Lipham v. State of Maine

• Court: Superior Court of Maine
• Decided: January 14, 2008
• Docket: PENcr-07-49
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT PENOBSCOT, ss CRIMINAL ACTION DOCKET NO. CR-07-49 Ki\{- peAl - i / "-1, ~ 0<) 'I

JIMMY LIPHAM, ) ) Petitioner ) ) v. ) Order on Post-Conviction ) Review STATE OF MAINE, ) ) FILED &ENTERED Respondent ) SUPERIOR COURT JAN 14 2008

DECISION PENOBSCOT COUNTY

Under a Post Conviction Assignment Order dated

February 1, 2007, responding to a Petition for Post

Conviction Review, this matter was set for hearing in

Ellsworth, Maine on January 7, 2008. Appointed counsel,

Jeffrey Toothaker, Esq., represented petitioner. Assistant

Attorney General Donald W. Macomber, Esq., represented the

State. Mr. Lipham was present and testified, as did Mrs.

Kerry Lipham (Petitioner's wife) and attorney Bradford S.

Macdonald, Esq. (Petitioner's attorney at trial).

As the Post-Conviction Assignment Order makes clear,

the single ground to be considered on this Petition for

Post-Conviction Review is the ineffective assistance of

counsel. The Law Court has recently confirmed the standard

to be applied in determining whether a defendant has

1 received constitutionally ineffective assistance of counsel

in the case of Francis v. State, 2007 ME 148. In that

case, the Law Court advised:

"To determine whether a petitioner received constitutionally ineffective assistance of counsel, this Court conducts a two-prong inquiry./f See Alexandre v. State, 2007 ME 106, ~ 43, 927 A.2d 1155, 1167. First, we examine "whether there has been serious incompetency, inefficiency, or inattention of counsel amounting to performance . . . below what might be expected from an ordinary fallible attorney . . • . " McGowan v. State, 2006 ME 16, ~ 11, 894 A.2d 493, 496-97 (quotation marks omitted). Second, we determine whether the attorney's performance "likely deprived the defendant of an otherwise available substantial ground of defense" or "likely affected the outcome of the [proceeding]." Id. ~~ 11-13, 894 A.2d at 497 (noting that "the federal and state guarantees are virtually identical"); see also Strickland v. Washington, 466 u.S. 668, 694 (1984) (holding that the 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"). In applying the test, we may "begin with the second prong regarding prejudice because if it is determined that there was no prejudice, there is no need to address the first prong regarding whether counsel's performance was deficient." McGowan, 2006 ME 16, , 13, 894 A.2d at 497.

Discussion 1. Background

In his Petition, allegations are made with

respect to actions in the form of omissions or failure in

judgment on the part of defense counsel. See Petition for

Post-Conviction Review, § 27A. The salient facts, most of

which were reaffirmed by the witnesses at the Post­

2 Conviction Hearing, are as follows and are found in the Law

Court decision on the criminal appeal of State v. Lipham,

2006 ME 137, 910 A.2d 388, 390-391.

On July 31, 2003, Jimmy Lipham and the decedent, David

Langway, acquaintances since 1984, drove to Lipham's home

in Glenburn. Upon arrival, Langway walked to a field behind

the house to pick blueberries, while Lipham went inside to

retrieve his Glock .45 caliber handgun. Lipham testified

that the men intended to poach a deer, and that he hid the

handgun from his wife because she would not approve. The

two men then entered the woods behind the house.

While in the woods, Lipham shot Langway in the back of

the head, killing him. Lipham testified that he tripped and

fell, causing the handgun to accidentally discharge. After

the shooting, Lipham discarded Langway's wallet, shirt, and

lunchbox in a Bangor dumpster. In the days following the

shooting, Lipham dismembered and buried the body in the

woods behind his house. He sought to conceal Langway's

death by using Langway's food stamp card to purchase

groceries, and having Langway's mail forwarded to a private

mailbox opened by Lipham using the alias Jimmy Green.

In September 2003, the police investigating Langway's

disappearance stopped at Lipham's home when Lipham was

visiting his family in Alabama. After speaking with

3 Lipham's wife, the police conducted a search of the woods

behind his house, where they found a skull fragment and a

buried torso that DNA tests later confirmed were the

remains of Langway.

At the request of police, Lipham's wife placed a

secretly recorded phone call to him in Alabama. During the

call, Lipham's wife confronted him about the death of

Langway, making several statements indicating that she

believed Lipham had killed him intentionally. 1 Lipham did

not respond to her allegations, other than to direct her to

file for a legal separation and a restraining order, and to

tell the police nothing. Soon thereafter, Lipham was

arrested in Alabama for the murder of Langway. When members

of the Maine State Police arrived to supervise his

extradition to Maine, Lipham made a voluntary statement

confessing to the shooting, but claiming it was an

accident.

