Kimball v. State, No. 562-8-08 Wrcv (Eaton, J., Apr . 14, 2010)

[The text of this Vermont trial court opinion is un official. It has been reformatted from the origina l. The accuracy of the text and the accompanying data included in the Vermont trial cou rt opinion database is not guaranteed.] S TATE OF V ERMONT

W INDSOR C OUNTY

, SS

│

Tomas E. Kimball │ │ S UPERIOR C OURT

v. │ Docket No. 562-8-08 Wrcv │

State of Vermont │ │

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

Petitioner Tomas Kimball seeks post-conviction rel ief on the ground that he received ineffective assistance of counsel during h is trial for sexual assault on a minor and furnishing alcohol to a minor. A merits hearin g was held on December 15th and 16th, 2009. Petitioner was present and represented by attorney Melvin Fink. The State of Vermont was represented by State’s Attorney Robe rt Sand. The court makes the following findings of fact and conclusions of law b ased on the credible evidence presented at the hearing.

Findings of Fact

The underlying incident took place in January 2003 . Petitioner was sharing his house with his girlfriend, April Zullo. She invite d a friend of hers named E.D. to come over to the house. E.D. was thirteen years old at the time. The friendship between Zullo and E.D. was based on a prior relationship between Zullo and E.D.’s father.

At the house, petitioner furnished alcohol to E.D. and sexually assaulted her. Zullo participated in the assault by holding E.D.’s hand and touching her vagina. It was not reported at the time.

Some months later, Zullo became pregnant by petiti oner, but they broke up before the child, M.K., was born. Zullo and petitioner th en became embroiled in a bitter custody dispute in New Hampshire. Zullo wanted sole custod y of the child and made a number of accusations against petitioner in connection with t he family court case. Zullo also persuaded E.D. to come forward and speak with polic e about the January 2003 sexual assault. E.D.’s subsequent disclosure, which took place in approximately April 2005, led to the underlying criminal proceedings.

Petitioner was charged in June 2005 with sexual as sault on a minor and furnishing alcohol to a minor. He was represented throughout the proceedings by several different assigned counsel. Attorney Matthew Branchaud took over the case about six months before the jury trial. He had been admitted to pra ctice in 2005, and this was his first jury trial. Another attorney from Branchaud’s office pr ovided some assistance during the first day of trial but was not an active trial participan t.2

Branchaud’s theory of the case was that the allega tion of sexual assault was fabricated by or with the help of Zullo in order to further Zullo’s interests in the childcustody dispute. Zullo was a central figure in the case. She purported to be an eyewitness to the assault as well as a co-perpetrat or. She also had a close relationship

with E.D.

As part of the defense, it was imperative to expla in why Zullo would fabricate the incident. Branchaud’s trial strategy was to show t hat Zullo had gone to great lengths in the past in order to portray petitioner as a sexual deviant and gain an advantage in the family-court case. Specifically, she had accused p etitioner of improperly touching M.K. and expressing sexual desire towards M.K. and other underage children. Zullo had alleged other misconduct as well, and had also enco uraged E.D. to come forward at a late hour to report the sexual assault. Branchaud thoug ht that the jury would see these allegations as incredible and therefore conclude th at Zullo not only fabricated the allegations of sexual assault against E.D., but als o persuaded E.D. to take part in the scheme. The theory was to show that Zullo was maki ng up allegations against petitioner so he would be denied any role in M.K.’s life.

Rather than try to exclude other incidents of misc onduct, Branchaud hoped to implement his strategy by encouraging Zullo to test ify to so many different and outrageous allegations that she lost her credibilit y with the jury. He formulated this strategy with petitioner’s input and assent. Both felt that they could create reasonable doubt about the whole event by discrediting Zullo.

E.D. was the central witness at trial. She descri bed the sexual acts and the furnishing of alcohol. Zullo then testified under a grant of immunity about her role in the incident. Finally, there was another witness, name d Christopher Armstrong. He was a friend of petitioner’s who testified that petitione r had bragged to him about having sex with E.D. Petitioner did not testify in his own de fense.

