Cardilli v. State

1

MARK CARDILLI JR., Petitioner, v. STATE OF MAINE, Respondent.

No. CUMCD-CR-22-1145

Superior Court of Maine, Cumberland

August 22, 2023

ORDER ON PETITION FOR POST-CONVICTION REVIEW

John O'Neil Jr., Justice

Before the Court is Petitioner Mark Cardilli Jr.'s request for Post-Conviction Review (PCR) pursuant to 15 M.R.S §§2121-2132.

PRELIMINARY STATEMENT

At the outset, this court notes that this is one of the most challenging cases in its career. A PCR hearing is not a retrial of the underlying case but rather an evaluation of whether a defendant's right under the 6th Amendment to the United States Constitution to adequate legal representation has been violated.

The nature of the relatively small Maine legal community means that it is inevitable that a PCR judge will be required to evaluate the performance of lawyers who routinely appear in front of that judge. This court has had multiple cases with trial counsel in this case, Attorney Matthew Nichols and then-Attorney Churchill, including complicated and difficult high-profile cases. Their performance in those cases was exemplary. They have both earned outstanding reputations in the criminal defense bar.

The next challenge is that Attorney Churchill is now a Maine District Court Judge. ^[1] and a professional colleague of this court. I agreed to accept assignment in this case because I sit in the Superior Court, not the District Court, and I am assigned to a different judicial region. As a result, I have no day-to-day professional interactions with Judge Churchill. I also have no social interaction with Judge Churchill outside of occasional judicial trainings and meetings. Accordingly, I feel I can appropriately and impartially evaluate the defense of Mr. Cardilli during his murder trial.

Finally it is routine for a PCR to be assigned to the judge who heard the trial. That judge has seen the witnesses in person and has a greater understanding of the trial dynamics apart from simply reading a voluminous transcript. The trial judge who decided this matter was Superior Court Justice Nancy Mills. Justice Mills is now in active-retired judicial status. Although that would not have precluded assignment of this case to her, one of the claims advanced by Mr. Cardilli is that he waived his right to a jury trial in favor of a bench trial with Justice Mills because of representations by Attorney Nichols that led Mr. Cardilli to believe that Justice Mills would be inclined to rule in his favor based on a personal relationship between Attorney Nichols' family and Justice Mills. This court concludes that this allegation is meritless for reasons discussed below. However, the nature of these allegations made assignment to another judge necessary.

PROCEDURAL BACKGROUND

By indictment dated April 5, 2019, Mr. Cardilli was charged with the intentional and knowing murder of Ishak Muse, in violation of 17-A M.R.S. section 201(A). The Superior Court (Cumberland County, Mills, J.) held a bench trial from December 9 through December 13, 2019. On December 27, 2019, the court issued a Judgment, finding Mr. Cardilli not guilty of intentional and knowing murder but guilty of manslaughter with a dangerous weapon in violation of section 203(1)(A). State v. Cardilli, No. CUMCD-CR-2019-01823 Unified Criminal Docket (Cumberland Cnty., Dec. 27, 2019). On August 31, 2020, the trial court imposed a sentence of 11 years in prison, all but seven and a half years suspended, and four years of probation. Mr. Cardilli timely appealed on September 1, 2020. The Law Court affirmed the judgment of conviction on June 17, 2021. State v. Cardilli, 2021 ME 31, 254 A.3d415.

On June 24, 2021, Mr. Cardilli filed a Motion to Reconsider and Recall the Mandate. The Law Court denied the motion. On April 1, 2022, Mr. Cardilli filed the instant petition for post-conviction review, claiming ineffective assistance of trial counsel. Mr. Cardilli alleges that he was deprived of a fair trial because trial counsel (1) failed to present a self-defense justification under 17-A M.R.S. section 108(2)(A), (2) improperly counseled Mr. Cardilli into waiving his right to a jury trial, and (3) misunderstood the law of justification under section 101(3).

FACTUAL BACKGROUND

In March 2019, Mr. Cardilli returned to Portland after five years of Army service and began living in his family home with his parents and his seventeen-year-old sister.^[2] At that time, his sister was under bail conditions of no contact with her twenty-two-year-old boyfriend, Ishak Muse. On March 15, 2019, Mr. Cardilli's sister ignored bail conditions and invited Mr. Muse to come over to the house. Mr. Muse arrived at 10:00 p.m., and after a family argument over his presence, Mr. Cardilli's parents agreed to allow Mr. Muse to stay until 1:00 a.m.

