State of New Hampshire v. Teagan David Collins

Whether the defendant presented sufficient evidence to warrant a self- defense jury instruction.

A Rockingham County grand jury indicted the defendant on two charges: criminal threatening with a deadly weapon (a firearm), RSA 631:4, and criminal threatening against a person (law enforcement officer), RSA 631:4. The defendant also was charged with disorderly conduct, a class A misdemeanor, RSA 644:2; T 9-11. 1 The jury found the defendant guilty on all charges. T 464-65. The court (English, J.) sentenced the defendant to consecutive sentences of twelve months in the house of corrections, with all but 90 days suspended for five years on the criminal threatening charges. DBA A10-17. On the disorderly conduct charge, the court sentenced the defendant to a concurrent twelve-month house of corrections sentence, all suspended for two years. DBA A6-9.

This appeal followed.

Mickelonis was working as the manager on October 29 until the early morning of October 30, 2021. T 44. At about 12:00 a.m., he was at the to-go food station helping a new employee. T 46. He heard yelling outside the building and went out to see what was happening. T 46-47. Before doing so, he asked the new employee to call Brandon Burke, the head of security. T 47-48.

The defendant and another man were yelling at each other. T 48. Mickelonis stepped in between the two men and told them to walk off in two different directions to “deescalate the issue.” T 49. When Burke arrived, Mikelonis began to focus on the defendant and Burke “took care of the other guy.” T 49. Mickelonis was “trying to guide [the defendant] towards Market Street.” T 53. The defendant “kept on turning around, pointing at the other guy and making threats, and yelling back and forth. And the other guy was yelling back at him.” T 53. When Mickelonis came into physical contact with the defendant after the defendant bumped into him, he felt a firearm. T 54. The defendant and the other man were still yelling at each other and, at some point, the defendant “pointed back at him, he says, I have a gun. I will shoot you.” T 57. Mickelonis tried to persuade the defendant to “just get going” and “to get him out of the situation.” T 58. The defendant was “really angry, ” but did leave. T 58.

Mickelonis returned to the to-go station and about 20 minutes later, saw the defendant walking by. T 61-62. He radioed Burke and said, “hey, he came back.” T 61. Mickelonis went outside to join Burke, who was following the defendant up the street. T 62. When they reached Market Square, the police stopped the defendant and “told him to get his hands up and his shirt went up” and the police “pulled the firearm” from the back of his pants. T 64.

Brandon Burke, head of security for the Gas Light, recalled that, on the evening of October 29, several customers complained about a man who was “kind of making his way through the crowd on the dance floor, bumping into people, kind of just being disrespectful.” T 96. One of the customers pointed the defendant out to Burke, and Burke brought the defendant “out back” so that they could talk. T 96-98. After talking to the defendant, Burke asked him to leave for the evening. T 98. Burke escorted him to the elevator and the defendant left. T 98. According to Burke, the defendant was saying “it’s bullshit” and that he “couldn’t understand why.” T 99. Twenty minutes later, Burke received a call that there was an altercation out in front of the Gas Light. T 99-100. When Burke reached the commotion, he saw the defendant “bantering back and forth” with customers who were waiting to get into the Gas Light. T 102. Burke told the defendant: “[Y]ou know, you’ve already been asked to leave tonight. You can’t come back in. You know, you’ve already been told this.” T 102. The defendant became “enraged” and said that it was “bullshit.” T 102. Burke told him to come back the following day and that, if the defendant came to see Burke, Burke would buy him a beer. T 102-03. The defendant left. T 105.

About 30 minutes later, the defendant returned. T 105-06. Burke said, “[H]ey, you know, we already said, you know, have a good night. If you come back here again, I’m going to have to call” the police. T 106. The defendant responded, “I don't fucking care” and “like you think I fucking care?” T 106. With that, the defendant pulled up his shirt and turned around.” T 106. Burke could see a gun tucked in the defendant’s waistband.” T 106. The defendant “grab[bed] ahold of the gun, move[d] it up and down, look[ed] back at” Burked and said, “[I]t’d only take one shot.” T 106. Burke turned to the doorman and told him to call the police. T 107. The doorman did so, and the defendant began to walk from Hanover Street to Market Street. T 108.