The jury returned guilty verdicts on both counts o n June 1, 2006. District Court Judge Theresa S. DiMauro presided over the jury tri al.

Petitioner then negotiated a resolution of several pending dockets. The plea agreement contained a waiver of any direct appeal f rom the trial convictions. Petitioner was accordingly sentenced in November 2006 to serve 8 to 20 years on the sexual-assault

conviction. He also received concurrent sentences of 1 to 2 years on the furnishingalcohol conviction and 1 to 5 years on another lewd -and-lascivious-conduct conviction (to which petitioner had pled no contest as part of the global resolution).

Petitioner now claims that he received ineffective assistance of counsel in several respects. He contends that Branchaud failed to (1) interview a witness in a timely fashion, (2) fully pursue past untruthful statement s made by Zullo, (3) object to Zullo’s testimony about petitioner’s sexual misconduct towa rds M.K., (4) object to Zullo’s testimony that she was physically assaulted and per haps raped by petitioner, and (5)3

adequately explain to him what it meant to waive hi s direct appeal of these issues as part of his plea agreement.

Petitioner retained George Ostler, Esq., as an exp ert witness in support of his post-conviction claims. Ostler has extensive exper ience in criminal law. He graduated

from Dartmouth in 1977 and from Vermont Law School in 1983. He has practiced criminal law since his graduation from high school. He mostly does criminal defense work, and the majority of that work is in New Hamps hire.

The state’s expert was former Windham County State’ s Attorney Dan Davis.

Ostler reviewed the trial transcript, the trial co unsel’s file, the pleadings, the transcript of the motion hearings, and a statement made by the witness whom Branchaud allegedly failed to interview (Justin Backus). Ost ler feels that he was able to review what was necessary in order to formulate his opinion tha t errors affecting the outcome of the trial were made in several respects.

One of the charges against petitioner was sexual a ssault. Ostler believes those cases are among the most difficult to try in crimin al law. They are complicated and require a high degree of competence. While not dir ectly stated, Ostler’s testimony can be fairly understood to question the propriety of an a ttorney with no prior jury experience undertaking a sexual assault on a minor trial as hi s first jury case.

Ostler was critical of Branchaud’s performance in some general areas, such as the effectiveness of the opening statement and the clos ing argument. In particular, Ostler was critical of Branchaud’s choice to reference pet itioner’s alleged misconduct with M.K. in the opening statement, and to describe the subsequent medical examination of M.K. as having been “inconclusive.” Ostler felt th at was dangerous. Yet Ostler’s general concerns about these topics fell short of an opinio n that Branchaud’s performance in these areas fell below acceptable professional stan dards.

Ostler delineated five specific areas where felt t hat Branchaud’s trial performance fell below acceptable professional standards, thus rendering petitioner’s assistance of counsel ineffective and affecting the outcome of th e trial. These areas are as follows.

1. Failure to Interview and Call Witness . Zullo testified at trial that one Justin Backus appeared at petitioner’s home on the night i n question, but that petitioner told Backus to leave because petitioner was “about to ge t what he’d always wanted.” Zullo’s testimony was contradicted at trial by E.D., who te stified that she did not see Backus on the night on question. Branchaud pointed out that discrepancy to the jury.

Backus lives in White River Junction and is a long -time friend of petitioner’s. He lived near petitioner and had been to his house man y times. He now says that he was not at petitioner’s house on the night in question. It is unclear, and Backus was not asked, how he could pinpoint the night of the sexual assau lt when the assault itself was not reported until approximately April 2005, almost two and one half years after the incident.4

Branchaud thinks (but is not certain) that he spok e with Backus by telephone during trial preparation. In any event, he recalls that he discussed the possibility of Backus’s testimony with petitioner but that petitio ner was not getting along well with

Backus at the time of trial. The assessment was th at his testimony would not be helpful, so they made a joint decision not to call Backus as a witness.

Petitioner remembers that conversation differently . He agrees that they discussed

Backus but maintains that he wanted to call Backus as a witness.

For his part, Backus denies having been contacted by Branchaud. He did not

attend the trial and he was not called as a witness

.

