DECISION AND ORDER ON PETITION FOR POST-CONVICTION REVIEW
Nancy Mills, Justice
Petitioner was indicted on 12/30/09 for class B unlawful sexual contact and class C unlawful sexual contact involving B.S. and class B unlawful sexual contact and class D unlawful sexual touching involving A.S.A. B.S. is the daughter of Sarah Masse, petitioner's former girlfriend with whom he lived. B.S. and A.S.A. were "like sisters, " and spent time at petitioner's apartment, according to A.S.A/s testimony at the first trial. (7/20/10 Trial Transcript 29-30.) A.S.A. first reported what happened to her to Ms. Masse when Ms. Masse called A.S.A. (9/14/11 Trial Transcript 89-90.)
Petitioner's trial counsel for the three trials began practicing law in 2007. Her practice is entirely criminal defense. This was not her first trial involving sex crimes.
Petitioner's first jury trial began July 20, 2010. After a State's witness, Ms. Masse, admitted cashing petitioner's Social Security checks, the court recessed the trial and appointed an attorney to represent Ms. Masse. (7/20/10 Trial Transcript 151-53.) After consultation with the attorney, Ms. Masse concluded she would assert her' Fifth Amendment privilege if further questions about the household funds and income were asked. (7/20/10 Trial Transcript 153-54.) Both attorneys joined in requesting a mistrial, which was granted. (7/ 20/10 Trial Transcript 155-59.)
Petitioner's second jury trial began September 14, 2011. Ms. Masse, still represented by counsel, intended to testify and waive her Fifth Amendment privilege. (9/14/11 Trial Transcript 4-11.) The alleged victim in counts 1 and 2, B.S., was unwilling to answer the prosecutor's questions about her interaction with petitioner. (9/14/11 Trial Transcript 140-44; 149-51; 163; 165-66; 181.) The court spoke with B.S. on two occasions regarding her failure to answer questions. (9/14/11 Trial Transcript 162-65; 178-81.) Near the conclusion of B.S/s testimony on September 14, 2011, the court noted, "[i]f this is the end of her testimony, I think even the State would concede that there would not be enough to go to the jury." (9/14/11 Trial Transcript 155.) In the brief additional attempt to solicit testimony from B.S., she added nothing that would have allowed the charges involving her to go to the jury. (9/14/11 Trial Transcript 165-66.)
Petitioner's counsel argued her client had a Sixth Amendment right to cross-examine B.S. (9/14/11 Trial Transcript 168, 182-184, 189.) After discussion with counsel about the ramifications of B.S/s failure to testify, the court recessed the trial. (9/14/11 Trial Transcript 151-62; 166-78; 181-99; 191-93.) The State did not ask B.S. to be present at the courthouse on the next day. (9/15/11 Trial Transcript 3-5.) Petitioner's counsel initially continued her desire to cross-examine B.S., but later withdrew that request. (9/15/11 Trial Transcript 5, 7.)
The court declared a mistrial. (9/15/11 Trial Transcript 7-9.) Neither the State nor petitioner's counsel made any statement regarding a mistrial on September 15, 2011. (9/15/11 Trial Transcript.) The issue had been discussed the previous day. (9/14/11 Trial Transcript 181-99.) Trial counsel noted that her inability to cross-examine B.S. "would be manifest necessity again." (9/14/11 Trial Transcript 189.) With regard to the M.R. Evid. 804(a)(2) issue, the court stated:
I am going to find that it is not necessary at this point for the Court to make a decision whether [B.S.] is unavailable within the meaning of the confrontation clause because of the Court's finding that if she was unavailable and the prior testimony was admitted, that the confrontation issues created by her statements yesterday and the inability of the defense to cross-examine her on those statements, creates a confrontation issue that cannot be remedied.
(9/15/11 Trial Transcript 7-8.)
After the second mistrial, a misdemeanor plea was scheduled for November 29, 2011. Petitioner changed his mind and no pleas were entered. (State's Exs. 1, 2.)
Petitioner's third jury trial began March 15, 2012. Prior to the start of the third trial, counts 1 and 2 of the indictment involving B.S. were dismissed with prejudice by the State. (3/15-16/12 Trial Transcript 3-4.) No evidence was presented at the third trial regarding Ms. Masse's use of petitioner's money. No evidence was presented by the defense. On March 16, 2012, the jury found petitioner guilty of unlawful sexual contact with penetration and unlawful sexual touching involving A.S.A. (3/15-16/12 Trial Transcript 188.)
On March 27, 2012, petitioner's counsel filed a motion for a new trial. Counsel argued that the prosecutor used leading questions when examining the State's witnesses throughout the three trials and impermissibly nodded his head to signal answers during cross-examination of A.S.A. during the third trial. (7/16/12 Transcript 3, 14.) The motion was argued on July 10, 2012; no evidence was offered. (7/16/12 Transcript.) By order filed August 20, 2012, the motion for a new trial was denied.
On November 29, 2012, petitioner was sentenced to eight years with all but four years suspended and four years of probation on unlawful sexual contact and ten months on unlawful sexual touching. The sentences were ordered to be served concurrently. (11/29/12 Transcript 18.)
Trial counsel filed petitioner's request for leave to file an appeal of sentence on December 13, 2012 and the request was denied on March 15, 2013. Trial counsel filed a notice of appeal on December 13, 2012. A different attorney pursued the appeal.
The Law Court affirmed the judgment on October 8, 2013. State v. Carey, 2013 ME 83, 77 A.3d 471. The Law Court reviewed the declaration of a mistrial of the second trial for obvious error because no objection was made to the declaration. Id. ¶ 18. The Law Court affirmed the declaration because defendant impliedly consented. Id. ¶ 20. The Law Court stated:
In this case, the court did not explicitly ask Carey whether he consented to declaration of a mistrial. However, Carey's objections to continuing to question the witness in front of the jury, combined with his objections to using the witness's testimony from the first trial, left the trial court with little choice, which Carey apparently recognized.
Id. ¶ 22. The Law Court concluded the defendant's implied consent "eliminates any barrier to retrial under the double jeopardy clause." Id. ¶ 21.
In his petition for post-conviction review, petitioner argues he received ineffective assistance of counsel based on the following:
1. counsel failed to object to a mistrial during the second trial;
2. counsel failed to present defense witnesses;
3. counsel failed to allow petitioner to testify;
4. counsel failed to raise the issue of improper conduct by the prosecutor in a timely fashion; and
5. counsel failed to present evidence at the hearing on the motion for a new trial.
For the following reasons, the petition ...