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News Release

For Immediate Release
January 12, 2009

Contact:
Senior Assistant Attorney General Susan G. Morrell
Assistant Attorney General Benjamin J. Agati
(603) 271-3671

May 1, 2008 Officer Involved Shooting in Concord, New Hampshire

New Hampshire Attorney General Kelly A. Ayotte announces that the Attorney General's Office has concluded its review of the circumstances surrounding the officer involved shooting in Concord, NH on May 1, 2008. The Attorney General's Office has determined 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.

The final report is attached hereto.

Report Of The Attorney General Concerning The Officer Involved Shooting By Concord Police Sergeant Steven Smagula Thursday, May 1, 2008, In Concord, NH

I. Introduction

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. 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 in Concord. Both officers saw that the building was unsecured, 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. At the beginning of his shift, Sergeant Smagula 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. Also at the beginning of the shift, Sergeant Smagula spoke with Officer Levasseur, who advised him about his earlier check of the Granite State Credit Union building. 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.

Just after 2:45 a.m. on May 1, 2008, Sergeant Smagula met Officer Nicole Williams at the Granite State Credit Union building, and saw it was unsecured. Officer Levasseur and Officer Thomas Hughes arrived shortly thereafter, and after ensuring there was no ongoing theft or vandalizing, all four officers went inside where they unloaded their firearms and started building search training. At approximately 4:20 a.m., the training exercise concluded. The officers reloaded their weapons as they were about to leave. Officer Levasseur then asked Sergeant Smagula a question concerning how fast trained officers could have searched the building if they knew the building layout. At this time, Sergeant Smagula turned away from the officers, drew his firearm, held it in front of him in the "on-guard" position with his finger along the side of the gun, and demonstrated the proper footwork to use during such a search. While walking back towards the officers, continuing to demonstrate the proper foot stance, Sergeant Smagula's arms drifted while addressing the other officers. At that time, Sergeant Smagula's finger came off the frame of the gun onto the trigger and his finger inadvertently pulled the trigger. The gun discharged, striking Officer Levasseur in the chest on his protective vest. Officer Levasseur was not seriously injured by the bullet. He was treated and released for an abrasion to the skin to the right area of his chest with no broken bones or other injuries. No other officers were physically injured during the incident.

Immediately after the shooting, Sergeant Smagula called Lieutenant John 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 by the Office of the Attorney General, in conjunction with the New Hampshire State Police Major Crime Unit. The Attorney General's preliminary report, released on May 9, 2008, found that the evidence did not support a finding, beyond a reasonable doubt, that Sergeant Smagula's discharge of his firearm constituted a crime. Instead, the evidence supported the conclusion that the shooting was the result of an accident and not criminal conduct.

The purpose of this report is to summarize the completed investigative findings and to analyze Sergeant Smagula's actions in light of the findings of the investigation. For the reasons discussed in detail below, the Attorney General has concluded that the circumstances of Sergeant Smagula's conduct do not support instituting any criminal charges for the discharge of his firearm on May 1, 2008.

II. The Shooting

A. Police Witnesses

There were no civilian witnesses to this incident. Many of the police witnesses were interviewed on the morning of May 1, 2008, or immediately thereafter. All four of the officers involved in the incident were interviewed. Those officers, and every other officer who was interviewed, cooperated completely in the investigation. In addition, the command staff at the Concord Police Department provided their complete cooperation throughout the investigation. Except as noted below, all the interviews, dispatch records, and written statements were materially consistent.

Concord Police Officer Joshua Levasseur

Officer Levasseur was interviewed at 9:59 a.m. on May 1, 2008. The interview was recorded. Levasseur had been working as a Concord police officer for a little over two years at the time of this incident.

Levasseur said that he was working a double shift that evening, having started his first shift at 4:00 p.m. on April 30, 2008. He was scheduled to work until approximately 7:00 a.m., on May 1, 2008. He reported that he and Officer Brian Cook were dispatched to the Granite State Credit Union building which was under construction at 311 Sheep Davis Road around 6:12 p.m. the evening before. When they arrived at around 6:18 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. Levasseur remarked to Cook that the owners of the building were taking a risk not securing the building because if a teenager found out the building was open, there would be a greater risk of vandalism. The officers left the address after their search at approximately 6:26 p.m.

When he moved from second to third shift, Officer Levasseur was assigned to Sector Four, which encompasses the Heights area of Concord north of Loudon Road and continuing up to Mountain Road. At approximately 11:00 p.m., Officer Hughes was assigned to patrol with Levasseur. Levasseur was the more senior officer and Hughes was still a trainee. Early in the shift, Sergeant Smagula spoke with Levasseur while both officers were still in the police station, and informed him that they would get together to practice proper building search techniques if it was a quiet night. Levasseur informed Sergeant Smagula of the vacant Granite State Credit Union building, and said that would be a good place for the training.

