Han-20-119
MAINE SUPREME JUDICIAL COURT
April 15, 2021
2021 ME 22
HORTON, J.
Argued: February 9, 2021; Panel: MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.; Reporter of Decisions
HORTON, J.
I. BACKGROUND
A. Trial and Direct Appeal Proceedings
[¶2] In April 2014, Hodgdon was charged in an eight-count indictment with four counts of gross sexual assault (Class A),
[¶3] The trial court (Hancock County, R. Murray, J.) held a three-day jury trial in March 2016. Before any evidence was presented, Hodgdon moved in limine to exclude a recording of a conversation between Hodgdon and the alleged victim that the alleged victim had created on her cell phone and provided to the police. The court ruled that the recording itself and “any reference to the fact that a recording was made or attempted” would be inadmissible at trial.
[¶4] The alleged victim was the State‘s first witness. She testified that during the three years that she was in middle school, Hodgdon was her teacher, cross-country coach, and tutor, аnd that he also employed her (as a babysitter and landscaper) outside of school. She testified that Hodgdon subjected her to sexual acts at least thirty to forty times before she graduated from middle school, including at his house, before and after school in his classroom, at landscaping job sites, in his vehicle in the school parking lot after school, and at his parents’ house.
[¶5] Hodgdon‘s trial counsel began his cross-examination by asking the alleged victim about a police detective‘s interview of her in 2013 and seeking to introducе in evidence a transcript and audio recording of that interview. The State objected to the admission of the entire transcript and recording. Trial counsel stated that he wanted to highlight inconsistencies between the alleged victim‘s statements to the detective in that interview and her trial testimony and argued that it was “imperative” that the jury read and hear the entire police interview. The court suggested waiting to see how the cross-examination developed before deciding whether the exhibits would be admitted, and trial counsel agreed with that approach. Trial counsel then questioned the alleged victim, referring to various elements of the interview in an attempt to suggest that her trial testimony differed from what she had initially told the police. He then again sought admission
[¶6] Several other witnesses testified during the trial, including a “first complaint” witness, see, e.g., State v. Fahnley, 2015 ME 82, ¶¶ 15-26, 119 A.3d 727, Hodgdon, and several school employees and community members. The State did not present any physical or corroborative eyewitness evidence; its case-in-chief was entirely based on the alleged victim‘s testimony that Hodgdon had assaulted her. Hodgdon‘s counsel did not request a “specific unanimity” jury instruction, see, e.g., State v. Hanscom, 2016 ME 184, ¶¶ 11-14, 16, 152 A.3d 632, and the court did not provide one. The jury found Hodgdon guilty of one count of gross sexual assault (Count 5), one count of unlawful sexual contact (Count 6), and one count of sexual abuse of a minor (Count 7). The court later sentenced Hodgdon on the count of gross sexual assault to eleven years in prison, with all but three and one-half years suspended, and six years of probation.2 Hodgdon appealed, and we affirmed the judgment of conviction.3 See State v. Hodgdon, 2017 ME 122, ¶¶ 1, 26, 164 A.3d 959.
B. Post-Conviction Review Proceedings
[¶7] Hodgdon then filed a petition for post-conviction review in the Superior Court (Hancock County). See
[¶8] In March 2020, the cоurt granted Hodgdon‘s petition as to the convictions for unlawful sexual contact and sexual abuse of a minor (Counts 6 and 7), determining that trial counsel‘s failure to request specific unanimity instructions concerning those charges amounted to ineffective assistance of counsel. The court therefore vacated Hodgdon‘s convictions on those counts, such that only the conviction for gross sexual assault (Count 5) remained. The court found that a specific
[¶9] The court also determined that trial counsel‘s decision to introduce the transcript and recording of the alleged victim‘s police interview was part of a trial strategy that “fell within the wide range of reasonable professional assistance.” (Quotation marks omitted.) Concluding that none of Hodgdon‘s other arguments merited relief, the court denied Hodgdon‘s petition as to the conviction for gross sexual assault (Count 5).
