BRENTWOOD�� Five charges filed against Mark Gray are now with a jury of his peers, as the prosecution and defense gave closing arguments during the fourth day of trial in Rockingham County Superior Court Wednesday.
Following the recent nolle prosse of three of the original eight charges Gray faced � including two counts of reckless conduct with a deadly weapon and one count of criminal threatening � a jury will now decide if Gray is guilty or not guilty of two counts of reckless conduct with a deadly weapon, attempted first degree assault with a firearm, criminal threatening with a deadly weapon and criminal mischief.
The charges stem from a shooting on Summer Street in the early morning hours of Aug. 18, 2018, when Gray and his partner, former Portsmouth Police Commissioner Brenna Cavanaugh, were woken by who they believed to be an intruder in their home at 140 Summer St. Following a foot chase out of the house and into the street, Gray admittedly fired six shots at a pickup truck driven by the alleged intruder as it fled the scene.
Unknown at the time, the intruder was a teenager whom the couple had met before, and due to miscommunication via the Snapchat mobile app with a classmate, he thought there was a party at the house that night and entered through an unlocked door, the teen testified last week.
Three shots hit the pickup truck, and the other three were never recovered, police witnesses testified.
Cavanaugh already has been convicted in the case as Gray’s accomplice because the teenager alleged he heard her say, “Shoot him.” She appealed her conviction to the New Hampshire Supreme Court.
Reaffirming initial arguments, the prosecution claimed Wednesday in closing arguments that Gray put the teenager and the neighborhood in danger when he recklessly fired his gun as the teen fled. The defense claimed self defense, saying Gray �feared for his life� and Cavanaugh�s because he believed the pickup truck was driving at them on the street.
Finishing off witness testimony Wednesday was Portsmouth police detective Erik Widerstrom, who walked the jury through physical evidence in the case, including the Ruger semi-automatic pistol used by Gray, spent shell casings, and fragments of a broken taillight from when the teenager backed into a telephone pole at a high rate of speed while fleeing.
Widerstrom wore blue rubber gloves as he handled the evidence and showed the jury how a separate magazine slides into the handle of the pistol, and casings eject from the firearm typically to the right.
Widerstrom testified as many as six police officers looked for the missing rounds the next day, primarily near the State Street Church and a residence across the street. He also took part in creating scene diagrams, which Assistant County Attorney Ryan Ollis displayed to the jury.
�Part of the documentation process with anything is trying to ensure at some future time, you can provide the proper context of what the scene looked like,� Widerstrom said.
Judge Marguerite Wageling instructed the jury that because the defense claimed self defense, the prosecution must have proved beyond a reasonable doubt that it was not, in fact, self defense for the jury to find Gray guilty.
In this case, the jury is examining self defense with a deadly weapon, she explained, defined as �any assault or confinement which the defendant commits with the purpose of causing death or serious bodily injury, or the defendant knows will create a substantial risk of death or serious bodily injury.�
Use of deadly force is justified, Wageling said, when the defendant reasonably believes another person is about to use unlawful deadly force against him or another person. It is not justified when �the defendant knows he and the third person can safely retreat from the encounter.�
Wageling explained additional factors, such as a defendant does not need to retreat if he is in his own dwelling. In Gray�s case, the shooting took place on the street, but the defense argued the pickup truck approached Gray and Cavanaugh at a high-rate of speed.
In a video interview at the Portsmouth Police Department that took place hours after the incident, Gray told detectives the teen “came at me with a deadly weapon,” in reference to the truck.
Wageling told the jury Gray�s belief of harm �must be reasonable” for self defense to be considered.
Jury deliberations began with less than one hour until the courthouse closed, and will resume Thursday.