Jan. 19—PORTLAND — The state's highest court Thursday upheld two murder convictions of a Peru man stemming from shootings of his former girlfriend and her current boyfriend, but vacated his sentences for those crimes.
Mark D. Penley, 53, was convicted in October 2021 after a nine-day trial of killing his ex-girlfriend, Heather Bickford, 31, of Canton, as well as her boyfriend, Dana Hill, 31, of Paris, at Hill's Market Square apartment on Jan. 1, 2019.
Hill was the father of their 8-year-old and 3-month-old daughters who had been in the apartment when authorities discovered the bodies of Bickford and Hill.
A judge sentenced Penley in November 2021 to two life sentences.
He appealed his convictions and sentences to the Maine Supreme Judicial Court, which heard oral arguments in the case in October 2022.
Representing Penley, Rory McNamara challenged the fact that the judge allowed evidence at trial that Bickford was planning to seek a court order of protection from abuse against Penley in the days before the victims' deaths.
Four witnesses testified that Bickford was so afraid of Penley that she had pursued the court order.
Maine Superior Court Justice Thomas Warren, who presided over the trial, admitted that information into evidence "for its truth to prove that Heather was scared of defendant," McNamara had said.
McNamara also argued the judge failed to intervene during the prosecutor's closing argument at the suggestion that Penley had a burden of proof.
At criminal trials, the burden lies with the prosecution to prove guilt beyond a reasonable doubt.
At closing arguments, the defense suggested prosecutors mishandled and manipulated Facebook phone location tracking data, which prosecutors had used to show Penley's geographic location on the day Bickford and Hill were killed.
Prosecutors responded in closing argument that the defense didn't back up its claim with evidence.
McNamara also argued that Warren, in sentencing Penley, improperly considered the domestic violence aspect of the crime during two separate steps of Maine's three-step sentencing process.
In the first step, the judge is tasked with setting a basic sentence for the crime by comparing the way it was committed in other similar cases for that type of crime. In the second step, the judge is supposed to consider aggravating and mitigating factors, including a defendant's criminal history.
Assistant Attorney General Donald Macomber had argued that the trial judge had factored in only one of the sentencing analysis steps the domestic violence nature of Penley's relationship with Bickford.
In its opinion, published Thursday, the high court wrote: "Any history of domestic violence, apart from the commission of the crime itself, is properly considered only in step two. ... The court's analysis here cannot be viewed as harmless error because it may have affected the court's determination of the basic term of imprisonment at life in prison."
For that reason, the high court vacated Penley's sentences and sent the case back to the trial judge for resentencing.
Penley was portrayed at trial as a jealous ex-boyfriend who threatened Bickford with Hill's death if she dated him. She'd had a child with Hill while she was living with Penley.
Bickford had asked a local police officer to keep an eye out for Penley's vehicle because she had been afraid of him.
Video surveillance outside Hill's apartment in Market Square in Paris, the scene of the crime, showed a figure approaching the stairs to the apartment shortly before 6 p.m., then leaving half an hour later on the night the couple was killed.
Penley's cellphone data showed his movements that day.
Footwear shown in the video and from footprint impressions in snow outside the apartment were the same style as a pair of boots belonging to Penley, one of which had Bickford's blood on it.
Bullets and shell casings recovered from the gun found under Bickford's hand at the crime scene added up to more than that gun would hold, suggesting the shooter must have reloaded with another clip, prosecutors said.
Evidence presented at trial included threats in the form of Facebook voice messages, such as Penley telling Bickford: "You're gonna be with me or you're gonna be with no one."
A medical examiner's report showed Hill had been shot in the shoulder, hand and top of the head.
Bickford had been shot five times, including several times in the head and face.
Other evidence presented at trial included Penley's bloody fingerprint found on Bickford's cellphone in Hill's apartment; the blood belonged to Bickford.
A search of Penley's car, parked at the scene, contained a box of ammunition that matched the size, style and manufacturer of the ammo found in the apartment.
A search of Penley's home turned up an empty box for the same model and serial number .22-caliber Ruger found at the crime scene.
The same ammunition found at the crime scene and in Penley's car was also found in his home.
And a magazine clip with Bickford's blood on it was found in a kitchen cabinet at Penley's home.
Penley's DNA was found on the magazine release lever on the gun recovered at the crime scene.
The defense argued the murderer could have been one of several potential suspects investigators had ignored during their investigation of who killed the couple because investigators had concluded early on that Penley had committed the crimes.
A jury of seven women and five men in Oxford County Superior Court convicted Penley after 2 1/2 hours of deliberations.