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Fortune v. State

Superior Court of Maine, Kennebec

December 23, 2015

STATE OF MAINE, Respondent


DONALD H. MARDEN, Superior Court Justice.

Petitioner was convicted upon jury verdict in a trial conducted in Somerset County on multiple counts of aggravated attempted murder, attempted murder, and related offenses. The petitioner pled guilty to theft, failure to appear, and violation of a condition of release prior to trial. On the aggravated attempted murder and attempted murder convictions he was sentenced to life in prison. The defendant appealed the conviction. The Law Court denied the appeal holding that the conviction of attempted murder could be based upon a jury's finding that the State proved all elements of the attempted murder as to one of the three victims named. They were not required to find all elements of attempted murder as to all three victims in spite of being named in a single count indictment. The court also determined that the aggravated attempted murder statute does not violate State or Federal Constitution by providing for the imposition of a sentence of life in prison rather than a term of years.

Petitioner initiated his petition for post-conviction review in August of 2012. Petitioner alleges incompetent assistance of counsel relating to discovery regarding State witnesses, hiring of private investigator, and allowing petitioner to plead guilty to theft and other charges. Upon his request, counsel was assigned in September of 2012. The case was assigned to a Superior Court Justice. An amended petition was filed in October of 2013.

In that petition, defendant's counsel asserts that the petitioner was deprived of his Fifth Amendment right against self-incrimination. He was not informed by the court or his counsel of his right not to testify and a jury instruction that his silence could not be considered evidence. Petitioner next challenged the court's jury instruction that did not require the jury to unanimously find the petitioner guilty of all three named victims in the charge rather than a single victim. The petitioner complained that trial counsel failed to present mitigating evidence at sentencing and alleged that the was deprived of his right under the Eighth Amendment to the U.S. Constitution prohibiting cruel and unusual punishment by the imposition of a life sentence for crimes other than murder and committed as an accomplice. Petitioner complained of discovery violations by the State.

The petitioner alleged that he was denied his right under the Confrontation Clause of the U.S. Constitution when the allocution at sentencing of his codefendant was read to the jury in the absence of the codefendant.[1] He complained that the empaneled jury was Constitutionally deficient in that no members of a minority race like himself were chosen. In sum, he petitioned this court to find that trial counsel and appellate counsel were inadequate in not pursuing all these issues during this criminal litigation and had they done so, he would have been acquitted of the charges.

Hearing on the petition was conducted by the court in November of 2014. At the post-conviction hearing, petitioner asserted five allegations of matters to be reviewed by this court. First, he complained that he was not afforded proper counsel regarding his right to testify or not to testify and therefore his decision to testify was highly prejudicial based upon his ignorance of his rights. Secondly, he asserted a violation of his Sixth Amendment rights by virtue of defense counsel not insisting the court instruct the jury that it must find attempted murder on all three persons named in a single count of the indictment rather than a single victim. Third, he argued violation of his Eighth Amendment rights in the imposition of a life sentence for attempted murder. Fourth, he argued that he was denied his Constitutional right of confrontation when his codefendant's statements in allocution made at the time of codefendant's sentencing was read to the jury during Mr. Fortune's trial. Finally, he complained that he was denied a jury of his peers inasmuch as the trial was not transferred to a county with a significant minority population sufficient to ensure that at least one member of the trial jury would be of a minority.[2] He asked for review of the performance of both trial and appellate counsel for adequate effectiveness.

The parties stipulated to a statement by appellate counsel as to the basis upon which he brought particular issues to the attention of the appellate court. Appearing as witnesses at the post-conviction hearing were Mr. Fortune, the petitioner, his defense counsel at trial, and a local retired attorney who assisted defense counsel, offering to do so as a former neighbor and family friend of Mr. Fortune.

Petitioner testified that he had a number of conversations with his defense counsel in meetings at the jail, exchange of mail, and phone calls. He testified that he made it clear to counsel that he would not testify. He was very involved in the preparation for trial. He insisted that counsel did not tell him about his right not to testify or that the judge would instruct the jury that his failure to testify was not evidence.

