Maine high court to hear appeals in two slayings

Posted May 10, 2010, at 8:46 p.m.

BANGOR, Maine — Two convicted murderers have asked the Maine Supreme Judicial Court to overturn their convictions.

Justices will hear oral arguments in the cases on Wednesday, May 19, at the Penobscot Judicial Center.

Attorneys for Joseph Dumas, 51, of Prentiss and Thomas H. Mitchell Jr., 52, of Warren have asked the state’s highest court to grant their clients new trials.

Dumas is serving a 30-year sentence for shooting his “best friend” five times in the back and head after bingeing on cocaine in November 2007. The shooting occurred near a camp on Tar Ridge Road in Prentiss where Dumas was working. His attorneys argued at his sentencing that Dumas suffered from cocaine-induced psychosis when he killed Mario “Sonny” Litterio, 70, of Prentiss.

Mitchell is serving a life sentence for the 1983 rape and murder of Judith L. Flagg, 23, of Fayette in front of her 13-month-old son at her home. The crime was unsolved until 2006, when testing on old evidence preserved from the crime scene revealed the presence of his DNA.

When the evidence in the Flagg homicide was tested, Mitchell was serving a 35-year sentence at the Maine State Prison in Warren for the 1985 kidnapping, rape and attempted murder of a 17-year-old girl from Standish. In addition, Mitchell was convicted in Cumberland County in the 1978 kidnapping of a 16-year-old girl.

Mitchell was convicted last June by a Franklin County jury in Farmington for raping and stabbing Flagg to death. The next August, then-Superior Court Justice Joseph Jabar sentenced Mitchell to life in prison.

Jabar now is on the state supreme court and will not hear oral arguments or be involved in ruling on the appeal.

Dumas’ defense attorneys, Peter Cyr of Portland and Richard Hartley of Bangor, argued in their brief that Superior Court Justice Michaela Murphy erred in three ways: by denying motions to suppress evidence seized by police and statements Dumas made to police; by denying a motion for a mistrial based on inadmissible testimony by a prosecution witness; and in giving an incorrect jury instruction regarding when the intent required to be guilty of murder may be formed.

Assistant Attorney General Donald Macomber countered in his brief that the judge’s rulings in the suppression and mistrial motions were correct. He also said that Murphy gave a “curative” instruction to the jury concerning the testimony in question.

The defense team in its brief objected to Murphy’s instruction that “the intent to cause death may be formed in the instant before the death-producing conduct.” Macomber argued that the Maine Supreme Judicial Court long has held that the prosecution does not have to prove a defendant’s conduct in a murder case was “‘premeditated’ in the sense that it was planned or deliberated over.” He also said that Cyr and Hartley did not object to that instruction at the trial.

Mitchell’s attorneys, James W. Strong and Greg N. Dorr, both of Thomaston, raised the following seven arguments in their brief:

• DNA evidence should have been excluded because the chain of custody was broken.

• The judge should not have admitted a composite picture that was based on the recollection of an eyewitness.

• Mitchell’s Fourth Amendment rights were violated when officers created a ruse to induce him to step on paper that would capture his shoe print.

• The court should not have admitted testimony from a police officer who saw Mitchell driving north from Portland on the morning of the murder.

• The indictment should have been dismissed because it was delayed for decades.

• Mitchell’s confrontation rights were violated because the prosecution did not offer testimony from the person who conducted the autopsy on the victim.

• The court should have allowed him to introduce evidence of an alternate suspect.

Macomber said in his brief that Jabar’s rulings were correct. Despite the many years between when the crime occurred and when Mitchell was indicted, all evidence was properly gathered and preserved and investigators acted within their legal authority, the prosecutor maintained. The delay in indicting Mitchell, Macomber said, was for purposes of investigation, not because prosecutors were stalling.

It was reasonable, Macomber argued, to have the current state medical examiner testify using the report of the person who performed the autopsy because the former medical examiner had retired to British Columbia. The assistant attorney general also said that the judge’s ruling on an alternative suspect theory was proper because the defense could place him in the area of the crime but not at the crime scene.

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