[¶10] One month later, in April 2020, we decided Watson v. State, in which we concluded that trial counsel‘s introduction of a recording of an alleged crime victim‘s interview with police constituted ineffective assistance of counsel. 2020 ME 51, ¶¶ 19-39, 230 A.3d 6. Based on Watson, Hodgdon asked the post-conviction court to reconsider its decision in this case. The court denied his motion. We then granted Hodgdon‘s request for a certificate of probable cause to proceed with this appeal. See
II. DISCUSSION
[¶11] “[A] criminal defendant is entitled to receive the effective assistance of an attorney.” McGowan v. State, 2006 ME 16, ¶ 9, 894 A.2d 493; see
[¶12] In determining whether the petitioner has met his burden on the performance prong of this test—that counsel‘s representation was deficient—a court affords trial counsel‘s strategic decisions significant deference. See, e.g., Middleton v. State, 2015 ME 164, ¶ 13, 129 A.3d 962. But notwithstanding “the presumption that, undеr the circumstances, the challenged action might be considered sound trial strategy,” id. (quotation marks omitted), “[a] determination that defense counsel‘s choices amount to trial strategy does not automatically insulate them from review,” Watson, 2020 ME 51, ¶ 20, 230 A.3d 6 (quotation marks omitted). Ultimately, “counsel‘s representation of a defendant falls below the objective standard of reasonableness if it falls below what might be expected from an ordinary fallible attorney.” Philbrook v. State, 2017 ME 162, ¶ 7, 167 A.3d 1266 (quotation marks omitted). To establish prejudice—that counsel‘s errors had an adverse effect on the defense—a petitioner “must show that there 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; see Watson, 2020 ME 51, ¶ 29, 230 A.3d 6.
[¶13] We “review a post-conviction court‘s legal conclusions de novo and its factual findings for clear error.” Fortune v. State, 2017 ME 61, ¶ 12, 158 A.3d 512. “[B]oth prongs of the Strickland analysis often present mixed questions of law and fact . . . .” Id. We “apply the most appropriate standard of review for the issue raised depending on the extent to which that issue is dominated by fact or by law.” Id. ¶ 13. “Because a petitioner bears
[¶14] We focus here on trial counsel‘s introduction of the transcript and recording of the alleged victim‘s police interview.5 We addressed a similar
issue recently in Watson, 2020 ME 51, ¶¶ 19-39, 230 A.3d 6. There, just before resting the defense case, and without providing any context, trial counsel played a video recording of the ten-year-old alleged victim‘s police interview and introduced a transcript of the interview in evidence for the jury. Id. ¶¶ 1, 7-8. The description of the sexual abuse that the alleged victim gave during the police interview was consistent with her trial testimony, but she made an additiоnal comment to the detective that could have been interpreted as suggesting a motive to fabricate the allegations in order to manipulate a custody dispute.6 Id. ¶¶ 8,
[¶15] We concluded that trial counsel‘s decision was both unnecessary and unreasonable: “It may have been a sound strategy to argue that the victim had a motive to fabricate because of the custody issue and that the detective‘s interview was too short, but these issues could have been raised and argued without playing the entire video interview.” Id. ¶ 24. In the context of a “he said/she said” case, playing the recorded interview for the jury simply served to bolster the alleged victim‘s credibility by providing the jury with her earlier, consistent description of the assaults. Id. ¶ 25.
[¶16] Here, in its initial order denying Hodgdon‘s petition, the post-conviction court stated that trial counsel‘s strategy was to “lay everything on the table with the expectation that the jury would find [Hodgdon], and [Hodgdon‘s] version of events, more credible than the victim and her version.” The court relied on trial counsel‘s assertions, made during closing argument and in a post-trial letter to Hodgdon, that the alleged victim‘s statements during the police interview were internally inсonsistent and inconsistent with her trial testimony and that her allegations were patently incredible. Addressing Hodgdon‘s argument that trial counsel could have accomplished his goal of highlighting inconsistencies without introducing the exhibits, the court stated: “This is certainly true, and if trial counsel‘s sole purpose was limited to presenting one or more of the victim‘s inconsistent statements, introduction of the entire transcript or recording of the victim‘s earlier statement would be questionable.” The court reasoned, however, that trial counsel‘s actions were “meant to accomplish more, as articulated in his closing argument [to the trial jury] as set forth above.”