Burke followed the defendant, keeping his distance. T 109. The police arrived and told the defendant, “[H]and’s up.” T 112. Portsmouth Police Department Patrol Officer Conall Loughlin responded to the report of the defendant and the firearm. T 75. He drove his cruiser to Market Square and saw the defendant, who matched the description of the armed man. T 75-76. Officer Loughlin “noticed a Gas Light employee following the [defendant].” T 77. The employee pointed the defendant out to the officer and said, “[H]e has a gun in his waistband.” T 77. Officer Loughlin “took out [his] flashlight, illuminated [the defendant] with [his] flashlight, and told him to put his hands in the air.” T 77.

Officer Matt Loureiro was working that evening as a citywide back- up officer. T 209. He responded to the call made from the Gas Light regarding the defendant and his firearm. T 210. He and Officer Loughlin found the defendant in Market Square and first told the defendant to show them his hands and then ordered him to place his hands on his head. T 210. They asked the defendant if he was in the possession of a firearm and he acknowledged that he was. T 210. Officer Loureiro retrieved the firearm from the small of the defendant’s back. T 211.

The defendant told the police that he had been at the Gas Light, but that he had been asked to leave. T 80. “He realized after he had been asked to leave, he forgot his debit card. So he went back to his vehicle, retrieved his firearm, and went back to the Gas Light.” T 80. The defendant told the police: “I was going to get my debit card back no matter what” and, as he said this, “he kind of motioned towards his waistband and pulled away his untucked shirt as if someone were to be showing a gun.” T 80. The defendant told the officers: [H]e was at the Gas Light enjoying his time there that night and that there was a disagreement he was -- he was being spoken to rudely by staff at the Gas Light, and he was asked to leave the premise which he told me that he did willingly and that there was n o incident. And when asked about it, he did not brandish a firearm.

T 212.

The officers placed the defendant under arrest. T 214. Officer Loureiro placed the defendant in the back of the cruiser and started to drive him to the Portsmouth Police Department. T 218. The defendant’s “demeanor changed very quickly. He became very hostile, yelling obscenities, stating that he has more firearms at home and that he [was] going to go back, and that everyone [was] going to ‘find out.’” T 218. Although the defendant was cooperative while being booked but was “not cooperative at all as far as answering questions” and he “repeatedly stated something to the effect of that, you know, he’s going to go back and they’re going to find out.” T 220.

Officer Loureiro contacted a bail commissioner, but the bail commissioner did not want to drive to the Portsmouth Police Department to set bail. T 221. The commissioner agreed to meet the officer and the defendant at the Rockingham County Jail. T 221. As Officer Loureiro drove the defendant to the jail, the defendant was “hostile the whole time.” T 222. The officer recalled: There was not a point in time where he was not yelling obscenities or spitting at me on the partition cruiser glass. He made references that I shouldn’t come to work tomorrow, that you better hope I don’t get out. And that if I think that my vest matters, it doesn ’t because he ’s going to put one to the head. He kept repeatedly saying that.

T 222.

Patrol Lieutenant Seth Tondreault was working a swing shift on the evening of October 29. T 194. He recalled that the police were sent to the Gas Light to respond to “a subject that had brandished a firearm.” T 196. As the lieutenant pulled into Market Square, he saw officers with the suspect. T 196-97. Lieutenant Tondreault took possession of the firearm and photographed it. T 198. He recalled that the magazine had 17 bullets in it. T 198. He later test fired the gun and it functioned as designed. T 206.

T 385. The defendant then claimed: I immediately complied and got rid of the drink, and then returned to the dance floor with no drink. Where I was met a second a time within a matter of two to three minutes again by the same members of security that let me know, by putting their hands on me and escorting me out, that I was done for the night with no explanation.

