Weidul v. State

319 A.3d 1048

2024 ME 51

Ernest B. WEIDUL

v.STATE of Maine

Docket: Cum-23-4

Supreme Judicial Court of Maine.

Argued: April 10, 2024

Decided: July 9, 2024

Donald S. Hornblower, Esq. (orally), Lewiston, for appellant Ernest B. Weidul Aaron M. Frey, Attorney General, and Donald W. Macomber, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee State of Maine

Panel: STANFILL, C.J., and MEAD, HORTON, CONNORS, LAWRENCE, and DOUGLAS, JJ.

HORTON, J.

[¶1] Ernest B. Weidul appeals from a judgment entered by the post-conviction court (Cumberland County, Anderson, J.) denying his petition for post-conviction relief after a three-day hearing. Weidul, who had been convicted of manslaughter and other charges, alleged in his petition that he had received ineffective assistance of counsel. The justice (Wheeler, J.) who presided at Weidul’s trial and during the first two days of the post-conviction hearing retired before the post-conviction hearing was completed, and a different justice (Anderson, J.) presided during the third day of hearing and rendered a judgment denying the petition. As one ground for his appeal, Weidul argues that the judgment should be vacated because the justice who rendered it did not observe the testimony of the witnesses who testified during the first two days of the hearing and did not permit Weidul to recall those witnesses except for questioning on areas not covered previously. The second justice was ultimately responsible for factfinding, and the credibility of the witnesses’ testimony during the first two days of hearing was both disputed and essential to the outcome. Because there is no provision in our rules of procedure authorizing a justice who did not preside during disputed live testimony during a post-conviction hearing to adjudicate the credibility of the testimony over objection, and because the error was not harmless, we agree with Weidul, vacate the judgment, and remand for additional proceedings.

I. BACKGROUND

[¶2] In 2012, the trial court (Wheeler, J.) entered a judgment of conviction against Weidul after a jury found him guilty of manslaughter (Class A), 17-A M.R.S. § 203(1)(A) (2024); aggravated assault (Class B), 17-A M.R.S. § 208(1)(A) (2010);¹ and operating while his license was suspended or revoked (Class E), 29-A M.R.S. § 2412-A(1-A)(A) (2024). The evidence presented at that trial, viewed in the light most favorable to the State, established the following facts beyond a reasonable doubt. See State v. Marquis, 2023 ME 16, ¶ 19, 290 A.3d 96; State v. Weidul, Mem-13-69 (June 20, 2013) (affirming the judgment of conviction).

[¶3] On May 5, 2010, Weidul and the victim met when Weidul’s vehicle collided with an object outside of the victim’s Portland apartment, and the victim invited Weidul in for a drink. Weidul and the victim became intoxicated. They got into a fight, resulting in significant, bloody facial injuries to the victim. The victim called for emergency assistance the next day and was transported to Mercy Hospital. He died in the hospital on May 7, 2010.

[¶4] After the victim’s death, the police returned to the victim’s apartment, where they found blood spatter on the wall behind the victim’s couch, blood on the couch cushions, an uprooted clump of long hair, a blood transfer stain on the victim’s pillow in the bedroom, a blood-soaked shirt that was too small for the victim in the bathroom, and a hospital bracelet with Weidul’s name on it. On May 8, 2010, an officer who had been alerted to look for Weidul’s vehicle saw Weidul’s vehicle and noticed that it did not have functioning taillights. The of- ficer stopped the vehicle, which Weidul was driving, and learned that Weidul’s license was under suspension. The officer, through police dispatch, informed the detectives investigating the victim’s death that he had located Weidul; he then engaged Weidul in small talk until the detectives arrived at the scene about an hour later. The police arrested Weidul for operating a motor vehicle with a suspended license.

[¶5] At the police station, after reading Miranda warnings to Weidul, police questioned Weidul regarding his interaction with the victim, and Weidul admitted to punching the victim in the face multiple times. Weidul also provided the police with a DNA sample and complied with their requests to collect other evidence.

[¶6] The State charged Weidul with aggravated assault and operating while his license was suspended or revoked, and later filed a superseding indictment that added a manslaughter charge. Weidul was assigned a total of five court-appointed defense attorneys from the initiation of the charges through the end of his trial. In September 2011, the court appointed the third of these attorneys to replace withdrawn counsel. Because of the substantial amount of work needed to prepare the case for trial, the attorney moved to have an additional attorney appointed as cocounsel in November 2011, and the court granted the motion, appointing the fourth attorney to represent Weidul in the criminal matter. On December 1, 2011, Weidul’s counsel filed a motion to suppress Weidul’s statements to police on the ground that he did not waive his right to remain silent and did not make the statements voluntarily. The court scheduled a jury trial to begin on January 27, 2012.

