Bangor teen convicted in shooting death seeks new trial

The attorneys for Zachary Carr who was convicted last month in the shooting death of John “Bobby” Surles, 19, of Bangor have asked the judge who presided over the trial to set aside the jury’s verdict and grant Carr a new trial. Carr is seen here in court in January 2011.
Kate Collins | BDN
The attorneys for Zachary Carr who was convicted last month in the shooting death of John “Bobby” Surles, 19, of Bangor have asked the judge who presided over the trial to set aside the jury’s verdict and grant Carr a new trial. Carr is seen here in court in January 2011.
Posted April 22, 2011, at 2:54 p.m.
Last modified April 22, 2011, at 4:48 p.m.

BANGOR, Maine — The attorneys for a man convicted of murdering a local teen have asked the judge who presided over the trial to set aside the jury’s verdict and grant Zachary Carr a new trial.

Carr, 19, of Bangor was found guilty last month of intentional or knowing murder in the shooting death of John “Bobby” Surles, 19, of Bangor around 6 p.m. Jan. 27, 2010, on Cumberland Street. The incident was described during the trial as a street fight between two groups of young men.

Surles died the next day.

Carr was indicted last year by the Penobscot County grand jury on charges of murder and manslaughter.

Defense attorney F. David Walker IV of Portland argued at the trial that Carr acted in self defense.

Assistant Attorney General Andrew Benson, who prosecuted the case, told the jury that Surles was on the ground defenseless “when he was executed — literally executed — by Zachary Carr.”

Benson declined Thursday to comment on the motion but said his reply would be filed in Bangor next week.

In their motion for a new trial, filed Tuesday at the Penboscot Judicial Center, Walker and co-counsel Thomas Matzilevich of Bangor said the state failed to prove Carr acted intentionally and knowingly when he shot Surles and failed to disprove the defendant acted in self-defense, which the state had the burden to disprove.

The attorneys also said Carr should be granted a new trial because prosecution witness Dylan Colvin lied on the stand. The defense team claims that since the trial, Colvin has boasted to others involved in the case that he lied on the stand.

“While it is true that ‘the Superior Court is not permitted to assume to the role of an advocate,’ it is not confined to the role of a passive moderator,” the attorneys wrote quoting the previous decision. “Under certain circumstances, this court is empowered to intervene in order to ‘prevent a miscarriage of justice.’ The conviction of Zachary represents a clear miscarriage of justice.”

Efforts to reach Walker and Matzilevich on Friday were unsuccessful.

While motions for new trials are standard in murder cases and part of the appellate process, it would be unusual for the judge who presided over a trial — in Carr’s case, Superior Court Justice Michaela Murphy — to grant a new trial.

The motions are almost always denied, then appealed to the Maine Supreme Judicial Court. The last time the justices granted a new trial was in 2004 in the case of a Lewiston man convicted of killing a Bates College student. The new trial was granted on grounds that prejudicial evidence was used in the first trial, according to previously published reports.

In his second trial, Brandon Thongsavanh, 28, was again convicted and sentenced to 58 years in prison for the the March 2002 murder of Bates College senior Morgan McDuffee.

Carr’s sentencing on the murder conviction, which was scheduled for Thursday, has been continued pending the completion of a pre-sentence report by probation officials and Murphy’s decision on the motion for a new trial.

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