LACONIA — A local public defender is using a previous ruling by the same judge to bolster his case that the evidence in a current trial for possession of heroin should also be suppressed.
Evidence in the first case, a drug arrest in 2010, was suppressed by Judge James O'Neill in circumstances that Public Defender Wade Harwood says are almost identical to his current case.
In both cases, the defense argued that police should have gotten a warrant to search a vehicle in order to seize evidence in plain view because there was no chance the evidence would be destroyed before the warrant was obtained.
Harwood is defending Kory MacDonald, 28, formerly of Meredith Center Road who was allegedly found slumped over in his car in the downtown Laconia Parking Garage by a Laconia Police officer.
The officers affidavits said that during what she described as an inventory search, she recovered heroin, an uncapped needle, a burned spoon and a knife.
Harwood's initial motion to suppress was predicated on what he had gathered from the affidavit — that it was an inventory search. He filed a motion for suppression on April 25 using the reasoning that the police department's own regulations about towing were violated and that since the officers didn't have any reason to tow the car, they would have had plenty of time to getting a warrant before searching it.
Asst. Belknap County Prosecutor Carley Ahern filed a "place holder" response in which she briefly stated that the items were seized as part of a legitimate inventory search and she was reserving her right to file a memorandum of law at a later date.
That later date came the morning of the suppression hearing that was scheduled for 1 p.m. the same day. In her response she offered a completely different set of circumstances surrounding MacDonald's arrest and how the drug evidence came to be in the possession of the police.
Ahern's version of events was that the officer found an unconscious man in a car that was running and not parked in a designated parking space at 11:22 a.m. The officer went to the car and knocked on the window a few times. When she got no response she called for additional officers and an ambulance.
She testified at last week's hearing that she saw a spoon, a lighter, and a plastic baggy containing what she is trained to believe is illegal drugs in plain sight from her vantage points, first at the passenger side window and then at the driver's window.
When MacDonald began to stir, she said she ordered him to put his hands on the steering wheel but said he kept putting his right hand down toward the center console.
Ahern wrote that she immediately opened the door and ordered MacDonald to show his hands. She said he refused to cooperate and kept moving his right hand down toward the center console.
She said she removed MacDonald from the car and pushed him against the side of the car. She said she was afraid he was reaching for a weapon but said he told her he thought he had a needle but wasn't sure where it was.
At one point she said MacDonald became upset because he was on parole and didn't want to be arrested. She said he was away from the car and seated on the ground. When he requested a cigarette, she retrieved one for him from his car.
Two additional police officers had arrived and MacDonald was placed under arrest. The officer testified she removed the baggie, the needle and the spoon that were in plain site. She said and uncapped syringe was on the front driver's seat and MacDonald had apparently been sitting on it.
She also found a four-inch folding knife in the front console with the blade open.
Ahern argues that MacDonald's suspicious actions and his refusal to follow directions created an immediate circumstance requiring her entrance into the car to prevent any destruction of evidence.
Ahern said once MacDonald was under arrest, she removed the drugs and related items that were in plain site. The officer testified at the hearing that she found the knife as the result of the inventory search but the rest of the search was conducted by a second officer because her supervisor told her to take MacDonald to the Police Department for booking.
At the hearing, Harwood told O'Neill he felt that the late filing of Ahern's motion and the revelation of a different theory of how the evidence was gathered was distinctly "unfair." Judge O'Neill didn't necessarily disagree with him.
Harwood also said that he had just been told by Ahern that if he didn't want to argue the suppression motion, then she would not prosecute the case and seek a second indictment before this month's grand jury.
Harwood objected because MacDonald has been in jail since his arrest and has been unable to post the $10,000 cash bail required for release.
He said his entire first motion to suppress was framed as a inventory search and it was only a few hours before the hearing that he learned something else allegedly happened. He also noted that at MacDonald's probable cause hearing in the 4th Circuit Court, Laconia Division, two officers testified that the evidence seizure was made a the result of an inventory search.
