Opinion
CR-14-1626
08-24-2016
WAYNE STERLING, Petitioner, v. STATE OF MAINE, Respondent,
ORDER
Thomas D. Warren Justice.
The history of this post-conviction proceeding and some of the difficulties that have been encountered are set forth in the court's order denying petitioner's motion to file a second amended petition dated August 23, 2016, and paragraphs 1-5 of that order are incorporated by reference, 1. Petitioner's amended offer of proof dated June 1, 2016 does not identify any specific information that would have been presented at sentencing if a PSI had been ordered. See order dated April 8, 2016 ¶ 6. Accordingly, Ground 3 of the Amended Petition is dismissed.
2. Ground 4 of the Amended Petition has already been dismissed. See April 8, 2016 order ¶ 7. Accordingly, the surviving grounds of the amended petition are Grounds 1(a), 1(b), 1(c) and 2(a).
3. Much of petitioner's amended offer of proof is not an improvement on petitioner's original offer in that, after beginning with a recitation as to what certain witnesses would or might testify, the offer then morphs into something approaching a lengthy and repetitive closing argument. As to certain of the proposed witnesses, however, the amended offer adequately specifies the testimony petitioner would propose to elicit.
4. As to other proposed witnesses, the amended offer is deficient. The witnesses in question are nurses Francine Falter mid Dawn Hersom, doctors Robert Anderson and Samir Haydai, and Joseph Thornton. Petitioner's amended offer demonstrates that he does not know what Falter, Hersom, Anderson, and Haydar would say if called as witnesses, and he lists Thornton without specifying any expected testimony whatsoever.
5. Petitioner and his counsel have had more than two years since the amended petition was filed to prepare the case. Petitioner has also had two opportunities to file offers of proof in lieu of being required to file affidavits pursuant to U.C.D. Rule 72A(b)(9). Given the age of this ease, it is too late to list further witnesses based on speculation.
6.Accordingly, testimony from Falter, Hersom, Anderson, Haydar, and Thornton will be excluded at the hearing. If the evidence and testimony at the hearing demonstrate that their testimony would be somehow essential to resolve the case, the court will be prepared to reconsider at that time.