State of Maine v. Dalphonse

AUBURN
DOCKET NO. CR- 2019-2321

ORDER# 2 ON PENDING MOTIONS
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GAGE DALPHONSE - atlf'M5 n~ 1v6\!1J((, + (J'­
Defendant

The Defendant, Gage Dalphonse, is charged with the intentional or
knowing murder of Jean Fournier on July 27, 2019 in Auburn. Venue has
been changed to Kennebec County. Trial is scheduled to begin with jury
selection on September 13, 2021, with the trial to follow immediately
thereafter.
Over the past several months, the parties have filed numerous motions.
It may be helpful to provide a description of those motions and how some of
them were resolved, and what now remains to be resolved by the court.
1.De endant 's Motion to Exclude "Instant Para! sis Theories '~lrr\
The court held an evidentiary hearing on this motion on S.ef3· Jel· 13,
2021 and received the testimony, via ZOOM, from Dr. Elizabeth Bundock,
M.D. and Dr. Jonathan Arden, M.D. In connection with this motion, the court
admitted, without objection, State's Exhibits 1-4 being, respectively, the
reports and curriculum vitae of Drs. Bundock and Arden. After hearing and
on the record, the court denied the motion because it found that Dr. Bundock's
opinion that gunshot wound "A" would have caused immediate paraplegia in
Mr. Fournier was relevant and that Dr. Bundock never opined that Mr.
Fournier would have dropped immediately to the ground in the very location
where he received that shot.
2.Defendant 's Motion to Suppress and Request for Franks Hearing and
State's Motion to Dismiss
The Defendant's request for a Franks hearing was denied by the court
in an order dated June 3, 2021. Subsequently, by letter dated June 20, 2021,
the Defendant, through counsel, withdrew the motion to suppress. As a result,
the court deems the State's motion to dismiss as moot.
3.State 's Motioni in Limine to Exclude Criminal Convictions and Prior
Bad Acts
For the reasons stated on the record on July 13, 2021, any prior
convictions the parties intend to use to impeach a witness shall be governed
by M.R.Evid. 609, and will be addressed and decided by the court at the time
of trial. Counsel are reminded and directed to inform the court in advance and
outside the presence of the jury, what specific criminal convictions are
intended to be used for impeachment purposes.
With respect to the use of prior convictions or prior "bad acts" or
evidence of the alleged reputation for violence of Jean Fournier, the court will
be guided by the Law CoU1i's decisions on this issue, including State v.
Holland, 2012 ME 2, 34 A.3d 1130 and State v. Stanley, 2000 ME 22, 7454
A.3d 981. Counsel are again reminded and directed that any intended use of
this type of evidence shall be brought to the attention of the court in advance
and outside the presence of the jury.
Accordingly, the court's ruling on the State's motion will be deferred
until the time of trial.

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4. Defe ndant's Motion in Limine to Exclude Evidence of "Racking "
Firearm
For the reasons stated on the record on July 13, 2021, this motion is
denied. The basis for this motion is the asse1iion that the passenger with the
Defendant at the time of the encounter with Mr. Fournier, is alleged to have
told Det. Leighton that he saw or heard the Defendant "cock" the gun. This
apparently prompted Det. Leighton to use the term "racking." The Defendant
contends that the physical evidence is inconsistent with any "cocking" or
"racking" of the gun.
It is not the court's role to direct a witness as to what he may or may
not have seen or heard or when. If the physical evidence is inconsistent with
the witness's memory of what happened, he will be subject to impeachment
and it will be up to the jury to evaluate the evidence.
5. Defendant's Motion for Exception to Sequestration Order
As stated on the record, the cou1i appreciates the desire of the
Defendant's parents to attend the entire trial in support of their son. The
motion will be granted in part at this time. Mrs. Dalphonse is excluded from
any sequestration order that may be entered by the comi and may attend the
entire trial, notwithstanding the fact that she may be called as a witness during
the trial.
With respect to Mr. Dalphonse, the cou1i will defer ruling at this time.
From the comments of Defense Counsel at the hearing on July 13, 2021, it
appears that Mr. Dalphonse has been heavily involved in the preparation of
the defense, and the extent of his testimony may be more substantial than
merely background information. Nevertheless, the court is not precluding his
attendance at the trial in its entirety at this time, but wants more specific
information about his role as a witness before making a final ruling.

