Kody Planned Mickie’s Murder Weeks In Advance, Toni Tells DA
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//Kody Patten’s date with the executioner could well rest on the testimony of his now ex-girlfriend Toni Fratto.
With her lover ready to betray her, confessed killer Toni Fratto agreed to a plea bargain with District Attorney Marc Torvinen last month. The plea bargain could see her out of prison in as little as 15 years and was offered in exchange for her testimony against Patten who is still facing a possible death sentence for the brutal killing of 16 year old Mickie Costanzo.
The announcement of the plea bargain came less than 24 hours after the High Desert Advocate published a story that Patten had at first accepted and then at the last minute changed his mind about a similar plea bargain that would have put him in the witness stand against Fratto.
According to informed sources the deal struck with Fratto’s attorneys John Springgate of Reno and David Lockie of Elko has the girl pleading guilty to second degree murder with a weapon enhancement in exchange for her testimony against Patten. According to state guidelines with good behavior and time served Toni Fratto could be paroled in less than 15 years.
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Depending whether she is believed by the jury, Patten could wind up on death row for the March 3, 2011 murder of Costanzo.
In a three and a half hour interrogation by Elko District Attorney Marc Torvinen, Fratto gave the prosecution evidence that could put Patten on death row. According to her attorneys Fratto told the District Attorney that Patten spent more than a week planning Costanzo’s murder to the last detail.
Fratto also told the DA that after he had abducted Costanzo from West Wendover high school, Patten sent her a text message and a photo of his young victim while Fratto attended a Wendover Recreation district meeting where her mother Cassie is a board member.
“If the District Attorney uses her as a witness and she is believed by the jury her testimony pretty much proves premeditation,” said Lockie in an interview with the High Desert Advocate Wednesday.
If Patten does go to trial his jury will have a choice of four possible verdicts the first being not guilty a highly unlikely outcome since Patten has already confessed to the killing. The other three verdicts: Murder; Felony Murder, or Premeditated Murder are more nuanced and for Patten and his attorneys could mean the difference between life with parole, life without parole or the death penalty.
Of the three possible verdicts only Felony Murder and Premeditated Murder carry a possible death penalty.
Under the Nevada felony murder rule, it’s still considered murder whether the killing was intentional or accidental. It also doesn’t make a difference whether the killing was in furtherance of the felony. The death merely needs to be logically connected to another felony for it to be murder.
In Patten’s case the other felony is the actual kidnapping of Mickie Costanzo. However according to current case law while the kidnapping of Costanzo may enhance the crime to felony murder the crime of kidnapping cannot be used as an aggravating factor that would put Patten in danger of receiving the death penalty if he is found guilty of felony murder.
“It’s counter intuitive,” Lockie explained. “But that is the current system.”
Fratto’s testimony could be crucial for a finding of premeditated murder. Even without it the District Attorney may have collected other evidence that strongly suggests that Costanzo’s killing was a cold calculated crime and not an almost accident as Patten’s defense team has sometimes portrayed it in the press and in motions to the court.
The truck that drove Patten, Fratto and Costanzo to the murder scene was borrowed from a friend of Patten’s just for that day, Patten packed it with a military shovel or entrenching tool and plastic restraints known as zip lines were found in the truck and in the shallow grave where Mickie Costanzo was buried.
There is also testimony by Costanzo’s friends that Patten was stalking the girl for well over a week before her murder and reports of a chilling note Patten wrote to a teacher that said “You have no idea what kind of monstrous things I’m capable of”.
Fratto’s testimony if she is called could be the final piece of the puzzle that would bring a premeditated murder finding by a jury. And with such a verdict the kidnapping charge against Patten could be used as an aggravating offense to justify a death penalty.
The final piece in that puzzle would be the text message and photo Fratto told the DA patten sent her after he kidnapped Costanzo.
According to Lockie while there is a record of the text messages being sent from patten to Fratto during that time the content was not preserved by the phone company or in Fratto’s phone.
According to Lockie in the six weeks between the murder and the day Fratto confessed to participating in the killing to Patten’s attorneys the content of the texts were dumped by her phone’s SIM card and her wireless provided T-Mobile does not keep a record of text content.
But while Fratto’s phone may have dumped them, the texts could still exist on Patten’s. Instead of six weeks, Patten was arrested just three days after the murder and his cel phone was confiscated. If the texts are there, they along with Fratto’s testimony could be enough to make patten the youngest death row inmate in Nevada.
just sick!