In re Koveos

In re Koveos (2003-488); 178 Vt. 485; 872 A.2d 321

2005 VT 28

[Filed 18-Feb-2005]

                                 ENTRY ORDER

                                 2005 VT 28

                      SUPREME COURT DOCKET NO. 2003-488

                             NOVEMBER TERM, 2004

  In re Emmanuel Koveos	               }	APPEALED FROM:
                                       }
                                       }
       	                               }	Chittenden Superior Court
                                       }	
                       	               }
                                       }	DOCKET NO. S0160-00 CnC

                                                Trial Judge: Dennis R. Pearson

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

       ¶  1.  Petitioner Emmanuel Koveos appeals the superior court's order
  denying his petition for post-conviction relief.  He argues that (1) his
  constitutional right to confront his accusers was violated when his trial
  counsel deposed a witness without his knowledge, presence, or consent, and
  the witness's videotaped deposition provided inculpatory evidence that was
  admitted at trial in lieu of live testimony; (2) his trial counsel's
  performance fell below a standard of reasonable competency and affected the
  outcome of his trial; and (3) he was constructively denied counsel.  We
  find no error and thus affirm the superior court's denial of the petition.

       ¶  2.  Petitioner was charged with lewd or lascivious conduct with a
  child, in violation of 13 V.S.A. § 2602, for molesting a twelve-year-old
  girl, A.M., while giving her and two younger girls a Greek lesson at the
  church where he was a priest.  Before trial, petitioner's trial counsel
  sought to depose the older of the other two girls, K.F., but the child's
  parents filed a motion for a protective order supported by an affidavit in
  which the child's father stated that K.F. had no personal first-hand
  knowledge of any crime that petitioner may have committed against A.M. on
  the day in question.  Eventually, the parties agreed that defense counsel
  could depose K.F. as long as petitioner was not present and a videotape of
  the deposition could be used at trial in lieu of live testimony.  As it
  turned out, during her deposition, K.F. provided testimony that was highly
  favorable to the prosecution.  She stated that she saw petitioner rub
  A.M.'s back and hold her hand before taking her to his office.  She also
  stated that A.M. appeared very nervous and on the verge of tears while the
  touching was taking place, and that both A.M. and her mother were very
  upset and crying in the car on the way home from the lesson.  The State
  commenced its prosecution of petitioner by playing a redacted form of the
  videotaped deposition for the jury.
   
       ¶  3.  Through K.F.'s deposition, petitioner's own statements made
  to police, and the testimony of A.M. and her mother, the State presented
  evidence at trial showing that petitioner rubbed A.M.'s back and held her
  hand in the presence of the other two girls before taking A.M. to his
  office, where he touched her breast, inner thigh, and crotch.  Defendant
  testified at trial that he never touched A.M. with the purpose of
  gratifying himself sexually.  The jury returned a guilty verdict, and this
  Court affirmed the conviction in State v. Koveos, 169 Vt. 62, 732 A.2d 722
  (1999).

       ¶  4.  Following our affirmance of the conviction, petitioner sought
  post-conviction relief, arguing that he had received ineffective assistance
  of counsel at trial.  Petitioner claimed, among other things, that his
  trial counsel failed to protect his constitutional rights in conducting
  K.F.'s videotaped deposition, failed to challenge the State's threat to
  introduce a prior bad act if he put on evidence suggesting that his contact
  with A.M. was a misunderstanding, failed to insist on characterizing a
  prior ceremony conducted for A.M. as an exorcism, failed to preserve issues
  for appellate review, and failed to communicate with his client about trial
  strategy.  The superior court ruled that petitioner's trial counsel had
  acted reasonably in her handling of the prior bad act and exorcism issues,
  and that petitioner had not demonstrated prejudice with respect to his
  trial counsel's failure to communicate with him regarding trial strategy or
  her handling of K.F.'s deposition.

       ¶  5.  On appeal, petitioner first argues that his constitutional
  right to confront the witnesses against him was violated when K.F.'s
  deposition was held without his knowledge, attendance, or consent, and then
  admitted at trial in lieu of the witness's live testimony.  He maintains
  that, before admitting the videotaped deposition into evidence, the trial
  court was required to make findings demonstrating that deposition testimony
  in lieu of live testimony was necessary to protect K.F.  Further, he
  challenges the trial court's finding that no prejudice resulted from his
  trial counsel's handling of K.F.'s deposition.  In so doing, he cites State
  v. Lipka, 174 Vt. 377, 384, 817 A.2d 27, 34 (2002) for the proposition that
  a confrontation clause error resulting in a criminal conviction is
  reversible error only if the reviewing court finds that the error was
  harmless beyond any reasonable doubt.  According to petitioner, placing the
  burden on him to demonstrate prejudice would put him in the impossible
  position of attempting to explain how he would have reacted to a witness if
  he had not been deprived of his constitutional right to confront the
  witness.

