LANCASTER — Coos County Superior Court Justice Peter Bornstein has rejected a defense motion to suppress part of a police interrogation of the truck driver in the Fallen Seven collision on Route 2 in Randolph in June 2019.
In a decision released Tuesday, Bornstein ruled Volodymyr Zhukovskyy did not “unambiguously” invoke his right to remain silent during the questioning which took place three days after the accident that killed seven members of the JarHeads Motorcycle Club.
Zhukovskyy, 25, of West Springfield, Mass., has been charged with seven counts of negligent homicide, seven counts of negligent homicide-DUI, seven counts of manslaughter, one count of aggravated DUI and one count of reckless conduct in the accident.
Zhukovskyy was driving a pickup truck with an attached flatbed trailer west on Route 2 in Randolph on June 21, 2019, when the truck collided with a group of motorcycles headed to the American Legion Post in Gorham. Seven members of the Jarheads Motorcycle Club, a New England group that includes Marines and their spouses, were killed. The Jarheads killed in Randolph were Albert Mazza, 59, of Lee; Daniel Pereira, 58, of Riverside, R.I.; Michael Ferazzi, 62, of Contoocook; Aaron Perry, 45, of Lee; Desma Oakes, 42, of Concord; and Edward and Joan Corr, both 58 of Lakeview, Mass. Three others were injured.
The defendant was questioned by N.H. State Police Sgt. Michael McLaughlin and Det. Shawn Torsey at the Massachusetts State Police office in Springfield, Mass., after his June 24 arrest on a fugitive warrant. In the middle of the interview, the questioning turned to the defendant’s drug use, and Zhukovskyy said he had stopped using, was cold and not feeling well.
“I mean, like, right now, I don’t even want to answer anything. Like, I’m just, like, out of it,” he told the two officers. After a break in which Zhukovskyy was given a blanket and some coffee, the interview continued for another 44 minutes.
Defense Attorneys Steve Mirkin and Jay Duguay argued the statement by Zhukovskyy that he did not feel like answering questions invoked his right to remain silent under Miranda and questioning should have stopped. The defense asked the court to suppress the remaining 45 minutes of the interview and any evidence that stemmed from it.
Assistant State Attorney General Scott Chase said the statement had to be considered in context, and Zhukovskyy was talking about how he feels when he gets withdrawal symptoms. Chase said no reasonable person would conclude looking at the entire session that Zhukovskyy was invoking his right to remain silent.
Bornstein sided with the state, writing that looking at the “totality of the circumstances,” the statement “was merely one of many he made concerning his health and overall wellbeing at the time.”
Bornstein pointed out police are not required to seek to clarify an ambiguous statement about whether accused wants to invoke his or her Miranda rights. The judge pointed out that Zhukovskyy did not show any hesitation in continuing the interview.
Bornstein also this week denied a renewed request to release Zhukovskyy on bail. The defendant has been held in protective custody since his arrest. The case is not expected to go to trial before next spring.