Kody Patten
When first interviewed the morning after her disappearance Kody Patten told Police he had no knowledge of the whereabouts of Micaela “Mickie” Costanzo.
Two days later Patten confessed to killing the young girl but only accidentally.
The report prepared by Elko County Sheriff’s Detective Kevin McKinney was submitted into evidence at the Elko Justice Court Wednesday paints a grizzly picture of the killing of Mickey Costanzo and could if the case is brought to trial mean the death penalty for Patten.
Costanzo was reported missing by her mother at about 5:15 pm Thursday afternoon when she failed to return from track practice. And so began a nightmare for the young girl’s family and Wendover.
Police went on alert and increased patrols. One enterprising officer using facebook formed an ad hoc search party that eventually numbered around 80 volunteers Thursday night.
West Wendover Police Chief Ron Supp did not however issue an Amber Alert and his department did not issue a press release regarding the missing girl until well into the day after she was reported missing.
“I don’t think it would have made any difference,” said West Wendover High School Principal Terry Carsrud. “Thursday night the school was full of volunteers looking for her anyway.
An AMBER Alert or a Child Abduction Emergency (SAME code: CAE) is a child abduction alert bulletin issued upon the suspected abduction of a child, since 1996. AMBER is officially a acronym for “America’s Missing: Broadcasting Emergency Response” but was originally named for Amber Hagerman, a 9-year-old child who was abducted and murdered in Arlington, Texas in 1996.
AMBER Alerts are distributed via commercial radio stations, satellite radio, television stations, and cable TV by the Emergency Alert System and NOAA Weather Radio (where they are termed “Child Abduction Emergency” or “Amber Alerts”). The alerts are also issued via e-mail, electronic traffic-condition signs, the LED billboards along with the LED/LCD signs of billboard companies such as Clear Channel Outdoor, CBS Outdoor and Lamar, or through wireless device SMS text messages.
Instead of a 100 pairs of eyes there could have been over a 1,000 had a mass alert been issued but according to Patten’s statements to police a million searchers may not have saved the girl in time.
According to the report Patten in a borrowed SUV somehow got Costanzo into the vehicle shortly after she emerged from the girls locker room after practice. Instead of driving her home, Patten drove out to the gravel pits about five miles west of town. There he told Police Detective Donald Burnham they fought. At just under 6 feet and weighing 190 lbs, Patten towered over the barely 5 foot tall Costanzo and outweighed by over 80 pounds.
According to McKinney’s report patten confessed to shoving the girl who then fell hitting her head on the cars bumper. Patten then told Burnham he pushed Costanzo again, and again she fell down and hit her head on a rock. Patten then said he panicked when Costanzo went into convulsion and struck her with a shovel that happened to be in his hand. The shovel sliced through the young woman’s neck. Patten then buried the young woman, drove home, went to bed and went to school the next day.
While Patten was at class a large group formed at the West wendover city Hall and a more formal search was organized. Well over 200 people joined in and began to comb every inch of the town and then the surrounding brush land.
While the search was being organized Patten was first interviewed by Burnham. He told the detective that he last saw the girl around 5:00 pm Thursday but had no idea where she might be.
Patten did admit that he had also borrowed a Chevy trail blazer from a friend to drive home and the interview concluded with no arrest.
The search was called off Friday with nightfall and resumed Saturday morning. A volunteer discovered some disturbed dirt and called police. Mickey had been found. Also found were tire tracks Burnham later matched to the borrowed SUV Patten admitted to driving the day of her disappearance.
Sunday Mickie’s body was exhumed and transported to the Washoe County crime lab in Reno. Also Sunday Police reviewed the schools video record which showed Patten wandering near the girls’ locker room. Police also obtained the girl’s cell phone and text messages which showed the last person to contact her was Patten.
Late Sunday night Patten was called into the West Wendover Police station for his second interview.
At first he admitted to driving the young girl out to the gravel pits where her body was found. But insisted that he had left her there alive after they fought. Once Patten admitted he was at the scene of the crime he was read his rights and placed under arrest.
After calling his father Patten cracked.
Ignoring his claim of accident and panic, Patten’s statement to police could put him on death row. Capitol punishment in Nevada is reserved for premeditated murder with extenuating circumstances which include:
Murder perpetrated by means of poison, lying in wait or torture, or by any other kind of willful, deliberate and premeditated killing.
Murder committed in the perpetration or attempted perpetration of sexual assault, kidnapping, arson, robbery, burglary, invasion of the home, sexual abuse of a child, sexual molestation of a child under the age of 14 years or child abuse.