T 385. The defendant stated: “That having been the first time that I was bounced from really any establishment, I kind of did a little walk around, did some breathing, and tried to go back in.” T 386. He said that he was “still cordial at that point… [He was trying] to get back in with [his] friends. And then, when [security] let [him] know that that was not going to happen, ” the defendant returned to his car to leave and realized that he did not have his debit card. T 386.

When he left to go back to the Gas Light, the defendant took his firearm with him. T 387. He claimed: “I just don’t feel comfortable leaving it in the car. Even while I was at work, I don’t like doing that. But I did.” T 387. He added, “[I]t was [also] in case I was put in an unsafe situation.” T 387.

When he returned to the Gas Light, employees told him that they “wouldn’t be able to assist [him] in obtaining [his] debit card.” T 387. A friend eventually went into the Gas Light and retrieved the debit card and the defendant claimed that “as soon as [the friend] got that debit card for [him], that’s when [the defendant] started to walk away and leave.” T 388. The defendant said that Burke “came out and was inches from [his] face, definitely escalating” “the situation.” T 388. Since the defendant did not have his debit card at that point, he “was standing [his] ground still working to that point.” T 388.

Asked about brandishing the firearm, the defendant claimed the following: Really the only thing that -- that I would say would fit that description or possibly be interpreted like that would be, again, as I was walking away and being followed by at least two individuals, like I said, who were already escalating the situation and in my face, I was being followed, and believed I was acting within my rights by lifting my shirt without breaking a stride, continued walking away. And let them know that they should stop following me. And then continued walking away.

T 389. He said that he was entitled to do so “[a]s a background-checked, responsible, legal gun owner.” T 389.

He said that, when stopped by the police, “Immediately, hands were up. He asked, where’s your gun, and I motioned that it was on my waistband. And then, turned to let him get it off my back without any issue.” T 390. He acknowledged, however, that “when the narrative flipped pretty quickly and he let me know that I was being arrested on felony charges, I didn’t react well to that at all.” T 391. Asked about his threats to shoot the police officer, the defendant dismissed those as “[e]mpty threats.” T 391. He justified the threats as being made “in a state of crisis, ” because he was facing serious charges and his “reasoning kind of went out the window.” T 392. On cross-examination, the defendant continued to describe the Gas Light employees as “following [him] down the street after escalating a situation and getting really close in [his] face, ” making him feel “threatened” because they were following him. T 402. He said that the employees were about ten feet away and that he “took that as somewhat aggressive - continued aggressive, threatening behavior.” T 402. The threats to the officer were because he “became regrettably irate.” T 406. He acknowledged that he threatened to kill Officer Loureiro, but offered the following excuse: “Words to that effect were included in the regrettable things that I was saying in response to what I felt was a false arrest.” T 407.

Asked if he was feeling intoxicated that evening, the defendant responded: “I was more intoxicated by the situation than I was by alcohol. That’s how I’ll answer that.” T 412-13.

Right? They have to put on some evidence before you can give an instruction on it. And I do not expect there ’ll be any such evidence, but certainly at this time, the jury - cannot be instructed that you can just brandish whenever you want.

T 35-36.

At the commencement of the second day of trial, the court and counsel began to discuss jury instructions. At that point, defense counsel told the court: “[I]f there’s any indication of self-defense, we’d be entitled to a self-defense instruction.” T 244. In response, the court stated: “Let’s hold on that one… Because otherwise, we’re arguing about hypotheticals, but I think we’ve got it teed up.” T 244.

At the close of the defendant’s case, the defense asked for a self- defense instruction. T 414. Defense counsel argued: Again, the standard is not very high. We noticed up and that there was some evidence to show that it was defense of property. They wouldn’t allow him. It was unlawful. And that he was using, to the extent, any kind of showing the firearm was to ward off any potential threats.

T 415.

The court responded: What he said on the stand during direct was, they were very busy. They let me know they couldn’t assist me getting my card back. And then, he testified that he did not show his weapon until after he got his debit card back. So I don ’t think that you meet the threshold on the property piece. But I am ruling that you have met the threshold on that he felt threatened to get the instruction on self-defense.

