Does a Felon Go Free if His Lawyers Don’t Hire a Firearms Expert
Does a Felon Go Free if His Lawyers Don’t Hire a Firearms Expert?
Vito Russo was convicted of aggravated assault and sentenced to 12-15 years in prison.
Victim testified that Russo pointed a rifle at him, so he jumped in his truck and drove away. Russo followed, driving a stick shift car and fired several shots at victim. No bullet holes were found in victim’s truck and he was not injured. Victim testified he saw muzzle flashes in his rear view mirror indicating the rifle was fired in his direction. Police arrested Russo. The police found a .22 cal bolt action rifle with a chambered expended cartridge and shell casing in Russo’s car. They did not test the rifle to see: (1) if it could be fired, or (2) had been fired recently, or (3) whether it caused muzzle flashes or (4) whether an observer could determine the direction of aim from a muzzle flash. Nor did the police test Russo for powder residue.
The muzzle flash evidence was the only proof of the required element that Russo intended to harm Victim. Although the State did not ask the police if it would be possible to see muzzle flashes and determine whether the rifle was pointed at owner, Russo’s attorney did. The police officer then confirmed that one could see a muzzle flash and determine the direction of aim.
Russo sought Post Conviction Relief (PCR) on the grounds he had ineffective assistance of counsel at trial. To succeed in PCR, Russo had to prove that if trial counsel had not made mistakes that a reasonably competent attorney would not have made, the outcome would be “reasonably likely” to be different. Competent counsel would not have asked the officer about the muzzle flashes which, in effect, made the state’s case. Further, counsel was ineffective in not hiring a firearms expert to do the investigation the police should have done.
Because the Bureau of Alcohol, Tobacco and Firearms took custody of the rifle and refused to release it for testing because the barrel was sawed off and it was illegal and dangerous, the PCR attorney then had experts test various other weapons and determined there were no muzzle flashes, and testified that in any event, it would be impossible to tell from a muzzle flash where the weapon was aimed. The trial court held this evidence supported a finding original trial counsel was ineffective. A new trial was ordered. The State appealed to the Supreme Court.
Three Justices (Reiber, Johnson and Skoglund) agreed with the trial court. They ruled proof of intent of harm was critical, and Russo’s own lawyer brought out the corroborating police testimony about the muzzle flash. Moreover, a competent trial attorney would retain experts to show poor police work; to test the weapon when it was available; and to provide testimony contradicting Victim about directional muzzle flashes.
Justices Burgess and Dooley dissented. Russo did not meet the test for PCR relief. All his attorneys had to do was get the actual rifle and test it for operation and muzzle flashes. (Were they incompetent?) Instead his attorneys relied on inconclusive tests on other guns and speculated about a different result. Hence they did not meet the standard for relief.
A close case with the majority justices giving Russo the benefit of the doubt. Will the rifle be produced at the new trial? In Re Russo 2010 VT 16
