In re Thomas S. Sharrow
On
Appeal from Superior Court, Chittenden Unit, Civil Division
Helen M. Toor, J. (motion for summary judgment); Robert A.
Mello, J. (final decision on merits)
Paul
Volk of Blodgett, Watts & Volk, P.C., Burlington, for
Petitioner-Appellee.
David
Tartter, Deputy State's Attorney, Montpelier, for
Respondent-Appellant.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll,
JJ.
ROBINSON, J.
¶
1. At issue in this post-conviction relief (PCR) appeal is
whether petitioner was prejudiced as a result of
counsel's ineffective assistance in his underlying trial.
The PCR court vacated petitioner's conviction of
attempted second-degree murder on the basis of ineffective
assistance of counsel. In particular, the PCR court concluded
that petitioner's trial counsel fell below the standard
of accepted practice in Vermont by failing to object to jury
instructions that did not require that the State prove the
absence of passion or provocation in order to convict for
attempted second-degree murder and did not include attempted
voluntary manslaughter as a lesser offense. On appeal, the
State does not challenge the PCR court's conclusion that
counsel was ineffective in petitioner's underlying
criminal trial, but argues that petitioner was not prejudiced
by the ineffective assistance. We affirm.
¶
2. After an evidentiary hearing, the PCR court found the
following facts. In the underlying criminal trial,
complainant and petitioner presented different accounts of
the incident that led to petitioner's conviction.
According to complainant, she and petitioner began living
together in January 2003. After a couple of months,
petitioner started to abuse her. There were several abusive
instances between March and September 2003. The police were
called on several occasions and petitioner was told to leave
multiple times, however the two always got back together.
Complainant testified that on October 4, 2003, petitioner
visited her at her home while she was sick. When she said
something that angered him, petitioner began assaulting
complainant. Complainant started screaming, and the neighbors
came to her aid. Complainant left with the neighbors to call
the police and petitioner left the premises. Later that
night, sometime after midnight, petitioner reentered
complainant's house through the window. He threatened to
kill her for calling the police earlier in the day, punched
her, and began to strangle her. He then went to the kitchen
and retrieved one or more knives and continued the assault.
Upon hearing complainant screaming, the neighbors again
called the police, who arrived and arrested petitioner at the
house. Complainant had multiple knife wounds to her head,
neck, arm, and back, most of which were superficial but at
least one of which was potentially life threatening.
¶
3. Petitioner's retelling was starkly different.
Petitioner testified that complainant drank often and was
frequently abusive while drunk. For example, on prior
occasions she had sprayed him with mace, and a couple of
weeks before the October 4 incident, complainant hit
petitioner over the head with a cutting board. Petitioner
admitted entering through the window on October 4 but claimed
he did not intend to kill complainant. According to
petitioner, he found complainant shaking, upset, and holding
a knife with the blade up. Because she had tried to
"take [his] head off with a cutting board" the week
before, and because he "didn't want to get stuck
with the knife, " he grabbed hold of complainant's
wrist. The two struggled violently as he tried to get her to
drop the knife. Petitioner claimed that the knife remained in
complainant's hand throughout the struggle, and that he
did not realize she had been cut by the knife during the
struggle. He explained that, after he succeeded in getting
complainant to drop the knife, he went into the kitchen,
grabbed his keys to leave, and saw a butterfly knife on the
counter. He explained that he grabbed the knife "out of
instinct" because he wasn't in his "right
mind" and because he did not want complainant to use the
knife on him as he left. He testified that he never touched
her with that knife. Police arrested petitioner on the porch
as he left the apartment. He had the butterfly knife hidden
in his sleeve and a small cut between the fingers of his
right hand.
¶
4. In closing argument in the underlying criminal trial, the
State argued that petitioner, angry that complainant had
called the police the evening before, broke into her
apartment and repeatedly stabbed her in a deliberate and
premeditated attempt to kill her. The State asked the jury to
return a verdict of attempted first-degree murder. Defense
counsel argued that petitioner acted in self-defense and that
the stab wounds complainant sustained were the unintended
result of a violent struggle that took place after she came
at him with a knife.
¶
5. The sentencing court instructed the jury on attempted
first-degree murder, attempted second-degree murder, and
aggravated assault, as well as self-defense. Earlier drafts
of the trial court's proposed jury charge included
instructions on attempted voluntary manslaughter, but the
court's final instructions did not include this lesser
offense, and the court's instruction on attempted
second-degree murder did not inform the jury that the State
had the burden of proving beyond a reasonable doubt that
petitioner had not acted out of passion or provocation. The
sentencing court explained that the evidence did not support
such instructions. Defense counsel did not object to the
instructions. The jury acquitted petitioner of attempted
first-degree murder and convicted him of attempted
second-degree murder. He is currently serving a sentence of
twenty years to life.
