by Garret Ean
Sept 3 2012
It is not often that an active duty law enforcement officer faces trial for a criminal complaint. But there is little that is typical of the recent case of Jonathan Evans, a Hill, New Hampshire police sergeant who faced misdemeanor charges for his role in the theft of a leather vest from a Concord storefront. There is no known video of the encounter between store owner Brian Blackden and five members of the motorcycle club, the ‘road dawgs’, but from the picture painted in court by witnesses and police, their actions blurred the line between a club and a gang, and exemplified that there are classes of men in modern society.
The minutiae brought to surface surrounding an underground police organization remained intriguing throughout the nearly three hour ordeal. The Concord courtroom was host to a range of characters from around NH. Stemming from an incident involving police officers from everywhere in the state but Concord, CPD officers were the primary investigators and the first three witnesses called at trial. The single, B-misdemeanor charge of theft was prosecuted by Cheshire county assistant attorney John Webb, and heard by Concord district court judge Gerard Boyle. Witnesses to speak were three Concord police officers, the storefront neighbor of the victim, the store owner (victim), and the defendant, Jonathan Evans. Evans was represented by Eric Wilson of wbdklaw.com. Wilson, who is a Keene State graduate, works out of an office in Nashua. He and his client made John Webb look lonely, sitting across the courtroom at his own table. The low magnitude of the charge did not qualify for a jury trial, so judge Boyle himself was positioned to act as both jury and judiciary for the bench trial.
Bench vs. Jury
There are different topics of focus upon issues when one faces a bench trial versus the alternative with a jury. Considering the placements of power, the jury trial places the fate of the defendant upon the sympathies of twelve potentially peer co-civilians. A fundamentally different game is played when the appeal is not to the sympathies of the average civilian, but to the legal expertise of a judicial magistrate. One principle in applying the law will likely vary between juries and judges: what looks and smells like crime to a jury will generally be considered crime. But for a judge, there will be more attention paid to the particular elements of the crime and how the statute applies. It becomes easier for technicalities to envelope a case.
How it went down
Robert Duvall once said that, “A courtroom isn’t a place to look for truth.” There is such a limitation on the spread of information within a courtroom that often you’ll hear a judge futilely request for jurors to disregard news coverage of actions that they may be deciding upon, and in the case of bench trials, it is implied that judges mystically disregard their own foreknowledge as well. There are a few legal hurdles in the path of video evidence, though it is common knowledge that an objective video or audio record sets a clearer picture of a scene than any amount of witness testimony could. No records existing, the physical evidence submitted by prosecution were composed of the vest and patches taken from Brian Blackden’s store and copies of the original written statements made by the defense on the day of the theft.
Snippets of information about the encounter slowly streamed out over the course of the trial. Each different submitted statement, along with the testimony of each witness offered a brief, individual perspective into the incident which, taken collectively, set a scene with relative clarity.
The first witness to testify was the young Concord police officer Erik Haglund. He had responded to a robbery report phoned in to police by Mr. Blackden. When he arrived on the scene, Blackden was emotionally distraught, reportedly pacing and angry. Haglund took a statement and passed along the information to his superior, who at the time was Robert Barry. After sealing the leather vest into an evidence bag later that day, following its delivery to the police station, Haglund had no further involvement with the investigation. Michael McGuire, the state’s next witness, is a lieutenant in the Concord police who was assigned by then-deputy chief John Duvall to conduct a followup investigation. McGuire was eventually allowed to state that he had verified the chain of ownership which led the vest into Blackden’s possession. Over the defense attorney’s objection to questions about who owned the vest, it was revealed to have belonged to Jeff Buskey, a friend of Blackden’s from whom the vest was purchased. Buskey is a former member of the road dawgs, and though the issue of ownership would be so disputed, Buskey was not called to the witness stand. It was while McGuire was on the witness stand that attorney Wilson began to introduce, through his questions, information about the internal structure of the legal outlaw motorcycle club. He began making an argument that the intellectual property of the patch design (‘colors’) on the back of the vest belonged to the incorporated motorcycle organization. The attorneys volleyed questions broaching the matter between the witness before he was relieved.
