New Hampshire Attorney General Kelly A. Ayotte announces that the Attorney General's Office has made a preliminary determination that Concord Police Sergeant Steven Smagula's discharge of a firearm in Concord on May 1, 2008, was not a criminal act and that no criminal charges will be sought in connection with the shooting incident.

On Wednesday, April 30, 2008, at 6:11 p.m. and then again at 6:12 p.m., New Hampshire E-911 received two open-line calls from phone number (603) 225-6093. These calls contained no pre-recorded messages, and there were no-audible sounds. In response to these calls, Concord Police Officers Joshua Levasseur and Brian Cook were dispatched to the Granite State Credit Union building which was under construction at 311 Sheep Davis Road. When they arrived at around 6:26 p.m., they saw that the door on the northern side of the building had no handle in it. Instead, the door had a piece of wire threaded through the hole where the door handle would normally be, with a loop in the wire which could be used to open and close the door. Both officers walked around the building and then went inside and searched the interior. No one was located inside the building during that search and the building appeared to be undamaged.

On the night of April 30, into May 1, 2008, Concord Police Sergeant Steven Smagula was supervising the third-shift patrol officers. Sergeant Smagula is an eleven-year veteran of the Concord Police Department, having served the last four years as a sergeant. Sergeant Smagula is also one of the department's tactical response officers and a team leader in the Central New Hampshire Special Operations Unit. He has had multiple trainings in building search techniques, firearms handling and special weapons and tactics (S.W.A.T.) training. At the beginning of his shift, Sergeant Smagula had explained to the shift watch commander, Lieutenant John Brown that he intended to have some officers practice building search techniques later on in the evening if the number of calls for service were low.

At around 12:00 a.m. during his shift, Sergeant Smagula spoke with Officer Levasseur. Levasseur, who has been with the Concord Police Department for over two and a half years, was still on-duty from the day before. He was assigned to drive with Officer Thomas Hughes in a semi- FTO (Field-Training Officer) capacity that shift, as Officer Hughes' normal FTO had called in sick. When they spoke, Sergeant Smagula advised Officer Levasseur of his intent to conduct training with some officers on proper building search techniques if the work shift was quiet and there were not many calls for service.

Officer Levasseur told Sergeant Smagula about his earlier check of the Granite State Credit Union building that night. He mentioned that it was a vacant building that was unsecured and could be used for a building search training based on his previous search of the building that evening. Having learned that the building was unsecured, Sergeant Smagula intended to check-in on the property at least twice during his shift, given recent tool thefts and copper thefts from building sites in the past twelve months. He told Officer Levasseur that he needed to finish his initial duty work for the shift and he would then look in on the building.

A little after 2:45 a.m. on May 1, 2008, Sergeant Smagula and Officer Nicole Williams went to the Granite State Credit Union building at 311 Sheep Davis Road in Concord. Once there, Sergeant Smagula observed the physical layout of the building and its location on the property. The building had been under construction while Sergeant Smagula had been assigned to the third shift. Prior to this night, Sergeant Smagula had ensured someone drove by the building site on Sheep Davis Road at least once during the third shift. Understanding that the department would be routinely responding to alarms and calls for service when the credit union opened, he noted the layout of the building on the property and the approach that any responding officer would have to use if called to the building. He also observed the door mentioned by Officer Levasseur with its missing door-handle and saw that the building was unsecured. Sergeant Smagula and Officer Williams then went inside and searched the building and confirmed that there was no ongoing theft or vandalism.

Shortly before 3:00 a.m., Officers Levasseur and Hughes arrived at the building. They registered their whereabouts with the department's communications dispatcher as a meeting at 311 Sheep Davis Road. Sergeant Smagula did not specifically tell his dispatch that the officers were signing off at the building so as not to inform anyone who was listening with a police scanner that both of the patrol officers assigned to the Heights section of Concord would be signed out at a single location.

Once all the officers arrived at the building they went inside to start the training. Before beginning the training session, Sergeant Smagula emptied his firearm and instructed the other officers to empty theirs as well. Each officer then checked every firearm to ensure that they were unloaded.

After ensuring that all four weapons were unloaded, the officers practiced the proper techniques for searching a building for hidden persons. This included searching rooms and interior walls in an unfamiliar location. As the officers practiced searching a room from the hallway or foyer, Sergeant Smagula judged each officers' techniques and instructed them whenever they improperly exposed themselves to danger during their search. At one time, Sergeant Smagula "dry fired" or pulled the trigger of his unloaded firearm to demonstrate that the officers improperly exposed themselves to danger during their search and could have been shot by an armed intruder.

