Jury to decide whether Scarborough man was too drunk to have intended to kill Portland woman

Eric Gwaro, 28, appears in Cumberland County Unified Criminal Court in Portland Tuesday morning where he faces multiple charges including attempted murder.
Troy R. Bennett | BDN
Eric Gwaro, 28, appears in Cumberland County Unified Criminal Court in Portland Tuesday morning where he faces multiple charges including attempted murder.
By Seth Koenig, BDN Staff
Posted July 26, 2013, at 11:22 a.m.

PORTLAND, Maine — The fate of 28-year-old Eric Gwaro, a Scarborough man accused of brutally beating a Portland woman, is in the jury’s hands.

Gwaro faces Class A charges of attempted murder and elevated aggravated assault, as well as a Class B charge of aggravated assault and Class E charge of violating conditions of release. He is accused of violently beating then-25-year-old Sherri York of Portland in the early morning hours of Aug. 30, 2012, on Montgomery Street.

Closing arguments in the trial concluded Friday afternoon, and Cumberland County Superior Court Justice Joyce Wheeler turned the case over to a panel of 13 jurors — eight women and five men, with one being an alternate.

The jurors deliberated for approximately 45 minutes Friday afternoon before being released for the weekend. They are scheduled to continue deliberations on Monday morning.

The jury must decide whether they believe Gwaro stomped on York’s head with the intent to kill her and, if so, whether they believe the decade-old canvas sneaker he was wearing can be considered a “dangerous weapon” in order to render guilty verdicts on the two Class A counts.

Defense attorneys Daniel Lilley and Tina Nadeau have argued the answer to both questions is “no,” but they have conceded that Gwaro struck York approximately three times with his hand and should be convicted of the lesser charges of aggravated assault and violating bail conditions. Lilley has urged the jury to convict on the Class B and Class E charges, but not the Class A charges, calling the attempted murder and elevated aggravated assault counts a case of “overprosecuting.”

The Class A charges each carry maximum sentences of 30 years in prison and $50,000 in fines, while the Class B charge carries a top sentence of 10 years in prison and $20,000 in fines. The Class E misdemeanor charge could yield a maximum sentence of six months in jail and $1,000 in fines.

The defense attorneys have argued that Gwaro was too intoxicated to have consciously formed the intent to kill York by his actions on the night of the crime, and that he became violently angry when she stole money from him after he refused her proposition to have sex with him for cash.

But Lilley and Nadeau insisted that Gwaro stopped after hitting York three times with his hands, and that prosecution eyewitnesses who say they subsequently saw him kicking and stomping on her head are unreliable.

“The law says if you’re voluntarily intoxicated … it can affect your ability to intentionally commit a crime,” Lilley told the jury in his closing argument Friday afternoon. “If he’s that drunk, if he’s that impaired, he can’t form the intent to knowingly attempt murder.”

Lilley also pointed to the lengthy criminal histories of two eyewitnesses — residents of a Montgomery Street apartment — who testified that they saw Gwaro kick and stomp on York’s head while she was lying on the ground.

He said the witnesses’ use of the specific terms “kick” and “stomp,” crucial to proving Gwaro went above and beyond aggravated assault and took steps toward attempted murder, were suggested to them during pretrial interviews with prosecutors and police investigators.

Cumberland County Deputy District Attorney Megan Elam took issue with that suggestion.

“Does it make sense that [the eyewitnesses with criminal histories] would jump on the evil prosecution bandwagon and help us out?” Elam posed during closing arguments Friday afternoon. “Or would it have been easier to tell us to go ‘eff ourselves?’ Then they wouldn’t have had to come to court or get their names in the paper.”

The prosecutor also disputed defense arguments that Gwaro was too drunk to have been thinking clearly on the night of the crime.

Gwaro took the witness stand in his own defense Friday morning, the fourth day of the trial.

During cross examination, Elam pointed to gas station surveillance camera footage from the night of the assault showing Gwaro driving in and out of the parking lot apparently without trouble, and asked why, if he was so drunk he couldn’t remember the period after striking York three times, he could remember other details about the night, such as conversations he had and beers he drank previously at area bars.

Under questioning first from his own attorney, Lilley, Gwaro shared his account of drinking on the night of the crime and said he picked up York near the Big Apple convenience store at the corner of Washington and Cumberland avenues initially hoping she would join him for drinks. Gwaro said once she was in the car, York — whose criminal history includes a 2011 arrest on prostitution charges — indicated she planned to charge him for sex, which “shocked” him.

He said he refused the proposition, but she stole money from the center console of his vehicle and fled when the vehicle stopped at a red light, which shocked him.

Gwaro said he then pursued York and ultimately confronted her. The defendant said York denied having the money when he later found her back near the Big Apple convenience store.

“I hit her, she goes down, I picked her back up and asked, ‘Do you know [where my money is] now?’” Gwaro recalled.

But although the defendant admitted to Lilley that he struck her approximately three times with his hand, he said he never kicked her while she was down or stomped on her head, as two eyewitnesses in the trial alleged earlier in the week. He instead said he couldn’t remember what transpired immediately after the initial three strikes and only remembers later running from police.

Gwaro told Lilley from the witness stand Friday morning he drank heavily on the night of the crime at several Portland area bars before the assault took place, and suffered from blackouts that night as a result.

One witness, a worker at a nearby homeless shelter, said during the trial that she saw Gwaro urinate on the side of her building and called the police with concerns he was intoxicated. Two police officers who later pulled Gwaro over, however, said they saw no signs of inebriation and did not even have just cause to order a field sobriety test.

Gwaro became emotional during his testimony, telling Lilley about his wife and two children. Gwaro’s wife, Jennifer McDonnell, who took the witness stand Thursday and testified that her husband was a “binge drinker,” sobbed noticeably Friday while her husband spoke.

“When I go out drinking, I’m the type of alcoholic where I can’t stop drinking until I run out of money, there’s no more alcohol or I pass out,” Gwaro said.

Lilley asked if he could have kicked or stomped on York’s head, but not remembered due to a drunken blackout.

“No, because that’s not the person I know that I am,” he answered.

That answer drew the attention of prosecutor Elam under cross examination.

“So you are the type of person who would aggravatedly assault somebody, but you’re not the type of person who would elevatedly aggravatedly assault somebody?” she posed.

The prosecutor also suggested the footage didn’t seem to show Gwaro driving erratically, as he might have if he was drunk, when he arrived at the Big Apple.

“You’re not so wasted you can’t get into the parking spot? You didn’t run over the curb,” Elam asked, following up with, “Have any trouble driving out of the parking lot? Hit any gas pumps? Run over any curbs?”

“No, ma’am,” Gwaro answered.

During his initial line of questioning before Lilley, Gwaro said he regretted the assault of York over what he said was stolen money, but that he was “disoriented” and “confused” at the time because of his drunkenness. The defendant described his night as spiraling out of control after he decided to go out bar hopping after work.

Gwaro, a per diem Scarborough firefighter at the time of the alleged assault, worked a shift that night as a bartender at a Cape Elizabeth bar.

“I felt bad,” he told his attorney from the stand. “I didn’t want to hit her. I just wanted my money back.

“If I could do it all over again, I would go home,” Gwaro continued. “I would never have gone out.”

CORRECTION:

An earlier version of this story requires correction. Eric Gwaro is accused of attempted murder, not murder. His alleged victim did not die. Gwaro also no longer works as a per diem Scarborough firefighter.

http://bangordailynews.com/2013/07/26/news/portland/testifying-at-his-attempted-murder-trial-gwaro-admits-heavy-drinking-but-denies-stomping-woman/ printed on September 30, 2014