PORTSMOUTH — Six bullets shot at a pickup truck leaving Summer Street last August were fired after former police commissioner Brenna Cavanaugh said, “shoot him,” according to Assistant County Attorney Ryan Ollis.
The county prosecutor disclosed that allegation during a Tuesday hearing in Rockingham County Superior Court in advance of Cavanaugh’s pending trial for related criminal charges.
Cavanaugh, 44, of 140 Summer St., is charged with alternate theory charges of criminal solicitation to commit first degree assault and criminal solicitation to commit reckless conduct. She’s alleged to have given the instruction to shoot before her partner, Mark Gray, 44, of the same address, fired six rounds toward the truck, driven by a juvenile who entered their home at 3:30 a.m., mistakenly thinking there was a party there.
There were no lights on and the teen climbed stairs to the third floor where he heard someone say, “Someone’s here” and to get a gun, according to a police affidavit. Police say the teen ran from the home and was followed by Cavanaugh, then Gray who shot at the front of the truck before it backed up, hit a pole, then left the scene. Police say three of the bullets hit the truck.
Cavanaugh previously said the truck was being driven toward them when the shots were fired and she’s filed notice with the court that she plans to argue she acted in self-defense. Gray’s lawyer previously told a judge his client and Cavanaugh did not know who the person was in their home and didn’t learn his identity until later.
The indictments against Cavanaugh allege she “requested” Gray shoot at the fleeing teen, but the “shoot him” allegation wasn’t disclosed until Tuesday. It was revealed during a discussion about the prosecutor’s request to have the trial continued due to the possible scheduling conflict for testimony from New Hampshire State Police Trooper Tara Elsemiller, who conducted ballistics tests at the scene.
Cavanaugh’s attorney Michael Zaino told the court Tuesday that Elsemiller is not needed during Cavanaugh’s trial because Cavanaugh is charged with saying something. Zaino said Ollis seeks to introduce evidence about matters that occurred after Cavanaugh’s alleged crime, which was to say shoot him.
“She’s no longer in control after the words,” Zaino told Judge Marguerite Wageling. “It’s an event that happened after the alleged crime. It’s irrelevant. The only thing they’re saying my client did was say ‘shoot.’”
Ollis said the trooper’s testimony will show where Gray was standing at the time of the gunfire, while Zaino said where Gray was standing is irrelevant to the charges against Cavanaugh. Ollis argued Cavanaugh is an accomplice because when she said ‘shoot him,’ Gray “acted on her command” and started shooting. The prosecutor argued it’s important for a jury in Cavanaugh’s case to hear that evidence.
Zaino said Cavanaugh is entitled to a speedy trial and wants a speedy trial, not a continuance. He said Cavanaugh “is suffering significant hardship” as a result of the pending charges, including losing a job because of them.
The judge denied the county’s motion to continue the trial, saying she believes the trooper can be available during one portion of the trial that’s scheduled to begin with jury selection July 29. Wageling said she’s working with the court to ensure a judge will be available to preside over the jury trial and, “I’m going to move this along as quickly as possible.”
The judge also said she did not agree with Zaino that the gunfire is irrelevant to the case against Cavanaugh. Wageling said part of the prosecutor’s argument is that Cavanaugh acted with the purpose of having Gray take action and Gray’s subsequent actions “play hand-in-hand” with the allegations against Cavanaugh. She said testimony to the jury should not end when Cavanaugh “uttered those words,” so she will allow the jury to hear the ballistic evidence.
Tuesday’s hearing also addressed Zaino’s court motion alleging the juvenile in the truck may invoke his his Fifth Amendment right not to testify at trial because he could incriminate himself. Zaino wrote to the court that evidence shows the juvenile was impaired by alcohol and committed either criminal trespass or burglary before the shooting.
The juvenile was represented Tuesday by Portsmouth attorney James Loring, who said he reviewed the case file “front to back,” studied every detail and does not believe the teen’s testimony will incriminate him of anything.
Ollis said he believes the trial will last seven days and court records indicate the jury will be brought to the Summer Street scene for a viewing before the trial begins.