In Re: Walter LeClaire, No. S0998-03 CnC (Norton, J., Dec. 28, 2004)

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STATE OF VERMONT                                                       SUPERIOR COURT
Chittenden County, ss.:                                            Docket No. S0998-03 CnC



IN RE WALTER LECLAIRE



                                            ENTRY
       This matter concerns a petition for post-conviction relief. The State has filed a
motion for partial summary judgment, arguing that the petitioner, Walter LeClaire, lacks
evidence to proceed with some of his ineffective assistance of counsel claims. The court
denies summary judgment but reserves judgment on one of the claims raised by the
State’s motion.
        On February 22, 2001, LeClaire was convicted of second-degree murder for the
shaking death of a 16-month-old girl. He was represented by Attorney Robert Andres
prior to and throughout the guilt-phase of the trial. Following conviction, the court
sentenced LeClaire to life in prison without parole. He subsequently filed the instant
petition.
        This petition has a rather tortured procedural posture that bears explanation.
LeClair first filed his petition pro se. When he obtained counsel, his counsel amended the
petition, replacing it entirely with essentially two ineffective assistance of counsel claims:
(1) Andres failed to prepare LeClaire to testify and inform him that he had a right not to
testify and (2) Andres consumed alcohol throughout the trial. The state then filed a
motion for summary judgment with regard to these two claims. LeClaire has since
amended his petition twice. First, he added another ineffective assistance claim that
Andres failed to inform him of a plea offer. Second, he added a claim seeking relief from
the court’s sentence pursuant to Blakely v. Washington, 124 S. Ct. 2531 (2004).
       Since these amendments, the parties have fully briefed the State’s first summary
judgment motion. The State, however, has filed a second summary judgment motion
regarding LeClaire’s Blakely claim. Because LeClaire has not yet responded to this
motion, the court reserves judgment until the parties fully brief this claim. Therefore, this
order addresses only the State’s first summary judgment motion.
       Summary judgment is appropriate where there is no genuine issue as to any
material fact and a party is entitled to judgment as a matter of law. V.R.C.P. 56(c)(3). The
party opposing a summary judgment motion is entitled to the benefit of all reasonable
doubts and inferences, but the party must support allegations to the contrary with specific
facts sufficient to create a genuine issue of material fact. Samplid Enters., Inc. v. First Vt.
Bank, 165 Vt. 22, 25 (1996). Considering the parties’ statements of fact and supporting
evidence, the court makes the following findings of fact for the purposes of this summary
judgment motion.
                           LACK OF PREPARATION CLAIM
       LeClaire was tried and convicted of second-degree murder in the shaking death of
16-month-old Alexis Cormier. The conviction was affirmed by the Vermont Supreme
Court. See State v. LeClaire, 175 Vt. 52 (2003). After Alexis’s death, LeClaire’s defense
was that his dog knocked Alexis over and that she struck her head on a toolbox.
       Medical evidence at LeClaire’s trial, including a CAT scan and expert witness
testimony, revealed that Alexis “endured significant trauma to her brain with enough
force to cause bleeding in several areas, dramatic retinal hemorrhages, and retinal
detachment.” Id. ¶ 2. Expert witness Dr. Robert Moley testified at trial that he had never
seen a more dramatic example of a retinal injury consistent with a baby who had been
shaken.
        LeClaire testified at trial that his dog had caused Alexis’s accident and claims
Andres did not prepare him to take the stand nor inform LeClaire he had a right not to
testify. Indeed, LeClaire claims that Andres did not speak with him for more than half an
hour total between the date of his arrest and the beginning of his trial and he did not know
he was going to testify until the last day of trial.
      Petitioner claims he does not read well and was not prepared to handle cross-
examination. Because of these circumstances, the prosecution continually impeached
LeClaire on cross-examination.
        Experts testified that LeClaire’s version of events was not consistent with Alexis’s
injuries. The Supreme Court relied on the weight of this expert testimony in affirming the
trial court’s denial of LeClaire’s motion for judgment of acquittal.
                                    ALCOHOL CLAIM
        LeClaire presents ample testimony from several witnesses supporting the fact that
Andres consumed alcohol during the course of the trial. LeClaire also testified that he
“noticed a marked difference in my attorney’s behavior after lunch, which lead [sic] me
to the conclusion that he had been drinking alcohol at lunch.”
         Andres denies being under the influence of alcohol “or any other substance” at
trial.
       In order to succeed with a claim for ineffective assistance of counsel, LeClaire
must meet a two-prong test by a preponderance of the evidence. First, he must show that
Andres’s performance fell below an objective standard of attorney performance informed
by prevailing professional norms. Second, LeClaire must show that there is a reasonable
probability that, but for Andres’s unprofessional errors, the proceedings would have
resulted in a different outcome. In re Grega, 2003 VT 77, ¶ 7 (mem.). With respect to the
second “prejudice” prong, a “‘reasonable probability is a probability sufficient to
undermine confidence in the outcome.’” In re Miller, 168 Vt. 583, 584 (1998) (mem.)
(quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)).
        With respect to LeClaire’s first claim of ineffective assistance, the court holds that
he has presented enough evidence to defeat summary judgment. A factfinder could
reasonably find that Andres’s failure to prepare LeClaire to testify fell below prevailing
norms of professional conduct in this case. Although LeClaire has not presented evidence
to address what the prevailing norm is under these circumstances, the Vermont Rules of
Professional Conduct provide that “[a] lawyer shall provide competent representation to a
client. Competent representation requires the . . . thoroughness and preparation
reasonably necessary for representation.” Vermont Rules of Professional Conduct Rule
1.1 (1999). The rules provide probative evidence of the appropriate standard of care that



