Coob v. State

Walter S. Cobb, II v. State of Maine

No. CR-07-32

Superior Court of Maine, Penobscot

November 1, 2010

ATTORNEY FOR THE STATE: Gregory Campbell Assistant District Attorney.

ATTORNEY FOR THE DEFENDANT Anthony Sineni Esq.

DECISION AND JUDGMENT

Hearing was held on the pending petition for post-conviction review. At the hearing, the petitioner was present with post-conviction counsel.

In the underlying criminal action, the petitioner, Walter S. Cobb II, was indicted for robbery (count 1), see 17-A M.R.S. § 651(1)(E); burglary (count 2), see 17-A M.R.S. § 401(1); possession of a firearm by a prohibited person (count 3), see 15 M.R.S. § 393(1)(A); reckless conduct with the use of a firearm (count 4), see 17-A M.R.S. §§ 211(1), 1252(4); criminal threatening with the use of a firearm (count 5) see 17-A M.R.S. §§ 209(1), 1252(4); theft by unauthorized taking (count 6), see 17-A M.R.S. § 353(1)(A); burglary of a motor vehicle (count 7), see 17-A M.R.S. § 405(1); and unauthorized use of property (count 8), see 17-A M.R.S. § 360(1)(A). These charges arose largely out of a March 2003 armed home invasion of the residence of Jeremy Hart and Kristen Hart. During the criminal proceeding, Cobb was represented by Kirk D. Bloomer, Esq. Cobb waived his right to trial by jury on count 3. The remaining charges were the subject of a jury trial held in February 2004. The jury found the defendant guilty of those seven charges. On count 3, based on the evidence presented to the jury and the jury's verdicts on the other counts, the court found the defendant guilty. The following month, the court imposed sentence on all charges. On counts 1 and 2, the sentences were 25 years incarceration, with lesser sentences on the remaining counts. All sentences were to be served concurrently. On appeal, the Law Court affirmed the judgment and the sentences.^[1]

Cobb subsequently filed the instant petition for post-conviction review. The petition as amended sets out a number of claims. However, as is reflected in his written post-trial argument, he has pursued only three contentions. In that written argument, Cobb contends that he was deprived of effective assistance of counsel because trial counsel failed to secure testimony from an alibi witness; because counsel failed to take prophylactic steps during trial to prevent the introduction of evidence of Cobb's felony criminal record and his association with a motorcycle club; and because counsel failed to develop forensic evidence that would have supported an alternative suspect theory.

In order to establish a denial of the constitutional right to effective assistance of counsel, a post-conviction petitioner must prove (1) that there has been "serious incompetency, inefficiency or inattention of counsel-performance of counsel which falls .. .below that which might be expected from an ordinary fallible attorney", and (2) that the ineffective representation "likely deprived the defendant of an otherwise available substantial ground of defense[]." State v. Brewer, 699 A.2d 1139, 1143-44 (Me. 1997).

Alibi evidence

The central issue in the criminal action was whether the state established that Cobb participated in the commission of the crimes associated with the home invasion. Three persons were involved in the commission of the crimes. Two of them testified at trial as prosecution witnesses. There, they acknowledged their own participation and also identified Cobb as the third perpetrator.

Cobb argues here that Bloomer failed to conduct an adequate pretrial investigation that would have developed alibi evidence. As part of the obligation to provide a constitutionally adequate caliber of representation, defense counsel owes a duty to conduct a reasonable pretrial investigation. Doucette v. State, 463 A.2d 741, 745 (Me. 1983).

Cobb alleges that prior to trial, he provided information about an alibi witness to Bloomer and a private investigator, Joseph Lamagna, whom Bloomer secured to assist in Cobb's defense. The crimes charged against Cobb occurred during the morning hours of Sunday, March 9, 2003. At the post-conviction hearing, Cobb testified that during the period of time when the crimes were committed, he was with one Robin Boyington. Cobb stated that he had known Boyington for some period of time and met her at Angie's Pub, a bar in Portland, during the evening of March 8. The two eventually went to a motel and had sex. Cobb testified that he left the motel at 11:00 a.m on March 9, by which time the crimes had been committed. Cobb argues here that he was deprived of effective assistance of counsel because Bloomer did not secure Boyington as an alibi witness.

The court finds as a factual matter that Cobb did not provide this alibi information to Bloomer and Lamagna in the way he described at the post-conviction hearing. The court places greater weight on the testimony of Bloomer and Lamagna. Both testified that Cobb told them that he was in Portland during the evening of March 8 and that he met a woman named Robin at Angie's Pub. However, Cobb was unable to provide them with Robin's last name or an address where she could be located. According to Bloomer and Lamagna, Cobb told them that they had oral sex in a car and that he then went to the home of Julie Miller, with whom Cobb has a child.

Lamagna followed up on this information. He went to Angie's Pub and spoke with the manager but was unable to obtain more information about the identity and whereabouts of Robin. Lamagna even attempted to look at video surveillance tapes, but the images from March 8 no longer existed. Because Lamagna took those steps to find Robin based on the limited information that Cobb gave him, it stands to reason that if Lamagna had the better contact information that Cobb says he provided, Lamagna would have used that information because it would have been easier to find her that way. That Lamagna did not conduct a search based on the data that Cobb claims he provided suggests that Cobb's account is not true. Ultimately, without a last name or an address, Lamagna was unable to find Robin.

Lamagna continued in his attempts to develop Cobb's alibi information by contacting Miller. In a telephone conversation with her, Miller told Lamagna that Cobb was not with her on March 8 or 9. She was certain that she last saw Cobb in November 2002 and that she remembered the date of that contact because it was related to their son's birthday.

At the post-conviction hearing, Cobb stated that he told Bloomer and Lamagna that he did not want them to pursue Miller as an alibi witness because his relationship with her was difficult. If this testimony is true, it means that Bloomer and Lamagna failed to locate a favorable alibi witness that Cobb did disclose to them - and that they did locate and pursue a witness who Cobb said would not be helpful as a defense witness. Cobb's contention to this effect is not credible. There is no dispute that Bloomer and Lamagna realized the importance of developing alibi evidence. The evidence then shows that Bloomer and Lamagna actively pursued that defense. This is shown by the very fact that Lamagna contacted Miller. The only evident reason he would do so was because Cobb suggested to them that she would provide alibi evidence. Particularly after it became clear that Miller could not provide that alibi evidence and that Cobb's information was likely false, they certainly would have followed up with Boyington - if Cobb had given them as much information as he now claims. That they did not is strong evidence that the only information provided by Cobb was insufficient to find her.

For these reasons, the court finds that Bloomer worked with the information Cobb gave to him but was unable to locate the person whom Cobb said would provide an alibi. Bloomer cannot be faulted for this.

Evidence of a motorcycle club and the defendant's criminal history

During the trial, witnesses made occasional references to the Iron Horsemen Motorcycle Club, with which Cobb was affiliated.^[2] Also, one witness, Albert Severance, who was one of the admitted participants in the crime, testified that Cobb had a felony criminal record. Cobb argues here that the presentation of this evidence was improper and resulted from Bloomer's ineffective representation of him at trial. Here, the court separately addresses the two evidentiary issues.

First the references to the motorcycle club arose in several different contexts. None of those references was improper, and none could be seen to cause prejudice of the magnitude that would entitle Cobb to relief here. Evidence of the organization arose through the testimony of a law enforcement officer who took a blood sample from the defendant after the defendant was charged with the crimes at issue here. The sample was to be used to analyze evidence obtained during the investigation. During that encounter, the...