Murder committed to avoid or prevent the lawful arrest of any person by a peace officer or to effect the escape of any person from legal custody.
Murder committed on the property of a public or private school, at an activity sponsored by a public or private school or on a school bus while the bus was engaged in its official duties by a person who intended to create a great risk of death or substantial bodily harm to more than one person by means of a weapon, device or course of action that would normally be hazardous to the lives of more than one person.
Patten own statements qualifies him for at least three of those special circumstances and if the autopsy of his victims body reveals a sexual assault it will be four.
CASE NO. 11-CR-00300
IN THE JUSTICE’S COURT OF THE ELKO TOWNSHIP
IN AND FOR THE COUNTY OF ELKO, AND THE STATE OF NEVADA
STATE OF NEVADA, 1. FELONY CRIMINAL Plaintiff, COMPLAINT; AND
A. DECLARATION IN SUPPORT THEREOF;
2. FORMAL REQUEST FOR
NOTICE OF THE DATE AND
TIME OF THE DEFENDANT’S
FIRST APPEARANCE;
3. APPLICATION FOR AN ORDER SETTING A FORMAL
vs. SETTING HEARING FOR
THE PURPOSE OF SETTING
THE PRELIMINARY HEARING IN THIS MATTER; AND
4. DEMAND FOR FORMAL NOTIFICATION OF ANY EFFORT BY THE DEFENDANT
TO HAVE THE COURT FIX
BAIL IN THIS MATTER, OR
TO MODIFY THE AMOUNT
AND/OR NATURE OF BAIL
PREVIOUSLY FIXED BY THE
KODY CREE PATTEN, COURT IF ANY (SEE NRS
178.484.4)
Defendant.
________________________________/
Criminal Complaint
COMES NOW THE STATE OF NEVADA, the Plaintiff in the above-entitled cause, by and through its Counsel of Record, the Elko County District Attorney’s Office, and based upon the Declaration In Support Of Criminal Complaint set forth hereafter, complains and alleges that the Defendant above-named, on or about the 3rd day of March, 2011, at or near the location of:
an area approximately five (5) miles west of the City of West Wendover; within the County of Elko, and the State of Nevada, committed the following described criminal offense(s):
COUNT 1
OPEN MURDER, (INCLUDING FIRST DEGREE MURDER AND ALL LESSER INCLUDED OFFENSES) WITH THE USE OF A DEADLY WEAPON, A FELONY AS DEFINED BY NRS 193.165; NRS 200.010, NRS 200.020, AND NRS 200.030
The Defendant above did willfully and unlawfully, with malice aforethought, and with premeditation and deliberation kill and murder another human being, one Micaela Costanzo. Further that the Defendant employed a deadly weapon within the meaning of NRS 193.165 in the commission of said murder.
The Defendant committed said murder in the following manner:
The Defendant on or about the date alleged above, and at the place alleged above struck the said Micaela Costanzo on or about her had and/or neck one or more times with a shovel, or some similar instrument and/or object thereby killing the said Micaela Costanzo.
All of which is contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Nevada. Said Complainant, therefore, prays that the Defendant(s) be dealt with according to law. Further, the undersigned hereby declares under penalty of perjury the
foregoing Complaint is true to the best of his/her knowledge, information and belief.
Dated this _____ day of March, 2011.
MARK TORVINEN
Deputy District Attorney
State Bar No.: 551
Declaration In Support Of Criminal Complaint
COMES NOW KEVIN McKINNEY, who, under the penalties of perjury, declares the following in support of the Criminal Complaint set forth above:
1. That your Declarant, who will present the remainder of this Declaration in the first person, is currently serving as a Detective with the Elko County Sheriff’s Department;
2. That in that capacity on the Saturday the 5th day of March, 2011, I became involved in an investigation concerning the disappearance of one Micaela Costanzo (hereinafter simply “Micaela”), a sixteen year old High School Student in West Wendover, Nevada, and more pointedly in the recovery of her remains at the location described in the Criminal Complaint set forth above.
That as a result of my participation in the above-described investigation I have become aware of the following information, and would, in support of the Criminal Complaint set forth above inform the Court as follows:
3. On the Thursday the 3rd day of March, 2011, Micaela was reported missing by a family member as she had failed to come home from school.
