ROCKLAND, Maine — A 45-year-old Rockland man will spend another 27 months in prison for violating probation by allegedly breaking into an apartment — an incident that led to the tenant shooting him.
But the tenant — Harvey Lembo — did not testify at Tuesday’s probation revocation hearing out of concern that he might incriminate himself and face potential charges of his own in connection with the shooting of the alleged intruder, Christopher Wildhaber, on Aug. 31, 2015.
Justice Paul Mathews on Tuesday found that Wildhaber had violated all of the conditions of his probation with the most significant being that he not commit a new crime.
The judge said he did not find believable Wildhaber’s explanation that he had simply walked into the wrong apartment because he was intoxicated.
Wildhaber still faces and has pleaded not guilty to charges of burglary, theft of medication, attempted theft and three counts of refusing to submit to arrest in connection with the incident at Lembo’s apartment.
Wildhaber has been held at the Knox County Jail in Rockland since his arrest on the night of the shooting. A trial date on those charges has not been set.
The standard of proof and rules of evidence are more relaxed in a probation revocation hearing compared to a criminal trial on new charges.
During the probation revocation hearing, Wildhaber testified that he was intoxicated and was returning to the apartment of a friend next to Lembo’s and simply went into the wrong place.
“I heard a pop and felt a burn,” Wildhaber said.
He denied talking to Lembo and said he ran out of the apartment but recalls little more.
Assistant District Attorney Christopher Fernald grilled Wildhaber and accused the defendant of having selective memory, recalling items that benefit him but forgetting other details.
Defense attorney William Pagnano objected to the use of interviews that police and the media conducted with Lembo as well as a recording of the 911 call the tenant made that night. The defense attorney said that without Lembo testifying, he could not cross examine him about the incident.
Wildhaber was on probation at the time for a felony domestic violence assault conviction. He had been sentenced to three years in jail with all but nine months suspended. He also had been placed on probation with the conditions that he commit no additional crimes, report regularly to his probation officer, abstain from alcohol and illegal drugs, undergo substance abuse counseling and attend a batterer’s intervention program.
Wildhaber’s probation officer, Joyce Williams, testified Tuesday that Wildhaber had failed to report to her and failed to comply with the other conditions.
On the 911 tape played during the hearing, the 68-year-old Lembo, who uses a wheelchair, is heard telling the dispatcher that he has a gun pointed at a man who he found had broken into his home at the Park Place Apartments in Rockland. He told the dispatcher that he told the man to sit still or he would shoot him. The dispatcher is heard telling Lembo not to do that.
She then loses contact with Lembo for about a minute before he comes back on the phone to say he shot the man and that there is blood everywhere in the apartment.
In subsequent interviews with police and the media, Lembo said he shot Wildhaber as the man was trying to run away. Lembo told police that Wildhaber had told him that he was there to steal his drugs like other people had done. Lembo had been the victim of five prior burglaries.
Mathews said he found the statement by Lembo to be extremely persuasive in convincing him that Wildhaber had not simply gone to the wrong apartment.
District Attorney Geoffrey Rushlau said Tuesday that he has not yet ruled out charging Lembo in connection with the shooting, under a state law that outlines when it is permissible to use deadly force in defense of premises.
Attorney Brett Gabor of Portland, who is a lawyer with the firm that represents Lembo on a potential criminal charge, was in attendance at Wildhaber’s probation revocation hearing. He referred questions about whether Lembo would testify at the criminal trial of Wildhaber to attorney David Weyrens who was not available for comment late Tuesday.
Rockland officers testified that when they responded to Lembo’s 911 call, they followed the trail of blood from the rear parking lot of the apartment complex into the woods and heard noises. They called out to the man to surrender and he yelled back obscenities, saying he would not. Officers eventually found the suspect and subdued him, later identifying him as Wildhaber.
During Tuesday’s hearing, Fernald also played a taped interview of Wildhaber that was conducted by Rockland police Detective Russell Thompson at Pen Bay Medical Center in Rockport where the shooting victim was taken for treatment after being apprehended. In the interview, Wildhaber said some guy shot him on the street. When Thompson asked Wildhaber how his blood got in Lembo’s apartment, he said he had been bleeding from his feet.
Thompson challenged Wildhaber, however, pointing out that there was blood splatter throughout the apartment, and at that point, Wildhaber said he had nothing more to say.
Wildhaber also commented on how he felt like a hot iron was in his shoulder from the gunshot wound. The interview was done before Wildhaber had received medical treatment.
Pagnano argued that his client was intoxicated and was in so much pain from being shot that he could not recall events clearly.
After the shooting, Lembo received a notification from Stanford Management LLC of Portland, which manages the apartment complex, saying he was in violation of house rules by having a gun on the premises and that an eviction process would be started if he did not comply.
Lembo filed a lawsuit against both the property’s owner, Park Place Associates of Rockland, and the management company, claiming they have violated his U.S. and state constitutional rights to own a gun. Justice William Stokes ruled against Lembo in that case, but gun rights advocates supporting Lembo have appealed the ruling to the Maine Supreme Judicial Court.
In response to some of the legal wrangling over gun and property rights that arose after the shooting, the Maine Legislature also passed legislation that prevents apartment owners who receive government subsidies from prohibiting their tenants owning guns. The law exempts owner-occupied buildings of four or fewer units.