Soucy v. State of Maine

Maine Superior

Soucy v. State of Maine

DecidedDecember 29, 2008

DocketKENcr-07-222

StatusUnpublished

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Bluebook

Soucy v. State of Maine, (Me. Super. Ct. 2008).

Pincite

Opinion

STATE OF MAINE r.~::. c~~ 1'·I ·L- ~.1 i\ J-~ f'j '";!', j" f", SUPERIOR COURT ~(- ;'\:'~E:[:- :r KENNEBEC, ss CRIJvlINAL ACTION t. DOCKET NO,' CR- 07- 22 -c', N N1 - if/J- IeX;' d-0,/ ~ '/' " RICKY SOUCY, i : ,-,I l~i I,. . • • , J -• .~ I

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

2 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.)

3 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,

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,

47,

"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.)

4 RICKY SOUCY SUPERIOR COURT vs KENNEBEC, ss. STATE OF MAINE Docket No AUGSC-CR-2007-00222

DOCKET RECORD

PL. DOB: 11/03/1959 PL.

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