Petitioner’s mother approached Backus in July 2006 and asked him why he had

not been at the trial. He wrote out a statement fo r petitioner at her request. (P. Ex. 1) In the statement, Backus denies having been at petitio ner’s house on the night in question and having been asked to leave.

Ostler views Backus as a central and important wit ness because he would have contradicted Zullo’s testimony. He believes that B ackus should have been interviewed

and called as a witness. He also believes that wit nesses must be interviewed early while

their memories are fresh, so that it is known what they will say, and so that other possible

leads can be discovered.

Ostler did not comment on the effect of the two-ye ar delay in reporting on his opinion that witnesses must be interviewed early. Nor did he mention that E.D. had directly contradicted Zullo’s testimony by stating that she had not seen Backus on the night in question.

Davis felt that the failure to call Backus made no difference because E.D. contradicted Zullo’s testimony, and Branchaud point ed out the discrepancy to the jury. Moreover, although not noted by Davis, Zullo admitt ed in her own testimony that she had drank alcohol and had possibly been impaired on the night in question. Hence, even without Backus’s testimony, the jury heard at least two reasons why they should question Zullo’s testimony about whether Backus had come to the house.

In the final analysis, the court finds it credible that Branchaud never contacted Backus before trial. This assessment is based upon Branchaud’s own expressed uncertainty, Backus’s testimony, and the fact that there were not any notes in the trial file regarding discussions between Backus and Branchaud.

Yet the court also finds it credible that Branchau d discussed the option of calling Backus with petitioner and petitioner’s mother, and that petitioner agreed that Backus should not be called. Here, the court notes that p etitioner was asked during his Rule 11 colloquy whether he was satisfied with his attorney ’s advice. He had an opportunity then to tell the judge that his attorney had failed to c all an important witness. He did not do5

so. It is inconceivable to the court that petition er would not have told the trial judge that his attorney had disregarded his wishes and failed to call a central witness at his trial.

It follows that Branchaud’s decision not to call Ba ckus as a witness did not fall below the professional standard of care.

2. Failure to Admit Evidence of Zullo’s Prior Fals e Statement . Zullo was convicted in New Hampshire in 2002 for making a fal se statement to police. She had apparently told police that petitioner had threaten ed to shoot someone, and this resulted in petitioner’s arrest. She later recanted. As a res ult, she was charged with and convicted

for unsworn falsification, which is a misdemeanor u nder New Hampshire law. The conviction was subsequently annulled by a New Hamps hire court.

Zullo’s conviction was the subject of a motion in limine in petitioner’s trial. Branchaud argued unsuccessfully that he should be p ermitted to use the conviction under Rule 609 despite its annulment. The trial court ru led that the fact of conviction was

inadmissible under Rule 609 because the conviction was annulled.

Branchaud then argued that the making of the state ment itself was a prior bad act under Rule 404(b). Inexplicably, however, he never argued (except obliquely) that the

false statements themselves were admissible under R ule 608(b), or that the false

statements were admissible as evidence of Zullo’s b ias.

Zullo’s prior statements probably could have come in under Rule 608(b). Branchaud referenced that rule in his presentation to the trial judge but did not put forth a cogent argument as to why the statements were relev ant to the criminal case. Nor did he mention a New Hampshire case by the name of Brown v. Brown , which makes clear that the annulment statute “only extends as far as evide nce of the conviction itself” but does not “prohibit introduction of the underlying facts and circumstances giving rise to the conviction.” 133 N.H. 422, 426 (1990) (citation om itted). Branchaud was not aware of

the Brown decision at the time of trial. Even without regar d to the New Hampshire decision, however, the Vermont Rules of Evidence pr ovide a basis for the use of the previous statements of April Zullo, since those sta tement went to her truthfulness, and

bias.

It is likely that Branchaud was concerned about th e consequences of getting into the actual statements underlying the conviction. D oing so might have opened the door to more discussion about the allegedly domestically vi olent relationship between Zullo and petitioner, and might have led to Zullo testifying about why she made the false statements (she was afraid of petitioner and might have even t estified about actual incidents of prior domestic assault). The trial court cautioned Branc haud against opening these doors.