Mr. Fortune testified that on May 13, at 11:40 a.m. the State rested. He said that he, defense counsel, and co-counsel, went into a room where they discussed the future of the trial. He said that his counsel told him that they had beat the attempted murder charge and that they needed to talk about the robbery charges. He insists there was no preparation as to what questions would be asked if he testified. He admitted that he decided to testify because he wanted to go home as he was assured that there was no attempted murder case for the jury because the evidence was clear that he would "beat the charges." Later with co-counsel, during the lunch hour, he pondered the question, thinking about what to do. He testified that he couldn't remember during the conversation whether there was a discussion about the jury being advised not to consider his not testifying as evidence. He insisted that there was no discussion of the risk of testifying, but he said that he decided to testify because he had "everything to gain and nothing to lose." He said he did not want to testify, that he was afraid of the questions that he did not want to answer and did not want to talk about. He said that the judge did not advise him about his right not to testify and they didn't have time to think about it as it was just during the lunch hour.

Petitioner testified that he was a native of Haiti and was aware that there were more black people living in urban southern Maine than in Kennebec County. He suggested to counsel that the trial be changed to Cumberland, Androscoggin, or York County. He allowed that his counsel did make a motion to change venue, but the trial justice decided it would be transferred to Somerset making some reference to the fact that it should be in an adjoining county. He understood his counsel brought the motion to change the venue based on pretrial publicity. He did not agree with a willingness not to insist that it be moved to Androscoggin, Cumberland, or York Counties before jury selection. He admitted that counsel objected to the make up of the jury based upon the lack of colored minority at the time of jury selection.

Upon cross-examination, petitioner reiterated that prior to trial that he was insistent that he would not testify, that his counsel told him that she could not make him testify, and that if he took the stand and was asked "Did you do it?" that he would answer "No" and that the concern was that the next question would be "Who did it?" He did not want to open the door to assisting the State in the prosecution of his codefendant. Upon his entering a plea to the charges not tried, he continued his, "I was willing to admit to what I did but would not admit to what I did not do." He admitted at the Rule 11 proceedings where he pled to theft and other charges in advance of the attempted murder trial that he was advised by the justice of his right to remain silent and that he could not be forced testify. He further admitted that any decision whether to testify was his and his alone.

Trial counsel then testified at length that she was a lawyer with thirty-four years experience, including fourteen years in the District Attorney's Office and five years with the Attorney General's Office. She made clear the number of times she counseled the petitioner on his right to testify. She also told him to stop talking to anyone, particularly the press. She acknowledged that he was adamant that he would not testify against the codefendant and did not expect the codefendant to testify against him. When discovery appeared that placed the defendant at the scene of the crime, the State attempted to have Mr. Fortune testify against Mr. Hylton. Trial counsel testified that at this point she again discussed with him his right to testify or not testify and counseled that it was not in his benefit to do so.

Trial counsel allowed that one element in favor of testifying was that he could explain why he was at the scene of the crime. She did point out to him that there was really no other way for him to get his story into the trial before the jury except by testifying. She testified she also discussed with him all the negative aspects of testifying, including the requirement to answer all questions once he has taken the oath on the witness stand, but made it clear that he had an absolute choice not to do so and that the jury could not make any inference from his silence. She testified that they had conversations about the subject every day during the trial.

Counsel testified that at a noon break, after the State had rested, she went over possible trial testimony with Mr. Fortune and raised the question whether he would testify. Counsel insisted she conducted a mock examination with the petitioner and he again insisted he would not testify. She then left for lunch and defendant petitioner stayed with co-counsel to think about it. When trial counsel returned she said that Mr. Fortune told her that he wanted to "tell his story, " that he really wanted the jury to believe that he only went to the scene to get his codefendent, Mr. Hylton, out of the house.

Trial counsel supported her testimony by testifying that she had examined her billing statements and noted there were eight meetings with petitioner at the trial, seven at the Kennebec County Jail, and one in Somerset. There were twenty phone calls, fifteen letters by her to Mr. Fortune, and nine letters by the petitioner to her.

She noted that the motion for change of venue was based upon pretrial publicity. The victim was very well known in the Augusta area having formerly represented the District in the Legislature. She said there never was a discussion of race or any move to Cumberland, Androscoggin, or York based upon race. To the extent that there was a discussion of change to Cumberland, she said it had nothing to do with race. Counsel testified that at the ...

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