In Re: Mark A. Rich, No. S0433-03 CnC (Norton, J., Aug. 22, 2005)

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STATE OF VERMONT                                       SUPERIOR COURT
Chittenden County, ss.:                            Docket No. S0433-03 CnC



IN RE MARK A. RICH



                                   ENTRY

        Following a conviction for sexual assault, Petitioner moves for post-
conviction relief based on ineffective assistance of counsel at trial.
Petitioner’s argument is two-fold. First, he claims that his attorney failed to
cross-examine the complaining witness about her prior convictions for false
pretenses (passing bad checks) and failed to request a specific jury
instruction on the witness’s credibility. Second, he claims that his attorney
failed to object to or request to strike post-incident emotional response
testimony from the complaining witness and the treating nurse. This
testimony, he argues, was irrelevant and highly prejudicial. From these
failures, Petitioner urges the court to conclude that his attorney provided
ineffective assistance as a matter of law. The State does not dispute the
facts that Petitioner relies on but argues that they do not satisfy his burden
as a matter of law under Strickland v. Washington. 466 U.S. 668, 669
(1984). Both sides have moved for summary judgment.

        Under the Strickland analysis “[t]o demonstrate ineffective
assistance of counsel, a petitioner must show by a preponderance of the
evidence that: (1) his counsel’s performance fell below an objective
standard of performance informed by prevailing professional norms; and
(2) there is a reasonable probability that, but for counsel’s unprofessional
errors, the proceedings would have resulted in a different outcome.” In re
Grega, 2003 VT 77, ¶ 7 (mem.). This burden is a substantial one, and the
remedy Petitioner seeks is limited. Id.

         Petitioner’s first claim is based on the complaining witness’s
criminal record for false pretenses. Specifically, the complaining witness
was convicted on three charges of false pretenses for knowingly passing
bad checks. These convictions preceded her alleged sexual assault and
were unrelated to that crime. Nevertheless, prior to trial, the court ruled
that this evidence was admissible under V.R.E. 609. This Rule allows
testimony about prior convictions if those convictions involved
untruthfulness or falsification. V.R.E. 609(a). The purpose behind this rule
is that such crimes are relevant in helping a jury determine the credibility of
a witness. Id. at rptr. n.—1989 amend. To diffuse this issue, the State at
trial elicited the criminal record from the witness herself on direct
examination. On cross-examination Petitioner’s attorney did not follow
this line of impeachment. Instead, he chose to focus his defense on the
State’s lack of physical or corroborating evidence. Petitioner now argues
that this failure to follow up on the prior convictions was fatal to his case.
His expert supports this position by opining that the credibility issue was a
critical component of the case.
        In retrospect, Petitioner may have a point. It is possible that just a
bit more pushing at the witness’s credibility might have tipped the jury in
Petitioner’s favor. At the same time, the opposite remains just as equally
possible in light of Petitioner’s argument. The problem is that Petitioner is
inviting the court to review his counsel’s performance through the lens of
hindsight. This is not the purpose of post-conviction review, which looks
to see if counsel dropped below an objective standard of performance. The
question here is whether Petitioner’s counsel’s decision was a part of a
strategy and whether that strategy was valid, regardless of the outcome.
The evidence shows that counsel’s choice not to cross-examine or
emphasize the complaining witness’s prior criminal record was part of a
strategy to keep the focus on the incident itself and the State’s lack of
supporting evidence. While the two are not mutually exclusive, the choice
of one strategy over the other represents a logical choice rather than
incompetence or a mistake. As a trial strategy, then, counsel’s choices are
afforded a great deal of discretion and must only fit within the “range of
competence.” In re Dunbar, 162 Vt. 209, 212 (1994); see also In re Mecier,
143 Vt. 23, 30 (1983).

       This brings up the next question of whether counsel’s strategy was
valid. Petitioner’s expert opines through his affidavit that the assessment of
the witness is extremely important and especially critical in he said/she said
cases where credibility is a front-and-center issue. This may be true, but
this does not invalidate counsel’s choice. The better choice may have been
to add a strong credibility attack to the case, but that does not make
counsel’s decision wrong, merely less right. Again, a post-conviction
review carries with it a strong presumption that an attorney’s decision falls
within the realm of competence, barring strong evidence to the contrary.
Id. Petitioner and his expert raise some doubts about counsel’s
performance, but it is simply not strong enough to overcome this legal
presumption of competence. In re Plante, 171 Vt. 310, 315 (2000).

       Sending aside the first prong of Strickland for the moment,
Petitioner’s argument also fails to establish a reasonable probability of a
different outcome “but for” counsel’s choice. The evidence that Petitioner
bases his claim on was admitted into testimony, albeit under friendly
circumstances. The witness admitted her criminal record, and the jury
learned that she had a past propensity for falsehood and untruthfulness.
While Petitioner’s counsel could have hammered home these facts—
making the latter more explicit—there is nothing in the evidence that shows
such hammering would have turned the tide of the case. The most it can
show is a mere possibility, and that is not enough as a matter of law. In re
Grega, 2003 VT 77 at ¶ 12; see also Travellers Ins. Co. v. Demarle, Inc.
USA, 2005 VT 53, at ¶ 10 (mem.).

       Petitioner’s argument regarding a specific jury instruction on
credibility similarly fails to show an ineffective assistance of counsel. The
court included a general charge on witness evaluation that included some
language instructing the jury on how to evaluate a witness’s credibility.
Counsel’s decision not to ask for a more specific charge did not take the
issue away from the jury or leave them without any criteria to evaluate the
witness’s credibility. At most, it was a harmless error that does not
represent a reasonable probability of a different outcome.

       It is worth noting that the evidence here went to the witness’s
general credibility rather than her specific credibility in this case. The false
pretense convictions show a propensity for financial falsehood. From this
the jury may infer an ability and capacity for untruthfulness, but it is
somewhat of a leap in logic to then conclude that because of this capacity
she would concoct a sexual assault claim. Again, Petitioner cites to
evidence that makes it possible but neither it, nor a more specific jury
charge, would have made a different outcome more probable for the
purpose of post-conviction review.
        Finally, Petitioner argues that counsel’s failure to object to post-
incident testimony unfairly prejudiced the jury against him. Petitioner does
not argue that this testimony was inadmissable or completely irrelevant.
Such testimony has been allowed in sexual assault cases as evidence to
corroborate a witness’s version of events or to rebut the defendant’s claim
that the incident did not occur. State v. Shaw, 149 Vt. 275, 277–78 (1987).
Petitioner presents no evidence that an objection or motion to strike would
have been granted. Looking at the record and trial strategy as a whole,
these statements and the lack of objection, while damaging to Petitioner’s
case, did not constitute ineffective assistance of counsel. In re Mecier, 143
Vt. at 32. Given only the possible effectiveness of such an objection, the
court cannot say that the failure to object was an glaring error or that its
potential exclusion would have tipped the scales in favor of Petitioner.
Even when coupled with counsel’s cross-examination and jury charge
decisions, the sum result is only a hindsight re-evaluation and not a
cumulative erosion in the court’s faith in the verdict. As such, Petitioner’s
argument on this last point fails to carry his Strickland burden of
persuasion.

       Based on the foregoing, Petitioner’s motion for summary Judgment
is Denied. The State’s motion for summary judgment is granted. Case is
dismissed.

       Dated at Burlington, Vermont________________, 2005.
________________________________
           Richard W. Norton, Judge
