By BEA LEWIS For The Laconia Daily Sun
LACONIA — A city man who refused police orders to come out of his home and ended up being tasered before being arrested on domestic violence-related complaints appeared in court on Thursday in hopes of having the charges dismissed.
James Cunningham, 60, is facing two counts of second-degree domestic violence assault. He is also charged with felony criminal threatening as well as misdemeanor counts of simple assault, criminal threatening, resisting arrest and marijuana possession.
Cunningham, of 223 Weirs Boulevard, was taken into custody on the late morning of Nov. 15, following a two-hour standoff with police.
The incident began as a possible hostage situation after a woman called 911 at 7:49 a.m. and reported that she had been assaulted several times during the night and wasn't allowed to leave the residence.
According to police, Cunningham threatened to kill the woman and hit her over the head with a pool cue with sufficient force to break the hardwood stick.
During an afternoon hearing in Belknap County Superior Court, defense attorney Scott Bratton said Cunningham has a right to a probable cause hearing.
Superior Court Chief Justice Tina Nadeau, who presided, explained that procedures were changing as a result of the Felony First program. Previously, anyone charged with a felony-level crime was arraigned in the Circuit Court and a probable cause hearing automatically scheduled.
As the lower court lacked jurisdiction to resolve felony matters, the decision was made to move those cases directly to the Superior Court, saving time and avoiding duplication.
When a defendant is arrested for a felony, Nadeau explained, a judge has already reviewed an affidavit submitted by police detailing the evidence supporting the allegations. The judge then decides based on that information whether probable cause exists.
If a defendant requests a separate probable cause hearing, the state is pressed to show more of its evidence and their witnesses could face cross-examination by the defense.
The threshold determination is that it is more probable than not that a crime has been committed, and that the defendant committed it. If probable cause is found, a case then advances to a grand jury for possible indictment.
Under the Felony First protocol, Nadeau said, a probable cause hearing will typically only be granted if a defendant can show that there is a material defect in the affidavit.
Bratton argued that since police interviewed the alleged victim, they seized her phone. Bratton told the judge he had copies of the text messages recovered from the phone and said that she might like to read them.
Judge Nadeau said that if the text messages appear to suggest that the alleged victim is recanting, that is an issue of credibility for a jury to decide.
Belknap County Attorney Melissa Guldbrandsen said Detective Sgt. Kevin Butler, who conducted a six-hour interview of the woman, was in the courtroom. The state has already turned over 67 pages of evidence to the defense, including a transcript of that interview. Having Butler testify during the hearing would be "duplicative" and would not
support the defense's efforts to have the charges thrown out.
The judge ruled from the bench that no probable cause hearing was needed at this stage of the proceedings as the affidavit had already established there is sufficient evidence to support the allegations.
Even if the alleged victim refuses to testify at trial, the state may be able to use the 911 tape as evidence. The U.S. Supreme Court has held that calls to 911 are non-testimonial statements gathered in an emergency situation, and as such are admissible at trial.