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Prosecutors want order vacated
Prosecutors complained that the key letter from the suspect to a judge wasn’t given to them.
YOUNGSTOWN — Prosecutors are asking the judge newly assigned to the death-penalty murder case of Terrance Tate to vacate an order from another judge that suppressed Tate’s confession to police.
Martin P. Desmond and Dawn P. Cantalamessa, assistant Mahoning County prosecutors, are asking Judge R. Scott Krichbaum of the county’s common pleas court to vacate an order from Judge John M. Durkin of the same court.
Tate is charged with aggravated murder in the fatal beating of Javonte Covington on his first birthday in April 2006.
Judge Durkin excluded the confession from evidence in Tate’s trial because Judge Durkin said city police failed to warn Tate of his right to remain silent before questioning him about the baby’s injuries while he was in police custody.
The 7th District Court of Appeals upheld Judge Durkin’s ruling, and the prosecution is appealing the suppression to the Ohio Supreme Court, which will likely decide by the end of this year whether to review the matter.
In a motion filed Friday, the prosecutors said Judge Krichbaum should vacate Judge Durkin’s order because prosecutors didn’t receive evidence that would have affected the outcome of the hearing Judge Durkin had on suppression of the confession.
Tate’s lawyers, John B. Juhasz and Lynn Maro, could not be reached to comment Friday.
Specifically, the prosecutors said, they didn’t receive a copy of a letter Tate wrote to Judge Durkin from county jail May 20, 2006.
“The failure of Judge Durkin to provide the state with the letter inhibited the state’s ability to fully cross-examine [the] defendant,” they wrote in their motion.
In that letter, Tate wrote that he was “tricked” into confessing that he beat the baby and that he falsely told police he hit the boy in order to keep the boy’s mother from going to jail.
Tate did not make these claims in Judge Durkin’s evidence suppression hearing, the prosecutors said. Instead, Tate testified that police used aggressive techniques, such as yelling at him and threatening him, which were not mentioned in the letter, Desmond and Cantalamessa said.
“Defendant has given contradictory statements, which would have provided the state with firepower to impeach him,” the prosecutors wrote. “With the ability to impeach defendant on the witness stand, and thus damage his credibility, certainly the outcome would have been different,” they argued.
Last month, Cantalamessa asked Judge Durkin to remove himself from the case because he might be called to testify concerning the May 2006 letter and another letter Tate wrote to him Aug. 4, 2007.
Tate’s defense lawyers received the letters shortly after they were written, but prosecutors didn’t receive them until last month, Desmond and Cantalamessa said in their motion.
Saying he might have to be a witness in future proceedings, Judge Durkin removed himself from the Tate case earlier this month, and the case was randomly reassigned to Judge Krichbaum.
Although the state’s rules of criminal procedure don’t provide a means for Judge Krichbaum to vacate Judge Durkin’s order, Desmond said a state rule of civil procedure allows Judge Krichbaum to act on the motion in the absence of a criminal rule.
Judge Krichbaum has jurisdiction to rule while the Ohio Supreme Court is deciding whether to accept the suppression case for review, Desmond said.
milliken@vindy.com