Just before 3:00 a.m., Officers Levasseur and Hughes arrived at 311 Sheep Davis Road. Upon entering the building through the door on the northern side of the building, they called out to Sergeant Smagula and Officer Nicole Williams, who were already inside. They confirmed that the building was empty and safe to walk around without disturbing any construction equipment or ongoing work. The lights in the building were operating on automatic sensors, so each light turned on and off when the officers entered or exited each area of the building. The only room that was not so lit was a small side room in the basement, where the officers later used their flashlights to practice searching while holding their firearm in one hand and their flashlight in another.

When all four officers were in the entry foyer, Sergeant Smagula had them face away from one another, empty the magazines from their weapons, move the slide back, and eject the round in the chamber. He then had them secure the magazine and loose round in their pockets, turn back towards the group with the slide locked back, and had each officer check each other to visually ensure that all four firearms were unloaded. After all four officers unloaded and triple checked that all firearms were empty, Sergeant Smagula began training them in building search techniques.

During the training, the three officers practiced clearing rooms and searching for hidden suspects under Sergeant Smagula's supervision. During this exercise, he instructed them on the proper way to cover each other, to search behind corners, and to limit exposing themselves to potential danger. After moving through the first floor, the officers went towards the stairwell, where Sergeant Smagula produced a small mirror device, which he first demonstrated and then taught the officers how to use to search a room without exposing their body to possible danger.

Several times when officers improperly exposed themselves to possible danger, Sergeant Smagula would get inside the area to be searched and play the role of a potential suspect. He would then call out when he could see one of the officers but they could not see him, meaning that they were exposing themselves to possible danger. In addition, while practicing search techniques in the small dark side room in the basement, Sergeant Smagula would stay in the room, and pull the trigger of his firearm. Officer Levasseur heard this make an audible clicking noise during a practice search, which he understood meant that he had exposed himself to possible danger. Officer Levasseur also understood that to mean that Sergeant Smagula, in the role of a hiding suspect with a possible firearm, was able to see and thereby shoot the officers because they had improperly positioned themselves during the search. In other words, this was done by Sergeant Smagula to indicate when he could see the searching officers before they could see him because they improperly exposed themselves and stepped away from protective cover.

When the training ended, all four officers moved back towards the foyer where they had entered. Officer Levasseur, in synchronicity with the other two officers, faced away from the group and reloaded his weapon with the loaded magazine, chambered the first round, unloaded the magazine to insert the loose round into the magazine, and then reinserted the magazine into his firearm. Officer Levasseur did not visually see the other officers reload their weapons, but based on their physical placement, he could hear both Officer Hughes and Officer Williams reload their firearms off to his side. Officer Levasseur then holstered his firearm, and turned back towards the group.

After reloading and holstering his weapon, Officer Levasseur and the other officers faced Sergeant Smagula, as he discussed how the tactical team would search a building. Officer Levasseur remembers the Sergeant explaining that it takes constant practice to be able to search a room with greater speed, and that practice is the only way to be able to speed up their search time of a building and do it safely.

Officer Levasseur reported that he remembers that one of the group asked the sergeant how fast the tactical team could search a building. Sergeant Smagula answered that a team could only move as fast as it could safely shoot on target. Sergeant Smagula then demonstrated proper maneuvering, first walking from west to east, and then turning back, so he was now walking from east to west towards the officers' direction. Levasseur estimated that Sergeant Smagula was ten to fifteen feet away from his position at this time. Officer Levasseur remembered that Sergeant Smagula was pointing his firearm in Levasseur's general direction. Officer Levasseur was watching the demonstration, when he heard Sergeant Smagula's firearm discharge. Officer Levasseur did not see the flash from the gun's barrel, but did see smoke coming from that area. He then felt a pain in his chest, and felt very stunned. He then ripped his shirt down, saw a little bit of blood that appeared to him to be superficial, and saw that the bullet did not fully penetrate his protective vest. The first words Officer Levasseur remembered saying was, "What the heck just happened?"

The other three officers then rushed to Officer Levasseur's side, looked him over and tried to make him sit down. Officer Levasseur refused, and was very adamant that he wasn't hurt, saying, "I'm fine, I'm fine," while they removed his shirt and protective vest. After a few minutes, Officer Levasseur agreed to sit down for a minute, and he remembers Sergeant Smagula going outside to use the phone. When he returned, Officer Levasseur walked over to him, shook his hand and told him he was ok, and then hugged him. Officer Levasseur then got in Sergeant Smagula's car, and the four officers left simultaneously to return to the police station. Officer Levasseur reported that Sergeant's Smagula's face was very pale, so much so that he asked the sergeant if he was all right. Sergeant Smagula said that he was, but that it was the worst day of his life. Officer Levasseur reassured Sergeant Smagula that he was ok.

