By Doug Fletcher,Staff Writer

AUBURN – Unless they’re told about them by a witness, jurors deciding Brandon Thongsavanh’s fate aren’t likely to know he has ram’s horns tattooed on his head.

During a series of hearings Friday on motions made in advance of Thongsavanh’s upcoming murder trial, prosecutor Lisa Marchese agreed to show jurors a police photo with the defendant’s head angled in a way that doesn’t clearly show the horns.

Thongsavanh is charged with stabbing Morgan McDuffee to death early in the morning of March 3, 2002, on Main Street in Lewiston.

McDuffee, a Bates College senior only months away from graduation, died of five knife wounds.

Justice Ellen Gorman, who will preside over the trial, reserved judgment on whether jurors would be allowed to see a videotape of Thongsavanh being interviewed by police. The judge said she wanted to review the tape first to see how prominently the horn tattoos appear in that piece of evidence.

David Van Dyke, the Lewiston lawyer representing Thongsavanh, 22, says his client’s horns as well as a tattooed necklace of thorns could prejudice jurors.

Negative light’

In motions seeking to keep jurors from learning of the body art, Van Dyke said the tattoos show Thongsavanh “in an extremely negative light.”

Van Dyke wondered Friday whether the jury pool might have already been tainted by news reports about the upcoming trial and Thongsavanh’s tattoos.

He said he has had calls and e-mails from people who saw photos of Thongsavanh and his tattoos in Portland and Boston newspapers that ran versions of a Sun Journal news story and photos transmitted via The Associated Press.

The trial was moved to Cumberland County Superior Court in Portland because of pretrial publicity in Androscoggin County.

On Friday, Thongsavanh came to court wearing an orange Androscoggin County Jail shirt and pants. His hair has grown out to the point where the horns aren’t visible, but with the V-neck shirt, the necklace of thorns was obvious. The short-sleeved shirt also allowed display of lots of tattoos on his arms.

Thongsavanh was tried and convicted of the murder two years ago. The Maine Supreme Judicial Court overturned that verdict on appeal. The appeal cited repeated prejudicial references by the prosecutor and witnesses to a T-shirt said to have been worn by Thongsavanh on the night of the killing. The T-shirt featured a picture of a nude woman and made an obscene reference to Jesus.

On Friday, Marchese and Van Dyke agreed to describe the shirt as “distinctive,” “memorable” or “unique.”

Judge’s caution

Gorman cautioned both lawyers to be careful in their questioning of witnesses about the shirt, noting, “It’s not always possible to corral their response.”

She also noted that sidebars are likely during the trial if witnesses testify about “prior bad acts” by Thongsavanh and others.

One of those others is Chad Aube. Van Dyke wants to call witnesses to testify about the possibility of Aube as an alternative suspect in the stabbing. Aube was among the group of local men who brawled with Bates students at the time McDuffee was killed.

Lawyer William Masselli, who represented Thongsavanh in his first trial, had moved after the conviction for a retrial based on new evidence pointing toward Aube. He failed to get that new trial, but Van Dyke signaled the court that he’ll try to introduce the Aube evidence at the trial.

The trial opens with jury selection in Portland on Oct. 3. It’s expected to last up to three weeks, according to Van Dyke.

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