After almost an hour and a half of training, at approximately 4:20 a.m., the exercise was concluded. The officers stood inside the building in a line near the entrance and reloaded their firearms. While they were reloading, Sergeant Smagula instructed them and monitored their progress while he reloaded his own firearm from a kneeling position behind the other officers. As the officers prepared to leave the building, Officer Levasseur asked whether they could have searched the building faster using the learned techniques, now that they knew the layout of the building. Sergeant Smagula answered that question by telling the officers that speed was dependant upon practice and proper footwork, rather than knowing the floor plan. At this time, Sergeant Smagula turned away from the officers towards the front of the building facing Route 106, drew his firearm and held it in front of him in the "on-guard" position. He held his firearm with his trigger finger located outside the trigger guard, lying alongside the frame of his gun in a position referred to as "indexed." Sergeant Smagula then demonstrated the proper footwork to use during the building clearing process as he approached the entranceway to the main foyer. After clearing the entranceway, he continued his demonstration by turning left to right and walking down the hallway in view of the other officers. Sergeant Smagula's firearm was now pointed to his left, just slightly away from the other three officers' locations. He still held his firearm in the on-guard position with his trigger finger alongside the frame of his gun.

Sergeant Smagula continued walking down the hallway and began passing in front of the three officers, who were standing side by side to his right. The officers were making note of his footwork and the way he carried himself. Once Sergeant Smagula became square with Officer Hughes' and Officer Williams's positions, he turned his head towards his right to make a comment to the officers on the demonstrated technique. During this turn, his arms which were holding his firearm, drifted slightly towards the right. As that happened, Sergeant Smagula's finger moved from the frame of the gun onto the trigger and his finger pulled the trigger. No witnesses recalled seeing Sergeant Smagula place his hands on the trigger or pull the trigger. Sergeant Smagula later stated it was never his intention to place his hand on the trigger or fire his weapon. In addition, he did not remember whether he had de-cocked his firearm after reloading it while he had been simultaneously observing the other officers reloading their firearms earlier.

Once Sergeant Smagula's arm moved in the direction of Officer Levasseur, his firearm discharged, striking Officer Levasseur in the chest with a bullet from a distance of approximately eight to ten feet. Officer Levasseur was wearing a protective vest as mandated by the police department and as a result was not seriously injured by the bullet. He initially refused to go to the hospital and it was only after returning to the police department that he agreed to go to the Concord Hospital for an examination when ordered to. Officer Levasseur was subsequently treated and released for a significant abrasion to the skin to the right pectoral area of his chest. However, he suffered no broken bones or other injuries. No other officers were physically injured during the incident.

Immediately after the shooting, Sergeant Smagula called Lieutenant Brown to report the incident. Once the details of the incident were known, the Concord Police Department notified the New Hampshire Attorney General's Office about the shooting. An investigation was undertaken in conjunction with the New Hampshire State Police Major Crime Unit.

As part of the investigation, the bullet's shell casing, Sergeant Smagula's firearm, Officer's Levasseur's clothing and Officer Levasseur's protective vest were secured and turned over to the New Hampshire State Police Major Crime Unit. The State Police Major Crime Unit also searched the shooting scene and located no evidence connected to the shooting. Subsequent testing by the New Hampshire State Police Forensics Lab revealed that Sergeant Smagula's firearm was functioning properly at the time of the discharge.

In addition, all four of the officers involved in the incident were interviewed. Those officers, and every other officer who was interviewed, completely cooperated in the investigation. In addition, the command staff at the Concord Police Department provided their complete cooperation during the investigation.

As part of its investigation, the Attorney General's Office has reviewed a variety of potential criminal charges which might fit the facts of the shooting incident. Those charges included First Degree Assault, Second Degree Assault, Simple Assault and Reckless Conduct.

Under RSA 631:1, I(a), a person is guilty of First Degree Assault if he purposely causes serious bodily injury to another. "Serious Bodily Injury" means any harm to the body which causes severe, permanent or protracted loss of or impairment to the health of function of any part of the body. Here, Officer Levasseur suffered no serious bodily injury, so this offense is not applicable. Under RSA 631:1, I(b), a person may also be guilty of First Degree Assault if he purposely or knowingly causes bodily injury to another by means of a deadly weapon. There is evidence to support the "bodily injury" element because Officer Levasseur suffered an abrasion as a result of Sergeant Smagula's conduct. However, proving a criminal charge also requires proof of the mental state element. To act "purposely" means that a person's conscious object is to cause the resulting injury. The mental state of "knowingly" means that a person is aware that his conduct is of such nature that the resulting injury would occur or that such circumstances exist. Here, there is no evidence that Sergeant Smagula had the conscious object to cause bodily injury to Officer Levasseur, or that he was aware that his conduct was of such nature that he would fire the weapon and the resulting injury would occur, so this offense is also not applicable.

