MAINE SUPREME JUDICIAL COURT                                                   Reporter of Decisions
Decision: 2020 ME 51
Docket:   Pen-19-237
Argued:   March 4, 2020
Decided:  April 21, 2020

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



                                     RICHARD WATSON

                                                 v.

                                       STATE OF MAINE


JABAR, J.

         [¶1] Richard Watson appeals from a judgment of the Unified Criminal

Docket (Penobscot County, Lucy, J.) denying his petition for post-conviction

review. We conclude that Watson was deprived of the effective assistance of

counsel when his trial attorney introduced into evidence and played for the jury

a videotaped recording of the ten-year-old victim’s interview with law

enforcement. We therefore vacate the judgment and remand with instructions

to grant the petition and vacate the defendant’s convictions.




   *
      Although Chief Justice Saufley participated in the appeal, she resigned before this opinion was
certified.
2

                                          I. BACKGROUND

A.         Trial and Convictions

           [¶2] On November 25, 2014, Watson was indicted on two counts of gross

sexual assault (Class A), 17-A M.R.S. § 253(1)(C) (2018), one count of unlawful

sexual contact (Class A), 17-A M.R.S. § 255-A(1)(F-1) (2018), and one count of

visual sexual aggression against a child (Class C), 17-A M.R.S. § 256(1)(B)

(2018).

           [¶3] A two-day jury trial was held in July 2015.1 To begin the trial, the

State called the victim, who testified that she was born in 2003 and that the

defendant was her biological father. The victim recounted two instances of

sexual abuse that occurred during the summer of 2014, when she was ten years

old. According to the victim’s testimony, Watson told her that he would buy her

a cell phone if she engaged in certain sexual activity with him; she agreed

because she wanted a phone. The victim testified that the first incident

occurred on August 4, 2014, and Watson bought her a phone the following day.

The victim testified that a second incident occurred later that summer, and that

both incidents took place in Watson’s home. She also testified that he showed

her pornographic videos and showed her how to use sex toys.


     1   We summarized the facts in State v. Watson, 2016 ME 176, ¶¶ 2-8, 152 A.3d 152.
                                                                                                   3

       [¶4] The State also introduced testimony from the victim’s mother,

grandmother, and aunt, all of whom testified that the victim made disclosures

to them following the sexual abuse.2 The victim’s grandmother and aunt both

testified that the victim had feelings of guilt following the abuse.3 On the first

day of trial, the State also called the nurse practitioner who performed a

physical examination on the victim after she reported the abuse. The nurse

practitioner testified without objection that the physical examination of the

victim was normal, but explained that “[i]t’s actually the norm to have a normal

exam in this type of situation.” On cross-examination, she testified that there

were no signs of trauma. A Maine State Police trooper testified as the State’s

final witness in its case in chief on the second day of trial. He testified that he

assisted in the execution of a search warrant of Watson’s house and seized

pornographic DVDs, sex toys, and two computers.




   2 The victim’s aunt was permitted to testify under the “first complaint rule” that the victim made
a disclosure to her. See id. ¶ 4; see also State v. Fahnley, 2015 ME 82, ¶¶ 19-26, 119 A.3d 727. The
victim’s grandmother and mother did not testify as to the contents of the victim’s disclosures.
   3 At trial, Watson objected to the testimony that the victim was “feeling guilty.” As we explained
in State v. Watson, the victim's statements to her aunt and grandmother about her feelings of guilt
were admissible under the hearsay exception for a declarant’s then-existing state of mind. 2016 ME
176, ¶¶ 11-12, 152 A.3d 152; see M.R. Evid. 803(3).
4

      [¶5]   Watson’s defense counsel presented five witnesses, including

Watson and a Maine State Police detective. The detective testified that the

computers seized from Watson’s house were never searched.

      [¶6] Watson denied the allegations that he bought the victim the phone

because she agreed to allow him to try to have sex with her. He testified that

he purchased the cell phone at the same time he took the victim back-to-school

shopping in August 2014. Watson and his former girlfriend both testified that

they had sex toys that Watson kept in his bedroom, but Watson denied ever

showing the sex toys to the victim. Likewise, he testified that he never kissed

the victim, showed her pornography on his laptop, asked her to use sex toys, or

otherwise tried to engage in sexual activity with her.