Ahern said she didn't have the transcripts from the probable cause hearing and was unprepared to address them.
O'Neill said that she made allowances that the search was an inventory search to which Ahern agreed, but said she changed her tack when she got the first round of discovery from the police.
The judge agreed to a brief recess to see if the technology was available to replay the crucial components of the probable cause hearing but after about 20 minutes Ahern and Harwood came to an agreement about certain passages that could used for suppression.
Harwood also said he was prepared to go forward as long a Judge O'Neill gave him a few days to file his own legal supplement before the ruling. O'Neill agreed.
During her testimony, the officer said that she accidentally wrote in her affidavit that the evidence other that the knife was seized during an inventory search. All parties agreed it was not a deliberate misrepresentation.
Harwood filed his supplemental argument on Friday. In it, he cited the case of the State of New Hampshire verses Gary Gach, who was charged with possession of narcotics after a Laconia Police officer seized a crack pipe from his car that was in plain view.
O'Neill ruled in 2010 to disallow the evidence of the pope because despite the fact that it was in plain view, the arresting officer had enough time to get a warrant to search the car.
Harwood argues that in MacDonald's case the same situation applies. He said there were a total of three police officers including a supervisor who ultimately responded to the parking garage.
He argues that MacDonald was under arrest and the evidence in the car wasn't going anywhere.
He said that the officer had to open the car door to remove MacDonald from the car but didn't deem it necessary to seize the items until after he was placed under arrest.
Harwood noted that she actually went back into the car to get a cigarette for MacDonald before his arrest but didn't seize the evidence at that time.
He said since she was able to open the car door, it was clear that the car was unlocked and because there were two other police officers present, there was no danger of the evidence being removed or destroyed, making her warrantless seizure unconstitutional and inadmissible.
Judge O'Neill is expected to make a ruling some time after Labor Day.
Last Updated on Friday, 22 August 2014 10:16
LACONIA — The tombstone lying awash in Durkee Brook, across Academy Street from Union Cemetery, got there from Woodlawn Cemetery in Penacook, but when and how it made its odyssey of some 20 miles remains something of a mystery.
The Daily Sun reported on the white marble monument's location on the floor of the brook on Thursday.
Tammy McKenzie, a local genealogist, found that the stone very likely marked the grave of Mary E, Boyce, the wife of Charles H. Colby, who died of kidney diease at the age of 74 on December 29, 1919. On New Year's Day 1920 she was buried alongside her husband, who passed away on March 29, 1898, in Woodlawn Cemetery in Penacook, an unincorporated place within the city limits of Concord and bordering Boscawen. .
Both husband and wife were born and raised in Canterbury, where they were married on December 18, 1861. Coilby worked as a section hand on the Boston & Maine Railroad while his wife kept house. The couple had two daughters, Rose and Grace. Five years after the death of her husband Mary moved from Canterbury to East Concord, where she died.
George West, who works with the cemeteries in Concord, confirmed yesterday that the couple lies side-by-side in Woodlawn Centery. He said that there is no indication that the grave sites have been vandalized. However, cemetery records indicate that in 1983 the original stones on the couple's plot were removed and replaced with markers flush with the ground.
The removal and replacement was done by the Laconia Monument Company, which is next to Durkee Brook at 150 Academy Street. Frank Shaw of the Laconia Monument said that the original tombstones Penacook would have been brought to Laconia and possibly placed on the banks of the brook to forestall erosion. If so, he allowed that Mary Boyce's stone could have washed downstream, recalling that in recent years there have been a number of severe storms leading to high water in Durkee Brook.
Shaw said that the company lacks the equipment to raise the tombstone from the stream bed, an operation he believes will require a backhoe. "It's not going anywhere," he remarked.
Last Updated on Friday, 22 August 2014 09:57
LACONIA — A Meredith man found himself in hot water after allegedly setting fire to a towel in a corridor on the fourth floor of the downtown Landmark Inn shortly before midnight Thursday.
