Doucette v. State

• Citation: 463 A.2d 741
• Parties: Wayne L. DOUCETTE v. STATE of Maine.
• Decision Date: 03 August 1983
• Court: Supreme Judicial Court of Maine (US)

Page 741

463 A.2d 741

Wayne L. DOUCETTE v. STATE of Maine.

Supreme Judicial Court of Maine.

Argued June 7, 1983.

Decided Aug. 3, 1983.

Curtis, Thaxter, Lipez, Stevens, Broder & Micoleau, Charles J. Micoleau (orally), Joseph Albanese, Portland, for plaintiff.

William R. Stokes (orally), Charles K. Leadbetter, Asst. Attys. Gen., Augusta, for defendant.

Before McKUSICK, C.J., and GODFREY, NICHOLS, ROBERTS and VIOLETTE, JJ.

ROBERTS, Justice.

Wayne Doucette appeals from the denial of his post-conviction petition by the Superior Court, Cumberland County. Doucette contends, inter alia, that the post-conviction court erred in deciding that he was not deprived of effective assistance of defense counsel. We affirm the judgment of the Superior Court.

I. Procedural and Factual Background

In June of 1977, Doucette was indicted for rape, Class A, 17-A M.R.S.A. § 252(1)(B) (1983). In December of 1977, Doucette was convicted after a jury trial at which Doucette was represented by retained counsel. Doucette was sentenced to serve twelve years in the Maine State Prison. At that time, Doucette retained new counsel who appealed the judgment to the Law Court. No post-conviction motions were filed by either counsel. On November 28, 1978, we affirmed the judgment entered in Superior Court. State v. Doucette, 398 A.2d 36 (Me.1978). Our opinion summarized the facts which led to Doucette's conviction:

The [victim, a deaf mute,] and her fifteen-year-old sister were walking home along Main Street in Westbrook when for the first time they encountered the twenty-year-old defendant and his companion, Arthur Gallant. After a brief chat with the victim's sister, Gallant suggested that they smoke a marihuana cigarette. The young women acquiesced, and they all began walking toward a wooded area nearby. Finding a suitably secluded spot some distance from the street, the foursome shared the "joint," each taking two or three puffs. That done, they paired off for the walk back to the street. The sister and Gallant were in front; the [victim] and the defendant were in the rear. After a short while, the sister noticed that the defendant and the [victim] were no longer behind her. Growing increasingly concerned, she rejected Gallant's amorous advances and insisted that they return to the woods to locate the missing couple.

Meanwhile, the defendant and the [victim] had made their way to a different spot in the woods. There, the defendant began kissing and fondling the [victim] and, after a while, succeeded in removing her pants and undergarments. The [victim] struggled and protested with increasing fervor as the defendant became more forceful and more intimate. Her strength proved insufficient, however, and the defendant eventually succeeded in penetrating her with his penis. At this, she cried out, making a noise that "sounded like a scream."

Running in the direction of the "scream," the sister at last discovered the [victim] naked from the waist down lying on her back with the defendant, in a similar state of undress, face-to-face on top of the victim. The sister yelled at the defendant to get off and, when he ignored her, began hitting him. Finally, the defendant stood up, pulled up his pants, and walked off.

....

A medical examination, which took place soon after the event, revealed that the victim's hymen had been partially ruptured.

Doucette, 398 A.2d at 37-38.

In August of 1981, Doucette filed pro se a petition for post-conviction review pursuant to 15 M.R.S.A. §§ 2121-2132 (Supp.1982-1983), alleging that he had been denied effective assistance of trial and appellate counsel. Subsequently, the attorney who was appointed to represent Doucette amended the petition to include several specific claims of ineffective representation.

In December, 1981, an evidentiary hearing was held in Superior Court, Cumberland County. Later, the court approved a stipulation by counsel regarding admission of evidence. On August 11, 1982, the Superior Court denied the petition. Doucette filed a timely notice of appeal and application for a Certificate of Probable Cause. The certificate was granted.

II. Claims of Ineffective Assistance of Counsel

In Lang v. Murch, 438 A.2d 914 (Me.1981), we articulated the "reasonably competent assistance" standard for determining claims of ineffective assistance of counsel. Under that standard, counsel's performance must fall "measurably below that of an ordinary fallible attorney," id. at 915, 916, and counsel must have "likely deprived the defendant of an otherwise available substantial ground of relief." Id. at 915. "The standard does not lend itself to categorical rules but rather is meant to be applied on a case-by-case basis...." True v. State, 457 A.2d 793, 795 (Me.1983) (citing United States v. DeCoster, 624 F.2d 196, 203 (D.C.Cir.1976)). Each claim, therefore, will be examined separately to determine whether the post-conviction findings were "clearly erroneous." True, 457 A.2d at 795 (citing Lewisohn v. State, 433 A.2d 351, 354 (Me.1981); Smith v. State, 432 A.2d 1246, 1247 (Me.1981)). Any finding not specifically articulated will be presumed to be consistent with the Superior Court's decision. True, 457 A.2d at 795.

