BY DUNCAN OSBORNE | The retrial of Davawn Robinson, the accused killer of Edgard Mercado, opened with the prosecution arguing Robinson intended to kill the 39-year-old gay man and the defense saying the death was an accident that came during “rough and kinky” sex.
“September 17 of 2009 was the last day of Edgard Mercado’s life,” John A. McConnell, a Manhattan assistant district attorney, told jurors in his June 9 opening statement. “The last moments of his life were spent with his face against the floor with a rope around his neck.”
Robinson, a 25-year-old gay man, faces one second-degree murder count in the Mercado homicide. The district attorney charges that Robinson intended to kill Mercado. The defense has conceded that Robinson caused Mercado’s death, but his attorneys argue he never formed the legally required intent to kill and so is not guilty of second-degree murder.
His first trial ended in a mistrial just before Christmas last year after jurors could not decide if Robinson was guilty of murder, which has a maximum sentence of 25-years-to-life. Had they acquitted him on that charge, jurors would then have considered second-degree manslaughter, which has a maximum sentence of 15 years in prison, and then criminally negligent homicide, which carries a maximum sentence of four years in prison.
Testimony at the first trial showed that the two men met at Chi Chiz, a West Village gay bar since closed. They had drinks, purchased some cocaine, and traveled by cab to Mercado’s East Village apartment. Once at the apartment, they used the cocaine and drank some wine. What happened next is in dispute.
In the prosecution’s recounting, Robinson used a rope belt to strangle Mercado to death, then stole the older man’s computer and cell phone. The defense contends the strangling was accidental and came during autoerotic asphyxiation. Police found no bondage porn or equipment in Mercado’s home.
“This was not an accident,” McConnell said. “This was not a mistake. This was intentional murder.”
After the strangling and while still in Mercado’s apartment, Robinson called 911 on his cell phone to report he had just killed a man in self-defense. He did not give his name, but police traced him to his New Jersey home less than 24 hours later. In various statements to police and the prosecutor, he continued to assert he acted in self-defense.
“He knew he couldn’t say he wasn’t there, so what does he do?” McConnell said. “He lies.”
Seeking to inoculate the jury against Robinson’s expected defense and likely testimony, McConnell repeated, “He lies again” three times. Robinson said the self-defense story was untrue when he testified at his first trial. He told jurors last year that the death came during sex.
“When he said he wanted it tight, I did just that,” Robinson testified. “When he wanted it rough, I did it rough.”
In her opening statement, Stephanie Kaplan, Robinson’s Legal Aid Society attorney, told jurors that a “murderous mind wants and pursues death.” Robinson’s behavior showed the opposite, Kaplan said. The wine, the drug use, and the condoms and lube in Mercado’s room showed that Robinson was there to party and enjoy himself –– “to pursue life,” as Kaplan put it.
“The fact of his death is not what you have to decide,” Kaplan told jurors. “You have to decide what was in Davawn’s mind… It’s the scene itself that tells the story.”
Mercado’s death, the “tragic and unintended ending,” came when “Davawn agreed to engage in rough and kinky sex that was unfamiliar to him,” Kaplan said. His lying showed panic, not calculation.
“He could have left, no one knew him,” Kaplan said. “That’s some murderer who calls the police on himself.”
The trial will continue on June 10.