“We Are Not Moved”

The Vermont Supreme Court affirmed a finding of ineffective assistance of counsel for failure to seek an instruction in a secnd-degree murder trial

Considering the evidence before the PCR court and the exacting standard of proof the State faced with respect to every element of the crime of second-degree murder, we conclude that the PCR court did not err in concluding that if defense counsel had sought proper jury instructions in this case there is a reasonable probability of a different outcome. The State is right that some physical evidence—a voicemail message on complainant’s answering machine, observations of disinterested witnesses, and the observations of the police who responded to the scene—corroborated much of the complainant’s testimony and undermined petitioner’s. The jury clearly disbelieved petitioner’s story of self-defense and concluded that he intentionally attempted to kill complainant by stabbing her. The omitted jury instructions would not have affected the jury’s conclusion on these points, and petitioner did not argue otherwise. Even with respect to the question of provocation, the volume of evidence corroborating complainant’s broader narrative calls into doubt whether the jury would have believed petitioner with respect to the evidence of provocation in the face of complainant’s contrary testimony.

But we conclude that the PCR court’s findings of fact were not clearly erroneous, and its legal conclusions are supported by the evidence and findings, for three reasons. First, the  error in this case removed from the jury’s consideration an essential element of the second-degree murder charge. Second, the existence of that element was supported by substantial evidence. Third, the State’s burden of proof on this element was high. The fact that, to acquit of attempted second-degree murder and convict petitioner of voluntary manslaughter, the jury would have had to credit portions of petitioner’s testimony while rejecting most of it does not undermine our conclusion…

We are not moved in this case by the State’s argument that a finding of prejudice is unreasonable because an acquittal on the charge of attempted second-degree murder and conviction for voluntary manslaughter would have required the jury to credit some of petitioner’s trial testimony, while rejecting most of it. As the PCR court noted, juries routinely accept and reject portions of testimony in determining what actually happened. This is sufficient to undermine confidence in the outcome of the trial.

(Mike Frisch)