James Berry was next called to the stand. The former law enforcement officer was also involved in the Concord police department’s investigation. On the day of the incident, he was at the police station receiving information on the theft telephonically from Mr. Haglund. The report included a license plate number from one of the suspected thieves, which Berry began investigating. While doing research, the person in possession of said plate arrived at Concord PD with a leather vest. Shortly thereafter, the defendant also appeared at the police station, where he was subsequently interviewed and provided a written statement. The Concord police officers involved in the investigation each reported that they had no knowledge of any of the road dawgs giving notice to conduct police operations outside of their jurisdictions.
Gary Norton and Anthony Tine were reported as the two who initially went to the Concord police department following the horseplay at the store. Tine was cited as the president of the organization. Norton was, at the time, the sergeant in arms of the road dawgs hierarchy, and he held some sort of commanding post among the tribe as they were so gathered on the May morning in question. According to their own statements, Norton is who physically removed the vest from its display, and he handed it to Evans before they both exited the store. According to Blackden, when the five leather-clad men entered the store, three of them formed a barrier across the counter walkway, while another stood watch at the door and Norton snatched the vest from the manikin it had occupied. The club’s secretary, identified by Evans as ‘Lieutenant Gaglioli’ (Gagliardi?), was also reportedly among the group. The coordinated nature of the vest seizure seem to certainly qualify the participants for a conspiracy charge. This case example also dances the line between theft and robbery. There is a certain implied threat to more than one fully grown man intentionally blocking the path of another while his property is being molested.
When charges related to the incident were finally filed about a year later, only two names would be attached: Gary Norton and Jonathan Evans. To the degree that they were being charged with theft, it seemed rational, as they are the two who admitted to having physical possession of the vest both before and after it left the store. On the day that charges against the two were announced in court, Norton decided to end his life, putting a pistol round through his head. Though there was no mention of the suicide in court, the knowledge of it that all parties had hung silently over the room.
Reported in the press prior to the trial were some notable facts regarding Evans’ relations to the motorcycle club. At some point between the incident inside Blackden’s store and the charges being filed, Evans had resigned from the club, and he has since refused any comment on the reason for his departure.
The final two witnesses for the defense were civilians. Brandy Bisson owns a salon in a rented storefront attached to Brian Blackden’s unit. She testified how on the morning of the theft, she had observed a group of motorcyclists pull up in front of the store prior to its opening. They returned within a half hour, after the store was ready for business. Ms. Bisson was working on a client when she reported hearing loud shouting coming from next door. She could identify a voice she was familiar with yelling, “Get the hell out of my store”. She also reported hearing an unfamiliar voice screaming about how he was going to “kick your f**king ass”. On cross examination, the defense attorney asked her if she had heard Mr. Blackden demand that the intruders return the vest at any point.
The prosecution’s final witness was the victim, Brian Blackden. He began to lay out his narrative of the events, and during the synopsis he was summoned up to a white board to draw a diagram of the placement of unwelcome guests in the store that morning. He identified the defendant as one of the men who had blocked him in behind the counter.
Eric Wilson tried to call Mr. Blackden’s testimony into question by pointing out that he could not pick the defendant out of a photographic lineup. Blackden responded that Evans had been wearing head and facial hair that morning, yet all photographs shown were of a fully bald Evans. The defense attorney proceeded to show Blackden photos of Evans at other times in his life with a shaved head. His line of questioning then had Blackden point out that it was Gary Norton whom he had observed remove the vest from the manikin inside the store, and that he believed it was Norton who had driven off in possession of the vest. Next, he called to attention Blackden’s having turned some patches and pins on his vest upside-down, which he had earlier told the prosecution was a form of protest, a “political statement” against those organizations. Mr. Wilson finished his cross examination of Mr. Blackden trying to call into question the ownership of the vest.
Nearing the end of the second hour of the trial, Wilson made a motion to dismiss and laid out the defense’s case up to that point. Mr. Webb objected, “I think that the evidence in its totality — it’s pretty clear that they had a purpose to deprive him of it, and he had an interest in it, and it should not be dismissed at this juncture, you honor.” After Mr. Boyle decided that he would not dismiss the charges at that point, the defense called its one witness up to the stand. Jonathan Evans would be his own witness.
In swearing him in, his attorney wasted no time allowing Evans to rattle off his resume for the judge, giving detail about his history working for the police and military, including military police. As he began his narrative of the day’s events, he was quickly diverted with a question about the hierarchy of the club and its operations. Evans explained that he was not a current member of the club, and that because he had been a member less than ten years, he was required to surrender his road dawgs patches upon resignation. At this point, Evans began devolving into the details of the club’s hierarchy. He testified that he had no say or sway into the decision of the road dawgs to go take the vest from the store on May 21. After explaining that the group had arrived at the store before it had opened, he continued.
