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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2014-051

                                       JANUARY TERM, 2015

 In re Donald R. O’Dell, Jr.                           }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Bennington Unit,
                                                       }    Civil Division
                                                       }
                                                       }    DOCKET NO. 500-12-11 Bncv

                                                            Trial Judge: John P. Wesley

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

        Petitioner appeals from a judgment of the superior court, civil division, denying his
petition for post-conviction relief based on a claim of ineffective assistance of counsel. We
affirm.

        Following a jury trial in December 2009, defendant was convicted of aggravated assault
with a deadly weapon. The judgment was affirmed on appeal in State v. O’Dell, No. 2010-172,
2011 WL 4975170 (Vt. Apr. 21, 2011) (unpub. mem.). The relevant facts were summarized
there as follows:

                   The complainant lived with his wife in a rented cabin at the
                Walk in the Woods Motel in Woodford. On the evening of
                February 18, 2009, he approached a snow plow that was clearing
                the motel parking lot to ask the driver not to pile snow in front of
                his cabin. The driver, later identified as defendant, also lived at the
                motel and traded rent for plowing services. The complainant
                testified that defendant, a white man, opened the truck door and
                angrily told the complainant, a black man, not to give him orders
                and to “take [his] monkey ass back to the jungle where [he] was
                from.” A short time later, as the complainant approached the truck
                again, defendant exited the vehicle with what appeared to be a
                crowbar, yelled racial slurs at the complainant, and threatened to
                kill him. The complainant, in response, said that he was going to
                call the police and turned to leave when defendant struck him on
                the head with the crowbar. The complainant staggered, and
                defendant swung several more times striking his arm and shoulder.
                The complainant ran into the motel lobby, reported the incident to
                another resident and the motel manager, and called the police.

                  The other resident recalled that the complainant was shouting
                “he’s going to kill me” and reported that defendant had attacked
                him with a crowbar. She saw defendant with what appeared to be
               a tire iron in his hand, and observed a laceration on the
               complainant’s head and a bump “about the size of a mango.” The
               motel manager also observed a large bump on complainant’s head.

                  A young man who had recently checked into the motel with his
               family because of the snow storm observed much of the incident
               from about ten to fifteen yards away, while he was standing
               outside making a cell phone call. He recalled observing a black
               man approach the snow plow and saw a white man in front of the
               plow with a “long cylindrical object” in his hand. The witness
               observed the white man strike the black man on the head with the
               object, and then strike him three to four more times. The witness
               returned briefly to his room, then went back outside, where he
               observed the snow plow driver throw what appeared to be the
               cylindrical object into the woods behind the motel.

                  The state trooper who investigated the incident observed a
               laceration and a “baseball sized welt” on the complainant’s head,
               several lacerations on his forearm, a swollen shoulder, and several
               rust-colored marks or striations on the complainant’s shirt. The
               trooper spoke with defendant, who was holding a meat patty to his
               eye. Defendant claimed that the complainant had struck him and
               attacked him with a knife. The officer observed no injuries to
               defendant’s eye, and defendant sought no medical attention for the
               claimed injury. At trial defendant testified in his own behalf,
               denying that he had attacked the complainant, and claiming that he
               had been the victim of an assault. Defendant also called two
               character witnesses who testified that the complainant had a
               reputation for untruthfulness.

Id. at *1.

        On direct appeal, petitioner claimed that the trial court erroneously (1) coerced a guilty
verdict by placing a time limit on the jury’s deliberations and (2) denied a defense request to
present a witness out of order. The additional facts underlying these claims were as follows:

                   During a pretrial conference in October 2009, the court
               confirmed that the case was scheduled for a two-day trial, although
               defense counsel stated at the time that it might be completed in
               one. Several months later, at the end of the first day of trial—a
               Thursday—the court informed counsel at the bench that he
               intended “to wrap it for the day.” Defense counsel thereupon
               indicated that a defense witness, Dr. Lefebvre, had been
               subpoenaed only for the first day of trial and was present to testify
               but would not be available “tomorrow unless I give him a new
               subpoena, but I suspect this is going to go beyond tomorrow.” The
               trial court responded: “It can’t go beyond tomorrow. It isn’t
               possible to go beyond tomorrow. I’m leaving—I’m going out of
               state on Saturday. I’m not coming back. We scheduled it for two

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days when you told us you thought it would be a day . . . .” The
court continued: “[I]t can’t go beyond tomorrow. . . . Do what you
have to do with your doctor. You subpoena him, you subpoena
him.”

