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Wilcox v. State

Superior Court of Maine, Cumberland

April 1, 2017

TIMOTHY WILCOX, Petitioner,
v.
STATE OF MAINE, Respondent

          ORDER

          THOMAS D. WARREN, JUSTICE SUPERIOR COURT

         Before the court is an unusual second petition filed by Timothy Wilcox for post-conviction review.

         On March 27, 1996 a jury found Wilcox guilty of two counts of kidnapping, eight counts of gross sexual assault, two counts of robbery, and one count of unlawful sexual contact. State v. Wilcox, CR-95-881. Wilcox was sentenced in October 1996 to consecutive sentences totaling 49 years (Calkins, J.). Thereafter Wilcox filed a petition for post conviction review alleging ineffectiveness of counsel, which was denied after a hearing on June 30, 2004. Wilcox v. State, CR-97-590 (Crowley, J.).

         This second petition was filed in August 2015, triggered by a May 2015 letter from the Department of Justice stating that a witness from the FBI Laboratory had presented hair comparison testimony "containing erroneous statements" at the trial.

         An amended petition was filed on May 2, 2016, asserting the questioned hair comparison testimony as Ground One and also asserting additional grounds relating to the failure of trial counsel to seek a severance and the alleged ineffectiveness of Wilcox's original post-conviction counsel. The State did not challenge the timeliness of petitioner's claim with respect to the hair comparison testimony (Ground One of the amended petition), presumably because it acknowledged that the factual predicate of that claim could not have been discovered through due diligence prior to the May 2015 Department of Justice letter. 15 M.R.S. § 2128-B(1)(C).[1] However, it challenged Grounds Two and Three because the claims asserted in those grounds were untimely and because a second post-conviction petition cannot be brought based on alleged ineffectiveness of petitioner's first post-conviction counsel.

         The court dismissed Grounds Two and Three of the amended petition by order dated August 24, 2016, and the case proceeded to a hearing on Ground One of the amended petition on February 10, 2017. Thereafter both counsel for Wilcox and counsel for the State filed post-hearing memoranda.

         Post-Conviction Review

         In an ordinary post-conviction review the petitioner has the burden of showing both ineffectiveness and prejudice by a preponderance of the evidence. The parties to this case appear to agree that, due to the unusual circumstances of this case, the sole issue is whether Wilcox has met his burden of showing prejudice - whether he has shown a reasonable probability that, absent the testimony of FBI Agent Joseph Dizinso that has now been called into question, the result of the proceeding would have been different. See Theriault v. State, 2015 ME 137 ¶¶ 14, 19, 125 A.3d 1163; Manley v. State, 2015 ME 117 ¶¶ 12, 18, 123 A.3d 219 (cases applying and quoting from Strickland v. Washington, 466 U.S. 668, 687, 694 (1984)).

         The Law Court recently clarified in Theriault that in requiring a showing of a "reasonable probability" that the result of the proceeding would have been different, Strickland did not necessarily require a showing that it is likely that the outcome of the case would have been different. 2015 ME 137 ¶¶ 19-20. The defendant must show that there is a sufficient probability of a different result "to undermine confidence in the outcome of the proceeding." Strickland, 466 U.S. at 694; Theriault, 2015 ME 137 ¶ 19.

         Overview of the Evidence at Trial

         The convictions of Wilcox arose from charges relating to three different individuals based on similar events that occurred on January 26, 1995, March 17, 1995, and March 21, 1995.

         With respect to the events of January 26, 1995, the State offered evidence that Wilcox offered a woman named Cynthia Levesque a ride home around 9:00 pm in the evening but drove her to a remote location where he forced her at gunpoint to perform oral sex on him. According to Levesque's testimony, Wilcox then forced her to partially undress and inserted his penis in her vagina but was unable to maintain an erection. He then told her to perform another oral sex act, but she managed to open the car door and fall out. Wilcox grabbed her pant leg and dragged her for a short distance before the pants pulled off. He then drove off, leaving her by the side of the road wearing nothing but a sock and a bra.

         With respect to the events of March 17, 1995, the State offered evidence that Wilcox offered a ride to a woman named Judy Stain around 12:30 am, that he did not drop her at her home or let her out of the car as she requested but took her to a deserted parking lot below the Eastern Prom and forced her to perform oral sex on him at gunpoint. He then ripped her clothes off, raped her vaginally, and inserted his gun inside her vagina. Finally, he pushed her out of the car and drove off, taking some of her clothes and possessions and leaving her wearing only sneakers and socks.

         Finally, with respect to the events of March 21, 1995, the State offered evidence that Wilcox offered a woman named January Fitzsimmons a ride at about 11:30 pm and then asked her if she wanted to smoke marijuana. When she said yes, he drove her to a remote location but after they smoked, he produced a gun and forced her to perform oral sex on him. He then forced her to take off her pants and penetrated her both anally and vaginally but was having trouble maintaining an erection. He then compelled her to perform oral sex on him again and to masturbate, subsequently demanding her backpack, taking some of her clothes, and telling her to get out of the car.

         At his jury trial in March 1996 Wilcox was convicted of kidnapping and 2 counts of gross sexual assault with respect to the January 26, 1995 events involving Cynthia Levesque. He received sentences of 16 years concurrent on all three counts as to those offenses.

         Wilcox was also convicted of kidnapping, three counts of gross sexual assault, and one count of robbery with respect to the events of March 17, 1995 involving Judy Stain. He received sentences of 17 years on those five counts, concurrent with each other but consecutive to the 16 year sentence on the counts involving Cynthia Levesque.

         Finally, Wilcox was convicted of three counts of gross sexual assault and one count of robbery with respect to the events of March 21, 1995 involving January Fitzsimmons. He received sentences of 16 years on those four counts, concurrent with each other but consecutive to the 17 year sentence on the counts involving Judy Stain.[2]

         Identity was the major issue at the trial - whether there was proof beyond a reasonable doubt that Timothy Wilcox was the person who had offered rides to Crystal Levesque, Judy Stain, and January Fitzsimmons and had then subjected them to sexual assaults at gunpoint. That evidence included the following:

• Cynthia Levesque was shown a photo array and said that two of the photos looked like her assailant. One of those photos (photo # 2) was of Wilcox. Without prompting, she also testified at trial that those two photographs "kind of looked like the guy sitting in ...

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