Thompson v. State
| Decision Date | 02 April 1993 |
| Parties | Paul W. THOMPSON v. STATE of Maine. |
| Court | Maine Supreme Court |
S. Carter Friend (orally), Charles A. Harvey, Jr., Verrill & Dana, Portland, for plaintiff.
Garry L. Greene (orally), Asst. Atty. Gen., Augusta, for the State.
Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, COLLINS and RUDMAN, JJ.
In the case before us, the State appeals from the judgment entered in the Superior Court (Lincoln County, Bradford, J.) granting Paul W. Thompson a new trial on his petition for post-conviction relief. The State argues that the post-conviction court erred by applying our decision in State v. Jacques, 558 A.2d 706 (Me.1989), retroactively to Thompson's conviction. We agree and vacate the court's grant of a new trial. On Thompson's cross-appeal, we affirm the court's finding that he knowingly, intelligently, and voluntarily waived his right to counsel.
Thompson was indicted on one count of unlawful sexual contact, 17-A M.R.S.A. § 255(1)(C) (Supp.1984), and one count of gross sexual misconduct, 17-A M.R.S.A. § 255(1)(B) (Supp.1984). Thompson wished to be represented at trial by David Dodge, a lay person not licensed to practice law in Maine. The Superior Court (Lincoln County, Lipez, J.) allowed David Dodge to sit at counsel table with Thompson and assigned stand-by counsel only after thoroughly and repeatedly warning Thompson of the seriousness of the charges against him and the disadvantages he would face without an attorney. Thompson persistently refused to be represented by counsel.
At the trial Thompson attempted to elicit testimony from the child victim that the victim had performed oral sex on the victim's younger brother, in order to show the victim had a problem "[m]olesting young children." Thompson also attempted to elicit testimony from a school social worker, a neighbor, and the victim's brother about the victim's sexual contact with others. The trial court interpreted Thompson's offer of proof as being based on our decision in State v. Davis, 406 A.2d 900 (Me.1979). The court decided that the Davis decision had been superseded by the adoption of M.R.Evid. 412.
The jury found Thompson guilty on both counts. On direct appeal Thompson argued that the evidence excluded by the trial court had been offered to establish the victim's bias and motive to lie. We rejected Thompson's contention in a memorandum of decision on the ground that this issue had not been preserved at the trial of the case. State v. Thompson, 549 A.2d 364 (Me.1988).
On post-conviction review, Thompson argues that our decision in State v. Jacques, 558 A.2d 706 (Me.1989), articulated a change in the law making the admission of a child victim's sexual contact with others constitutionally required, and therefore, that the trial court should use the standards of retroactivity adopted by this court in Nadeau v. State, 232 A.2d 82, 86 (Me.1967), to find that Jacques should be applied to vacate his conviction and grant him a new trial. The State agrees that Jacques articulated a change in the law but argues that the trial court should apply the standard of retroactivity established by the United States Supreme Court in Teague v. Lane, 489 U.S. 288, 302, 109 S.Ct. 1060, 1071, 103 L.Ed.2d 334 (1989). The State further asserted that under the Teague standard, Jacques would not be retroactively applied to Thompson's conviction on post-conviction review. The trial court agreed with the State that the Teague standard was the appropriate standard of retroactivity but held that Jacques met that standard and therefore granted Thompson a new trial. Thompson also argues that he had not waived his right to counsel; a contention that was rejected by the trial court.
In the past, we have relied on principles of retroactivity established by the United States Supreme Court as a matter of federal constitutional law. For example, in Poitraw v. State, 322 A.2d 594, 597 (Me.1974) and Nadeau v. State, 232 A.2d 82, 86 (Me.1967), we applied the retroactivity standard established by the Court in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). The United States Supreme Court has since rejected the Linkletter approach as "unprincipled and inequitable," see Griffith v. Kentucky, 479 U.S. 314, 322, 107 S.Ct. 708, 712, 93 L.Ed.2d 649 (1987); and adopted a new standard of retroactivity for convictions on post-conviction review in Teague v. Lane, 489 U.S. at 302, 109 S.Ct. at 1071. In Teague, the Court adopted a position previously advocated by Justice Harlan in his concurring opinion in Mackey v. United States, 401 U.S. 667, 692, 91 S.Ct. 1160, 1180, 28 L.Ed.2d 404 (1971) (separate opinion of Harlan, J.). Teague, 489 U.S. at 309, 109 S.Ct. at 1075. The general rule adopted in Teague provides that "new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced." Id. The Court explained:
Application of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system.
Id. 489 U.S. at 307, 109 S.Ct. at 1074. The Court summarized the two exceptions to the general rule of nonretroactivity identified by Justice Harlan as follows:
First, a new rule should be applied retroactively if it places "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe." Mackey, 401 U.S., at 692, 91 S.Ct., at 1180 (separate opinion). Second, a new rule should be applied retroactively if it requires the observance of "those procedures that ... are 'implicit in the concept of ordered liberty.' " Id., at 693, 91 S.Ct., at 1180 (quoting Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937) (Cardozo, J.)).
Id. 489 U.S. at 306, 109 S.Ct. at 1073. The Court applied the second exception in Teague with a modification that it be "reserved for watershed rules of criminal procedure." Id. at 308, 109 S.Ct. at 1075. The trial court found that our decision in Jacques met the requirements for retroactivity described in the second Teague exception.
Thompson argues that, although Jacques fits into one of the Teague exceptions, we should not adopt the Teague approach because it "places its highest premium on the finality of criminal judgments." We need not reach this issue, however, for both Linkletter and Teague require that the case in question announce a new rule in order to be retroactively applied. See Poitraw, 322 A.2d at 597 () (emphasis added); Teague, 489 U.S. at 300, 109 S.Ct. at 1070 () (emphasis added). We hold that Jacques did not announce a new rule.
In State v. Davis, 406 A.2d 900, 902 (Me.1979), we held that a defendant was unfairly prejudiced by the exclusion of evidence of a child victim's "sexual curiosity" because this subjected the defendant to the "grave risk...
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