PORTLAND – A Sumner man convicted last year of two murders argued through his attorney Wednesday that he should have been allowed to question witnesses on an alternative-suspect theory.
Duane Christopher Waterman, who was 33 at the time of his conviction, was found guilty in connection with the fatal shootings of Timothy Mayberry, 50, of West Paris and Todd Smith, 43, of Paris at Mayberry’s home on Tuelltown Road in Paris on July 25, 2008.
Waterman is serving two concurrent life sentences in prison.
He appealed his conviction and sentence to the state’s highest court on several grounds.
The one that interested the Maine Supreme Judicial Court most on Wednesday was Waterman’s alternative-suspect theory and whether he should have been allowed to pursue questioning of witnesses along those lines.
Chief Justice Leigh Ingalls Saufley asked Waterman’s lawyer, John Jenness Jr. of Paris, where a trial judge should draw the line in allowing alternative-suspect theories to be pursued during trial.
“Tell me, what evidence existed in this record when the judge was making the determinations on the two actual challenges on alternative-suspect theory that would have led a reasonable judge to say, ‘There’s enough here to allow what is essentially a fishing expedition?’”
Jenness said he raised the names of specific alternative suspects and provided background information that bolstered his argument as something more than a general charge of insufficient police investigation.
Jenness said Justin Elsman was aware of Mayberry’s involvement with drugs, his possession of drugs and a large amount of cash in the building.
“Is that enough for you to allege in a trial that there’s a motive to kill?” Saufley asked.
While questioning Elsman on the witness stand, Jenness had wanted to ask Elsman, “Did you, in fact, kill Mr. Mayberry?” But Oxford County Superior Court Justice Roland Cole told Jenness during a sidebar at trial: “No, you can’t” ask that question.
Jenness said he shouldn’t be forced to present his entire alternative-suspect case at trial, only Elsman’s motive and knowledge.
“You don’t need any evidence whatsoever to link him to the crime scene?” Justice Ellen Gorman asked Wednesday. “Motive is enough?”
Jenness said his next question would have been, “Where were you that night?”
Justice Jon Levy asked Jenness whether he should be allowed to ask any witness who had done drugs with Mayberry in the past whether that witness had committed the crime.
“Under certain circumstances I suggested, yes, I can, ”Jenness answered.
Whether Jenness should be allowed to present a witness as an alternative suspect in his closing argument once both sides had presented their cases would have to be decided by the trial judge, depending on the weight of evidence presented against that person.
Assistant Attorney General Donald Macomber told the seven-member panel of justices: “Trials are not fishing expeditions,” where defense attorneys “throw red herrings” at witnesses in order to divert suspicion from the defendant. “That’s not what trials are for.”
Justice Cole had told Waterman’s lawyer at trial that Cole would allow a question to be asked of an alternative suspect once Waterman’s attorney provided evidence to support an alternative-suspect theory that showed a connection between that suspect and the crime, Macomber said Wednesday.
“With respect to Mr. Elsman, he said, ‘You can’t ask that question, yet. Give me a little more and then I can let you ask that question,’” Macomber said. “Mr. Jenness never provided him with any additional evidence.”