AUGUSTA — An Augusta man sentenced to an initial 18 years in prison for multiple drug trafficking convictions asked the state supreme court Wednesday to overturn his conviction partly because he believes police tricked him into confessing to the crime.

Franklin F. Arbour Jr., 40, who is now serving the 18-year unsuspended portion of a 25-year prison term, wants the Maine Supreme Judicial Court to overturn that conviction as well as rulings made prior to and during his trial last summer in Augusta.

On Wednesday, Arbour’s attorney, Luann Calcagni, focused on rulings that allowed jurors to hear statements Arbour made at a police station after being told that his girlfriend was facing serious felony charges in connection with the drugs police found at Arbour’s home.

Associate Justice Thomas Humphrey asked whether that could be considered a psychological ploy on the part of the police officer.

This part of the appeal stems from a July 2015 decision by Judge Evert Fowle to deny a pretrial motion to suppress statements Arbour made at the Augusta police station shortly after a raid at his home.

Angela (Angie) Sousa, Arbour’s girlfriend, had been at Arbour’s home when police arrived to conduct the search late that afternoon. When Arbour got home at 6 p.m., he told a detective, “Go ahead and arrest me now. My girlfriend had nothing to do with this.” Arbour then said he did not want to talk to police.

Once Arbour was at the Augusta Police Department, he was told Sousa had been arrested.

Arbour said, “She had nothing to do with it. It’s all me.”

After being read his rights, Arbour then refused to talk further to police.

Sousa, 34, was indicted on six drug charges stemming from that police raid and later pleaded guilty to a felony marijuana cultivation charge. She was placed on deferred disposition for a year and 12 months later withdrew that plea. She then pleaded guilty to a seventh charge, a misdemeanor obstructing government administration in connection with the Sept. 17, 2014, raid and was sentenced to serve 30 days in jail.

Arbour, through his attorney, later maintained that his statement at the station was obtained in violation of his Sixth Amendment right to counsel and should not have been admitted at his trial.

“The detective was not engaging Mr. Arbour in a typical booking process,” Calcagni argued in a brief filed prior to oral arguments.

Fowle said in his July 24, 2015, written decision, “The court cannot conclude that the actions of Detective (Eric) Dos Santos in providing the defendant with a summary of the evidence against him, and information as to the status of Ms. Sousa, constitutes a statement reasonably likely to elicit an incriminating response, nor was such a statement calculated to do so.”

On Wednesday, Associate Justice Ellen Gorman asked whether denial of the suppression motion made a difference in the case since Arbour had made a similar statement to police at his home.

Calcagni said it did.

In the appeal, Arbour also maintains there was no probable cause for the search warrant at his home. Arbour argues that only a small amount of the alleged heroin was chemically tested, so the quantity should have been reduced, that the drugs belonged to other people, and that Assistant Attorney General Katie Sibley mischaracterized the evidence during her closing argument.

Maine Drug Enforcement Agency Officer Brian Wastella, who is also an Augusta police officer, testified at the trial that police seized 1,250 packets of heroin and 23.65 grams of crack cocaine, as well as 114 marijuana plants. He said that once processed, the plants and other processed marijuana taken from the apartment totaled about 25 pounds.

During arguments on Wednesday at the Kennebec County Courthouse, Sibley asked the justices to find that testing five samples of the 1,250 packets of alleged heroin found at Arbour’s home was enough evidence to allow the jury to convict him of aggravated trafficking in heroin, which indicates 270 packets of heroin were involved.

“Heroin is very unique in the way it is packaged,” Sibley said in her argument that the judges should rule in the state’s favor and uphold the jury conviction.

She said the jurors could rely on the direct evidence from the chemist and the testimony of an experienced investigator with the Maine Drug Enforcement Agency who was there when the search warrant was executed.

Chief Justice Leigh Saufley said with the state’s problems dealing with the sale and use of heroin, fentanyl and opiates, “We have to be careful there’s no inappropriate rush to judgment.”

In a brief filed prior to the arguments, Calcagni wrote, “A purity test was not done and therefore the testing did not show whether the five packets contained pure heroin or were combined with another substance such as a cutting agent.”

Several of the judges referred to the length of Arbour’s sentence, with Associate Justice Donald Alexander calculating aloud that — with credit for good behavior — Arbour would spend about 12 years behind bars before being released on probation.

The attorneys in the appeal were the same as those at the trial, which concluded on Aug. 25, 2015, a few courtrooms away.

Arbour’s sentence was imposed on Oct. 15, 2015.

At one point during that trial, which was conducted by Judge Eric Walker, jurors were shown three large cardboard cartons full of brown marijuana stalks and marijuana leaves seized from Arbour’s River Street residence on Sept. 17, 2014.

During the trial, Calcagni argued there was reasonable doubt as to who owned the drugs. She said the illegal drugs could have belonged to others who had been in the apartment, including five people who had been smoking crack cocaine and using heroin and who had an opportunity to put the drugs there.

Arbour was convicted of seven charges: three counts of aggravated trafficking of scheduled drugs, one count of unlawful trafficking in scheduled drugs, aggravating cultivating of marijuana, and two counts of unlawful possession of scheduled drug.

Arbour, whose earliest release date from prison is listed Oct. 20, 2028, on the Maine Department of Corrections website, was not present at the oral argument session.

In March 2005, Arbour was sentenced to 100 months in federal prison for his part in a conspiracy to distribute cocaine in the Augusta area and for soliciting people to sell him guns that he could trade for drugs in Massachusetts. He was released from federal prison on Dec. 16, 2009, because he had been in custody prior to the sentencing. Arbour had been arrested on the federal charge in December 2002.

Federal court documents also show that in August 2011, Arbour was charged in Lincoln County with aggravated forgery and forgery in connection with the use of a computer to create counterfeit currency and checks. He later pleaded guilty to receiving stolen property and was given a 24-month deferred disposition and ordered to pay $4,000 restitution.

In connection with that plea, the documents say, a federal judge approved changing conditions of Arbour’s supervised release to include mental health treatment and ordered him to participate in the federal computer and Internet monitoring program and to do 20 hours of community service.

Watching the arguments were students from the Maine School of Law, students attending courses at the law school through Discover Law Plus and Maine Attorney General Janet Mills.

The Maine Supreme Judicial Court rules on the appeals in writing, sometimes months after the arguments are held. It is set to hear more cases in Augusta beginning 9 a.m. Thursday and Friday.

The opinions are posted on the court’s website at www.courts.maine.gov.

Betty Adams — 621-5631

[email protected]

Twitter: @betadams


Only subscribers are eligible to post comments. Please subscribe or to participate in the conversation. Here’s why.

Use the form below to reset your password. When you've submitted your account email, we will send an email with a reset code.

Kennebec Journal & Morning Sentinel news

Get news and events from your towns in your inbox every Friday.
  • This field is for validation purposes and should be left unchanged.