At the station, Lieutenant Brown and Sergeant Smagula insisted Officer Levasseur go to the hospital to be checked out. He reluctantly agreed, and was transported there by Officer Williams. Officer Levasseur walked in to the hospital, and told the registration desk what had happened. Upon examination and treatment at the hospital, including x-rays and a CT scan, it was determined that Officer Levasseur's injury was an abrasion to the skin with no broken bones.

Officer Levasseur does not remember seeing what Sergeant Smagula did with his firearm after the shot. He does remember Sergeant Smagula picking up the spent shell casing from the floor before the officers left the building.

Concord Police Officer Thomas Hughes

Officer Hughes was interviewed at 10:41 a.m. on May 1, 2008. The interview was recorded. Hughes had been working as a Concord police officer for less than three months at the time of this incident. He had less than one year of additional experience in law enforcement before starting with the Concord Police Department.

Hughes said that he was working third shift that morning, having started his shift at 11:00 a.m. He reported that he was assigned to Sector Four that night to ride along with Officer Levasseur, which encompasses the Heights area of Concord north of Loudon Road and continuing up to Mountain Road. His assigned field-training officer, Officer Chaput, had called out sick that night, and he reported that Sergeant Smagula explained that he would be riding with Levasseur instead.

Hughes reported that after he and Levasseur assisted a New Hampshire State Police unit with a motor vehicle stop on Route 393 from 2:47 to 2:51 a.m., and then they drove to the Granite State Credit Union building. Once there, Hughes, contemporaneously with the other officers, (consistent with Levasseur's description) made his weapon safe, took the magazine and chambered round out and secured the ammunition. Hughes confirmed that each officer then checked each other's weapons before beginning training on building search techniques.

Hughes' recall of the training is similar to those of Officers Levasseur and Williams. Hughes stated that the officers unholstered their weapons during the training, held the weapons as if they were conducting a building search, and did in fact point their weapons at each other periodically as part of that training. Hughes confirmed that Sergeant Smagula did stand in the vantage point of a hidden suspect periodically during the training to tell the officers when they improperly exposed themselves to potential danger during the search of a room. While Hughes stated that there was dry firing of weapons during the training, he was unsure whether the weapon was aimed at anyone when the firearm triggers were pulled. When they finished training over one hour later, Hughes noted that they all went to the same foyer where they had entered. Sergeant Smagula then told them to go ahead and reload their weapons, and Hughes faced away from the center of the group and reloaded his firearm. Officer Hughes simultaneously witnessed Officers Levasseur and Williams reload their weapons, as the three of them were generally pointed in the same direction. He was not able to see Sergeant Smagula reload his weapon. At this time, Officers Hughes, Williams, and Levasseur were standing in a rough line in that order from left to right.

Hughes recalled that after reloading their weapons, Sergeant Smagula was asked a few questions by the officers about the training. Hughes remembers a question being asked about how fast a search can be completed after becoming more proficient with the learned techniques. Sergeant Smagula answered generally that a search is limited by how fast you can move and accurately shoot. Hughes saw Sergeant Smagula began to demonstrate the proper footwork by walking down the hallway to his immediate left with his service weapon drawn. Sergeant Smagula then turned back and was crossing in front of Hughes when Hughes heard the gun discharge. At the time, Hughes was not looking at Sergeant Smagula's hands, and did not see him place his finger on the trigger.

Hughes remembered that after the bang, Sergeant Smagula came out of his search posture. Hughes saw Sergeant Smagula immediately holster his weapon, go towards Levasseur, and ask him to sit down. Hughes and William, likewise, approached Levasseur and had him sit down. They made Levasseur sit on the floor while they checked his vest to ensure he was ok. After they confirmed that Levasseur was all right, Sergeant Smagula left to make a phone call. Hughes described Levasseur's injury as redness and bruising, and that he had gotten "the wind knocked out of him." Hughes reported that approximately five minutes after the discharge, the four officers left to travel back to the police station, with Levasseur getting into Sergeant Smagula's vehicle, Williams driving her patrol car, and Hughes driving the remaining patrol car. Before they left, Hughes believed Sergeant Smagula picked up the spent shell casing from the foyer of the building, but he did not see exactly what was grasped.

Hughes believed that what happened was not intentional in any way, but described it as a horrible accident.

