Soucy v. State of Maine
Opinion
STATE OF MAINE r.~::. c~~ 1'·I ·L- ~.1 i\ J-~ f'j '";!', j" f", SUPERIOR COURT ~(- ;'\:'~E:[:-
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KENNEBEC, ss CRIJvlINAL ACTION t.
DOCKET NO,' CR- 07- 22 -c', N N1 - if/J- IeX;' d-0,/ ~ '/' "
RICKY SOUCY, i :
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Petitioner
v. DECISION AND ORDER ON PETITION FOR
STATE OF MAINE, POST-CONVICTION REVIEW
Respondent
The petitioner was found guilty after a jury trial of two counts of class A gross sexual assault and three counts of class B unlawful sexual contact. He received a sentence of thirty-five years incarceration, all but twenty years suspended, and six years of probation on the class A offenses and eight years on the class B offenses, to be served concurrently.
The petitioner's motion for a new trial was denied on 10/15/04. His appeal of his sentence was denied by decision dated 1/30/06.
In his petition for post-conviction reVIew (PCR)!, the petitioner alleges he received ineffective assistance of counsel at trial and at sentencing based on the following:
1. counsel allowed the petitioner to proceed to trial knowing that he was under the influence of a narcotic and not competent;
2. counsel failed to counter the testimony of Dr. Lawrence Ricci at trial;
3. counsel failed to present exclupatory witnesses' testimony at trial to testify on behalf of the petitioner and failed to request a Clifford order; and
I On 9/17/08, the State wi thdrew its motion to dismiss dated 5/9/08 and the petitioner withdrew ground two of the amended petition. The State's motion to dismiss dated 9/9/08 is denied.
4. counsel agreed to the admission of unsworn statements of uncharged criminal conduct at sentencing. For the following reasons, the petition is denied. FINDINGS Trial counsel believed the plea offer from the State was favorable for this difficult case to try. The defense was that the allegations were made up and the victim was lying. The petitioner also advised trial counsel that the victim would not testify that the conduct occurred. The victim did, in fact, testify that the petitioner committed the conduct alleged in the indictment. (Trial Tr. at 10, 14-27.)
Competency Trial counsel met with the petitioner several times before trial. Trial counsel was not aware at any time that the petitioner was under the influence of drugs or was taking prescription medicine. The petitioner exhibited no signs of impairment and did not inform trial counsel that the petitioner was taking medicine. In fact, the petitioner assisted trial counsel at trial. The petitioner's testimony at the hearing on the petition for PCR that he was "pretty confused" does not require a finding of incompetence or impairment.
Dr. Ricci Trial counsel chose not to pursue an independent review of Dr. Ricci's report or a second evaluation of the victim. Trial counsel had been involved in cases in which Dr. Ricci was an expert witness. Trial counsel understood the Ricci report and did not require an expert to explain the report. Trial counsel determined that a request for a second exam of the victim would be more invasive than reasonable.
On cross-examination, trial counsel highlighted that Dr. Ricci concluded only that his findings were "consistent with sexual abuse." (Trial Tr. at 182.) Dr. Ricci also
agreed that his findings were consistent with penetrating trauma, which could be caused by something other than sexual abuse. (rd. at 183-84.)
There is no evidence in this record that a second evaluation or an independent review of Dr. Ricci's report would have resulted in evidence favorable to the petitioner.
Exculpatory Witnesses The petitioner testified at the hearing on the petition for PCR that his stepchildren should have been called to testify about his conduct at the house and to show ~he absence of sexual behavior on his part. These potential witnesses did not testify at the hearing on the petition for PCR. There is no evidence in this record with regard to whether these witnesses were available or what these witnesses would have testified about, except for the defendant's vague generalizations and his speculation that the witnesses would have helped.
Trial counsel did not request a Clifford order with the regard to records from the Department of Health and Human Services because he had no reason to believe they would be helpful. No such records were produced at the hearing on the petition for peR. There is nothing in this record to show such records would have been helpful to the defendant.
