Bathgate v. State of Maine

Maine Superior

Bathgate v. State of Maine

DecidedApril 18, 2014

DocketKENcr-12-378

StatusUnpublished

This text of Bathgate v. State of Maine (Bathgate v. State of Maine) is published on Counsel Stack Legal Research, covering Superior Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bathgate v. State of Maine, (Me. Super. Ct. 2014).

Pincite

Opinion

EN 1 ERED NOV 0 4 2014

STATE OF MAINE SUPERIOR COURT Kennebec, ss CR-12-378 YIIB/UIY

Peter G. Bathgate, II,

Petitioner

v. ORDER ON PETITION FOR POST -CONVICTION REVIEW

State of Maine,

Respondent

BACKGROUND

Before the Court is a Petition for Post-Conviction Review brought by Peter G.

Bathgate, II who was convicted upon a guilty plea entered by him on January 27, 2012 to

the intentional and knowing Murder of Paul A. Allen. The parties jointly recommended a

sentence of 45 years in prison, which was accepted and imposed by the Court.

The Petitioner filed this matter on May 9, 2012. An Amended Petition was filed

on August 1, 2012 after counsel was appointed. Petitioner is represented by Attorney

Verne Paradis. The State is represented by Deputy Attorney General William Stokes.

Hearing on the Petition was held on March 6, 2014. Before the hearing, Petitioner's

counsel clarified that certain claims made in the Amended Petition were being

withdrawn, specifically paragraphs 5-7. 1

1 The withdrawn claims alleged that Petitioner was pressured into pleading guilty by trial counsel, and that his guilty plea was not knowing and voluntary; that trial counsel failed to effectively argue for mitigation at sentencing, and that he failed to prepare Petitioner to speak at sentencing; and that trial counsel failed to advise him of his right to direct appeal as well as collateral rev'iew of his conviction.

1 The claims that remain for resolution by the Court are as follows. First, he alleges

that trial counsel failed to adequately advise him about the defense of adequate

provocation. Second, he alleges that Trial Counsel failed to adequately challenge the

admissibility of statements Petitioner made to police. Third, he argues that Trial Counsel

failed to effectively negotiate a plea agreement by not presenting his defenses to

prosecutors and presenting him for a proffer regarding the involvement of Jessica Jones

in the murder. She was his girlfriend at the time Paul Allen was killed by the Petitioner.

At hearing, the Petitioner called Dr. Carlysle Voss, M.D and the Petitioner. The

State called Trial Counsel. The Court has considered the testimony of the witnesses, the

admitted exhibits, and the written arguments of counsel, the last of which was received

by the Court on March 31,2014.

FINDINGS AND CONCLUSIONS

In order to prevail on this Petition for Post-Conviction Review, the parties agree

that Petitioner must prove two things. First, he must establish that Trial Counsel's

performance fell measurably below the performance that might be expected of an

ordinary, fallible attorney. If he proves that, he must also prove that the substandard

performance "likely deprived the defendant of an otherwise available substantial ground

of defense." Legasse v. State, 655 A.2d 328, 329 (Me. 1995). The Court will address each

claim separately in light of these standards.

2 I. Adequate provocation defense

Petitioner claims that Trial Counsel failed to competently prepare and

present the affirmative defense of adequate provocation. The Court has reviewed the

statutes in question which provide for this defense, and the Court has reviewed case law

referenced by both parties, including State v. Hanaman, 2012 ME 40 and State v.

Pulsifer, 1999 ME 24.

The Court concludes, based upon the essentially uncontested facts of what

occurred, and viewing those facts in the light most favorable to the Defendant, that no

instruction for this defense would have provided by the trial court even if the matter had

gone to trial and been requested. As the parties know, in order to be entitled to this

instruction, a person must not only be under the influence of extreme anger or extreme

fear, but the extreme emotion (anger or fear) must have been provoked by the victim. The

provocation, however, must also be legally adequate, which requires that the defendant's

reaction be objectively reasonable. In addition, the Defendant must not have induced the

provocation. Hanaman, ~20. If a Defendant instigates or creates a situation or event that

results in provocation, or places himself in a situation that results in arousal of fear or

anger, the defense is unavailable. Id. 26; State v. Warmke, 2005 ME 99; State v.

Lockhart, 2003 ME 108.

In this case, it is undisputed that the Defendant did "lure or bait Mr. Allen out to a

secluded area in Hallowell, hide in the bushes for him, attach him with a cane, stab him

multiple times and then run over him with his car .... " State's Memorandum, pg. 5.

Defendant's claim is that the victim provoked him because he had been "grooming" his

daughter for sexual abuse (the Defendant claims the victim was a sex offender) and also

3 because the victim had been making advances toward his girlfriend. However, these acts

of provocation could hardly be seen as legally adequate given the law's requirement that

the extreme anger or fear be close, if not immediate, in time to the acts provoking the

extreme emotions. State v. Warmke, 2005 ME 99, ~14. The failure of the Petitioner to

chronologically link the alleged acts of the victim to the Defendant's response to those

acts would have prevented the Trial Court from instructing on this defense.

Because Petitioner has failed to prove that he could have generated the defense of

adequate provocation, the Court will deny his first claim for relief.

II. Counsel's failure to pursue the .filed motion to suppress statements

Petitioner claims that Trial Counsel was ineffective for failing to pursue a

a motion to suppress that had been filed by the attorney initially appointed to represent

the Petitioner at trial. Petitioner claims alternatively that he would likely have prevailed

on the motion, and that at the very least, pursuing it would have resulted in him having

leverage with the State resulting in a better outcome.

Petitioner suggests that the testimony of Dr. Voss supports his position. However,

after hearing from Dr. Voss and reviewing the transcript ofhis testimony, the Court

concludes that Dr. Voss' opinion provides no such support for this claim. Dr. Voss, like

the expert retained earlier in the trial process by defense counsel, cannot help the defense

position. Dr. Voss did state that consuming large quantities of drugs and/or alcohol,

combined with sleep deprivation, could render a person incapable of knowing and

voluntarily waiving his constitutional rights. However, in Petitioner's case, Dr. Voss

came to just the opposite conclusion. [Transcript, pg. 37-38].

4 The Court concludes that based upon Dr. Voss' testimony the Petitioner has failed

to prove that he was deprived of an available, substantial grounds of defense and that he

would not have prevailed had he pursued the motion. In addition, the Court concludes

that Petitioner has failed to prove that he would have had leverage with the State simply

by pursuing this motion. The State is certainly not conceding this, and there is no

evidence in the record, expert or otherwise to support this assertion.

The Court will therefore deny this claim for relief.

III. Counsel's failure to utilize information regarding Jessica Jones

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