Mark J. Theriault v. State of Maine ( 2015 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2015 ME 137
Docket: Aro-14-158
Argued: December 9, 2014
Decided: October 29, 2015
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.
Majority: SAUFLEY, C.J., and MEAD, GORMAN, JABAR, and HJELM, JJ.
Concurrence: SAUFLEY, C.J.
Dissent: ALEXANDER, J.
MARK J. THERIAULT
v.
STATE OF MAINE
HJELM, J.
[¶1] After a jury trial held in February 2011, Mark J. Theriault was
convicted of one count of unlawful sexual contact (Class A), 17-A M.R.S.
§ 255-A(1)(F-1) (2014). Theriault challenged the judgment through a petition for
post-conviction review, see 15 M.R.S. § 2122 (2014), alleging that he was denied
effective assistance of counsel during the underlying criminal proceeding. The
Superior Court (Aroostook County, Hunter, J.) denied Theriault’s petition after a
hearing, and we issued a certificate of probable cause, allowing Theriault to appeal
the adverse post-conviction judgment. See 15 M.R.S. § 2131(1) (2014); M.R.
App. P. 19. Because the court’s decision applied a test for prejudice that did not
fully comport with the standard established in Strickland v. Washington,
2
466 U.S. 668 (1984), we vacate the post-conviction judgment and remand for
reconsideration.
I. BACKGROUND
[¶2] We view the record of both the post-conviction proceeding and the
underlying criminal action in the light most favorable to the State as the prevailing
party. See Lamarre v. State, 2013 ME 110, ¶ 2, 82 A.3d 845. Theriault was
indicted in July 2008 for unlawful sexual contact committed in March 2008 against
a child who, at the time of the offense, was six years old. Attorney Allan Hanson
was appointed to represent Theriault, and the case proceeded to a one-day jury trial
in February 2011 (Aroostook County, Hunter, J.). The State presented the
testimony of three witnesses: the victim’s sister, a registered nurse who spoke with
the victim at a local hospital after the victim’s mother brought her there on the day
of the incident, and the victim herself.
[¶3] The victim’s sister, who was twenty-two years old at the time of the
trial, testified that in March 2008, she lived with the victim and their brother,
mother, and stepfather, near Theriault’s residence. On March 14, 2008, Theriault
drove her and the victim to a nearby store, and Theriault invited them back to his
house. The sister refused, but the victim went with him. Later in the day, the
victim returned home with wet hair and said that she had taken a bath. When the
sister asked about the wet hair, the victim became quiet. That evening, the sister
3
asked if Theriault had seen the victim naked and if Theriault had touched her
“down there,” referring to the victim’s genitals. Becoming emotional, the victim
said that he had seen her naked and touched her. The sister, who acknowledged
that she is not trained to interview children, testified that as she spoke with the
victim, she (the sister) first referred to the genital area as “down there,” and first
raised the issue of whether the victim and Theriault were naked.
[¶4] The victim’s sister reported the disclosure to their mother, who then
drove the victim and the sister to a nearby hospital. The victim and the sister
continued to discuss the assault during the ride. At the hospital, the victim was
examined by a registered nurse who was trained to assist physicians with primary
assessments of sexual assault victims younger than thirteen years old. During the
evaluation, the victim told the nurse that after she had taken a bath, Theriault called
her into the living room and touched her over her clothing “down there,” which the
victim identified by pointing toward her genitals. The nurse examined the victim
and found no physical injury resulting from the alleged assault, which, based on
the reported nature of the assault, was not unexpected. The nurse ultimately
referred the victim for a forensic evaluation at The Spurwink Child Abuse
Program, which specializes in pediatric sexual abuse assessments and interviews.
No evidence was presented about the Spurwink evaluation.
4
[¶5] The victim then testified that in March 2008, when she was six years
old, she went to Theriault’s residence, and, while there, she took a bath. After she
got dressed, and while she was using a PlayStation video game, Theriault told her
to go into his bedroom, where he removed her clothes, told her to lie down on the
bed, and touched her genitals, penetrating her with his fingers.
[¶6] Theriault did not present a case-in-chief. The jury found him guilty,
and at a sentencing hearing held two days later, the court imposed a prison term of
sixteen years, with all but eight years suspended, and six years of probation.
Attorney Hanson filed a notice of appeal and an application for leave to appeal the
sentence. See 15 M.R.S. § 2151 (2014); M.R. App. P. 20. Theriault’s current
attorney entered his appearance soon after, and Attorney Hanson withdrew as
counsel. We denied Theriault’s application to allow an appeal from sentence, and
in August 2011 we dismissed his direct appeal for want of prosecution.
[¶7] In August 2012, Theriault filed a petition for post-conviction review,
which, as amended in May 2013, alleged that Attorney Hanson failed to provide
effective representation during the pretrial and trial proceedings.1 A trial on the
post-conviction petition was held in September 2013, at which Attorney Hanson
and Theriault both testified. During the hearing, the court admitted into evidence a
1
Theriault also attempted to pursue a claim of ineffective assistance of counsel through a motion for
new trial. See M.R. Crim. P. 33 (superseded by M.R.U. Crim. P. 33 (effective Jan. 1, 2015)). The court
correctly denied the motion, because such a claim must be addressed in a post-conviction proceeding. See
State v. Ali, 2011 ME 122, ¶ 20, 32 A.3d 1019.
5
report of the psychosocial evidentiary assessment conducted by a licensed clinical
social worker at the Spurwink Child Abuse Program. The report states that during
the forensic interview of the victim conducted on March 25, 2008, “When asked if
somebody had done something to her that she does not like, [the victim] stated,
‘No.’” Additionally, the report recites, “When asked if [Theriault] does something
that she does not like, she stated, ‘Hmmm, no.’” According to the report, the
victim also initially denied that anything had happened “to her privates.” She then
agreed that someone had touched her “privates” and, in response to a series of
questions, described at least one incident when Theriault sexually assaulted her.
[¶8] After the parties submitted post-trial arguments, on March 11, 2014,
the court issued a written decision denying the petition, concluding that its
“analysis of the prejudice prong is determinative of this petition.” In its order, the
court outlined the two-part test that controls claims of ineffective assistance of
counsel, which focuses on the quality of trial counsel’s performance and any
resulting prejudice. Addressing the issue of prejudice, the court stated generally,
“If a post-conviction petitioner proves ineffective assistance, he must also
demonstrate that the outcome of the proceedings would have been different but for
counsel’s performance.”