      [¶7] After Watson testified, and just prior to resting his case, Watson’s

attorney offered into evidence without objection the video recording of the

victim’s September 2014 police interview with a female detective.          The

following exchange took place:

             DEFENSE COUNSEL: Nothing further. I think we’re gonna
             play the video now of [the detective’s] interview with [the
             victim] last September.
             THE COURT: And that's agreed to come into evidence?
             DEFENSE COUNSEL: Yes.
             ASSISTANT DISTRICT ATTORNEY: That’s fine.
                               ...
             THE COURT: Is that cued up?
                                                                               5

             DEFENSE COUNSEL: Yes.
             THE COURT: Okay. Dim the lights.
             (Defendant's Exhibit No. 2, a video recording, was played at
             1:20 p.m. and was concluded at 1:51 p.m.)
             DEFENSE COUNSEL: The defense rests, Your Honor.

Defense counsel did not provide the jury with any context for the video

interview before or after it was played.

      [¶8]   The video showed the victim describing, consistent with her

testimony at trial, the two incidents of sexual abuse that occurred. In addition

to a recitation of the facts by the victim, the detective was shown telling the

victim that she had done the right thing by reporting the incidents, that “the

grownups” would make sure the victim was safe, and that Watson should have

known better. The victim can be seen and heard on the video stating, “So, I

won’t get taken away from my grandparents?” Defense counsel introduced a

transcript of the video interview after the video was played for the jury, which

was admitted into evidence without objection and given to the jurors when they

retired for deliberations.

      [¶9] The attorneys presented closing arguments to the jury shortly after

the video was played. The State proffered to the jury that “the heart of the case

is what [the victim] told you.” In deciding whose testimony to believe, the ADA

suggested that the jury ask questions like “Who’s telling the truth? Who’s bein’
6

accurate? Who are you gonna rely on?” In his closing statement, defense

counsel agreed with the ADA that the victim’s credibility is “the heart of this

case.” There was no corroborative evidence of the abuse in the form of medical

evidence, eyewitness testimony, or DNA or forensic evidence.

      [¶10] The jury found Watson guilty on all four counts, and the trial court

(Penobscot County, Lucy, J.) entered judgments of conviction. Watson was

sentenced to twenty-seven years’ imprisonment followed by twenty years of

supervised release for each of the convictions for gross sexual assault. He was

sentenced to twenty years’ imprisonment for the conviction for unlawful sexual

contact and sentenced to five years’ imprisonment for the conviction for visual

sexual aggression, all to run concurrently with the convictions for gross sexual

assault. Watson appealed his convictions to this Court, and we affirmed the

judgment. See State v. Watson, 2016 ME 176, 152 A.3d 152.

B.    Post-Conviction Review

      [¶11] Watson filed a petition for post-conviction review in April 2017.

See 15 M.R.S. § 2129 (2018). He claimed that his trial attorney provided

ineffective assistance of counsel when he introduced into evidence the video of

the victim’s interview with police, which included her “detailed and highly
                                                                                                     7

prejudicial allegations.”4          Watson argued that introducing the videotaped

recording of the entire interview was “unnecessary . . . to provide evidence

supporting [the victim’s] potential motive to fabricate the allegations.” The

post-conviction court (Penobscot County, Lucy, J.) held an evidentiary hearing

on January 23, 2019, and denied Watson’s petition in an order entered on

May 30, 2019. The court made the following findings, which are supported by

evidence presented at the post-conviction hearing. See Fahnley v. State, 2018

ME 92, ¶ 4, 188 A.3d 871.

       [¶12] At the evidentiary hearing, Watson and his trial attorney agreed

that the information that the victim provided in the interview was the “same”

as, and consistent with, her testimony at trial. The post-conviction court found

that trial counsel had two rationales for playing the video of the interview for

the jury: first, to support the defense theory that the detective failed to

thoroughly interview the victim and, second, to show that the victim had motive

to fabricate her allegations because of a custody dispute between Watson and

her grandparents, whom the victim resided with at the time.



    4 Watson also alleged ineffective assistance of counsel for (1) trial counsel’s failure to obtain a

forensic evaluation of Watson’s computers that had been seized by the State, and (2) trial counsel’s
failure to call a witness who would potentially offer exculpatory evidence. The post-conviction court
was unpersuaded by these allegations, and we denied Watson’s request for a certificate of probable
cause to appeal the post-conviction court’s determinations on these issues. See M.R. App. P. 19.
8

      [¶13] Trial counsel testified at the post-conviction hearing that the

theory of the defense’s case, which he claimed “Watson was a big proponent of,”

was that the victim’s allegations were motivated by a custody dispute.