Concord Police Officer Nicole Williams

Officer Williams was interviewed at 10:05 a.m. on May 1, 2008. The interview was recorded. Williams had been working as a Concord police officer for less than two years at the time of this incident.

Williams said that she was working third shift that morning, having started her shift at 12:00 a.m. She reports that she was assigned to Sector Five, which encompasses a large portion of the Heights area of Concord to the East of the Merrimack River.

After completing a foot patrol at Concord Nissan between 2:21 and 2:35 a.m., Officer Williams reported to 311 Sheep Davis Road, where she met Sergeant Smagula. Williams stated that she wasn't aware of the training until she arrived at the building. Together, Williams and Sergeant Smagula entered the unsecured building, and confirmed that no act of vandalism or trespass was ongoing. Once Officers Levasseur and Hughes arrived, all four officers made their weapons safe, took the magazine and chambered round out and secured them in uniform pockets. Williams confirmed that they then checked each other's weapons before beginning training on building search techniques.

Williams's recall of the training is consistent with those of Officers Levasseur and Hughes. Williams noted that collectively the officers all went to the same foyer where they entered when they finished training around 4:15 a.m. The officers faced away from each other, and then reloaded their service weapons. Officer Williams then turned back towards the group. To the best of her ability, Williams remembers that Levasseur was at that time to her right, and Hughes to her left. She was able to see Levasseur reloading his weapon while she was reloading hers, but not Hughes or Sergeant Smagula.

Williams recalled that after reloading their weapons, Sergeant Smagula was asked a few questions by the officers about the training. She recalled that it was Levasseur who asked the last question, which was about how fast the tactical team could conduct a search of the building. Williams remembered Sergeant Smagula answered that you could only search as fast as you can shoot accurately. She saw Sergeant Smagula then began demonstrating the proper footwork by walking down the hallway to her immediate left with his service weapon drawn. He then turned back and was crossing in front of the group of officers when she heard a bang. At the time, Williams estimates that Sergeant Smagula was three to five feet in front of her. However, she also stated during her interview that she was not a good judge of distance. Williams remembered that after the bang, she saw Levasseur look down at his vest and say words to the effect of: "Did this just happen?"

Williams reported that she, Sergeant Smagula, and Officer Hughes then rushed over to Levasseur to see if he was hurt. They made Levasseur sit on the floor while they checked his vest to ensure he was ok. After they confirmed that Levasseur was all right, Williams saw Smagula pick up the spent shell casing from the foyer.

Williams thought that what occurred was a training accident. She said no one engaged in any horseplay or joking at any time. She stated that she thought the training was over once they reloaded their weapons, but that the officers had more questions for Sergeant Smagula. She never saw Sergeant Smagula place his finger on the trigger of his firearm. Finally, Williams indicated that she never felt unsafe during the training, that no safety violations occurred during the training, and they left the building in the same condition as it was when they had arrived.

Concord Police Lieutenant John Brown

Lieutenant Brown was interviewed at 8:20 a.m. on May 2, 2008. The interview was recorded. He reports that he was the overnight watch commander in the station for the third shift from April 30th to May 1, 2008. Around 4:20 a.m., he received a phone call on the watch commander Nextel cell phone from Sergeant Smagula. He said that after a few minutes, he understood that Sergeant Smagula was talking about an accidental discharge wherein Officer Levasseur had been struck by the bullet. Brown reported that Sergeant Smagula sounded shaky and clearly upset on the phone. Sergeant Smagula told Brown that there was no serious injury and that all officers involved were going to be coming back to the station.

When they arrived back at the station, Brown saw that Sergeant Smagula and Levasseur were both very shaken up. Levasseur gave Brown his shirt and vest, and showed Brown his wound, at which point Brown ordered him to go to the hospital to be checked out. Brown observed that Levasseur's wound was a red circle about 1 inch in diameter with bruising on the right side of his chest.

Sergeant Smagula explained to Brown the events at the building consistent with his later recorded interview (see below). At this time, Sergeant Smagula said that he knew he fired the round, but that he didn't know how his finger came off the rail of the gun, into the trigger guard, and squeezed the trigger. Sergeant Smagula repeated that he didn't remember how that came to be.

Brown confirmed with investigators that Sergeant Smagula produced the spent shell casing from his pocket and gave it to Brown. He also confirmed that he took initial possession of Sergeant Smagula's duty belt and Levasseur's shirt and vest.

