Theriault v. State
| Decision Date | 29 October 2015 |
| Docket Number | Docket No. Aro–14–158. |
| Parties | Mark J. THERIAULT v. STATE of Maine. |
| Court | Maine Supreme Court |
Richard L. Hartley, Esq. (orally), Law Office of Richard L. Hartley, P.C., Bangor, for appellant Mark J. Theriault.
Todd R. Collins, District Attorney (orally), Caribou, for appellee State of Maine.
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.
[¶ 1] After a jury trial held in February 2011, Mark J. Theriault was convicted of one count of unlawful sexual contact (Class A), 17–A M.R.S. § 255–A(1)(F–1) (2014). Theriault challenged the judgment through a petition for post-conviction review, see 15 M.R.S. § 2122 (2014), alleging that he was denied effective assistance of counsel during the underlying criminal proceeding. The Superior Court (Aroostook County, Hunter, J. ) denied Theriault's petition after a hearing, and we issued a certificate of probable cause, allowing Theriault to appeal the adverse post-conviction judgment. See 15 M.R.S. § 2131(1) (2014) ; M.R.App. P. 19. Because the court's decision applied a test for prejudice that did not fully comport with the standard established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we vacate the post-conviction judgment and remand for reconsideration.
[¶ 2] We view the record of both the post-conviction proceeding and the underlying criminal action in the light most favorable to the State as the prevailing party. See Lamarre v. State, 2013 ME 110, ¶ 2, 82 A.3d 845. Theriault was indicted in July 2008 for unlawful sexual contact committed in March 2008 against a child who, at the time of the offense, was six years old. Attorney Allan Hanson was appointed to represent Theriault, and the case proceeded to a one-day jury trial in February 2011 (Aroostook County, Hunter, J. ). The State presented the testimony of three witnesses: the victim's sister, a registered nurse who spoke with the victim at a local hospital after the victim's mother brought her there on the day of the incident, and the victim herself.
[¶ 3] The victim's sister, who was twenty-two years old at the time of the trial, testified that in March 2008, she lived with the victim and their brother, mother, and stepfather, near Theriault's residence. On March 14, 2008, Theriault drove her and the victim to a nearby store, and Theriault invited them back to his house. The sister refused, but the victim went with him. Later in the day, the victim returned home with wet hair and said that she had taken a bath. When the sister asked about the wet hair, the victim became quiet. That evening, the sister asked if Theriault had seen the victim naked and if Theriault had touched her "down there," referring to the victim's genitals. Becoming emotional, the victim said that he had seen her naked and touched her. The sister, who acknowledged that she is not trained to interview children, testified that as she spoke with the victim, she (the sister) first referred to the genital area as "down there," and first raised the issue of whether the victim and Theriault were naked.
[¶ 4] The victim's sister reported the disclosure to their mother, who then drove the victim and the sister to a nearby hospital. The victim and the sister continued to discuss the assault during the ride. At the hospital, the victim was examined by a registered nurse who was trained to assist physicians with primary assessments of sexual assault victims younger than thirteen years old. During the evaluation, the victim told the nurse that after she had taken a bath, Theriault called her into the living room and touched her over her clothing "down there," which the victim identified by pointing toward her genitals. The nurse examined the victim and found no physical injury resulting from the alleged assault, which, based on the reported nature of the assault, was not unexpected. The nurse ultimately referred the victim for a forensic evaluation at The Spurwink Child Abuse Program, which specializes in pediatric sexual abuse assessments and interviews. No evidence was presented about the Spurwink evaluation.
[¶ 5] The victim then testified that in March 2008, when she was six years old, she went to Theriault's residence, and, while there, she took a bath. After she got dressed, and while she was using a PlayStation video game, Theriault told her to go into his bedroom, where he removed her clothes, told her to lie down on the bed, and touched her genitals, penetrating her with his fingers.
[¶ 6] Theriault did not present a case-in-chief. The jury found him guilty, and at a sentencing hearing held two days later, the court imposed a prison term of sixteen years, with all but eight years suspended, and six years of probation. Attorney Hanson filed a notice of appeal and an application for leave to appeal the sentence. See 15 M.R.S. § 2151 (2014) ; M.R.App. P. 20. Theriault's current attorney entered his appearance soon after, and Attorney Hanson withdrew as counsel. We denied Theriault's application to allow an appeal from sentence, and in August 2011 we dismissed his direct appeal for want of prosecution.
[¶ 7] In August 2012, Theriault filed a petition for post-conviction review, which, as amended in May 2013, alleged that Attorney Hanson failed to provide effective representation during the pretrial and trial proceedings.1 A trial on the post-conviction petition was held in September 2013, at which Attorney Hanson and Theriault both testified. During the hearing, the court admitted into evidence a report of the psychosocial evidentiary assessment conducted by a licensed clinical social worker at the Spurwink Child Abuse Program. The report states that during the forensic interview of the victim conducted on March 25, 2008, "When asked if somebody had done something to her that she does not like, [the victim] stated, ‘No.’ " Additionally, the report recites, "When asked if [Theriault] does something that she does not like, she stated, ‘Hmmm, no.’ " According to the report, the victim also initially denied that anything had happened "to her privates." She then agreed that someone had touched her "privates" and, in response to a series of questions, described at least one incident when Theriault sexually assaulted her.
[¶ 8] After the parties submitted post-trial arguments, on March 11, 2014, the court issued a written decision denying the petition, concluding that its "analysis of the prejudice prong is determinative of this petition." In its order, the court outlined the two-part test that controls claims of ineffective assistance of counsel, which focuses on the quality of trial counsel's performance and any resulting prejudice. Addressing the issue of prejudice, the court stated generally, "If a post-conviction petitioner proves ineffective assistance, he must also demonstrate that the outcome of the proceedings would have been different but for counsel's performance."
[¶ 10] The court also considered Theriault's claim that Attorney Hanson did not present available evidence that Theriault did not have a PlayStation at his house, to impeach the victim's testimony that she was playing with a PlayStation at his house shortly before he assaulted her. The court rejected this claim, noting that at trial Attorney Hanson presented evidence that the victim told the nurse that Theriault had touched her over her clothing, which was inconsistent with the victim's trial testimony that she was not wearing clothes at the time of the assault. The court found that because the jury appears to have accepted the victim's testimony despite her contradictory statements about the incident itself, evidence that Theriault did not have a PlayStation was not "likely to have produced a different result." In its order, the court did not address Theriault's argument that Attorney Hanson should have presented evidence of the victim's exculpatory statements made during the Spurwink evaluation to impeach her inculpatory trial testimony.
[¶ 11] Without reaching the question of whether Attorney Hanson's representation of Theriault was constitutionally deficient, the court denied the petition based on its conclusion that Theriault "has failed to persuade this court that he was actually prejudiced by any such deficiencies." Theriault successfully sought leave to appeal the judgment pursuant to 15 M.R.S. § 2131(1) (2014) and M.R.App. P. 19.
[¶ 12] Because the court denied Theriault's petition for post-conviction review on the sole basis that he had not proved prejudice arising from any constitutional...
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