Davis v. State of Maine

STATE OF MAINE SUPERIOR COURT

AROOSTOOK, ss DOCKET NO. CR-18-20695
MATTHEW DAVIS )
Petitioner )
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Vv ) DECISION
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STATE OF MAINE )
Respondent )

Pending before the court is the Petitioner’s Petition for Post-Conviction Review of his
2017 convictions for two counts of murder, four counts of arson, three counts of theft, and one
count of aggravated criminal mischief as alleged in the Aroostook County Grand Jury’s
indictment of November 8, 2013. The Petitioner pursued his rights of appeal before the Maine

State Supreme Court and his convictions were affirmed on August 14, 2018. (See State v. Davis

2018 ME 116, 191 A.3d 1147.) On November 18, 2018, the Petitioner filed a pro se Petition for
Post-Conviction Review; counsel was appointed, and an amended petition was filed on
December 7, 2021.

A central issue at the Petitioner’s trial was the reliability of the “eyewitness
identification” testimony presented at trial by the State’s principal witness William Lloyd. The
Petitioner contends that his lead trial counsel was ineffective because he failed to follow through
with his plan to call an expert witness to provide the jury with evidence establishing the potential
unreliability of “eyewitness identification” testimony. For the reasons set forth herein, the court

denies this petition.

BACKGROUND
The relevant facts pertaining to the Petitioner’s contention can be taken from the court’s
August 18, 2016 Order denying the Petitioner’s Motion in Limine. Those facts are as follows!:

William and Shannon Lloyd were living next door to the decedents in Oakfield.
They had been living there for at least the previous 6 years and were friends with the
decedenis. At approximately 4 am on September 23, 2013, the Lloyds were awakened by
the sound of multiple gunshots coming from the general direction of the decedent's home.
William Lloyd got out of bed and went into his bathroom that had a window facing the
decedents' home. He began to hear the sound of fire alarms and he could see a "glow" at
the decedents' home. He quickly got dressed and went outside and up a few steps leading
to the main door of the decedents' home. This door was also directly across a driveway
from the Lloyd home. The door was locked but he could see fire inside the home. He also
saw a figure inside the home; there was movement but he couldn't identify anything else
about it.

Mr. Lloyd went back down the stairs and moved towards the decedents' garage
that was just a few feet away. Suddenly a vehicle backed out through the garage door
nearest the decedents' home. The garage door was down at the time. Mr. Lloyd
immediately recognized the vehicle as Mr. Kitchen's father's pickup truck. An exterior
yard light was located at the center peak of the garage. It was on and illuminated the
entire area including part of the interior of the pickup truck, Mr, Lloyd had heard gun
shots and he wanted to know who the driver of the vehicle was so when the vehicle
emerged from the garage, Mr. Lloyd moved over in front of the vehicle and looked
through the front windshield to determine if the driver was either Ms. Pratt or Mr.
Kitchen. Mr. Lloyd is 6 feet tall and was standing stationary just three feet away from the
front of the vehicle when he "locked eyes" with the driver for approximately 4 seconds.

Mr. Lloyd was unsure and it remains unclear to the court whether the vehicle's
head lights were on or not. Assuming that they were on and generally directed towards
Mr. Lloyd, the evidence indicates to the court that Mr. Lloyd was sufficiently close to the
vehicle such that the head light beams would have illuminated his lower body and
midsection but probably not his head and shoulders. He was able to determine that the
driver of the pickup was neither Ms. Pratt nor Mr. Kitchen but rather a white male with a
light complexion and a "buzzed off" hair cut. The man had really big eyes. The man was
wearing a tee shirt. The man was not wearing a hat; he did not have glasses and he had no
facial hair. Mr. Lloyd did not know the man's name.

The photo depicting the garage indicates that the driveway was "horseshoe"
shaped, The driver of the vehicle then moved along the driveway in the general direction
of the Lloyd home before completing its turn and exiting the driveway onto the adjoining
street.

' The court has omitted the single footnote that appeared in its earlier Order and several references to exhibits.

As the vehicle was moving around the driveway in the direction of the Lloyd
home, both Mr. and Mrs. Lloyd began to run towards their home. Mrs. Lloyd ran into the
home and called 911 to report what they had seen. Both Lloyds experienced some level
of emotional distress from their involvement in the underlying events and were
undoubtedly both fearful as those events unfolded.