A. Failure to Interview Key Witnesses

We first address Doucette's claims that defense counsel failed to interview Arthur Gallant and the victim. We consider each claim separately. The evidence at trial indicated that Gallant was with Doucette, the victim, and the victim's sister on the evening in question. Gallant and the sister had separated from Doucette and the victim. The sister, insisting upon locating the other couple, left Gallant. Gallant did not follow her. The sister discovered Doucette with the victim.

After the incident, Gallant made a statement to the police. The post-conviction justice found that the statement contained Gallant's local address. In addition, the justice noted that in the statement, Gallant said that according to the sister, the victim "liked sex." The police officer testified that at the time he made the statement Gallant described himself as "spacey," as a result of his smoking and drinking.

Defense counsel never contacted Gallant. He "requested that [Doucette] have Arthur Gallant write or telephone him." Doucette was not incarcerated at that time. At the post-conviction hearing, defense counsel testified that he believed that it was not his duty to "chase" Gallant and that Gallant would be more helpful if Doucette rather than counsel were to contact him. Finally, he insisted that he had wanted to interview Gallant.

Doucette provided counsel with Gallant's Massachusetts address. On subsequent meetings, counsel asked Doucette if he had any previous contact with Gallant. Doucette replied that he had not had any contact with Gallant and did not provide counsel with any further information.

The post-conviction justice ruled that "even if this deficiency constituted a breach of the first prong of Lang, the petitioner has failed to prove a likely prejudicial effect on the trial outcome. At most, Gallant could have impeached the testimony of the victim's sister." According to the justice, Gallant did not have any exculpatory information. The justice further noted the absence of evidence that defense counsel "could have, in the exercise of reasonable diligence, located Gallant and secured his presence as a witness."

Defense counsel has a duty to conduct a reasonable amount of pretrial investigation. E.g., Washington v. Strickland, 693 F.2d 1243, 1251 (5th Cir.1982); DeCoster, 624 F.2d at 209. This includes a duty to interview witnesses who have information relevant to the case. 624 F.2d at 209. Although he was not an eyewitness to the alleged crime, Gallant was the only potential defense witness that was with the group that evening. Counsel agreed that Gallant may have had relevant information. Counsel properly asked Doucette to find Gallant. Counsel, however, was not fully absolved of his duty to find and to interview Gallant. Cf. Hines v. Enomoto, 658 F.2d 667, 676 (9th Cir.1981) (petitioner assured counsel that he would find witness); Hall v. State, 408 A.2d 287, 288 (Del.1979) (petitioner assured attorney that witnesses would appear at trial). Counsel was supplied with two of Gallant's addresses but made no attempt to contact Gallant. Instead, he relied completely upon Doucette. Even if this conduct falls measurably below that of an ordinary fallible lawyer thereby satisfying the first step in the Lang analysis, we agree with the post-conviction justice that counsel's performance was not prejudicial. See Washington v. Watkins, 655 F.2d 1346, 1360-64 (5th Cir.1981); Williams v. United States, 421 A.2d 19, 25-26 (D.C.App.1980); see also Commonwealth v. Bandy, 494 Pa. 244, 249, 431 A.2d 240, 243 (1981).

To show prejudice, under the circumstances of this case, the petitioner must demonstrate both Gallant's availability for trial and the nature of Gallant's testimony. Williams, 421 A.2d at 25; see DeCoster, 624 F.2d at 211; People v. Greer, 79 Ill.2d 103, 121-125, 37 Ill.Dec. 313, 323-324, 402 N.E.2d 203, 212-13 (1980); see also State v. Mehralian, 301 N.W.2d 409, 416 (N.D.1981) (petitioner failed to name or demonstrate how any potential witnesses, who could have been called to testify, could have testified in his favor). The petitioner failed to show that Gallant could have been located and available for trial. Indeed, Doucette testified that he has not been in contact with Gallant since that evening. Moreover, the only suggestion as to the nature of his testimony is contained in the statement he made to the police. The statement merely indicated the possibility of impeaching the sister's testimony. In view of Gallant's description of himself as "spacey," the weight to be given his testimony would be speculative. The petitioner, therefore, failed to prove that his defense was prejudiced by counsel's failure to interview Gallant.

As for the claim regarding co...