BANGOR, Maine — It’s been six years since John “Bobby” Surles, 19, of Bangor was fatally shot during a street brawl between two rival groups of teenagers.
Zachary Carr, who was 19 when he was convicted of Surles’ murder, is now a 24-year-old inmate at Maine State Prison in Warren, serving a 35-year sentence for the crime. If he had accepted a plea deal before going to trial, he would have been convicted of manslaughter and been out of prison after seven years.
More than a year has passed since Carr asked the court to reinstate the plea deal he was offered and rejected in 2010 when he was represented by defense attorneys F. David Walker IV of Portland and co-counsel Thomas Matzilevich of Bangor, based on grounds that he had “ineffective assistance of counsel.” Carr’s current lawyer, Bangor defense attorney Hunter Tzovarras, also claims that the attorneys should have asked the judge to instruct the jury about the less serious charge of adequate provocation manslaughter.
Superior Court Justice Michaela Murphy, who presided over Carr’s weeklong murder trial in 2011, is also tasked with ruling on the post-conviction review to reinstate the plea deal. No date for her decision has been set.
Surles was shot at 6 p.m. on Jan. 27, 2010, in a fight in front of a Cumberland Street apartment in Bangor where Carr was staying with friends. Surles stumbled and fell onto the street, where he lay bleeding until an ambulance crew took him to Eastern Maine Medical Center. The dozen or so teenagers and young men involved in the fight scattered, except for one boy who stayed by Surles’ side. The young skateboarder died 28 hours later.
Carr turned himself in to police the following day. He testified during his trial that the gun was tucked into the waistband of his pants, which began to fall down when he jumped back during the fighting. He said he grabbed the gun to secure it and it accidentally went off when Surles hit him with a mop handle.
Tzovarras filed for a post-conviction hearing in 2013, claiming that Carr did not fully understand the ramifications of turning down the plea agreement offered by the state that asked him to enter a guilty plea on a manslaughter charge in exchange for a penalty of up to seven years in prison. Two post-conviction hearings were held in December 2014 and memos to the court were filed in March 2015.
At the first hearing, Jonathan Siegel of Bangor, a clinical forensic psychologist who evaluated Carr, said he found him competent to stand trial but also pointed out that Carr had several learning disabilities, including attention deficit disorder, that were exacerbated by the stress of the plea agreement hearing, where he had “10 to 15 minutes to review this settlement.”
“He was experiencing symptoms of post-traumatic stress disorder … at the time of the settlement,” Siegel told the court. “He had not slept well, he was on the verge of tears and was experiencing [nightmares].”
“He was asked to do something he was not capable of doing without assistance,” the psychologist said later.
Carr’s mother, Holly Carr of Hampden, her son’s defense attorneys and Victor Kraft, the private investigator they hired, all testified. Surles’ grandparents Allen and Mary Ann Suddy, who adopted him when he was 10, attended all of Carr’s court dates and sat behind Macomber during the two post-conviction hearings.
Whether Carr understood the plea offer and the ramifications for not taking the deal are the questions that need to be answered, Tzovarras said.
“The only thing I remember them telling me is, ‘Don’t worry about being convicted of murder,’” Carr told Murphy, referring to his lawyers and the private investigator they hired, during the first hearing. “I was always being told I could go to trial and tell my side of the story and get some weight off my chest and the worst would be manslaughter.”
Assistant Attorney General Donald W. Macomber said in his response memo that Carr is grasping at straws.
“It is easy for Petitioner Carr to engage in Monday morning quarterbacking in this proceeding to assert that he would have accepted the manslaughter offer if he had known that he could be convicted of murder after trial,” Macomber states in the post-hearing memo filed last year.
Even so, the assistant attorney general admitted that there were doubts the state would get a murder conviction.
“[It] is the only way to explain the State’s multiple manslaughter offers before trial with increasingly lower terms” of sentences (culminating in the seven-year cap offer), Macomber’s memo states.
To determine if a trial attorney’s performance is ineffective, the petitioner must prove that “there has been serious incompetency,” and that it “likely deprived the defendant of an otherwise available substantial ground of defense,” he said in his memo.
“Petitioner Carr only heard what he wanted to hear — that he would not be convicted of murder, and that his worst-case scenario if he went to trial was a manslaughter conviction,” Macomber said. “So he decided to roll the dice and go to trial so he could tell the jury his side of the story.”
Tzovarras also claimed that the lack of instructions to the jury about findings needed for a manslaughter conviction hurt his client.
“Had counsel requested an adequate provocation instruction there is a reasonable probability the jury would have convicted on manslaughter rather than murder,” the defense attorney said.
Macomber responded by saying, “A failure to request a jury instruction on a lesser included offense is presumed to be a matter of trial strategy, and, therefore, does not establish ineffective assistance of counsel.”
Macomber also said that even if Murphy does grant the petition, the state has rescinded its plea offer.
“In the unlikely event that the Court agrees that Petitioner Carr has proven that trial counsel provided bad advice at the time of the settlement conference, ordering the State to re-extend the seven-year cap offer would be an inappropriate remedy as the State made clear that that offer was to expire when the settlement conference concluded,” Macomber’s memo states.
While Carr awaits the judge’s decision, Surles’ friends and relatives have not forgotten the victim and still post on the R.I.P. John “Bobby” Surles Facebook page set up six years ago.