4. The West Wendover Police Department took the initial Report, and thereafter commenced a formal search for her.
5. On the 4th of March, 2011, a voluntary non-custodial interview of the Defendant was conducted by Detective Donald Burnum of the West Wendover Police during the course of which the Defendant:
a. Asserted that he had had contact with Micaela at the Wendover High School at approximately 5:00 p.m. on the 3rd day of March, 2011, but had no information about Micaela’s current whereabouts; and
b. During the interview he disclosed that he had, on the 3rd day of March, 2011, borrowed a motor vehicle, a Trailblazer, from a friend of his, one Wendy Murphy.
Detective Burnum had sought to interview the Defendant because he had with the consent of Micaela’s Mother obtained information that the last person to either call Micaela or send a text message to her cell phone was the Defendant on the afternoon of the 3rd of March, 2011.
6. On the morning of Saturday the 5th day of March, 2011, a person, one Mick Moore, who was voluntarily participating in the search for Micaela located a disturbed area of dirt in a rural, unoccupied location situated approximately five (5) miles west of the City of West Wendover near some railroad tracks.
7. The West Wendover City Police were called to the area, and Chief Ronald Supp moved a small portion of the disturbed dirt and observed to be what appeared to be human skin and/or flesh approximately two inches under the surface.
8. Det. Burnum had accompanied Chief Supp to the site located by Mr. Moore and while there noticed some tire tracks in the area and took photographs of them.
9. Chief Supp then notified the Elko County Sheriff’s Department, and guards
were placed on the scene until evidence technicians from the Forensic Science Division of the Washoe County Sherriff’s Department (i.e. the Washoe County Crime Lab) could be summoned to the scene to further investigate the matter.
10. On the afternoon of the 5th of March, 2011, Det. Burnum had an opportunity to look at the tires on Wendy Murphy’s Trailblazer, and compare them to the photographs he had taken of the tire prints at place where at that point it was believed human remains had been buried and he concluded that they were very similar.
11. On Sunday the 6th day of March, 2011, the disturbed area initially identified by the Mr. Moore on the 5th day of March, 2011, and initially investigated by Chief Supp was excavated and the remains of Micaela Costanzo were located therein.
12. An initial examination of the Micaela’s body revealed that:
a. She had multiple injuries including a laceration across the left side of her neck; and
b. It was obvious, given the circumstances of the discovery of her remains that Michaela was the victim of a homicide.
13. I believe that during the course of the investigation the owner of the aforementioned Trailblazer was interviewed who advised that on the 3rd day of March, 2011, Kody Patten, the Defendant above-named, had borrowed this vehicle for several hours.
14. Additionally during the course of the investigation video surveillance of the West Wendover High School was reviewed and it was found that on March 3rd, 2011, Kody Patten had talked to Micaela Costanzo immediately after school let out. The video also disclosed that in the hours after school, Kody Patten appeared to be wandering the halls of the school and had repeatedly passed the girls locker rooms while Micaela Costanzo was at track practice. The video footage shows Kody Patten leaving the area of the girls’ locker rooms and walking out the exit to the school approximately three minutes prior to Micaela Costanzo leaving the girls locker room and exiting the school.
a. At the time the administration of the Wendover High School were unable (i.e. did not know how) to download the video on their system which I believe had been previously donated to the School by the Peppermill Casino, and I have seized with the School’s permission the video unit upon which this footage is contained.
15. Thereafter follow up interviews were conducted of Kody Patten.
16. A second non-custodial interview was conducted of Kody Patten on the 6th day of March, 2011, by your Declarant during which Patten acknowledged picking Micaela up after track practice on March, 3rd, 2011, and to taking her out to the area where her body had ultimately been discovered, but stated that he had gotten into an argument with her and had left her out there by herself.
16. At the point in the interview at which the Defendant acknowledged taking Michaela out to the area where her remains were ultimately discovered Miranda warnings were administered; Mr. Patten, after being allowed to speak to his father at his request, waived his Miranda rights, and the interview of the Defendant then continued during which Kody Patten disclosed the following to me:
a. Kody Patten acknowledged getting into a argument with Micaela Costanzo out in the desert approximately 5 miles west of West Wendover in Elko County, Nevada, during which he pushed her down, where she struck her head on the bumper of the Chevrolet Trailblazer;
b. That after further argument between Kody Patten and Micaela the Defendant described that he pushed Micaela down again, causing her to strike her head upon a rock.
c. The Defendant then asserted that Micaela suffered some sort of seizure; he became panicked, and swung a shovel which he was apparently already in possession of at her head, during which the sharp edge of the shovel struck her neck, causing the laceration on her neck.
d. The Defendant further acknowledged that he had buried Micaela in the shallow grave to conceal the body.
