Panel to decide if confession is evidence

By Peter H. Milliken

Decisive question: Was the suspect in a baby killing in police custody and properly warned when he confessed?

YOUNGSTOWN — The prosecutor’s office is asking an appellate court to allow Terrance Tate’s confession into evidence in his death penalty murder trial, but Tate’s lawyers want it to remain excluded.

A three-judge panel of the Seventh District Court of Appeals heard oral arguments Wednesday on the prosecution’s appeal of a decision by the trial judge, Judge M. Durkin of Mahoning County Common Pleas Court, to exclude the confession.

Tate, 23, of Hilton Avenue, awaits trial on an aggravated murder charge in what police say was the fatal beating of Javonte Covington on his first birthday in April 2006.

Last Aug. 1, Judge Durkin ruled that the confession, which the prosecution said was critical to its case, must be excluded from the trial. That’s because Judge Durkin said it resulted from a police interrogation of Tate while he was in custody at the police station — before police warned him of his right to remain silent.

Judge Durkin cited U.S. Supreme Court rulings that police must give the warning before they interrogate someone who is in police custody.

In the appellate case, the prosecution argued that Tate was not in custody when he confessed, but the defense argued Tate was in custody when he gave his incriminating statement.

Rhys B. Cartwright-Jones, assistant county prosecutor, told Judges Gene Donofrio, Joseph J. Vukovich and Cheryl L. Waite that Tate went voluntarily to the police station, wasn’t handcuffed or formally arrested when he arrived at the station and “was free to leave until he made an incriminating statement.”

After asking routine booking questions, police asked Tate if he had seen anyone hit Javonte, to which Tate replied that he had beaten Javonte, according to police testimony at the evidence suppression hearing before Judge Durkin.

After that, police said they read Tate the warning, known as a Miranda warning since the landmark 1966 Miranda v. Arizona U.S. Supreme Court decision, and conducted a videotaped interview, in which Tate repeated his confession.

“You don’t Mirandize somebody you don’t have the intent to arrest, and they didn’t have the intent to arrest,” Cartwright-Jones said of police.

“He’s their No. 1 suspect ... Once you have a primary suspect and put him under those conditions, why wouldn’t they give him the Miranda warnings?” Judge Vukovich replied, referring to the police station environment where Tate was questioned.

“Everything showed that there was custody and there was interrogation,” argued Tate’s lawyer, John B. Juhasz. A reasonable person would believe he was in custody under the circumstances Tate faced, Juhasz added.

A police lieutenant instructed Tate by telephone to come immediately to the police station and told Tate his mother wouldn’t be released from the police station until he got there, Juhasz said in support of his argument that Tate was in custody as police began to question him.

Police confiscated the car in which Tate arrived at the station, yelled profanity at him, called him a liar and threatened to jail him, Juhasz added.

The three-judge panel took the matter under advisement and will rule at a later date.