Judge ponders mistrial in robbery case

May 6, 2015 at 12:00a.m.

YOUNGSTOWN

An attorney representing a man facing 15 counts of aggravated robbery asked a Mahoning County Common Pleas Court judge Tuesday for a mistrial.

The judge said he will try to decide on the motion today.

At issue is a photo lineup where a witness identified 20-year-old Joseph Mascarella as the person who robbed a Burger King in 2013, one of six separate robberies for which Mascarella is charged. His trial began Monday before Judge Lou D’Apolito.

Atty. Jeff Limbian is asking for a mistrial because a witness, Louis Giacometti, testified that he picked Mascarella out of a photo lineup when he met with prosecutors a couple of months before the case began to go over his testimony. There is no record of him making that identification, however.

Limbian said a mistrial should be granted because had he known of the identification, he could have devised a strategy on how to defend his client against it, including asking for an evidence suppression hearing.

Mascarella is charged with six robberies from roughly Sept. 30 to Oct. 18, 2013, at a Burger King, a Dollar General store, and other businesses on the South Side.

A co-defendant already has pleaded guilty to his role in five of the robberies.

Two men, at least one of them armed, would enter the businesses, take the cash register, cash from the safe and rob any patrons of their wallets. The robbers used a gold Chevrolet Impala to make their getaways.

Giacometti was a customer at the Burger King on East Midlothian Boulevard that was robbed. Under cross examination from Limbian, he said he was called in by prosecutors Dawn Cantalamessa and Shawn Burns to review his testimony and he told the pair he could identify the robber. They then showed him a photo lineup with six pictures and he picked Mascarella out of the lineup. But there was never any documentation of that lineup, Limbian said.

Cantalamessa said the identification was part of normal trial preparation by attorneys, and there was no reason to document it. She also said Giacometti did not testify to the lineup on direct examination by prosecutors, but only when asked about it by Limbian.

“Mr. Limbian opened that door to the photo array when he questioned him,” Cantalamessa told the judge.

Giacometti also identified the bike the robber was riding away from the Burger King at the time of the robbery.

Judge D’Apolito said even if Giacometti brought up on his own that he could identify the robber, the fact prosecutors had a ready made photo lineup with the suspect’s picture on it could be leading.

“You don’t think that’s suggestive?” the judge asked.

“It’s a red herring,” Burns answered. Burns said that Giacometti identified Mascarella in court and was never asked on direct examination about the lineup.

But Limbian said that could have planted a seed in Giacometti’s mind that he used to identify his client at trial.

Giacometti also testified that he was traumatized for a long time after the robbery.

“It was months before I got a decent sleep,” Giacometti said.