Brown stated that on occasion, both third shift sergeants had conducted ongoing training with newer officers and trainees during downtime in the shift. Brown explained that the sergeants structured and organized these trainings because of the relative lack of experiences of most officers on the midnight shift. Brown clarified that these were not official training sessions being documented by the department's training lieutenant, but more supervised exercises run by the sergeants. Brown explained that while Sergeant Smagula hadn't explained to him that there was dry firing of the weapons during the training session that night, Brown himself had taken part in building search training exercises where officers dry fired their weapons. He clarified that in the organized training he attended, the barrel of his weapon had a yellow rope threaded through the barrel and chamber of his weapon, and officers were pointing at targets at the time.

Concord Police Chief Robert Barry

Chief Barry was interviewed at 2:12 p.m. on May 1, 2008. The interview was recorded. Chief Barry reported that he was asleep at home when he received a phone call at 4:43 a.m. from the on-duty watch commander, Lieutenant John Brown. Brown explained to him that there had been an incident at the new bank building on Route 106 in Concord during an officer training where Sergeant Smagula's firearm discharged and Officer Levasseur was struck by the bullet. Brown explained to him Levasseur's physical condition. After calling the Deputy Chief and Lieutenant Mitchell to have them report to the station and assist with the then-potential investigation, Chief Barry went to the hospital emergency room to check on Levasseur.

At the hospital, Chief Barry saw a red welt on the right pectoral side of Officer Levasseur's chest. When he asked Levasseur what happened, Levasseur explained to him the events at the building consistent with his later recorded interview above. In addition, Levasseur said that he saw a flash and smoke when Sergeant Smagula's firearm discharged. Before leaving the hospital, hospital staff informed Chief Barry that they would be securing Levasseur's firearm before he went for a CAT scan. Chief Barry then took possession of the firearm, and went to the police station.

Chief Barry secured Levasseur's firearm after unloading it in the watch commander's arms locker, wherein he saw Levasseur's vest and uniform shirt had already been secured. After confirming that Sergeant Smagula's duty belt and sidearm had been secured, the Chief met with Brown and Sergeant Smagula. Chief Barry reported that Sergeant Smagula appeared visibly shaken. Given Sergeant Smagula's obvious distress, the Chief determined that he was not in a position to continue being a supervisor on duty for the rest of his shift.

Chief Barry and Sergeant Smagula then went to the chief's office, where the chief asked Sergeant Smagula if he was ok and whether there was anyone he wanted to call. Sergeant Smagula answered that he wanted to tell the chief what happened. Chief Barry reported that he agreed to listen but did not ask any questions. Sergeant Smagula explained to him the events at the building, which was consistent with his later recorded interview with investigators (see below). At this time, Sergeant Smagula told Chief Barry that he never pulled the trigger, but that his finger was indexed along the rail of the gun. He then said that he knew he fired the round, and that the gun had never gone off on its own. He explained that while he didn't remember pulling the trigger, he knows the trigger must have been pulled.

Chief Barry noticed Sergeant Smagula's eyes were watery as he was retelling what had occurred. His voice cracked at times, and he was very emotional. Chief Barry arranged for another sergeant to take over as shift commander, and for a different officer to sit with Sergeant Smagula. He then ensured that the vest, firearm, spent casing, and shirt were all secured into custody through Lieutenant Mitchell, and then notified the Office of the Attorney General.

Trooper First Class Fred Lulka (Scene Processing)

The incident took place inside the Granite State Credit Union building at 311 Sheep Davis Road in Concord. Sheep Davis Road is also known as Route 106 in this area. The building was oriented in a line approximately north to south, and was nearly completed.

The building had a finished exterior with some construction activity in the parking lot and surrounding grounds. All doors and windows were locked or secured with the exception of the secondary front door entrance on the front of the building. This door was unsecured with no door knob or lock. There was a length of wire around the hole where the doorknob would be attached. The main business area of the bank was uncarpeted and still under construction.

Inside the building, no physical evidence was found for collection.

Criminalist Stephen Ostrowski (Laboratory Evidence Testing)

Criminalist Ostrowski conducted several tests on Sergeant Smagula's firearm, the spent shell casing, and the bullet recovered from Officer Levasseur's vest (see below).

B. Physical Evidence

Levasseur's Clothing and Equipment

Levasseur's shirt and protective vest were taken. His other clothing and equipment were unremarkable. The deformed bullet was found in the shock-plate of his vest.

Levasseur's Injuries

While being seen at Concord Hospital, medical staff took x-rays of Officer Levasseur's torso and a conducted a CAT scan. They confirmed that he did not suffer any injuries other than the bruising to the skin in the right pectoral area below the right nipple where the bullet struck his protective vest.