Later the next day, and before Mr. Lloyd had met with any law enforcement
officers, he got a text message on his phone from an acquaintance. The message informed
him that there was a story about the recent events on the BDN Facebook page. Mr. Lloyd
went to that Facebook page and there observed the booking photo of the Defendant that
BDN had obtained and then posted on its Facebook page. The name "Matthew Davis"
was associated with the picture. He recognized the photo as being the same man that he
had seen in the pickup truck and had subsequently described for law enforcement
officers.

Laier that same day, Maine State Police Detective Greg Mitchell came to meet
with Mr. Lloyd pursuant to arrangements he had earlier made. Det. Mitchell indicated to
Mr. Lloyd that he was there for the purpose of showing him a photo lineup of several
individuals. Before Det. Mitchell could show Mr. Lloyd the photo array, Mr. Lloyd
reported that he had already seen a photograph of the Defendant, Matthew Davis on
Facebook. Following this disclosure, Det. Mitchell called his supervisor, Lt. Troy
Gardner who advised him not to proceed with showing Mr. Lloyd the photo lineup, but
tather simply proceed to take a statement from Mr. Lioyd and Det. Mitchell did so.

Mr. Lloyd indicated to Det. Mitchell, as he later testified at the hearing, that he
was 100% certain that the man that he observed through the pickup truck windshield was
the same man whose photo he had seen on the BDN Facebook page.

Mr. Lloyd had previously been acquainted with Mr. Davis as the result of the
Defendant's patronage of the grocery store where Mr. Lloyd worked and as the result of
his having participated in a motorcycle education course with him several years earlier.
Mr. Lloyd indicated that the Matthew Davis with whom he had been acquainted had
fonger hair and had facial hair as depicted in State's Exhibit 3 MIL. Notwithstanding his
prior interactions with the Defendant, Mr. Lloyd did not recognize the man that he saw
through the pickup truck window to be Matthew Davis.

The evidence also indicated that Shannon Lloyd saw the person driving the
pickup truck but was not able to identify that person, even by subsequently viewing
photographs. She testified that the person looked similar to the person whose photograph
appeared on the BDN Facebook page. She probably told law enforcement that she
thought the driver was wearing a maroon sweatshirt. This wouid appear to be at odds
with Mr. Lloyd's description of the driver wearing a light colored top.

Det. Greg Mitchell testified that he was certain that he did not show Mr. Lloyd
any photograph as per his instructions from Lt. Gardner after learning that Mr. Lloyd had

seen a Facebook photo of the Defendant. Mr. Lloyd testified that he thought Det. Mitchell

did show him a photo but he was not sure if he looked at it and simply told Det. Mitchell

that he had already seen a photo. The court finds Det, Mitchell to be the more reliable

historian on this point.

The court conducted an evidentiary hearing on the petition on September 7, 2022. At that
hearing, the court received testimony from the defense assisting attorney, the Petitioner’s spouse,
and Dr. Brian Cutler. Dr. Cutler was the expert witness that Petitioner’s lead counsel failed to call
as an expert witness at trial. Following the hearing, the court invited written arguments from
counsel, the last of which were received on May 24, 2023. The matter was then submitted to the
court for decision.

STANDARD OF REVIEW

To prevail in a post-conviction proceeding based on an alleged constitutional deprivation
of the effective assistance of counsel, the petitioner has the burden of proof and must
demonstrate two points; first, "that counsel's representation fell below an objective standard of
reasonableness," and second, that "errors of counsel actually had an adverse effect on the
defense.” There is thus both a “performance” prong and a “prejudice” prong to the inquiry. The
court may consider either prong first; if the petitioner fails to demonstrate “prejudice”, it is

unnecessary for the court to address the issue of whether trial counsel’s performance was

deficient. Francis v, State, 2007 ME 148, J 6, 938 A.2d 10. These elements of an ineffective

assistance case, when proved, constitute a "showing that counsel's errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable.” Theriault v. State of Maine,

2015 ME 137, Ji4
Thus, to prove that one has been deprived of their constitutional right to the effective

assistance of counsel, a petitioner must prove both a “performance” prong and a "prejudice"

prong by a preponderance of the evidence. A failure of proof on either will lead to a denial of the

petition.

Tn Roberts v, State of Maine, 2014 ME 125, 923,103 A.3d 1031,1039, the Law Court

indicated that to prove that counsel's performance was constitutionally deficient,

"a defendant must show that counsel's representation fell below an objective standard of

reasonableness. The question is whether the counsel's performance fell within the wide

range of reasonable professional assistance that a competent criminal defense counsel
could provide under prevailing professional norms. The Strickland test compels us to
reconstruct the circumstances of counsel's challenged conduct and to evaluate the
conduct from counsel's perspective at the time." (Internal citations and punctuation
omitted.)

