April 29. 2013 8:23PM

Epping man loses court challenge on using his cellphone as evidence

Union Leader Correspondent

BRENTWOOD - An Epping man charged with shooting a man with a shotgun while fighting over a woman has lost his bid to keep jurors from hearing about text messages and other evidence found on his cellphone.

Tyler Locascio, 25, of Epping, is headed to trial for second-degree assault next month for allegedly shooting Shawn Eaton of Epping with a round of bird shot on the night of Dec. 11, 2011. Defense lawyer Andrew Cotrupi argued that search warrants obtained by Epping police did not give investigators the authority to search through every message on his client's phone.

Police turned up "potentially incriminating contacts" and other witnesses during two searches Feb. 14 and March 5, according to a judge's decision.

Judge N. William Delker concluded that at least one of the two warrants allowed police to search for "any and all cellular telephone activity to include text messages, call activity," and messages saved as drafts, or deleted from the phone. Delker said in a 10-page order that police obtained a second search warrant for the phone after the defense filed a court motion seeking to have evidence from the phone tossed out of court. But the second warrant that Epping police applied for on March 5 did not mention any of the evidence found during the first search weeks earlier, according to Delker.

Even if the first warrant was not supported by enough reasonable grounds to review messages between Locascio and others, "the second warrant was valid because it was based on independent probable cause," Delker said.

At a hearing earlier this month, assistant county attorney Jerome Blanchard said Epping police learned early on in their investigation that the confrontation was set off because Locascio and the victim, Shawn Eaton, were dating the same woman.

He said phone activity among the three people was "going crazy" an hour before and after the shooting. Eaton was struck on his arms, chest and back of his head from the shotgun blast, police said. The confrontation happened about 8:15 p.m. outside the home of Eaton's uncle.

Delker also granted a request by prosecutors to call the woman involved with the two men to testify as a hostile witness at trial. The defense will be allowed to question the credibility of one state witness who was convicted of fraudulent use of a credit card. Locascio heads to trial the week of May 20.