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Morrison v. State

Superior Court of Maine, Cumberland

April 19, 2017



          A. M. HORTON JUSTICE.

         This post-conviction case arises out of Petitioner Holly Ann Morrison's conviction in the underlying criminal case captioned as State v. Morrison, CUMCD-CR-14-1530. The post-conviction hearing on Petitioner's Amended Petition was held April 3, 2017, with Petitioner and the State appearing and presenting evidence.

         Three witnesses testified at the post-conviction hearing: Gregory Ford, a licensed clinical professional counselor; Amanda Doherty, Esq., Petitioner's counsel in the underlying criminal case as well as in a related child protective proceeding, and Petitioner herself. The hearing was recorded. During the hearing, the Petitioner was granted leave to add a further ground for relief to the 11 grounds for relief contained in her Amended Petition.

         Pursuant to the previously issued Rule 72A Conference Order in this case, all filings (including filings by the parties or the court and any transcripts) in the underlying criminal case as well as filings in this case became part of the post-conviction review record without being offered as exhibits.

         Based on the entire record, the court adopts the following findings of fact and conclusions of law, and denies the Amended Petition, as further amended.

         Factual Background

         The following background facts are derived from testimony at Petitioner's criminal trial as well as testimony at the post-conviction hearing.

         Petitioner Holly Morrison is 37 years of age. She has some cognitive deficits and has been tested as having an IQ of 75.

         She grew up in the Bangor area and had a very difficult upbringing: her mother was murdered by a boyfriend; Petitioner was sexually assaulted at age 5, and Petitioner wound up being placed in 12 different foster homes by the age of 18. She has three children, of whom the oldest is the named victim in the underlying criminal case. When the victim was about nine months old, Petitioner began what proved to be an abusive relationship with the man who is the father of Petitioner's two younger children. In the course of that relationship, Petitioner and her partner engaged in "swinging, " i.e., attending social events that included sexual encounters.

         In 2008, at one of the swinger events, Petitioner met Donald Cass, her co-defendant in the underlying criminal case. In 2010, Mr. Cass brought Petitioner and her daughter, the victim, to southern Maine, where Petitioner's father lived. Petitioner and the victim lived in a shelter for about a year and then moved into an apartment. Mr. Cass would visit on weekends and assisted Petitioner financially at times. In 2011, Petitioner and the victim moved to an apartment in Westbrook and Petitioner's relationship with Donald Cass continued.

         Petitioner had worked as a personal care attendant periodically and continued in that employment when she moved to southern Maine. As of October 2013, she had been certified for 12 years as a personal care attendant and was employed in that capacity. She also was taking medical assistant courses at night.

         In 2013, Petitioner noticed that Mr. Cass was engaged in inappropriate behavior toward the victim and making inappropriate comments about the victim, and she discouraged him from doing so. However, late in that year, Petitioner witnessed and, to an extent, participated in sexual acts that Mr. Cass perpetrated upon the victim, acts that led to the criminal charges against Mr. Cass and Petitioner.

         The victim's 14th birthday occurred on October 26, 2013. Almost three weeks later, on November 14, 2013, the victim reported to a counselor at the Westbrook Middle School, where the victim was a student, that she had been sexually abused by her mother's boyfriend. The counselor left a telephone message for the Petitioner about what her daughter had reported and also notified the Maine Department of Health and Human Services (DHHS) and the Westbrook Police Department.

         The police came to the school the same day and conducted an interview with the victim. In her initial report and in the police interview, the victim reported that Mr. Cass had used one or more sexual devices in the course of the sexual acts he committed against her. The victim also implicated her mother, the Petitioner, as being aware of Mr. Cass's actions and even participating in some respects.

         Later the same day, after hearing the telephone message, Petitioner came to the school and was interviewed by the Westbrook police. The interview was recorded. She then went back to her apartment with a police detective and consented to him searching the apartment and a storage unit for the sexual devices that the victim had mentioned in her report and interview. The search of a storage unit revealed two duffel bags that Petitioner identified as belonging to Mr. Cass and these were seized by police, but not searched at the time.

         The next day, November 15, 2013, Mr. Cass met with the Westbrook police and consented to a search of the two duffel bags, which proved to contain numerous sexual devices.

         On November 18, 2013, Petitioner came to the Westbrook Police Department for a further interview that was recorded on video. Initially, only Detective Crocker of the Westbrook Police Department participated in interviewing Petitioner, but later another detective came into the interview room. As Detective Crocker testified at trial, Petitioner began the interview "saying that the events did not happen and incrementally disclosed certainly that they had happened, that she had not told me prior." Trial Transcript at 79 (testimony of Steven Crocker).

         After the interview, the Westbrook police obtained a warrant to search Donald Cass's residence and, as a result of the ensuing search, discovered more devices of a sexual nature.

         The Criminal Charges and Trial

         The complaint in Petitioner's underlying criminal case was docketed March 10, 2014. An arrest warrant was authorized and Petitioner was arrested and brought to court March 17, 2015. The court set bail with a cash component and no-contact conditions and appointed Amanda Doherty, Esq. to represent Petitioner. Attorney Doherty (also referred to herein as "defense counsel") is now an assistant district attorney with the Cumberland County District Attorney's Office but was a criminal defense attorney at the time of her appointment to represent Petitioner. She was already representing Petitioner in a child protective proceeding that the Maine DHHS had commenced against Petitioner on behalf of the victim.

         In April 2014, the Cumberland County grand jury issued an indictment charging Petitioner with six criminal offenses alleged to have been committed on dates between October 1, 2013 and October 25, 2013-an interval ending the day before the victim's 14th birthday. Three of the offenses charged were the same: Endangering the Welfare of a Child, Class D, 17-A M.R.S. § 554(1)(C). The three remaining charges were all of Gross Sexual Assault (GSA), Class A, id. § 253, but under two different sections of the GSA statute. Two of the GSA charges alleged that the named victim had submitted to a sexual act as a result of compulsion, id. § 253(1)(A), whereas the third GSA charge alleged that the sexual act had been committed before the victim's 14th birthday. Id. § 253(1)(B).

