The twisting case of Damion Butterfield, who is accused of killing a man in Portland in April 2022, has taken one more late turn: After taking a shocking plea deal moments before a Cumberland County jury was to read its verdict in December, Butterfield is now asking the judge to throw out his guilty plea and declare a mistrial.

“We feel that what had been a very fair trial process was all negated at the very final hour,” said Butterfield’s defense attorney, James Howaniec, who argued that Justice MaryGay Kennedy had erred by telling the jury that his client could be found guilty of murder even if he was only an accomplice to the gunman.

“She is the most fair justice I have ever litigated cases in front of. But in this case there was a big, big mistake that was made,” Howaniec said in a phone interview Thursday afternoon.

Because Butterfield has yet to be sentenced, Maine law allows him to move to withdraw the plea.

Butterfield, 24, was one of four men charged in connection with the death of Derald “Darry” Coffin and shooting of Annabelle Hartnett on April 26, 2022.

Throughout most of the trial, prosecutors consistently argued Butterfield was the man who pulled the trigger. The other three men, who are in their mid-40s, were charged with felony murder, a lesser charge that indicates they did not intend to kill anyone but were committing a felony that directly or indirectly led to someone being killed.

For that reason, Howaniec said that applying the “accomplice liability theory” – which says someone can be found guilty of murder even if they’re only an accomplice – was nonsensical. How, he asked, could the state say Butterfield was an accomplice to another shooter when prosecutors contended that he was the one holding the gun and hadn’t charged anyone else with firing the fatal bullets?

“We think there’s absolutely no evidence that was generated that Damion was an accomplice,” he said. “And the judge agreed with us, not once, but twice. And then for some reason, she changed her mind.”

In a 16-page memo filed on Jan. 29, Howaniec argued it was unfair for Kennedy to agree at the last minute to provide the jury with instructions about accomplice liability because the defense did not have an adequate opportunity to address the theory.

Just two days before closing statements, Assistant Attorney General Leanne Robbin, who prosecuted the case, and Kennedy appeared to agree that instructions on accomplice liability would not be necessary based on the facts of the case.

“I hadn’t heard accomplice in this,” Kennedy said during a discussion about potential jury instructions on Dec. 12, according to a section of the court transcript included in Howaniec’s memo.

“No, no,” Robbin said, in apparent agreement.

But two days later, Robbin pushed Kennedy to include details about accomplice theory with her jury instructions, Howaniec said. The justice seemed initially unconvinced, he said, so her ultimate decision blindsided him. He said the ruling, which came just before 7 p.m. on the evening before closing statements, left him with no time to explain to the jury why they should not find Butterfield guilty as an accomplice.

For reasons Howaniec declined to speculate about, jurors appeared to be taken with the accomplice liability theory. Over the course of their three days of deliberation, the jury sent several notes to the court asking to clarify the complicated instructions. By the last of these notes, Howaniec said, it became clear to both him and his client that the jury was going to find Butterfield guilty based on accomplice liability.

Jurors had just announced they had reached a verdict when Butterfield made the sudden decision to accept a plea deal that would send him to prison for 35 years.

On Jan. 1, the defense filed two motions: one to withdraw Butterfield’s guilty plea, and one for a new trial.

Prosecutors will file a response to the defense’s motions in the next two months before the sides come together to argue the issue on April 25, Howaniec said. A spokesperson for the attorney general’s office declined to comment on the filings Thursday.

If the judge denies the motions, Butterfield will face sentencing. As part of his plea deal, he waived his right to appeal the case.

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