AUBURN — Attorneys for a local man charged with murder in a July shooting in the Walmart parking lot are seeking to have him released on bail.

Gage Dalphonse, 22, of 47 Crest Ave. fatally shot Jean Fournier, 41, of Turner twice in the back in the lot on Mount Auburn Avenue on the evening of July 27.

After a September bail hearing in Androscoggin County Superior Court, Justice William Stokes ordered in October that Daphonse be held at Androscoggin County Jail without bail until his June trial.

Defense attorneys James Howaniec and Jesse James Ian Archer, who were court-appointed after Dalphonse’s initial bail hearing, filed a motion late last week seeking to change his bail status. They requested $10,000 cash or $50,000 worth of real estate, with conditions that include supervised release, living with his parents and monitoring by an electronic ankle bracelet.

In the motion, the attorneys wrote that many facts favorable to Dalphonse had not been shared with the defense during the first bail hearing Sept. 6.

According to the motion, new information gleaned from additional discovery includes:

• One of the witnesses interviewed by detectives told them that he was a liar and suggested they give greater weight to statements made by other witnesses;
• A shell casing from Dalphonse’s gun was found in his car by investigators, suggesting that he fired at least one of two shots from inside the car and not half-way out of the car, as a detective testified;
• Autopsy photographs taken of Fournier’s right hand indicate “two clearly defined markings on his knuckles that are consistent with Gage’s teeth,” suggesting the force with which Fournier punched Dalphonse;
• Fournier had a “long record of felony violent crimes and drug convictions which have landed him many years in prison in both state and federal courts;” and
• The lead detective used an interrogation method on Dalphonse, called the Reid Technique, where the detective downplayed the seriousness of the alleged offense in an effort to extract a confession.

Prosecutors had not filed a response to the defense’s motion as of Thursday.

Stokes wrote in his October bail order that probable cause exists to believe Dalphonse committed the crime, formerly a death penalty offense, which means Dalphonse isn’t entitled to bail.

Justice Stokes wrote that he based his conclusion on evidence presented at a Sept. 6 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, that Fournier was retreating when he was shot 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.

The law gives a judge discretion to allow bail 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.

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.

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.

Other factors that weigh against allowing bail include Dalphonse’s “apparent relationship with firearms and firearm-like weapons; the fact that he fully loaded his Glock 9 mm (handgun) and made sure a round was in the chamber, meaning the gun was ready to fire in an instant; the fact that (Dalphonse) immediately escalated the confrontation with Fournier to the level of deadly force in a relatively full parking lot”; and “the fact that the evidence might support the conclusion that (Dalphonse) shot Mr. Fournier out of anger.”

But attorneys for Dalphonse wrote in their recent motion that Stokes didn’t, in fact, have all of the evidence available in the case to consider in deciding whether to grant bail, only information that had been presented at the earlier hearing, which omitted relevant evidence that exonerates or tends to exonerate him of guilt.

The lead detective in the investigation, Herbert Leighton of the Maine State Police, was the only witness to testify for prosecutors at the September bail hearing.

He demonstrated how Dalphonse was believed to have positioned himself in order to shoot Fournier in the back as he walked away toward the back of Dalphonse’s car. Leighton said Dalphonse had to have used one hand to brace himself against the window frame of the driver’s side door and twist his upper body to face the back of his car.

If that were true, how could one of the shell casings from Dalphonse’s gun end up inside the car, his attorneys questioned in the bail motion?

“It is clearly evidence that Gage fired from within his vehicle and certainly not ‘holding on for stability’ while twisting his body outside the car window,” the defense lawyers wrote.

Fournier had approached Dalphonse’s parked car after he had called Fournier’s girlfriend a “whore,” which was his retort to her calling him a “little bitch.” The two had known each other from work.

Witnesses said Fournier followed the direction of Dalphonse’s car, which was eventually parked in the lot. Fournier walked up to the open driver’s side window and talked to Dalphonse.

Dalphonse and his passenger, Defghan Zitsch, said Fournier struck Dalphonse; Zitch calling it a slap, Dalphonse, a punch, according to a police affidavit.

Dalphonse told police in an interview that Fournier told him to apologize to his girlfriend. Dalphonse said he wouldn’t, but would apologize to Fournier. He said he felt threatened by Fournier, who told him he was going to “f****** kill” him, according to the affidavit.

Dalphonse told police Fournier started to reach into his car, so Dalphonse reached for his handgun, which he carried in a holster at the front of his pants. He said he grabbed his gun and shot two rounds from his window at Fournier, according to the affidavit.

After the shooting, Fournier was taken to Central Maine Medical Center in Lewiston where he was pronounced dead.

Defense attorneys wrote that the 110-pound Dalphonse was intimidated by the 283-pound Fournier, who “proceeded to throw a violent right-cross punch into the face of Gage Dalphonse,” causing his lip to bruise and swell.

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