17. At that point Kody Patten was arrested on Open Murder charges and was transported to the Elko County Sheriff’s Office Jail to be held pending arraignment or the posting of bond.
18. I believe, and declare under the penalties of perjury, based upon information acquired by me during the course of my participation in the investigation in this matter and information provided to me by other law enforcement officers who participated in the investigation that the assertions of fact contained in this Declaration are true.
19. Finally based upon the assertions of fact contained in this Declaration I would allege and aver that:
a. There is probable cause that the Defendant Kody Cree Patten committed the criminal offense pleaded against him in the Criminal Complaint set forth above; and
b. Would ask that the Defendant Kody Cree Patten be required to answer the allegations of the Criminal Complaint set forth above in support of which I have executed this Declaration.
FURTHER YOUR DECLARANT SAYETH NAUGHT.
Dated this ____ day of March, 2011.
KEVIN McKINNEY Detective – Elko County
Sheriff’s Department
Formal Request For Notification Of The
Defendant’s First Appearance In This Matter
COMES NOW THE STATE OF NEVADA, the Plaintiff in the above-entitled cause, by and through its Counsel of Record, the Elko County District Attorney’s Office and would:
1. Hereby notify the Court that it is the State’s desire to attend the Defendant’s First Appearance in the above-entitled cause; and
2. Hereby requests that the State be notified of the date, time, and place of the Defendant’s First Appearance in the above-entitled cause.
Dated this _____ day of March, 2011.
MARK TORVINEN
Deputy District Attorney
State Bar No.: 551
Ex-Parte Application For An Order For A Formal
Setting Hearing To Set The Preliminary Hearing
COMES NOW THE STATE OF NEVADA, the Plaintiff in the above-entitled cause, by and through its Counsel of Record, the Elko County District Attorney’s Office, and by this pleading hereby applies ex-parte to the above-entitled Court for an Order of the Court setting a formal hearing, at which the State can be present, to set the preliminary hearing in this matter.
As the Court can discern from a review of the Complaint given the nature of the charge the State believes that the conduct of the preliminary hearing in this matter will require a number of witnesses; the State – at this point is asking that two days be set aside for the conduct of said preliminary hearing; and the State would ask that it be given an opportunity to participate in the process of setting the preliminary hearing in this matter.
Dated this _____ day of March, 2011.
MARK TORVINEN
Elko County District Attorney
State Bar No.: 551
Demand For Formal Notification Of Any Desire By The
Defendant To Fix Bail In This Matter
COMES NOW THE STATE OF NEVADA, the Plaintiff in the above-entitled cause, by and through its Counsel Of Record the Elko County District Attorney’s Office, and hereby declares to the above-entitled Court that:
The State objects to any consideration by the Court of an oral Motion or Application by the Defendant(s) for an Order fixing bail in this matter (see NRS 178.484.4 more particularly addressed below), or for an order modifying any bail heretofore fixed in this matter made at the time of the Preliminary Hearing in this matter, or other wise unless and until the Defendant has complied with the provisions of NRS 178.478, and NRS 178.552, more particularly addressed hereafter, made applicable to the above-entitled cause by the provisions of NRS 189.005, by:
1. Filing a written Motion to fix or modify previously fixed bail; and
2. Serving the State with a Notice Of Motion setting a hearing thereon.
Dated this _____ day of March, 2011.
MARK TORVINEN
Elko County District Attorney
State Bar No.: 551
Points, Authorities, And Written Argument
In Support Of The State’s Demand
COMES NOW THE STATE OF NEVADA by and through its Counsel of Record, the Elko County District Attorney’s Office, and in support of the State’s Declaration set forth above, would offer the following:
First the provisions of NRS 178.484.4 provide that:
4. A person arrested for murder of the first degree may be admitted to bail unless the proof is evident or the presumption great by any competent court or magistrate authorized by law to do so in the exercise of discretion, giving due weight to the evidence and to the nature and circumstances of the offense.
NRS 178.478 provides that:
1. A written motion, other than one which may be heard ex parte, and notice of the hearing thereof must be served not later than 5 days before the time specified for the hearing (emphasis added by the State) unless a different period is fixed by rule or order of the court. For cause shown such an order may be made on ex parte application.
NRS 178.486 provides that:
When the admission to bail is a matter of discretion, the court, or officer by whom it may be ordered, shall require such notice of the application therefor as the court or officer may deem reasonable to be given to the district attorney of the county where the examination is had (emphasis added by the State).
