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Posted by: Brian823

Seized guns excluded as evidence

Man accused of assault while nude
Gary V. Murray
T&G STAFF

WORCESTER- Police should have obtained a search warrant before seizing two firearms from an unlocked gun cabinet in the home of a West Brookfield man awaiting trial on charges of assaulting his neighbor with a rifle while naked, a judge has ruled.

Superior Court Judge Peter W. Agnes Jr. prohibited prosecutors from entering into evidence a rifle and handgun taken from the home of Charles Lapen, but denied a motion to suppress another rifle seized by police and statements made by Mr. Lapen to investigators.

Mr. Lapen, 51, is accused of assaulting his neighbor, Kimball Moore of 241 Long Hill Road, West Brookfield, on July 11, 2002. Police said he later told them he was "a tree-hugger" and he was tired of Mr. Moore "stealing my trees and driving over my property with a tree-skidder."

Mr. Moore, who is employed as a forester, testified at a hearing on a defense motion to suppress evidence that he was clearing brush in his back yard when he heard a gunshot, looked up and saw Mr. Lapen standing nearby, completely nude, holding a rifle with a scope and sling.

Mr. Lapen was charged with assault with a dangerous weapon, discharging a firearm within 500 feet of a dwelling, indecent exposure and failure to properly secure a firearm. The failure to secure a firearm charge was regarding the two guns seized from a cabinet in Mr. Lapen's one-room home after police responded to a 911 call from Mr. Moore's girlfriend.

Judge Agnes noted that in light of his ruling suppressing the two firearms from evidence, there was no need for him to act on another motion filed by Mr. Lapen's lawyer, John J. Roemer, seeking the dismissal of the failure to secure a firearm charge.

Mr. Lapen is scheduled to go to trial May 12 in Worcester Superior Court.

Judge Agnes found that police were justified in entering Mr. Lapen's home after the alleged assault to make sure no one else was inside who might harm them or need assistance. But once they did that and seized a rifle "in plain view" on a bed, the justification for the warrantless entry had come to an end, the judge wrote in his March 12 ruling.

"The police should have secured the home and obtained a warrant before undertaking any further search," Judge Agnes said in support of his suppression of the firearms taken from inside the closed, but unlocked cabinet.

According to the judge's ruling, Mr. Lapen made a statement to police after being advised of his so-called Miranda rights. In addition to describing himself as a "tree-hugger" and saying he was upset with Mr. Moore, Mr. Lapen told police he had consumed "2 ounces" of vodka before the alleged assault and he had "only shot at the ground and not at Mr. Moore," Judge Agnes found.

Although Mr. Lapen "showed signs of intoxication," his comments to investigators were voluntary, according to Judge Agnes, who denied Mr. Roemer's request that prosecutors be precluded from introducing them as evidence at trial.

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Posted by: mpd61

Okay...........

It's easy, Goodbye to LTC/FID now! Can anyone say "Bridgewater"

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