State v. Guglielmo, 86-515
| Decision Date | 31 December 1987 |
| Docket Number | No. 86-515,86-515 |
| Citation | 544 A.2d 25,130 N.H. 240 |
| Parties | The STATE of New Hampshire v. Michael GUGLIELMO. |
| Court | New Hampshire Supreme Court |
Stephen E. Merrill, Atty. Gen. (Steven L. Winer, Asst. Atty. Gen., on the brief and orally), for the State.
Joanne Green, Asst. Appellate Defender, Concord, by brief and orally, for defendant.
The defendant, Michael Guglielmo, was indicted on six counts of attempted murder of Officers Murphy, Jones, Doherty, Putney, Alexacos, and Lussier. After the close of the State's evidence, the defendant moved for dismissal or, alternatively, for reduction of the attempted murder charges to reckless conduct. The Superior Court (Pappagianis, J.) granted the motion as to Officer Murphy, and the defendant pleaded guilty to that reckless conduct charge.
On the five remaining charges, the jury found the defendant guilty of the lesser-included offenses of attempted first-degree assault of Officers Jones, Doherty, and Putney, and of reckless conduct with respect to Officers Alexacos and Lussier.
The defendant moved to set aside the conviction for the attempted first-degree assault of Officer Jones on the following two grounds: (1) that the facts supporting the conviction were insufficient for the jury to find him guilty of that charge; and (2) that the facts were indistinguishable from those underlying the reckless conduct conviction concerning Officer Murphy. The motion was denied.
The trial court sentenced Guglielmo to three consecutive terms of seven and one-half to fifteen years on the three attempted first-degree assault convictions, and to three consecutive terms of one year, suspended, on the three reckless conduct convictions. The defendant appealed the trial court's denial of his motions to dismiss or reduce the charges, and we affirm for the reasons stated below.
The main question raised by the defendant is whether the evidence was sufficient to sustain the attempted first-degree assault charges involving Officers Jones, Doherty and Putney.
The testimony at trial established the following facts. At approximately 4:00 a.m. on December 30, 1985, the Manchester Police Department received a call from a resident of 611 Montgomery Street stating that the defendant, Michael Guglielmo, was firing an automatic "MAC-10" weapon inside the building. Officers Colby, Hewitt and Murphy responded to the call. When they arrived at the scene, the resident who had called met them in the rear alley of 611 Montgomery Street. From the alley Officer Colby could see a person at the second-floor window with an object in his hand. The resident of the house identified that individual as the person firing the weapon.
Officer Jones arrived shortly after Officers Colby, Hewitt and Murphy and positioned himself on the west porch of 619 Montgomery Street, next door to and north of 611 Montgomery Street. His head and right shoulder could be seen from the defendant's position. Officer Murphy positioned himself approximately eight feet behind Officer Jones at the southwest corner of the porch. A wooden partition separated the two officers.
Though it was not yet dawn, it was possible for the officers to see each other without the use of flashlights because there were street lights in the vicinity, and the light from them was reflected by the snow on the ground. Both officers had their radios on and, according to testimony at trial, "everybody in the general vicinity could hear ..." them. Both Officer Jones and Officer Murphy heard arguing and gunfire from within the building of 611 Montgomery Street. At 4:30 a.m. they saw a silhouette in the second story window of 611 Montgomery Street and observed the window being smashed out.
Immediately afterwards, the two officers heard shots fired from the defendant's position. Jones heard the bullets whistle by his head, hit the pavement behind him, ricochet off the pavement, and break a piece of glass behind him. Murphy, who was stationed "a porch-width away" from Jones, did not hear any bullets pass by him, although he heard glass breaking somewhere behind him.
The Special Reaction Team (SRT) arrived and assumed control shortly thereafter. Lieutenant Robinson, the officer in charge of the SRT, assigned Officer Doherty to negotiate with the defendant and stationed Officer Lussier and Sergeant Alexacos of the SRT on the second floor of the house across the street from 611 Montgomery.
Doherty positioned himself on the side porch of 619 Montgomery Street and attempted to communicate with Guglielmo at 5:47 a.m. Doherty, with the aid of a bullhorn, tried to communicate with the defendant for thirty to forty minutes, but received no response. Doherty then left the porch, returned and resumed his efforts.
Between 6:00 and 6:30 a.m., the defendant and Doherty spoke. According to Officer Doherty, the defendant responded to his questions coherently and logically. At one point during the communication, the defendant asked to speak to a friend. When Doherty refused the defendant's request, a burst of gunfire erupted. Doherty asked the defendant to come out, saying that the situation was not yet serious, but Guglielmo replied that he knew he was already in over his head and refused.
At that time, Officer Putney was positioned at the southwest corner of a house at 619 Montgomery Street, said house being north of and adjacent to the house at 611 Montgomery where the defendant was located. Sergeant Doherty was positioned at the southeast area of the house at 619 Montgomery. The officers were approximately sixteen to twenty feet from each other. Officer Putney was using a mirror-ended periscope to observe the scene. At approximately 6:30 a.m., Guglielmo said he could see the officer with "the mirror," and within seconds he fired several rounds. At trial, Sergeant Doherty testified that, following the defendant's statement, shots were fired by the defendant in a "westerly" direction, which was towards Putney's location, and that he heard the shots hit the house. Doherty further testified that he was concerned about the safety of Officer Putney and that, almost immediately after the statement and the gunfire, told Officer Putney to move. Putney testified that the impact of the 6:30 a.m. shots "appeared to be much closer to [him] than ... to Sergeant Doherty [because they were] much louder ... on impact."
Officer Doherty testified that at 7:00 a.m. the defendant stated that he knew Doherty's location. Rounds were fired at Doherty's location within minutes of the defendant's statement. A bullet struck a pole three to four feet directly behind Doherty, and several hit the side of the house within three to four feet of him.
During this time, Officers Lussier (sniper) and Alexacos (observer) had been stationed on the second floor of the house directly across from the defendant's location. At approximately 8:20 a.m. the defendant said to "get the snipers out of here." About four minutes later, two shots were fired which struck the third-floor window, six to eight feet above and north of the second-floor room where the officers were located. Neither officer saw the defendant fire the shots.
At about 9:00 a.m., the defendant came out of the house, his weapon slung around him and a beer in one hand. He had no difficulty walking and responded appropriately, though slowly to the order by the police to stop and kneel. The arresting officers testified that he did not appear intoxicated. As the defendant was led away, he told a friend that he left the house because he had run out of ammunition. He also told his friend that he had been taking drugs.
At the police station, the defendant registered a blood alcohol content of .15. When the police searched 611 Montgomery Street they found a .22 caliber derringer, bullet holes in various interior walls, spent nine millimeter shells, an empty fifth of vodka, an empty twelve-ounce beer can, and several empty paper packets commonly used to store cocaine, one of which was tested and found to have contained cocaine. The defendant claimed that he could not remember most of the events of the evening due to his intoxicated state.
The defendant was found guilty of attempted first-degree assault of Officers Jones, Doherty, and Putney. Attempt is defined in the following way:
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