3 appeals to go before Maine high court

Posted Sept. 13, 2009, at 10:31 p.m.

PORTLAND, Maine — The Maine Supreme Judicial Court this month will hear the appeals of a convicted murderer, a power company ordered to pay nearly $5 million in damages to a Bangor man injured in an accident nearly seven years ago, and a former Eastern Maine Medical Center employee, who claims she was subjected to a hostile work environment and retaliated against when she reported it.

All three cases are on appeal from Penobscot County Superior Court. The high court justices, including the court’s newest member, Joseph Jabar of Waterville, will hear oral arguments in these and other cases Wednesday, Sept. 16, and Thursday, Sept. 17, in the Cumberland County Courthouse.

Ashton Moores, 61, of Bangor was convicted in November 2008 of the murder and gross sexual assault of Christina Simonin, 43, of Bangor in a jury-waived trial presided over by Justice William Anderson. The next January, Anderson sentenced Moores, who had spent much of his life behind bars for arson convictions, to life in prison, according to reports previously published in the Bangor Daily News.

Simonin’s body, bundled in a comforter and blue tarplike material, was found on March 3, 2007, behind a Union Street apartment building near Shaw House, a shelter for homeless teens. The medical examiner concluded that the woman, who had been staying with Moores, had been raped with an object and died of multiple traumatic injuries including blows to the head and strangulation with some sort of ligature, according to court documents. She also suffered severe rib fractures.

Moores’ attorneys, Seth Harrow and Terence Harrigan, both of Bangor, argued in their brief filed in the appeal that there was insufficient evidence for Anderson to conclude that Moores killed Simonin. The Attorney General’s Office, which prosecuted the case, disagreed.

Harrow in his brief identified two men, including Simonin’s former boyfriend, as alternative suspects. The attorney criticized the investigation by the Bangor police, stating investigators did not gather DNA evidence from the men or from their apartments.

The attorney argued that Moores’ conviction should be overturned and he should be granted a new trial because:

ä No DNA or other evidence directly linking Moores to the crime was introduced.

ä Neither the weapon that inflicted the victim’s head wounds nor the ligature used to strangle her were found.

ä The weapon used in the sexual assault was not recovered.

ä The exact time of Simonin’s death is unknown.

ä Where Simonin was killed is unknown.

ä The person captured by a security camera dumping her body could not be identified.

Assistant Attorney General Donald Macomber argued in his brief that Moores’ convictions should stand because the defendant shared information with police about the victim’s injuries that were not public at the time of his interview.

Evidence introduced at trial — including the fact that Moores borrowed a wheelbarrow from his landlord the day before Simonin’s body was found, that the blood found in Moores’ apartment belonged to the victim and the fact that semen found in clothing used to tie the victim’s ankles together was matched to the defendant — was sufficient to convict him, Macomber argued.

Moores would be granted a new trial if his conviction were overturned.

In a separate case, attorneys for Central Maine Power are expected to argue that Bryan Smith’s injury case should be remanded to Penobscot County Superior Court to determine whether the company violated any of the Public Utility Commission’s rules under which it operates. The firm claims that Justice Michaela Murphy should have concluded CMP complied with PUC regulations regarding vertical clearances for power lines, according to information on the court system’s Web site.

Smith’s attorneys, Lisa Lunn of Bangor and Barry Mills of Ellsworth, argued in their brief that the judge properly based her decision on a variety of factors including CMP’s “violation of its general common law duty to exercise due care and diligence.” Their brief asked that the decision be upheld.

Last year, Murphy awarded Smith, 25, of Bangor a total of $4.89 million — $3 million in damages for loss of enjoyment of life, pain and suffering, more than $1.1 million in lost earnings, and $783,000 for past and future medical and rehabilitation expenses — for injuries he suffered Oct. 31, 2002, in an electrical accident at a Bucksport boatyard.

“The accident was caused by the fact that this 35-foot, 4-inch mast, with its butt end held three feet off the ground at an angle of less than 90 degrees, hit a power line that was set at 30 feet, and not at 45.5 feet, as required by law,” Murphy concluded in a decision dated Nov. 3, 2008.

The next January, Murphy denied CMP’s motion for a new trial. The judge concluded that the accident was “reasonably foreseeable” because of a previous but less serious accident in 1998 and the “existence and violation of state and internal company standards, which clearly were established to minimize the possibility of such accident occurring in areas where sailboats are rigged and unrigged, such as the Devereaux Marine.”

Smith was injured his fourth day on the job at the boatyard while working with his supervisor, Bill Stevenson, to remove or unstep a mast from a sailboat to be stored for the winter. After the mast had been lifted from the deck of a boat using a crane, Smith climbed off the starboard side of the boat “to receive the mast butt,” according to Lunn’s brief.

Stevenson lowered the mast to Smith, who was standing on the ground. After Smith said that he had control of the mast, according to the brief, Stevenson turned to collect his tools. Stevenson reported hearing a “loud ‘electrical noise,’ followed quickly by a second noise” and then jumped from the boat, injuring an ankle.

“He saw Bryan lying unconscious ‘curled up like a ball underneath the stern of the boat,’ making no sound,” Lunn wrote in her brief. “Bryan’s body had been subject to [nearly 20,000 volts], entering through his left hand and exiting through his feet, primarily his right foot.”

Murphy found Smith had suffered “a 42 percent whole body permanent impairment injury” as a result of the accident. She also found he had significant neurocognitive defects, depression and post-traumatic stress disorder.

In the third appeal from Penobscot County, the justices will consider whether Justice Murphy erred in granting summary judgment to EMMC in Elizabeth Miller’s lawsuit alleging she was subjected to a hostile work environment and whistle-blower retaliation while working as and EEG technician at the Bangor hospital from 2002 through February 2007 when Miller quit to take a job in Boston, according to court documents.

Miller’s attorney, A.J. Greif of Bangor, argued in his brief that the judge ignored material facts and did not consider them in a light most favorable to Miller as required. EMMC countered in its brief that the court correctly decided Miller was not subjected to sexual harassment or retaliation, so there were not facts in dispute which needed to be decided by a jury.

Miller now works at St. Mary’s Region Medical Center in Lewiston, according to court documents.

jharrison@bangordailynews.net

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