EagleTribune.com, North Andover, MA

August 11, 2013

Haverhill cops blame West Newbury officers for ex-trooper avoiding arrest

Suspended officers tell their story in legal documents

By Shawn Regan
sregan@eagletribune.com

---- — HAVERHILL — Legal arguments by two Haverhill police officers fighting suspensions for giving special treatment to an ex-state trooper show the officers blame West Newbury police for not charging him with drunken driving.

The Haverhill officers — Lt. William Leeman and patrolman Christopher Pagliuca — were suspended without pay for ten and five days, respectively, for violating police rules and ethical standards, as well as unsatisfactory performance. The state Civil Service Commission recently upheld Mayor James Fiorentini’s decision to suspend the officers, who are in the process of appealing that decision to Superior Court.

Harry Miller, another Haverhill officer at the scene of the crash involving the retired trooper, previously agreed not to fight his 10-day suspension. He accepted a demotion from sergeant to patrolman to save his job.

The officers and their lawyers have declined multiple requests to comment on the case since the incident, which occurred more than a year ago. But they recently made available legal briefs filed by their lawyers that lay out the officers’ versions of what happened at the accident scene and in the investigation that followed.

According to the legal briefs, here’s what the Haverhill officers said happened:

Pagliuca, the first Haverhill officer on the scene of the Mach 2012 crash, said West Newbury and Merrimac police officers were already investigating the accident near the Rocks Village Bridge involving former state trooper Charles Noyes when Pagliuca arrived at the scene. Noyes, who lives in Haverhill, was a lieutenant colonel with the State Police when he retired in 2006.

Police reports show West Newbury Sergeant Daniel Cena was first on the scene, that he spoke to Noyes through the driver’s side window of his vehicle, and that he told other officers that Noyes was intoxicated. Reports said Cena asked Noyes to take a field sobriety test, but that Noyes refused.

Miller and Pagliuca testified at a local Civil Service hearing that they believed Cena was in charge of the scene. Pagliuca testified that Cena told him that he smelled “booze” on Noyes.

Miller testified that he said to Pagliuca, “What do you think?” Pagliuca responded that Noyes “cannot stand up, his eyes are glassy, and I think he is intoxicated.”

Miller then went back to Cena and asked him, “So are you charging him with leaving the scene and OUI?” Cena responded, “No, I am charging him with leaving the scene, but not OUI.” Miller then said, “Why aren’t you charging him with OUI if you are charging him with leaving the scene?” Cena responded, “My chief and the district attorney will get mad at me.”

Miller then called Leeman at the Haverhill Police Station and told him what was happening at the scene. Leeman was the senior Haverhill officer on duty at the time.

While they were deciding what course of action to take, Miller said Noyes started speaking to him about how they all work the same job and that if this was the good old days, the officers would just let him go.

At that point, Miller said he told Noyes, “If I get the green light to charge you, you are getting charged.”

A few moments elapsed and then Miller called Leeman back. Leeman told Miller that he researched case law, but could not find any case that would justify Haverhill officers charging Noyes with drunken driving based on the facts presented to him by Miller.

Miller then discussed with Cena which department was going to charge Noyes. It was at the point that Miller realized that Noyes was not going to be arrested nor charged with drunken driving.

Eventually, Noyes agreed to get into an ambulance and go to the hospital to be checked out.

The legal brief goes on to describe a tense discussion between Cena and Noyes as Noyes boarded the ambulance.

“It was at this point that Cena began yelling at Noyes,” the brief said.

It went on to explain what happened next.

Cena accused Noyes of giving officers the run-around, claiming they could not prove Noyes was the operator of automobile.

“Are you really going to play this (expletive) game,” Cena asked Noyes. “You are lucky you made it to Haverhill because if you didn’t you’d be going to jail right now.”

The brief also said Cena told Noyes that he was almost killed by a drunken driver in a previous incident and that Noyes’ “failure to take ownership of what happened was ridiculous.”

In its decision to uphold the suspensions of the Haverhill officers, Civil Service chairman Christopher Bowman accused Noyes of lying to police at the scene of the accident as well as to the commission at a disciplinary hearing for the two Haverhill officers earlier this year. Bowman said Noyes’ testimony to the commission was “wildly unbelievable and tarnishes the image of the Massachusetts State Police.”

The rest of the 41 page legal brief goes on to document how police handled the subsequent investigation and testimony at the Civil Service hearing.

In a statement on the Civil Service Commission’s recent decision to uphold the city’s decision to suspend Leeman and Pagliuca, the police patrolman’s union claimed the commission failed to consider key factual and legal issues in the case.

“The true issue before the commission was not whether Charles Noyes was actually intoxicated, which is what one may assume after reading the decision, it was whether Officer Pagliuca and Lieutenant Leeman had violated their duties as police officers. They did not,” the statement reads, in part.

“Perhaps the most important overlooked fact was West Newbury Sergeant Daniel Cena’s role in how this matter was handled,’’ the statement continues. “Sergeant Cena did have the authority to lawfully summons Noyes for operating under the influence but failed to do so. In fact, Worcester County Assistant District Attorney John Hartmayer told the city during their investigation of this matter that “if Mr. Noyes was to be charged with OUI, the charge should have been brought by West Newbury.

“Unfortunately, that fact appears nowhere in the city’s nor the commission’s decisions and, instead, unjustified blame is placed on Officer Pagliuca and Lieutenant Leeman as a means of addressing the public’s legitimate concerns with how this matter was handled as a whole,” the statement says.

According to police reports, Noyes crashed his Cadillac Escalade in West Newbury on March 30, 2012, then kept driving with his air bags deployed until police found him in the travel lane just over the Haverhill line. The crash snapped a utility pole on Route 113 in West Newbury, cutting power to the surrounding area for almost 11 hours.

An internal Haverhill police investigation concluded that Noyes was given special treatment by West Newbury and Haverhill police officers due to his previous state police position, and that officers acted to cover up their actions in investigating the incident.

Noyes eventually was sentenced in Newburyport District Court to six months of unsupervised probation after admitting there were sufficient facts to find him guilty of negligent driving and leaving the scene of an accident that caused property damage.

An outside investigation commissioned by West Newbury concluded that Cena and another town officer on the scene, Royster Johnson, did not violate any department rules, regulations or policies in their handling of the incident. That report, by retired Methuen police Chief Bruce MacDougall, contradicts the findings of the Haverhill probe that officers from both departments gave Noyes special treatment.

The report, in part, found Cena acted properly in not charging Noyes with drunken driving due to the fact he did not witness the crash on Route 113 in West Newbury and that he was outside his jurisdiction when he caught up with Noyes over the line in Haverhill.

A police procedure attorney interviewed by MacDougall concluded that had Cena issued Noyes a summons for drunken driving, the case would have been dismissed in court. Another police procedure attorney interviewed is quoted as saying Cena “did everything right.”

Pagliuca-Leeman Proposed Decision