Lawyer argues non-disclosure of probabion violations by key witness cause for dropping heroin sale charge
Published DateLACONIA — The attorney for a Manchester man who is scheduled to be tried for the second time in Belknap County Superior Court for sales of heroin filed a motion to dismiss the case yesterday in part because the only witness has had multiple probation violations that were not disclosed before his most recent trial date.
The first case against Alfredo Gonzalez, 46, of 363 Center St. ended in a mistrial in November of 2012 during deliberations after the jury foreman spoke with Judge James O'Neill III in private about a personal matter that he said had nothing to do with the case or her fellow jurors.
Atty. Mark Sisti claims the state "through its own lack of attentiveness and/or its failure to make notice of potential problems in a timely fashion has created a due process deficiency facing Mr. Gonzales."
Gonzales is charged with selling heroin to a confidential informant who was working for the Laconia Police on August 23, 2012. According to court transcripts, she was at the time facing two felony robbery charges and a misdemeanor theft charge stemming from a Gilford incident at Walmart. In exchange for her information and for taping a conversation with Gonzales, she was allowed to plead guilty to theft and she served six months in the Belknap County House of Corrections.
As to the recent request for a dismissal, Atty. Mark Sisti asked for it because the informant was given a hearing to discuss any possible testimony that could violate her right to self-incrimination after the second jury was seated on March 18 but before the trail was scheduled to begin on April 1.
In light of the violations that were for taking non-prescribed drugs after the first trial but before the second jury was picked, Sisti argues that the state should have made a motion to continue the case during the hearing so both sides could sort out what they would do with the informant's new infractions that also include a conviction for theft in the 6th Circuit Franklin Division on March 17.
The informant's probation violation paperwork also includes mention that she is a suspect in an organized retail theft ring that is currently being investigated by the Gilford Police.
He said the prosecution and the informant's probation officer knew of the probation violations "days if not months before the March 27, 2013 jury selection and April 1 (trial) date."
Instead, the judge dismissed the jury and rescheduled the trial for June. Sisti argues the appropriate remedy would have been for the state to grant the informant immunity for her alleged violations because she had already asserted her Fifth Amendment, rights or to request a continuance when it learned of the informant's alleged violation.
In the alternative, he has asked for discovery regarding the informant's role into the Gilford theft case that is still in being investigated so he can use it as part of his defense of Gonzales.
In the interim, Gonzales is being held on $50,000 cash only bail in the Belknap County House of Corrections. He also faces a second and separate charge of sales of heroin that resulted in the death of a young Laconia mother who overdosed in April of 2011.