LACONIA — With Amy Lafond scheduled to stand trial in June on charges that her reckless and negligent driving caused the death of one teenage girl and severely injured another on Messer Street last year, both the defense and prosecution are seeking to define the scope of the proceedings and nature of the evidence.
Lafond, 53, is charged with manslaughter and two counts of negligent homicide (alternative theories) arising from an incident on April 19 when she allegedly drove into two teenage girls on the sidewalk bordering the Messer Street Bridge, killing Lilyanna Johnson and seriously injuring Allyssa Miner. She is also charged with several drug offenses and traffic violations.
Although Belknap County Attorney Melissa C. Guldbrandsen has said that toxicology tests found elevated levels of Oxycodone and the presence of Gabapentin, both prescription drugs, in LaFond's bloodstream, she has not been charged with driving while impaired. However, when Lafond was arraigned, Guldbrandsen said, "we are alleging that the accident occurred after she consumed drugs."
Attorney Mark Sisti, who represents Lafond, has asked the court to sever the charges for drug and traffic offenses from those for manslaughter and negligent homicide, claiming that the first set of charges is not related to the second. He cited an opinion of the New Hampshire Supreme Court holding that related offenses must be based on "a common plan," that is, "a definite prior design which included doing the charged acts as part of its consummation."
It is not sufficient, Sisti claimed, to contend that a sequence of actions "resembles a design." Instead "the prior conduct must be intertwined with what follows, such that the charged acts are mutually dependent," he said.
Sisti insisted there is "no interdependence among the charges" against Lafond. He noted in deciding whether charges should be severed, the Supreme Court held that courts should consider whether "in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently to each offense." In this case, Sisti concluded, "the jury will run a considerable risk of confusing the evidence the state will offer to support the manslaughter and negligent homicide charges from the drug charges" and "be hard pressed not to consider the alleged presence of contraband as evidence in the other charges."
Meanwhile, Guldbrandsen has objected to Sisti's earlier motion to exclude the results of blood tests taken after the accident. He claimed that because Lafond was not advised that the results could be used against her at trial, her consent to the blood draw was "not fully knowing." Nor he argued should the results of a second mandatory blood draw, required by law of drivers involved in fatal accidents provided there is probable cause to believe the driver caused the collision, be admitted as evidence.
The Attorney General, Sisti explained, has acknowledged that because the law does not require either a warrant or probable cause to believe the driver was impaired, it is not clear that the test results can be introduced as evidence in criminal proceedings. Consequently, the Attorney General advises "wherever possible, officers should document any facts supporting a finding of probable cause to believe that the driver is impaired." But, the officer who spoke with Lafond and requested the blood draw reported that "there was no reason or probable cause for me to believe that she was impaired by drugs or alcohol."
Guldbrandsen countered that Lafond signed a "Consent to Search" form, which provides notification of her right to withhold her consent, in the presence of both a police officer and her husband, Marc. "The fact that the defendant was not told that the blood could be used at trial," she argues, "does not vitiate her consent."
Moreover, Guldbrandsen referred to the statute bearing on confidential communications between physicians and patients, which does not apply to the release of blood drawn and test results taken from a person for purposes of diagnosis and treatment in connection with an incident leading to an investigation for driving a motor vehicle while under the influence of alcohol or drugs. She said that a detective obtained a search warrant for the results of the blood test, which the defense has not challenged. In light of Lafond's consent and the search warrant, Guldbrandsen concluded that Sisti's challenge to the second, mandatory blood test is "misplaced."
Guldbrandsen filed a motion asking the court to allow "computer-generated accident reconstruction animations" to be introduced in evidence. The animations, she said, were created by Carl Lakowicz of Northpoint Collision Consultants from measurements and data collected by the Belknap Regional Accident Investigation Team and would offer a "visual illustration" of the sequence of events, including the collision, to supplement the testimony of expert witnesses. Altogether she asked to introduce eight animations, including three of the collision from different angles.
Anticipating that Marc Lafond, the defendant's husband, would appear as a hostile witness, Guldbrandsen also asked the court to rule that his criminal record could be used to impeach his credibility should he testify on his wife's behalf. Court rules permit the introduction of evidence that a witness has been convicted of a felony or crime of dishonesty within the past 10 years. Marc Lafond pled guilty to two counts of possession of a narcotic in August, 2005, a month after being convicted of theft of services, a misdemeanor.
Guldbrandsen acknowledged that animations were excluded from a case in 2009 when the judge ruled that there was insufficient evidence that the data used to construct them would ensure "a fair and accurate representation of the accident." She said that while the case law was limited, the decision to admit the animations was "within the discretion of the court."
Finally Sisiti has sought permission from the judge to question potential jurors to ensure that those who are seated to hear the case are sufficiently impartial. State statute entitles attorneys to conduct so-called "voir dire" — French for "to speak the truth" — in civil but not criminal cases. On the strength of the constitutional right to a fair trial Sisti remarked that "implicit in the Legislative enactment is the unconstitutional premise that criminal defendants are not entitled to the same procedures to ensure that criminal trial juries are equally impartial."
Sisti referred to studies that indicate "voir dire" conducted by attorneys provide defendants with greater protection of a fair trial than those conducted by judges. Because the case has attracted "a great of media attention" and so many of the witnesses are local residents, Sisti emphasized the importance of selecting an impartial jury. The trial, he explained, "may touch emotions and personally held beliefs as there are references to careless operation of a motor vehicle,possible drug use and the infliction of injuries and death upon very young children."
Justice James D. O'Neill, III will hear oral arguments of pre-trial motions at a hearing on Wednesday, May 14 beginning at 1:30 p.m. The trial, which is expected to last three weeks, is scheduled to begin on Monday, June 9.