       ¶  6.  Petitioner's confrontation clause argument is presented as if
  it were made on direct appeal rather than through collateral attack in a
  PCR petition.  "The standard for showing harmless error on collateral
  review is considerably less favorable to the petitioner than the standard
  applicable on direct review."  Ford v. Curtis, 277 F.3d 806, 809 (6th Cir.
  2002).  Post-conviction relief is not a substitute for appeal, but rather a
  limited remedy requiring petitioner to demonstrate by a preponderance of
  the evidence that fundamental errors rendered his conviction defective.  In
  re Grega, 2003 VT 77, ¶ 6, 175 Vt. 631, 833 A.2d 872 (mem.). 
  Specifically, a petitioner claiming ineffective assistance of counsel has
  the burden of showing, "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."  Id. ¶ 7.  Further, if the
  superior court's "findings are supported by any credible evidence, and the
  conclusions reasonably follow therefrom, this Court will not disturb the
  trial court's judgment."  Id. ¶ 6.  Thus, petitioner is incorrect in
  arguing that he is entitled to post-conviction relief unless we find that
  his trial counsel's shortcomings were harmless beyond a reasonable doubt.
   
       ¶  7.  Instead, we must determine whether the superior court erred
  in concluding that none of the alleged shortcomings in trial counsel's
  performance affected the outcome of petitioner's trial.  The superior court
  concluded that, given petitioner's principal defense strategy of denying
  that anything like what A.M. described actually occurred, defense counsel
  acted reasonably in deciding to pursue K.F.'s deposition.  Indeed, the
  court agreed with the State's expert that it would have been ineffective
  representation for petitioner's counsel not to have pursued K.F.'s
  deposition.  Nevertheless, the court concluded that defense counsel
  provided ineffective representation by failing to fully discuss the
  deposition with petitioner.  The court also stated that defense counsel
  failed to conduct K.F.'s deposition with the understanding that it would be
  preserved for trial, noting that defense counsel failed either to stop the
  questioning once she realized that the evidence would be damaging to her
  client or to ask the court to overturn the parties' stipulation that the
  deposition could be used at trial in lieu of live testimony.  The court
  concluded, however, that exclusion of the videotaped deposition would not
  have affected the outcome of the trial, given the other evidence supporting
  the jury's verdict.

       ¶  8.  The record supports this conclusion.  Without question, 
  K.F.'s videotaped deposition testimony was highly favorable to the State. 
  Not only did the testimony corroborate part of A.M.'s account of what
  happened, but it was elicited by petitioner's own attorney.  As petitioner
  points out, the prosecution itself described the deposition as crucial
  evidence.  On the other hand, although the deposition helped the State by
  generally corroborating A.M.'s story, "it was far from determinative." 
  Koveos, 169 Vt. at 69, 732 A.2d  at 727.  Indeed, K.F.'s testimony did not
  concern the conduct that was the essence of the State's charge.  Id.  K.F.
  may have seen petitioner rub A.M.'s back and characterized this conduct as
  "abuse" because of A.M.'s reaction to it, but she did not observe
  petitioner touch the victim's inner thigh or crotch because she was not
  present in petitioner's office when that conduct allegedly occurred.

       ¶  9.  Moreover, in contrast to the limited nature of K.F.'s
  testimony, the other evidence supporting petitioner's conviction was
  substantial.  A.M. herself testified in great detail about the abuse. 
  Further, A.M.'s account was corroborated by her mother's testimony
  concerning A.M.'s excited utterances shortly after the alleged abuse took
  place.  A.M.'s account was also corroborated in part by petitioner's own
  statements through the testimony of an investigating police officer and a
  letter of apology written by petitioner.  Given this other evidence, we
  decline to overturn the superior court's conclusion that, even discounting
  K.F.'s deposition, the jury was likely to have reached the same verdict. 
  As the trial court found, defense counsel acted reasonably in seeking to
  depose K.F. under the circumstances, and petitioner failed to make any
  proffer as to what he would have done, and how that would have affected the
  outcome of his case, had he been notified of his attorney's intention to
  depose K.F.  Once it became clear that K.F. had inculpatory evidence to
  give, that evidence was going to come in one way or another.  While it may
  have been more damaging to petitioner for the evidence to be presented
  through the direct questioning of his own attorney, petitioner has failed
  to demonstrate by a preponderance of the evidence that the outcome of the
  trial would have been different absent the deposition.
       