Benjamin P. Luoma, 28, of 64 Pleasant Street, Meredith was charged with arson, a class A felony, was released on $25,000 personal recognizance bail following his arraignment in the 4th Circuit Court, Laconia Division yesterday. He is scheduled to appear for a probable cause hearing early next month.
Firefighters responding to an alarm discovered the small fire that burnt the carpet and later told police that guests suspected a man wearing a black hooded sweatshirt, who at the time was outdoors smoking a cigarette in front of the hotel, was responsible.
Officer Patrick Lyons reported that the man outside identified himself as Luoma and said that he had lit the towel on fire and placed it atop a light fixture then knocked the burning towel on to the floor and stomped on the flames with his foot. A witness provided police with a written statement that he saw a man matching Luoma's description light the towel on fire.
The hotel was evacuated while the Fire Department investigated the activation of the alarm and confirmed the fire was extinguished. No one was injured and property damage was minor.
Last Updated on Saturday, 23 August 2014 12:48
Judge rules Sanbornton man involved in shooting a danger to himself and others; $100k cash bail continued
CIRCUIT COURT — Attorneys for the Sanbornton man accused of trying to kill his son on Steele Hill Road last week said yesterday that there is reason to believe he acted in self-defense and that his bail should be reduced to personal recognizance. But Judge Ned Gordon was not convinced and bail conditions were continued.
Public Defender Steve Mirkin noted that Lloyd Barnard, 61 of Steele Hill Road is facing one count of first degree assault and one count of attempted second degree murder after he allegedly shot his son at least four times in the legs on August 10.
Although Barnard waived his right to a probable cause hearing, the state, represented by Deputy Belknap County Attorney Adam Wood, and the defense held a bail review in the 6th Circuit Court, Franklin Division yesterday.
Although his attorneys tried to silence him, Bernard uttered that he "never pointed a gun at anyone."
During that review, two versions of the shooting emerged. Mirkin argued that Barnard and his son had been in a fight, both physically and verbally, and that even though they see very little of each other, there have been other disagreements between them.
Mirkin said Barnard received a laceration to the back of his head, a black eye, and numerous scraped to his forehead in the fight, which could mean the shooting was in self-defense.
He said Bernard poses no flight risk and can return to his home on 228 Steele Hill Road where he was renting a room from the owner, who was in court yesterday.
Mirkin also pointed out that Barnard was ill, and had been scheduled for cancer screenings in Laconia but because of his incarceration had been unable to attend them.
He said Barnard's son lives in Belmont and not anywhere near Steele Hill Road. Mirkin said Barnard would agree to any bail conditions including reporting to either the police or probation, not to consume any alcohol, and to stay away from his son. He also agrees to sign a waiver of extradition.
Mirkin pointed out that his client lives on disability after being injured a few years ago in a logging accident. He said he wouldn't be able to raise any amount of cash for bail.
Woods said the state still wants Barnard held on $100,000 cash only.
He said the victim told police that he and his father had been arguing when Barnard pulled out a .22 caliber gun and fired it multiple times. The victim said he was able to disarm his father and that he brought the gun into the house.
Woods said the victim told police that when he went back out of the house, his father had a .45 caliber handgun and fired it multiple times — hitting him at least four times in the legs.
The Daily Sun has learned the victim has since been released from the hospital.
Woods said the victim fought his father to take away the second gun and that's when Barnard sustained the injuries claimed by the defense to be self-defense. He said the victim was able to get to his truck and call 911.
Woods also testified yesterday that Belknap County House of Corrections Superintendent Daniel Ward told him that Barnard was on suicide watch because of an incident at the jail.
He told Judge Edward "Ned" Gordon that Ward believes Barnard is not ready to be in the general population at the jail. Woods argued this means he is a danger to himself and potentially others.
Judge Gordon determined that while it was unlikely that Barnard was flight risk, he ruled that he poses a danger to himself or others and upheld the $100,000 cash bail set by Judge Jim Carroll.
The case against Barnard will be bound over to the Belknap County Superior Court for possible indictment.
Last Updated on Friday, 22 August 2014 01:30
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