Under RSA 631:2, I(a), a person is guilty of Second Degree Assault if he knowingly or recklessly causes serious bodily injury. Again, Officer Levasseur suffered no serious bodily injury so this offense is not applicable. Under RSA 631:2-a, I(a), a person is guilty of Simple Assault if he purposely or knowingly causes bodily injury or unprivileged physical contact with another. There is no evidence that Sergeant Smagula had the conscious object to cause bodily injury, or that he was aware that his conduct was of such nature that he would fire the weapon and the resulting injury would occur. Therefore, these offenses are not applicable to this situation.

Under RSA 631:2, I(b), a person is guilty of Second-Degree Assault if he recklessly causes bodily injury to another by means of a deadly weapon. Alternatively, under RSA 631:3, I, a person is guilty of Reckless Conduct if he recklessly engages in conduct which places or may place another in danger of serious bodily injury. Finally, under RSA 631:2-a, I(b) a person is guilty of Simple Assault if he recklessly causes bodily injury to another. A person acts "recklessly" when he is aware of and consciously disregards a substantial and unjustifiable risk that exists or will result from his conduct. The risk must be of such a nature and degree that, considering the circumstances known to him, its disregard constitutes a gross deviation from the conduct that a law-abiding person would observe in the situation. These charges are potentially applicable here but as explained below, cannot be proven beyond a reasonable doubt.

Under RSA 631:2-a, I(c), a person is guilty of Simple Assault if he negligently causes bodily injury to another by means of a deadly weapon. "Negligently" means that a person fails to become aware of a substantial and unjustifiable risk that exists or will result from his conduct. The risk must be of such a nature and degree that his failure to become aware of it constitutes a gross deviation from the conduct that a reasonable person would observe in the situation. The New Hampshire Supreme Court has explained that criminal negligence requires proof of more than an ordinary risk and the deviation must be more than simply unreasonable or thoughtless. The Court has also equated gross deviation from the conduct that a reasonable person would observe as a flagrant or substantial departure from said conduct. This charge is potentially applicable here but as explained below, cannot be proven beyond a reasonable doubt.

Following a review of all the evidence gathered in this case, the Attorney General's Office has concluded that the evidence does not support a finding, beyond a reasonable doubt, that Sergeant Smagula committed a crime when he discharged his firearm and struck Officer Levasseur with the bullet.

The training of building search techniques conducted by Sergeant Smagula on May 1, 2008, was done with the intent to ensure the safety of the officers working with him. Such training opportunities routinely arose in the pre-dawn morning hours while officers were working third-shift, and Sergeant Smagula consistently took an active approach to training whenever the opportunity arose with officers under his command. Training on techniques for building searches was not something that was new to Sergeant Smagula. In fact, Sergeant Smagula had conducted training on the same subject during the previous week on the third shift. His "dry firing" of his emptied firearm during the training was something he had done in several past exercises where he was both a student and an instructor. For example, Sergeant Smagula had dry fired his firearm in a training with other Concord officers the week before this incident.

In addition, none of the officers who were present reported that they had concerns for their safety or were worried when Sergeant Smagula drew his firearm to demonstrate the proper technique for clearing a building. No officer reported that they felt unsafe, or even thought to remind Sergeant Smagula that his firearm was now loaded. All three of the officers reported that their attention was on Sergeant Smagula's footwork and physical demeanor at the time Officer Levasseur was shot. Sergeant Smagula stated that his attention was with Officers Williams and Hughes as he turned his head to comment on the demonstrated technique. Based on this evidence, it appears that Sergeant Smagula's arms moved slightly when he turned to talk to his fellow officers and in doing so, his finger slipped into the trigger guard and onto the trigger, thereby accidentally pulling the trigger and discharging his firearm.

There is no evidence to support a finding that Sergeant Smagula consciously pointed his weapon at any officer or intentionally pulled the trigger. The evidence also fails to show, beyond a reasonable doubt, that Sergeant Smagula's behavior constituted criminal recklessness or negligence. In other words, the evidence is not sufficient to prove that Sergeant Smagula was aware of and consciously disregarded a substantial and unjustifiable risk or that he failed to become aware of a substantial and unjustifiable risk under the circumstances. Instead, the evidence supports the conclusion that Sergeant Smagula's conduct in firing the gun was an accident. Although "accident" is not explicitly recognized as a defense in New Hampshire's Criminal Code, it is recognized in our criminal jury instructions and by case law as a defense which should be given at trial if the "theory is supported by some evidence." State v. Blackstone, 147 N.H. 791, 798 (2002). Here, there is ample evidence to support a claim that the shooting was the result of an "accident" and not criminal conduct.

Based upon all the facts and circumstances uncovered during the investigation, the evidence does not support a finding, beyond a reasonable doubt, that Sergeant Smagula's conduct during the shooting incident constituted a crime. Therefore, no criminal charges will be sought in connection with Sergeant Smagula's discharge of his firearm on May 1, 2008.

A comprehensive written report concerning the investigation of this incident will be issued in the future.