Supreme Judicial Court of Maine.
June 8, 1972.
Appeal from the Superior Court, Somerset County.
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Berman, Berman Simmons, by Jack H. Simmons, Lewiston, for plaintiff.
Peter T. Dawson, John R. Atwood, Asst. Attys. Gen., Augusta, William F. Gore, Asst. Atty. Gen., Augusta, for defendant.
Before DUFRESNE, C.J., and WEBBER, POMEROY, WERNICK and ARCHIBALD, JJ.
POMEROY, Justice.
“Trial counsel’s competency cannot be fairly judged by the result of the trial alone and the mere fact counsel’s endeavors proved unsuccessful does not necessarily indicate legal inefficiency or lack of diligence but may rather point to a well-laid strategy that failed to work out. In other words, it is not enough that counsel’s strategy did not result in a verdict of not guilty.”
The above quotation is from State v. Pullen, Me., 266 A.2d 222
(1970).
The occasion for what is quoted above was this Habeas Corpus petitioner’s direct appeal from the convictions about which he now complains in this proceeding.
On his direct appeal, we refused to examine his claim of inadequate representation by trial counsel and suggested that the issue could properly be raised only on Habeas Corpus petition in the circumstances disclosed by the record. Such Habeas Corpus petition was filed and extensive hearing was had before a single Justice of the Supreme Judicial Court sitting in the Superior Court.
After hearing, at which Pullen’s trial counsel testified at length, the Justice sitting in the Superior Court concluded:
“The attorney in no way took his responsibilities lightly. Still, as I have pointed out, there were areas in which he was not very skillful. Petitioner did not get perfect representation from his counsel. Few Defendants do.
“As to the remaining three charges I do not find that the cumulative effect of counsel’s trial errors reduced the trial to a farce or a sham or that the legal representation was of such low calibre as to amount to no representation.”
The petitioner has been convicted by jury of the crimes of rape, assault and battery of a high and aggravated nature and attempted sodomy. He had entered a plea of guilty to a charge of crime against nature (fellatio) at the conclusion of the evidence and prior to argument at the trial.
On the Habeas Corpus petition the Justice sitting in the Superior Court ordered the attempted sodomy conviction set aside. From such action the State has appealed.
From his action in denying the petition as to the judgments and convictions for rape, crime against nature, and assault and battery of a high and aggravated nature, the petitioner appeals.
We dispose of the State’s appeal first.
The Justice below ruled that while the presiding Justice’s charge was technically correct, when he instructed the jury as to attempted sodomy, the jury could possibly have been misled into believing that mere preparation for the act with nothing further would constitute an overt act.
We have examined that portion of the charge with care and we disagree with the Justice below. We choose not to sully the report in which this opinion will be printed by a recitation of the factual situation which the presiding Justice was called upon to explain to the jury. In this case the act done by the defendant in the preliminary stages of committing the substantive crime went beyond what is meant by
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the phrase “mere preparation” and constituted an overt act.
Suffice it to say, we conclude the charge in this respect was not misleading and the Justice below was in error in deciding to the contrary. For this reason we sustain the State’s appeal.
We have examined the entire record in this case with great care to determine whether or not trial counsel’s representation was so inadequate as to reduce the trial to a farce or sham, or was of such low calibre as to amount to no representation.
We conclude there was no inadequacy of counsel in a legal sense even though, as the Justice below found, “there were areas in which he was not very skillful.”
In order to fairly appraise counsel’s work, it is helpful if one is aware of the factual situation existing at the time counsel entered upon his representation.
The defendant was one of two men indicted for various crimes, all alleged to have been committed upon a 16-year old girl. A recitation of the crimes charged should be sufficient to establish the framework of the situation into which counsel was injected by his appointment as trial counsel for the petitioner.
The State alleged that the two men went to the home of the 16-year old high school girl and invited her to go out for the evening, telling her that there would be other girls in the party. After efforts to recruit other girls proved unsuccessful, the girl was taken to a gravel pit in a remote area in which she was raped by each of the men in turn. The girl testified she was without previous sexual experience and there was ample physical evidence to substantiate her claim in this respect.
It was the girl’s contention that she did not voluntarily submit to these criminal attacks, but rather that she resisted to the full extent of her ability. Nevertheless, over and over and over again she was criminally assaulted. Ultimately she was taken to a camp occupied by two young men. There she was subjected to repeated acts of fellatio, rape and attempted sodomy as well as other indignities too vile to describe.
A young man who came into the camp was physically present and observed many of these acts of defilement performed by the defendant on this little girl. He testified for the State and corroborated the girl’s story in every detail.
Of all these facts counsel was well aware when he undertook the trial of this case.