In Theriault, the Law Court discussed the prejudice prong and recognized that there can
be cases, albeit rare ones, where counsel's performance has been so deficient that it amounts to a
constructive denial of the assistance of counsel and in such extreme cases of ineffectiveness, the
petitioner is relieved of the burden of affirmatively proving prejudice because in such cases a
complete failure of representation can be legally presumed to have occurred.

Accordingly, with regard to the issue of "prejudice", except in those rare instances of
extreme ineffectiveness, the petitioner must prove 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. The
Law Court was careful to point out that its reference to "probability" should not restrict a court’s
analysis to a quantitative inquiry and that it should also extend to a qualitative inquiry, that is one
that involved an analysis of whether counsel's performance was such that it undermined
confidence in the outcome of the proceeding and rendered that outcome unreliable. /d at 719.

Thus, “prejudice” can be estabiished where it can be demonstrated that counsel's errors

more likely than not actually altered the outcome of the case and “prejudice” can also be

established where, although one may not be able to say that it changed the likely outcome of the
case, questions of fundamental fairness remain and must be considered. This means that
“prejudice” can be established by showing that counsel's performance was such that it

undermines confidence in the reliability of the outcome.

Maine’s jurisprudence pertaining to the question of “ineffective assistance of counsel”

draws extensively from Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d

674.

Among the relevant principles that Justice O’ Connor set forth in her opinion in Strickland

were the following:

Judicial scrutiny of counsel’s performance must be highly deferential. It is all too
tempting for a defendant to second-guess counsel’s assistance after conviction or adverse
sentence, and it is all too easy for a court, examining counsel’s defense after it has
proved unsuccessful, to conclude that a particular act or omission of counsel was
unreasonable. A fair assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at
the time. Because of the difficulties inherent in making the evaluation, a court must
indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the presumption
that, under the circumstance, the challenged action “might be considered sound trial
strategy.” There are countless ways to provide effective assistance in any given case.
Even the best criminal defense attorneys would not defend a particular client the same
way. Id at 689,

DISCUSSION
A major part of the defense strategy at the Petitioner’s trial was to challenge the reliability
of William Lloyd’s identification of the Petitioner as the person fleeing the decedents’ residence
in Oakfield, Maine. Recognizing that the reliability of “eyewitness identification” was an
emerging area of the criminal law and that expert witnesses were sometimes employed to assist
in challenging such identifications, on July 22, 2016, the court issued an order requiring the

defense to identify any intended expert witnesses by August 5, 2016. Although the Petitioner’s

lead counsel had discussed employing an “eyewitness identification” expert with the Petitioner
and family members; although the Petitioner’s family was able to provide sufficient funds to
engage an expert when funds were requested”; although he did ultimately engage an expert and
receive a report dated November 29, 2016 3 setting forth the expert’s opinion, he did not disclose
the existence of the expert to the State until just before the start of the trial and did not provide
the State with a copy of that expert’s report until December 9, 2016, the third day of his jury trial.
The defense had previously indicated that it did not intend to call any experts. After hearing
arguments from counsel, the court denied the untimely defense request to call Dr. Brian Cutler as
an expert witness regarding the reliability of “eyewitness identifications.”*

The Petitioner now contends that his lead trial counsel’s failure to employ and to disclose
Dr. Cutler as an expert witness in timely fashion amounted to ineffective assistance of counsel’.

Dr. Cutler testified by zoom at the hearing on the petition on September 7, 2022. The
essence of his testimony was that the accuracy of an eye witness’ testimony can be adversely
affected by several different factors. These include how long a witness has to make his
observations, i.e. how long was the exposure opportunity for seeing a person’s face? They also
include consideration of the prevailing lighting conditions and whether they were favorable or
unfavorable to seeing what was there to be seen. Dr. Cutler testified that there could be other

factors associated with the witness’ opportunity to see, “encode” (i.e. form a reliable memory)

? The lead counsel was privately retained in this case.

3 Dr. Cutler’s invoice (Petitioner's Exh. 2) reflects that the date of first contact was on October 3, 2016 and that Dr.
Cutler was retained on November 7, 2016.