According to trial counsel, the victim’s statement in the video interview about

staying and living with her grandparents supported the defense’s argument

that she had motive to fabricate the allegations so that she could remain with

her grandparents.

      [¶14] The post-conviction court also found that trial counsel played the

video as “part of his overall strategy to discredit the State’s investigation,”

intending to show that the victim’s direct-examination testimony at trial was

the same as what was said during the interview in which the detective failed to

ask important questions. The court also found that the purpose of playing the

video after the victim’s testimony was not to highlight inconsistencies in her

story but to show the jury that this “[t]wenty-minute interview was the entirety

of the State’s investigation, and that the victim’s story did not bear scrutiny

under cross-examination . . . .” Trial counsel believed that showing the video

“would demonstrate that the victim’s trial testimony was simply a repeat of the

limited information covered in the . . . interview.”
                                                                                9

      [¶15] The court found that this strategy was “ultimately unsuccessful

because [Watson] was convicted by the jury . . . . [who] must have unanimously

found that the victim’s testimony was credible . . . .” The post-conviction court

determined that trial counsel’s decision to play the victim’s video-recorded

interview did not fall outside of the wide range of reasonable professional

assistance, see Strickland v. Washington, 466 U.S. 668, 689 (1984), and denied

Watson’s petition. The court concluded:

      Regardless of the outcome, after considering all of the issues and
      evidence, the court is not persuaded that trial counsel’s
      representation “fell below an objective standard of
      reasonableness” or was otherwise constitutionally ineffective.

      [¶16] Watson sought a certificate of probable cause to appeal the court’s

denial of his petition for post-conviction review. See 15 M.R.S. § 2131(1)

(2018); M.R. App. P. 19(a)(2)(F). We granted the certificate of probable cause

limited to the question of whether trial counsel was ineffective “by playing at

trial a video of the interview between the victim and police.”          See M.R.

App. P. 19(f).

                                II. DISCUSSION

A.    Standard of Proof

      [¶17] “The Sixth Amendment to the United States Constitution and

article I, section 6 of the Maine Constitution ensure that a criminal defendant is
10

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.

      [¶18] “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, 466 U.S. at 688, 693) (alteration omitted).

The petitioner bears the burden of proving both prongs of the Strickland test.

Id. We review the post-conviction court’s findings of fact for clear error and its

legal conclusions de novo. Id. ¶ 9.

B.    Performance Prong

      [¶19] Pursuant to the first prong of the two-part Strickland test, “a

petitioner must demonstrate (1) that counsel’s representation fell below an

objective standard of reasonableness.” Id. ¶ 11 (quotation marks omitted).

“The proper measure of attorney performance remains simply reasonableness

under prevailing professional norms.” Strickland, 466 U.S. at 688. We have

explained that “counsel’s representation of a defendant falls below the

objective standard of reasonableness if it falls below what might be expected
                                                                               11

from an ordinary fallible attorney.” Fahnley, 2018 ME 92, ¶ 18, 188 A.3d 871

(quotation marks omitted).

      [¶20] “Judicial inquiry into the effectiveness of representation is ‘highly

deferential.’ . . . ‘[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

circumstances, the challenged action might be considered sound trial strategy.’”

Middleton v. State, 2015 ME 164, ¶ 13, 129 A.3d 962 (quoting Strickland, 466

U.S. at 689).   However, “[a] determination that defense counsel’s choices

amount to ‘trial strategy’ does not automatically insulate them from review.”

Gauthier v. State, 2011 ME 75, ¶ 15, 23 A.3d 185, abrogated on other grounds by

Manley v. State, 2015 ME 117, ¶ 18, 123 A.3d 219.

      [¶21] Here, the post-conviction court found that defense counsel’s

decision to play the entire twenty-minute recorded interview at the end of the

defense’s case was twofold: it was part of an “overall” trial strategy designed to

discredit the State’s investigation and part of a strategy to show that the victim

had motive to fabricate the allegations.

