LACONIA — The former Belmont man who allegedly murdered his mother and brother with an ax in late May will appear in court today so his attorneys can argue for the release (discovery) of information that they say could assist them with his defense.
Lawyers defending 31-year-old Shawn Carter say state law allows them access to the state's information about the case before he is indicted by a grand jury, which has yet to happen.
N.H. Senior Assistant Attorney General Jeff Strelzin says the court's own rules do not entitle Carter's defense to the information until he has been indicted by a grand jury and the internal rules trump the state Legislature when it comes to setting internal time lines.
Carter, is charged with the ax murders of his mother Priscilla Carter and his brother Timothy Carter whose bodies were discovered on May 24 in their Sunset Drive home by Belmont Police while responding to a well-being check.
Carter was arrested by police about three hours after police found the bodies. He was driving his mother's car on Route 3 but, at the time was only charged with driving after his license had been suspended. He was held on $200 cash-only bail for the driving after revocation charge but was either unable or unwilling to post bond. He has since been found guilty.
On July 9, police charged Carter with four counts of second-degree homicide — two for each victim and each iterating a different theory of the same crime. To date he has not been indicted by a grand jury and is being held in a maximum security cell in the Belknap County House of Corrections without the possibility of bail.
The next round of indictments is due on October 3.
Carter's attorneys argue the state had obtained an arrest warrant for Carter for the murders on June 13 but didn't formally charge him until July 9 and the three-week time delay has violated his constitutional rights.
While his trial for driving after revocation was pending, Carter's attorneys repeatedly asked for the state's reasons for issuing a "be on the lookout" (BOLO) alert for him in the first place but were unable to get any information for the seven weeks until his actual arrests for the homicides.
Carter's defense team says state law allows for pre-indictment discovery and to date they have gotten nothing more than affidavits for his arrest from the state. They say the lack of information is interfering with Carter's constitutional rights to due process, to confront his accusers, and to hear the evidence against him.
During a probable cause hearing on August 6 for the homicides, Carter's defense team, as well as the public, heard from N.H. State Police homicide investigator Sgt. Joseph Ebert about the gruesome murders. The court ordered that the affidavits supporting Carter's arrest be released and his defense team was allowed to cross-examine Ebert.
Strelzin says court rules don't allow for pre-indictment discovery and the state law is inconsistent with more recent internal court rules regarding time lines.
He notes that the state Legislature passed the law allowing for pre-indictment discovery in 1971 but in May of 2004 then-N.H. Superior Court Justice Robert Lynn issued new rules for N.H. Courts saying that the Superior Court shall dismiss without prejudice and vacate all bail ordered in cases where a defendant has not been indicted 90 days after his or her arrest.
("Without prejudice" means the state, with a few exceptions, can re-charge a defendant with the same crime at a later date.)
"To the extent the purpose (of the state law) was to allow discovery in cases where the indictment was unduly delayed, the new administrative rule satisfies that purpose," wrote Strelzin in his argument against the pre-indictment discovery.
Strelzin also said that his department is well aware of its obligations to provide discovery, that the defense team has the affidavits supporting Carter's arrests, and the detailed testimony by Ebert at his probable cause hearing gives the defense team enough information to begin their own "independent investigation."
He also said the defense team has sole access to the only witness to Carter murders — Shawn Carter himself — and it's not the state's fault that Carter couldn't bail himself out, because he "killed his mother and brother and was unable to find anyone to assist him (with posting bail)."
"He, more than the state should be able to should be able to provide information about whatever 'potentially exculpatory evidence' the defense believes exists in this case," Strelzin continued.
Last Updated on Tuesday, 10 September 2013 03:42
GILMANTON — A Danbury man police said allegedly burglarized a home on Major Road on September 5 is being held on $10,000 cash-only bail following his video appearance in the 4th Circuit Court, Laconia Division yesterday.
Police said Corey Cole, 22, of Drake Hill Road allegedly confessed to Danbury Police Chief David Kratz that he broke into the Gilmanton home and that he knows at least one of the people who live there. He is charged with one felony count of burglary.
