Lawyers argue over what jury can hear when murder trial starts on Monday

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LACONIA — Who killed Leo Lapierre?

The N.H. Attorney General’s office says Jason Durgin, the 37-year-old former tenant of a South Main Street house-trailer kicked and beat LaPierre to death, while Durgin’s defense team said they can provide evidence that someone else had both the opportunity and the motive to commit the crime.

How much of this evidence actually makes it to the eyes and ears of the jury is what presiding Judge James O’Neill must decide ...

LACONIA — Who killed Leo Lapierre?

The N.H. Attorney General’s office says Jason Durgin, the 37-year-old former tenant of a South Main Street house-trailer kicked and beat LaPierre to death, while Durgin’s defense team said they can provide evidence that someone else had both the opportunity and the motive to commit the crime.

How much of this evidence actually makes it to the eyes and ears of the jury is what presiding Judge James O’Neill must decide before Durgin’s negligent homicide trial begins on Monday.

O’Neill heard arguments regarding a series of motions and legal maneuvering from both sides yesterday including arguments on a motion to dismiss the case and a variety of motions to limit the amount of testimony the jury can near.

Much of N.H. Asst. A.G. Benjamin Agati’s and Michael Lewis’s case largely depends on the credibility of key witness Tracy Hebert — the woman who was in the trailer the night Durgin was assaulted. Durgin’s defense strategy is to discredit her.

Agati and Lewis filed numerous motions in order to limit what the jury can hear from and about Hebert — information that Durgin’s defense team of Wade Harwood and Tim Landry say is critical to the jury’s understanding of her ability to tell the truth about what happened.

“She is unreliable,” said Landry saying Hebert suffers from psychosis and the prosecution has evidence that she had drank a half-bottle of vodka and had taken Xanax and Percocet with in the relevant time frame of the activities that took place between the evening of May 2, 2011 to when Lapierre was found dying outside Durgin’s trailer on May 3.

Landry said Hebert was a self-mutilator and there was evidence of her blood in the trailer. He said she hadn’t taken her mental health medications and had a poor memory because of 12 prior concussions.

Landry also said Hebert’s testimony is refuted by Gary Fields — another man who was in the trailer and allegedly told police he helped Durgin remove a still-alive LaPierre from the trailer.

Landry said Hebert made several contradictory statements to police including telling them she thought LaPierre’s name was Leo, later saying Leo was her “buddy”,” then saying she didn’t remember Fields being in the trailer and finally saying she didn’t remember the police coming to the trailer.

She also allegedly said she spoke with LaPierre sometime in the early morning hours of May 3 and asked him if he was okay. She said he said he was alright.

“She is either lying or suffering from psychosis.” said Landry.

The defense is also arguing that Hebert has some financial motive to want Durgin convicted because she allegedly used his ATM card to withdraw a total of $700 after Durgin was arrested.

“Give the jury a chance to know she cannot be trusted,” asked Landry of O’Neill.

Arguing for limiting what the jury can hear about and from Hebert was Lewis who called the defense’s portrayal of Hebert as psychotic an “arm-chair diagnosis.”

He said the Durgin’s defense had not met the legal standard required by previous courts to determine if Hebert is schizophrenic or psychotic and short of that, he said the general public will hold the defense team’s allegations of mental instability against her.

“It has a very real potential to prejudice the jury,” Lewis said.

As to objecting to Hebert’s alleged substance abuse, Lewis said the prosecution is willing to remove the objection if the defense can provide some “scope” to its proposed line of questioning.

“The state needs more explanation and needs to know how far the defense is willing to go,” Lewis said.

As to Hebert’s relationship with Durgin, the state is arguing that she was afraid of him and only told the truth to the police when Durgin was out of earshot and walking away, explaining why she initially told police Robert and Gerald York might have had something to do with LaPierre’s condition.

Along with negligent homicide and manslaughter, Durgin is also facing charges of simple assault, witness tampering and false imprisonment for allegedly preventing Hebert from answering the door to the trailer when police first found a beaten and dying LaPierre propped up against a fence in front of the trailer at 233 South Main Street.

Key to proving those charges is determining if Hebert was afraid of Durgin and what the nature of their relationship was. Durgin’s defense want the jury to hear evidence that Hebert wanted During arrested for LaPierre’s death.

The state withdrew its objections to having the jury hear about the sexual relationship between Durgin and Hebert, acknowledging the two knew each other a long time, had lived together, and that Hebert had Durgin’s PIN code for his ATM card.

The state has also requested Durgin’s defense limit what it can say regarding its other theory of the crime — namely Robert and Gerald York could have killed LaPierre.

“No one claims to know where Leo (LaPierre) was from 10 p.m. on May 2 to 12 p.m. on May 3. No witness can account for his whereabouts,” Landry said. “These two facts alone raise a prima facie case that something else happened.”

Landry told O’Neill that Durgin, the two York brothers and a fourth man, Jonathan Petrocelli had been involved in an argument. He said the Laconia Police were called by Durgin at 11:07 p.m. on May 2 to come to his trailer because of the Yorks. Landry also said it was the second time that day Laconia Police had gone to Durgin’s trailer because of the York brothers.

“Police circled the trailer at 11 p.m. and didn’t find anyone,” Landry said arguing that this information was not speculation on the part of the defense but should be allowed to be heard by the jury because it comes from LPD records.

“It’s a jury issue. It’s our defense. It’s not a (rules of evidence) claim,” Landry said he was not asking for O’Neill to admit prior bad acts regarding the York brothers, who are scheduled to testify for the state, but simply presenting a statement of what else was happening at the same time his client allegedly killed LaPierre.

Agati and Lewis argued that to allow this evidence to be presented to the jury would confuse things, calling it an attempt to create evidence of another’s perpetrations.

Lewis agreed there was a dispute between Durgin and the York brothers but only Durgin had any interest at all in LaPierre.

“Their theory is that Jerry and Robert (York) were mad at Petrocelli and Durgin and their theory is they attacked a man on a couch who wasn’t involved,” Lewis argued, saying to allow the jury to hear the testimony would be overly prejudicial and cause “undue delay, confusion of issues and be a waste of time.”

“There is no clear proof about what happened in the trailer on May 2 between the Yorks, Durgin and Petrocelli,” Lewis said.

O’Neill is expected to rule on the motions some time before opening arguments on Monday. Both Yorks, Petrocelli, Fields, Hebert and a number of their friends are scheduled to testify for the state as are a number of Laconia and State Police officers.