      [¶22] During the jury trial, Watson’s attorney informed the court that he

intended to play a portion of the video to show the victim’s motive for
12

fabricating the allegations. In his opening statement, trial counsel did not make

any suggestion that the State’s investigation was inadequate or incomplete. He

set forth a theory that the victim fabricated the allegations to block Watson

from obtaining custody. In fact, the only time trial counsel referenced the

interview during his opening statement was when he described the victim’s

question to the detective about living with her grandparents. Trial counsel

informed the jury that “this case comes down to the credibility of the

witnesses.”   Although trial counsel challenged the officer’s interviewing

techniques in his closing argument, positing to the jury, “Doesn’t a detective

have an obligation to fully investigate a claim like this?      Does accepting

everything that a witness tells you without ever asking even a few tough

questions that might erode or bolster that witness’s credibility—this is

Mr. Watson’s life and reputation on the line here,” he failed to present any

evidence or witnesses to support his claim that the detective’s interview was

not thorough or to suggest that she used improper interview techniques.

      [¶23] We are compelled by the record to conclude that the two strategies

(undermining the victim’s credibility and undermining the thoroughness of the

State’s investigation) were not distinct: discrediting the interview as

incomplete or inadequate was part of the strategy of undermining the victim’s
                                                                              13

credibility by showing that she fabricated the allegations. Therefore, we must

determine whether trial counsel’s decision to play the entire video interview

for the purpose of showing the victim’s motive to fabricate the allegations and

undermine her credibility was a reasonable trial strategy.

      [¶24]   Even affording substantial deference to this strategy, it is

impossible to conclude that playing the interview video in its entirety, and

producing the transcript for the jury to take into deliberations, was objectively

reasonable. See Strickland, 466 U.S. at 688. It may have been a sound strategy

to argue that the victim had a motive to fabricate because of the custody issue

and that the detective’s interview was too short, but these issues could have

been raised and argued without playing the entire video interview. At the

post-conviction hearing, trial counsel conceded that he could have brought out

the victim’s possible motive for fabricating the allegations by some other

means.   For example, he could have asked the victim about the custody

statement through cross examination and introduced portions of the video

transcript if the victim denied making the statement. Moreover, he could have

secured the attendance of the detective who conducted the interview and

questioned her about the length of the interview and the victim’s statement

about remaining with her grandparents. Perhaps even more perplexing is why
14

defense counsel chose to play the video at the end of his case, without re-calling

the victim to the stand, when he would not be able to cross examine her

regarding the statement. Over the course of the two-day trial, ten witnesses

testified between when the victim testified as the State’s first witness and the

point at which the jury saw the video at the end of the defense’s case.

      [¶25] It was not just unnecessary to show the entire video to prove that

the victim had motive to fabricate or that the detective’s interview was

insufficient, it was unreasonable to do so. As trial counsel testified during the

post-conviction hearing and argued to the jury during trial, this case was a “he

said/she said” case. The decision to provide the jury with two opportunities to

hear the victim describe the alleged abuse—in a manner so consistent that even

trial counsel testified at the evidentiary hearing that it was “the same”—

unnecessarily bolstered her credibility.

      [¶26] Cases from other states provide guidance. In State v. Triolo, 2013

Wisc. App. LEXIS 971, at *5-13 (Wisc. Ct. App. Nov. 19, 2013), the petitioner

argued that his trial attorney was ineffective when he did not object to the State

playing for the jury an entire video-recorded interview of the child victim in

which she made sexual assault allegations against him. Trial counsel described

the decision not to object as a “trial strategy to argue about the inconsistencies
                                                                                     15

between what [the victim] initially disclosed and what she disclosed on the

stand.” Id. at *3. However, when the video was shown, the victim had already

testified at trial and that testimony was consistent with the statements made in

the recorded interview. Id. The Wisconsin appellate court held that “trial

counsel performed deficiently by failing to object to introduction of the DVD

interview.” Id. at *10. The court “reject[ed] the argument that failing to object

to the State playing the DVD could be viewed as a reasonable trial strategy.

. . . The video of [the victim] giving consistent statements four years earlier served

to bolster her credibility at trial. . . . [B]ecause [the victim] testified prior to the

DVD being played, trial counsel never had an opportunity to cross-examine

[her] concerning her prior statements.” Id. at *9-10 (emphasis added).

      [¶27] The facts of Triolo are strikingly similar to those in the present

case. Here, the video showing the victim giving consistent statements one year

earlier served to bolster her credibility. Additionally, by choosing to play the

video at the end of his case, defense counsel did not afford himself an

opportunity to question the victim about the statements made during the

interview.    Unlike in Triolo, where trial counsel failed to object to the
16

prosecution’s introduction of the video interview, Watson’s attorney

introduced it as part of the defense’s case.5

         [¶28] Trial counsel’s decision to play the video was not sound strategy,

and the post-conviction court erred when it concluded that this trial conduct by

defense counsel did not fall below an objective standard of reasonableness.

