Judge: Accused murderer's request for venue change is prematureCourt defers decision on moving trial location until jury selection
Belfast — The court has opted to hold off on a motion from a Belfast man accused of fatally shooting a 55-year-old woman and wounding her 22-year-old son at a Waldo Avenue home last summer, pending the outcome of jury selection.
In a motion for a change of venue dated Jan. 14, Philip Cohen, defense attorney for 44-year-old Todd Gilday of Belfast, stated his client is doubtful he will receive a fair trial in Waldo County.
"Defendant contends that he cannot receive a fair trial due to the substantial publicity surrounding this alleged event," stated the motion.
Attached to Cohen's motion were copies of articles from media outlets throughout the state detailing the case.
Assistant Attorney General Leane Zainea objected to the motion in her memorandum of opposition, dated Feb. 13.
"The Law Court has stated that where change of venue is contemplated prior to jury voir dire, the standard is whether 'the publicity surrounding the case is of such an extensive and invidious nature as to constitute prejudice per se,’" stated Zainea in the memorandum. " ... There has been no evidentiary hearing in this matter that suggests that the publicity approaches that level."
Zainea additionally stated that normal procedure, without such a showing prior to trail, is to defer a motion for change of venue until the completion of voir dire in order to give the presiding justice the opportunity to determine the extent of any prejudice that may exist.
In an order dated Feb. 20, Justice Ann Murray concurred with the state.
"The defendant's motion fails to establish a sufficient basis upon which the court could grant a change of venue prior to any attempt to select a fair and impartial jury through the normal voir dire process. Accordingly, the court shall defer any formal or final action on the defendant's pending motion until after an initial jury selection attempt," stated the order.
At a trial tentatively scheduled for August, the state will try Gilday on charges of intentional or knowing murder, attempted murder with a firearm and elevated aggravated assault with a firearm. The charges stem from an Aug. 28 incident in which Gilday allegedly forced his way into the 162 Waldo Ave. home of Mathew Day, 22, of Belfast. Gilday shot and killed Day's mother, 55-year-old Lynn Arsenault, after shooting and wounding Day.
Gilday then left the scene, and police caught up with him early the next morning as he was attempting to check himself in at PenBay Medical Center in Rockport. Court records show he told the hospital staff that he was a drug addict and had just had "a very bad night." Gilday also claimed to have used "a large amount of opiates" the night before.
Police arrested Gilday in Rockport, and he has since remained at Two Bridges Regional Jail in Wiscasset awaiting a Harnish hearing, at which time a judge will determine if bail will be set and if it is, what conditions will be in place while Gilday is free on bail.
The court has yet to set a date for that hearing.
An affidavit from Maine State Police Detective Dean Jackson dated Oct. 29 detailed interviews he conducted with several people connected to the case, including Jonathan Riley, who was in the Waldo Avenue residence on the night of the shootings.
According to the affidavit, Riley told Jackson he was friends with Day and he was at the home visiting on the night of the incident. Riley stated he also knew Gilday from past contact.
Riley told the detective Day was receiving text messages from Gilday earlier in the day.
"Mathew told [Jonathan] Riley that Todd Gilday was upset because Mathew's girlfriend's mother, Linda Linscott, had been at Mathew's house earlier that day," stated Jackson's affidavit. "According to [Jonathan] Riley, Mathew [Day] told him that Todd [Gilday] was coming to Mathew's house."
Riley told police Arsenault was asleep inside the home at the time of that discussion.
A short time later, Riley told police he and Day heard a car door shut and they went to the back door — the common entryway for the house — and observed Gilday "with a gun that had a sling attached to it." Riley stated to Jackson that he felt they were in danger and he ran to the living room.
" ... [A]s he got to the living room he heard a gunshot and then saw glass fly everywhere," stated the affidavit.
Riley stated he got behind the couch, and according to the affidavit, he witnessed Day approach the couch and then saw Gilday shoot Day.
"Riley then heard Mathew's mother, Lynn Arsenault, scream. Riley looked over the top of the couch and observed Todd Gilday shoot Lynn Arsenault," stated the affidavit.
Riley told Jackson he then heard Day pleading with Gilday not to kill them, to which Riley said Gilday responded, "I am going to kill everyone." Riley said Day kept telling Gilday there was no one else in the home.
"Gilday appeared to be searching the house and Riley was in fear that he was going to be shot as well," stated Jackson.
Gilday left the house a short time later, and Riley called 911.
According to the affidavit, Day's girlfriend, Misty Linscott, described Gilday as a friend that helped her with transportation, and Day said he met Gilday through Linscott, and that the two had obtained drugs for one another.
Court records stated Gilday was upset because he thought Linda Linscott was trying to help the state take Misty Linscott's children away from her. The affidavit also stated Gilday believed Linda Linscott was having an affair with Day while her daughter was serving her jail sentence.
Both Day and Linscott told police, according to court records, that Gilday and Linscott did not have an intimate relationship, but both also described Gilday as "a little strange" and "a bit odd at times" because they said he routinely stared at women and made inappropriate comments.
In October Gilday appeared at Waldo County Superior Court and pleaded not guilty to the charges by reason of insanity. In the days prior to his appearance in the Waldo County courthouse, a Knox County grand jury indicted Gilday on the charges.