AUGUSTA — A Massachusetts man serving a 30-year sentence for sexually assaulting a 9-year-old girl in Auburn argued before the state’s highest court Tuesday that he should be given a new trial because of mistakes made by the trial judge.

David. P. Hunt Jr. Androscoggin County Jail photo

David P. Hunt Jr., 41, of Taunton, Massachusetts,was convicted after a February 2022 trial in Androscoggin County Superior Court in Auburn of two counts of gross sexual assault and two counts of unlawful sexual contact, all felonies.

Through his attorney, Verne Paradie of Lewiston, Hunt argued that the Maine Supreme Judicial Court should vacate his conviction because Justice Harold Stewart II allowed at trial the testimony of two unqualified witnesses to make statements only an expert witness should be allowed to make.

Paradie also argued that Stewart should have declared a mistrial after, Hunt alleged, a prosecutor at trial had committed misconduct by improperly vouching for the credibility of the victim and suggesting to the jury that the defendant had a burden to show the victim’s motive for lying and making false accusations under oath.

Paradie quoted at Tuesday’s hearing from the trial transcript a statement he attributed to Deputy District Attorney Katherine Bozeman while she was addressing the jury.

“Now, let’s add trauma to that. We all know it affects memory, it affects recall, it affects things that might trigger a victim. It affects what things might be popping in the front of that person’s mind at the time they are talking. And it affects things that might slip away or be less clear over time depending on who they are talking to and what is fresh and triggering in the present moment,” Paradie claimed to be quoting Bozeman telling the jury at Hunt’s trial.

Paradie told the state’s top judges Tuesday that Bozeman shouldn’t have been permitted to make those statements to the jury because no evidence had been presented at the trial to support them.

“There was absolutely no expert witness testimony regarding that,” he said.

A police officer had started to offer testimony at trial about psychological effects of trauma, but the judge had sustained an objection that struck that testimony from the record, Paradie said.

Justices pointed out that Paradie hadn’t objected to the statements Bozeman offered in her closing argument and were properly allowed in evidence and that the trial judge had stricken from record an officer’s testimony about the scientific explanation of the effects that trauma have on a person’s body.

Paradie also took issue with Bozeman’s statement to the jury at the end of the trial when she said the victim had no reason to lie about what she said the defendant did to her.

Quoting again from the trial transcript, Paradie read aloud: “She has no reason to do this if these things weren’t true. She gains nothing and there is a significant cost to her privacy to her level of comfort and psychologically to her being here. And I think you all saw that. It was not easy for her. Why on earth would she put herself through that if these things didn’t happen to her?”

Paradie told members of the high court Tuesday: “I can’t think of any more egregious way of vouching for the credibility of a witness.”

Associate Justice Joseph Jabar reminded Paradie of the trial judge’s instruction to the jury that they may consider in determining a witness’ credibility any given witness’ motive or lack of motive to lie.

“So, why isn’t that proper argument to argue she had no motive to lie?” Jabar asked.

Paradie said Bozeman’s statement placed a burden on the defense to show the victim had a motive to lie.

“That’s a pretty far-fetched step to say that because the prosecutor is arguing that (the victim) had no motive to lie, which is something you can consider, that the jury is to infer from that, ‘Well, jeez, I guess he’s commenting on the fact that the defendant didn’t testify,'” Jabar said.

Active-Retired Justice Robert Clifford said: “Didn’t the trial judge, though, instruct the jury properly on more than one occasion as to the burden of proof, that it was on the state and not on the defendant?”

Paradie agreed that Stewart had gone out of his way often to make that clear to the jury.

Associate Justice Andrew Mead went further, recalling the trial’s judge’s instruction to the jury, that it may consider whether there has been evidence or lack of evidence of a witness to exaggerate or to lie.

“So, why is it not proper for the attorney simply saying, ‘Members of the jury, there was no evidence of a motive to lie.’ Not vouching for the truth, but saying there’s no evidence here of a motive to lie. What’s wrong with that?” Mead asked.

Bozeman told the justices Tuesday that her repeated statement to the jury that it should find Hunt guilty “was made in the same breath as the state first suggesting that, if the jurors believed (the victim,) then (the jury) had all the evidence to find him guilty and in the context of the closing in its entirety was a proper suggestion based on what the evidence at trial supported. The trial court specifically found no error in this argument.”

Regarding Hunt’s argument that testimony given by two unqualified witnesses shouldn’t been allowed at trial, Bozeman said the trial judge had considered before trial what testimony a police detective and nurse should be allowed to give.

“This was properly admitted lay witness testimony that was carefully limited by the trial court,” Bozeman said.

A police officer had started to offer testimony at trial about psychological effects of trauma, but the judge had sustained an objection that struck that testimony from the record, Paradie said.

Hunt’s appeal also questioned the trial judge’s requirement that witnesses and trial participants wear masks during the pandemic, an action that Hunt said deprived him of his right to adequately confront witnesses.

But, after several justices pointed out that mask requirements during the pandemic had been upheld by several courts, Paradie conceded the matter might only be upheld if it were to be argued before a higher federal court.

Hunt’s victim said at his sentencing that his abuse of her had started with him inflicting painful military-style punishment that soon escalated to sexual assault.

She said he threatened to hurt her mother, whom he had beaten in front of her, if she told anyone about the abuse. He also had shown the girl a gun and let her hold it “and put that fear in my eyes,” she said.

For those reasons, she hadn’t told anyone, for years.

Eventually, she told a friend, who told an adult, who told police who opened a criminal investigation in 2012.

After serving his sentence, Hunt will be on supervised release for the rest of his life, during which time he must register as a sex offender and have no contact with the victim or anyone under the age of 18, except for his biological children, with supervision from a parent and corrections officials.