C.       Prejudice Prong

         [¶29] If a petitioner proves the first prong of the two-part Strickland test,

he must then prove “that the ‘errors of counsel actually had an adverse effect

on the defense.’” Ford, 2019 ME 47, ¶ 11, 205 A.3d 896 (quoting Strickland, 466

U.S. at 693) (alteration omitted). To prove prejudice, the second prong of the

Strickland test, Watson must establish that, but for his trial attorney’s deficient

performance, “there is a reasonable probability that ‘the result of the

proceeding would have been different.’” Id. ¶ 20 (quoting Strickland, 466 U.S.



     5Although Watson did not raise this argument, we note that the detective made a number of
gratuitous statements regarding the case that were shown to the jury in the video and in the
interview transcript. Statements included telling the victim that she “did a very smart thing by
telling,” that the defendant “should know better,” that law enforcement’s goal “is to make sure that
nothing like this happens with any other little girl [the victim’s] age,” and expressing concern for the
victim’s safety at multiple points during the interview. These statements of the detective’s personal
opinion impermissibly vouch for the victim’s credibility. Had the detective testified at trial, such
statements would not have been admissible. See State v. Sweeney, 2004 ME 123, ¶ 11, 861 A.2d 43
(“One witness’s opinion of another witness’s truthfulness is not helpful to the jury when the jury has
the opportunity to hear both witnesses.”); State v. Crocker, 435 A.2d 58, 77 (Me. 1981) (“Determining
what credence to give to the various witnesses and their testimony is a matter within the exclusive
province of the jury.”).
                                                                               17

at 694). This means that counsel’s ineffective assistance “compromise[ed] the

reliability of the conviction and undermin[ed] confidence in it.” Philbrook v.

State, 2017 ME 162, ¶ 8, 167 A.3d 1266 (quotation marks omitted). “A

conviction may be unreliable and not worthy of confidence, thus satisfying the

reasonable probability test, even without proof that a different outcome was

more likely than not.” Id. (quotation marks omitted).

      [¶30] We have recognized that it may be difficult to tease apart the “‘mix’

of legal and factual questions” that are often presented in a Strickland analysis.

Fortune v. Maine, 2017 ME 61, ¶ 13, 158 A.3d 212. Therefore, “we will 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.

      [¶31] In this case, the post-conviction court denied Watson’s petition on

the performance prong; it did not make a determination as to the prejudice

prong. See Philbrook, 2017 ME 162, ¶ 6, 167 A.3d 1266 (“A court need not

‘address both components of the inquiry if the defendant makes an insufficient

showing on one.’” (quoting Strickland, 466 U.S. at 697)). We therefore review

the findings the court made for clear error and, based on that analysis,

determine de novo whether counsel’s unprofessional errors were prejudicial

as a matter of law. See Fortune, 2017 ME 61, ¶ 13, 158 A.3d 212.
18

      [¶32] The post-conviction court recognized that this case came down to

a credibility contest between the victim and defendant. It found that

      [t]he strategy employed by Petitioner’s trial counsel was ultimately
      unsuccessful because Petitioner was convicted by the jury on all
      charges. The jury must have unanimously found that the victim’s
      testimony was credible, that the State had proven all charges
      beyond a reasonable doubt, and that Petitioner’s denials of the
      victim’s allegations did not generate any reasonable doubt in the
      mind of any juror. Regardless of the outcome, after considering all
      of the issues and evidence, the court is not persuaded that trial
      counsel’s representation “fell below an objective standard of
      reasonableness” or was otherwise constitutionally ineffective.

      [¶33] Indeed, the evidence in the record shows that the jury found

Watson guilty on all charges. Because the State’s case relied exclusively on the

victim’s testimony, the guilty verdicts necessarily reflected a finding by the jury

that the victim was credible. See State v. Drewry, 2008 ME 76, ¶ 32, 946 A.2d

981 (“A victim’s testimony, by itself, is sufficient to support a guilty verdict for

a sex crime . . . if the testimony addresses each element of the crime and is not

inherently incredible.” (alteration omitted) (quotation marks omitted)).

      [¶34] Moreover, in trial counsel’s opening statement, he explained to the

jury, “[W]e believe this case comes down to the credibility of the witnesses. In

assessing [the victim]’s credibility, we’d ask that you keep a careful ear out for

what she testifies to you today compared to . . . what she’s told people in the

past.” Trial counsel put the jury on notice that this case hinged on the victim’s
                                                                             19

credibility, asked the jury to be mindful of how her testimony may be

inconsistent, and then presented to the jury a video of the victim’s consistent

statements regarding the alleged sexual assault. This bolstered the victim’s

credibility and prejudiced Watson.