‘The court notes that the Petitioner challenged the court’s ruling on appeal and that the Law Court found the
arguinent unpersuasive. (See State y. Matthew Davis, 191 A.3d 1147, fn 1)

° The court notes that lead trial counsel passed away in March of 2017 and was therefore not available to participate
in the hearing of this petition.

® At the Petitioner’s request, the court left the record open to afford an opportunity for counsel to consider whether
the Petitioner wished to challenge certain surveillance video at the Katahdin Forest Products plant. Counsel
ultimately decided against pursuing any challenges associated with that “identification” and the matter was
submitted to the court for decision on May 24, 2023,

and recount such as being in an extremely stressful environment as events unfold.’ Dr. Cutler
pointed out that each of these factors could potentially adversely affect a person’s ability to form
an accurate and reliable memory of what the witness purports to have seen. Dr. Cutler also
addressed the possibility that a witness might be exposed to post-event information that could
also influence the accuracy of the witness’ identification. *

In describing his research regarding eyewitness identification, Dr. Cutler was careful to
point out, “What I don’t do is give an opinion about the—accuracy of any eyewitness
identification.” (See Evidentiary Hearing Transcript page 41, line 15-16) At most, what Dr.
Cutler could have testified to at trial was, as he wrote in his report, “My opinion, which I hold to
a reasonable degree of scientific certainty, is that certain factors associated with the conditions
under which the Lloyds viewed the subject on the evening of September 23, 2013 and the nature
of the eyewitness identification may have influenced the accuracy of the description,
identifications and the confidence of the eyewitnesses.(emphasis supplied).”

As indicated above, the court may discuss the two required prongs of proof in the order
of its own choosing. The court will first address the “prejudice prong.”

To prevail on his petition, the Petitioner must persuade the court that he was prejudiced
by his lead trial counsel’s performance. This court is not persuaded that the Petitioner suffered
prejudice as the result of the absence of Dr. Cutler’s testimony. In this court’s view, such
testimony would have left the reliability of William Lloyd’s identification of the Petitioner in the

realm of mere possibility rather than probability. Dr. Cutler’s testimony would not have provided

? Dr. Cutler described these as the “coding stage, the storage stage, and the retrieval stage of memory. (See
Evidentiary Hearing Transcript p. 41, lines 8 to 10).

® Aside from Mr. Lloyd’s post-event viewing of a photo in the Bangor Daily News and the suggestion that one of the
detective’s may have shown hima photo of the Petitioner, both matters that the court addressed in it’s pre-trial
Order on Motion in Limine, the court is unaware of any such exposures, such as conversations with his spouse or
others pertaining to the Petitioner’s role in the underlying events.

the jury with any greater cautionary instruction than that which the court provided in its own
instructions. Dr. Cutler testified at hearing of this matter that he would have highlighted for the
jury the need to consider several different factors in evaluating the William Lloyd’s eyewitness
testimony. He would have testifted that jurors should consider the length of time that Mr. Lloyd
had to observe the Petitioner’s face; that they should consider the impoverished lighting
conditions that were present; that they should consider the high level of stress present during Mr.
Lloyd’s observation period. According to Dr. Cutler, each of these factors, either separately or
cumulatively, could have affected Mr. Lloyd’s ability to perceive accurately, to formulate a
memory accurately and to recount accurately what he believed he had seen. That said, Dr. Cutler
could not say whether Mr. Lloyd’s eyewitness testimony was accurate or inaccurate.

In it’s instruction pertaining to the jury’s role in evaluating witness credibility, the court

instructed the jury as follows:

You can consider how good an opportunity the witness had to make the
observations that he or she says were made. As you are evaluating the evidence
and perhaps considering a witness’ opportunity to observe the things that the
witness has described in his or her testimony you should understand that we have
come to recognize that testimony by a witness as to identity must be received with
caution and scrutinized with care. The State's burden of proof extends to every
element of each crime charged, including the burden of proving beyond a
reasonable doubt the identity of an alleged perpetrator of an offense. Accordingly,
as you are considering the accuracy of any eye witness identification testimony,
you may consider the opportunity that the witness had to make that identification,
taking into account such things as the length of time spent in making the
observation, the particular circumstances of the opportunity, including the
distance between the witness and the person being identified, the lighting
conditions at the time and the degree of stress the witness may have been
experiencing at the time of making his or her observations. You are also free to
take into account whether the witness was influenced by any suggestive events or
by the recoliections of other witnesses or by identifications made by other
witnesses. You may wish to take into account any lapse of time between the event
and the identification. You may want to consider how much weight to assign to
the degree of confidence a witness may have expressed in his or her identification
recognizing that even very confident people can be wrong. Ultimately, I would

suggest that you want to consider the totality of all of the circumstances that
surround eyewitness identification testimony.