[¶9] The court then proceeded to address many of Theriault’s specific
challenges to the quality of Attorney Hanson’s representation of him, finding in
6
each instance that Theriault had not demonstrated prejudice resulting from
Attorney Hanson’s allegedly inadequate representation of him. In a number of its
findings, the court framed the issue of prejudice in terms of whether, if Attorney
Hanson had performed as Theriault contended he should have, there would have
been a different outcome in the criminal trial. The court found, for example, that
• Theriault failed to prove that services of a private investigator, which
Attorney Hanson did not secure, “might have produced a different
outcome at his trial” or would have made a “difference in the outcome of
this case”;
• Theriault did not prove that Attorney Hanson’s failure to consult with an
expert on child interview issues “would have produced a different
outcome at trial”;
• Theriault did not prove that evidence of Theriault’s character, which
Attorney Hanson did not present, “would have made a difference at his
trial”;
• Theriault failed to prove that if he had testified, “the outcome of his trial
would have been different”; and
• Theriault did not prove that, with additional information presented at the
sentencing hearing, “the court’s sentence might have been different.”2
[¶10] The court also considered Theriault’s claim that Attorney Hanson did
not present available evidence that Theriault did not have a PlayStation at his
house, to impeach the victim’s testimony that she was playing with a PlayStation at
2
Although Theriault’s post-conviction petition alleged deficiencies in Attorney Hanson’s pretrial and
trial representation, he presented evidence at the hearing that Attorney Hanson also did not provide
effective representation during the sentencing phase of the case, and the court examined that claim. It
therefore became part of the basis for Theriault’s claim for relief.
7
his house shortly before he assaulted her. The court rejected this claim, noting that
at trial Attorney Hanson presented evidence that the victim told the nurse that
Theriault had touched her over her clothing, which was inconsistent with the
victim’s trial testimony that she was not wearing clothes at the time of the assault.
The court found that because the jury appears to have accepted the victim’s
testimony despite her contradictory statements about the incident itself, evidence
that Theriault did not have a PlayStation was not “likely to have produced a
different result.” In its order, the court did not address Theriault’s argument that
Attorney Hanson should have presented evidence of the victim’s exculpatory
statements made during the Spurwink evaluation to impeach her inculpatory trial
testimony.
[¶11] Without reaching the question of whether Attorney Hanson’s
representation of Theriault was constitutionally deficient, the court denied the
petition based on its conclusion that Theriault “has failed to persuade this court that
he was actually prejudiced by any such deficiencies.” Theriault successfully
sought leave to appeal the judgment pursuant to 15 M.R.S. § 2131(1) (2014) and
M.R. App. P. 19.
II. DISCUSSION
[¶12] Because the court denied Theriault’s petition for post-conviction
review on the sole basis that he had not proved prejudice arising from any
8
constitutional inadequacies in legal representation, the limited issue presented here
is whether the court erred in that determination. In appeals from judgments issued
in post-conviction proceedings, we review questions of law de novo and apply a
deferential standard of review to factual findings. Roberts v. State, 2014 ME 125,
¶ 21, 103 A.3d 1031.
[¶13] As we have recently noted, Strickland is the “seminal case” that
establishes the standards controlling the disposition of claims of ineffective
assistance of counsel. Manley v. State, 2015 ME 117, ¶ 12, --- A.3d ---.3 The
federal constitutional guarantee of the right to counsel under the Sixth Amendment
extends to the states through the Fourteenth Amendment, Missouri v. Frye,
566 U.S. ---, 132 S. Ct. 1399, 1404 (2012), and so the Strickland standards govern
ineffectiveness claims in state court post-conviction proceedings.
[¶14] To prevail in a post-conviction proceeding based on an alleged
constitutional deprivation of counsel, the petitioner must demonstrate two points:
first, “that counsel’s representation fell below an objective standard of
reasonableness,” and second, that “errors of counsel . . . actually had an adverse
effect on the defense.” Strickland, 466 U.S. at 688, 693. These elements of an
ineffective assistance case, when proved, constitute a “showing that counsel’s
3
In Manley, we reaffirmed that Strickland v. Washington, 466 U.S. 668 (1984), dispositively
establishes the criteria in ineffectiveness claims, including the nature of prejudice that the petitioner must
establish, despite language in some of our opinions that is not fully consistent with that federal authority.
Manley v. State, 2015 ME 117, ¶ 18, --- A.3d ---.
9
errors were so serious as to deprive the defendant of a fair trial, a trial whose result
is reliable.” Id. at 687. It is the second of these two elements that is at issue here.4
[¶15] We consider in turn Theriault’s alternative arguments that he was
presumptively prejudiced by Attorney Hanson’s ineffective representation, and that
the court erred in finding that he had not proved actual prejudice.
A. Presumed Prejudice
[¶16] Theriault first argues that Attorney Hanson’s representation was so
deficient that he is relieved of any burden to prove actual prejudice. Theriault did
not advance this argument in the trial court, and so we review it under the obvious
error standard. See State v. Dolloff, 2012 ME 130, ¶ 31, 58 A.3d 1032. An error is
obvious if it is plain, affects substantial rights, and “seriously affects the fairness
and integrity or public reputation of judicial proceedings.” Id. ¶ 35 (quotation
marks omitted).
[¶17] In cases where counsel’s ineffectiveness amounts to the “constructive
denial of the assistance of counsel,” prejudice is “legally presumed” and need not
4
Both federal and state law make clear that if a trial court concludes that the petitioner has not proved
prejudice resulting from any alleged ineffectiveness, the court is entitled to deny the petition on that basis
without reaching the question of whether the petitioner has also proved that ineffectiveness. See, e.g.,
Strickland, 466 U.S. at 697 (“[A] court need not determine whether counsel’s performance was deficient
before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed.”); Francis v. State, 2007 ME 148, ¶ 6,
938 A.2d 10. Here, the court therefore followed a well-established analytical path by addressing the
prejudice prong first but, having determined that issue adversely to Theriault, not reaching his claim of
ineffectiveness.
10
be affirmatively proved. Strickland, 466 U.S. at 692; see also United States v.
Cronic, 466 U.S 648, 659 (1984). Such cases, however, are “rare,” Laferriere v.
State, 1997 ME 169, ¶ 11, 697 A.2d 1301, and occur when there is a “complete
denial of counsel” or when “counsel entirely fails to subject the prosecution’s case
to meaningful adversarial testing.” Cronic, 466 U.S. at 659; see also Pineo v.
State, 2006 ME 119, ¶ 15, 908 A.2d 632 (holding that under federal jurisprudence,
Cronic applies only when “defense counsel utterly fails in defending a client”).
See, e.g., Cuyler v. Sullivan, 446 U.S. 335, 345-50 (1980) (prejudice is presumed
when counsel proceeded to represent the accused despite a conflict of interest);
Geders v. United States, 425 U.S. 80, 86, 91 (1976) (prejudice is presumed when a
court order prevented a defendant from consulting with trial counsel during an
overnight recess between his direct- and cross-examination); Herring v. New York,
422 U.S. 853, 857-64 (1975) (prejudice is presumed when trial counsel was
prohibited from making a closing argument). See generally Laferriere,
1997 ME 169, ¶ 11, 697 A.2d 1301.
[¶18] Here, the record does not plainly demonstrate that, if Attorney
Hanson’s representation of Theriault was ineffective, it fell so far below
constitutional standards that it constitutes one of the “rare” situations where
Theriault would not be required to prove actual prejudice. Consequently, Theriault
has not shown that the court committed obvious error by failing to presume the
11
existence of such prejudice to his right to counsel and instead examining the
post-conviction record for actual prejudice. Theriault is therefore left with the
burden of affirmatively proving prejudice. Accordingly, we turn to Theriault’s
contention that the court erred when it concluded that Theriault had not proved
actual prejudice.
