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Maine Supreme Court: Counsel’s Introduction of Victim’s Video Interview with Police Was Not ‘Sound Trial Strategy,’ Constituted IAC

Benjamin Hodgdon was a teacher in Hancock County when a student alleged that he sexually assaulted her back in 1999 and 2000. He was charged with several counts of gross sexual assault, unlawful sexual contact, and sexual abuse of a minor. A jury found him guilty of a single count for each charge, and he was sentenced to 11 years in prison, with all but 3 and a half years suspended. He appealed, but his convictions were affirmed.

Hodgdon then filed a petition for postconviction review (“PCR”), raising ineffective assistance of counsel (“IAC”) claims. While the trial court granted relief on one of his IAC claims, that counsel was ineffective for failing to request a specific jury instruction and vacated the convictions tainted by that error, the court denied relief for the remaining count of gross sexual assault. For that claim, Hodgdon had argued that counsel was ineffective for introducing the entire video interview of the child victim with the police, including a transcript of it that was given to the jury. Hodgdon appealed the denial of that claim.

To prove his IAC claim, Hodgdon had to show that (1) counsel’s representation was deficient and (2) that counsel’s errors had an adverse effect on the defense. Strickland v. Washington, 466 U.S. 668 (1984). Under the performance prong of the Strickland test, trial counsel’s strategic decisions are afforded great deference by courts. Middleton v. State, 120 A.3d 962 (Me. 2015). However, a “determination that defense counsel’s choices amount to trial strategy does not automatically insulate them from review.” Watson v. State, 230 A.3d 6 (Me. 2020). “[C]ounsel’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, 167 A.3d 1266 (Me. 2017).

The Court stated that there was no question that introducing the video was a trial strategy by counsel, so the question became “whether introducing the entire transcript and recording in evidence in order to [establish inconsistencies with the victim’s testimony] was a reasonable trial strategy.”

A month after Hodgdon’s PCR petition was denied, the Supreme Judicial Court decided Watson v. State, 230 A.3d 6 (Me. 2020), which held in a factually similar case to Hodgdon’s that counsel’s introduction of the crime victim’s recorded interview with police constituted IAC. The Watson Court concluded that counsel could have made his point “without playing the entire video interview” and that by playing the video for the jury counsel only bolstered the victim’s testimony.

The same thing happened in Hodgdon’s case. Any inconsistencies that counsel wanted to point out by using the video paled in comparison to the damning evidence the video introduced, according to the Court. The victim told the detectives about Hodgdon’s prior accusations of sexual misconduct with students and that he had been fired for the same. And the recorded incriminating phone call between Hodgdon and the alleged victim in this case, which the trial court had suppressed before trial, was exposed in the video interview played for the jury.

The Court noted that the foregoing inculpatory evidence was revealed to the jury only because of counsel’s introduction of the video and concluded that it was “extremely damaging to the defense.” The Court stated that it was “perplexing” that counsel would admit this evidence, which “could only have been prejudicial to Hodgdon’s defense.” The only evidence the prosecution had against Hodgdon was the victim’s testimony and the police interview. By introducing the video himself, counsel did something the prosecution could not have done before the jury: bolster the credibility of the prosecution’s key witness against Hodgdon. The Court stated that “the decision to introduce the entire transcript and recording in this case was not only unnecessary, it was unreasonable.” Thus, the Court ruled that trial counsel’s performance was deficient under Strickland and that the deficiency “caused actual prejudice to Hodgdon as a matter of law.”

The Court stopped short of announcing a per se rule that defense lawyers are always ineffective if they introduce a victim’s pretrial statements to police. But it did offer some guidance to defense lawyers: “Before making that choice, however, trial counsel should always consider alternatives—including cross-examining the witness on selected portions of the prior statement; seeking to admit redacted portions in evidence if necessary; and, where a legitimate goal is to prove that certain topics were not addressed in the prior statement, asking a witness who has reviewed the entire transcript or recording to confirm that fact.”

Accordingly, the Court vacated the denial of Hodgdon’s PCR petition and remanded for entry of judgment granting his petition and vacating his conviction. See: Hodgdon v. State, 249 A.3d 132 (Me. 2021). 

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Hodgdon v. State

 

 

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