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6. State 's Motion [or Reconsideration. re: Shooting Inciden t Review by
Sgt. Scott Bryant and State's Motion in Limine to Exclude Firearm and
Shooting cene Expert Testim ony
In an Order dated July 27, 2020, the couii granted the Defendant's
Motion in Limine to Exclude Evidence of State's "Shooting Incident Review,
Analysis and Reconstruction." The State has now moved for reconsideration
of that earlier Order. Based on the court's Order of July 27, 2020, and for the
reasons expressed by the couii there, the State has also moved to exclude the
firearm and shooting scene reconstruction evidence and testimony offered by
the Defendant's expert, Marc E. Dupre of FoCoss Forensics. State's Exhibits
5 and 6 were admitted without objection at the hearing on July 13, 2021. Sgt.
Bryant's reconstruction report and cun-iculum vitae were admitted as State's
Exhibits 1 and 2 at the hearing held on July 17, 2020.
Before directly addressing the pending motions, two initial points must
be made. First, the State has conceded that Sgt. Bryant should not be
permitted to testify and will not testify to the following: "Once the decision to
initiate gunfire was made by Dalphonse, this engagement and subsequent
gunfire was under the total control of Dalphonse and at no time did it appear
Dalphonse was on the defensive." See page 6 of Bryant Reconstruction
Report.
Second, the State further acknowledges that if the court grants its
motion for reconsideration regarding Sgt. Bryant's repmi, its motion to
exclude Mr. Dupre's repmi and testimony should be denied.
The court is confident that it will come as no surprise to the parties that
the cou1i has struggled to understand the specifics of what Sgt. Bryant would
testify to in the form of an expert opinion. See comments by court on July 17,
2020. Transcript at pages 80, 87, 93-95. That struggle ultimately led to the

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court's Order of July 27, 2020, in which it found that Sgt. Bryant's repoti and
proffered testimony had slight probative value and helpfulness to the jury.
In the meantime, the Defendant's expert, Marc Dupre, prepared a rep01i
regarding his opinions as to the shooting scene. It was in examining Mr.
Dupre's report and his opinions, and re-reading Sgt. Bryant's report and
testimony of July 17, 2020, that the court began to have a better appreciation
of the probative value of the shooting scene reconstruction evidence. In a
sense, Mr. Dupre's report crystallized the issues for the court in a clearer
fashion. The court found Sgt. Bryant's testimony on July 17, 2020 to be less
than clearly presented, and Mr. Dupre's report put the contested issues and
the differing opinions of the experts in sharper view.
For example, one of the differences of opinion between Sgt. Bryant and
Mr. Dupre is where Mr. Fournier was positioned at the time the shots were
fired. Mr. Dupre opines that Mr. Fournier is at the driver's side window when
the first shot was fired. He relies on a number of items of evidence, including
but not limited to, the path of bullet wound "B" within Mr. Fournier's body,
the fact that an expended shell casing was found inside the car, and the pattern
of lead residue.
Sgt. Bryant is of the view that Mr. Fournier is moving towards the rear
of the VW when both shots were fired. He bases this on the lead residue
pattern, the severity of the shots and the movement of Mr. Fournier as seen in
the Wal-Mart video, among other things.
Both of these scenarios may be subject cross-examination and
impeachment. But that is not a reason to exclude evidence from Sgt. Bryant
and Mr. Dupre for consideration and evaluation of the jury.
Having closely re-examined Sgt. Bryant's repmi and his testimony, the
comi agrees with the State that his testimony is helpful and relevant for the

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jury to consider, just as Mr. Dupre's testimony is. Both experts may have
flaws in their analysis and be impeached, but that is not for the court to pre­
judge. The testimony of both Sgt. Bryant and Mr. Dupre meet the reliability
standards for admissibility as expert opinion evidence, is relevant and is
helpful to the jury. See State v. Williams, 2020 ME 128, ~~ 25-27, 241 A,.3d
835.
Accordingly, the court grants the State's motion for reconsideration,
with the exception noted above, and denies the State's motion to exclude Mr.
Dupre's testimony.
To summarize:

Defendant's Motion to Exclude "Instant Paralysis Theories" 1s
DENIED.

Defendant's request for Franks' Hearing was previously DENIED by
Order dated June 3, 2021.

Defendant's Motion to Suppress was WITHDRAWN on June 20, 2021.

State's Motion to Dismiss is MOOT.

State's Motion in Limine to Exclude Criminal Convictions and Prior
Bad Acts is DEFERRED until trial.

Defendant's Motion in Limine to Exclude Evidence of "Racking" of
Firearm is DENIED.

Defendant's Motion for Exception to sequestration Order 1s
GRANTED in part and DEFERRED in part.

State's Motion for Reconsideration re: Shooting Incident Review by
Scott Bryant is GRANTED.

State's Motion in Limine to Exclude Firearm and Shooting Scene
Expert Testimony is DENIED.

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_.--:-----­
Date: July 19, 2021
; \~~
William R. Stokes - ­
Justice, Superior Court

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