         Petitioner pleaded not guilty to all six charges.

         The State also initiated a criminal prosecution against Donald Cass based on similar allegations. At some point before July 2014, when Petitioner's case came to trial, Donald Cass pleaded guilty to two counts of GSA against the victim and was sentenced.

         As attorney Doherty's representation of Petitioner in both the DHHS child protective case and the criminal case continued, she developed a theory of defense. Having in mind the Petitioner's limited intellectual capacity as well as the Petitioner's history of abuse, beginning in childhood, and also having in mind that the charges would likely be supported by the victim's testimony and potentially the testimony of Donald Carr, as well as the Petitioner's admissions during the second interview, attorney Doherty decided that the best course of action for Petitioner's defense was not to challenge the veracity of the victim's report of being sexually abused.

         Instead, the defense strategy came to center upon what at the post-conviction hearing was referred to as "the battered woman defense, " i.e. to portray Petitioner's involvement in Mr. Cass's sexual abuse of the victim as being the result of both being dominated by and afraid of Mr. Cass and also having been traumatized by a long history of being abused herself physically, emotionally and sexually. Petitioner readily embraced this strategy.

         The strategy had several implications for the criminal case. First, it meant that defense counsel's focus was less on challenging the victim's account of what had occurred than on distancing the Petitioner from Mr. Cass. Second, it meant developing an evidentiary basis, likely in expert evidence, for a defense based on Petitioner's psychological state and history of having been abused.

         In early 2014, attorney Doherty arranged for Petitioner to meet with Gregory Ford, a licensed clinical professional counselor with extensive experience counseling people involved in sexual abuse either as victims or as perpetrators or both. Attorney Doherty had in mind for Mr. Ford to counsel Petitioner, but also to familiarize himself with Petitioner and her background sufficiently to enable him to testify as an expert witness in her defense, focusing on her status as a victim of abuse.

         Mr. Ford began meeting with Petitioner after she was released from jail in March 2014 and continued meeting with her at least once a week, evidently until her sentencing in May 2015. A major theme of Mr. Ford's counseling-and also of the extensive discussions that Petitioner had with her defense counsel-was for Petitioner to acknowledge and understand her own role and responsibility in the victimization of her daughter. Petitioner's focus at that time tended to be on herself more than on her daughter and she struggled to acknowledge her contribution to her daughter's abuse. Over time, the Petitioner came to see that she had failed to protect the victim, and that realization helped bring about her decision to accept responsibility for the endangering welfare charges that she faced. Petitioner benefited from Mr. Ford's counseling.

         At some point, Mr. Ford prepared a written report, which defense counsel provided to the State in anticipation of Mr. Ford's expert testimony.

         The case went to a dispositional conference June 5, 2014 and was not resolved. The State was seeking a harsher sentence for Petitioner than Mr. Cass had received.

         Petitioner then submitted a letter to the court dated June 10, 2014 asking that attorney Doherty be replaced with a different court-appointed attorney. Petitioner's letter stated that her attorney "is not looking out for my best interest, " citing two reasons: that Petitioner had requested "documentation and other forms of evidence from my attorney and I have received very minimal information" and "I have requested that an evaluation be completed on myself and my attorney has disagreed with this request and will not proceed." The Petitioner's request for different counsel was denied June 16, 2014.

         At that point, Petitioner decided to enter an open plea to the charges against her, thinking she might receive a more lenient sentence than the State was prepared to offer her. Her case was scheduled for a Rule 11 plea on June 24, 2016. However, she changed her mind and did not enter any change of plea.

         The case was then scheduled for jury trial in July 2014, before Judge Moskowitz.

         Before trial, Petitioner and attorney Doherty discussed and decided on the choices that Petitioner would face in the course of the trial.

         First, Petitioner accepted her defense counsel's proposed defense strategy of not challenging the victim's allegations and instead portraying Petitioner herself as a victim of abuse who was influenced and even intimidated by Mr. Cass. That strategy would explain Petitioner's passivity during the times Mr. Cass committed sexual abuse, and would also explain why she was not forthcoming during the initial police interview and only gradually revealed the truth. It would also enable Petitioner to align herself with the victim and against Mr. Cass.

         Second, Petitioner agreed, however reluctantly, that she would accept responsibility for the three Class D charges of endangering the welfare of a child. Given that Petitioner's defense strategy meant not challenging the victim's allegations of abuse by Mr. Cass in the presence of Petitioner, it would be untenable for the Petitioner to contest the State's contention that she had endangered her daughter's welfare. To contest the endangering charges could also detract from Petitioner's credibility in the eyes of the jury and increase the risk of conviction on the far more serious GSA charges.

         Third, it was agreed and understood that, because Gregory Ford was being designated as an expert witness on Petitioner's mental, Petitioner would likely not need to testify. Attorney Doherty had concerns about Petitioner's ability to present consistent and constructive testimony. Despite having told her attorney and Mr. Ford that she was prepared to accept responsibility for the endangering charges, Petitioner still was focused largely on herself and her own needs, and defense counsel had concerns about what the jury would make of Petitioner and her testimony, particularly on cross-examination.

         Although Mr. Ford's presentation would likely make it unnecessary for the Petitioner herself to testify, attorney Doherty still took steps to prepare Petitioner to testify in her own defense if the need arose. Attorney Doherty developed a list of likely questions and went over it with Petitioner. Even so, the plan remained for Petitioner not to testify, both because Petitioner was reluctant and also because ...

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