Of course, it is speculative whether the trial cou rt would have actually admitted the so-called “context evidence” to explain Zullo’s statements, since she was not the

victim of the crime. And even if the “context evid ence” had been admitted, any6

downside would have been tempered by the fact that it was Branchaud’s trial strategy to elicit so many allegations from Zullo that she lost credibility with the jury.

The more important point here is that Branchaud wa s trying to show that Zullo would go to any lengths to harm petitioner. These statements were very relevant for that purpose: they were statements made by Zullo for the specific purpose of getting petitioner arrested.

In the end, Branchaud did not make a forceful argum ent to the trial judge to support the admissibility of the statements as evid ence of bias or as impacting upon Zullo’s credibility. He was too focused on the use of the conviction itself rather than the use of the statements giving rise to the conviction . The conviction itself was beside the point. It should have been enough that Zullo admit ted that she made a false statement against petitioner for the purpose of exposing him to criminal charges. That is what should have been the focus of Branchaud’s arguments . His failure to pursue this more fully was error on his part.

In addition, there may have been an acknowledgment by Zullo of untruthfulness either orally or in a written document at the chang e of plea hearing in New Hampshire. Branchaud never explored whether any such statement existed or whether he could have used it despite the annulment of the conviction.

3. Failure to Object to Testimony About Other Sexu al Misconduct . One of the thorniest issues at trial was the delay between the incident and the reporting. Zullo testified that she encouraged E.D. to report becaus e she had become concerned that petitioner had improperly touched M.K. She said sh e found redness in M.K.’s vaginal area and that this had been investigated by Dartmou th-Hitchcock but that the results had been inconclusive. She also testified that petitio ner made inflammatory statements when he looked at the ultrasound picture of M.K. to the effect that he wanted to have sex with M.K. and her friends when they turned thirteen.

Branchaud purposely did not object to this line of testimony. In fact, he brought some of it out through his own questioning as part of his defense strategy to encourage Zullo to make so many allegations as to seem incred ible to the jury. He wanted to show that Zullo’s motive for all of the sexually-related allegations was to remove petitioner

from M.K.’s life.

Ostler is critical of this strategy and how it was implemented. He believes that this testimony was highly inflammatory and prejudic ial. It was, and it likely would not have come in if objection had been made. See State v. Smith , 2010 VT 15, ¶ 9 (explaining that evidence of uncharged sexual misco nduct in a sexual-assault case is “the most prejudicial evidence imaginable because of its significant potential to alter the jury’s deliberative calculus”) (quoting State v. McCarthy , 156 Vt. 148, 155 (1991)).

A more seasoned attorney might have approached this evidence in a different manner, such as by deciding that the risk of unfair prejudice outweighed the possible7

benefit that the jury might find the testimony incr edible. Or a more seasoned attorney might have avoided word choices like “inconclusive. ”

The defense strategy was questionable for these rea sons, but it did not fall below professional standards. Ostler agrees that it was essential to discredit Zullo, since she was an independent eyewitness whose testimony corro borated E.D.’s. Moreover, the role that Zullo played in encouraging E.D. to report the incident to police was an obvious point of attack for the defense. The infusion of i nflammatory allegations from the childcustody case was part of the effort to create reaso nable doubt. It is plausible that reasonable jurors might have considered the allegat ions about ultrasound pictures and the reported sexual misconduct to be so outrageous as t o be unworthy of belief (especially given their timing and context). If the jurors con cluded that Zullo was willing to lie about such things in order to get petitioner in tro uble and gain an advantage in the childcustody dispute, it would have been a short leap fo r them to believe that the instant allegations were similarly motivated, and hence out rageous and unbelievable.

As Davis opined, it was not unreasonable for Branch aud to determine that he should attack Zullo’s testimony on these points and that he should proceed in the manner that he chose. It does not mean that the strategy was unprofessional if another attorney might have employed a different approach, or if hin dsight reveals that the chosen approach did not pay off.

