DECISION AND JUDGMENT
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.
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.
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
on the entire record, the court adopts the following findings
of fact and conclusions of law, and denies the Amended
Petition, as further amended.
following background facts are derived from testimony at
Petitioner's criminal trial as well as testimony at the
Holly Morrison is 37 years of age. She has some cognitive
deficits and has been tested as having an IQ of 75.
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.
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
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
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.
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
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.
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.
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.
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).
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.
Criminal Charges and Trial
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
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).
pleaded not guilty to all six charges.
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
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.
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.
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.
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.
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.
point, Mr. Ford prepared a written report, which defense
counsel provided to the State in anticipation of Mr.
Ford's expert testimony.
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.
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.
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
case was then scheduled for jury trial in July 2014, before
trial, Petitioner and attorney Doherty discussed and decided
on the choices that Petitioner would face in the course of
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.
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.
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
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 ...