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Marquis v. State

Superior Court of Maine, Aroostook

August 7, 2019

Jesse P. Marquis Petitioner
v.
State of Maine Respondent

          DECISION

         Pending before the court is Jesse P. Marquis' Petition seeking Post-Conviction Review of his conviction for Intentional or Knowing Murder (17-A M.R.S. § 201 (1)(A)). For the reasons set forth herein, the court denies the petition.

         BACKGROUND

         On July 11, 2014, the Aroostook County Grand Jury returned an indictment against the Petitioner charging him with the Intentional and Knowing Murder of Amy Theriault. The Indictment reads:

The Grand Jury Charges That:
On or about May 31, 2014, in Aroostook Cunty, Maine, Jesse P. Marquis did intentionally or knowing cause the death of Amy Theriault, with the use of a firearm, namely a Remington Model 710 bolt action 30-06 rife (serial number 71128290), all in violation of 17-A M.R.S. § 201 (1)(A) and 17-A M.R.S. § 1158-A(1)(B).

         The case proceeded to trial before a jury on June 14, 2016. On June 17, 2016, the jury returned a verdict of Guilty of Murder and returned a further finding that the Petitioner used a firearm in the commission of his crime. On July 6, 2016, the court sentenced the Petitioner to life in prison.

         The Petitioner appealed his conviction to the Maine State Supreme Court. On May 27, 2017 the Law Court denied the Petitioner's appeal and affirmed his conviction.[1] This Petition followed, On February 27, 2019, the court conducted an evidentiary hearing on the petition The court received the last of the parties' written arguments on April 18, 2019. The court has now had the opportunity to consider the evidence presented and the arguments of counsel. As reflected in the Petitioner's post hearing argument, the Petitioner raises two issues. He contends that his trial counsel provided him with constitutionally deficient assistance of counsel first, by abrogating his right to testify and second, by failing to pursue a defense of adequate provocation. The court deems other arguments presented in the petition to be waived.

         STANDARD OF REVIEW

         To prevail in a post-conviction proceeding based on an alleged constitutional deprivation of the effective assistance of counsel, the petitioner has the burden of proof and must demonstrate two points; first, "that counsel's representation fell below an objective standard of reasonableness, and second, that "errors of counsel actually had an adverse effect on the defense." There is thus both a "performance" prong and a "prejudice" prong to the inquiry. The court may consider either prong first; if the petitioner fails to demonstrate "prejudice", it is unnecessary for the court to address the issue of whether trial counsel's performance was deficient. Francis v. State, 2007 ME 148, ¶ 6, 938 A, 2d 10. These elements of an ineffective assistance case, when proved, constitute a "showing that counsel's errors were so serious as to derive the defendant of a fair trial, a trial whose result is reliable." Theriault v. State of Maine, 2015 ME 137, ¶ 14.

         Thus, in order to prove that one has been deprived of their constitutional right to the effective assistance of counsel, a petitioner must prove both a "performance" prong and a "prejudice" prong by a preponderance of the evidence. A failure of proof on either will lead to a denial of the petition.

         In Roberts v. State of Maine, 2014 ME 125, ¶23, 103 A.3d 1031, 1039, the Law Court indicated that in order to prove that counsel's performance was constitutionally deficient,

"a defendant must show that counsel's representation fell below an objective standard of reasonableness. The question is whether the counsel's performance fell within the wide range of reasonable professional assistance that a competent criminal defense counsel could provide under prevailing professional norms. The Strickland test compels us to reconstruct the circumstances of counsel's challenged conduct and to evaluate the conduct from counsel's perspective at the time." (Internal citations and punctuation omitted.)

         In Theriault, the Law Court discussed the prejudice prong and recognized that there can be cases, albeit rare ones, where counsel's performance has been so deficient that it amounts to a constructive denial of the assistance of counsel and in such extreme cases of ineffectiveness, the petitioner is relieved of the burden of affirmatively proving prejudice because in such cases a complete failure of representation can be legally presumed to have occurred.

         Accordingly, with regard to the issue of "prejudice", except in those rare instances of extreme ineffectiveness, the petitioner must prove that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. The Law Court was careful to point out that its reference to "probability" should not restrict a court's analysis to a quantitative inquiry and that it should also extend to a qualitative inquiry, that is one that involved an analysis of whether counsel's performance was such that it undermined confidence in the outcome of the proceeding and rendered that outcome unreliable. Id at ¶ 19.

         Thus, "prejudice" can be established where it can be demonstrated that counsel's errors more likely than not actually altered the outcome of the case and "prejudice" can also be established where, although one may not be able to say that it changed the likely outcome of the case, questions of fundamental fairness still remain and must be considered. This means that "prejudice" can be established by showing that counsel's performance was such that it undermines confidence in the reliability of the outcome.

         Maine's jurisprudence pertaining to the question of "ineffective assistance of counsel" draws extensively from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.

         Among the relevant principles that Justice O'Connor set forth in her opinion in Strickland were the following:

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstance, the challenged action "might be considered sound trial strategy." There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client the same way. Id at 689.

         DISCUSSION

         1. The abrogation of the Petitioner's right to testify.

         The Petitioner contends that his trial counsel abrogated his right to testify by pressuring him to forgo that right. He stipulated at the hearing of this matter that his trial counsels' recommendation that he not testify was reasonable advice under the circumstances. He contention is that his trial counsel deprived him of his freedom of choice by overcoming his free will. He has thus argued that his case is one of those rare cases where counsel's performance was so deficient that it ...


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