B. Actual Prejudice
[¶19] When prejudice cannot be presumed in a post-conviction challenge
based on ineffective representation, the actual prejudice that a petitioner must
prove “is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland,
466 U.S. at 694. Although this standard makes reference to a “probability,” which
suggests a quantitative inquiry, Strickland’s test for demonstrating actual prejudice
requires a showing of a “reasonable probability,” which is defined as a showing
that the alleged ineffectiveness is enough to “undermine confidence in the
outcome” of the underlying proceeding. Id. (emphasis added). Put another way, a
criminal defendant is prejudiced by constitutionally ineffective representation
when the result of the proceeding is “unreliable.” Id. at 687. Under Strickland,
therefore, the trial court must engage in an analysis that is not quantitative—that is,
to determine if prejudice is probable. Rather, the court’s analysis must be
12
qualitative in nature—that is, to determine whether the petitioner has demonstrated
that trial counsel’s performance undermines confidence in the outcome of the case
and renders that outcome unreliable.
[¶20] In Strickland, the Court expressly held that the proper test of a
“reasonable probability” is different from an “outcome-determinative” standard,
which is the quantitative inquiry that would require proof “that counsel’s deficient
conduct more likely than not altered the outcome in the case.” Id. at 693. In
expressly rejecting the different standard of proof contained in the
“outcome-determinative” test, id. at 697, the Court explained that “[t]he result of a
proceeding can be rendered unreliable, and hence the proceeding itself unfair, even
if the errors of counsel cannot be shown by a preponderance of the evidence to
have determined the outcome.” Id. at 694; see also Lockhart v. Fretwell,
506 U.S. 364, 369 (1993) (“[A]n analysis focusing solely on mere outcome
determination, without attention to whether the result of the proceeding was
fundamentally unfair or unreliable, is defective.”); Gonzalez-Soberal v.
United States, 244 F.3d 273, 277 (1st Cir. 2001) (holding that the trial court
committed error by stating that the petitioner “must demonstrate that but for the
unprofessional error, he would not have been found guilty,” even when the court
correctly articulated the Strickland prejudice standard elsewhere in its written order
(quotation marks omitted)). In those cases, the outcome-determinative test exceeds
13
the burden that a petitioner is required to meet under Strickland’s “reasonable
probability” standard and could result in the denial of relief that would otherwise
be available under Strickland.
[¶21] In examining the relationship between the “reasonable probability”
and “outcome-determinative” standards, it is significant to note that under some
circumstances, a petitioner can satisfy the “reasonable probability” test by proving
by a preponderance of the evidence that counsel’s deficient representation altered
the outcome of the case—in other words, by satisfying the outcome-determinative
test. See Williams v. Taylor, 529 U.S. 362, 396-97 (2000). In Williams, the
Virginia Supreme Court had vacated the trial court’s judgment granting
post-conviction relief based on ineffective assistance of counsel. Id. at 370-71.
The Virginia Supreme Court construed the trial court to have used the outcome-
determinative test, which the appellate court found was error. Id. at 371, 397. The
United States Supreme Court reversed the Virginia Supreme Court’s decision and
reinstated the trial court’s judgment for the petitioner. Id. at 397-99. In its
analysis, the Supreme Court held that the Virginia appeals court itself erred by
concluding that a “mere difference in outcome is not sufficient to establish
constitutionally ineffective assistance of counsel.” Id. at 397 (quotation marks
omitted). Thus, Williams held that in that case, where the petitioner had proved
that ineffective representation actually determined the outcome of the underlying
14
case, the petitioner also satisfied the “reasonable probability” aspect of the
Strickland standard of prejudice.5 See id. at 397-99.
[¶22] Significantly for purposes of this case, however, the Williams Court
did not hold that a petitioner’s failure to satisfy the outcome-determinative test
must lead to a denial of the petition. Where a court imposes the
outcome-determinative test and determines that the petitioner has not proved
prejudice under that standard, then in effect the court is concluding that the
petitioner fell short of meeting a standard that is higher than the test that should
have been applied pursuant to Strickland. In other words, a petitioner’s
satisfaction of the outcome-determinative test is often one way to meet the
Strickland prejudice standard that is sufficient, but not necessary.
[¶23] Controlling federal jurisprudence therefore establishes that the
“reasonable probability” standard defined in Strickland and the
outcome-determinative test differ in substance and are not co-extensive. With
5
In two other cases, however, the United States Supreme Court explained that the
outcome-determinative test might improperly allow relief where it should not be granted. In one case,
where counsel failed to make an objection based on a legal argument that was subsequently discredited,
the Court noted that the defendant might have “lost” a meritless opportunity for a more favorable
outcome, but the reliability of the criminal proceeding’s outcome is not compromised. Lockhart v.
Fretwell, 506 U.S. 364, 367-69, 371-72 (1993). In the second case, the Supreme Court held that an
attorney’s decision not to knowingly present false exculpatory evidence did not prejudice the defendant
within the meaning of Strickland. Nix v. Whiteside, 475 U.S. 157, 175-76 (1986). Even if the defendant
proved that he would have attained a better outcome with perjured testimony, that outcome would not
have been reliable. Id. These cases demonstrate that in some circumstances, a petitioner cannot always
satisfy the “prejudice” prong of the Strickland standard without addressing whether counsel’s conduct
undermined the reliability of the proceedings.
15
these insights into the nature of the “reasonable probability” test, we turn to the
court’s determination that Theriault failed to prove that he was prejudiced by any
deficiencies in Attorney Hanson’s representation of him.
[¶24] Here, the court concluded that Theriault did not prove that any
deficiencies in Attorney Hanson’s representation led to “a different outcome” or a
“different result,” and that they did not make “a difference.” In its order, the court
articulated this standard as an overarching principle it would apply to Theriault’s
challenges generally, and it then applied this standard to a number of Theriault’s
specific complaints about Attorney Hanson’s work on the case.6 On this basis, the
court denied Theriault’s petition.
[¶25] By formulating and applying the prejudice requirement in this way,
the court used only a portion of the prejudice standard prescribed in Strickland: it
limited its inquiry to the question of whether the outcome of the criminal trial
would have been different absent any ineffectiveness in legal representation. The
court, however, did not go on to apply the remaining aspects of the unitary
Strickland prejudice test, which also requires the court to determine if there is a
“reasonable probability” that the ineffectiveness resulted in a different outcome—
meaning, whether ineffective assistance of counsel rose to the level of
6
For several of Theriault’s specific challenges, the court framed the prejudice standard more
generally, concluding, for example, that certain deficiencies did not “cause[] him prejudice” and that
Theriault had not “affirmatively demonstrate[ed] prejudice.” As noted in the text, however, the court
rejected Theriault’s other challenges based on the outcome-determinative test.
16
compromising the reliability of the conviction and undermining confidence in it.