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Andres owed to LeClaire consistent with his right to effective representation. See id.
Reporter’s Note—Rule 1.1 (“[T]he rules are presumably admissible as evidence of the
standard of care . . . .” (internal quotes omitted)).1
        The fact that the prosecution thoroughly impeached LeClaire on cross-
examination with prior inconsistent statements could lead a findfinder to reasonably find
that his credibility was seriously damaged in the eyes of the jury at trial. LeClaire’s
defense relied heavily on his theory that his dog caused the accident. A factfinder could
reasonably be persuaded that, had his testimony been more credible at trial, LeClaire
might have been able to convince jurors that his version of events was correct. Thus, he
could have affected the outcome of the trial. However unlikely LeClaire’s theory may be
given the mass of expert witness testimony to the contrary, the court is not in a position to
rule on this without full development of the evidence and a hearing on the merits. Hence,
the court denies summary judgment with respect to this claim.
       With respect to his second ineffective assistance claim, LeClaire’s affidavits claim
that Andres consumed alcohol during trial, and the State’s evidence raises a factual
dispute on this matter. LeClaire does not provide a link between Andres’s alcohol
consumption and deficiencies at trial or prejudice, but the court notes that there is a
reasonable inference that a “marked difference” in behavior demonstrated deficient
representation and this deficient representation could have affected Andres’s judgment.
In particular, Andres’s failure to prepare LeClaire to testify may be explained by alcohol
use. The court therefore denies summary judgment so that LeClaire may have an
opportunity to develop this claim with a full hearing on the merits.



                1
                 The court notes that an attorney’s violation of the Vermont Rules of Professional
     Conduct is not negligence per se and does not grant LeClaire standing to raise an ineffective
   assistance claim. See Vermont Rules of Professional Conduct Scope at 4 (1999) (“[The Rules]
            are not designed to be a basis for civil liability.”); see also Strickland, 466 U.S. at 688
   (“Prevailing norms of practice as reflected in American Bar Association standards and the like
      are guides to determining what is reasonable, but they are only guides.” (citation omitted)).
     Rather, the Rules merely provide probative insight into the appropriate standard of care for a
    lawyer under these circumstances. Ultimately, LeClaire should present evidence regarding an
  attorney’s “reasonableness under prevailing professional norms” in these circumstances, which
  the State may rebut. Strickland, 466 U.S. at 688. The court relies on the Rules here only for the
                                                          purposes of this summary judgment ruling.


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       LeClaire argues that the court should adopt a per se rule that a lawyer consuming
alcohol at trial is inherently ineffective. Several courts have adopted per se rules or
presumptions of prejudice in ineffective assistance claims for egregious deviations of
professional norms. The most common example is that of a lawyer who falls asleep
during trial. See, e.g., Burdine v. Johnson, 232 F.3d 336, 349 (5th Cir. 2001); Tippins v.
Walker, 77 F.3d 682, 686–87 (2d Cir. 1996). However, the court has not found any case
that extends such rules or presumptions to alcohol or drug abuse. See, e.g., Frye v. Lee,
235 F.3d 897, 907 (4th Cir. 2000); Barnett v. Collins, 982 F.2d 922, 930 (5th Cir. 1993);
People v. Garrison, 765 P.2d 419, 440–41 (Cal. 1989); Payne v. United States, 697 A.2d
1229, 1232 (D.C. 1997). As the U.S. Court of Appeals for the Second Circuit noted in
Tippins, a sleeping lawyer is equivalent to no lawyer at all, and a reviewing court cannot
determine whether a lawyer’s strategy was deficient or prejudicial where the lawyer is
effectively not present to begin with. Tippins, 77 F.3d at 686–87. This is not the case with
an intoxicated lawyer. One could presumably still present evidence to show that a
lawyer’s intoxication actually led to representation below the prevailing norms of
professional conduct and prejudiced the outcome of the case. Therefore, a per se rule is
not appropriate.
        Vermont law is consistent with the above case law. The Vermont Supreme Court
has discarded the prejudice requirement where defense counsel’s performance was so
deficient that there was effectively no counsel at all. See, e.g., In re J.B., 159 Vt. 321,
325–27 (1992) (holding counsel’s failure to advise juvenile’s parents of juvenile’s rights
against self-incrimination resulted in no meaningful consultation at all and therefore no
showing of prejudice required). Here, however, Andres was not effectively absent from
the proceeding because of his alcohol use. At most, he was impaired, but LeClaire will
still need to prove by a preponderance of the evidence that Andres’s impairment led to
actual deficiencies in representation and prejudiced the outcome of his criminal trial.




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                                        ORDER
        For the foregoing reasons, summary judgment is DENIED. The court reserves
judgment with respect to the summary judgment motion regarding the Blakely claim until
the parties have had an opportunity to fully brief that issue. LeClaire has until 30 days
after the State’s November 30, 2004 filing to respond in opposition to summary judgment
on the Blakely claim, in accordance with Rule 56(c)(1) of the Vermont Rules of Civil
Procedure.


      Dated at Burlington, Vermont, Dec. 28, 2004.




                                                         ________/s/________________
                                                                               Judge




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