Evans: There’s like a military structure and, of a, a chain of command. Tony Tine is our president. Lieutenant Gaglioli was our secretary. Gary Norton was our sergeant of arms. They made the decision we would come back at a another time.
Defense: Are you in the hierarchy of the road dogs, or are you just a…
E: I am, I’m not part of the e-board, but I am what they call the road boss, which has no voting power. Only on runs, I map out the course of the runs.
Mr. Webb came back to this point on cross.
Prosecution: You said on direct, “We made a decision.” Before this incident, “we made a decision.” Do you recall saying that?
E: Well actually, I had very little say in it, (smiling) because I’m just a trooper. But the three officers made the decision, I agreed with it.
P: Okay, you agreed with it. You agreed not to…
E: If I had disagreed with it, (smiling) it wouldn’t have made any difference.
The trial itself seemed to be a frustrated attempt to place responsibility somewhere for the mob actions of a collection of off duty police officers. Evans removed himself from responsibility for his actions by placing the decision making into the hands of his peers, with their self-ordained labels of authority. He admitted that he had no knowledge of where the vest originated from or who the rightful owner was, and that he believed no one in his posse knew where the vest had originated from. But their ignorance would not prevent them from acting collectively, given that they claimed to represent a non-person, the club itself, in being co-owners of the concept of the design on the vest.
The animus between the perpetrator and the victim was not well concealed by Evans. It was not long into his testimony that he began quoting different participants from the day, restating what he remembered them to have said. When quoting his comrades, Evans used his normal speaking voice. When speaking for Mr. Blackden, Evans used a whiny, mocking voice like that of a child teasing a sibling. The act was rather distasteful considering that Evans was the last witness called, and none of those who had testified prior used sarcastic voices when quoting what others had said in passion.
There were several factual points which the defendant adamantly claimed occurred contrary to the memories of the witnesses:
- That four men entered the store (not five).
- That the late Gary Norton offered to return the vest, and that Gary Norton offered to remove the patches in the store.
- That Brian Blackden told the group to take the vest and leave the store, and that he had threatened violence (“I’ll kick your ass”).
These points are all legally significant to the defense, because whether or not they are true changes the nature of the situation entirely. However, it is no surprise that Evans saw benefit in sticking to this version of the narrative. Reading his original statement, we see that the version of events he initially relayed to police in his written report conveniently ignores many crucial points. Webb would eventually have Evans read his statement aloud in court. When asked if he considered the written statement to be complete, he sarcastically snipped that he didn’t include that he had consumed soda the night before. As to the number of people entering the store, Evans earlier admitted that there were five men riding and two women, which means perhaps Evans attests that the person Blackden identified as the door man did not enter the store. A door man is just as capable of standing guard at a door from inside or outside.
Under cross examination, Mr. Webb did a poor job of making a legal point on an issue that he made an obvious emotive point on. Webb asked Evans a line of questions regarding the intimidating nature of five (or four) leather uniformed men entering a store and taking positions as explained in court. While Evans flatly refused to acknowledge that the group would be intimidating, he responded to direct questions of whether it was his intention to block Mr. Blackden with a response that he was unsure and that Blackden hadn’t tried to push past them and it never got physical. When asking an important question in an improper way, Webb tried to have Evans admit that tactics his group had taken would nullify a claim that the vest was taken with consent.
P: You had no idea whose vest that was, right?
E: Personally, sir?
E: Individually, no.
P: None of you had any idea?
E: No, I think you’re right. Maybe my president did, I couldn’t speak for him.
P: But as far as you knew?
E: I personally didn’t know. That’s all I can testify to.
P: You agreed to leave the police out of it, and to go and take it yourself.
E: No, no. That’s not what I said.
P: Alright, you said, “we made a decision”. That decision was…
E: To go and investigate to see if it was ours.
P: You just investigate…?
E: We were seeing if it was our piece of property.
P: Okay, but you are not a Concord police officer, and never have been?
E: That’s correct.
P: None of the others are Concord police officers, and never have been?
E: That’s correct.
E: You didn’t have any business, in short, investigating a potential crime in Concord, right?
P: I wasn’t investigating a crime. I was going, I was going in to see if that belonged to us. I think as a person in the United States of America, I can do that. I didn’t break any laws walking into a store, did I? I don’t think so.
