PORTLAND — A Lewiston man convicted in 2012 of murdering a 22-year-old woman in her bathtub lost his bid for a new trial Tuesday, after claiming that misconduct by the prosecutor unfairly prejudiced the jury.
The Maine Supreme Judicial Court upheld a 2014 ruling by Androscoggin County Superior Court Justice MaryGay Kennedy that denied Buddy Robinson, 34, a new trial.
Robinson is serving a 55-year sentence at the Maine State Prison.
He was convicted in the 2011 beating and drowning death of Christiana Fesmire, who lived downstairs from his Highland Avenue apartment in Lewiston.
Robinson’s appellate attorney, Adam Sherman, told the high court during oral arguments in May that then-Assistant Attorney General Andrew Benson had feigned sleep, mouthed nonverbal instructions and gestured to the jury during the defense attorney’s closing argument at Robinson’s 2012 trial. Benson has since been appointed to serve as a Maine District Court judge.
Sherman said that prejudice created by Benson’s inappropriate behavior outweighed the evidence presented at trial and skewed the jury’s guilty verdict, entitling Robinson to a new trial.
On Tuesday, the Supreme Court released a unanimous opinion that Benson’s “misconduct” by feigning sleep in an effort to annoy the defense attorney didn’t affect the jury’s verdict, agreeing with the lower court judge’s conclusion.
Writing for the high court, Justice Jeffrey Hjelm said, “Without question, that conduct was sophomoric, unprofessional and a poor reflection on the prosecutor’s office.” Yet, the question for the high court was whether the trial court judge made a mistake in concluding that Benson’s antics did not affect Robinson’s right to a fair trial.
“That conclusion was not erroneous,” Hjelm wrote.
In 2014, Androscoggin County Superior Court Justice MaryGay Kennedy denied Robinson’s motion for a new trial, finding Benson’s conduct had not caused “a harmful prejudicial error such that substantial justice has not been done.”
A Lewiston attorney, who was not connected to Robinson’s trial, testified on appeal in Androscoggin County Superior Court that he witnessed Benson mouthing words and pointing during the defense’s closing arguments.
Jason Dionne testified that he had been sitting near the back of the courtroom at the end of the trial when he saw Benson lean back in his chair near the front of the courtroom, gesture with a hand pointing at Robinson and mouth the words, “He did” or “He did it.”
Dionne said Benson was answering a question posed rhetorically to the jury by defense attorney Edward “ Ted” Dilworth III, who represented Robinson at trial. Dionne said Dilworth was asking which suspect would have known that the victim had been planning to attend a family reunion that was scheduled to occur shortly after she was killed.
Dilworth held a small wooden box that contained slips of paper during his closing arguments. He had written a question earlier on each slip regarding evidence and testimony presented during trial. Dilworth withdrew one slip at a time, posing questions designed to raise doubt about the state’s case.
Dilworth’s defense was to cast suspicion primarily on Robinson’s twin sister, Brandi, and draw attention away from the defendant.
Dionne had written in a sworn statement that he had “observed the lead prosecutor gesturing with his hands and mouthing favorable responses to each question in such a manner that the jurors could easily observe.”
Dilworth’s back was turned to Benson at the time, so he apparently was unaware of Benson’s behavior, Dionne wrote. He saw at least five jurors watching Benson as he mouthed the answer to Dilworth’s question, Dionne wrote.
In his appeal to the high court, Sherman also accused Benson of having made sarcastic statements that prosecutors never convict the right person — implying that they do, indeed, always get the right man — using the prestige of the Attorney General’s Office to leverage the jury into a decision not based on the facts.
Assistant Attorney General Donald Macomber told the high court in May that if justices accepted such an interpretation, they’d be acting on the presumed collective mindsets of jurors.
Benson had testified during the trial court appeal that he had no recollection of making those statements or behaving in an inappropriate manner, mirroring the lower court’s conclusion that despite credible testimony to the contrary, it was just as likely the incident had never happened.
Two Maine State Police officers, who sat with Benson during the trial, testified at the trial court appeal that they didn’t observe any inappropriate conduct on Benson’s part.
Hjelm noted that Kennedy, in supporting her opinion that a new trial wasn’t warranted, had pointed out, “By the time the jurors heard Robinson’s summation (or closing argument,) it had also absorbed a considerable amount of evidence from 28 witnesses and more than 60 exhibits presented over the course of 10 days.”
Kennedy had instructed the jury, before it began deliberations, that their memories of the evidence and their assessments of the case were more important than the statements of the attorneys. She also told jurors that the attorneys’ opening statements and closing arguments were not evidence.
Another point of appeal brought by Sherman before the high court was the trial court judge’s response to the jury’s request during deliberations that the transcript of the testimony of a witness — a woman who worked for Robinson’s sister — be made available to them. The judge offered to have a portion of the transcript read back to the jury in the open court.
The high court said the trial judge correctly exercised her judicial discretion in seeking to narrow the focus of the jury’s request.
“We conclude that the instances of prosecutorial misconduct did not deprive Robinson of a fair trial and that the court committed no error in its responses to the jury’s request for a review of testimony,” Hjelm wrote.
cwilliams@sunjournal.com
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