Statements at Sentencing At sentencing, the State made an offer of proof about the proposed testimony of Danielle Smith, who was identified to trial counsel on 7/22/04. (Sentencing Tr. at 10 12.) The offer of proof described the petitioner's looking up Ms. Smith's nightgown and assaulting her when she was eight years old. (rd.) Trial counsel objected to the offer of proof. (rd. at 14-17; 20-23.) The State proposed either to call Ms. Smith to the witness stand or to offer her written statement. (rd. at 19.) After argument, the court determined that the testimony of Ms. Smith would be admitted. (rd. at 24.)
Based on that ruling, trial counsel waived his right to cross-examine Ms. Smith and preferred that the court read unsworn statements from Ms. Smith as opposed to her live testimony. (Id. at 25-27.) Trial counsel chose this strategy because he was concerned that if Ms. Smith testified, she might elaborate on the written statements and make matters worse for the petitioner?
Prior to trial, the petitioner's private investigator has investigated Ms. Smith.
Trial counsel determined that Ms. Smith would not be a favorable witness for the defense. CONCLUSIONS For trial issues, the petitioner must demonstrate that there has been serious incompetency, inefficiency or inattention of counsel that falls below that which might be expected from an ordinary fallible attorney and that the ineffective representation by counsel has likely deprived the defendant of an otherwise available substantial ground of defense. See State v. Brewer, 1997 ME 177, <JI<JI 15-17, 699 A.2d 1139, 1143-44. "[T]he test is applied on a case-by-case basis, and evaluations of ineffective assistance of counsel claims are 'guided by the overall justness and fairness of the proceeding.''' McGowan v. State, 2006 ME 16, <JI 12, 894 A.2d 493,497 (quoting Aldus v. State, 2000 ME 47, <JI<JI 14-15, 748 A.2d 463, 468.
"Defense counsel owes a duty to the client to conduct a reasonable investigation."
Lagassee v. State, 655 A.2d 328, 329 (Me. 1995). That duty includes a duty to interview witnesses who have information relevant to a case. See Doucette v. State, 463 A.2d 741, 745 (Me. 1983). In order to show prejudice, the petitioner must show that an allegedly exulpatory witness was available for trail and the nature of the witness's testimony. Id. at 745-46.
2 The defendant declined to make any statement at sentencing. (SentencingTr. at 61.)
RICKY SOUCY SUPERIOR COURT vs KENNEBEC, ss. STATE OF MAINE Docket No AUGSC-CR-2007-00222
DOCKET RECORD
PL. DOB: 11/03/1959 PL. ATTY: DAVID PARIS State's Attorney: EVERT FOWLE 72 FRONT STREET
BATH ME 04530-2657
APPOINTED 03/07/2008
Filing Document: PETITION Major Case Type: POST CONVICTION REVIEW Filing Date: 03/08/2007
Charge(s) Docket Events: 03/08/2007 FILING DOCUMENT - PETITION FILED ON 03/08/2007 03/19/2007 MOTION - MOTION FOR APPOINTMENT OF CNSL FILED BY DEFENDANT ON 03/13/2007 03/21/2007 MOTION - MOTION FOR APPOINTMENT OF CNSL GRANTED ON 03/21/2007
COpy TO PARTIES/COUNSEL
03/21/2007 Party(s): RICKY SOUCY ATTORNEY - APPOINTED ORDERED ON 03/21/2007
Attorney: ROBERT RUFFNER
03/21/2007 POST CONVIC. REVIEW - REVIEW SENT FOR REVIEW ON 03/21/2007
03/29/2007 FINDING - SUMMARILY DISMISSED ENTERED BY COURT ON 03/29/2007
ORDER TO SUMMARILY DISMISS POST-CONVICTION REVIEW OS/24/2007 APPEAL - NOTICE OF APPEAL FILED ON 05/04/2007
OS/24/2007 APPEAL - NOTICE OF APPEAL SENT TO LAW COURT ON OS/24/2007 06/08/2007 FINDING - DISMISSED BY COURT ENTERED BY COURT ON 06/08/2007
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