P: So, you went in to investigate whether it belonged to you, so you were going to conclude it belonged to you on what basis?
E: To see if it looked like a road dawg vest.
P: So, only if it looked like a road dawg vest? That was the basis, you were going to investigate, if it looked like a road dawg vest, you were going to take it.
E: It would have been a decision that my officers would have made. When I say officers, I mean president, secretary, and sergeant of arms.
P: You said, ahead of time you guys had made the decision. And the decision was to go investigate?
E: The decision was to go and see if it was a vest that was, if it was a road dawg vest.
P: And if it was a road dawg vest, you were gonna take it. No matter whose it was?
E: I didn’t say that. Did I?
P: I’m asking you right now. Isn’t that true?
E: I didn’t say that.
P: I’m asking you right now, isn’t that true? That’s what you had planned to do?
E: We would have had to see. I don’t know. I don’t know what we would have done.
P: Well you know what you did.
E: That’s correct. But what, but what we planned on doing — there was no plan like we were gonna run in, grab it and take off. If you’re asking me that.
P: Four guys on motorcycles, dressed up like some kind of…well, I’ll say club, not gang, but you know, dressed up like a club — or a gang — go into a store, and you would agree you guys were intimidating, is that right?
E: Not at all.
P: You weren’t intimidating at all?
P: You roll into this guy’s store in your road dawg vests. You start to take a vest off, two of you are standing in front of him, and there was no intent whatsoever to be intimidating?
E: No, I went in to see if it was a road dawg vest that belonged to the club.
P: You’re telling that court that he said, “Take it”.
P: And you’re trying to say that that’s legitimate consent? When four guys roll in dressed like that? Start threatening that you’re gonna charge somebody with stolen property? You’re trying to say that’s legitimate consent?
E: What I said was, Gary said, “the hell with it” or words to that effect. He’s walking back to the manikin, to put it on the manikin and say, “Let’s just charge him with receiving stolen property”. That’s not a threat. We’re putting it back on. There’s a reason why we don’t wanna go that route.
P: So you didn’t walk out of the store at that point? Instead, you took it.
E: No, that’s not what happened. He then said, “just take the vest”. Basically, “get out”.
P: And what I’m asking you right now is, are you trying to say that, even if he said that, which he denies, but even if he said that, are you trying to say that’s legitimate consent? Four guys can roll up on a motorcycle and…
D: Objection, as to, I guess that’s a legal conclusion. I couldn’t ask a legal conclusion of a witness, I don’t think he could ask a legal conclusion of a witness.
Judge: I’m going to sustain that.
The next ironic highlight of the situation was brought out by Evan’s own attorney. After the exchange with Mr. Webb in which club and gang were used interchangeably, Mr. Wilson began his line of questioning with calculated patience.
D: John. Much was asked about gangs. Are you a gang?
D: So you’re familiar with motorcycle gangs?
E: I’m a, you can ask my chief (gestures to the back of the room). I’m the expert in the area on motorcycle gangs. The one percenters, the outlaw clubs.
D: You’re familiar with outlaw clubs?
D: If a, for example, if the hell’s angels were displayed upside down out in front of that store, based on your knowledge, do you think, some discussion…
E: (Nodding) I think Brian would not be walking around today.
Any point it would seem the defense was trying to make by referencing the brutality other organizations dubbed “outlaw” comes across as rather disturbing. Was the defense trying to establish recognition for a custom of motorcycle clubs responding thuggishly to improper display of their brands? Wilson continued with Evans, allowing him to deliver a monologue on the issue he had earlier tried to troll the prosecutor with.
D: You said there was a reason for not involving the police?
D: What was that?
E: The club that, the court system has a, it’s overwhelmed with a lot of cases. This was a very, in our opinion, in my opinion, this is a very minor incident. For all we know Brian could be completely innocent and he’s just naive. Why do you want to immediately bring in law enforcement, with something that can be handled, we thought, between two individuals. I didn’t even know this man before this incident. I knew nothing about his history. I knew nothing about him. In fact, I’m saying it’s a pepper spray type, look, he must be a law enforcement, you know, friendly guy. That’s my interpret— as it was opening up. I make decisions daily, on a daily basis, on the side of the road, whether I have someone going in front of a judge, in a court system, or whether I can handle things right then and there. That’s being a police officer. That’s, that’s part of your job. There’s nine out of ten times you can handle things right then and there that are minor, or that’s not, technically, broken the law. And so we’re, in my opinion, we’re trying to not put a blemish on someone’s record, in this instance. I knew nothing about this guy. For all I know he could be a great guy, but I knew nothing about him. But I’m gonna give him the benefit of the doubt. Say, “Look, this is our piece of property, we just want it back”. And basically, I mean, there were some knots here and there, mentally, but overall that’s all we did. And we even offered to buy it, and pay for the vest. We even offered to just take it, cut the colors and let him have the vest. We’re just trying to solve it without involving the legal part of the system.
