Hodgdon v. State

249 A.3d 132

Benjamin H. HODGDON II

v.STATE of Maine

Docket: Han-20-119

Supreme Judicial Court of Maine.

Argued: February 9, 2021

Decided: April 15, 2021

Jeremy Pratt, Esq. (orally), and Ellen Simmons, Esq., Camden, for appellant Benjamin H. Hodgdon II

Matthew J. Foster, District Attorney, and Eden S. Stuart, Asst. Dist. Atty. (orally), Prosecutorial District No. VII, Ellsworth, for appellee State of Maine

Panel: MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.

HORTON, J.

[¶1] Benjamin H. Hodgdon II appeals from a judgment entered by the Superior Court (Hancock County, R. Murray, J. ) denying, in part, his petition for post-conviction review of his conviction on several sexual assault charges. Hodgdon contends that the court should have granted his petition in all respects because his attorney furnished ineffective assistance during his trial. Because we agree that Hodgdon was deprived of his right to the effective assistance of trial counsel, we vacate the judgment and remand for entry of a judgment granting his petition in full.

I. BACKGROUND

A. Trial and Direct Appeal Proceedings

[¶2] In April 2014, Hodgdon was charged in an eight-count indictment with four counts of gross sexual assault (Class A), 17-A M.R.S.A. § 253(1)(B) (Supp. 2000) (Counts 1, 3, 4, and 5); two counts of unlawful sexual contact (Class C), 17-A M.R.S.A. § 255(1)(C) (Supp. 2000) (Counts 2 and 6); and two counts of sexual abuse of a minor (Class C), 17-A M.R.S.A. § 254(1)(A), (3)(A) (Supp. 2000) (Counts 7 and 8).¹ All of the charges alleged criminal acts occurring in 1999 and 2000. The charges of gross sexual assault and unlawful sexual contact (Counts 1 through 6) alleged acts committed before the alleged victim turned fourteen years old.

[¶3] The trial court (Hancock County, R. Murray, J. ) held a three-day jury trial in March 2016. Before any evidence was presented, Hodgdon moved in limine to exclude a recording of a conversation between Hodgdon and the alleged victim that the alleged victim had created on her cell phone and provided to the police. The court ruled that the recording itself and "any reference to the fact that a recording was made or attempted" would be inadmissible at trial.

[¶4] The alleged victim was the State's first witness. She testified that during the three years that she was in middle school, Hodgdon was her teacher, cross-country coach, and tutor, and that he also employed her (as a babysitter and landscaper) outside of school. She testified that Hodgdon subjected her to sexual acts at least thirty to forty times before she graduated from middle school, including at his house, before and after school in his classroom, at landscaping job sites, in his vehicle in the school parking lot after school, and at his parents’ house.

[¶5] Hodgdon's trial counsel began his cross-examination by asking the alleged victim about a police detective's interview of her in 2013 and seeking to introduce in evidence a transcript and audio recording of that interview. The State objected to the admission of the entire transcript and recording. Trial counsel stated that he wanted to highlight inconsistencies between the alleged victim's statements to the detective in that interview and her trial testimony and argued that it was "imperative" that the jury read and hear the entire police interview. The court suggested waiting to see how the cross-examination developed before deciding whether the exhibits would be admitted, and trial counsel agreed with that approach. Trial counsel then questioned the alleged victim, referring to various elements of the interview in an attempt to suggest that her trial testimony differed from what she had initially told the police. He then again sought admission of the entire, unredacted transcript and recording. The State did not object, and the court admitted the exhibits.

[¶6] Several other witnesses testified during the trial, including a "first complaint" witness, see, e.g. , State v. Fahnley , 2015 ME 82, ¶¶ 15-26, 119 A.3d 727, Hodgdon, and several school employees and community members. The State did not present any physical or corroborative eyewitness evidence; its case-in-chief was entirely based on the alleged victim's testimony that Hodgdon had assaulted her. Hodgdon's counsel did not request a "specific unanimity" jury instruction, see, e.g. , State v. Hanscom , 2016 ME 184, ¶¶ 11-14, 16, 152 A.3d 632, and the court did not provide one. The jury found Hodgdon guilty of one count of gross sexual assault (Count 5), one count of unlawful sexual contact (Count 6), and one count of sexual abuse of a minor (Count 7). The court later sentenced Hodgdon on the count of gross sexual assault to eleven years in prison, with all but three and one-half years suspended, and six years of probation.² Hodgdon appealed, and we affirmed the judgment of conviction.³ See State v. Hodgdon , 2017 ME 122, ¶¶ 1, 26, 164 A.3d 959.