T 417.

The State countered that the defendant had to “reasonably believe” that he was in danger and that the person “was about to use unlawful nondeadly force against him.” T 418. The State asked: “Were [the Gas Light employees] screaming at him? Were they threatening him? Were they calling his - calling to him? Were they saying come back? Were they doing something? They weren’t doing anything.” T 419.

At that point, the court took a recess and, when court resumed, the court stated: So I’m not going to include it. I’m not going to include the self- defense instruction. What ’s missing from the - what the evidence was was [sic] that he felt threatened, but what was missing is evidence that he reasonably believed there was going to be an imminent use of unlawful, nondeadly force by such other person. I won’t go through the whole statute. I know there’s some other things that are lacking there. But I - at a minimum, there has to be something more than just that he felt threatened. There had to be additional evidence there.

T 424.

The trial court correctly concluded that the defendant did not merit a jury instruction on self-defense. The defendant testified that the two Gas Light employees followed him after he returned a second time to the Gas Light, after being told to leave. On this occasion, according to his own testimony, he returned with a firearm, apparently retrieved his debit card and, then, annoyed that the Gas Light employees were following at a distance of ten feet, displayed the firearm to intimidate them. On this record, a self-defense instruction was unwarranted, and the trial court acted within its discretion in declining to give it.

As a general rule, this Court will “review the trial court’s decision not to give a jury instruction for an unsustainable exercise of discretion.” State v. Cavanaugh, 174 N.H. 1, 7 (2020). 2 “A trial court must grant a defendant’s requested jury instruction on a specific defense if there is some evidence to support a rational finding in favor of that defense.” State v. Lavoie, 152 N.H. 542, 547 (2005). “Some evidence” means more than a minutia or a scintilla of evidence. Id. “To be more than a scintilla, evidence cannot be vague, conjectural, or the mere suspicion about the existence of a fact, but must be real and of such quality as to induce conviction.” State v. Larose, 157 N.H. 28, 33-34, (2008) (quoting State v. Graham, 259 Neb. 966, 614 N.W.2d 266, 272 (2000)). A trial court need not “give weight to allegations which are intrinsically improbable or flatly contradicted by irrefutable evidence.” Larose, 157 N.H. at 33-34 (quoting United States v. Rodriguez, 858 F.2d 809, 815 (1st Cir. 1988)).

“[W]hile conclusory and self-serving statements, standing alone, will not suffice, a defendant’s account, though self-serving, may have weight if it is interlaced with considerable detail and has some circumstantial corroboration in the record.” Id. (internal quotation marks and citations omitted). Nonetheless, “[w]ithout the necessary quantum of evidence to support the defense, jury instructions are not grounds for reversal if read as a whole they fairly cover the issues of law in the case.” Id. (citing State v. Letourneau, 133 N.H. 565, 568 (1990)).

“Self-defense is a pure defense under New Hampshire law.” Cavanaugh, 174 N.H. at 8 (citing State v. Munroe, 173 N.H. 469, 474 (2020) and RSA 627:1 (2016)). “Thus, when evidence of self- defense is admitted, conduct negating the defense becomes an element of the charged offense that the State must prove beyond a reasonable doubt.” Id. (citing State v. Etienne, 163 N.H. 57, 80-81 (2011) and RSA 626:7, I(a) (2016)). However, “[a] belief which is unreasonable, even though honest, will not support the defense.” State v. Vassar, 154 N.H. 370, 374 (2006) (citing State v. Holt, 126 N.H. 394, 397 (1985)). Finally, “[a] person is guilty of criminal threatening when: (a) By physical conduct, the person purposely places or attempts to place another in fear of imminent bodily injury or physical contact.” RSA 631:4, I(a). See also T 10 (The defendant “purposely by physical conduct placed or attempted to place B.B. in fear of imminent bodily injury or physical contact by displaying a handgun and/or placing his hand on a displayed handgun in his waistband, and saying to B.B., quote, ‘You don’t even know, ’ end quote, and/or, quote, ‘It would only take one shot.’”) (preliminary address to the jury)).