Sergeant Smagula's .40 caliber P229 Sig Sauer Pistol

Criminalist Ostrowski conducted several tests on Sergeant Smagula's firearm, the spent shell casing, and the bullet recovered from Officer Levasseur's vest. Sergeant Smagula's .40 caliber Sig Sauer, model P229 semiautomatic pistol was examined, test fired, and found to be functioning normally. The firearm was not susceptible to an accidental discharge due to jar-off. The single action and double action trigger pull measurements obtained for the firearm were between 4.25 to 5 lbs and 9 to 9.75 lbs respectfully. Upon microscopic comparison, it was discovered that the discharged cartridge case was fired by Sergeant Smagula's pistol, and the deformed bullet found in Officer Levasseur's vest and shock plate was also fired by Sergeant Smagula's pistol.

C. Dispatch Records

Investigators obtained Concord Police Department dispatch records. Transcripts were generated to show the content of all related calls. The 911 records showed both hang-up calls placed from the Granite State Credit Union locale. All the information in these transcripts was materially consistent with the information in the witnesses' interviews. The 911 calls showed the hang-ups came in at 6:11 p.m. and then again at 6:12 p.m., and that Officer Levasseur arrived at 311 Sheep Davis Road just 6 minutes later at 6:18 p.m. Dispatch logs also showed that there were relatively few calls for service that night, with only six phoned complaints between midnight and 6:00 a.m.

Some of the relevant times recorded on the various logs are as follows:

April 30, 2008

6:10 p.m. First 911 hang up call from 311 Sheep Davis Road.
6:11 p.m. Second 911 hang up call from 311 Sheep Davis Road.
6:12 p.m. Officers Brian Cook and Joshua Levasseur dispatched to 311 Sheep Davis Road.
6:16 p.m. Officer Cook arrives at 311 Sheep Davis Road.
6:19 p.m. Officer Levasseur arrives at 311 Sheep Davis Road.
6:27 p.m. Officers clear from 311 Sheep Davis Road.

May 1, 2008

2:21 a.m. Officer Nicole Williams begins a foot patrol at Concord Nissan, 175 Manchester Street
2:35 a.m. Officer Levasseur calls Officer Williams to meet at 311 Sheep Davis Road when she's finished her patrol.
2:36 a.m. Officer Williams clears foot patrol at 175 Manchester Street.
2:47 a.m. Officers Levasseur and Thomas Hughes assist New Hampshire State Police motor vehicle stop on Interstate 393.
2:51 a.m. Officers Levasseur and Hughes clear motor vehicle stop and proceed to 311 Sheep Davis Road.
4:22 a.m. Sergeant Steven Smagula calls Lieutenant John Brown, informing him of the shooting incident.

D. Interview Of Sergeant Steven Smagula

Sergeant Smagula was interviewed at 3:29 p.m. on May 6, 2008. The interview was audio recorded. Present at Sergeant Smagula's interview were attorney Krupski, one union representative, and Senior Assistant Attorney General Susan Morrell. State Police Sgt. Mark Armaganian and Trooper First Class Steven Puckett conducted the interview.

Sergeant Smagula said that he had been with the Concord Police Department for eleven years after graduating from college. He had been a sergeant for three years, and a canine patrol officer. Sergeant Smagula had been a member of the department's tactical team for more than eight years, and a team leader within the organization. He continued to be a team leader when the organization merged to create the New Hampshire Central Tactical Team. Sergeant Smagula had been trained through both SWAT 1 and SWAT 2 courses at the New Hampshire Police Standards and Training Academy, and received multiple trainings in building searches, slow search training, hostage rescue and long arms usage. He was also an instructor on the use of an MP5 firearm for the tactical team. His regular duty weapon, which he was carrying the day of the incident, was a .40-caliber P229 Sig Sauer pistol he was last qualified to use in October of 2007. He had various types of training in officer safety, firearms, and the appropriate use of deadly force.

Sergeant Smagula arrived at the station at approximately 10:30 p.m. on April 30, 2008. His shift began at 11 p.m. that evening. At the first roll call at 11:00 p.m., he learned that Officer Chaput had called in sick for the evening. Sergeant Smagula then assigned Officer Hughes to ride with Officer Levasseur. Given that Levasseur was not Hughes' normal training officer, Sergeant Smagula said he felt more comfortable with Levasseur driving the patrol cruiser that evening and Hughes observing.

After the first roll call, Sergeant Smagula read the ongoing log from the previous watch commander, and then prepared for the second roll call. Sergeant Smagula spoke with Levasseur, about his intent to do a building training search that night, if there were not too many calls for service. He informed Levasseur that he had been doing building search training with Hughes recently, who was unfamiliar with the department's techniques. Sergeant Smagula described Levasseur as being excited to participate in such an exercise, and told him that he was aware that the new Granite State Credit Union building was unsecured. Levasseur asked if the building was a viable space to conduct building search training instead of at the department headquarters. Sergeant Smagula said he would take a look at the building. During his statement, Sergeant Smagula stated that later that evening he told Lieutenant Brown of his intent to search and then conduct a building search training at the unfinished building.