4. Lack of Objection to Testimony About Past Physi cal Abuse . Zullo testified that she had been physically assaulted by petitioner and that she was “afraid she would wind up dead.” Branchaud objected to the latter stateme nt but not the former testimony. Both experts agreed that the statements were harmful to the defense. It was not necessary to get into these areas in order to effectuate the tri al strategy described above. As Ostler opined, evidence of other assaultive behavior is pr ejudicial in a sexual assault trial, and Branchaud should have objected.

In addition, although not mentioned by the experts, the prosecutor questioned Zullo without objection about whether she had sough t a restraining order in the New Hampshire courts.

It is true that there are sometimes strategic reaso ns not to object, as when an objection would merely highlight particular evidenc e for the jury. But the information concerning past physically-assaultive behavior by p etitioner against Zullo was damaging, and strategic decisions about whether or not to obj ect should not have played any role in relation to this testimony. Branchaud should have objected. He admits that his inexperience played a role in his failure to object in some instances. This appears to have

been one of them.

It is unclear, of course, whether the trial judge w ould have overruled the objection and admitted the evidence as providing context for the relationship between petitioner and Zullo. But at the very least, trial counsel sh ould have made an effort to keep this testimony out of evidence.8 Zullo also testified that she took E.D. home follow ing the sexual assault and that, upon her return, petitioner grabbed her by the thro at. There was no objection to this testimony, but it was a description of the events t hat transpired on the night of the incident and thus it is quite possible that the tes timony would have been allowed even if objection had been made. Branchaud did attempt to discredit Zullo on cross-examination about her fear of petitioner and whether she was re ally grabbed by the throat or not, but this was largely ineffective.

Petitioner also contends that Zullo testified that he had raped her and that Branchaud failed to object to this. A careful revi ew of the trial transcript does not support that contention, however. Zullo testified that petitioner used a condom during times when they were not supposed to be together so that there would be no evidence if she decided to “call rape” on him. Her testimony w as not an accusation of rape that should have drawn an objection from Branchaud.

5. Waiver of Appellate Rights . Petitioner also contends that he was not properl y advised by his attorney concerning his right to app eal before entering into the plea agreement. In essence, he argues that he would not have taken the plea agreement if he had not been convicted (and that he would not have been convicted if he had been properly represented). He also argues that his app ellate rights were not fully explained to him before entering into the plea agreement, and th at his waiver was therefore not knowing and voluntary.

Ostler did not have access to any discussions betw een petitioner and Branchaud concerning the appellate rights, but nevertheless o pines that it was professionally improper for Branchaud not to discuss the strength of a possible appeal and the appellate issues with petitioner. He thinks there were clear appellate issues in this case.

It is beyond dispute that an attorney should expla in the issues on appeal and the strength of those issues in order for a client to m ake an intelligent decision about waiver of appellate rights. Such discussions are clearly necessary. Yet Ostler’s opinion overlooks the fact that petitioner acknowledged in his Rule 11 colloquy that he had reviewed the plea agreement with his attorney and t hat he was satisfied with the advice he received from his attorney before entering into the plea agreement. It also disregards Branchaud’s testimony that appellate issues were di scussed with petitioner before the agreement was reached.

At the time he accepted the plea agreement, there was no agreement as to the sentence on the charges for which he had been convi cted. Petitioner was also facing exposure on another felony charge with the possibil ity of consecutive time to serve. The impact of additional time beyond that agreed to in the plea agreement on the convicted charges as well as the possibility of consecutive time on additional charges must both be considered when calculating the benefits of the ple a agreement.9

It cannot be gainsaid that petitioner received a s ubstantial benefit from the plea agreement. He received a sentence that was far les s than his potential exposure absent the agreement. He waived his appellate rights as p art of that agreement.

Branchaud testified that he discussed the waiver o f appellate rights with petitioner along with other aspects of the plea agreement, and the court finds this to be credible. After conviction, petitioner wanted to get things o ver with. Petitioner says that they discussed appellate issues for only five minutes be fore he accepted the plea agreement, but that is not credible in light of his statements during the Rule 11 colloquy, when he stated that there had been no inability to fully di scuss the issues. He acknowledged on the record that he had the opportunity to review th e plea agreement, and that he was satisfied with the advice of his attorney. The cou rt so finds.

