LEWISTON — A Sabattus man sentenced to 55 years in prison for killing his ex-girlfriend is hoping a judge will grant him a new trial or send his case back to the state's highest court for a second look.
Daniel Roberts, 42, appeared in 8th District Court on Thursday for a post-conviction review hearing. Flanked by his two Boston lawyers, Roberts was handcuffed during the proceeding but allowed to take notes.
He was convicted in the 2005 shooting death of Melissa Mendoza, 29, of California, in his garage on Aug. 15. The couple had been embroiled in a custody dispute over their 2-year-old daughter, Savanna, at the time of the shooting.
Attorney Rosemary Curran Scapicchio told a judge she questioned whether Roberts' constitutional right to a proper trial was violated because members of the public were kept out of the courtroom during testimonial portions of the trial, as well as during the reading of the verdict.
She also questioned whether his constitutional rights were violated by having ineffective counsel at trial and during his appeal to the Maine Supreme Judicial Court.
Justice Joyce Wheeler, who presided over Roberts' three-week trial in Androscoggin County Superior Court in 2007, listened Thursday as witnesses testified that they were excluded from the courtroom during trial.
Jaime Bolduc of Lewiston said she was told she couldn't go back into the courtroom once she left to go to the bathroom while someone was testifying. Over the course of the trial, she had to wait to get back into the courtroom at least 10 times, she said.
Asked if she was told she couldn't view the trial, she said: "As long as I didn't have to pee."
Tina Dionne of Lewiston said she was told to wait in a room off the 2nd floor landing at the entrance to the courtroom a couple of times during the trial because someone was on the witness stand. At the end of the trial, she and her daughter had rushed back to the Androscoggin County courthouse to hear the verdict, only to be locked out, she said. She sat outside on the steps and cried, she said.
Both Bolduc and Dionne were friends of Roberts and were at the trial to support him. Bolduc testified at trial as a witness.
Mark Tibbets, a deputy judicial marshal, said he worked the day of the verdict performing courthouse security by screening people entering the building and by patrolling the perimeter of the building. He said he watched as a county worker locked the front doors as the building was closed at 5 p.m.
"It was right around the time the door was locked that the verdict was reached," he said. He said he didn't notice anyone trying to get into the county building. He went upstairs to the courtroom and escorted Mendoza's family out to the street, he said.
In his petition for post-conviction review, Roberts claimed his trial attorney, Leonard Sharon, and appellate lawyer Thomas Marjerison made numerous errors in defending Roberts and deprived him of his constitutional rights.
Scapicchio quizzed Sharon on Thursday about several of those points, asking him whether his decisions were strategic, in an effort to evaluate whether his representation of Roberts was effective. She also quizzed Marjerison in the same manner about his appeal of Roberts' case before the Maine Supreme Judicial Court.
Sharon, who answered questions for more than an hour, talked about the process of picking a jury for the trial. He said there were many conferences with the judge during that process and that Roberts was not always present.
In his petition, Roberts said Sharon failed to help him secure his right to be present during all trial proceedings. Marjerison also should have raised that issue on appeal, Roberts' petition says.
Asked whether Roberts was present during conferences in chambers, Sharon said: "During the individual 'voir dire' of jurors, I would think that he was present." Voir dire is a legal term referring to an oath of honesty.
Scapicchio worked her way through a list of issues she raised from the trial, including whether Sharon should have:
* Sought to strike the testimony of a witness who testified in violation of an earlier court order or asked the judge for a curative instruction to the jury;
* Testified to rebut statements made by a lawyer who had represented Mendoza in an earlier child custody dispute; and
* Bowed out as Roberts' trial attorney because the two were good friends.
Sharon explained his reasons for the decisions he made.
Marjerison, who answered questions for less than an hour, was asked about the issues he chose to include in his appeal to the state's high court and, moreover, those he left out.
Roberts failed in his 2008 direct appeal to the Maine Supreme Judicial Court, before which he alleged errors on the part of the trial judge.
Asked about many of the possible issues raised in Roberts' petition, including 911 tapes and claims of juror intimidation, Marjerison explained that he felt they weren't worth raising with the appellate court for various reasons.
Marjerison said he focused in his appellate brief on issues in which the court might have erred in its rulings on motions and trial procedures.
He said he neglected to include in his brief a cumulative section at the end that raised all of the federal constitutional issues that would dovetail with the state issues.
"It was a mistake on my part," he said.
Scapicchio and Maine Deputy Attorney General William Stokes are expected to follow Thursday's hearing with written arguments. Wheeler is expected to take up the case again in March.