As expected confessed killer Kody Patten was bound over Wednesday to trial for the murder of 16 year old Micaela Costanzo by Elko Justice of the Peace Al Kacin.
After two days of sometimes very emotional testimony Kacon ruled that there was enough evidence against the West Wendover teen to warrant a trial.
Patten’s codefendant in the case Toni Fratto was already bound over for trial two weeks ago in a similar hearing.
Like Fratto’s hearing the key piece of evidence District Attorney Marc Torvinen was Patten’s confession.
Which when played in court even elicited tears from the defendant.
“Can I just say on the record, that I’m sorry,” a crying Patten tells police investigators at the end of the recorded interview. “I hate being me, being in the wrong place at the wrong time, that it had to happen to someone who didn’t deserve it.”
Patten was arrested for the March 3rd murder of Micaela Costanzo three days after she had gone missing and within a few hours after her body was discovered in a shallow grave some 5 miles west of Wendover.
Last image of Mickey Costanzo March 3,2011
Patten cracked and admitted to killing the young girl after an all night interrogation session and a phone call to his father Kip. According to police reports at no time during the intense 8 hours of so of questioning did Patten implicate his live in girlfriend Fratto in the crime and indeed may have even used her as his alibi.
Unlike a trial where a jury or judge rules on the guilt or innocence of the accused, a preliminary hearing’s objection is to determine whether there is enough evidence against the accused and the judge must find there is probable cause that a crime was committed.
The rules of evidence are also much looser in a preliminary hearing than a trial, hearsay for example is typically allowed.
What prosecutors did present Tuesday was an emotional interview between Patten and police that began on the night of March 6 and ended early the next morning.
After Patten’s Miranda rights are read, investigators give him time to speak alone with his father, Kip Patten, to consider whether he wanted to waive his right to remain silent and have an attorney present. Because his rights had been read, the recording was still running during the meeting between Patten and his father.
Kip Patten
During the discussion, an emotional Kip Patten tells his son to tell detectives what they needed to know so they could begin the process of healing and moving on.
“You gotta start fixing’ this as much as you can,” Kip Patten tells him. “I know you want to be with your family and I wanna be with you. … I wanna be with you as much as I can. I don’t want to abandon you.”
The detectives interviewing Kody Patten agree to let his family stay with him at the police station until morning.
“You gotta go all the way. You need to put this to bed as quickly as you can,” Kip Patten pleads with his son. “Get it done. The family needs their answers.”
Kip Patten continues with more words of encouragement like, “We have to fix this. You understand that you did something wrong. I know it’s horrible.” Patten finally has a big outburst of tears as he tells his son, “You realize you’re going away, right?”
Kody Patten tells his father, however, that his concern is what will happen to his parents.
“I’m fine, Dad. I know what’s going to happen to me. I’m willing to accept it.”
Celia Costanzo
Nearly everyone sitting in the small, packed basement courtroom was either choked up or openly crying as the recording was played. Kody Patten, who had fluctuated between being tearful, looking frequently around the courtroom at the audience and writing or doodling on a piece of paper throughout the day, tried to bury his head in the table in front of him as the interview was played. A bailiff handed him several tissues as he wiped away tears.
After agreeing to talk to police, a tearful Patten indicates that Micaela seemed to be interested in getting back together with him but that he wasn’t willing to leave Fratto. During Fratto’s preliminary hearing last month, a close friend of Micaela said she had no interest in doing that at all.
As Micaela and Patten continued to argue, he told police that he stopped the vehicle they were in. The two got out and the argument became physical when Micaela kept pushing Patten. Patten said he eventually reacted by pushing back.
“She just fell back and hit her head on the back bumper of the car. She didn’t get up,” Patten said.
When Micaela finally came to, she struggled with him and Patten said he shoved her again. This time, she fell backward and hit her head on a rock and went into a seizure.
“I knew something bad was happening,” he said.
