DA Push Back On Mercado Killing 'Accident' Defense

As the friends and a family member of Edgard Mercado wept, prosecutors told a Manhattan jury that the evidence would prove that Davawn Robinson meant to kill the 39-year-old gay man when he strangled him in Mercado’s East Village apartment in 2009.

“The last moments of his life were spent futilely gasping for air,” John A. McConnell, an assistant district attorney, told jurors in his December 5 opening statement. “The evidence will show that it was this man, Davawn Robinson, who killed him.”

Robinson, a 24-year-old gay man, faces one second-degree murder count in the Mercado homicide. The district attorney charges that Robinson intended to kill Mercado.

While the defense has conceded that Robinson caused Mercado’s death, his attorneys argued that he never formed the legally required intent to kill and so is not guilty of second-degree murder.

During jury selection, Robinson’s attorneys suggested to prospective jurors that the death may have been an accidental strangulation while the two men were having sex.

“You’re going to hear evidence in this case that Mr. Robinson and Mr. Mercado engaged in the practice of auto-erotic asphyxiation and that practice led to Mr. Mercado’s death,” one of Robinson’s Legal Aid Society attorneys said on November 30.

Prosecutors sought to inoculate jurors against that defense in their opening statement and in questioning witnesses. McConnell told jurors that a witness from the city’s medical examiner’s office would describe the crushing force used to strangle Mercado and the duration of the choking.

“Her testimony will make it clear, ladies and gentlemen, that this was not an accident,” McConnell said. “This was intentional.”

When questioning an NYPD crime scene detective on December 5, Leila Kermani, the second assistant district attorney on the case, elicited testimony that police found no sex toys, bondage equipment, women’s clothing, weapons, or pornography in Mercado’s apartment.

Mercado was studying capoeira, a Brazilian art form that mixes dance and martial arts. Robinson used the rope belt that was part of Mercado’s capoeira garb to strangle him. Mercado’s hands were also bound with that rope when he was found dead.

In his statements to police, Robinson said the two met at Chi Chiz, a West Village gay bar since closed, and traveled to Mercado’s apartment where they used cocaine and alcohol. Robinson said that Mercado told him they would be joined by another man and produced a length of rope. The defendant said he feared for his life –– though he conceded that Mercado never said anything –– and strangled the older man in self-defense.

Whether Robinson’s lawyers will present a defense remains a question. They did not make an opening statement, which is unusual in any trial, so they have promised jurors nothing. They used their questioning of the crime scene detective to introduce evidence that might lead the jury to conclude that Mercado was sexually adventurous.

Over the prosecution’s objections, the defense introduced pictures of Mercado’s body that showed three tattoos. With the jurors out of the court room while the lawyers debated, Kermani said the tattoo pictures were “prejudicial” because, “A lot of people have pre-conceived notions about people who have tattoos.”

Annie Costanzo, one of the two Legal Aid Society lawyers who represents Robinson, told Daniel P. FitzGerald, the trial judge, that the tattoos showed that Mercado was “someone that can experience pain, who tolerates pain.”

When the jurors returned, Robinson’s second attorney, who has declined to give her name to Gay City News, took the crime scene detective through a series of crime scene photos of the condoms, sexual lubricant packages, and glassine envelopes that police found. Taken alone, that testimony made it seem that Mercado’s apartment was littered with those items.

On re-direct, Kermani got Patrick Parke, the detective, to say that they found five condoms, four lubricant packages, and eight glassine envelopes, which may have held drugs, in Mercado’s home. Police took multiple pictures of the same evidence, which Robinson’s attorney employed in her questioning.

Before the trial began, FitzGerald also said he would let the prosecution use Mercado’s former partner as a rebuttal witness if the defense presents a case that delves into Mercado’s sex life.

“As I understand it, the testimony will go into what the victim’s sex habit were or weren’t,” he said.

The trial will continue in Manhattan Supreme Court on December 6.

More from Around NYC