Gage Dalphonse, 22, of Auburn waits for his bail hearing to start in Androscoggin County Superior Court in Auburn Thursday afternoon. Russ Dillingham/Sun Journal Buy this Photo

AUBURN — A local man facing a murder charge stemming from a shooting last summer in the local Walmart parking lot is seeking to be released on bail.

Justice William Stokes listened to arguments presented Thursday in Androscoggin County Superior Court on a motion filed by Gage Dalphonse, 22, of 47 Crest Ave., Auburn to amend bail conditions citing new evidence that had come to light since Stokes held Dalphonse’s initial bail hearing in September.

After that hearing, Stokes had ordered Dalphonse held without bail pending trial in the slaying of Jean Fournier, 41, of Turner on July 27, 2019, in the parking lot of Walmart on Mount Auburn Avenue.

Justice William Stokes addresses defense attorney Jim Howaniec during Thursday’s bail hearing for Gage Dalphonse in Androscoggin County Court Russ Dillingham/Sun Journal Buy this Photo

Stokes had written in a six-page order that probable cause existed to believe Dalphonse had committed the crime, formerly a death penalty offense, which meant he wasn’t entitled to bail. Still, the law gives a judge discretion to allow bail in murder cases despite probable cause in a formerly capital case if the state hasn’t shown by clear and convincing evidence that there’s a “substantial” risk the defendant won’t appear in court, will pose a risk to the integrity of the judicial process, will pose a danger to another person or to the community or will commit new crimes.

Stokes wrote that he had based his conclusion on evidence presented at the September hearing, including the fact that Dalphonse fired his handgun twice while leaning and likely twisting the upper half of his body out the window of his parked car, fired at Fournier as he was retreating and shot him twice in the back.

“The defendant made the decision to use deadly force very rapidly and there was no evidence suggesting that he made any effort to resort to less-than-deadly force as a response to Mr. Fournier,” Stokes wrote.

State of Maine Assistant Attorney General, Lisa Bogue, left, glares at attorney Jim Howaniec as he addresses Justice William Stokes during Thursday’s bail hearing for Gage Dalphonse in Androscoggin County Superior Court in Auburn. In the background is Assistant District Attorney Katherine Bozeman. Russ Dillingham/Sun Journal Buy this Photo

Some witnesses said they heard Fournier exclaim: “Gun, run!” But it’s unknown whether Dalphonse heard those words, Stokes had said.

While considering that possibility, Stokes wrote that facts surrounding an earlier reckless conduct conviction “are very troubling.”

On June 20, 2018, after arguing with a group of people, Dalphonse reportedly fired a pellet gun repeatedly from his car at them and struck someone in the arm and finger. He pleaded guilty to the charge in February 2019.

Looking at all the evidence, Stokes wrote that Dalphonse poses a danger to the community and of committing new crimes.

“It is significant because it tends to show that the defendant is immature and impulsive while armed with a weapon and when involved in a confrontation with others,” Stokes wrote.

But James Howaniec, who began representing Dalphonse since the September bail hearing, argued Thursday that the defense hadn’t received then all of the evidence that it now has.

Included in that evidence, he said Thursday, is information that he claims casts doubt on the prosecution’s narrative of events on the day of the shooting. He told Stokes that even if the judge were to dismiss all evidence that supports self-defense and were to consider all of the evidence in the case in a light most favorable to the state, then “this is not a murder. it’s more in the nature of a manslaughter.”

Howaniec called to the witness stand Maine State Police Detective Herbert Leighton, who served as lead detective in the case at the time of the September hearing at which he also testified.

Justice William Stokes addresses defense attorney Jim Howaniec during Thursday’s bail hearing for Gage Dalphonse in Androscoggin County Court Russ Dillingham/Sun Journal Buy this Photo

Howaniec walked Leighton through his testimony from that hearing, but also asked him to explain evidence not presented by prosecutors and not available to the defense at that time.

One of those items Howaniec highlighted Thursday was a shell casing from Dalphonse’s Glock handgun that he fired at Fournier. The casing, one of two recovered by police at the scene, was located on the floor mat of Dalphonse’s Volkswagen Golf that he had driven into the Walmat parking lot on the day of the shooting.

Howaniec suggested that the shell casing found inside the car indicated Dalphonse’s torso and arms had not been entirely out of his car and turned facing the back of his car as prosecutors had presented.

“We do think there’s significance to the fact that one casing was still inside the car,” Howaniec said.

He also argued there was “some relevance” to witness statements suggesting Keelin White, a friend of Fournier who was standing behind him when he was shot, was not a reliable witness. In fact, White himself had told police he was “a liar” during his interview.

Howaniec told stokes his client’s family could post up to $10,000 cash bail and had nearly $60,000 equity in their home to put up as bond if Dalphonse were released. He would be willing to be electronically monitored and confined to his parents’ home if freed. He’s never left the state of Maine and wouldn’t be a flight risk, Howaniec added.

Assistant Attorney General Lisa Bogue countered Howaniec’s arguments, saying the location of a cartridge didn’t provide reliable evidence of the location of the gun when it was fired, given all of the “variables” cited by Leighton that could affect where the casings ended up after the gun was fired. She also noted that Leighton testified a technician testing Dalphone’s car found strong traces of gunshot residue on the outside of the car on the metal post that separates the driver’s window from the left rear passenger window, indicting the gun was nearby when fired.

She noted that prosecutors hadn’t presented testimony in September that showed the other shell casing had been found outside the car on the pavement.

About White’s testimony, Bogue said prosecutors didn’t rely solely on his statements, rather, they were compared to physical evidence from the scene and other witness statements.

Howaniec raised questions about injuries to Fourier’s knuckles that were noted by the medical examiner who performed Fouriner’s autopsy. Howaniec suggested the abrasions were sustained when he struck Dalphonse on the mouth shortly before the shooting.

Gage Dalphonse of Auburn, left, listens to the proceedings with his attorney, Jim Howaniec, background, during his bail hearing in Androscoggin County Superior Court in Auburn Thursday afternoon. Russ Dillingham/Sun Journal Buy this Photo

Bogue said abrasions were found on the knuckles of both of Fournier’s hands and could have occurred when he fell to the pavement after he was shot.

The two attorneys sparred over whether Fournier had slapped Dalphone or punched him, as he characterized the assault to police.

Howaniec had Leighton identify the injury to the inside of Dalphonse’s mouth in a photograph taken by police after the shooting.

Bogue asked Leighton whether Dalphonse’s face had been swollen at the time he was questioned.

Leighton said, “no.”

Asked whether Dalphonse appeared to have a concussion, Leighton said, “No.”

Howaniec asked Leighton why Dalphonse’s criminal record had been included at the September hearing, but Fournier’s “very extensive” criminal history that included robbery convictions hadn’t been mentioned.

Bogue told Stokes the victim’s criminal history had no “relevance” in the case because the defendant hadn’t known it at the time of the shooting.

Stokes agreed.

Stokes said he planned to rule on the defendant’s motion to amend bail conditions before the end of next week.

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