By employing only a portion of the Strickland principle, the court in effect
employed the outcome-determinative test rejected in Strickland because it
determined only whether the outcome was likely different than it would have been
if the petitioner had been properly represented, without considering whether the
guilty verdict and resulting conviction were unreliable and not worthy of
confidence. 466 U.S. at 693 (“[A] defendant need not show that counsel’s
deficient conduct more likely than not altered the outcome in the case.”). In this
case, the effect of the outcome-determinative standard of prejudice was to impose
on Theriault a greater burden than, as a constitutional matter, he was obligated to
bear.
[¶26] For several of Theriault’s challenges to Attorney Hanson’s conduct,
Theriault offered no evidence whatever of how he was prejudiced by those alleged
failures. For example, Theriault did not present any evidence about what
information a private investigator might have found to provide an exculpatory
explanation for the victim’s accusations. On those points, Theriault failed to
demonstrate entitlement to post-conviction relief regardless of how one might
characterize the element of prejudice, because the complete absence of any
evidence of prejudice would preclude any prospect of proving that the guilty
verdict was unreliable and not entitled to confidence.
17
[¶27] On other aspects of Theriault’s claims, however, the court’s
assessment of prejudice was necessarily more nuanced. For example, to address
Theriault’s claim that Attorney Hanson failed to present evidence that Theriault did
not have a PlayStation at his house, the court was required to evaluate the
prospective impact of that evidence to impeach the victim’s testimony that she was
using that type of game at Theriault’s house on the day of the assault. This
assessment of the evidence was necessary because, as the court observed, the jury
in fact was presented with other impeachment evidence: during her report of the
assault to the nurse, the victim recounted the assault itself in a way that was
different than what she described during her trial testimony, and Theriault
presented evidence to the jury that some aspects of the victim’s accusations may
have been influenced by the way her sister elicited information when the victim
first disclosed the assault. The court was therefore called to gauge the effect of
additional impeachment evidence, even though it may have related to a collateral
matter. In doing so, however, the court erroneously employed the
outcome-determinative test, and on that basis, rejected Theriault’s argument that
Attorney Hanson’s failure to present the evidence about the PlayStation resulted in
prejudice.
18
[¶28] Additionally, Theriault argued in the trial court, as he does on appeal,7
that he was prejudiced by Attorney Hanson’s failure to present any evidence of the
prior exculpatory statements made by the victim during the Spurwink evaluation,
when she reportedly said that no one—including Theriault—had done anything to
her that she did not like, and, more specifically, that Theriault had not sexually
assaulted her. The court did not discuss this evidence in its order, and neither party
requested that the court issue findings on the issue. In those circumstances, we
ordinarily would infer that a court made factual findings sufficient to support its
ultimate conclusion.8 See State v. Dodd, 503 A.2d 1302, 1307 (Me. 1986);
Alexander, Maine Appellate Practice § 416(e) at 273 (4th ed. 2013). In the
specific circumstances of this case, however, the legitimacy of that inference is
undermined, because it would attribute to the court the use of a legal principle that
it misstated several times in its order.
7
Both in the trial court and on appeal, Theriault has contended that Attorney Hanson failed to
cross-examine the victim about her inconsistent statements and that he did not call other witnesses who
could have testified about those inconsistent statements. The record plainly demonstrates that one such
witness is the Spurwink evaluator.
8
One way we could make that inference in this case is to consider the form of the evidence of the
Spurwink evaluation presented to the court at the post-conviction hearing, which was a report written by
the LCSW who conducted the evaluation. The evaluator herself did not testify at the post-conviction
hearing, and Theriault did not establish the foundation that would be necessary for admission into
evidence of the report itself, which is hearsay, see M.R. Evid. 801-803. The report, however, was
admitted into evidence at the post-conviction hearing without objection; neither party has suggested that
the information in the report could not have been presented in admissible form at trial; and the State has
not argued that Theriault’s prejudice argument fails on this basis. Under these circumstances, we
conclude that the manner in which evidence of the Spurwink evaluation was presented to the court is not a
reason to reject Theriault’s argument that he was prejudiced by Attorney Hanson’s failure to present it at
the criminal trial.
19
[¶29] We therefore conclude that in analyzing Theriault’s claim that he was
actually prejudiced by Attorney Hanson’s ineffective representation, the court did
not fully implement the proper standard of prejudice established in Strickland.
III. CONCLUSION
[¶30] We remand this matter for reconsideration of Theriault’s claims of
prejudice based on the Strickland rubric. We recognize the Strickland Court’s
observation that application of the “reasonable probability” test rather than the
“outcome-determinative test” will “alter the merit of an ineffectiveness claim only
in the rarest case.” 466 U.S. at 697; Manley, 2015 ME 117, ¶ 13, --- A.3d ---. We
cannot, however, substitute our judgment for that of the trial court by presuming to
determine whether, under the proper standard, Attorney Hanson’s alleged
ineffectiveness resulted in prejudice as that test is prescribed in Strickland.
Accordingly, we must remand for reconsideration of Theriault’s claim of prejudice
under that standard.9
9
The First Circuit has suggested that in evaluating claims of ineffectiveness arising from trial
counsel’s failure to present evidence to impeach witnesses who provide incriminating testimony, the court
may consider factors such as the strength of the State’s case, the effectiveness of the actual defense
presentation, and the significance of the impeachment value of evidence that trial counsel failed to
develop. Gonzalez-Soberal v. United States, 244 F.3d 273, 278 (1st Cir. 2001).
We further note that on remand, if the court concludes that Theriault has proved that under Strickland,
he was prejudiced by alleged deficiencies in Attorney Hanson’s representation of him, the court will also
be required to consider whether Theriault has further proved that that representation in fact fell below
constitutional standards.
20
The entry is:
Judgment vacated. Remanded for further
proceedings.
SAUFLEY, C.J., concurring.
[¶31] I join fully in the analysis and outcome of the Court’s opinion. I write
separately because the standards applicable to claims of ineffective assistance of
counsel have not, historically, been sufficiently clear, and it is worthwhile to
emphasize the clarifications addressed by the Court today.10
[¶32] The original two-pronged analysis of ineffective assistance of counsel
claims now presents two potential components within each of its original two
prongs. To be clear, however, the trial judge may begin the analysis at any point
that works with the facts of the individual case.
1. Ineffectiveness—The ineffectiveness prong requires the court to
examine whether counsel’s representation “fell below an objective
standard of reasonableness.”11 This analysis now encompasses two
aspects.
10
In the matter before us, the trial court did not have the benefit of the clarified analysis of the
jurisprudence provided in the Court’s opinion today.
11
Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
21
(a) Extreme Ineffectiveness.12 The court must examine the
record and the evidence presented to determine whether the
representation was so deficient that the defendant will be
relieved of the burden of proving actual prejudice. This
“extreme ineffectiveness” analysis may precede other
components of the analysis. Although it is devoutly to be
hoped that such substantial failure of counsel will rarely be
found to exist, the court must engage in this review by the time
it has completed its analysis.
(b) Ineffectiveness that Causes Actual Prejudice. Absent a
finding of extreme ineffectiveness, the court must determine
whether counsel’s conduct constituted ineffectiveness that
resulted in “actual” prejudice. Because this determination of
ineffectiveness will be necessary only if the petitioner
demonstrates actual prejudice, it is often the last part of the
analysis. Thus a court is fully warranted in moving to the
question of actual prejudice before addressing this subpart.
