Thursday, December 5, 2013
By Ann S. Kim email@example.com
BRUNSWICK - A Portland man who was convicted of gunning down a friend in 2010 argued to the Maine Supreme Judicial Court on Wednesday that the judge at his trial should not have told the jury that he wouldn't answer questions about the murder weapon.
John Ewing / Staff Photographer
Daudoit Butsitsi is asking the court to vacate his conviction for the fatal shooting of 24-year-old Serge Mulongo in 2010.
Butsitsi, now 26, is serving a 38-year sentence for killing his roommate at their apartment building in Parkside. His defense framed the shooting as self-defense, while the prosecution maintained that it was an act of revenge.
The trial judge made a mistake when he determined that Butsitsi had waived his Fifth Amendment right against self-incrimination when he refused to tell the prosecutor who provided him with the gun, his lawyer, Caleb Gannon, argued before the state Supreme Court.
He said that while Butsitsi did take the stand, he didn't have to answer that specific question because it could have implicated him in another crime, Gannon argued.
Butsitsi's team argues that the judge's comments to jurors about Butsitsi's refusal to answer questions about the gun could have affected their verdict. The state maintains that the judge was well within his discretion.
The gun that Butsitsi used was linked to the unsolved death of Darien Richardson, a Portland woman who was shot during a home invasion a month before Mulongo's slaying. Richardson died weeks after being shot, from a blood clot caused by her injury.
Chief Justice Leigh Saufley questioned how Butsitsi could opt to testify, but not when it came to who gave him the gun.
"He told the jury his story and then he said, 'I'm not going to tell you this key part because I have a right to remain silent,'" she said. "Can he actually split hairs that carefully in a trial of this type?"
During his trial, Butsitsi testified that he and Mulongo had been close but their relationship soured and Mulongo had assaulted him a number of times, including on the day of the shooting.
Butsitsi said he decided that day to move out and got a gun to protect himself while he retrieved his belongings.
Butsitsi shot Mulongo six times at close range in the entryway of the building. He testified that he fired when he saw a gun in Mulongo's hand. No gun was found on Mulongo, but a glass pipe was in his left hand.
Butsitsi testified that he got a gun about 20 minutes before the shooting. He said he had latex gloves in his car's glove compartment that he used for cleaning and that he wore on the night of the shooting because he didn't want to leave fingerprints or DNA on the gun.
The trial judge, Superior Court Justice Andrew Horton, told Butsitsi he had to answer questions about the gun. Butsitsi refused, saying he didn't want to endanger other people.
Horton told the jurors that while they were out of the courtroom, a discussion about the gun had taken place. He said Butsitsi was refusing to answer any questions about the circumstances under which he got the gun even though he had been ordered to respond.
Assistant Attorney General Donald Macomber argued that questions about the gun's origins were relevant and that Butsitsi took the stand knowing he would be cross-examined.
Macomber said the U.S. Supreme Court ruled that the state has a right to ask any relevant questions when a defendant takes the stand. He also said that the U.S. Supreme Court and other courts have found that the entire direct testimony of a defendant can be stricken when a defendant refuses to answer relevant questions.
"So the trial court is well within its rights to take the more limited option of just telling the jury that he refused to answer the question despite a court order," Macomber said.
Wednesday's oral arguments were held at Brunswick High School. The visit was part of the high court's annual trips to high schools around Maine.
The justices did not indicate when they would rule on the case.
Staff Writer Ann S. Kim can be contacted at 791-6383 or at: