Gary R. Gauthier Jr. v. State

• Decision Date: 05 July 2011
• Docket Number: Docket No. And–10–427.
• Citation: 2011 ME 75,23 A.3d 185
• Parties: Gary R. GAUTHIER Jr.v.STATE of Maine.
• Court: Maine Supreme Court

23 A.3d 185

2011 ME 75

Gary R. GAUTHIER Jr.

v.STATE of Maine.

Docket No. And–10–427.

Supreme Judicial Court of Maine.

Argued: May 11, 2011.Decided: July 5, 2011.

Justin W. Leary, Esq. (orally), Leary & DeTroy, Auburn, ME, for Gary R. Gauthier, Jr.William J. Schneider, Attorney General, Donald W. Macomber, Asst. Atty. Gen. (orally), Augusta, ME, for the State of Maine.Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, and JABAR, JJ.JABAR, J.

[¶ 1] In 2006, Gary R. Gauthier Jr. and his co-defendant, Thomas Dyer, were each convicted of one count of murder, 17–A M.R.S. § 201(1)(A), (B) (2010), following a joint jury trial. After we affirmed their convictions, see State v. Gauthier, 2007 ME 156, 939 A.2d 77, Gauthier filed a petition for post-conviction review, claiming that he had been denied effective assistance of counsel at trial. The Superior Court (Androscoggin County, Delahanty, J.) denied Gauthier's petition. On appeal, Gauthier contends that the court erred in finding that he received effective assistance of counsel. We disagree and affirm the judgment.

I. BACKGROUND

[¶ 2] In October 2005, the bodies of James Graffam and John Vining were discovered in Lewiston. The cause of death for both victims was blunt trauma to the head, and each had been dead for a few weeks to a month. In December 2005, the State Police recovered several items—a bleach bottle, beer cans, a baseball bat, and a bag of stained clothing—buried on property in Pownal. These items were stained with Vining's and Graffam's blood.

[¶ 3] During the ensuing police investigation, both Gauthier and Dyer were interviewed multiple times. Initially, each admitted knowing Graffam but denied any involvement in the murders. Dyer eventually confessed that he was present during the murders but claimed that he participated out of fear that Gauthier would kill him. Gauthier never made incriminating statements.

[¶ 4] Gauthier and Dyer were indicted in February 2006. Relying on Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968),¹ Gauthier's attorney moved to sever Gauthier's case from Dyer's, but the court denied the motion after the State agreed not to use Dyer's statements. The case proceeded to trial, which occurred over a six-day period in October 2006.

[¶ 5] The State's case was based primarily on forensic evidence. The Chief Medical Examiner testified that both victims died as a result of multiple blunt trauma injuries to the head, consistent with being struck by a baseball bat. ² The State's DNA analyst testified that DNA from Gauthier and Dyer was found on the buried clothing stained with the blood of both victims. ³ The State called a witness who placed Gauthier, Dyer, and the two victims drinking together on the night the State alleged the murders occurred. The jury also received evidence that Gauthier and Dyer had been to Graffam's apartment in September 2005, and that Gauthier “often would go for a ride [to Pownal] with ... [Dyer] and his girlfriend.”

[¶ 6] One particular item of clothing, a Boston Red Sox jersey, was extensively stained with Vining's blood, but was not directly connected by DNA to Dyer or Gauthier. Based on prior conversations with the State's blood spatter expert, Gauthier's attorney knew that the front and back of the jersey had “cast-off” bloodstains, which occur when blood is flung from a blood-bearing object, such as a baseball bat. During cross-examination by Gauthier's attorney, the State's blood spatter expert testified that the person wearing the jersey was not swinging the blood-bearing object, and that the blood struck the back of the jersey while the wearer's back was turned toward the object being swung.

[¶ 7] After the State rested, Dyer's counsel informed the court that Dyer also intended to rest. Gauthier's attorney, however, chose not to rest his case. Faced with the State's evidence, Gauthier's attorney believed that a conviction was inevitable unless he could convince the jury that Gauthier was wearing the Red Sox jersey, and therefore not wielding the bat. Accordingly, before recessing for the day, Gauthier's attorney waived his Bruton objection and advised the court that he intended, as part of Gauthier's case, to introduce Dyer's statements through the testimony of the police detective who conducted the investigation.⁴ Gauthier agreed with this strategy.

