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State v. Costella

Supreme Court of New Hampshire

September 12, 2014

The State of New Hampshire
v.
Paul A. Costella

Argued January 9, 2014.

Page 1156

Belknap.

Joseph A. Foster, attorney general ( Lisa L. Wolford, assistant attorney general, on the brief and orally), for the State.

Stephanie Hausman, senior assistant appellate defender, of Concord, on the brief and orally, for the defendant.

BASSETT, J. DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.

OPINION

Page 1157

Bassett, J.

After a jury trial in the Superior Court ( O'Neill, J.), the defendant, Paul A. Costella, was convicted on two counts of criminal threatening and one count of disorderly conduct arising out of an incident that took place at the Wal-Mart store located in Tilton. RSA 631:4 (2007 & Supp. 2013); RSA 651:6, I(f) (2007); RSA 644:2 (2007). The two criminal threatening convictions were subject to an extended term of imprisonment under RSA 651:6, I(f), the " hate crime statute." On appeal, the defendant argues that the superior court erred when it: (1) denied his motion to dismiss the hate crime enhancement; and (2) excluded the testimony of his daughter that he was not motivated by hostility towards Judaism. We affirm.

The jury could have found the following facts. On November 29, 2010, the defendant brought his car to Wal-Mart for an oil change. Jane Sylvestre, an employee in the automobile department, drove the defendant's car into the service bay. While in the defendant's car, Sylvestre saw a photograph of the defendant and his daughter in front of a red flag with a swastika on it. In the photograph, the defendant and his daughter were, as described by Sylvestre, " doing the heil Hitler." Sylvestre took offense because the Nazis had killed her uncle, who had been a member of the French resistance.

After parking the car in the service bay, Sylvestre returned to the service area, where she told the defendant that she had the right to refuse service to customers with whom she was uncomfortable. In response, the defendant asked Sylvestre if she was a Jew. Sylvestre testified that her response was along the lines of, " [W]hat's it to you?" The defendant told Sylvestre that not enough Jews had been killed during World War II, and that " a good Jew is a dead Jew." He then asked her if she had seen his " Jew killing gun" in the car. Sylvestre told the defendant that her uncle had been burned alive by the Nazis during World War II, and that her mother had been forced to watch. The defendant responded that he hoped that Sylvestre's uncle -- " that Jew bastard" -- had suffered when he died. After the exchange, the [166 N.H. 707] defendant repeatedly walked by Sylvestre, calling her a " gypsy Jew" and stating that the " worst thing in the world is a gypsy Jew. They didn't kill enough Jews."

After the oil change had been completed, a second employee handed the car keys to the defendant. As Sylvestre started to process the invoice, the defendant asked her if she had seen his gun, saying, " It's a Jew killing killer." He also accused Sylvestre of " wreck[ing]" his car because she was " a stupid Jew that doesn't know how to drive a car." The defendant then paid his bill. As he was leaving, the defendant declared -- to no one in particular, but audibly, and within earshot of Sylvestre -- that he was " getting his gun to kill the Jew b***h behind the counter."

The defendant then walked past the second employee and asked him what he thought of Jews. When the employee replied that Jews did not bother him, the defendant stated that " we should kill them all starting with the woman behind the counter," and referred to " why [he] keeps a gun underneath [his] front seat."

Jonathan Allard, a store manager, overheard that conversation. Allard also had heard the defendant talk about his " Jew killing gun" as well as his threats to kill. The defendant then started speaking to Allard, raising his voice and asking Allard whether he was Jewish. The defendant appeared agitated. Allard did not respond.

Page 1158

The defendant told Allard that he was going to kill " both of you Jews," and he again stated that he had his " Jew killing gun" in the car. Allard understood that the defendant was referring to him and Sylvestre. Allard then told the defendant to leave the store and informed him that the police would be called. The defendant left the premises, and the police arrived shortly thereafter. The police investigated the incident and arrested the defendant.

The defendant was indicted for disorderly conduct and charged with two counts of criminal threatening, one count for his statements to Sylvestre, and the other for his statements to Allard. Prior to trial, the State notified the defendant that pursuant to the hate crime statute it would seek enhanced penalties on the criminal threatening charges. The hate crime statute provides, in pertinent part:

I. A convicted person may be sentenced according to paragraph III if the jury also finds beyond a ...

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