PORTLAND, Maine — The attorney representing a man serving a life sentence for the murder of a 92-year-old Waterville resident during a burglary has asked the Maine Supreme Judicial Court to end prosecutors’ practice of charging defendants with two different kinds of murder — intentional or knowing and depraved indifference.
Roland L. Cummings , now 47, is serving a life sentence at the Maine State Prison in Warren in connection with the stabbing death of Aurele Fecteau of Waterville on May 20, 2014. Cummings was convicted by a Kennebec County jury in November 2015 of murder, burglary and theft.
His appellate attorney, Tina Nadeau of Portland, argued in her brief that the double charging confuses juries that are not required to find unanimously whether a defendant is guilty of one type of murder or the other. She urged the court to force prosecutors to charge one or the other but not both kinds of murder. She also argued there was insufficient evidence to convict Cummings of either murder charge.
The Maine attorney general’s office argued in its brief that the evidence was sufficient to sustain Cummings’ murder conviction on either theory, so prosecutors were not required to pick one or the other. Assistant Attorney General Donald Macomber also said that the Maine court ruled in 1983 that “prosecutors did not have to elect which theory to present to a jury in murder cases so long as they ethically believe there is sufficient evidence to prove either theory beyond a reasonable doubt.”
The justices are scheduled to hear oral arguments in the case at 10:40 a.m. Friday at the Cumberland County Courthouse in Portland.
Nadeau said in her brief that the only evidence that connected Cummings to the crime scene was his DNA recovered from Aurele’s pant’s pockets. No weapons, fiber, hairs or blood were found.
“The paucity of the evidence presented in this case is stunning and does not rise to the level of proof beyond a reasonable doubt that Cummings intentionally or knowingly killed Aurele — no rational juror could believe otherwise,” Nadeau said in her brief.
Macomber countered in his brief that the state presented “abundant circumstantial evidence” that Cummings stabbed Fecteau 16 times as he lay in bed.
“ The fact that [Cummings] inflicted so many stab wounds, including to vital organs, strongly evinces the fact that it was his conscious object to cause Aurele’s death [the definition of intentional or knowing murder],” the prosecutor said.
The jury also could have concluded that the way the crime was committed “demonstrated an almost total lack of concern or appreciation for the value of human life on the part of Cummings [the definition of depraved indifference murder].”
“In other words, viewing this evidence in the proper light, the jury rationally could have found both that Roland Cummings intentionally or knowingly killed Aurele Fecteau, and that Cummings’ conduct manifested a depraved indifference to the value of human life and in fact caused the death of Mr. Fecteau,” Macomber concluded in his brief.
Nadeau said the state’s high court has ruled previously that “depraved indifference murder should be limited to the ‘very few’ instances where conduct is less than intentional but still constitutes conduct so heinous, so blameworthy as to support the imposition of the severest charge — murder.”
As examples, she cited “playing Russian roulette, viciously beating children and denying them medical attention, shooting a rifle into a house known to be occupied by children and adults, and torturing a restrained person with various implements over hours.”
Nadeau asked the court to “establish that the state must elect to pursue either intentional or knowing murder or depraved indifference murder — but not both — prior to the reading of the indictment at trial,” she concluded in her final brief. “This court should instruct and remind trial courts to not allow a depraved indifference instruction to go to the jury unless there is sufficient and appropriate evidence to support such a charge.”
Nadeau and Macomber also disagreed on what should happen in Cummings’ case if the justices rule that prosecutors must pick one charge over the other. Nadeau argued that her client’s sentence should be vacated and he should be set free. Macomber said that he should be retried.
There is no timetable under which the justices must issue a decision.