2. Actual Prejudice—As the Court has clarified today, actual
prejudice can be demonstrated in two different ways.
(a) Reasonable Probability Test. To demonstrate actual
prejudice, the petitioner must demonstrate a “reasonable
probability” that the result would have been different but for
counsel’s unprofessional errors, meaning that “counsel’s
conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having
produced a just result.” Strickland v. Washington,
466 U.S. 668, 686, 694 (1984). Thus, the court must determine
whether the ineffective assistance of counsel compromised the
reliability of the conviction and undermined confidence in it.
To prevail, the “defendant need not show that counsel’s
deficient conduct more likely than not altered the outcome in
the case.” Id. at 693. If the court finds that the reliability of the
12
Because a finding of extreme ineffectiveness eliminates the requirement of proof of actual
prejudice, it is sometimes considered a part of the prejudice prong.
22
conviction and the court’s confidence in that conviction have
been compromised, it must assure that it has completed its
analysis of the ineffective assistance prong because, once again,
prejudice that is unrelated to the claimed ineffective assistance
of counsel does not fall within this analysis.13
(b) Outcome Determinative Test. The outcome determinative
test is in essence a specific application of the reasonable
probability test. In many instances, if the petitioner
demonstrates by a preponderance of the evidence that counsel’s
alleged deficient representation altered the outcome of the case,
the court need go no further with regard to the determination of
prejudice because, by definition, the petitioner has proved that
the result is unreliable.14 Prejudice has been proved, as long as
the court has found deficiency in representation.
To be clear, a petitioner may prevail in demonstrating actual
prejudice by meeting the outcome determinative test, but the
petitioner need not meet this test to prevail on the reasonable
probability test.
[¶33] With the Court’s careful clarification today on this last point and the
trial court’s reference solely to the outcome determinative test, it is appropriate for
us to remand the matter to the trial court for application of the law as it relates to
actual prejudice. Thus, I cannot join the dissent’s approach because it usurps the
authority of the trial court to make the determination in the first instance.
13
Although there may be other remedies for the petitioner, claims of ineffective assistance of counsel
are distinct and should not be blurred with others analytically.
14
But see Court’s Opinion ¶ 21 n.5.
23
ALEXANDER, J., dissenting.
[¶35] I respectfully dissent.
[¶36] The post-conviction record in this appeal reveals a too common,
shotgun style approach to post-conviction advocacy. That approach challenges
many tactical choices by trial counsel—usually about things allegedly not done—
with the hope that, years after the events at issue, Monday morning quarterbacking
about one or a few of trial counsel’s many tactical choices will find a sympathetic
ear of a post-conviction court or an appellate court willing to second guess trial
counsel and order a new trial or a new hearing.
[¶37] In its opinion the Court rejects the principal arguments asserted by
post-conviction counsel. The Court then takes a collateral argument about not
cross-examining the victim about inconsistent statements, revises post-conviction
counsel’s cross-examination argument to become an allegation that trial counsel
should have affirmatively presented witnesses to testify about the inconsistent
statements, purports to clarify the standard for post-conviction review of trial
counsel’s performance, and vacates the post-conviction court’s judgment. To
vacate and announce its clarification of the law, the Court abandons a fundamental
principle of limited appellate review of trial court decisions and holds that when
24
the post-conviction court did not make findings on an issue, and none were
requested by counsel, the Court, contrary to convention, will infer that the
post-conviction court would have made erroneous statements of law had it
articulated the findings that were not requested.
[¶38] The standard for post-conviction review of trial counsel’s tactical
choices was well stated in Strickland v. Washington, 466 U.S. 668, 689 (1984):
“Judicial scrutiny of counsel's performance must be highly deferential.”
Elaborating on that standard, the Strickland Court observed:
It is all too tempting for a defendant to second-guess counsel’s
assistance after conviction or adverse sentence, and it is all too easy
for a court, examining counsel’s defense after it has proved
unsuccessful, to conclude that a particular act or omission of counsel
was unreasonable. . . . A fair assessment of attorney performance
requires that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at the
time. Because of the difficulties inherent in making the evaluation, a
court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance; that is,
the defendant must overcome the presumption that, under the
circumstances, the challenged action “might be considered sound trial
strategy. . . .” There are countless ways to provide effective assistance
in any given case. Even the best criminal defense attorneys would not
defend a particular client in the same way. . . .
The availability of intrusive post-trial inquiry into attorney
performance or of detailed guidelines for its evaluation would
encourage the proliferation of ineffectiveness challenges. Criminal
trials resolved unfavorably to the defendant would increasingly come
to be followed by a second trial, this one of counsel’s unsuccessful
defense. Counsel’s performance and even willingness to serve could
25
be adversely affected. Intensive scrutiny of counsel and rigid
requirements for acceptable assistance could dampen the ardor and
impair the independence of defense counsel, discourage the
acceptance of assigned cases, and undermine the trust between
attorney and client.
466 U.S. at 689-690 (internal citations omitted).
[¶39] The record here does not demonstrate that Theriault, even with the
clarity of hindsight, has overcome the “strong presumption that counsel's conduct
falls within the wide range of reasonable professional assistance.” Id. 689.
I. CASE HISTORY
[¶40] The case history is extensively stated in the Court’s opinion. Only the
key points related to the issues on post-conviction review are stated here.
[¶41] On March 14, 2008, Mark Theriault drove the six-year-old victim and
her twenty-two-year-old sister to a nearby store. Theriault, who is not related to
the victim, invited the victim and her sister to return to his house. The sister
refused, but the victim was taken alone, by Theriault, to his house. There, the
victim took a bath, played a video game, and then was sexually assaulted. At the
2011 trial, the victim testified that sexual assault occurred in Theriault’s bedroom
after Theriault had removed her clothes.
[¶42] Later on March 14, the victim returned home with wet hair and said
that she had taken a bath. When her sister asked about the wet hair, the victim
became quiet. Later, the victim’s sister asked if Theriault had seen the victim
26
naked and if Theriault had touched her “down there,” referring to the victim’s
genitals. Becoming emotional, the victim said that Theriault had seen her naked
and touched her.
[¶43] The victim’s sister reported the disclosure to their mother, who then
drove the victim and her sister to a nearby hospital. The victim and her sister
continued to discuss the sexual assault during the ride. At the hospital, the victim
was assessed for purposes of medical treatment by a registered nurse. During the
evaluation, the victim told the nurse that after she had taken a bath, Theriault had
called her into the living room and touched her over her clothing “down there,”
which the victim identified by pointing toward her genitals. In closing argument at
the 2011 trial, trial counsel focused on the inconsistencies in the versions of events
the victim had testified to at trial, previously stated to her family, and previously
stated to the nurse at the hospital.