B. Post-Conviction Review Proceedings

[¶7] Hodgdon then filed a petition for post-conviction review in the Superior Court (Hancock County). See 15 M.R.S. §§ 2123, 2129 (2021). He argued, among other things, that he had been deprived of his right to the effective assistance of counsel based on (1) trial counsel's introduction in evidence of the recording and transcript of the entirety of the alleged victim's police interview and (2) trial counsel's failure to request jury instructions concerning specific unanimity. The post-conviction court (R. Murray, J. ) held an evidentiary hearing. Trial counsel was unavailable to testify because he had died before the hearing took place. The evidence admitted included the relevant trial transcripts and exhibits;⁴ trial counsel's entire file, which contained copies of communications from trial counsel to Hodgdon; and the testimony of Hodgdon's expert witness, who opined that trial counsel's conduct constituted ineffective assistance of counsel.

[¶8] In March 2020, the court granted Hodgdon's petition as to the convictions for unlawful sexual contact and sexual abuse of a minor (Counts 6 and 7), determining that trial counsel's failure to request specific unanimity instructions concerning those charges amounted to ineffective assistance of counsel. The court therefore vacated Hodgdon's convictions on those counts, such that only the conviction for gross sexual assault (Count 5) remained. The court found that a specific unanimity instruction was unnecessary for that charge because the trial record contained evidence of only one incident that could have formed the basis for the jury's finding of guilt.

[¶9] The court also determined that trial counsel's decision to introduce the transcript and recording of the alleged victim's police interview was part of a trial strategy that "fell within the wide range of reasonable professional assistance." (Quotation marks omitted.) Concluding that none of Hodgdon's other arguments merited relief, the court denied Hodgdon's petition as to the conviction for gross sexual assault (Count 5).

[¶10] One month later, in April 2020, we decided Watson v. State , in which we concluded that trial counsel's introduction of a recording of an alleged crime victim's interview with police constituted ineffective assistance of counsel. 2020 ME 51, ¶¶ 19-39, 230 A.3d 6. Based on Watson , Hodgdon asked the post-conviction court to reconsider its decision in this case. The court denied his motion. We then granted Hodgdon's request for a certificate of probable cause to proceed with this appeal. See 15 M.R.S. § 2131(1) (2021) ; M.R. App. P. 19(a)(2)(F), (f).

II. DISCUSSION

[¶11] "[A] criminal defendant is entitled to receive the effective assistance of an attorney." McGowan v. State , 2006 ME 16, ¶ 9, 894 A.2d 493 ; see U.S. Const. amend. VI ; Me. Const. art. I, § 6. "To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate (1) ‘that counsel's representation fell below an objective standard of reasonableness’ and (2) that the ‘errors of counsel ... actually had an adverse effect on the defense.’ " Ford v. State , 2019 ME 47, ¶ 11, 205 A.3d 896 (quoting Strickland v. Washington , 466 U.S. 668, 693, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ).

[¶12] In determining whether the petitioner has met his burden on the performance prong of this test—that counsel's representation was deficient—a court affords trial counsel's strategic decisions significant deference. See, e.g. , Middleton v. State , 2015 ME 164, ¶ 13, 129 A.3d 962. But notwithstanding "the presumption that, under the circumstances, the challenged action might be considered sound trial strategy," id. (quotation marks omitted), "[a] determination that defense counsel's choices amount to trial strategy does not automatically insulate them from review," Watson , 2020 ME 51, ¶ 20, 230 A.3d 6 (quotation marks omitted). Ultimately, "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 (quotation marks omitted). To establish prejudice—that counsel's errors had an adverse effect on the defense—a petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland , 466 U.S. at 694, 104 S.Ct. 2052 ; see Watson , 2020 ME 51, ¶ 29, 230 A.3d 6.

[¶13] We "review a post-conviction court's legal conclusions de novo and its factual findings for clear error." Fortune v. State , 2017 ME 61, ¶ 12, 158 A.3d 512. "[B]oth prongs of the Strickland analysis often present mixed questions of law and fact ...." Id. We "apply the most appropriate standard of review for the issue raised depending on the extent to which that issue is dominated by fact or by law." Id. ¶ 13. "Because a petitioner bears the burden of proof at...