      [¶35] In People v. Douglas, the Supreme Court of Michigan was presented

with similar facts in a direct appeal. 852 N.W.2d 587, 590-92 (Mich. 2014).

Although the Michigan court was not reviewing prejudice in the context of a

Strickland analysis, it considered the prejudicial effect of a video-recorded

interview that was consistent with the victim’s trial testimony. See id. at

596-601. Douglas was convicted by a jury of criminal sexual conduct arising

from his young daughter’s allegations of two instances of sexual abuse. Id. at

590. The court concluded that the trial court abused its discretion by admitting

into evidence the victim’s out-of-court statements, which already came into

evidence through witness testimony, by allowing the prosecution to “close[] its

case in chief by showing the jury the video recording of [the victim’s] forensic

interview.” Id. at 592-93, 595. The Michigan court considered whether the

error in admitting the video was prejudicial. See id at 599-601. It explained:

      This case presented the jury with a pure credibility contest; there
      were no third-party witnesses to either instance of alleged abuse,
      nor any physical evidence of it. As such, the prosecution’s case
      hinged heavily on [the victim]’s credibility in her accounts of the
20

      alleged abuse . . . . With regard to the alleged [instance of abuse],
      the only accounts properly before the jury were [the victim]’s
      testimony at trial, and [her mother]’s testimony regarding [the
      victim]’s prior disclosure of it to her. The credibility of these
      accounts, and [the mother]’s motives and influence in connection
      with them, were the focus of the defense and a central issue at trial.
      As a result of the court’s error, however, the prosecution was not
      limited to this evidence, and instead the jury was permitted to hear
      from [the victim] . . . again through the video recording of [her]
      forensic interview.

Id. at 599-600 (footnotes omitted). The court concluded that “[t]he resulting

prejudice is unsurprising.” Id. at 601. It held that the defendant was entitled to

a new trial because the “[victim]’s erroneously admitted statements during the

forensic interview more probably than not tipped the scales against the

defendant such that the reliability of the verdict against him was undermined.”

Id. (quotation marks omitted).

      [¶36] The record in this case compels a finding that the jury’s verdict was

grounded in its determination of the victim’s credibility. Further, as in Douglas,

the victim’s credibility and motives for the allegations “were the focus of the

defense and a central issue at [Watson’s] trial.” Id. at 600. There was no

corroborating evidence of the instances of sexual abuse to bolster the

testimony of this ten-year-old victim; it was the victim’s testimony that

supported the jury’s verdict.
                                                                             21

      [¶37] Unlike in Douglas, however, the video of the forensic interview in

this case was introduced by Watson’s defense attorney—a decision that we

hold was manifestly unreasonable. It follows that, but for this unreasonable

decision, “there is a reasonable probability that ‘the result of the proceeding

would have been different.’” Ford, 2019 ME 47, ¶ 20, 205 A.3d 896 (quoting

Strickland, 466 U.S. at 694).

      [¶38] Given trial counsel’s deficient conduct, it is clear that that the

defendant was adversely affected by introduction of the video-recorded

interview at the end of the jury trial along with the transcript of the video

supplied to the jurors for their deliberations. Trial counsel’s actions “rose to

the level of compromising the reliability of [Watson’s] conviction and

undermining confidence in it.” See Philbrook, 2017 ME 162, ¶ 8, 167 A.3d 1266.

                                III. CONCLUSION

      [¶39]      The court erred when it denied Watson’s petition for

post-conviction relief. As a result of trial counsel’s deficient performance,

Watson was prejudiced in his attempt to defend against all charges brought

against him, entitling him to post-conviction relief from judgment of conviction

on all counts.
22

        The entry is:

                           Judgment vacated. Remanded for entry of a
                           judgment      granting    the     petition   for
                           post-conviction review and vacating all
                           convictions in the underlying criminal judgment.



David Paris, Esq. (orally), Bath, for appellant Richard Watson

Joshua K. Saucier, Asst. Dist. Atty., and Mark A. Rucci, Asst. Dist. Atty. (orally),
Prosecutorial District V, Bangor, for appellee State of Maine


Penobscot County Unified Criminal Docket docket number CR-2017-1320
FOR CLERK REFERENCE ONLY
