MERRIMACK — A mother accused of negligent homicide in the drowning death of her baby boy is seeking to have statements she previously made to police suppressed as evidence.

An attorney for Melissa M. Gutierrez, 26, has filed a motion to suppress the statements, alleging they were obtained while Gutierrez was hysterical over the death of her son.

The motion has been filed at Hillsborough County Superior Court in Nashua, where a hearing on the matter will be held July 23, according to court documents.

“The police took advantage of Ms. Gutierrez's understandably emotional state to get information from her. Under these circumstances, Ms. Gutierrez was so racked with agony and distress (as any parent would be) that she was of a mind incapable of a conscious choice,” claimed attorney Anthony Sculimbrene in the motion.

Gutierrez is currently under house arrest, facing charges of negligent homicide, manslaughter, two counts of reckless conduct and two counts of endangering the welfare of a child for the Aug. 25, 2011 incident at her home at 46 Wilson Hill Rd.

Police allege that she left her two children, an 8-month-old baby and a 2-year-old boy, unattended in the bathtub for an extended period of time with the water running. The baby, Christian Ntapalis, drowned as a result of her negligence, allege police.

Her remaining son, James Blackington III, now 3, was placed in state custody following the incident, as his father is deceased, according to court records. However, a judge has allowed Gutierrez to have contact with Blackington and another child, Nevaeh Tessier, 7, who is being raised by Tessier's aunt, court documents said.

Gutierrez's legal counsel said that police took statements from Gutierrez at her house while she was either holding her baby in her arms or had just given him to emergency personnel, in addition to questioning at the hospital just after learning her son had died.

“The officer's report notes that she was hysterical and repeatedly broke down,” said Sculimbrene in his motion, arguing any statements made during that time should be suppressed because they were voluntary. “Ms. Gutierrez broke down numerous times and the interrogation had to stop.”

The motion goes on to claim that police “swooped in” to question Gutierrez, capitalizing on her “crippling hysteria as a means of getting her statements.”

Police have released few details about the case, and have refused to say what the mother was doing or where she was when the two children were left alone in the bathtub with the water running. Police have not elaborated on how long the children were left unsupervised in the tub, and the affidavit detailing the crime remains sealed at Hillsborough County Superior Court.

Gutierrez, along with emergency personnel, attempted to resuscitate Christian. Christian's father, Peter Ntapalis, has not commented on the tragedy.

Gutierrez is facing separate, unrelated charges stemming from an alleged shoplifting spree this past spring at the Mall at Rockingham Park in Salem.

She is accused of stealing jeans from Lord & Taylor and was charged with theft and two counts of possession of a controlled drug for that incident.

khoughton@newstote.com