AUGUSTA — A judge on Wednesday refused to allow the most damning witness against Raymond Bellavance Jr. to return to the stand as part of the defense’s attempt for a new trial in the topless coffee shop arson case.

Bellavance, 50, of Winthrop, was convicted in late December of two counts of arson in connection with setting the fire that destroyed the Grand View Topless Coffee Shop in Vassalboro.

Bellavance is scheduled to undergo a psychological evaluation by the State Forensic Service on Wednesday. Murphy set March 2 as the new deadline for attorneys to submit their sentencing recommendations to the court.

The controversial coffee shop, which featured topless waitresses serving coffee and doughnuts in a former motel on Route 3, burned June 3, 2009. The seven people living in the motel portion of the building, including owner Donald Crabtree, escaped without injury.

During the trial in Kennebec County Superior Court, Thomas Mulkern, 26, of Gardiner, testified that he helped Bellavance carry gasoline to the coffee shop and watched as Bellavance set it on fire. The two then fled through the woods, Mulkern testified.

Mulkern was expected to testify as a defense witness until several days into the trial. Instead, he offered the damning testimony against Bellavance, and in exchange was granted immunity from prosecution for his role in the arson and for illegal drug use.

Mulkern was nearing the end of a drug rehabilitation program in jail and was released just before his trial testimony on Dec. 23.

He returned to the witness stand Dec. 28. A few days later, he was arrested on charges that he stole money and fled from Waterville police and had to be jolted with a stun gun when he resisted arrest. Mulkern later attempted to strangle himself with a bed sheet in his jail cell, police said.

“The ring of truthfulness, and his alleged turnaround, really gave him (Mulkern) a great deal of credibility in front of the jury that he would not have had today,” said Andrews Campbell, Bellavance’s defense attorney.

Campbell told Justice Michaela Murphy on Wednesday that he wanted to question Mulkern again in light of his arrest.

“I will be asking whether he stands by testimony. Is he rehabilitated; is he using drugs?” Campbell said in court.

Deputy District Attorney Alan Kelley objected to having Mulkern testify at Wednesday’s hearing.

“The state’s position is very simple: The trial is over,” Kelley said. “The fact somebody does something bad or is alleged to have done something bad afterward is not a basis for a new trial.”

Kelley also said the defense apparently heard a rumor that Mulkern had recanted his testimony. Kelley asked, rhetorically, whether every witness should be brought back in and asked whether they stand by their testimony.

Campbell said that the jury would not have convicted Bellavance without Mulkern’s unexpected testimony. He said the state would have had to rely more heavily on the theory that Bellavance set the fire because he was jealous about his sometime-girlfriend, Krista MacIntyre, who worked as a topless waitress at the shop and had a sexual relationship with Crabtree, the owner.

Kelley disagreed, saying the evidence from Mulkern corroborated all the other evidence the prosecution presented. Kelley noted that several witnesses testified they heard Bellavance threaten to burn down the shop, while another woman, Emma Wood, testified that she drove Bellavance there and others heard him confess.

“Any one of those — if the jury believed them — would have been sufficient,” Kelley told the judge.

In writing, Campbell listed three grounds on which he believed Bellavance should get a new trial or an acquittal:

* Alleged violations, including a state fire marshal telling Mulkern that he was next in line for prosecution in the coffee shop arson; a Vassalboro Fire Department report with the time of the fire listed earlier than that of the state communications center; and investigator’s notes that Campbell says were not provided to the defense;

* Denial of a fair trial allegedly because a witness — after consulting with a court-appointed attorney — invoked his Fifth Amendment right against testifying. Campbell said the man would have testified that Bellavance was at his daughter’s residence all night, not setting the fire. Campbell also objected to the immunity granted to Mulkern and Wood, who testified she drove the two men and two gasoline containers to the coffee shop the night of the fire. He also said another witness was improperly excluded.

* The potential that someone provided Mulkern — who Campbell says reportedly has attempted suicide a second time while in jail — with the information to which he testified at trial.

After hearing the arguments from Campbell and Kelley, the judge ordered Mulkern brought over from the Kennebec County jail next door to speak with his attorney, Lisa Whittier, outside the courtroom. Shortly afterward, Whittier told the judge that Mulkern would invoke his Fifth Amendment right against testifying, and Murphy denied the defense’s motion.

Murphy said she would issue a written decision later this month on the motion for a new trial.

Betty Adams — 621-5631

[email protected]


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