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In re O'Dell

Supreme Court of Vermont

January 9, 2015

In re Donald R. O'Dell, Jr

Editorial Note:

This decision has been designated as "Supreme Court of Vermont Appeals Disposed of Without Published Opinion or Memorandum Decision." table in the Atlantic Reporter

Appeal from: Superior Court, Benn. Civ. Division. DOCKET NO. 500-12-11 Bncv. Trial Judge: John P. Wesley.

Dooley, Robinson, and Eaton, Jr., J.J.


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, 22 A.3d 1179, 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 days when you told us ...

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