Wednesday, December 4, 2013
PORTLAND — Eric Gwaro, the Scarborough firefighter accused of the attempted murder of a woman who suffered permanent injuries in a beating last summer, will take the stand in his own defense Friday.
Eric Gwaro, 28, who is accused of elevated aggravated assault and attempted murder, looks to friends in the gallery while attorneys confer with the judge, in this Tuesday photo.
Gordon Chibroski / Staff Photographer
Gwaro, 28, is accused of beating and stomping Sherri York on Cumberland Avenue in Portland’s east end in the early hours of Aug. 30, 2012, and then carrying her while she was unconscious to a nearby alley to hide her body after the commotion woke up neighbors.
Gwaro told Justice Joyce Wheeler he had decided to testify after briefly consulting with his attorneys.
The prosecution called its 18th and final witness on Thursday. The prosecutor, Deputy District Attorney Megan Elam, had named up to 31 potential witnesses on an early list, but rested her case without calling the remainder, including York, who has not attended the trial.
Gwaro’s wife, Jennifer McDonnell, testified on his behalf Thursday afternoon, saying he was intoxicated when she talked to him on the phone around 2 a.m., about an hour before the attack and Gwaro’s subsequent arrest.
“Normally he’s extremely polite and caring, often funny and lighthearted,” McDonnell said. “When he’s intoxicated, he’s much less polite, is short and says things he would not normally say if he was sober.”
McDonnell said Gwaro has a problem with binge drinking.
“He would drink excessively and not know when to stop,” she said.
McDonnell said she could tell on the phone that night that he was intoxicated because his speech was slurred and he was argumentative about not being home.
McDonnell and Gwaro, who wiped away tears at one point during her testimony, have two young sons.
After the prosecution rested its case, Gwaro’s attorney, Daniel Lilley, made a motion to acquit him of two of the four charges, attempted murder and elevated aggravated assault. Both charges are Class A felonies punishable by up to 30 years in prison.
Lilley has conceded from the start that Gwaro accepts responsibility for the two lesser charges: aggravated assault, a Class B felony punishable by up to 10 years in prison, and violation of conditions of release for staying out beyond curfew while out on bail, a misdemeanor.
Lilley said Gwaro struck York after she had gotten into his vehicle and propositioned him, offering sex for money and then stealing money that he kept in his vehicle.
Lilley contended that prosecutors had not proven the more serious charges, because the legal language in those charges is specific.
The criteria for a conviction on the elevated aggravated assault charge requires the use of a dangerous weapon to cause serious bodily injury.
“Mr. Gwaro used his fists to cause serious injury to this woman,” Lilley said, adding that fists are not considered dangerous weapons under Maine law.
He said even if the jury believed that Gwaro had kicked York, he was only wearing canvas sneakers that night, not heavy boots.
In charging Gwaro with attempted murder, prosecutors alleged he tried to kill her by kicking and stomping rather than punching, Lilley said.
Elam, the prosecutor, countered that several eyewitnesses saw the attack, including two who saw him stomp on York, and that the jury should decide.
The judge said she would issue a ruling on Lilley’s motion Friday.
Attorneys are expected to make their closing arguments after Gwaro’s testimony.
Earlier Thursday, a private investigator testified that one of two key prosecution witnesses told him a different story than he did in court.
Joseph Thornton, a private investigator hired by Gwaro’s attorneys, said he interviewed Clifford Hethcoat last year and that Hethcoat said he saw the Aug. 30, 2012, attack from his apartment window on Cumberland Avenue and watched the attacker punch, but not kick, the woman.
“He said he observed no kicking,” Thornton said. “He told me he couldn’t identify the person, but a dark-skinned man was punching.”
On Tuesday, however, Hethcoat testified in court he saw a black man punch and stomp on the woman multiple times, specifically saying he saw the man stomping the woman’s chest and face.
Typically in trials, the defense calls its witnesses only after the prosecution rests, but Thornton testified early due to a scheduling conflict.
Gwaro’s attorney, Daniel Lilley, has challenged Hethcoat’s testimony and that of another witness, Megan Townsend, who lived in the same Montgomery Street apartment at the time of the attack. Townsend said Wednesday that she saw the victim being kicked and punched.
Lilley had confronted Hethcoat while Hethcoat was testifying Tuesday, asking him, “You didn’t see anything, did you, sir?”
Hethcoat said on the witness stand that he “held back” when he spoke to Thornton, the private investigator, on Dec. 4, 2012.
Thornton testified that he tried to interview Townsend and her husband, Ryan Townsend, but they refused to speak with him.
“Both refused to talk to me, saying they didn’t want to help the guy I was representing,” Thornton said. “They told me they wanted to see him go away for a long time.”
Jurors were also shown a video Wednesday and Thursday that showed police interviewing Gwaro after his arrest.
In the video, Gwaro tells Portland Police Detective Scott Dunham that he wasn’t the attacker and that he was chasing the real suspect in hopes of catching the man himself.
“I was trying to be a hero,” Gwaro said, describing the man he was chasing as a black man like him, wearing identical clothing.
Lilley acknowledged to Justice Joyce Wheeler on Wednesday, while the jury was out of the courtroom, that his client was lying to police in the video.