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Patten claimed he tried to pick up Micaela and put her in the car to get help. But as she continued to struggle, Patten said he thought maybe knocking her out would help, so he hit her in the back of her head with a shovel, causing severe damage.
“She made a really horrible sound that I can’t get out of my head,” he said crying.
From there, Patten said he panicked. “I was so scared.”
He started pulling her clothes off, thinking that would cause her to decompose faster. At one point he said he considered taking her body “to the dump and just dump her out there” but couldn’t convince himself to do it. When asked about the plastic zip ties found on Micaela’s wrist, Patten said it was part of the plan to dump her body.
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Patten told investigators he burned the clothes he took off Micaela and put her body in a shallow grave. After that, he said he “sat there for two hours” and just cried before leaving to pick up Fratto.
During his confession, Patten never said Fratto was with him.
For the first six weeks after his arrest, it was the position of the Elko District Attorney’s office and the Elko Sheriff’s Department that Kody Patten was the sole suspect in the case and would alone stand trial for the murder of Micaela Costanzo.
All that changed early last month when John Ohlson, Patten’s lead attorney released the bombshell confession from Toni Fratto in which she claims it was she and not her lover who killed Costanzo. Within 24 hours of Ohlson’s release of the taped confession to the court, Fratto was arrested and charged with the death penalty eligible open murder of her classmate.
“This was almost the perfect murder case, really cut and dried,” said a source close to the investigation. “There was a mountain of evidence against Patten; forensic and digital recordings, there was his confession and all the supporting facts. Then Toni Fratto walks in and everything blows up.”
But while their separate confessions to the murder were the major pieces of evidence that sent the erstwhile lovers to their respective trials, those confessions contradict each other on several major points.
Toni Fratto
The most obvious of which is that Patten told police that he waited at the crime scene before he left to pick Fratto up at a West Wendover Recreation district meeting she was attending with her mother.
According to Fratto’s tale Patten had a very much alive Micaela Costanzo in his borrowed vehicle with him when he picked her up after the meeting at about 7 pm.
Both Fratto’s attendance at the meeting was confirmed by the meetings official minutes, as well as corroborated by several witnesses. The meeting adjourned at 7 pm. In her confession Fratto says that Patten picked her up and that Mickey Costanzo was also in the vehicle. Fratto made no mention of whether Costanzo was restrained but makes the clear implication that the soon to be murdered young girl was not. Fratto adds that the three drove around town a bit, and that it was Costanzo who suggested they drive to some secluded place because she did not want to be seen with either of them. Patten drove to the gravel pit a few miles west of Wendover and after a brief fight, Costanzo was killed.
Cassie Fratto
According to Fratto it was she who cut the young girl’s throat.
If Fratto is to be believed the question now becomes just what was going on between Kody Patten and Mickey Costanzo in the two hours between her disappearance and the time Fratto was picked up by Patten?
Costanzo certainly did not contact her mother nor was she reported being seen by anyone else. In fact the absence of any credible sighting of Costanzo after 5:15 pm cast doubt on the veracity of Fratto’s confession.
Adding to that doubt is the fact that by the time Patten picked up Fratto it was well after sunset.
Sunset on March 3, 2011 occurred at 6:21 pm with night falling at about 7 pm and there was no moon. If Fratto’s confession is to be believed, the murder and the cleanup had to take place by starlight.
The problem now for the District Attorney Marc Torvinen is that both confessions cannot both be true. either one is lying or both are lying on different parts.
In a related development, prosecutors filed amended charges against both Patten and Fratto on Tuesday. The pair now each face six felonies, including kidnapping, murder, conspiracy to commit murder and/or kidnapping, murder committed during the perpetration of a kidnapping with the use of a deadly weapon, destroying evidence and attempted willful destruction of evidence.
The new documents allege that Costanzo was “bound or otherwise confined” when Patten drove her into the desert.
editors note Kody Patten’s confession as well as selected testimony given in his preliminary hearing is being webcast on the High Desert Advocate’s web page www.coyote-tv.com