[¶ 8] When trial resumed the next morning, Dyer had changed his mind and decided to testify.⁵ During direct examination, Dyer testified that he and Gauthier had a close relationship; that he participated in the murders only because Gauthier threatened him with a knife; and that he feared Gauthier based on prior violent acts that Gauthier told him he had committed. During cross-examination, Dyer confirmed that Gauthier was wearing the Red Sox jersey, admitted to lying to the police, and acknowledged asking his then-girlfriend and two other friends to provide him with a false alibi. Gauthier's attorney later called Dyer's girlfriend and the other friends to testify, and all three confirmed that Dyer had asked them to lie. Unexpectedly, Dyer's girlfriend also testified that Gauthier once told her that he had beaten someone to death with a baseball bat.⁶

[¶ 9] The jury found Gauthier and Dyer each guilty of one count of murder for the killing of both Graffam and Vining. We affirmed their convictions and Gauthier's sentence in Gauthier, 2007 ME 156, 939 A.2d 77.

[¶ 10] In September 2008, Gauthier filed a petition for post-conviction review in the Superior Court, claiming that he had been denied effective assistance of counsel at trial. See 15 M.R.S. §§ 2121–2132 (2010); M.R.Crim. P. 65–75A. A hearing on the petition was held in September 2009, after which the court entered a judgment denying Gauthier's petition. The court found that the trial strategy adopted by Gauthier's attorney, though ultimately unsuccessful, did not rise to the level of ineffective assistance of counsel.

[¶ 11] We granted Gauthier a certificate of probable cause to pursue this appeal pursuant to 15 M.R.S. § 2131(1) and M.R.App. P. 19.

II. DISCUSSION

[¶ 12] “The Sixth Amendment to the United States Constitution and article I, section 6 of the Maine Constitution ensure that a criminal defendant is entitled to receive the effective assistance of an attorney.” ⁷ McGowan v. State, 2006 ME 16, ¶ 9, 894 A.2d 493, 496. To determine whether a post-conviction petitioner received constitutionally ineffective assistance of counsel at trial, we conduct a two-prong inquiry. See Alexandre v. State, 2007 ME 106, ¶ 43, 927 A.2d 1155, 1167. First, we consider “whether there has been serious incompetency, inefficiency, or inattention of counsel amounting to performance ... below what might be expected from an ordinary fallible attorney.” McGowan, 2006 ME 16, ¶ 11, 894 A.2d at 496–97 (quotation marks omitted). Second, we determine “whether any such ineffective representation likely deprived the defendant of an otherwise available substantial ground of defense.” Id. ¶ 11, 894 A.2d at 497; see also Whitmore v. State, 670 A.2d 394, 396 (Me.1996) (explaining that “[t]o establish that he has been deprived of a substantial ground of defense, [a petitioner] must demonstrate that trial counsel's performance likely affected the outcome of the trial”).

[¶ 13] In evaluating claims of ineffective assistance of counsel, the post-conviction court's findings are subject to a deferential standard of review:

Whether the performance of an attorney falls below the standard is a question of fact. We will not overturn a post-conviction court's determination as to the effectiveness of trial counsel unless it is clearly erroneous and there is no competent evidence in the record to support it. Likewise, the finding of whether the petitioner was prejudiced by [his] attorney's error is a factual finding reviewed for clear error.

Francis v. State, 2007 ME 148, ¶ 5, 938 A.2d 10, 11–12 (quotation marks omitted).⁸ Because the burden is on the petitioner to prove both prongs, see McGowan, 2006 ME 16, ¶ 12, 894 A.2d at 497, Gauthier can succeed in this appeal only if the evidence before the post-conviction court compels findings in his favor, see Heon v. State, 2007 ME 131, ¶ 8, 931 A.2d 1068, 1070.

[¶ 14] Gauthier's ineffective assistance of counsel argument focuses on a single alleged error. He argues that his attorney committed a prejudicial, tactical mistake in choosing not to rest his case following the close of the State's case-in-chief. Gauthier reasons that the State's evidence proved only that he was present at the scene of the murders; that no further evidence was necessary to establish that he was wearing the Red Sox jersey; and that the witnesses called after the State rested its case provided the crucial narrative that had been lacking—namely, Gauthier's violent past and the relationship between Dyer, Gauthier, and the victims. Gauthier accurately characterizes his argument as an attack on his attorney's trial strategy.

[¶ 15] A determination that defense counsel's choices amount to “trial strategy” does not automatically insulate them from review. Such choices, however, must be afforded substantial deference. See Levesque v. State, 664 A.2d 849, 851 (Me.1995) (“Deference to strategic or tactical decisions of the trial attorney is substantially heightened....”). As the United States Supreme Court has explained:

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...