AUBURN — A judge won’t decide until later this month whether a local man charged with murder in a July shooting in the Walmart parking lot should be allowed bail.
Justice William Stokes heard Friday from a prosecutor and defense attorney who argued over whether Gage Dalphonse, 21, of 47 Crest Ave., should remain in Androscoggin County Jail or be freed. Stokes gave the attorneys deadlines for written arguments later this month, after which he said he would make his decision.
Dalphonse is charged with killing Jean Fournier, 41, of Turner on July 27 in the Walmart parking lot off Mount Auburn Avenue.
The hearing in Androscoggin County Superior Court provided a preview of evidence likely to be presented should the case go to trial.
Defense attorney Leonard Sharon wrote in a brief that even if the court were to find probable cause that Dalphonse had killed Fournier, his client may still be eligible for bail.
Because many states have laws that differentiate degrees of murder, it’s implied that Maine’s statute referencing the “previously capital offense” would have applied the death penalty only in cases involving clear malice, Sharon told the judge.
“It certainly cannot be said that the defendant engaged in the willful, premeditated and deliberate activity which would establish that (Dalphonse) acted with express malice,” Sharon wrote in his memorandum.
During cross-examination, Sharon asked Maine State Police Detective Herbert Leighton whether the encounter between Dalphonse and Fournier in the parking lot that day had been a “chance meeting.”
“It was,” Leighton said.
Sharon hinted in his brief that the defense would argue that Dalphonse had acted in self-defense.
Assistant Attorney General Lisa Bogue walked Leighton through his investigation when he took the witness stand.
He testified that police interviewed at least six people – including Dalphonse – who gave varying accounts of the events leading up to and during the shooting.
At one point, Leighton demonstrated how Dalphonse reportedly pulled his torso out the driver’s window of his Volkswagen Golf, twisted his body to face the back of his car and fired his Glock 9 mm handgun twice into Fournier’s back.
The medical examiner determined that Fournier died from multiple gunshot wounds. One of the bullets struck Fournier’s spine and the other, his heart.
Bogue told Stokes that probable cause exists to show Dalphonse committed intentional or knowing murder, the only charge against him.
“The facts of the case that the court has heard today was that the manner in which the defendant shot the victim in the case is not indicative of self-defense,” she told the judge.
She argued that Dalphonse “is absolutely a risk to the community.”
The early evening shooting at a crowded Walmart parking lot where many families with children were nearby was sparked by anger, she said.
She pointed to a February conviction for misdemeanor reckless conduct stemming from a shooting in the summer of 2018, when Dalphonse shot someone with a pellet gun in the arm and hand.
According to state law, in the case of a former capital offense, the judge may allow bail unless prosecutors are able to show there “is a substantial risk that the capital defendant will not appear at the time and place required or will otherwise pose a substantial risk to the integrity of the judicial process; there is a substantial risk that the capital defendant will pose a danger to another or to the community; or there is a substantial risk that the capital defendant will commit new criminal conduct.”
Sharon called Dalphonse’s father, Daniel, to the witness stand.
Daniel Dalphonse Jr. said he had taken photographs of his son after the shooting, showing an injury to his mouth.
During cross-examination, Leighton said he had taken photos of Dalphonse that showed bruising to the inside of his lip, which was swollen.
Police said Dalphonse shot Fournier on July 27 shortly before 7 p.m. outside the store. Fournier was taken to Central Maine Medical Center in Lewiston, where he was pronounced dead.
Dalphonse was arrested and charged on July 31.
Gage Dalphonse, left, talks with his attorney, Leonard Sharon, in Androscoggin County Superior Court in Auburn on Friday. Russ Dillingham/Sun Journal Buy this Photo
Several witnesses said Fournier’s girlfriend had called Dalphonse a “little bitch” as he drove through the parking lot. He retorted, calling her a “whore.”
Witnesses said Fournier followed Dalphonse’s car, which he eventually parked. Fournier walked up to the open driver’s side window and talked to Dalphonse.
Dalphonse and his passenger, Defghan Zitsch, said Fournier struck Dalphonse. Zitsch called it a slap, Dalphonse, a punch.
A witness parked across the median from Dalphonse said he never saw Fournier strike Dalphonse, who appeared agitated, while Fournier appeared composed, Leighton said.
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 “(expletive) kill” him.
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.
Police said Fournier was unarmed. Witnesses said he had started to take a couple of steps toward the back of the car when he yelled, “Gun!” and “Run!”
While questioning Leighton, Sharon asked him to describe the respective sizes of Dalphonse and Fournier. Leighton said Fournier was taller than 6 feet and weighed as much as 280 pounds. Dalphonse, he said, stood 5-foot-4 and weighed 110 pounds.
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