The Berkshire Eagle, berkshireeagle.com
BYLINE: John Sakata, Berkshire Eagle Staff
EGREMONT -- Lawyers representing two men facing drug charges will know by March 27 whether their cases will be dismissed because two Egremont officers violated protocol by breaking into their station’s evidence room to look at the drugs.
Four Egremont officers, including Police Chief Brian Shaw, were questioned Monday at Southern Berkshire District Court about possible evidence tampering in the drug-related arrests of Michael Consolini of Sheffield and Nathan Lopes of Housatonic, both 19.
The defendants’ lawyers had asked for a motion to sanction, saying a chain of custody violation on the evidence merits the charges being dismissed.
"That part of not knowing, you have to give the benefit to the defense," said attorney Jedd Hall, who represents Lopes.
The prosecutor, Berkshire Assistant District Attorney Jason Lederman, said that all testimony indicates the evidence wasn’t removed from the evidence bags, and a jury should determine whether the case should be dismissed.
Consolini and Lopes were arrested at French Park in Egremont on May 1, 2013, for alleged drug possession and other charges. Police confiscated about 16 grams of cocaine and an ounce of marijuana, as well as psilocybin, commonly known as hallucinogenic mushrooms, and bath salts, according to court documents.
Egremont officers Edward Pezze and Kyle Kemp said Monday that they broke into their own evidence room May 4 using a master key and opened the evidence locker. Pezze expressed interest in seeing the drugs because he hadn’t been familiarized with them during part-time police academy training. Kemp removed the lock.
Egremont supervisors were alerted on May 6 and immediately notified the Berkshire District Attorney’s Office.
During Monday’s court hearing, which started in the morning and stretched into the afternoon, the defendants’ attorneys centered their arguments around the lack of concrete proof that the evidence hadn’t been removed from the bags and tampered with.
Lori Levinson, who represents Consolini, said there could be a due process violation, and she raised the possibility of a breaking and entering violation by the officers. She also said there were discrepancies in the statements of the officers.
Egremont Police Department personnel, including Shaw, Pezze, Kemp, and Hans Carlson, who learned about the violation and reported it to his supervisor, all testified.
Representing Lopes, Hall described the circumstances as "novel and unusual" and without precedent. He said the onus was on the commonwealth to prove there wasn’t tampering, and said the case should be dismissed.
Lederman said during his questioning that all the officers said the bags containing drugs hadn’t been opened. His statements were backed by Carlson, who said that the evidence bags didn’t have any signs of tampering and his signature adorned all the bags, which indicated that the evidence wasn’t removed and put in different evidence bags.
The court hearing also highlighted a lack of sufficient training for some Egremont officers. Pezze and Kemp said their part-time officer academy training didn’t include an overview on chain of command on evidence or an extensive overview on drugs beyond marijuana.
Following the evidence room break-in, they both said they were taken off active duty and were only reinstated after they contacted the police union to act on their behalf. They were reinstated with the order they receive extra training.
During his testimony, Shaw said he requested both officers not be re-appointed because of the violation.
Judge Fredric Rutberg took a decision under advisement until March 24, but he said there wasn’t evidence of contamination, only evidence that questions the credibility of the evidence.
"[The testimony is] uniform that nothing tampered with the bags," Rutberg said.
Consolini and Lopes each have five charges against them. Consolini is charged with trespassing with a motor vehicle, a drug violation near a school park, and multiple charges of drug possession with the intent to distribute.
Lopes was charged with trespassing, drug possession, disorderly conduct, and charges related to resisting arrest.
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