Twist v. State

617 A.2d 548
CourtSupreme Judicial Court of Maine
DecidedDecember 3, 1992
StatusPublished
Cited by12 cases

This text of 617 A.2d 548 (Twist v. State) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Twist v. State, 617 A.2d 548 (Me. 1992).

Opinion

RUDMAN, Justice.

Elwood Twist appeals from the denial of his post-conviction petition by the Superior Court, (Kennebec County, Wathen, C.J.), concluding that Twist failed to present sufficient evidence to support his allegations of ineffective assistance of counsel and unlawful sentencing. We affirm the judgment of the Superior Court.

PROCEDURAL AND FACTUAL BACKGROUND

Twist was indicted in a 12-count indictment charging him with sexually abusing five children. Counts I and II of the indictment alleged violations of 17-A M.R.S.A. § 252 (1976) (Rape). Counts III, V, VII, IX and XI alleged violations of 17-A M.R.S.A. § 253 (1976) (Gross Sexual Misconduct). Counts IV, VI, VIII, X and XII alleged violations of 17-A M.R.S.A. § 255 (1979) (Unlawful Sexual Contact). After a jury-waived trial held in the Superior Court, (Kennebec County, Brody, J.), Twist was found guilty on the two rape counts, five counts of gross sexual misconduct and one of the five unlawful sexual contact counts. Twist was found not guilty on the other four counts of unlawful sexual contact. He was sentenced to a total of 85 years in prison. Twist filed a timely appeal to this court and also appealed his sentence. We vacated Twist’s conviction on the two rape counts, affirmed the conviction on the remaining counts. See State v. Twist, 528 A.2d 1250 (Me.1987).

Twist subsequently filed a petition for post-conviction review and, after appointment of counsel, amended his petition for review. After hearing, the court denied the amended petition. We granted Twist’s request for a certificate of probable cause and notice of appeal pursuant to 15 M.R.S.A. § 2131 (1981) and M.R.Crim.P. 76.

I. Claims of Ineffective Assistance of Counsel

We have adopted the “reasonably competent assistance” standard for evaluating claims of the ineffective assistance of counsel. See Doucette v. State, 463 A.2d 741, 744-45 (Me.1983); State v. Toussaint, 464 A.2d 177, 179 (Me.1983); Lang v. Murch, 438 A.2d 914, 915 (Me.1981). Under this standard, which does not require the challenged representation be errorless, *550 counsel’s performance is evaluated by a two-pronged inquiry: (1) whether counsel’s performance falls measurably below the performance that might be expected of an ordinary, fallible attorney; and, if so, (2) whether counsel’s substandard performance “likely deprived the defendant of an otherwise available substantial ground of defense.” State v. Jurek, 594 A.2d 553, 555 (Me.1991) (citing Lang, 438 A.2d at 915). “Pursuant to this standard, the burden is on the defendant to show not only that trial counsel’s performance was deficient but also that the deficiency likely affected the outcome of the trial.” Id. “Failure to prove resultant prejudice precludes relief regardless of the quality of counsel’s performance.” Id. (citing State v. Dafoe, 463 A.2d 770, 775 (Me.1983)).

Appropriately, we are cautious in our evaluation of trial counsel’s performance in order to avoid reaching a result based solely on hindsight. See Toussaint, 464 A.2d at 179. We accord trial counsel great deference in their tactical decisions and these decisions are reviewable solely for “manifest unreasonableness.” See Pierce v. State, 463 A.2d 756, 759 (Me.1983). Manifest unreasonableness occurs only when counsel’s performance deprives the defendant of a substantial ground of defense.

“The standard does not lend itself to categorical rules, but rather is meant to be applied on a case-by-case basis_” Doucette, 463 A.2d at 744 (citations omitted). Each claim, therefore, must be examined separately to determine whether the post-conviction court’s findings were clearly erroneous and unsupported by any competent evidence in the record. See Jurek, 594 A.2d at 555. Findings not specifically articulated by the post-conviction review court are presumed to be consistent with the Superior Court’s decision. See Dou-cette, 463 A.2d at 744.

A. Failure to Call a Nurse Practitioner as a Witness or Introduce Into Evidence Hospital Records.

At trial, Jane Doe 1 offered the only direct evidence in support of Counts III and V (Gross Sexual Misconduct). During cross-examination at trial, Doe denied ever being asked by a nurse practitioner about sexual abuse by Twist. The nurse practitioner had examined Doe on two occasions and had prepared a written report following these examinations. At the post-conviction review hearing, the practitioner testified and her notes reflected that Doe had denied having been sexually molested by the petitioner.

At the post-conviction review hearing, trial counsel testified that prior to the original trial they had access to the records prepared by the nurse practitioner, and had tried to subpoena the nurse practitioner for the original trial but were told she was away on vacation. Trial counsel indicated that they believed the nurse practitioner’s testimony would be of minimal value because Doe’s denial that she had engaged in sexual acts with the petitioner occurred prior to the time formal allegations were made and they had other testimony of Doe’s pretrial statements.

The testimony of the nurse practitioner and the medical records prepared by her would have challenged the trial testimony of Doe. There was, however, other testimony that Doe had denied, subsequent to Twist’s indictment but prior to trial, being sexually abused by Twist. The failure to offer the testimony of the nurse practitioner and her records at trial did not deprive petitioner of an otherwise available substantial ground of defense. There was evidence impeaching Doe’s testimony. Despite this evidence, the trial court found Doe’s testimony to be credible. The review court found that trial counsels’ decision not to introduce testimony from the nurse practitioner and her notes was not manifestly unreasonable. That finding was not clearly erroneous.

B. Failure to Appeal the Trial Court’s Finding That a Six-Year-Old was Competent to Testify.

At trial, the videotaped testimony of a six-year-old was admitted over the objec *551 tion of trial counsel. Trial counsel did not view the six-year-old’s competency as a viable issue on appeal and did not appeal this particular issue trying to avoid “the shotgun approach to appeals.” Given our strict standard of review regarding issues of admissibility of evidence, trial counsel made a well-reasoned tactical decision concerning what issues to appeal. We find ample evidence of the child’s competency for the trial court to have found as it did.

C.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Oliveira v. State of Maine
Maine Superior, 2018
Arbour v. State of Maine
Maine Superior, 2018
Hayden v. State of Maine
Maine Superior, 2017
Gauthier v. State
2011 ME 75 (Supreme Judicial Court of Maine, 2011)
Francis v. State
2007 ME 148 (Supreme Judicial Court of Maine, 2007)
Eno v. State of Maine
Maine Superior, 2005
Merchant v. State of Maine
Maine Superior, 2005
Daprato v. State of Maine
Maine Superior, 2003
State v. Brewer
1997 ME 177 (Supreme Judicial Court of Maine, 1997)
Levesque v. State
664 A.2d 849 (Supreme Judicial Court of Maine, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
617 A.2d 548, Counsel Stack Legal Research, https://law.counselstack.com/opinion/twist-v-state-me-1992.