NRS 178.478 provides that:
1. A written motion, other than one which may be heard ex parte, and notice of the hearing thereof must be served not later than 5 days before the time specified for the hearing (emphasis added by the State) unless a different period is fixed by rule or order of the court. For cause shown such an order may be made on ex parte application.
2. When a motion is supported by affidavit, the affidavit must be served with the motion; and opposing affidavits may be served not less than 1 day before the hearing unless the court permits them to be served at a later time.
3. A certificate of service must accompany each motion filed.
NRS 178.552 provides that:
An application to the court for an order shall be by motion (emphasis added by the State). A motion other than one made during a trial or hearing shall be in writing unless the court permits it to be made orally. It shall state the grounds upon which it is made and shall set forth the relief or order sought. It may be supported by affidavit.
By way of analogy the State would invite the Court’s and Counsel’s attention to the provisions of NRS 178.499 concerning the procedural requirements which must be met before bail may be increased which provides that:
1. At any time after a district or Justice Court has ordered bail to be set at a specific amount, and before acquittal or conviction, the court may upon its own motion or upon motion of the district attorney and after notice to the defendant’s attorney of record or, if none, to the defendant, increase the amount of bail for good cause shown.
2. If the defendant has been released on bail before the time when the motion to increase bail is granted, the defendant shall either return to custody or give the additional amount of bail.
Obviously it would be error to increase a Defendant’s bail without notice and an opportunity to be heard, and there is no reason, or legal basis to hold the Defendant to a lesser standard of notice if he/she seeks to have Court fix
bail when the same is discretionary (see supra).
Conclusion
Based upon the above, the State again declares to the above-entitled Court that it objects to any consideration by the Court or an oral motion and/or application by the Defendant(s) in the above-entitled cause to fix bail in this matter until the Defendant has complied with the procedural requirements of NRS 178.478, and NRS 178.552 set forth above.
Dated this _____ day of ______________, 201___.
MARK TORVINEN
Elko County District Attorney
State Bar No.: 551
CERTIFICATE OF SERVICE
I , hereby certify that I am an
(Printed Name)
employee of the Elko County District Attorney’s Office, and that on the ______ day of March, 2011, a true and correct copy (or true and correct copies in the case of multiple addressees) of the foregoing;
1. FELONY CRIMINAL COMPLAINT; AND
A. DECLARATION IN SUPPORT THEREOF;
2. FORMAL REQUEST FOR NOTICE OF THE DATE AND TIME OF THE DEFENDANT’S FIRST APPEARANCE;
3. APPLICATION FOR AN ORDER SETTING A FORMAL SETTING HEARING FOR THE PURPOSE OF SETTING THE PRELIMINARY HEARING IN THIS MATTER; AND
4. DEMAND FOR FORMAL NOTIFICATION OF ANY EFFORT BY THE DEFENDANT TO HAVE THE COURT FIX BAIL IN THIS MATTER, OR
TO MODIFY THE AMOUNT AND/OR NATURE OF BAIL PREVIOUSLY FIXED BY THE COURT IF ANY (SEE NRS 178.484.4);
was/were served upon the addressee(s) identified hereafter in the following manner:
That a true and correct copy thereof was delivered to the Elko County Public Defender’s Office at the following address:
569 Court Street
Elko, Nevada 89801
Additionally a second true and correct copy thereof was mailed by first class mail, postage prepaid to the following addressee at the following address:
Mr. Kody Cree Patton
C/O The Elko County Jail
775 West Silver Street
Elko, Nevada 89801
Signature Of Person
Executing Certificate
DA #F-11-83250 / REPORT #: / OFFICER: KEVIN MCKINNEY / AGENCY: ELKO COUNTY SHERIFF’S OFFICE
See NRS 53.045 which provides in pertinent part as follows:
Any matter whose existence or truth may be established by an affidavit or other sworn declaration may be established with the same effect (emphasis added by the State) by an unsworn declaration of its existence or truth signed by the declarant under penalty of perjury, and dated, in substantially the following form:
1. If executed in this state: “I declare under penalty of perjury that the foregoing is true and correct.”
Executed on _______________ __________________
(date) (signature)
NRS 189.005 provides that:
Except as otherwise expressly provided in this chapter, criminal proceedings in justice courts are governed by the provisions of this title (referring to Title 14 entitled “Procedure In Criminal Cases” – added by the State).