[¶17] In its order denying reconsideration, the court stated that trial counsel‘s “purpose for introducing the victim‘s interview evidence in this case was to establish the inconsistency between the interview and her trial testimony. This rationale was specifically articulated by trial counsel in his closing argument to the jury when he noted that the victim‘s interview statement . . . (1) [was] internally inconsistent; (2) was inconsistent with the testimony the victim presented at trial; and (3) . . . presented a strikingly incredible story, and thereby challeng[ed] the reliability of the victim‘s testimony.”7 (Emphasis omitted).
[¶19] The alleged victim‘s description of the assaults to the detective was, overall, consistent with her trial testimony. She told the detective that Hodgdon had cultivated a relationship with her while she was in middle school that progressed eventually to physical contact and sexual acts. She talked about being eleven, twelve, and thirteen years old, and in middle school, when the sexual acts took place. She said that Hodgdon subjected her to sexual acts “anytime that he could get [her] all by [her]self with him,” that the sexual acts occurred “a lot of times in school before school would start,” that they occurred “a handful of times” at the school, that they occurred “as much as possible” until she graduated from middle school, and that they were “pretty common” for two to three years after the first few times. This description tracked the alleged victim‘s testimony at trial, tending to support her credibility rather than undermine it.
[¶20] Trial counsel did attempt to highlight inconsistencies during his cross-examination of the alleged victim.8 But even assuming that the interview provided fodder for trial counsel to impeach the alleged victim‘s credibility
through cross-examination, the record provides no possible basis for trial counsel to conclude that it was also necessary for the jury to read and listen to the entire interview.9 Indeed, trial counsel himself acknowledged that more than half of the transcript contained statements that were consistent with the alleged victim‘s trial testimony.
[¶21] Trial counsel‘s decision is particularly perplexing because the exhibits contained an array of additional, otherwise
[¶22] As in Watson, the decision to introduce the entire transcript and recording in this case was not only unnecessary, it was unreasonable. See id. ¶¶ 24-25. It placed the alleged victim‘s numerous prior consistent statements in the hands of the jurors during deliberations, and the State capitalized on the opportunity to focus on those consistencies. It also led to the introduction of otherwise inadmissible evidence—to the effect that Hodgdon had engaged in a pattern of sexual predation upon students that resulted in his losing his job—that was extremely damaging to the defense. See State v. Triolo, No. 2012AP2806-CR, 2013 Wisc. App. LEXIS 971, at *2, *10, *13 (Wis. Ct. App. Nov. 19, 2013) (concluding that trial cоunsel‘s performance was deficient where he failed to object to the admission of a recording of a sexual assault victim‘s police interview that included a reference to a separate assault against another person). In short, there was nothing to be gained—and much to be lost—by submitting the exhibits to the jury. Although a strategy of discrediting the alleged victim by highlighting inconsistencies that arose based on the interview may have been reasonable, the record compels a determination that the method by which defense cоunsel implemented that strategy fell “below what might be expected from an ordinary fallible attorney,” Philbrook, 2017 ME 162, ¶ 7, 167 A.3d 1266 (quotation marks omitted).
[¶23] We also conclude that trial counsel‘s deficient performance caused actual prejudice to Hodgdon as a matter of law. See Watson, 2020 ME 51, ¶¶ 29, 31, 230 A.3d 6. As in Watson, the State‘s case hinged entirely on the alleged victim‘s testimony—there were no witnesses to the alleged abuse, and there was no corroborating physical evidence. See id. ¶¶ 33-36. In this “he said/she said” case, the alleged victim‘s credibility was “the focus of the defense and a central issue” at trial,10 and counsel‘s choice served to bolster her
credibility.