The petitioner’s trial attorney had had extensive experience in both the prosecution and defense of criminal cases over a span of 34 years. He was retained by the petitioner two days after the petitioner was indicted. He immediately conferred with the County Attorney, an Assistant Attorney General who had been assigned to try the case and two investigating police officers. He was given a composite statement of the alleged victim of the assaults which statement had been given to the investigating officers and the County Attorney shortly after the incident was alleged to have occurred.
In addition, as the Justice who heard the Habeas Corpus petition in the Superior Court found, the petitioner had admitted to counsel that the acts described by the girl in her statement to the officers had, in fact, taken place, including that he had committed a crime against nature with the girl twice.
It was the petitioner’s claim that all the acts were voluntarily entered into by the girl. An investigation by the trial attorney in the town in which the girl lives had caused him to conclude there was no flaw in the girl’s reputation for chastity. His task then became to try and persuade a jury that this 16-year old high school girl who was in the second day of her menstrual period and who had had no previous experience with
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sexual intercourse had voluntarily and of her own free will, uninfluenced by threats and without force being applied, submitted to sexual intercourse, fellatio and sadistic indignities!
Any experienced criminal trial lawyer would agree, we are sure, this was a most formidable task!
The petitioner cites ten separate and specific instances which he says establish inadequacy of counsel.
In our consideration and decision of the direct appeal, we discussed the allegation that the Assistant Attorney General’s argument to the jury was improper. We concluded, “Looking at the totality of the evidence surrounding the depicted criminal scene and events, we are unable to say that any manifest error was committed.” State v. Pullen, Me., 266 A.2d 222, 229 (1970).
Our opinion concerning this point remains the same.
All that counsel could possibly have done at that point was object to the Assistant Attorney General’s argument and ask for a mistrial. Since the argument, if error, was not manifest error, to say the Motion for Mistrial would have been granted is speculative at best.
The petitioner asserts counsel was deficient in his representation by failing to object to the Court’s ruling limiting his cross-examination at a later stage of the trial.
It is alleged the young lady victim had testified in the District Court inconsistently with her direct testimony in the Superior Court concerning the question as to whether or not she was ever left alone in the car. There was no record ever made of the testimony in the District Court, but it is clear the Judge of the District Court and the attorney who had on that occasion represented the petitioner, both recalled her testimony as being somewhat different from that given in the Superior Court.
In State v. Pullen, supra, at page 225, we discussed this incident at some length. We have also studied the composite of the girl’s statement to the officers. If there was an inconsistency in her testimony, it was so minor as to make pursuing it of highly questionable value. It is clear from all the evidence in the case that at the time to which the cross-examination refers, the girl was naked in an automobile far out in the country on a cold winter’s night.
To establish before the jury that she may have had an instant opportunity to escape from the car and flee through the snow while miles away from home and naked, can hardly be said to go far in persuading reasonable jurors that because she didn’t jump from the car and run into the snow, there is likelihood she consented to the unspeakable indignities to which she was subjected!
Unfortunately, the Assistant Attorney General assigned to try the case persisted in asking leading questions. To these questions counsel objected several times. Many examples of leading questions to which no objection was registered have been called to our attention by the petitioner in his brief.
At the hearing before the Justice of the Superior Court on this Habeas Corpus Petition counsel explained this failure to object by saying that he was fearful of irritating the jury by other objections when the ones he did make seemed to avail him of nothing. We think his fears were well grounded.
Many other alleged deficiencies have been pointed out to us.
We have considered them all.
We agree with the Justice below who found that counsel was diligent in his handling of the defense and in his dedication to his responsibility, heavy as it was.
One of the principal complaints made is that the then defendant, at counsel’s urging, pleaded guilty to a crime
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against nature only after he had testified in his defense. It is obvious that consent would not have been a defense to this particular crime.
The only conceivable means available to give some weight to the petitioner’s contention that the sexual intercourse was voluntarily entered into, despite the overwhelming evidence to the contrary, was for the defendant to judicially admit by a guilty plea that which was completely indefensible.
From a careful examination we are satisfied as was the Court below, there was one occasion in which the defendant’s counsel demonstrated misunderstanding of the law, if not ignorance of the law.
No lack of diligence is displayed.
It is highly debatable if there were errors of judgment except those which can now be determined by hindsight.
Although many other experienced trial counsel might have conducted the petitioner’s defense differently and might have interposed more objections and might have pressed cross-examination more vigorously, this trial was far from a farce or sham.
This legal representation was not perfunctory, amounting to no representation and the petitioner has not been deprived of his constitutional right to effective assistance of counsel. About all he can validly say was that his Court-appointed counsel was unable to do what probably no counsel could do under the circumstances (i.e., create a reasonable doubt in the minds of a reasonable jury in the face of the overwhelming evidence which permitted no reasonable doubt as to the defendant’s guilt).
The entry must be,
Appeal of State granted.
Appeal of petitioner denied.
WEATHERBEE, J., did not sit.
All Justices concurring.
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