In this case, the defendant testified that he displayed the firearm as the two employees from the Gas Light were following him to Market Square. The defendant did not testify that the employees were taunting him, harassing him, or otherwise causing him to fear that he could be the victim of the “imminent use of unlawful, non-deadly force.” RSA 627:4,

The defendant also testified that, upon being asked to leave, he left, but returned. T 397. This was before he had retrieved his firearm from his car. See T 397-98 (THE DEFENDANT: “I mean, I had never been really bounced from a place. I didn’t know how it worked… I took a walk around and tried to come back with a more level-headed approach. [The doorman] let me know it wasn’t going to happen.”). When he returned with his firearm, therefore, the defendant had been told to leave, had returned to reenter the Gas Light, and now had come back, in his words, to “stand[ ] [his] ground.” T 388.

Moreover, once he had retrieved his debit card, which he acknowledged happened before the two employees started to follow him, the street was busy. See T 401 (THE DEFENDANT: “[T]he street in the surrounding area… was becoming busy because the bars were closing right around 1 a.m., so there was a lot of people out there.”), 403 (THE DEFENDANT: “As they were closing, like I said, and the streets began to be flooded with people that were leaving bars.”). Surrounded, as he was, by people who were also leaving the bars and would, at the very least, be witnesses to any aggressive behavior toward him, the defendant’s alleged fear was not reasonable.

This is made all the clearer by the fact that the defendant never testified that the two employees were trying to catch up with him. T 402 (THE DEFENDANT: “Haven’t broken a stride and continued walking away, and they were probably, maybe, 10 feet back from me.”). He said that he “took that as somewhat aggressive - continued aggressive, threatening behavior, ” despite the fact that the employees were out on the crowded streets of Portsmouth as the bars were closing. Although the trial court did not make specific credibility findings, except to find that the fear was not reasonable, the defendant’s description of his behavior that evening was self-serving, but not persuasive. It appeared that, if the Gas Light employees and the police were doing what he thought was appropriate, he was compliant. See T 404 (THE DEFENDANT: “[O]nce I received my - my debit card, that was my point the entire time, I wasn’t trying to escalate anything. Just like I was cordial with the police, I was - I was cordial with them, as well.”) (emphasis added)).

But if the Gas Light employees or the police annoyed him, he felt free to threaten or intimidate them. See T 404 (THE DEFENDANT: “I would say that at a certain point, I took a part in - in some escalation when I was - when I felt like my property was being held unlawfully” by the Gas Light employees) (emphasis added)). Although the defendant is right that the evidence “does not need to be overwhelming or uncontradicted to require that a trial court give the jury a self-defense instruction, ” DB 16, the defendant’s testimony was inherently contradictory, and the reasonableness of his purported fear was not corroborated. Since “[a] belief which is unreasonable, even though honest, will not support the defense, ” Vassar, 154 N.H. at 374, a defendant’s testimony which may not convey an honest belief, and appears unreasonable, certainly does not merit the instruction. This Court should affirm the trial court’s ruling.

For the foregoing reasons, the State respectfully requests that this Honorable Court affirm the judgment below.

The State requests a 15-minute oral argument.

I, Elizabeth C. Woodcock, hereby certify that pursuant to Rule 16(11) of the New Hampshire Supreme Court Rules, this brief contains approximately 4, 524 words, which is fewer than the words permitted by this Court’s rules. Counsel relied upon the word count of the computer program used to prepare this brief.

January 8, 2024 /s/Elizabeth C. Woodcock

I, Elizabeth C. Woodcock, hereby certify that a copy of the State’s brief shall be served on Attorney Pamela Phelan, counsel for the defendant, through the New Hampshire Supreme Court’s electronic filing system.

January 8, 2024 s/Elizabeth C. Woodcock