In re Washington

In re Washington (2002-330); 176 Vt. 529; 838 A.2d 87

2003 VT 98

[Filed 16-Oct-2003]

                                 ENTRY ORDER

                                 2003 VT 98

                      SUPREME COURT DOCKET NO. 2002-330

                            SEPTEMBER TERM, 2003

  In re Jerome Washington	       }	APPEALED FROM:
                                       }
                                       }	Chittenden Superior Court	
                                       }
                                       }
                                       }	DOCKET NO.  S0498-96 CnC

                                                Trial Judge: David A. Jenkins

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


       ¶  1.  Petitioner, Jerome Washington, appeals from a superior court
  order denying his petition for post-conviction relief.  The issue on appeal
  is whether the superior court's conclusion that petitioner received
  effective assistance of counsel at his sentencing hearing is supported by
  the record.  We conclude that it is and affirm.

       ¶  2.  In 1993, petitioner was tried in state and federal court on
  charges of murder, attempted murder and aggravated assault, arising out of
  a 1992 incident in Burlington that resulted in the death of Melissa Wells,
  and the shooting of Chance Marden and Matthew Petrie.  In state court,
  petitioner was represented by attorney Ben Joseph.  As part of preparation
  for trial, counsel and his investigators interviewed petitioner's family
  members and an Arizona defense attorney who had represented petitioner on
  serious felony charges there.  As a consequence of these interviews,
  counsel referred petitioner to Dr. Henry Payson for a mental health
  evaluation.  Petitioner refused to answer any of Dr. Payson's questions,
  and cooperated only to a limited extent with Dr. Massad-a psychologist to
  whom Dr. Payson referred him.  Following these examinations, counsel
  requested a court-ordered competency exam that was conducted by Dr. John
  Ives.  Petitioner cooperated fully with Dr. Ives, and Dr. Ives found
  petitioner competent to stand trial.  
   
       ¶  3.  Throughout preparation for trial, petitioner was adamant that
  he did not shoot the victims and that they all were alive and well when he
  left the scene.  Moreover, petitioner continually refused to cooperate with
  counsel's efforts to explore the possibility of presenting an insanity
  defense at trial.  It was the state's theory of the case that petitioner
  shot the victims because Chance Marden had given the state evidence against
  petitioner's brother, Jacob Washington, who was awaiting trial on federal
  drug charges.  Counsel knew petitioner was aware of the state's theory and
  came to believe that petitioner was uncooperative in exploring an insanity
  defense because this defense would require petitioner to admit that he
  committed the shootings, an admission that might harm his brother in his
  federal case.  At petitioner's trial, counsel followed his client's
  directions and did not present any evidence to show that petitioner was
  suffering from mental illness at the time of the offenses.  As a trial
  strategy, counsel argued that petitioner was not the shooter, but the jury
  convicted petitioner of first-degree murder, attempted murder, and
  aggravated assault. 

       ¶  4.  Petitioner's sentencing hearing was held on July 26, 1993
  before Judge Brian Burgess.  At this hearing, counsel noted that petitioner
  continued to maintain his innocence, requested that the court consider the
  fact that petitioner had a very unusual personality, argued that the
  aggravating factor of multiple victims should not apply, and requested that
  petitioner receive the minimum sentence of thirty-five years to life.  The
  court found, as a mitigating factor, that petitioner had no significant
  prior criminal history, but went on to find that this and petitioner's
  unusual personality were outweighed by two aggravating factors-that the
  murder occurred during the commission of a felony and that it was a
  predatory murder.  Petitioner was subsequently sentenced to life
  imprisonment without parole for the murder conviction and two consecutive
  sentences of fifteen-to-twenty years and ten-to-fifteen years for the
  attempted murder and aggravated assault convictions.  This Court affirmed
  those convictions in State v. Washington, 164 Vt. 609, 669 A.2d 550 (1995)
  (mem.). 

       ¶  5.  Three years later, petitioner filed a pro se petition for
  post-conviction relief (PCR) under 13 V.S.A. § 7131 averring that his state
  convictions and sentence were the result of ineffective assistance of
  counsel.  Following this filing, petitioner was assigned PCR counsel, and
  counsel amended the petition. The amended petition alleged that petitioner
  was incompetent to stand trial in 1993 and that, for various reasons,
  petitioner received ineffective assistance of counsel both at trial and at
  sentencing.  Specifically relevant to this appeal, petitioner claimed
  counsel provided ineffective assistance at the sentencing hearing because
  he failed to present character and psychological evidence to show
  additional mitigating factors.

       ¶  6.  In 2001, a six-day PCR hearing was conducted in the
  Chittenden Superior Court.  During the PCR hearing, the court heard
  testimony from several expert witnesses.  Attorney Richard Rubin and
  psychologist Dr. Philip Kinsler testified on behalf of petitioner.  Mr.
  Rubin stated that "the representation Mr. Washington received at sentencing
  amounted to essentially no representation at all."  Dr. Kinsler explained
  that, based on a retrospective review of petitioner's condition conducted
  in 1997, petitioner was not competent to stand trial in 1993 and evidence
  of petitioner's mental disorders could have been presented as a mitigating
  factor at petitioner's sentencing hearing.  The State countered with its
  own experts: attorney Norman Blais and psychiatrist Dr. John Ives.   Mr.
  Blais testified that counsel's representation of petitioner at the
  sentencing hearing was reasonably effective.  Dr. Ives responded to Dr.
  Kinsler's testimony and reiterated his conclusion that petitioner had been
  competent to stand trial.  Considering the case in its entirety, the
  superior court rejected all of petitioner's claims for post-conviction
  relief. This appeal followed.  