¶
6. On the basis of these and other findings, the PCR court
concluded that petitioner's counsel did not meet the
professional standard in Vermont.[1] The PCR court concluded that
there was sufficient evidence presented at trial to warrant
an instruction on attempted voluntary manslaughter and the
absence of provocation.[2] "Where passion or provocation is
implicated, the court must instruct the jury that to
establish murder the State must prove beyond a reasonable
doubt that the accused did not kill under the influence of
passion or provocation." State v. Hatcher, 167
Vt. 338, 345-46, 706 A.2d 429, 433 (1997). The PCR court
concluded that petitioner's testimony that complainant
had been drunkenly abusive toward him in the past, that she
had recently hit him over the head with a cutting board, and
that she had been upset and holding a knife on the night of
the incident could support a finding that petitioner acted
out of provocation, warranting the instructions for both the
absence of provocation and attempted voluntary manslaughter.
The PCR court acknowledged that the main defense strategy at
trial was self-defense, but concluded that in this case there
was no strategic or tactical reason not to insist that the
jury instructions include the absence-of-provocation element
of second-degree murder and the lesser offense of voluntary
manslaughter in order to minimize an adverse verdict in the
event that the jury rejected petitioner's claim of
self-defense.
¶
7. The PCR court further concluded that petitioner was
prejudiced by counsel's errors in that there was a
substantial likelihood that, had the jury been given the
proper instructions, it would have acquitted petitioner of
attempted second-degree murder and returned a verdict for
attempted voluntary manslaughter. The court recounted the
testimony of petitioner's expert, who opined that the
jury's acquittal of petitioner of attempted first-degree
murder suggests that the jury accepted the State's
evidence that petitioner had assaulted complainant with a
knife for the purpose of killing her, but that the jury was
unpersuaded by the State's evidence of premeditation and
was inclined by the evidence to reduce petitioner's
culpability for the assault. In reaching its conclusion, the
PCR court found that given petitioner's testimony about
his history with complainant and how the encounter unfolded,
the jury could have had a reasonable doubt on the issue of
provocation, which was an essential element of the attempted
second-degree murder offense. It further noted that by
acquitting petitioner of first-degree murder, the jury
rejected the State's claim that petitioner had acted with
premeditation. Finally, it emphasized the State's
extremely high burden of proving absence of provocation
beyond a reasonable doubt. The PCR court rejected the
State's argument that, because neither the State's
narrative nor petitioner's would have supported a
conviction for voluntary manslaughter, it would have been
unreasonable for a jury to accept and reject pieces of both
complainant's and petitioner's testimony in order to
convict on the lesser charge; the court concluded that juries
routinely sift through the evidence, accepting some of what
each witness says as true and rejecting other parts of their
testimony as unreliable.
¶
8. On appeal, the State challenges the PCR court's
conclusion that petitioner was prejudiced as a result of the
ineffective assistance of counsel at his criminal trial. The
State's argument has two components: one legal and one
evidentiary. First, the State contends that the trial court
failed to apply the proper standard because the measure of
prejudice in ineffective assistance claims is almost
indistinguishable from a more-probable-than-not standard. The
State rests this argument on a statement by the U.S. Supreme
Court that the difference between the applicable prejudice
standard and a more-probable-than-not standard "is
slight and matters 'only in the rarest case.' "
Harrington v. Richter, 562 U.S. 86, 111-12 (2011)
(quoting Strickland v. Washington, 466 U.S. 668, 693
(1984)). The State's evidentiary argument is that the PCR
court's analysis, and the expert testimony on which it
was based in part, failed to properly weigh all of the
evidence in the underlying trial contradicting
petitioner's testimony and corroborating
complainant's, and assigned undue significance to the
jury's acquittal on the attempted first-degree murder
count. We reject both arguments.
¶
9. With respect to the legal standard for measuring
prejudice, we conclude that the touchstone is whether the
error undermined confidence in the outcome of the criminal
trial. The U.S. Supreme Court discussed the standard for
evaluating prejudice in an ineffective assistance of counsel
claim at length in Strickland v. Washington, 466
U.S. at 691-96. Recognizing that even a professionally
unreasonable error by counsel does not warrant setting aside
a criminal conviction if the error had no effect on the
judgment, the Supreme Court considered the proper test for
determining whether ineffective assistance of counsel
warrants vacating a criminal conviction. Id. at
691-92. The Court recognized that "[i]t is not enough
for the defendant to show that the errors had some
conceivable effect on the outcome of the proceeding, "
but also emphasized that "a defendant need not show that
counsel's deficient conduct more likely than not altered
the outcome in the case." Id. at 693.
Acknowledging the advantages of an outcome-determinative
standard, the Court concluded that such a standard was not
appropriate. Id. at 693-94. Comparing the standard
of prejudice for ineffective assistance of counsel claims to
that applicable to newly discovered evidence, the Supreme
Court explained that the finality concerns are weaker in the
former because ineffective assistance of counsel compromises
one of the crucial assurances that the result of a proceeding
is reliable; accordingly, the Court explained that the
appropriate standard of prejudice in ineffective assistance
claims should be somewhat lower. Id. at 694. The
relevant question is whether there is "a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different." Id. "A reasonable probability
is a ...