[¶7] After a breakdown of the attorney-client relationship between Weidul and his new counsel, his two attorneys moved to withdraw from Weidul’s defense on January 6, 2012. With just a few weeks before Weidul’s jury trial was scheduled to begin, the court denied the motion the same day, noting the attorneys’ professional approach to the case and the difficulty of finding counsel for Weidul after he had "gone through a number of counsel, burning bridges."

[¶8] The court denied Weidul’s motion to suppress on January 19, 2012.² It then granted a motion to continue filed by Weidul and rescheduled the jury trial to May 2012. In February 2012, the court appointed another attorney—the fifth to be appointed—and ordered that Weidul be co-counsel with the three appointed attorneys to facilitate Weidul’s participation in his defense.

[¶9] Weidul, through counsel, moved in limine—without success—to exclude the testimony of the State Medical Examiner as unreliable. Counsel also sought to obtain documents from Mercy Hospital, including the hospital’s report reviewing its practitioners’ adherence to procedures and standards of care in treating the victim. After the court ordered Mercy to disclose its records, Mercy filed an interlocutory appeal to us, and we dismissed Mercy’s appeal on May 16, 2012. In re Motion for Prot. of Mercy Hosp. Evidence, 2012 ME 66, 43 A.3d 965. The trial court ordered Mercy to produce the documents subject to a protective order, and Mercy did so two days before trial.

[¶10] The Mercy documents included a self-assessment of the hospital’s treatment of the victim. The hospital concluded that its treatment fell below the standard of care because hospital staff failed to recognize the level of trauma inflicted on the victim. Specifically, the self-assessment noted that the victim "was not identified as a patient with a compromised airway," and that the hospital’s policy was to require such patients to be admitted to the hospital’s critical care unit. However, Weidul’s counsel elected not to use the assessment at trial.

[¶11] The court held the jury trial over the course of eight days between May 18 and 30, 2012. The primary contested issue at trial was the cause of the victim’s death. At trial, the State’s medical examiner testified that the cause of death was respiratory arrest resulting from laryngeal edema, which occurred due to blunt trauma to the outside of the victim’s neck. Weidul’s counsel cross-examined the medical examiner to demonstrate that she failed to include in her initial report that the victim had pneumonia at the time of his death, that she was not an expert regarding laryngeal edema being caused by neck trauma, that she had no significant source materials to support her finding as to cause of death, and that Mercy Hospital had treated the victim in a way that suggested that the hospital was not concerned about laryngeal edema.

[¶12] Weidul’s medical expert, Robert Belliveau, testified that he believed that undiagnosed pneumonia had caused the victim’s death. He testified that before learning of the pneumonia through viewing slides of tissue taken from the victim’s lung, he had thought that the victim had died from laryngeal edema triggered by an allergic reaction to Zoloft combined with anesthesia.

[¶13] The jury found Weidul guilty of all three charges. On the manslaughter charge, the court sentenced Weidul to twenty years of incarceration with all but sixteen years suspended and four years of probation. The court sentenced him to a concurrent sentence of ten years of incarceration on the charge for aggravated assault and ordered him to pay a $250 fine for operating while his license was suspended or revoked.

[¶14] Weidul appealed from the judgment of conviction, challenging the denial of his motion to suppress his statements to police on the ground that he did not make the statements voluntarily. See Weidul, Mem-13-69. We affirmed the judgment of conviction on June 20, 2013. See id.

[¶15] Weidul filed a petition for post-conviction review on June 19, 2014. The court assigned counsel for Weidul. At Weidul’s request, the court granted a continuance in 2015. In April 2016, Weidul filed an amended petition setting forth multiple allegations of ineffective assistance of counsel. At that time, Weidul’s post-conviction counsel moved to withdraw on the ground that Weidul’s behavior when they met at the Maine State Prison had made him fearful of Weidul. The court appointed new counsel for Weidul.

[¶16] After an additional continuance and a competency evaluation, the court denied another motion to continue filed by Weidul and began the post-conviction hearing on ...