   After some additional discussion concerning other witnesses,
the court restated its view on the imperative to complete the trial,
stating: “Okay. But we’re going to go. There is no option. It has
to end tomorrow.” Defense counsel said, “Okay.” The court
responded, “Thought I was pretty clear about that . . . ,” and
defense counsel then repeated, “That’s fine by me.”

    After the defense rested at the end of the second day of trial—
without having called Dr. Lefebvre—the court excused the jury
and addressed counsel as follows: “It’s about 4:25 but it’s not as
though we really have an option. The Court is not open tomorrow.
It’s not open Sunday, and I’m not here all next week. So, we will
need to go on.” The court then explained that it wished to inform
the jury as to “what we’re doing” and determine whether it was
impossible for any them “to be here tonight” and further indicated
that it would like to do so in the jury room rather than in open
court. Counsel agreed, and the court subsequently returned to
explain that he had informed the jury of the plan and asked them if
any had any “difficulty about staying late.” None had so indicated,
and the court observed that their “general reaction was a desire to
go ahead anyway today and not come back another day in any
event. So I think they’re fine.”

   Following closing arguments and jury instructions, the jury
began deliberations. During deliberations, the jury asked to have
certain testimony replayed, which the court allowed. After about
four hours, the jury returned with a guilty verdict. Defendant later
moved for a new trial based, in part, on the court’s refusal to allow
Dr. Lefebvre to testify at the end of the first day of trial. The court
denied the motion, noting that defendant failed to subpoena the
witness to appear for the second day, as the court had advised, and
that—based on Dr. Lefebvre’s testimony at the motion hearing—
there was no basis to conclude that defendant was prejudiced by
the court’s ruling.

    About two weeks later, defendant moved to reconsider the
denial of the motion for new trial based, in part, on “newly
discovered evidence.” The evidence in question consisted of a
letter that defense counsel had recently received from one of the
alternate jurors in defendant’s trial. The letter recalled that the trial
court had addressed the jury in the jury room before final
arguments, informing them that he had “imminent travel plans” to
the West coast. The letter states that the juror interpreted the


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               court’s remark “to encourage, and to bestow [the court’s] official
               blessings, upon a quick verdict.”

                  Defendant’s motion to reconsider was accompanied by a
               motion to recuse the trial court from ruling on the matter. The
               motion was referred to the Administrative Judge, who denied it,
               finding no basis to conclude that the court could not fairly rule on
               the motion. The trial court subsequently issued a written ruling in
               April 2010, finding “no irregularity in its statement to the jury
               regarding the need to complete the trial that day, even including
               reference to the judge’s personal plans.” First, the court concluded
               that the claim had been waived, recalling that “[t]he parties, with
               knowledge of the upcoming weekend and the [court’s]
               unavailability the next week, agreed that the jury should be
               informed that trial needed to be completed that day.” Second, the
               court found no basis to conclude that the jury had been improperly
               influenced, observing that they had deliberated for over four hours
               and had asked for certain testimony to be replayed, demonstrating
               that they were “diligent, hardworking,” and fully engaged.
               Accordingly, it denied the motion to reconsider.

Id. at *2-3.

        In considering petitioner’s claim of improper jury coercion, we concluded that, while the
trial court’s statement to the jury regarding the need to complete the trial that day “came close to
precisely the sort of deadline that this and other courts have proscribed,” it was clear that defense
counsel had accepted the court’s actions, and therefore had waived any claim of error on appeal.
Id. at *4. As for the claim concerning Dr. Lefebvre, we concluded that his testimony at the
hearing on the motion for new trial “refutes any possible finding of prejudice; he corroborated
that the victim had suffered a head injury resulting from a ‘likely blunt [force] trauma,’
acknowledged that the injuries were ‘consistent with a good blow to the head’ which could have
been caused by a crowbar, and could not rule out the possibility of a concussion.” Id.
Accordingly, we found no basis to disturb the judgment.

