Judge denies defense motions ahead of overdose death trial

An Oneida County judge last week denied a pair of motions brought by the attorney representing the 24-year-old Rhinelander woman charged in connection with the overdose death of a 29-year-old Town of Pelican man last year.

The defense had sought to suppress the statement Jasmine M. Lariviere made to police following a May 2022 traffic stop and asked to be allowed to suggest to the jury that two other people may have given Kyle Polinski the drugs that ended his life on April 18, 2022.

Lariviere and her codefendant, Malik I. Jones, 24, were charged with reckless homicide, as party to the crime, last September after toxicology results showed Polinski died from fentanyl toxicity. 

Fentanyl is a synthetic opioid analgesic 50 to 100 times stronger than morphine.

Shortly after Polinski died, police received information indicating a crime may have occurred and that Jones and Lariviere might have been involved. Law enforcement later obtained a warrant to place a GPS device on the couple's vehicle and track their movements. 

The two were arrested in early May 2022 following a traffic stop. At the time, they were under bond and/or probation conditions prohibiting them from having any contact.

Various amounts and types of illicit substances were found in the vehicle during the traffic stop, including pills located inside Lariviere’s purse. According to the complaint, the pills matched the description of the pill Lariviere and Jones later told police they delivered to Polinski in April. The pills were sent to the state crime lab for testing and came back positive for the presence of fentanyl, according to the complaint. 

According to testimony during Jones’ preliminary hearing, Jones and Lariviere purchased what they were told were Percocet pills from a contact outside of the area and traveled to Oneida County to deliver one of the pills to Polinski.

The police interviews indicate Jones and Lariviere believed the pills were Percocet but were aware that there were “fake Percocet” pills circulating at the time. 

Earlier this year, pursuant to a plea agreement, Jones pled guilty to first-degree reckless homicide-drug delivery (as party to the crime) as well as possession of narcotics and schedule IV drugs with intent to deliver. He is serving a 3 1/2 year prison sentence to be followed by eight years extended supervision.

As part of the agreement, he has agreed to testify truthfully should Lariviere’s case go to trial.

The case was scheduled for trial this month but had to be postponed after the state discovered it had witness availability issues. 

Instead, a hearing on the defense motions took place on July 18, exactly 15 months after Polinski’s death.

The crux of the defense argument for suppression of Lariviere’s statement to police was that the investigators knew she had an attorney representing her on another criminal matter, a person she referenced but did not specifically ask for during the interview in question, according to a recording of the interview played during the hearing.

The defense also noted that Lariviere was arrested at gunpoint during a traffic stop, was under the influence of marijuana at the time of the interview and didn’t fully understand her rights with respect to representation by counsel.

Based on the “totality of the circumstances” defense attorney Antoni Apollo argued the statement was not voluntary.

In response, Oneida County assistant district attorney Mary Sowinski argued that Lariviere was properly read her Miranda rights and that the right to counsel under the Sixth Amendment “only attaches to the charged offenses.”

For the interview in question, the officers wished to speak to Lariviere about a matter separate from the case for which she had legal representation, the prosecutor noted.

“Furthermore, they made it very clear that it was up to her to decide what questions to answer, whether to ask for an attorney at any time, and when to end the interview,” she added.

Reading from the transcript, she quoted one of the investigator’s exact words: “Really, how the conversation progresses and where it goes and when it ends is really in your court,” the officer told Lariviere.

Judge Mary Roth Burns denied the suppression motion, noting that the investigators were “thorough” in reciting the defendant’s rights and making it clear that she could end the interview or contact her attorney at any time. The judge also noted that it appeared Lariviere was comfortable in the interview room and made a knowing decision to speak with the investigators.

“Certainly, she did mention her attorney before she was read her Miranda rights, but I thought that law enforcement was very thorough in explaining to her that she could ask for an attorney or stop the questioning at any point if she felt uncomfortable,” the judge said, adding that “law enforcement gave her multiple chances to say she needed her attorney or wanted to call him. She seemed very comfortable in that room. She did not seem afraid or worried...”

Burns also denied Apollo’s request to be allowed to argue to the jury that two other people — associates of Polinski — might have delivered the substance that ended his life.

In making his argument, Apollo referenced a non-fatal fentanyl-related overdose that took place a week before Polinski died. That incident, he argued, bears some similarity to what is believed to have taken place when Polinski perished and involved a substance allegedly provided by someone who was known to use drugs with Polinski in the past.

He also referenced a statement made by one of Polinski’s associates who claimed that Polinski had talked about traveling to another state to try to get drugs from a contact who had moved away from this area.

Prosecutor Sowinski strongly objected to the defense’s attempts to tie these other people to Polinski’s death. One of the individuals — the one the defense argued was involved in the earlier non-fatal overdose — was actually in jail the week before Polinski died, she stressed.

 The other individual resides in a state some distance from Wisconsin and there’s no evidence connecting that person to Polinski in the days before his death.

Sowinski called the defense’s attempts to point to these individuals as potential third-party perpetrators as “rank speculation” that should not be permitted.

Burns agreed with the state, though she noted that if the incarcerated individual had actually been free during the relevant timeframe, she likely would have granted the motion. 

“The connection with (the incarcerated individual) is too distant in time because he was locked up,” she said, adding that there is no actual evidence tying the person who resides in another state to Polinski during the timeframe in question.

After denying both motions, Burns set a status conference for Sept. 5. This is a “placeholder” date, she said, as her term in office will end on July 31. She was appointed by Gov. Tony Evers to fill the remainder of the term left unserved following the retirement of Judge Patrick O’Melia last summer. 

Oneida County district attorney Michael Schiek will take over as Branch 1 circuit judge on Aug. 1, having defeated Burns in the spring election.

Previously, the parties in the Lariviere case indicated they would like to see a new judge assigned as soon as possible so that the matter can be resolved in a timely manner. A new trial date will be set after a new judge is assigned.

Finally, Burns amended Lariviere’s bond conditions to prohibit any use of social media. 

According to Sowinski, a concern was raised about her allegedly commenting on the case on social media.

If convicted of reckless homicide, Lariviere faces a maximum sentence of 40 years in prison. 

Heather Schaefer may be reached at [email protected].