AUBURN — The judge in the attempted murder trial of Cleveland Cruthirds chastised the Lewiston Police Department for losing three witness statements but denied a defense motion to dismiss the case Friday.

Androscoggin County Superior Court Justice Robert Clifford said defense lawyers learned Friday morning, the fourth day of the trial, that three statements taken from employees of Club VYBZ, which the defense believes confirm Cruthirds’s alibi near the time Naomi Swift was stabbed in 2011, were never given to the District Attorney’s Office by the Police Department.

And, according to Assistant District Attorney Andrew Matulis, Lewiston police cannot locate them.

With the jury out of the courtroom, defense attorney John Paul DeGrinney made a motion to dismiss the case for violating mandatory rules of discovery, but Clifford denied the request. Instead, he said he would sanction the state by explaining to the jury what had happened and making it clear that witness statements were lost by police.

“This is a very bad and negligent act on behalf of the city,” Clifford said, referring to the lost documents, even though it was not intentional.

Cruthirds, 27, formerly of 260 Park St. in Lewiston, is charged with attempted murder, aggravated attempted murder, elevated aggravated assault, aggravated assault, burglary and violation of bail conditions.

He is accused of breaking into Swift’s first-floor apartment at 174 Blake St. in Lewiston on the night of Dec. 10, 2011, and stabbing her 21 times because he was enraged that she talked with her husband on the phone and with an ex-boyfriend online, according to a police affidavits. She was 21 at the time.

Swift, his former on-again off-again girlfriend, was found bloodied in a fourth-floor hallway by police.

Cruthirds was arrested on Horton Street several hours later.

DeGrinney, arguing for dismissal, told Clifford that three employees of the club each wrote statements noting when Cruthirds arrived at the club and describing what he was wearing on the night he was accused of stabbing Swift.

According to DeGrinney, the witness statements would have placed Cruthirds at the club around “nineish” on Dec. 10, 2011.

According to court records, a 911 call reporting the attack was made at 8:48 p.m.

“Those written statements went into the hands of the Lewiston Police Department and went missing from there,” DeGrinney said, which is “an egregious violation of essential alibi elements and corroboration.”

“I’m asking the court to safeguard the rights of Mr. Cruthirds, whose rights have either been trampled on or ignored by the Lewiston Police Department,” he said.

After Clifford denied the motion, DeGrinney made a motion to recess until Monday so he could reassess the case. The motion was denied.

DeGrinney then leaned toward his client and whispered, “It’s not right. It’s not right.”

Minutes later, the jury was brought back into the courtroom and Andy Arel of Lewiston, a former bouncer at Club VYBZ at 347 Lisbon St., was called to the witness stand.

Justice Clifford explained to him that the state was obligated to turn over his written witness statement to the defense and failed to do so because “the Lewiston Police Department failed to turn the statement over” to the District Attorney’s Office. “They cannot locate that statement,” he said, which is “a violation of their obligation” to turn over all evidence in the case.

Arel, who is working as a bouncer at Club Texas, testified that Club VYBZ, which is now closed, used to be open from 9 p.m. to 1 a.m. He was at work at 9 p.m. on the night of the stabbing, playing pool, and remembers Cruthirds coming into the club “about 15 minutes after opening.”

Defense attorney Peter Richard asked Arel whether he remembers seeing blood on Cruthirds, and he said he didn’t.

Richard asked whether Cruthirds came into the club or stood outside the front door, and Arel said he came in, walked to the bar, ordered a drink and “went all the way to the back of the bar.”

Richard asked him if he was certain he was inside the club.

“He went into the bar and got a drink,” Arel said.

On Thursday, retired Lewiston Detective Lee Jones testified that the bouncers’ statements all indicated Cruthirds never went in the club but, instead, came to the club and stood outside.

A second bouncer, Ken Allen of Lewiston, also testified Friday. Richard asked him whether he saw Cruthirds in the bar, and Allen said he did.

Allen said he arrived at work at 9:30 p.m. and Cruthirds was already inside and stayed until after 10 p.m.

Asked whether he ever told police, as Jones testified, that Cruthirds never went in the bar, Allen said that was not his statement.

“He was in the club,” he said.

The third bouncer who wrote a witness statement, Donnell McKnight of Sidney, was not called to testify.

After a lunch break, Matulis called Swift’s friend Karie Lessard to the stand. She was with Swift when the attacker broke into the apartment.

Because Lessard does not remember what happened that night because she has Post Traumatic Stress Disorder due to witnessing her father’s stabbing death, the court permitted Matulis to play a videotape of her interview with Detective Jones on the night of the attack.

When Jones asked her what happened, Lessard said her mother dropped her off at Swift’s apartment, she went in and sat with Swift in the bedroom talking and smoking cigarettes. Then, she said on the tape, Cruthirds kicked down the door and got upset. He went to the kitchen, got a knife, put it in his pocket, went back into the bedroom and held the knife over Swift’s head. Lessard said she got up and ran out, and heard Swift screaming, “He’s stabbing me!”

Lessard ran to the third floor and knocked on doors until Pam Lemieux, a neighbor, let her in.

Lemieux later testified that she let Lessard in and called 911. The two women could hear Swift on the first floor screaming, “He’s killing me!”

And, Lessard testified, when she was running up the stairs she could hear Swift screaming, “Help me! Help me! Help me! I don’t know where he went!”

As Lessard was describing the scene to Jones, she can be seen on the videotape, rocking back and forth in her chair, crying and clearly upset.

As Jones was leaving the room, Lessard asked him about Swift. “Is she OK? Is she all right?” she said. He said she was.

On cross-examination, Lessard admitted to DeGrinney that around the time Swift was stabbed, she and Swift were drinking. Lessard said would often drink to the point of being heavily impaired.

“I drank every day,” she said.

DeGrinney asked her if, after seeing the tape and reviewing a statement she gave to a private investigator in September last year, she remembered telling the investigator that she “was not confident of the statement you made to police.”

“Right,” Lessard said.

Later, Lemieux, the neighbor, testified that Lessard was in a total panic while in her apartment, telling Lemieux that Swift’s “ex-boyfriend was killing her” but never specifically naming Cruthirds.

Asked when police took her witness statement, she said she was given a form to fill out June 12, 2012, six months after the attack. Jones contacted her on Sept. 28, 2012, to collect the paperwork.

Earlier on Friday, Jennifer Sabean, a forensic DNA analyst at the Maine State Police Crime Lab, testified that she tested seven areas of the shirt Swift was wearing when she was attacked.

The testing was done in March at the request of the defense and “was completed just prior to this trial,” Sabean said.

The prosecution did not ask for DNA testing on the shirt.

According to Sabean, none of the DNA found on the shirt matched that of Cruthirds. She found “two other male DNA chromosomes on the right side of her shirt,” she said, that remain unidentified.

In explaining this evidence, she said DNA can be found as a result of saliva, skin cells or blood contact with the victim, and she could draw no conclusion from the presence of DNA or lack of it.

Questioned by Assistant District Attorney Matulis about not testing the blood taken from the knob of the exterior door of Swift’s apartment, she said the crime lab discourages testing doorknobs because they’re touched by so many people over time, and any DNA evidence found may have nothing to do with a case under investigation.

The jury trial is expected to last through next week.

jmeyer@sunjournal.com

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