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Inmate's heroin charge is dropped
County jail sought court action without DA

By Milton J. Valencia TELEGRAM & GAZETTE STAFF

Criminal charges against a jail inmate suspected of providing the heroin that killed a fellow inmate were granted yesterday but then dismissed by a court clerk. Jail officials had sought the court action without involvement of the district attorney's office.

District Attorney John J. Conte has been investigating the death of John Yovino, 38, since he overdosed Feb. 27 at the Worcester County Jail and House of Correction in West Boylston. Mr. Conte said Thursday that the investigation is ongoing.

Victor Vargas, 54, who has several aliases and is also from Fitchburg, was identified as a suspect soon after the death, with several witnesses telling investigators he had heroin smuggled into the jail, later packaged it and sold it, some to Mr. Yovino. Both were confined to the jail's Francis J. Deignan facility, a medium-security block. Mr. Vargas was serving a sentence for distributing heroin, and Mr. Yovino was incarcerated on assault charges.

Yesterday, an assistant clerk magistrate in Clinton District Court approved a complaint jail officials filed seeking charges of possession of heroin, possession with intent to distribute heroin, and distribution within 1,000 feet of a school zone (Salem Covenant Community Nursery School), said Jeffrey Turco, deputy superintendent of the jail. He provided several documents showing the complaint was approved and that an arraignment was scheduled for July 12.

However, later yesterday afternoon, the clerk magistrate of Clinton District Court faxed a letter to the jail saying the charges would be "vacated," because there wasn't sufficient evidence, according to a copy of the letter Mr. Turco provided. The letter is handwritten on a sheet of paper and signed by the clerk magistrate, Leonard F. Tomaiolo.

"(T)he previous allowance is hereby vacated and the application for complaint is dismissed, there being no probable cause for its issuance," the letter reads.

The Telegram & Gazette sought to independently obtain the documents from Clinton District Court yesterday. However, a court clerk said at 4:15 p.m. that Mr. Tomaiolo had left for the day 10 minutes earlier. There was no entry in the computer system of Mr. Vargas being charged. However, complaints that are not approved are not entered into the court computer system. The court clerk said any record of the complaint application, and the clerk magistrate's letter to the jail, would have been locked in Mr. Tomaiolo's office and not available yesterday. Mr. Tomaiolo did not return a telephone call for comment made to his office earlier in the afternoon, before he left for the business day. A clerk said he was in a meeting when the call was made.

Mr. Turco said yesterday that his law enforcement division will appeal the clerk magistrate's dismissal of the already approved complaint to a judge, questioning the basis of rejecting a complaint that he said was based on months of investigatory work. He said state police detectives assigned to Mr. Conte's office were involved in the investigatory stage of the process, and that there had been cooperation between the jail and the district attorney's office.

Mr. Turco acknowledged that the case fell under Mr. Conte's jurisdiction because Mr. Yovino died and state law gives the district attorney authority to investigate any death at the jail. However, he said, Mr. Conte's office is considering manslaughter charges, while jail officials thought it appropriate to move forward now with the drug possession charges.

Mr. Turco said the jail has instituted a zero-tolerance policy against any wrongdoing at the jail. While the investigation continues into possible manslaughter charges against Mr. Vargas, for allegedly providing the drugs that killed Mr. Yovino, there was sufficient evidence to bring possession of heroin charges in district court, he said.

"We need to show this type of activity will not be tolerated," Mr. Turco said, noting that 17 inmates in the Deignan facility tested positive for heroin the day Mr. Yovino died, including Mr. Vargas. There have been several reforms at the jail since Mr. Yovino died, Mr. Turco said, including the elimination of contact visits in which inmates can touch their visitors. Jail officials believe Mr. Vargas' family members smuggled at least five grams of heroin to him through the visits.

"As we try to crack down on the criminal element occurring in this facility, we look forward to cooperation from the courts in order to effectuate our zero-tolerance policy," Mr. Turco said.

Mr. Turco said the jail has a positive relationship with Mr. Conte's detectives and court officials, but said he was "surprised and amazed to then receive a fax transmission" dismissing the charges.

It was not clear whether Mr. Conte's office had any involvement in the dismissal of the charges. The district attorney's office is responsible for prosecutions in Worcester County.

Mr. Conte has kept control of death investigations under his office in the past. Earlier in the year, he convinced the state Department of Public Safety to delay the release of an investigatory report on the death of a Shrewsbury man on an amusement ride, saying it would compromise his own probe. The report was eventually released, however. Mr. Conte did not return numerous telephone calls for comment made to his office yesterday.

"We stand by our application for the criminal complaint," Mr. Turco said.

According to the complaint filed in Clinton District Court, provided by Mr. Turco, investigators interviewed at least four inmates who said they saw Mr. Vargas with heroin the day Mr. Yovino died. One witness said he saw Mr. Vargas give at least 1 gram of heroin to Mr. Yovino. Another said Mr. Vargas asked him if he wanted to buy any of the drug.

Investigators also have transcripts of telephone calls Mr. Yovino made to a relative, telling her to give $400 to a woman who would come by the relative's house. Investigators believe the money was used to pay for the drugs smuggled into the jail. One witness told detectives he heard Mr. Vargas and Mr. Yovino negotiate a $400 payment for a gram of heroin.

"This is based on dozens of interviews, tape-recorded interviews," Mr. Turco said. "Our investigators conducted a several months long investigation, traveling to different parts of the country to corroborate information they received."
 
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