After midnight, Sergeant Smagula finished his administrative duties for the beginning of his shift and began his patrol in a police vehicle. Sergeant Smagula described the first few hours of the shift as the busiest, and he supervised several motor vehicle stops and calls for service. At one point, he was in the Heights section of Concord when Levasseur and Hughes passed by in their cruiser, and they pulled alongside one another to converse. Levasseur asked if Sergeant Smagula had an opportunity to go by the unsecured building, and Sergeant Smagula replied that he was going to. Sergeant Smagula informed Levasseur that he also wanted to involve Officer Williams in the training. Sergeant Smagula stated in his interview that he felt the training would boost her confidence given her relatively few years of experience. Sergeant Smagula told Levasseur to call Williams when she finished her foot patrol at the Nissan car dealership, to meet him at the credit union. Sergeant Smagula then proceeded to the Granite State Credit Union building. A short while later, he heard Williams call out on the radio, and Levasseur call her to proceed to the building.

As he drove up to the building, Sergeant Smagula saw that the entrance to the building and its location on the property would make later calls for service difficult if there was a safety concern at the building. He believed that, as with other banking institutions, it would only be a matter of time before alarms would be triggered, by the alarm company or by human error, necessitating calls for service to investigate. He considered the location and setting of the building to be "a nightmare of an approach," for officer safety. As he was viewing the approach to the building from various angles, Officer Williams arrived.

Once she arrived, Sergeant Smagula explained to her the purpose for meeting at the building. He saw the unsecured door described to him by Levasseur, and explained to Williams that they would search the building first to ensure that there was no ongoing criminal act. Together, Sergeant Smagula and Williams then searched the building, upon which Sergeant Smagula was surprised to learn that the building had a full basement and a loft area. He had previously driven by the building on Route 106 during its construction to check on its security, given a recent spike in tool and copper thefts. Previous to his search with Williams, Sergeant Smagula did not know there was a basement, a detail he thought important to know for any officers that responded to the building. As they were finishing their initial search, Officers Levasseur and Hughes arrived, and Sergeant Smagula and Williams met them in the entry foyer inside the unsecured door.

Sergeant Smagula then had the officers line up, face away from each other, and unload their firearms. He too faced away from them, and unloaded the magazine and chambered round of ammunition from his sidearm. Sergeant Smagula had each officer secure their magazine and loose round in their back pocket. After leaving the slide of the weapon in the locked-back position, Sergeant Smagula had each officer inspect all four of the weapons to ensure there were no rounds in each chamber and no magazines in each sidearm. After all four officers checked each other's weapons, he had them holster their weapons and they began the training.

During the training, the three officers, under Sergeant Smagula's supervision, practiced clearing rooms and searching for hidden suspects. Sergeant Smagula described how he moves during a search within a group, instructed them on the proper way to cover each other, to search behind corners, and to limit exposing themselves to potential danger. At one point, Sergeant Smagula retrieved a post with a mirror attached to the end from his vehicle to assist the officers in learning how to search near the staircase.

While practicing search techniques in the small dark side room in the basement, Sergeant Smagula saw Hughes do a quick peek to view a covered portion of the room. Sergeant Smagula corrected him that they didn't do such moves in the Concord Police Department as it improperly exposed parts of their body to unnecessary potential danger and exposed their position. Sergeant Smagula then got into the room, and had Hughes take a second quick peek. After the peek, Sergeant Smagula pulled the trigger of his firearm, which dry fired or cycled the hammer of the weapon. He asked Hughes what that noise was, and Hughes said that Sergeant Smagula had obviously pulled his trigger. Sergeant Smagula informed him that because of the peek, Hughes had exposed his position, and that he, playing the role of the potential threat, had just shot Hughes through the wall.

At the conclusion of the training, Sergeant Smagula led the officers back to the foyer inside the unsecured door. He provided a summary on why the department uses the techniques they had been practicing, and other options for building searches. At the foyer, Sergeant Smagula had the officers line up and reload their weapons pointed away from one another. He reloaded his own weapon, and stated during his interview that he monitored the other three officers as well. During his interview, Sergeant Smagula did not remember if he decocked his sidearm from single-action back into double-action mode after this reload. He believed twelve pounds of pressure was necessary to pull the trigger in double-action mode, and that four pounds of pressure was necessary to pull the trigger in single-action mode. Sergeant Smagula stated that the holster strap on his duty belt could go over the firearm whether it was in double-action or single-action. Sergeant Smagula remembered holstering his weapon after reloading.

