LACONIA — A Belknap County Superior Court judge has conditionally said that two of the prosecution witnesses against the man accused of a home invasion in June of 2014 will not be testifying if the state is unable to produce them within one week.
The two men were in a Harvard Street home when police said two men, one of whom was Tyler Twombly, 31, formerly of Concord, entered the home and committed robbery. One of the two men fired a gun that the state says injured one of the witnesses.
In court Monday, both of the attorneys who are assigned to the two witnesses were there and both said they had had no contact with their clients. Twombly attorney Mark Sisti insisted that if the state couldn't produce them in a week, they should be removed from the witness list.
County Attorney Melissa Guldbrandsen said police are looking for the men, but so far have been unable to locate them. One of them was served a subpoena but was not in court and one had not been served. She asked for an additional week to produce them.
"This is another delay caused by the state and the state's witnesses," said Sisti, who added the state has tried twice to get them to court and there is no reasonable expectation that they will be found.
Judge James O'Neill said that he would give the state one more week but was inclined to agree with Sisti.
Sisti and Guldbrandsen also discussed whether or not Joshua Pike, 29, of Laconia, who has been charged with conspiring with Twombly, but has not been indicted, should be given immunity to testify for the defense.
Sisti told the court that Pike called his office without notice a few weeks ago and told him "emphatically that Twombly had nothing to do with it."
Pike is an eyewitness to the event and told police he arrived at the home just before the invasion. Police have said that Pike was a co-conspirator with Twombly and deliberately let him and a third, as yet unidentified man, into the house.
Sisti said that the three men to whom the state wants to give immunity from prosecution were running a drug operation from the home and that two of the three of them are blocking immunity while the one witness who will testify that his client was not there is not being protected.
"The state can't just cherry pick (who they give immunity to)," Sisti said, noting there is no identification of Twombly by anyone the state plans to call, and the DNA the state plans to use against Twombly is not conclusive because the seized items of clothing have more than one person's DNA on them.
"There is no identity at the scene and if Pike testifies, it's all over," said Sisti.
Guldbrandsen told the court this case has "a lot of moving parts" including the fact that Pike gave conflicting statements to the police. She she the men who entered the home had covered their faces so Pike couldn't possibly identify or exonerate one of them because he didn't see their faces, either.
She reiterated that the state has reason to think that Pike and Twombly were co-conspirators and the defense hasn't given her office a good enough reason to grant him immunity.
Trial is scheduled for May 16.
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