TURNER — The state’s highest court heard arguments Wednesday while convening at Leavitt Area High School on appeals filed by a Peru man after he was convicted of double murder and a judge had imposed two life sentences.
Mark Penley Oxford County Jail photo
Mark D. Penley, 53, appealed his convictions on two counts of murder as well as his sentences.
Rory McNamara, who represented Penley in arguing before the Maine Supreme Judicial Court, claimed that the judge at Penley’s trial had mistakenly admitted into evidence statements made by one of the victims in the days before her shooting death that she had been afraid of Penley and had been in the process of seeking a protection-from-abuse-order against him.
That woman was Penley’s ex-girlfriend, Heather Bickford, 31, of Canton, who was fatally shot along with her boyfriend, Dana Hill, 31, of Paris, at his Market Square apartment in Paris on Jan. 1, 2019. Hill was the father of their two children.
McNamara told the court Wednesday that four witnesses had testified that Bickford was so afraid of Penley that she had pursued a court order for protection against him.
Justice Thomas Warren, who presided over the trial, admitted that information into evidence “for its truth to prove that Heather was scared of defendant,” McNamara said.
“There are at least four problems with that,” he said.
McNamara asked the high court why Bickford’s state of mind at that time was relevant to the case against Penley.
Except in “very limited circumstances not present here,” the state of mind of a deceased victim “is irrelevant,” according to case law McNamara cited in his written brief to the court, he said.
If Bickford’s state of mind was actually relevant, then how does that evidence not violate the rule against introducing the defendant’s “prior bad acts?” McNamara asked.
“The prosecutor clearly implied that because Heather was scared of the defendant, the defendant was more likely to be the killer,” he said. “That’s not permitted.”
Even if Bickford’s state of mind was allowed to be introduced as evidence under a rare exception, the risk that that same evidence poses to the defendant in the form of “unfair prejudice” would outweigh the allowance of the evidence of her state of mind, McNamara said.
Lastly, the trial judge didn’t instruct the jury to consider Bickford’s state of mind, if only in a limited way, McNamara said. “As a matter of law, jurors were free to use Heather’s fear for any purpose. And the prosecutor’s argument invited jurors to use it to infer that the defendant, rather than others, must have been the killer,” McNamara said.
Justices probed McNamara’s arguments, taking turns to ask him pointed questions.
Among many text messages Penley had left for Bickford was one that threatened her for having considered a protection order against him.
McNamara was asked whether that message helped establish Penley’s motive, intent and his own state of mind before the murders.
McNamara said he didn’t believe that text message would have been allowed at trial had the judge not allowed the evidence of Bickford’s filing for a protection order, calling it “the tail wagging the dog.”
He said: “That’s part of the corpus of evidence that we’re complaining about.”
Justice Andrew Mead said Penley’s text message alone “does two important things: It identifies (Penley) as possible killer; it puts him right in there. He threatened to kill her and she ended up being murdered. And it also shows the basis, the motive, of why he was doing this, which is, ‘You’re getting — you put a PFA on me, protection from abuse’ — that shows anger. This is a violent, angry, vulgar message.”
Mead asked why prosecutors couldn’t have simply offered that text message as evidence.
“That provides identification of him and motive for him, even the absence of the other stuff coming in,” Mead said.
Justice Joseph Jabar said the trial judge allowing into evidence Penley’s threatening text message to Bickford and Bickford’s fearful state of mind as recalled by witnesses shouldn’t be viewed as a single issue.
“Those are two separate issues and they’re not related,” Jabar said.
A VICTIM’S FEAR
Assistant Attorney General Donald Macomber told the panel of justices that the trial judge ruled properly by allowing references to Bickford’s fear of Penley that led to her consideration of filing for protection.
“The trial court did not abuse his discretion by admitting evidence that one of the victims was afraid of Penley and was about to seek a protection from abuse order of him,” Macomber said.
“The evidence was clearly relevant to show the relationship of the parties, the victim’s state of mind, and the defendant’s motive and intent. And the trial court limited the prejudicial impact of that evidence by not allowing the state to introduce the specific incidents of conduct that were referenced in her seeking the protection from abuse order,” he said.
Moreover, Macomber said that although the trial judge could have instructed jurors to limit their consideration of Bickford’s pursuit of a protection order only in the context of Penley’s text message that references it, Penley’s defense attorney hadn’t called on the judge to provide that instruction to the jury at trial.
“And there’s no obligation on the trial court’s part to do that” independently, without a request from Penley’s attorneys, Macomber said.
Mead asked whether Bickford’s fear of Penley was part of the state’s case against him.
“Absolutely, your honor,” Macomber said.
“This case was tried as a who-done-it. Mark Penley said, ‘I didn’t do it.’ … and he named a whole slew of alternative suspects,” Macomber said. “The state was introducing evidence that she was afraid of Penley in the days before she was killed by Penley to show that it was more likely than not that he was the one she was afraid of to the point where she was going to seek a protection from abuse order against him.”
A justice asked how Bickford’s fear of Penley made it more likely he was her assailant, Macomber said: “I cited numerous cases in my brief showing that a victim’s fear is one of the things that’s relevant in a homicide trial and her fear of the defendant is relevant.”
Justice Jabar asked how a defendant would be able to cross examine that victim’s fearful state of mind if the victim is dead and can’t testify?
“Well, that’s true,” Macomber said, “and we can’t call the victim to say that it was Mark Penley who did it, either. That’s kind of a truism. But what you can do (as a defense attorney) is introduce evidence, like you just suggested, saying, ‘I was privy to their relationship and she wasn’t afraid of him.'”
Prosecutors were asked whether they needed to introduce at trial evidence that Bickford intended to file for a protection order, considering there was significant physical evidence connecting Penley to the crimes, including DNA evidence. Macomber said: “In any homicide case, the state is going to use whatever evidence that we have to establish guilt. We don’t want to be left standing in front of you saying, ‘Well, we had this other evidence, but we didn’t want to use it because we thought it was overkill.'”
McNamara also argued that the trial judge, in sentencing Penley, improperly considered the domestic violence aspect of the crime during two separate steps of Maine’s three-step sentencing process.
In the first step, the judge is tasked with setting a basic sentence for the crime by comparing the way it was committed in other similar cases for that type of crime. In the second step, the judge is supposed to consider aggravating and mitigating factors, including a defendant’s criminal history.
Macomber argued Wednesday that the trial judge had factored into his sentencing analysis in only one of the steps the domestic violence nature of Penley’s relationship with Bickford.
A jury of seven women and five men in Oxford County Superior Court roughly a year ago convicted Penley after two-and-a-half hours of deliberations.
Bickford’s and Hill’s two daughters, an 8-year-old and a 3-month-old at the time, had been in the apartment with their parents when they were killed.
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