[¶44] The nurse at the hospital had referred the victim for a forensic
evaluation at The Spurwink Child Abuse Program, which specializes in pediatric
sexual abuse assessments and interviews. At Spurwink, a psychosocial evidentiary
assessment was conducted by a licensed clinical social worker. The social
worker’s report was presented at the post-conviction hearing. The report stated
that during the interview of the victim conducted on March 25, 2008, “When asked
if somebody had done something to her that she does not like, [the victim] stated,
27
‘No.’” The report also stated, “When asked if [Theriault] does something that she
does not like, she stated, ‘Hmmm, no.’” According to the Spurwink report, the
victim also initially denied that anything had happened “to her privates.” The
victim then agreed that someone had touched her “privates” and, in response to a
series of questions, described at least one incident when Theriault sexually
assaulted her. No evidence about the Spurwink interview was presented at trial.
[¶45] Theriault did not testify or present any evidence at trial. The jury
found him guilty. After sentencing, trial counsel filed a notice of appeal and an
application for leave to appeal the sentence. Theriault’s current post-conviction
attorney then entered his appearance. Trial counsel was given leave to withdraw.
Theriault’s application to allow an appeal from sentence was denied. After his
current counsel failed to file a brief, Theriault’s direct appeal was dismissed for
want of prosecution. The petition for post-conviction review was filed nearly a
year after the direct appeal was dismissed.
II. POST-CONVICTION COURT PROCEEDINGS
[¶46] In his post-conviction filings, and in advocacy before the
post-conviction court, Theriault asserted numerous claims of ineffective assistance
by trial counsel. The record indicates that the principal focus of advocacy before
the post-conviction court were claims that trial counsel had not (1) adequately
consulted with Theriault and prepared him to testify at trial; (2) asserted and
28
presented evidence identifying the victim’s brother and step-father as alternative
suspects; and (3) sufficiently investigated the case and identified facts or expert
witnesses to support Theriault’s defense and attack the victim’s credibility.
[¶47] The specific claims of ineffective assistance directed at trial counsel
in the post-conviction proceeding included:
1. Insufficient pretrial communication and contacts with Theriault;
2. Failure to prepare Theriault to testify and to allow Theriault to make a
rational decision to testify in his own defense;
3. Failure to hire a private investigator to investigate his case and perhaps
develop evidence that the victim had a motive to lie and that the victim’s brother
and stepfather should be considered alternative suspects;
4. Failure to call unnamed witnesses who allegedly would have testified to
inconsistences in the victim’s statements, without indication of who the witnesses
were or what they might have testified to;
5. Failure to retain expert witnesses to (a) discuss the impact of suggestive
interview techniques on children, and (b) explain the significance of the lack of
physical findings of an assault; 15
15
The record does not disclose the basis for the claim that calling an expert witness to testify about
the lack of physical findings of an assault might have benefited the defense in an unlawful sexual contact
case. In such cases, testimony about the lack of physical findings indicating an assault usually is offered
by and benefits the State. Theriault’s claim on this point may be an example of making every conceivable
29
6. Failure to request an order to allow review of the victim’s alleged DHHS
records, but without any indication, by post-conviction counsel, that DHHS records
existed, or that, if they did exist, what relevant information they might contain;
7. Failure to challenge the by then nine-year-old victim’s competency to
testify at trial, but without any indication of any basis that trial counsel or the trial
court might have had to question the victim’s competence at trial;
8. Failure to call character witnesses to testify to Theriault’s good character
traits, although such evidence would have opened the door for the State to ask
questions about Theriault’s prior bad acts, including a Connecticut conviction for
child endangerment and a possible sexual assault charge in New Mexico;
9. Failure to call a police officer who had recorded some inconsistent
statements from the victim and other family members, although such an inquiry
could have opened the door to the officer’s testimony about a conversation with
Theriault, in which Theriault admitted to unrelated criminal conduct in other states
and got into a heated argument with the officer “flip[ping] him off”;
10. Failure to cross-examine the victim about her trial testimony that on the
day of the incident, she played a PlayStation video game at Theriault’s home, after
Theriault had informed trial counsel that he did not own a PlayStation; and
criticism about things that trial counsel allegedly failed to do in the hope that some claim might find
traction.
30
11. Failure to cross-examine the victim about the Spurwink interview
during which she initially stated that Theriault had not sexually assaulted her and
no one had touched her privates, but later stated that someone had touched her
privates and that Theriault had sexually assaulted her.
[¶48] On this last point, Theriault’s brief to the post-conviction court, his
memorandum to us in support of allowing this appeal, M.R. App. P. 19(c), and his
brief to us on appeal, each, using nearly identical language, argued only that trial
counsel should have cross-examined the victim about her statements made during
the Spurwink interview. Theriault’s only argument regarding the Spurwink
interview, in his brief to us, is under a heading “Cross-examination of [the
victim].” There Theriault argues, after referencing the Spurwink interview, that
“[t]rial counsel utterly failed in this most basic role of cross-examining a
complainant.” None of Theriault’s advocacy suggested, as the Court now
determines, that trial counsel may have erred by not affirmatively presenting a
witness describing the victim’s inconsistent statements in the Spurwink interview.
[¶49] The trial transcript indicates that at trial, Theriault’s counsel
questioned the State’s witnesses about inconsistencies between the victim’s trial
testimony and her prior statements to family members and personnel at the local
hospital. Trial counsel’s examination of the State’s witnesses also raised the issue
of whether the witnesses’ questioning of the victim may have suggested or
31
prompted her statements that Theriault had sexually assaulted her. In closing
arguments, trial counsel argued that reasonable doubt about guilt was created by
the inconsistencies in the victim’s trial testimony and her prior statements and by
the possible influence the questions she was asked on the evening of the event may
have had on her statements.
[¶50] Trial counsel’s reasons for not cross-examining the victim more
extensively were demonstrated at the post-conviction hearing. There, trial counsel
testified that, while the victim was testifying, he could see members of the jury
making a connection with her and that some jurors were crying. Consequently,
trial counsel testified, he decided it was most important to limit cross-examination
of the victim to get her off the stand as quickly as possible.
[¶51] Trial counsel’s choice to limit cross-examination of the victim in light
of his concerns about jury sympathy for the victim cannot be characterized as
ineffective assistance—a deficiency indicating “serious incompetency,
inefficiency, or inattention of counsel amounting to performance . . . below what
might be expected from an ordinary fallible attorney,” Aldus v. State, 2000 ME 47,
¶ 12, 748 A.2d 463.16 As a nationally respected text on trial advocacy by a Maine
16
The post-conviction court referenced the same standard for determining ineffective assistance,
citing Strickland v. Washington, 466 U.S. 668 (1984), and Lang v. Murch, 438 A.2d 914, 915 (Me. 1981),
one of our earlier post-conviction opinions that used nearly identical language.
32
author notes, sometimes the best cross-examination is no cross-examination at
all.17
III. THE STRICKLAND TWO-PART TEST
[¶52] The Court’s opinion states: “To prevail in a post-conviction
proceeding based on an alleged constitutional deprivation of counsel, the petitioner
must demonstrate two points: first, ‘that counsel’s representation fell below an
objective standard of reasonableness,’ and second, that ‘errors of counsel . . .
actually had an adverse effect on the defense.’” (¶ 14, citing and quoting
Strickland).
