Nov. 2—A man who was granted a second murder trial and was convicted again is asking Maine's highest court to take yet another look at his case.
Marcus Asante was found guilty in 2018 of intentional or knowing murder in the death of Douglas Morin. He was granted another trial after the Maine Supreme Judicial Court ruled in 2020 that the jury was given the wrong instructions when considering its verdict. He was found guilty at his second trial in 2021.
When Asante's initial conviction was overturned it was the first time since 2004 that Maine's highest court had vacated a murder conviction. The court issued another rare ruling in 2021, overturning the 2020 conviction of a Limington man who was sentenced to 38 years for killing his neighbor. That case wasn't retried.
Rory McNamara, the lawyer handling Asante's appeal, is asking the court for one of two things: to either vacate Asante's conviction again and give him a third trial, or order a new sentencing.
McNamara told the court Wednesday that it should consider a new trial because the jury wasn't fully told to consider Asante's self-defense claim. McNamara also argued the judge's instructions to jurors only covered the intentional or knowing murder charge, when jurors also could have considered that Asante committed felony murder, which carries fewer penalties.
McNamara argued his client's 35-year sentence is "so disproportionate that it violates the defendant's due process rights."
The Maine Supreme Judicial Court, which sits as the Law Court when it hears appeals, has no time line to rule on the case.
Asante, of Fitchburg, Massachusetts, was charged in 2016 with killing Douglas Morin, 31, of Oakfield. Asante, a friend and a third person had arranged to meet with Morin to buy marijuana. The group got into a disagreement and prosecutors say Asante shot Morin nine times with a gun police later found at his apartment.
The trio took Morin's drugs and fled. Asante said during trial that the group didn't go there intending to rob Morin, as prosecutors argued.
After a six-day trial and a guilty verdict, the Law Court later found that the lower court wrongfully advised jurors that they could find Asante guilty of robbery for simply knowing that an accomplice was armed.
The Law Court ruled that because jurors found Asante guilty of robbery without considering all of the necessary criteria, there was a risk that their murder verdict also was delivered in error.
Jurors were given different instructions at Asante's second trial in 2021, but McNamara argued Monday that they were still not told to consider felony murder, which comes with more lenient sentencing guidelines, a maximum of 30 years with the possibility of early release. People convicted of knowing or intentional murder can be sentenced to life in prison, judges are unable to suspend any portion of their sentences and they cannot earn early release.
A judge sentenced Asante to 35 years on the more serious charge in December.
Assistant Attorney General Don Macomber, arguing against the appeal Wednesday morning, told the court that Asante is guilty of intentional murder because he pulled the trigger. Two other people charged in Morin's death pleaded guilty in 2018 to felony murder.
"We believed the overwhelming evidence that Marcus Asante was the shooter here, as opposed to the other ones who arranged it," Macomber said.
SIMILAR CASE IN 2021
Asante's case is one of two that the Maine Supreme Judicial Court recently vacated and sent back for a new trial. In September 2021, the court ordered a new trial for Bruce Akers, a Limington man who was convicted of killing a neighbor, Douglas Flint. Akers didn't get a second trial because the Supreme Judicial Court found that sheriff's officers violated Akers' constitutional rights to the point that their evidence could not be referenced in trial, prompting the state to dismiss its charge against Akers. He was released in August.
Before Asante, the last time the court overturned a homicide conviction was in 2004, when Brandon Thongsavanh got a new trial in the fatal stabbing of a Bates College student in Lewiston. The justices ruled that a reference to a profane T-shirt Thongsavanh was wearing on the night of the killing may have prejudiced the jury.
He was convicted a second time and received the same sentence, 58 years in prison, for the death of Morgan McDuffee, the captain of the school's lacrosse team.