At 1:00 a.m., Mr. Muse refused to leave, and another family argument began. This time, Mr. Cardilli's parents held firm and continued to tell Mr. Muse to leave. When he refused, Mr. Cardilli and his father escorted Mr. Muse to the door to a breezeway and tried to make him leave, but Mr. Muse pushed them off and forced his way back into the kitchen. At this point, the altercation became physical, with Mr. Cardilli's sister hitting her family members and Mr. Muse attempting to punch Mr. Cardilli. Mr. Cardilli went to his bedroom to grab his gun.

When Mr. Cardilli returned to the kitchen, he pointed the gun at Mr. Muse and again told him to leave. Mr. Muse did not leave, but instead began hitting Mr. Cardilli. Mr. Muse punched Mr. Cardilli in the face several times while Mr. Cardilli retreated with the gun at his side. As Mr. Muse went to punch him again, Mr. Cardilli raised the gun and shot three times; the first shot grazed Mr. Muse's hand and brow and the second and third hit his torso. The shooting occurred at approximately 1:43 a.m. Mr. Cardilli called the police to report the shooting. Emergency responders confirmed Mr. Muse dead on the scene.

DISCUSSION

A criminal defendant's right to the effective assistance of an attorney is protected by the 6th Amendment to the United States Constitution and article I, section 6 of the Maine Constitution. Watson v. State, 2020 ME 51, ¶ 17, 230 A.3d 6. On post-conviction review, claims of ineffective assistance of counsel are analyzed under the two-part test outlined in Strickland v. Washington, 466 U.S. 668 (1984), The petitioner must demonstrate that (1) "counsel's representation fell below an objective standard of reasonableness," and (2) "errors of counsel. . . actually had an adverse effect on the defense." Theriault v. State, 2015 ME 137 ¶14, 125 A.3d 1163 (quoting Strickland, 466 U.S. at 693).

Under the first prong of the Strickland test, the petitioner must show that counsel's performance fell below an objective standard of reasonableness. Watson, 2020 ME 51, ¶ 19, 230 A.3d 6. "The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Id. (quoting Strickland, 466 U.S. at 688). The Law Court has clarified that "counsel's representation of a defendant falls below the objective standard of reasonableness if it falls 'below what might be expected from an ordinary fallible attorney.'" Philbrook v. State, 2017 ME 162, ¶ 7, 167 A.3d 1266 (quoting Francis v. State, 2007 ME 148, ¶ 4, 938 A.2d 10).

Under the second prong of the Strickland test, the petitioner must prove that counsel's errors "actually had an adverse effect on the defense." Watson, 2020 ME 51, ¶ 29, 230 A.3d 6 (quoting Ford v. State, 2019 ME 47, ¶ 11, 205 A.3d 896. This is not a quantitative inquiry, but a qualitative one. Theriault, 2015 ME 137, ¶ 19, 125 A.3d 1163. The Court must "determine whether the petitioner has demonstrated that trial counsel's performance undermines confidence in the outcome of the case and renders that outcome unreliable." Id.

I. Failure to Present 17-A M.R.S. § 108(2)(A) Defense

Mr. Cardilli first argues that trial counsel was ineffective in failing to present a self-defense justification pursuant to 17-A M.R.S. section 108(2)(A). In a murder trial, it is the State's burden to prove beyond a reasonable doubt that "(1) the victim is dead; (2) the defendant caused his death; (3) the defendant's conduct was voluntary; and (4) the defendant acted knowingly or intentionally." State v. Jeskey, 2016 ME 134, ¶ 31, 146 A.3d 127. If the defendant pursues a self-defense justification, he "bears the burden of production to generate the issue with sufficient evidence." State v. Herzog, 2012 ME 73, ¶ 8, 44 A.3d 307. The burden then shifts back to the State to disprove the defense. Id.

Section 108(2)(A) provides:

2. A person is justified in using deadly force upon another person:

A. When the person reasonably believes it necessary and reasonably believes such other person is:

(1) About to use unlawful, deadly force against the person or a 3rd person[.]

Mr. Cardilli contends that trial counsel failed to argue self-defense under section 108(2)(A) at trial, and that trial counsel's failure to make that argument constitutes ineffective assistance of counsel. The court will begin by outlining relevant evidence from the PCR hearing and then move on to a Strickland analysis.

A. Evidence at PCR Hearing

As stated above, Mr. Cardilli was represented at trial by Attorney Nichols and Attorney Churchill, both of whom testified at the PCR hearing. Mr. Cardilli also presented the testimony of two expert witnesses, Associate Professor Thea Johnson of Rutgers University Law School, and Thomas Aveni, Executive Director of Police Policy Studies Council.

Then-Attorney Churchill

Then- Attorney Churchill testified that self-defense under section 108(2)(A) was not presented at trial because there did not appear to be imminent use of deadly...