[¶53] Previously, we have described the petitioner’s burden on ineffective
assistance of counsel claims as a two-part test: “First, we consider ‘whether there
has been serious incompetency, inefficiency, or inattention of counsel amounting
to performance . . . below what might be expected from an ordinary fallible
attorney.’ Second, we determine ‘whether any such ineffective representation
likely deprived the defendant of an otherwise available substantial ground of
defense.’” Gauthier v. State, 2011 ME 75, ¶ 12, 23 A.3d 185 (citations omitted).
See also Strickland, 466 U.S. at 686, noting that the “prejudice” or “adverse effect”
test involves an inquiry into whether “counsel’s conduct so undermined the proper
17
Peter L. Murray, Basic Trial Advocacy, 157-158 (1995).
33
functioning of the adversarial process that the trial cannot be relied on as having
produced a just result.”
[¶54] Following this general observation, the Strickland opinion articulates
its widely used two-part test:
A convicted defendant’s claim that counsel’s assistance was so
defective as to require reversal of a conviction or death sentence has
two components. First, the defendant must show that counsel’s
performance was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel's errors were so serious
as to deprive the defendant of a fair trial, a trial whose result is
reliable. Unless a defendant makes both showings, it cannot be said
that the conviction or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable.
Id. 687.18
IV. REVIEW OF THE POST-CONVICTION DECISION
[¶55] A post-conviction petition must be denied if the petitioner fails to
maintain his or her burden to demonstrate entitlement to relief on either element of
the two-part test. Here, the post-conviction court, without reaching the
competence of counsel issue, decided that its “analysis of the prejudice prong is
determinative of this petition.” The post-conviction court stated generally, “If a
post-conviction petitioner proves ineffective assistance, he must also demonstrate
18
Strickland was a death penalty case that included claims of incompetence of counsel in both the
trial and the sentencing phase of the case.
34
that the outcome of the proceedings would have been different but for counsel’s
performance,” a statement with which the Court takes issue.
[¶56] The post-conviction court then proceeded to address many of
Theriault’s specific challenges, finding, in each instance, that Theriault had not
demonstrated prejudice—the term drawn from Strickland—resulting from trial
counsel’s allegedly inadequate representation of him. The record indicates that for
many of Theriault’s challenges, Theriault had offered no evidence whatsoever of
how he was prejudiced by the alleged failures to hire a private investigator,
investigate to find alternative suspect evidence, retain experts, or call unnamed
witnesses to demonstrate additional inconsistencies in the victim’s testimony.
[¶57] On Theriault’s challenges (1) through (9), listed above, the Court
concludes, and I agree, that: “Theriault failed to demonstrate entitlement to
post-conviction relief regardless of how one might characterize the element of
prejudice, because the complete absence of any evidence of prejudice would
preclude any prospect of proving that the guilty verdict was unreliable and not
entitled to confidence.” Court’s Opinion ¶ 26.
[¶58] That leaves for decision only issues (10), the failure to inquire further
about the victim’s statement that she had used a PlayStation video game at
Theriault’s home, and (11), the failure to cross-examine the victim about the
inconsistencies in her statements during the Spurwink interview. Revising
35
Theriault’s argument, the Court recharacterizes issue (11) from a failure to
cross-examine to a failure to present evidence, presumably by calling a witness
from Spurwink to testify about the victim’s inconsistent statements in the
Spurwink interview. The Court then decides on these two points, points that were
not the primary points argued to the post-conviction court, that the post-conviction
court’s improper wording of its decision as to the PlayStation issue is enough to
require that the judgment be vacated.
[¶59] On the PlayStation issue, the record has gaps identical to those the
Court identifies in rejecting claims (1) through (9). The record does not indicate
how evidence that Theriault did not have a PlayStation video game in his home
could have been presented except (1) through further cross-examination of the
victim—a tactical choice properly rejected based on the jury’s perceived
sympathetic reaction to the victim, or (2) by calling Theriault to the stand, contrary
to the tactical decision approved by the post-conviction court and affirmed in the
Court’s opinion. The record is silent as to whether Theriault may have had other
video games in his home and whether the nine-year-old victim, recalling playing a
video game when she was six, used the term “PlayStation” as a generic reference
to any video game, or whether she recognized and recalled the exact model of the
game she was playing.
36
[¶60] The post-conviction court rejected the PlayStation challenge, noting
that at trial evidence was presented that the victim told the nurse that Theriault had
touched her over her clothing, which was inconsistent with the victim’s trial
testimony that she was not wearing clothes at the time of the assault. The
post-conviction court found that because the jury appeared to have accepted the
victim’s testimony despite her contradictory statements about the incident itself,
evidence on a collateral issue, that Theriault did not have a PlayStation or other
video game—if that evidence existed—was not “likely to have produced a
different result.”
[¶61] The Court characterizes this statement as an erroneous “outcome
determinative test” justifying vacating the judgment. Court’s Opinion ¶ 27. But
the Court approves the post-conviction court’s rejection of the nine other claims,
using similar, allegedly flawed language, where, like the PlayStation claim, there
was no evidentiary support for entitlement to relief, regardless of how one
characterized the element of prejudice. The record lacks any indication of how the
PlayStation evidence, if it existed, might have been presented, or how the tactical
choice not to cross-examine the victim about the presence of some video game “so
undermined the proper functioning of the adversarial process that the trial cannot
be relied on as having produced a just result.” Strickland, 466 U.S. at 686.
37
[¶62] The Court’s ruling on the absence of Spurwink statement
cross-examination, as post-conviction counsel characterized it, or the absence of
Spurwink statement evidence, as the Court recharacterizes counsel’s argument, is
based on an even thinner reed.
[¶63] As the Court’s opinion correctly recognizes: “The [post-conviction]
court did not discuss this [Spurwink] evidence in its order, and neither party
requested that the court issue findings on the issue.” Court’s Opinion ¶ 28. Thus,
there is no improper use of words in the post-conviction court’s finding on this
issue, and the lack of a request for findings suggests the limited attention the
post-conviction court and Theriault gave to this issue in the post-conviction
proceedings.
[¶64] “In those circumstances”, the Court’s opinion states, “we ordinarily
would infer that a court made factual findings sufficient to support its ultimate
conclusion.” Court’s Opinion ¶ 28. That principle is well established in the
jurisprudence of appellate review. See Pelletier v. Pelletier, 2012 ME 15, ¶ 20,
36 A.3d 903; Sutherland v. Morrill, 2008 ME 6, ¶¶ 4-5, 940 A.2d 192; Lyons v.
Baptist Sch. of Christian Training, 2002 ME 137, ¶ 13, 804 A.2d 364; State v.
Dodd, 503 A.2d 1302, 1307 (Me. 1986) (stating that when there has been no
request for findings of fact pursuant to M.R. Civ. P. 52(a), or M.R. Crim. P. 23(c)
(now M.R.U. Crim. P. 23(c)), we will infer that the trial court found all the facts
38
necessary to support its judgment, if those inferred findings are supportable by the
evidence in the record).
[¶65] In its opinion, the Court abandons this sound principle of appellate
review, stating: “In the specific circumstances of this case, however, the legitimacy
of that inference is undermined, because it would attribute to the court the use of a
legal principle that it misstated several times in its order.” Court’s Opinion ¶ 28.