Prior to trial, Lipham filed two motions in limine

seeking to exclude evidence of the recorded phone call as

inadmissible under the husband-wife privilege, and unfairly

prejudicial pursuant to M.R. Evid. 403. The Superior Court

1 Mrs. Lipham's more damning statements include: "I'm not stupid. I know what you did . . . "~ "He was harmless. Why? Why did you do that? Why couldn't you just have said 'Go to hell Dave, I quit,' and just gone home"~ and "I'll never understand how you could have stood there and done that, I, I'll just never understand it."

4 denied both motions, but instructed the jury on several

occasions that Mrs. Lipham's statements during the call

were not admissible for any reason other than context.

Following his conviction, the court denied Lipham's motions

for a new trial pursuant to M.R. Crim. P. 33 and for

acquittal pursuant to M.R. Crim. P. 29(b), and sentenced

Lipham to forty years in prison. This appeal followed."

2. Post-Conviction Review Challenges

Mr. Lipham raises several specific challenges he feels

demonstrate the ineffective assistance of his trial

counsel. They include (1) that counsel did not challenge

his wife's mental condition (at hearing, this was expanded

to not having impeached her credibility at trial when she

testified). Likewise (2) Petitioner challenged his

counsel's failure to impeach the credibility of the State's

other prime witness, Chad Tracy as well as (3) Counsel's

failure to ask for curative instructions regarding the

admission of the substance of the phone call between the

Petitioner and his wife and failure to ask for a mistrial

on the same grounds.

A. Failure to Challenge Kerry Lipham's Mental

Condition

A review by the Court of the trial transcript of Mrs.

Lipham's testimony clearly revealed efforts to impeach Mrs.

5 Lipham as to both her visual acuity and her history of

memory loss. Trial Transcript ("Trans") Vol. 2 at 107-111.

Mrs. Lipham testified before this Court on behalf of Mr.

Lipham. While the substance of her testimony did not add

to the facts, which had been presented from a variety of

sources, that testimony did confirm Mrs. Lipham's

acknowledgment that she had significant memory problems as

of January of 2008. It was impossible for the Court to

conclude how significant those problems were in June of

2005 when this case was tried. Mr. Lipham's testimony

suggested that Mrs. Lipham sought medical assistance for

her memory problems in the summer of 2005 when this case

was being tried. No records were provided to help the

Court determine what medical professionals were saying

either about the status of her memory in June of 2005 or as

of now.

The transcript of Mrs. Lipham's testimony suggests on

its face that Mrs. Lipham was able to respond to questions

about the facts surrounding this shooting with a higher

degree of comfort in June of 2005 then she was able to

muster in January of 2008. Whether that change is due to

the passage of time or the deterioration of her mental

condition, there is no way for the Court to tell. Without

supporting medical provider records, there is no way to

6 determine what might have been available to counsel to

attack or impeach her visual acuity or her mental capacity.

The questioning of Mr. Lipham and attorney Macdonald

in January of 2008, revealed that Mr. Macdonald used all

the information he had available at the time to impeach

Mrs. Lipham and that he was only made aware of Mrs.

Lipham's alleged memory loss at the last moment before

trial began. He held nothing back. Moreover, as Mr.

Macdonald explained, the impeachment and degree of

impeachment of Mrs. Lipham was a dangerous path for the

defendant to follow. That is, there were only two direct

witnesses to this fatality, Mr. Lipham and the decedent.

Mrs. Lipham was on a picnic bench in her back yard at the

time these events unfolded and as such was the next best

witness on how they unfolded. She was, however, several

hundred yards from the woods into which Mr. Lipham and the

decedent walked. Clearly, there was testimony from Mrs.

Lipham that was very damaging to Mr. Lipham. However, she

had things to say that the defendant needed the jury to

accept. They included that Mr. Lipham came out of the

woods in a panic after she heard the shot - bolstering his

position that the shooting was not intentional but was

accidental. Trans. Vol. 2 at 73, 74.

