential legal implications and his attorney’s decision

not to object.




                                                 2
                                        Conclusions of Law

       Under both the United States and Vermont Constitutions, an accused has the right to

reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687-88

(1984); In re Miller, 168 Vt. 583, 584 (1998) (mem.). An ineffective assistance claim has two

components. “First, the defendant must show that counsel’s performance was deficient . . . .

Second, the defendant must show that the deficient performance prejudiced the defense . . . .

Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a

breakdown in the adversary process that renders the result unreliable.” Strickland, 466 U.S. at

687. Because counsel must have “wide latitude” to make strategic choices, judicial scrutiny of

those choices must be “highly deferential.” Id. at 689. In proving errors of counsel, the

defendant must overcome a “strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance.” Id. If errors are proven, the defendant still must

prove “a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. “The benchmark for judging any claim of

ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the

adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686.

       The Strickland decision made clear that in protecting the adversarial process from

deficiencies in the effective assistance of counsel, courts must remain pragmatic:

       In particular, a court need not determine whether counsel’s performance was
       deficient before examining the prejudice suffered by the defendant as a result of
       the alleged deficiencies. The object of an ineffectiveness claim is not to grade
       counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the
       ground of lack of sufficient prejudice, which we expect will often be so, that
       course should be followed. Courts should strive to ensure that ineffectiveness
       claims not become so burdensome to defense counsel that the entire criminal
       justice system suffers as a result.




                                                  3
Id. at 697.   Here, the State argues, and the court agrees, that no deficiencies of counsel

demonstrate sufficient prejudice.

        The circumstances of this case do not suggest that any deficiencies in trial counsel’s

performance would have had any effect on the verdict.          Decisions to object to particular

statements of a witness, or arguments of a prosecutor, are highly strategic and do not necessarily

result in the ruling sought from the trial judge. Cooley has made no showing that any of the

“missed” objections would have led to any action by the trial judge that could have aided

Cooley’s case before the jury. There is no showing that even if the objections had been made and

sustained, they would have been likely to have any effect on the jury’s decision.

       The court understands that Cooley is upset about statements made at trial that he believes

were factually misleading or untrue. Most trials, however, involve conflicting evidence. The

crucial role of the jury is to weigh conflicting evidence and make factual determinations so a just

verdict may be reached. Conflicting evidence does not demonstrate that the outcome of the trial

was unfair. Moreover, Cooley has not proven that the objections he retrospectively desires were

so fundamental to the trial that they might have led the jury to reevaluate which witnesses and

testimony it deemed credible. Also, many of those objections specifically relate to the law

applicable to the case.    Cooley has not proven any legal errors so great that the proper

functioning of the adversarial process was undermined.

                                                    Order

       For the foregoing reasons, the State’s motion for summary judgment is granted.

Dated at Montpelier, Vermont this 26th day of October, 2005.


                                                      ___________________________________
                                                      Helen M. Toor
                                                      Superior Court Judge



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