D: Nothing further.
P: Just very briefly. You said, quote, “That’s being a police officer”. You were not, let’s be clear, being a police officer that day. This was not an (inaudible).
E: I said on a day to day basis on my job, being a police officer. That’s what I said.
P: Right, but…
E: This incident had nothing to do with being a police officer. But it’s your mentality, the way you think as a police officer.
E: The mentality was, we’re giving this guy a break. He may be completely innocent.
P: Well, giving this guy a break is what you do as a police officer when you’re in your town and the guy, you stopped him cause he was speeding, but you’re gonna give him a break and a warning, something like that.
E: But when you, when you learn that, you carry that through life. I could meet someone down, down in Salem that needs a break on something, so I’m (inaudible). Maybe I saw someone take a candy bar, so I’m gonna throw the fifty cents down on the counter after he leaves. The court has better things to do than prosecute someone for a fifty cent candy bar.
P: Alright, nothing further.
D: The defense rests, your honor.
Evans’ final testimony was so encased in completely unassociated analogizing that Webb seemed faineant to cease his questions when he did. Everything Evans said under oath was open to further analysis under cross examination. Direct examination is much more limited in what is allowed to be asked and answered. Attorney Webb had such difficulty with court approved questions for his own witnesses that it makes it odd he did not take advantage of having the subject of his prosecution under cross examination.
The courteous image that the monologue portion of the testimony portrays alludes to scenarios greatly different from the one at hand in court. Evans likened his actions on May 21 to his humanly exercise of discretion while on the job as a police officer. Mr. Webb was quick to have him point out that he was not acting as a police officer that day, and Evans affirmed that he was acting as a civilian. The point that was not specifically addressed was that he and his friends were acting extralegally. The fact, which Evans admits to, of one of his comrades stating that they would charge the store owner with receiving stolen property means that the group acting as civilians used the threat of their police authority as a illegitimate leverage of behavior. Evans stating that the situation was meant to be handled “between two individuals” reveals a patent lie. The facts shared in all narratives was that the encounter began as either four or five on one, and there is no indication that the road dawgs had any intention of approaching the matter with a neighborly, one on one conversation. The action was an extrajudicial property seizure, regardless of whether or not it would be so called in court.
The defense attorney began closing making an argument that “the law, with respect to mistake of fact is clear.” He stated that Evans had no intent to steal, notwithstanding how the scene actually played out. Webb made his closing statements in similar legalese, citing cases and wrapping up arguments. After a pause, judge Gerard Boyle began stating facts he had selected as relevant to the case. He ultimately would state, “The court is not convinced beyond a reasonable doubt that the ‘purpose to deprive’ element is met. Therefore, I’m going to enter a finding of not guilty. Thank you.”
Brian Blackden was visibly upset with the verdict. He told reporters in the parking lot that, “it just emphasizes that the police are a different class of people.” His attorney, Penny Dean, commented that the case was an example of the police getting preferential treatment when they act on the opposite side of the law. She noted that the charge Evans was facing, class B misdemeanor ‘theft by unauthorized taking’, was the lowest level charge that could have been applied to the circumstance.
The irony of the judge’s ruling is that Mr. Blackden has been deprived of his lawfully owned vest for the duration of the legal proceedings. Unverified comments on recent articles report that he still has not been returned the vest. State v Jonathan Evans may have legally exonerated Mr. Evans for his actions that day, yet every light shone upon the instance revealed improper conduct unbecoming of a police officer. Despite trading hugs and smiles with his boss and fellow officers after the verdict, Mr. Evans can’t possibly be proud of what was revealed in court. He will have plenty of time to consider his actions, as he continues to be paid by taxpayers to creep about New Hampshire roads, detaining motorists for traveling too briskly. Perhaps he will be true to his word, and cut breaks for all of the people who don’t belong in court.