RANDOLPH — After striking out three times in Coos County Superior Court, Volodymyr Zhukovskyy, driver in the so-called "Fallen 7" collision, is asking the N.H. Supreme Court to order a bail hearing on whether he must remain in preventive detention while awaiting trial.
Zhukovskyy, 25, of West Springfield, Mass., is charged with multiple counts of negligent homicide, negligent homicide-DUI and reckless conduct in the June 2019 crash that killed seven motorcyclists on Route 2 in Randolph.
Killed as a result of the collision were Mazza, 59, of Lee, Daniel Pereira, 58, of Riverside, R.I., Michael Ferrazi, 62, of Contoocook, Aaron Perry, 45, of Lee, Desma Oakes, 42, of Concord, and Edward and Joan Corr, both 58 of Lakeview, Mass.
He has pleaded not guilty to all charges and has been held in preventive detention at the Coos County Jail in West Stewartstown since his arrest.
Zhukovskyy’s attorneys have unsuccessfully argued in Superior Court for an evidentiary bail hearing, noting their client has already spent two years in jail. Coos County Superior Court Justice Peter Bornstein has denied all three motions.
Last month, the defense filed a motion in Supreme Court and oral arguments are scheduled for June 29.
Representing Zhukovskyy, Chief Appellate Defender Christopher Johnson said his client’s trial is set for early December, meaning he faces another six months in detention.
Johnson said state statute allows a person charged with a crime to be held in preventive detention, without bail, “only if the court determines by clear and convincing evidence that release will endanger the safety of that person or the public.” Johnson said the defense and state differ on many facts in the case and his client is entitled to an evidentiary hearing to determine if the evidence supports Zhukovskyy remaining in preventive detention.
In his motion, Johnson said the parties initially agreed to a bail order placing his client in preventive detention when he was arrested June 25, 2019. He said the order was based partly on evidence of substance abuse but also on Zhukovskyy’s criminal and driving record. He said Coos Superior Court Judge Peter Bornstein wrote on the bail order that the defendant’s criminal and driving history indicated he would present a danger to the public if released.
Johnson said new evidence that has developed over the course of the investigation has changed the assessment of the crash.
N.H. State Police initially believed the truck driven by Zhukovskyy was 4 feet over the center line into the eastbound lane when it hit the JarHeads Motorcycle Club members. But the defense pointed to a report by an independent accident reconstruction firm saying it appeared the lead motorcycle was protruding over the center line at the moment of impact, causing a loss of pressure in the truck’s front tire. The truck then crossed into the group of on-coming motorcycles.
Johnson said the state has charged that Zhukovskyy was impaired at the time of the accident, citing blood test results showing the presence of fentanyl and metabolites of heroin and cocaine. He said the state alleged the defendant admitted to police officers that he had used substances that day.
But Johnson said Zhukovskyy’s impairment is a matter of dispute, noting police officers who talked to Zhukovskyy after the collision did not describe him as impaired. On the other hand, the attorney said test results show the lead motorcyclist was legally intoxicated with a blood alcohol level well over the legal limit.
Even if Zhukovskyy was impaired at the time of the accident, Johnson said he has since been substance-free for 24 months and that risk is diminished. Johnson said there also are available less restrictive means of ensuring public safety without requiring pretrial incarceration. He said the court could order electronic monitoring, mental health and substance treatment, and supervised release with the conditions that he not drive or consume drugs and alcohol.
In its response, the state said the trial court did not abuse its discretion in denying Zhukovskyy an evidentiary bail hearing given that he is a flight risk and a danger to himself and the public.
Assistant N.H. Attorney General Scott Chase said the state continues to believe Zhukovskyy caused the collision by failing to keep his commercial motor vehicle in his own lane of traffic. The state noted that at the time of the collision, Zhukovskyy was on bail for driving under the influence in Connecticut. Chase said the defendant has a history of impaired driving and illicit drug use.
The state said the parties do not disagree on a majority of facts in the case but rather argue opposing inferences and the sufficiency of the facts to obtain convictions.
Furthermore, the state pointed out that Zhukovskyy, a resident of Ukraine, is here on a green card, and U.S. Immigration and Customs Enforcement has filed a deportation detainer against him. Chase said jail call translations reveal he still has family in Ukraine that would welcome him back.
The state also argued the court is not required to hold an evidentiary bail hearing. “Ultimately, the issues raised by the defendant reflect his disagreement with the trial court’s conclusion that the defendant is a danger to himself and the community, not what the trial court was required to do as a matter of law,” Chase wrote.
Members of the JarHeads Motorcycle Club were traveling east on Route 2 from Randolph to the American Legion Post in Gorham in the early evening of June 21, 2019, when the motorcycles collided head-on with a Dodge Ram pickup truck hauling a flatbed trailer. The truck was operated by Zhukovskyy, driving for Westfield Transport of West Springfield, Mass.