[¶24] We decline, however, to announce a per se rule that a defense attorney‘s introduction of the entirety of an alleged victim‘s pretrial statement will, in all cases, constitute deficient representation. Reviewing cоurts must continue to evaluate each case based on the particular circumstances presented by the trial record, and we cannot conclude that there are no conceivable circumstances in which such a decision could constitute a reasonable trial strategy. See, e.g., id. at 690 (“[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel‘s challenged conduct on the facts of the particular case, viewed as of the time of counsel‘s conduсt.“). Before making that choice, however, trial counsel should always consider alternatives—including cross-examining the witness on selected portions of the prior statement; seeking to admit redacted portions in evidence if necessary; and, where a legitimate goal is to prove that certain topics were not addressed in the prior statement, asking a witness who has reviewed the entire transcript or recording to confirm that fact.
III. CONCLUSION
[¶25] The record compels a determination that, in the context of this case, trial counsel‘s decision reflected representation that fell “below what might be expected from an ordinary fallible attorney,” Philbrook, 2017 ME 162, ¶ 7, 167 A.3d 1266. Because there is a reasonable probability that counsel‘s error altered the result at trial, see Strickland, 466 U.S. at 694, Hodgdon is entitled to post-conviction relief from the sole remaining portion of the judgment of conviction.
The entry is:
Judgment vacated. Remanded for entry of a judgment granting Hodgdon‘s petition for post-conviction review and vacating the remaining conviction (Count 5) of the underlying criminal judgment.
Jeremy Pratt, Esq. (orally), and Ellen Simmons, Esq., Camden, for appellant Benjamin H. Hodgdon II
Matthew J. Foster, District Attorney, and Eden S. Stuart, Asst. Dist. Atty. (orally), Prosecutorial District No. VII, Ellsworth, for appellee State of Maine
Hancock County Unified Criminal Docket docket number CR-2017-1204
FOR CLERK REFERENCE ONLY
Notes
Here, a guilty verdict on Count 5 required proof that Hodgdon had engaged in a sexual act with a person who was under fourteen years old and not his spouse. See
For example, the jury heard evidence that (1) Hodgdon coached cross-country during the fall of the alleged victim‘s eighth-grade year; (2) Hodgdon “had sex” with the alleged victim in his vehicle after cross-country practice; and (3) the alleged victim turned fourteen on March 16, 2000, during the spring of her eighth-grade year. From this evidence, the jury could rationally infer that Hodgdon subjected the alleged victim to a sexual act in his vehicle after cross-country practice during the fall of 1999—before the alleged victim turned fourteen. Hodgdon was, therefore, entitled to a specific unanimity jury instruction concerning Count 5. See Fortune, 2011 ME 125, ¶ 31, 34 A.3d 1115. Given our conclusion in this appeal, however, we need not reach the issue of whether trial counsel‘s failure to request the instruction constituted inеffective assistance of counsel.
As you will know when you read this document, it is internally inconsistent. And I will leave that out there. You will determine that for yourself. . . . The second thing that is striking is that this 54 page document was not the allegation that we heard two days ago on the stand. . . . The third thing that is striking is that the story that is laid out is just incredible, okay? . . . Another indicia of reliability is, is what‘s being said patently provable to be false by other evidence. You can read it for yourself.
In the post-trial letter to Hodgdon, trial counsel wrote, similarly,
Essentially, our fundamental trial strategy was to tie [the alleged victim] to her August 1, 2013 statement (which, as discussed, I actually provided to the jury, albeit notwithstanding some risk) and then to challenge that statement as internally inconsistent, as subject to subsequent elaboration and expansion (and therefore inconsistent), as essentially incredible (especially with regard to allegations of sexual contact at the school—in the modular classroom, in interior classrooms and in your truck in the school parking lot)—and as motivated for fabrication.