As they continued talking, Officer Levasseur asked how fast they could search the building now that they knew the floor plan. Sergeant Smagula explained that speed is the last skill that an officer attains, and the last thing they should worry about. He explained that knowing the floor plan of a building doesn't determine the speed in which a search could be done. He also explained that how fast you move is how fast you can accurately shoot on target because what matters is in being able to respond appropriately and safely when encountering a threat, not quickly. At this time, Officer Hughes, Williams, and Levasseur were in a semi-line in front of him as he faced the unsecured door in the foyer.

Sergeant Smagula then demonstrated how he would walk through such a search, using a very slow pace. He withdrew his firearm and explained that they needed to walk at a controlled pace, in a heel to toe fashion to keep their arms steady. During this demonstration, Sergeant Smagula held his firearm at the on guard position, which is towards the ground, roughly seven to ten feet in front of him, with his finger indexed along the bottom rail of the weapon, above the trigger and trigger guard. This angle allowed him to see forward with the muzzle approximately one to two inches below his line of sight.

He began his demonstration by turning towards his right and towards the main lobby, so he was now facing away from the other officers. After using the proper footwork to reach the lobby doorway, he then turned to the right so he was now facing the hallway back towards the rest of the building, and he could make eye contact with them. He began walking in front of the officers, past Hughes and Williams positions. While demonstrating his footwork, he turned towards them (to his right) to make a comment to the group.

Sergeant Smagula described the following event as "the only true surpriseā€¦ that I've ever had in my life." He heard his weapon discharge. He stated during his interview that he knew he must have pulled the trigger because his weapon does not just discharge on its own. He stated that he did not have any intent to pull the trigger, and he has never known his weapon to misfire. Sergeant Smagula looked forward, and said that he expected to see property damage. However, he immediately saw Officer Levasseur directly in front of him, just beyond his hands. He looked at Levasseur, and then scanned down from Levasseur's head to his chest. Sergeant Smagula saw a small singed hole in the right pectoral area of Levasseur's shirt, and immediately went over to him. Sergeant Smagula said later during his interview that he felt he himself had died in that moment when he realized his bullet struck Levasseur. He estimated that he was maybe six feet from Levasseur when he fired.

Sergeant Smagula immediately rushed over to Levasseur, forced him to sit down, and pulled at his vest to see if the bullet had entered his body. Sergeant Smagula saw that Levasseur had no major injury. After confirming that Levasseur was all right, Sergeant Smagula grabbed his Nextel phone and called Lieutenant Brown.

Sergeant Smagula then went back to the other three officers, and told Levasseur that he needed to go to the hospital to be checked out. Together, the four officers proceeded back to the police station where Sergeant Smagula briefed Brown on what happened, and he met with Chief Barry. Sergeant Smagula admitted that he picked up the spent shell casing, and turned it over to Lieutenant Brown at the police station, along with his duty belt.

Sergeant Smagula explained that he planned on searching the Granite State Credit Union building at least once that shift after Levasseur informed him that it was unsecured. Once he knew it had to be searched, Sergeant Smagula moved the training from the headquarters to the unfinished building. He stated that such searches were very common on the third shift, given a recent rise in copper thefts and burglaries. Impromptu training sessions were often common with Sergeant Smagula. He stated he tried to do a training session, or at least a policy and procedure training, on as many shifts that he could as a supervisor.

Sergeant Smagula stated that they had done dry firing in department trainings before, including trainings on target recognition, although he had taken part in more dry firing exercises with the tactical team.

III. Legal Analysis Of Sergeant Smagula's Actions

As part of its investigation, the Attorney General's Office has reviewed a variety of potential criminal charges that 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. Nearly every witness was asked, and not one reported that there was any disagreement, or "bad blood" between Sergeant Smagula and Officer Levasseur.

Under RSA 631:2, I(a), a person is guilty of Second Degree Assault if he knowingly or recklessly causes serious bodily injury. 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" with respect to a material element of an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the material element 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.

Under RSA 631:2-a, I(c), a person is guilty of Simple Assault if he negligently causes bodily injury to another, or knowingly has unprivileged physical contact with another.

A person acts "Negligently" with respect to a material element of an offense when he fails to become aware of a substantial and unjustifiable risk that the material elements 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 that 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. Instead, the evidence supports the conclusion that the shooting was the result of an accident and not criminal conduct. Therefore, no criminal charges will be sought in connection with Sergeant Smagula's discharge of his firearm on May 1, 2008.


New Hampshire Department of Justice | 33 Capitol Street | Concord, NH | 03301
Telephone: 603-271-3658