Conclusions of Law

On a petition for post-conviction review, petitione r bears the burden of showing “by a preponderance of the evidence that one or mor e fundamental errors rendered his

conviction defective.” In re Hemingway , 168 Vt. 569, 570 (1998) (mem.). A claim for ineffective assistance of counsel is reviewed by as king first whether “counsel’s performance fell below an objective standard of rea sonableness informed by prevailing professional norms,” and second, whether “counsel’s deficient performance prejudiced

the defense.” In re Dunbar , 162 Vt. 209, 212 (1994) (quoting Strickland v. Washington

, 466 U.S. 668, 687–88 (1984)); In re Russo , 2010 VT 16, ¶ 16.

In assessing whether counsel’s performance fell bel ow an objective standard of reasonableness, the court “is not permitted to judg e from hindsight whether tactical decisions are ultimately successful.” In re Pernicka , 147 Vt. 180, 183 (1986) (quotation omitted). Instead, “[a] fair assessment of attorne y performance requires that every effort be made to eliminate the distorting effects of hind sight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate th e conduct from counsel’s perspective

at the time.” Strickland , 466 U.S. at 689. The ultimate inquiry is whether counsel’s decisions were “within the range of competence dema nded of attorneys in a criminal case

at that time.” Dunbar , 162 Vt. at 212 (quoting In re Mecier , 143 Vt. 23, 31–32 (1983)).

Here, the first impression upon reading the transcr ipt is that many unprofessional errors were committed during the course of the tria l. In particular, there were multiple references to uncharged sexual misconduct of the ty pe that is normally inadmissible at

trial. Cf. State v. Smith , 2010 VT 15, ¶ 9 (mem.) (quoting State v. McCarthy , 156 Vt. 148, 155 (1991)). Even a cursory review of the tra nscript is enough to provoke serious

discomfort.

Yet it was essential for the defense to cast doubt upon the motivations of Zullo and E.D. in reporting the incident to the police. Zullo’s role in encouraging E.D. to report the assault to police officers represented a vulnerable point of the state’s case, since it happened at the time when Zullo had the mo st to gain in her child-custody dispute10

with petitioner. It was reasonable for defense cou nsel to chip away at that link, because doing so held the possibility of discrediting both Zullo and E.D.

The details of this were messy. Zullo encouraged E .D. to report by telling her that petitioner was sexually abusing M.K. and that E.D. needed to come forward in order to prevent further abuse. Zullo drove E.D. to the pol ice station. It was important for defense counsel to bring that out so that the jury would have some reason to believe the defendant’s theory of the case.

Moreover, once some of the allegations were out the re, it was reasonable for defense counsel to attempt to dilute their impact b y encouraging Zullo to make as many outrageous allegations as possible. It is sometime s appropriate strategy to reveal the incredibility of a witness by letting them bluster on the witness stand.

Yet more experienced defense counsel might have dra wn different lines here. It was perhaps possible to gloss over the details of t he child custody dispute and focus on

the fact that Zullo had made false statements to th e police in the past for the purpose of getting petitioner in trouble. Such would have sur ely been the preferable approach if Zullo had been the victim and the only witness. Bu t she was not the only witness, and she was not the victim. Too much gloss here might have left the jury without an explanation for why E.D. would have agreed to fabri cate the allegations. Moreover, it was the very outrageousness of the allegations that could have led the jury to believe that they were fabricated, and that the allegations of s exual assault were part of the same pattern of lies.

On the whole, the trial transcript demonstrates sev eral instances where the inexperience of Branchaud was apparent. In particu lar, the opening statement, the closing argument, and the cross-examination of Zull o were not as effective as they might have been. That being said, the theory of the case was laid out, and the trial strategy was followed during the course of the trial.