The Court’s “several times” reference must be to portions of the post-conviction
order that it affirms or to the post-conviction court’s single comment deciding the
PlayStation issue.
V. LEGAL ANALYSIS
[¶66] As the Strickland opinion states, the post-conviction review process is
not an invitation to revisit and second-guess trial tactics that, in hindsight, have
proved unsuccessful. 466 U.S. at 689. Although not completely insulated from
review, strategic and tactical decisions of trial attorneys deserve significant
deference. Id. To demonstrate that an attorney’s trial tactics were sufficiently
ineffective to justify vacating a conviction, such decisions must be proved to have
been “manifestly unreasonable,” Pineo v. State, 2006 ME 119, ¶ 13, 908 A.2d 632,
indicating “serious incompetency, inefficiency, or inattention of counsel
amounting to performance . . . below what might be expected from an ordinary
fallible attorney.” Aldus, 2000 ME 47, ¶ 12, 748 A.2d 463.
39
[¶67] In appellate review of a post-conviction court’s findings, the facts
underlying the trial and post-conviction hearing are viewed in the light most
favorable to the post-conviction court’s judgment. Lamarre v. State,
2013 ME 110, ¶ 2, 82 A.3d 845; Heon v. State, 2007 ME 131, ¶ 5, 931 A.2d 1068.
Further, “[w]e will not overturn a post-conviction court’s determination as to the
effectiveness of trial counsel unless it is clearly erroneous and there is no
competent evidence in the record to support it. Likewise, the finding of whether
the petitioner was prejudiced by his attorney’s error is a factual finding reviewed
for clear error.” Gauthier, 2011 ME 75, ¶ 13, 23 A.3d 185.
[¶68] Thus, unless unsupported in the record, and there is no suggestion of
that, we must accept the facts as the post-conviction court found them, and
construe them most favorably to the post-conviction court’s decision.
[¶69] The Court determines that the post-conviction court erred, and its
judgment must be vacated because, for the PlayStation issue, the post-conviction
court did not consider, or for the Spurwink issue, the Court infers that it did not
consider, whether there was a “reasonable probability” that “the guilty verdict and
resulting conviction were unreliable and not worthy of confidence.” Court’s
Opinion ¶ 25 (citing Strickland, 466 U.S. at 693).
[¶70] Regardless of whether one utilizes the Court’s articulation of the
Strickland standard quoted from page 693 in Strickland, or the standard actually
40
stated in Strickland, at 687, quoted above in this opinion at ¶ 54, the Court’s
opinion disregards the insignificance of the issues the Court relies on to vacate the
judgment.
[¶71] The victim’s “PlayStation” reference at trial, and Theriault’s
allegation that there was no PlayStation in his home, was irrelevant to the victim’s
credibility—or any other trial issue— because there was no evidence that (1) the
victim’s reference at trial to what she played with when she was six was
product-specific, not generic; or (2) a witness was available to testify at trial that,
three years prior to trial, there was no PlayStation or other video game in
Theriault’s home.
[¶72] Without such evidence, Theriault failed to establish any “reasonable
probability” that trial counsel’s tactics regarding the PlayStation issue were enough
to “undermine the confidence in the outcome” of the trial. Just as it determined the
first nine challenges, the Court should determine, as a matter of law, that on this
irrelevant or insignificant issue, Theriault has failed to demonstrate either
incompetence of counsel or prejudice entitling him to post-conviction relief.
[¶73] That leaves only the issue of the inconsistent statements in the
Spurwink interview. If this is a lack of cross-examination of the victim issue, as
post-conviction counsel characterized it, then, as discussed above, no
ineffectiveness of counsel is demonstrated in the tactical choice not to examine the
41
victim extensively after observing the jury’s reaction to the victim. If no
ineffectiveness is demonstrated, the prejudice issue, regardless of how the
post-conviction court characterized it, is not reached.
[¶74] If the issue is as the Court characterizes it, whether Theriault was
prejudiced by trial counsel’s “failure to present any evidence of the prior
exculpatory statements made by the victim during the Spurwink evaluation, when
she reportedly said that no one—including Theriault—had done anything to her
that she did not like, and, more specifically, that Theriault had not sexually
assaulted her,” Court’s Opinion ¶ 28, there are still no grounds to vacate, even if
we assume, as the Court apparently does, that this “evidence” issue, though not
argued by counsel, was timely asserted and preserved.
[¶75] On this issue, the Court should not create an exception to its
well-accepted principle of appellate review that, absent a request for findings, it
will infer that a trial court properly made factual findings sufficient to support its
ultimate conclusion on an issue before it. Even if the Court is ready to infer error
when it should not, there still can be no “reasonable probability” that the tactical
choice not to call the Spurwink witness was enough to “undermine the confidence
in the outcome” of the trial.
[¶76] The Spurwink evidence would have to have been presented through a
live witness who had treated the victim, not a copy of a report, as was offered in
42
the post-conviction hearing. The post-conviction court would have known there
was good reason for the defense to avoid the Spurwink witness in this case.
Contrary to the statement in the Court’s Opinion ¶ 28, the Spurwink witness’s
testimony would not have been limited to “the prior exculpatory statements made
by the victim during the Spurwink evaluation.” After presenting those
“exculpatory” statements, the witness, in response to cross-examination by the
State, would certainly have testified to the statements by the victim that she had
been sexually assaulted by Theriault.
[¶77] In the artificial world of post-conviction Monday morning
quarterbacking, it is certainly not out of bounds to allege that, as a tactic to attack
the victim’s credibility, the Spurwink witness should have been called by the
defense at trial. But in the real world of a criminal trial, defense counsel’s calling
this Spurwink witness may itself have demonstrated incompetence of counsel. To
quote the Strickland standard itself, certainly the choice not to call this likely
adverse witness was not an error “so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.” 466 U.S. at 687. The record demonstrates
neither incompetence of counsel, nor prejudice to undermine the confidence in the
outcome of the trial in the tactical choice not to call the Spurwink witness. This
issue, even if characterized as failure to present evidence, rather than failure to
cross-examine the victim, does not justify vacating the judgment.
43
VI. CONCLUSION
[¶78] Throughout its opinion addressing Theriault’s many complaints about
trial counsel’s tactical choices, the post-conviction court may not, in each instance,
have perfectly phrased its findings and conclusions. But in its opinion, and in its
result, the post-conviction court committed no error. And it certainly committed
no error in addressing the two collateral issues of trial tactics that the Court seizes
upon to vacate the judgment. Neither of these issues is sufficient to undermine
confidence in the outcome of the trial. I would affirm the post-conviction court’s
judgment in its entirety.
On the briefs and at oral argument:
Richard L. Hartley, Esq., Law Office of Richard L. Hartley, P.C., Bangor,
for appellant Mark J. Theriault
Todd R. Collins, District Attorney, 8th Prosecutorial District, Caribou, for
appellee State of Maine
Aroostook County Superior Court (Caribou) docket number CR-2012-437
FOR CLERK REFERENCE ONLY