       ¶  10.  Next, petitioner argues that his trial counsel's failure to
  keep him informed of several important developments during trial warrants
  post-conviction relief.  Specifically, petitioner refers to his attorney's
  failure to communicate with him about K.F.'s deposition, his "cultural
  misunderstanding" defense, and A.M.'s previous exorcism ceremony.  We have
  already concluded that the superior court did not err in ruling that
  petitioner failed to show actual prejudice as the result of the handling
  and admission of K.F.'s deposition without his knowledge, participation, or
  consent.  As for the other two instances cited by petitioner, the court
  assumed for purposes of argument that petitioner's trial counsel failed to
  communicate with petitioner, but nevertheless concluded that any failure to
  communicate did not make a difference in the outcome of the trial. 
  Regarding A.M.'s previous "exorcism" ceremony, petitioner complains that
  his trial counsel should have conferred with him before abandoning the
  position that the exorcism ceremony showed the tendency of A.M.'s parents
  to overreact to situations.  Petitioner fails, however, to cite any
  evidence that would support characterizing the ceremony, which was intended
  to help A.M. through difficult times at school, as an exorcism rather than
  a blessing.  In any event, the probative value of labeling the ceremony as
  an exorcism is minimal with respect to the charged crime.

       ¶  11.  Regarding the "cultural misunderstanding" defense, apparently
  petitioner and his attorney contemplated establishing the defense that his
  contact with A.M. was a misunderstanding stemming from his "touchy-feely"
  Mediterranean cultural heritage rather than his desire to gratify himself
  sexually.  The State filed a notice of intent to introduce evidence of a
  prior bad act concerning a 1988 incident in which petitioner had allegedly
  sexually assaulted a woman seeking pastoral counseling.  Petitioner sought
  to exclude the evidence through a motion in limine, which the trial court
  granted.  The court warned petitioner, however, that it would reconsider
  its ruling should he raise the issue of intent or mistake during trial.  At
  trial, defense counsel sought to introduce testimony suggesting that the
  touching incident was a misunderstanding due to cultural differences. 
  Defense counsel asked the trial court in advance if the introduction of
  such testimony would open the door for the State to introduce evidence
  concerning the 1988 incident.  The court indicated that it would, and
  defense counsel abandoned this approach, presumably without consulting with
  petitioner.  Petitioner claims that if his counsel had consulted with him,
  he could have told her that the woman who accused him of sexual assault
  years earlier was a heroin addict and not credible.  At the PCR hearing,
  notwithstanding its presumption that defense counsel failed to communicate
  with petitioner about the matter, the superior court concluded that defense
  counsel acted reasonably in not risking introduction of the prior bad act,
  which would have been devastating evidence against petitioner in this case. 
  This reasoning is sound, and petitioner has failed to provide any basis for
  questioning it.
        
       ¶  12.  Finally, petitioner briefly argues that the trial court
  should have presumed prejudice in this case because he was constructively
  denied counsel at trial.  We find no constructive denial of counsel.  As
  the superior court noted, petitioner faced a significant dilemma in that
  his best defense risked the introduction of devastating evidence against
  him-the prior sexual assault.  Nonetheless, his trial counsel
  cross-examined the State's witnesses, called him to testify in his own
  defense, and raised a reasonable defense under difficult circumstances.  We
  find unavailing petitioner's reliance on Powell v. Alabama, 287 U.S. 45, 58
  (1932), in which the United States Supreme Court presumed, without
  examining the attorney's performance at trial, that the defendants were
  deprived of their right to counsel.  In that case, the young and illiterate
  African-American defendants were accused of raping two Caucasian girls in
  Alabama in 1931.  At the defendants' arraignment, the trial judge appointed
  all of the members of the local bar to represent them, but it was not until
  the very morning of the one-day trial, which resulted in death sentences
  for the defendants, that an out-of-state lawyer who had not been able to
  prepare for the case was definitely designated to represent the defendants. 
  The situation in this case is plainly not comparable.  Because petitioner
  was unable to show a reasonable probability that his trial counsel's
  shortcomings affected the outcome of his trial, the superior court properly
  denied his petition for post-conviction relief.  See Grega, 2003 VT 77, ¶
  7 (unless petitioner is able to satisfy both prongs of test for
  demonstrating ineffective assistance of counsel, it cannot be said that
  conviction was unreliable due to breakdown in adversarial process).

       Affirmed.


                                       BY THE COURT:


                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Paul L. Reiber, Associate Justice

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

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