Police Chief Joe Collins said he responded to Major Road Thursday, September 5 at 12:51 p.m. when an alarm sounded.
He said the alarm was off when he got there and no one was home. He said he walked around the house and noticed a small window that was open in the rear of the house. He said he checked the doors, which were all locked, but found the overhead garage door was unlocked. When Collins opened it, the alarm went off again.
At 1:38 p.m. the homeowner reported a Stihl chainsaw had been stolen during the burglary. Collins said it appears that Cole was bringing stuff from the house to the garage door but was scared off by the alarm.
Collins said they found the chainsaw at Fast Cash in Tilton and said it was sold to them by a female friend of Cole. On September 6, Cole turned himself into the Danbury Police.
In court yesterday, Prosecutor David Estes said Cole has an extensive criminal background and is currently out on bail from Merrimack County and is facing two counts of theft. In addition, Estes said Cole failed to appear at a hearing in the 5th Circuit Court, Newport Division.
Estes also said Cole has two bail-jumping convictions — one in Franklin and one in Laconia — as well as multiple convictions on theft-related charges in Plymouth, Franklin and Laconia courts.
His attorney argued for personal recognizance bail said Cole's failure to appear in Newport was "an honest mistake" regarding scheduling. She also said he agrees he needs help with addiction and is willing to go to a residential treatment facility.
She said his mother has agreed to give him a place to live and that he is working part-time.
Last Updated on Tuesday, 10 September 2013 03:26
BARNSTEAD — A Pittsfield woman has been charged with driving after suspension and driving with a suspended registration after she allegedly backed over a Rabbot Lane woman.
Police said they were called to Rabbot Lane and found the victim lying in her driveway and Sierra Rollins, 27, of Pittsfield standing next to a Toyota Camry.
Barnstead Fire officials requested a helicopter from Dartmouth Hitchcock Hospital in Lebanon be sent to the scene and the victim was flown there for treatment. As of 11:45 a.m. yesterday, the victim was alive said Barnstead Police.
Rollins was released on personal recognizance bail and ordered to appear in the 4th Circuit Court, Laconia Division on October 17. Police continue to investigate and say additional charges could be forthcoming.
Last Updated on Tuesday, 10 September 2013 03:19
GILMANTON — A 5-year-old Brookline, N.H. girl is back in the safe arms of her family after she wandered away from a home here that her parents were visiting Sunday afternoon and a number of family, friends and public safety officials, spent the next seven hours looking for her. She was found hiding in a barn in Loudon, several miles away.
Police Chief Joe Collins said the child strayed from Rollins Pond Road shortly after 12:30 p.m. He said her family was visiting friends and all of them looked for her briefly before but notified police at 12:43 p.m.
"It was a terrifying seven hours," said Collins who said his officers, officers from the N.H. Department of Fish and Game, the State Police, the Gilmanton Fire Department and numerous friends and family began looking for her.
He said a team of K-9's from the New England Canine Search Team had just arrived when 10 or 12 volunteers from a farm on Blake Road in Loudon found the child hiding in their barn. Officials estimate she walked about 3 miles.
"She was smart to try and seek shelter," Collins said, noting that the temperatures dropped into the 30s Sunday night.
He said after police learned she was safe, he drove to the Blake Road farm to bring her back to Gilmanton. After he strapped her into the back seat of his cruiser he said she looked at him and said, "You know I'm supposed to be in a car seat."
He said he told her he didn't think Mommy would mind this one time but said she reminded him two more times as they were returning to Gilmanton.
"I guess she didn't want me to get in any trouble," Collins said, describing her a "cute as a button."
Collins said the family did the right thing by calling them right away. He said the sooner authorities learn of a missing child the sooner they can muster the resources they will need to find him or her.
"I'm just grateful we got a happy ending," describing the reunion as "quite an emotional thing."
Last Updated on Tuesday, 10 September 2013 03:16
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