In the end, therefore, it was not unprofessional fo r Branchaud to pursue this overall theory of the case, and his choice of defen se strategies did not fall below the standard of professional competence. It follows th at it was not unreasonable for Branchaud to elicit the references and allegations about other sexual misconduct involving M.K. The allegations were certainly infl ammatory, but they were part and parcel of the defense theory of the case: Zullo fab ricated the allegations in order to gain an advantage in her child custody case, and Zullo p ersuaded E.D. to go along with the

story.

Branchaud’s execution of the defense strategy was u nprofessional in other respects, however. He failed to admit evidence of Zullo’s prior false statements, and he failed to object to the references to past physical abuse. These failures fell below the “objective standard of reasonableness informed by p revailing professional norms.” In re

Dunbar , 162 Vt. 209, 212 (1994).11 As a result, the court must consider whether there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland , 466 U.S. at 694. Here, petitioner’s case at the merits hearing largely, if not completely, omitted discussion of t he impact of the testimony of E.D. and Christopher Armstrong on his convictions. As Davis correctly indicated in his testimony, the sexual assault charge did not rise or fall sole ly on the testimony of April Zullo. Rather, the testimony of E.D. and Armstrong provide d very strong evidence for the

state’s case.

First and foremost is that E.D. testified about wha t happened to her. She was in the courtroom and the jury was able to see her. He r testimony was straightforward and descriptive. She offered intimate and painful deta ils about her life, and there was no apparent reason why she would have been fabricating these details at trial. (Her friendship with Zullo had waned by the time of tria l to the point that she no longer had any interest in protecting her or involving herself in the child-custody dispute.) Her testimony was not impeached on cross-examination, a nd the prosecutor emphasized her testimony in the closing argument. It was not at a ll unreasonable for the jury to find her to be a credible witness, and none of the unprofess ional errors affected the weight or impact to be afforded her testimony.

Second, Christopher Armstrong testified that petit ioner bragged to him about having sex with E.D. This was very strong evidence of guilt since it came directly from defendant and corroborated E.D.’s story. By admitt ing to having sex with E.D.,

defendant admitted to all of the essential elements of the offense. It was not necessary to prove lack of consent in this trial, because E.D. w as a minor at the time of the sexual assault. This testimony directly refuted the defen se theory of the case, and there was no showing that Armstrong had any motivation to lie.

It would be one thing to convince a jury that Zull o was being untruthful. It is quite another to convince the jury that Zullo, E.D. , and Christopher Armstrong were all being untruthful. This is especially true where th ere was no apparent reason for the latter two to assist Zullo by testifying falsely at trial.

The failure to admit evidence of Zullo’s prior fal se statements affected only her testimony. For the foregoing reasons, the jury cou ld have entirely discredited Zullo and there still would have been ample evidence to suppo rt a guilty verdict in this case.

The failure to object to references of past physic al abuse presents an overall risk of harm, but it must be weighed in the balance. It was damaging testimony to be sure, but the prejudicial impact of the statements was mi tigated by the fact that defense counsel was actively trying to elicit outrageous statements from Zullo. The impact of additional testimony about the relationship between petitioner and Zullo was very diluted.

At the end of the day, E.D. described the sexual a ssault to the jury. Her testimony was unimpeached by the defense, and it was corrobor ated by petitioner’s own admission of guilt. The petition for post-conviction relief has shown that there were unprofessional12

errors at trial, but the credible evidence did not establish any reason why the jury should have ultimately disbelieved these two witnesses. I t is clear that the jury believed E.D.

Thus, petitioner has proven that his counsel commit ted unprofessional errors at trial, but he has not proven that there is a reason able probability that the result of the proceeding would have been different but for counse l’s unprofessional errors. Strickland

, 466 U.S. at 694. The court must therefore conclude that petitioner has not met his burden of demonstrating that counsel’s performance fell be low an objective standard of reasonableness in such a way as to prejudice the de fense. Dunbar , 162 Vt. at 212.

ORDER

The petition for post-conviction relief is denied

.

Dated at Woodstock, Vermont this ____ day of April , 2010.

_______________________________ Hon. Harold E. Eaton, Jr. Presiding Judge

_______________________________ Hon. William Boardman Assistant Judge (as to facts)