       Following our affirmance, in December 2011, petitioner filed a petition for post-
conviction relief, later amended in April 2012, raising numerous claims of ineffective assistance
of counsel. The trial court held an evidentiary hearing in November 2013 and the following
month issued a written decision denying the motion.

        The court addressed four specific claims raised by petitioner at the hearing. First,
petitioner argued that counsel was deficient in failing to object to the trial court’s off-the-record
colloquy with the jury about the need to complete the trial that day. The court rejected the claim
on several grounds. First, it noted that in O’Dell, this Court observed that the circumstances
“came close” to being improper, but did not in fact hold that the court’s statement was improper.
Furthermore, the court found from the surrounding circumstances that “counsel reasonably
presumed the discussion [with the jury] would focus principally on the likelihood that
deliberations would extend beyond the close of court hours on that Friday night” rather than any
specific direction to the jury to arrive at a verdict that evening; thus, the court could not conclude
that counsel was deficient in failing to raise an objection.

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        Finally, the court concluded that, even if counsel’s conduct was deficient, there was no
reasonable probability that it affected the verdict. The jury deliberated for about four hours and
requested that certain key testimony be replayed before returning a verdict. This undermines any
suggestion that the verdict was rushed or coerced. Furthermore, the evidence of guilt was
genuinely overwhelming. An entirely disinterested witness who observed the attack gave an
account that substantially matched the victim’s, testifying that he saw the assailant hit the victim
three or four times with something that “looked like it could be a pipe,” and saw nothing to
indicate the victim had provoked the attack. He also saw the assailant throw an object into the
woods. Another witness saw defendant with something in his hand that “looked like a tire iron,”
observed the injury to victim’s head, and reported that the victim had sought shelter in the
apartment office while screaming that defendant was “going to kill me.” These events were
confirmed by still another witness, the apartment manager, who noted the victim’s injuries and
fear that defendant was trying to kill him. See O’Dell, 2011 WL 4975170, at *1. At the same
time, petitioner’s claim that the victim had attacked him with a knife, and had suffered his head
injuries when he slipped and fell in the snow, was entirely unsupported, and contained numerous
discrepancies and contradictions. In addition, the court noted that the duration of the jury’s
deliberation, and its request for review of certain evidence, demonstrate the jury’s careful
consideration given that the evidence of defendant’s guilt was overwhelming.

        Next the court considered petitioner’s claim that trial counsel acted below professional
standards by eliciting from petitioner on direct examination several prior convictions for
burglary, grand larceny, and DUI. Defense counsel testified at the hearing that she routinely had
clients admit their prior convictions to dampen the impact of their disclosure as impeachment
evidence on cross-examination by the State. Petitioner’s expert testified, however, that this was
below the standard of care, and the trial court agreed, noting that use of these prior felony
convictions to impeach petitioner required a finding under V.R.E. 609(a)(2) that the convictions’
probative value outweighed their prejudicial effect, and that competent counsel would have put
the State to this test by filing a motion in limine seeking to exclude evidence of the prior
convictions before preemptively offering the testimony. Nevertheless, the court noted that the
prior convictions were remote in time and unrelated to the current charge, thus rendering any
prejudice “less palpable,” and concluded that, even without the evidence, the “the jury would
have convicted [p]etitioner based on the overwhelming strength of the State’s case.”

        Petitioner’s third claim was based on the trial court’s denial of petitioner’s request to
present Dr. Lefebvre’s testimony out of order on the first day of trial and counsel’s subsequent
failure to subpoena him to appear on the second day. The court easily rejected the argument,
noting that, as we observed in O’Dell, the doctor’s subsequent testimony at the hearing on the
motion for new trial “refutes any possible finding of prejudice.” 2011 WL 4975170, at *4.

