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    Officials' struggle: Who to charge in drug deaths?

    A state law allows police to charge some drug distributors with murder if the user dies. But it's a challenge to bring such cases to court.

    By LEANORA MINAI, Times Staff Writer
    © St. Petersburg Times
    published August 19, 2002


    In Tampa, a man partying with a waitress gives her a fatal dose of Ecstasy and heroin. He goes to prison for life.

    In Gulfport, a man dies after his brother injects him with cocaine. Prosecutors refuse to charge the surviving brother with manslaughter.

    In St. Petersburg, an investigation of a heroin dealer suspected in three fatal overdoses is suddenly sidelined when the dealer overdoses. Should someone else be charged?

    Drug overdoses, particularly those involving heroin, have risen dramatically in recent years, forcing area prosecutors and police to grapple more frequently with the question of whether to charge suppliers with murder.

    But getting such cases into the courtroom is tough -- made so by unreliable witnesses, the difficulty of proving who supplied the drug and the medical challenge of showing that the drug caused the death.

    "The problems are kind of numerous," said Bruce Bartlett, chief assistant state attorney for Pinellas and Pasco counties.

    On Aug. 10, Aaron Kononitz, 28, was found dead in his bunk at a drug treatment center in Largo. He apparently overdosed on heroin smuggled into the Operation PAR facility.

    Homicide detectives with the Pinellas sheriff's office believe they know who gave Kononitz the heroin, but they will not name suspects. No charges have been filed.

    "I can't see that anyone meant to die," said Nancy Hamilton, PAR's chief operating officer. "I think people meant to get high. I know everybody wants somebody to pay for things that happen in life, but I don't know how that serves anyone in a treatment environment."

    As Florida heroin deaths surge -- from 276 in 2000 to 328 last year -- so does the use of a state law dealing with fatal drug overdoses. The law allows police to charge people who distribute certain high-abuse drugs such as heroin, cocaine and Ecstasy with first-degree murder if the user dies.

    "The rhetoric that started this was, 'Let's get the drug dealers who are dealing death to our children,' " said Bob Dillinger, Pinellas-Pasco public defender. "What we end up finding out is it's usually a friend giving it to a friend, and it's not the dealer who ends up getting caught."

    Last year, in an unprecedented conviction in the Tampa Bay area, Hillsborough County prosecutors won a first-degree murder verdict against accused heroin dealer Jose "Apache" Pena.

    Jurors decided Pena, then 30, was responsible for the death of Mirranda Fernandes, a 22-year-old waitress. Pena is serving life in prison.

    Fernandes and Pena had been drinking and taking Ecstasy with friends in September 1999. Pena, hoping to have sex with Fernandes, gave her heroin. They both went to sleep. Pena woke up. Fernandes did not.

    "He put her clothes on, drove her from the house and dumped her body in a garbage pile along the road and then went back and folded laundry and made breakfast like it was no big deal," said Curt Allen, a Hillsborough County assistant state attorney.

    During the trial, Pena's attorney argued that Fernandes might have died from another substance found in her system -- Ecstasy that she supplied. But the prosecution overcame that hurdle. The medical examiner testified that the heroin level was enough to cause her death.

    "It was a tough case for the state," Allen said. "It's not like a situation where he held her down and forced her to take it."

    An overdose death in Gulfport never made it to the courtroom, even though police recommended a manslaughter charge. State attorneys declined to prosecute.

    Brothers Samuel and Daniel Cataldo had done drugs together for years, police reports say. Last July, they paid $100 for one gram of cocaine. For several hours back at home, Daniel snorted cocaine, while Samuel injected it.

    According to police reports, Daniel injected his brother after Samuel became shaky and so "out of it" that he could not do it himself.

    Daniel, now 41, left the room and when he returned, Samuel, who was 44, was not breathing.

    "Our thought was, 'But for his actions, this may not have occurred,' " Gulfport Sgt. Craig Warner said about Daniel injecting his brother.

    Prosecutors thought case was murky, and thus lacked "jury appeal." Like most of these cases, the men were willing participants, recreational drug users. In fact, Samuel, the brother who died, had paid for the cocaine. Investigators charged the surviving brother with cocaine possession but did not try to find who dealt the drug to the siblings.

    In deciding whether to prosecute, the state also struggled with language in the law involving the "unlawful distribution" of drugs, because Daniel injected his brother.

    "Does just injecting somebody qualify" for distribution? asked Bartlett, the chief assistant state attorney for Pinellas and Pasco counties.

    Defense attorneys don't think so.

    "Injecting is not necessarily distribution," said Dillinger, the Pinellas-Pasco public defender.

    In a St. Petersburg case, Pinellas prosecutors are wrestling with what to do with three fatal overdoses in the city last year.

    Three men -- Jeffrey Austgen, 41, Raymond Warner III, 39, and Justin White, 21 -- took too much heroin and died. Austgen and Warner, who lived in St. Petersburg, died Aug. 12 during a party. White, who lived in Pinellas Park, died Aug. 18.

    St. Petersburg homicide detectives say they tracked the heroin to a suspected dealer, St. Petersburg resident Kevin Bourgeois, 20. But Bourgeois died of an overdose on Nov. 23.

    Sgt. Mike Puetz said the cases had promise.

    "Had this man lived, there was a high probability the charges would have been brought against him, and there would have been a high probability of conviction," Puetz said.

    Prosecutors are trying to sort out what to do. Should they charge the person who got the heroin from Bourgeois and gave it to the three men? Or, in the case of Austgen and Warner, should they charge someone who was at the party where they died? A witness told police that a woman injected Warner with heroin because he did not want to do it himself.

    Warner's mother, Lynne Caldwell, a receptionist at an insurance agency, says someone should be held responsible.

    "I do wish there was some way there could be justice, and the dealers could be made to pay for what happened," she said.

    Still, she acknowledged her son's role.

    "It was his choice," said Mrs. Caldwell, 64.

    Ultimately, area prosecutors like Curt Allen, in Hillsborough County, say they will consider murder charges for drug overdoses on a case-by-case basis.

    "We believe the intent of the Legislature was to go after the drug dealers," he said, "not the two college buddies in a dorm room."

    -- Times researchers Kitty Bennett and Cathy Wos contributed to this report. Leanora Minai can be reached at minai@sptimes.com or (727) 893-8406.

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