       ¶  7.  On appeal, petitioner disputes the court's conclusion that
  petitioner opposed presentation of mental competency information at
  sentencing is not supported by the findings and argues that counsel
  rendered ineffective assistance as a matter of law because he failed to
  offer the mental competency evidence.
        
       ¶  8.  When considering a PCR appeal, we review the superior court's
  findings of fact under the clearly erroneous standard.  In re Dunbar, 162
  Vt. 209, 211, 647 A.2d 316, 319 (1994) (citing State v. Bristol, 159 Vt.
  334, 336, 618 A.2d 1290, 1291 (1992)).  If conclusions follow from the
  findings they must be affirmed.  Id.   To be granted post-conviction
  relief, the petitioner must show "by a preponderance of the evidence that
  one or more fundamental errors rendered his conviction defective."  In re
  Hemingway, 168 Vt. 569, 570, 716 A.2d 806, 809 (1998) (mem.).  Further,
  when petitioner is seeking post-conviction relief based on a claim of
  ineffective assistance of counsel he must demonstrate first "that counsel's
  performance fell below an objective standard of reasonableness informed by
  professional norms" and second, "that counsel's deficient performance
  prejudiced the defense." Dunbar, 162 Vt. at 212, 647 A.2d  at 319 (citing
  Strickland v. Washington, 466 U.S. 668, 687-88 (1984)); see also In re
  Pernicka, 147 Vt. 180, 183, 513 A.2d 616, 618 (1986) (quoting same).  In
  looking at the evidence, we are not permitted to use hindsight to evaluate
  counsel's conduct,  "rather, we must look to whether such decisions were in
  the range of competence demanded of attorneys in a criminal case at that
  time."   In re Mercier, 143 Vt. 23, 31-32, 460 A.2d 472, 477 (1983).   In
  this case, the trial court concluded that petitioner had proved neither
  prong of the ineffective-assistance-of-counsel standard.

       ¶  9.  Petitioner's first argument relates to the court's conclusion
  that petitioner refused to allow counsel to use his mental health as a
  mitigating factor at sentencing.  Petitioner alleges that the conclusion is
  not supported by findings.  During oral argument he added that the
  conclusion is not supported by the evidence.  We reject both contentions.

       ¶  10.  The court's findings stated: "Mr. Washington adamantly
  refused to cooperate in the preparation of any mental health defense,
  either as a defense or in mitigation."  The conclusions reiterated this
  finding, amplifying that the refusal included "mitigation at sentencing." 
  We believe that the conclusion is adequately supported by the finding,
  particularly because the only mitigation opportunity was at sentencing.  In
  any event, the conclusion is itself a finding of fact, valid even if
  mislabeled as a conclusion of law.  In re Hatten, 156 Vt. 374, 378, 592 A.2d 896, 898 (1991).  We also conclude that the finding was supported by
  the testimony of counsel and is entirely consistent with petitioner's
  actions while the criminal case was pending. 

       ¶  11.  For three reasons, we reject petitioner's broader contention
  that counsel rendered ineffective assistance as a matter of law by failing
  to show petitioner's mental health in mitigation of sentence.  All flow
  from the court's conclusion that petitioner refused to allow such evidence
  to be presented.  First, control over whether mental illness could be used
  to reduce sentence properly resided with the client rather than counsel. 
  We held this directly with respect to an insanity defense in State v. Bean,
  171 Vt. 290, 301, 762 A.2d 1259, 1267 (2000).  The Bean rationale also
  applies to sentencing.
        
       ¶  12.  Second, Strickland v. Washington holds that "when a defendant
  has given counsel reason to believe that pursuing certain investigations
  would be . . . harmful, counsel's failure to pursue those investigations
  may not be later challenged as unreasonable."  Strickland, 466 U.S.  at 691. 
  Here, petitioner gave counsel reason to believe that any mental health
  theory would have been harmful to petitioner's brother, and as a result to
  petitioner, because to be effective it would have required that petitioner
  admit that he committed the offense to protect the brother to defeat the
  federal drug charges against him.  Consistent with Strickland, the State's
  expert witness testified that counsel did not render ineffective assistance
  when he followed petitioner's direction not to show his mental health in
  mitigation of sentence.  Thus, even if petitioner did not fully control the
  decision on what mitigation factors to pursue at sentencing, counsel's
  decision to follow his client's direction cannot be found to be ineffective
  assistance as a matter of law.

       ¶  13.  Third, petitioner must prove not only that counsel rendered
  ineffective assistance, but also that there is a "reasonable probability"
  that effective assistance would have produced a different result.  Dunbar,
  162 Vt. at 212, 647 A.2d  at 319.  Although counsel had evidence that
  petitioner's mental condition might have affected his responsibility for
  the crimes, he was far from being able to prove that petitioner's "mental .
  . . condition . . . significantly reduced his ... culpability for the
  murder," the relevant sentence mitigation standard.  13 V.S.A. §
  2303(e)(2).  To demonstrate the applicability of that standard, counsel
  would have needed petitioner's cooperation in a comprehensive mental health
  examination.  As the superior court found, petitioner would not cooperate
  in such an evaluation.  This finding, in turn, supports the superior
  court's conclusion that there is no reasonable probability that pursuit of
  sentence mitigation based on petitioner's mental condition would have made
  a difference in his sentence.

       Affirmed.


                                  BY THE COURT:



                                  _______________________________________
                                  Jeffrey L. Amestoy, Chief Justice

                                  ______________________________________
                                  John A. Dooley, Associate Justice

                                  _______________________________________
                                  Denise R. Johnson, Associate Justice

                                  _______________________________________
                                  Frederic W. Allen, Chief Justice (Ret.) 
                                  Specially Assigned

                                       _______________________________________
                                  Ernest W. Gibson III, Associate Justice (Ret.)
                                  Specially Assigned