        Finally, petitioner claimed that trial counsel rendered ineffective assistance by failing to
object immediately to the presence of a crowbar—not the actual weapon used in the assault—
that the prosecutor had brought into the courtroom. The prosecutor testified that he placed the
crowbar on the clerk’s desk; that it was not immediately visible to defense counsel; and that the
court ordered it removed when it was brought to his attention by defense counsel. The court
found that petitioner had presented insufficient evidence to conclude that the jury saw the
crowbar, that trial counsel knew or should have known of its presence earlier, or that counsel was
deficient in failing to object sooner. Accordingly, the court denied the petition. This appeal
followed.

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         Petitioner contends the court erred in denying the petition on each of the four grounds,
individually or cumulatively, summarized above. The standards governing a claim for post-
conviction relief based on ineffective assistance of counsel are well-settled. “[A] defendant who
challenges the adequacy of counsel’s assistance must show by a preponderance of the evidence,
first, that counsel’s performance fell below the standard of a reasonably competent attorney, and
second, that counsel’s failure prejudiced the defendant, i.e., that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” In re Kimmick, 2013 VT 43, ¶ 16, 194 Vt. 53 (citing Strickland v. Washington, 466
U.S. 668, 691-94 (1984)). “A trial court’s findings in this context will be upheld absent a
showing of clear error, and its conclusions affirmed if reasonably supported by those findings.”
Id.

        Assessed in light of these standards, we affirm the trial court judgment. We address the
prior-conviction issue first. Petitioner challenges the court’s conclusion that counsel’s error was
non-prejudicial in light of the overwhelming evidence of guilt, arguing that, in fact, this was a
close case “about credibility,” and that counsel’s error could have affected the result. The
record, summarized at length above, does not support the claim. As noted, the victim’s account
of the assault was substantially supported by several witnesses, including another resident who
witnessed the events moments after the assault, a neutral witness who did not know either party
and who described defendant hitting the complainant over the head with a long cylindrical
object, and the state trooper who described the complainant’s injuries.

        Moreover, as the trial court noted, defendant himself gave inconsistent accounts of what
happened. First, he reported to the 911 operator that the complainant had attacked him with a
knife, and then he told the investigating officer that the complainant had hit him in the face. The
investigating officer saw no evidence of any injury to defendant’s face. Defendant reiterated his
claim that the complainant had attacked him with a knife only after the investigating officer
reminded him of his initial report to the 911 operator.

        In addition, the prior convictions were remote and unrelated to the current charge. The
court’s conclusion that there was no reasonable probability of a different result is thus well
supported.*

        We reach the same conclusion with respect to petitioner’s argument that the court erred in
rejecting his ineffective-assistance claim predicated on defense counsel’s failure to object to the
court’s colloquy with the jury. Even assuming that counsel was deficient in this regard, the
record amply supports the court’s conclusion that no prejudice resulted. As the trial court noted,
the evidence of guilt was overwhelming, and the record shows that the jury did deliberate
carefully in the face of this overwhelming evidence of guilt.

        Petitioner’s two remaining claims require no extended discussion. As noted, Dr.
Lefebvre’s testimony that petitioner suffered a “blunt [force] trauma” to his head was largely
consistent with the evidence, and could not remotely have altered the verdict. O’Dell, 2011 WL
4975170, *4. With respect to the crowbar, the record shows that it was placed outside of defense
counsel’s immediate view, that defense counsel objected to its presence when made aware of it,

       *
          In light of our conclusion, we need not address the State’s argument that the trial court
erred in concluding that defense counsel’s decision to elicit the prior convictions was below
professional standards.
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and that the court then ordered its removal. Thus, there is no basis for a finding of
unprofessional conduct. Petitioner’s additional argument that the crowbar was viewed by the
complaining witness, that this could have affected his testimony, and that counsel was deficient
in failing to raise this specific objection at trial is not supported by the record, and was not
clearly raised below. Accordingly, we affirm the trial court’s judgment.

       Affirmed.



                                              BY THE COURT:


                                              _______________________________________
                                              John A. Dooley, Associate Justice

                                              _______________________________________
                                              Beth Robinson, Associate Justice

                                              _______________________________________
                                              Harold E. Eaton, Jr., Associate Justice




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