This court is not persuaded by the Petitioner’s suggestion that hearing the same caveats
from an expert witness would potentiaily carry more weight that the court’s instructions.
Particularly when, as in this case, the court sent copies of its written instructions into the jury
room with each juror. The jury in this case heard the lead counsel’s thorough cross-examination
of William Lloyd; the jury heard lead counsel’s closing arguments pertaining to William Lloyd’s
eyewitness testimony; the jury heard the court’s cautionary instructions; and each juror had a
written copy of the very same instructions to refer to during deliberations. In this court’s view, it
was highly unlikely that the jury would have failed to appreciate the court’s instruction that they
needed to take great care in evaluating Mr. Lioyd’s testimony. Accordingly, this court concludes
that the outcome of the Petitioner’s trial was not altered by Dr. Cutler’s absence from the
proceedings.

Further, this court is not persuaded that Dr. Cutler’s absence from the trial proceedings
undermined confidence in the reliability of the outcome of that trial or in some way raised
questions regarding the fundamental fairness of the trial proceedings. Although the testimony of
William Lloyd was of the utmost importance to the State’s case, that testimony was not the only
evidence pointing to the Petitioner’s guilt. As the State points out, there was considerable other
circumstantial evidence of the Petitioner’s guilt. This included evidence that a rifle that the
Petitioner had purchased at a local firearm store was found on the chest of one of the murder
victims. Additionally, a glove with the Petitioner’s DNA on it was found near one of the bodies at
the crime scene. The Petitioner’s wrecker truck was found at the Katahdin Forest Products

business from where a truck had been stolen and later driven into the side of the victims’ home.

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Boot prints matching the Petitioner’s footwear connected him to the stolen vehicle. William
Lloyd testified that the Petitioner drove off in a truck taken from the victims’ garage at their
residence. A revolver that the Petitioner had purchased from the Kittery Trading post was found
within that truck as was a soda bottle bearing his DNA. This evidence, albeit circumstantial, tied
the Petitioner to the crimes for which he was convicted. The court concludes that the Petitioner
suffered neither quantitative nor qualitative prejudice from Dr. Cutler’s absence at trial.

Having reached this conclusion, it is unnecessary for the court to consider whether lead
counsel’s performance fell below an objective standard of reasonableness. The Petitioner argues
that there could be no strategic reason for the lead counsel to have declined to arrange for Dr.
Cutler’s testimony at trial. Unfortunately, lead counsel is now deceased and is not available to
explain his rationale for proceeding as he did. One might speculate however, that lead counsel
recognized that Dr. Cutler’s testimony could be effectively challenged on cross-examination and
that ultimately Dr. Cutler would have to concede that there was no way for him or anyone to
know whether William Lioyd’s identification of the Petitioner was reliable or not. If Dr, Cuiler’s
testimony was unable to advance the ball towards the goal, why put him on the witness stand and
expose him to cross-examination that might serve only to establish that he didn’t really know
whether Mr. Lloyd’s identification was reliable or not? A weak and easily assailable witness
presented as an expert could easily produce the unintended consequence of undermining the
strength of other aspects of the Petitioner’s defense.

The court has also speculated, without reaching any conclusion, that lead counsel was
attempting to create an issue for appeal. Although this court ruled that the Petitioner could not
call Dr. Cutler to testify at trial. Eyewitness identification is an emerging issue in the criminal

law and it’s possible that the Law Court might have found the issue to be of sufficient import to

Il

have justified allowing the Petitioner to call him to testify thereby concluding that this trial court
erred in ruling as it did.

With these speculations in mind, and with Justice O’ Connor’s cautionary remarks in
mind as well, it cannot be said that lead counsel’s decisions were completely devoid of any
strategic merit.

CONCLUSION

The court concludes that the Petitioner has failed to carry his burden of demonstrating
that he suffered prejudice, either quantitative or qualitative, as the result of his lead trial counsel’s
failure to timely engage Dr. Brian Cutler as an expert witness at the Petitioner’s trial.

The entry shail be: The Petitioner’s Petition for Post-conviction Review is denied.

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} ee
October 16, 2023 x Ld eB LK

E. Allen Hunter
Justice, Superior Court (Active Retired)

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