AUBURN – Jurors who found Brandon Thongsavanh guilty last month of killing Bates College senior Morgan McDuffee weren’t denied proper instructions, says the state Attorney General’s Office.
Thongsavanh’s lawyer, David Van Dyke, filed a motion for a new trial within days of the guilty verdict. He argued that Superior Court Justice Ellen Gorman erred by not telling jurors they could find Thongsavanh guilty of manslaughter instead of murder.
But prosecutor Lisa Marchese says there was no mistake made in instructing the jury.
The state’s response to Van Dyke’s motion was filed Monday in Androscoggin County Superior Court. In it, Assistant Attorney General Donald W. Macomber noted that the defense had requested a manslaughter instruction and the state objected because “five stab wounds to the chest and back clearly constitutes murder, not manslaughter.”
He argued that five stab wounds to the chest and back, including one to the heart, could not be considered criminally negligent.
He added that Gorman had rejected the defense’s request for a manslaughter instruction and agreed with the state’s position.
600-pound gorilla’
Van Dyke, in discussing his bid for the new trial, had called the manslaughter instruction issue the case’s “600-pound gorilla.”
Marchese, however, said Van Dyke is misinterpreting state law when he claims that when depraved indifference murder is charged that jurors must be given the option of finding a defendant guilty of criminally negligent manslaughter.
“Defense counsel’s argument is tantamount to saying that every time murder is charged, the jury must be given the option of manslaughter, which is simply not the law in Maine,” Macomber wrote in the response filed on Marchese’s behalf.
The distinction between murder and manslaughter is huge in terms of sentencing. Typically a person convicted of criminally negligent manslaughter would face a 30-year sentence.
Marchese said she’ll ask for at least a 58-year sentence for Thongsavanh, and perhaps longer, depending on his behavior in prison and jail while he was awaiting last month’s trial.
Thongsavanh was sentenced to 58 years in prison after his first conviction for McDuffee’s murder. That conviction was overturned more than a year ago by the Maine Supreme Judicial Court. The high court found jurors in that trial had been biased by repeated references to a T-shirt that witnesses said Thongsavanh was wearing the night that McDuffee was killed. The T-shirt featured a picture of a naked woman and an obscene reference to Jesus.
McDuffee, 22, was a senior at Bates College in Lewiston and the captain of the Bates lacrosse team. He was killed as several Bates students brawled with young men from Auburn on Main Street in Lewiston on March 3, 2002.
Marchese and Van Dyke will offer verbal arguments on the motion for a new trial on Nov. 21. That’s the date set by Gorman for Thongsavanh’s sentencing.
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