7 Impeachment questions were asked, perhaps less

aggressively than might have been done, but they were asked

with a clear view to the strategy of demonstrating the lack

of intent. It must be recalled that when he was arrested,

Mr. Lipham admitted that he had shot the decedent but that

it was an accident. See Lipham, 910 A.2d at 391. It also

must be noted that in January of 2008, Mrs. Lipham was

encouraging the Court to accept that she was having memory

problems in June of 2005, although she could not be sure

and vacillated on this point. However, a review of the

trial transcript in June of 2005, demonstrates she clearly

was not willing to acknowledge either that she had memory

problems or visual acuity problems. Trans. Vol. 2 at 107­

Ill.

Upon a review of the trial transcript, the Law Court

decision of State v. Lipham, and the testimony of the

witnesses who testified on January 7, 2008, the Court is

not persuaded that Mr. Macdonald's representation of Jimmy

Lipham in preparation for and participation in the trial in

June of 2005, constitutes a violation of Mr. Lipham's

constitutional right to be represented by counsel who

provides effective assistance in the legal representation

of the defendant. As phrased in Francis, the Court is not

persuaded that attorney Macdonald's performance "likely

8 deprived the defendant of an otherwise available

substantial ground of defense" or "likely affected the

outcome of the [proceeding]." The Court denies the

Petition on the grounds raised in item #1.

B. Failure to Impeach Chad Tracy

Mr. Tracy's testimony was brief, but significant.

Trans. Vol. 2 at 172, 127. The essence of it was that Mr.

Lipham has said in a joking manner that he liked Maine

because if someone did you a wrong, you could off them and

bury them in a back yard.

On cross examination, Mr. Macdonald sought to

discredit Mr. Tracy due to outstanding charges and

motivation to improve his position with law enforcement by

coming forward after the murder had been discovered and

reporting this conversation. Trans. Vol. 2 at 181-188.

At the January 7 ili hearing, Mr. Macdonald shared with

the Court and parties, the efforts his office made in order

to find any matter on which Mr. Tracy's credibility could

be impeached. Other than the tangential issue that he

ultimately pressed at trial, he was able to find nothing.

Likewise, when he testified, Mr. Lipham acknowledged that

he was aware of no other impeachment information, but felt

that Mr. Macdonald should have found some. The Court

concludes that Mr. Macdonald's efforts were reflective of

9 creative and good lawyering as opposed to representing in

effective assistance of counsel as defined by the Law Court

in Francis. The Court denies the Petition on the grounds

raised in item #2.

C. Failure to Ask for Curative Instruction on

Admission of Phone Call

Passing by the fact that there were several Motions in

Limine filed by Defense counsel seeking to limit or exclude

the admission of the phone call between Mr. and Mrs. Lipham

(Lipham, 910 A.2d at 391) a review of the trial transcript

confirms multiple times that Mr. Macdonald sought to object

to or limit the introduction and use of the tape recorded

conversation between Mr. and Mrs. Lipham. The Court agreed

at Trans. Vol. 2 at 86-87 to give a limiting instruction in

terms of using that transcript. Again, the Court gave a

cautionary instruction on the admissibility of Mr. Lipham's

statements or lack of statements but not Mrs. Lipham's.

Trans. Vol. 2 at 92. At Trans. Vol. 2 at 96, attorney

Macdonald again objected to the admission and use of the

phone call tape/transcript. Finally at Trans. Vol. 2 at

98, Mr. Macdonald again asked the Court to repeat it

cautionary instruction and that was done.

Reviewing the Trial Transcript, the decision of the

Law Court in State v. Lipham and the testimony of the

10 witnesses at the Post-Conviction Review hearing on January

7, 2008, as well as the arguments of counsel given at that

time, the Court is persuaded that the efforts of Mr.

Macdonald, on behalf of Mr. Lipham with respect to the

admission of the phone call Mr. Lipham had with Mrs. Lipham

during the trial, do not represent the ineffective

assistance of counsel as that term is defined in Francis

and the cases cited therein. The Court denies the Petition

on the grounds raised in item #3.

The Court would restate as it did at the January 7,

2008, hearing that the arguments of prosecutorial

misconduct and erroneous admission by the trial court of

the exhibit reflecting the phone call between Mr. and Mrs.

Lipham is not part of this proceeding. These issues were

dealt with in the direct appeal to the Law Court. Lipham,

910 A.2d at 390 n.1.

The entry shall be: PETITION DENIED

Dated: January 14, 2005 £&?3f Kevin M. Cuddy, Justice

11 ATTORNEY FOR THE STATE

Fernand LaRochelle Asst AG OFFICE OF THE ATTORNEY GENERAL 6 STATE HOUSE STATION AUGUSTA ME 04333

ATTORNEY FOR THE PETITIONER

Jeffrey Toothaker Esq POBOX 1084 ELLSWORTH ME 605