Judge Michael Murphy: "If I was the victim, I would not be happy"

"If I was the victim, I would not be happy," said Judge Michael Murphy as he pronounced the sentence at the conclusion of Patrick Macchione's 3+ hour sentencing hearing yesterday.

Macchione pled in December, 2011 to the following charges:

• (1) count of written threats to kill or do bodily harm; 
• (1) count of aggravated stalking after injunction; and
• (17) counts of violation of injunction.

Background

Macchione's victim's nightmare began in the spring of 2009 when she accepted a facebook "friend" request from the defendant after having briefly met him at UCF.  When the tone of his messages became increasingly sexual, she "unfriended" him. He then began his relentless pursuit of her with hundreds of emails and phone calls - directly and indirectly.

She asked him to stop, but the harassment continued.  Law enforcement told her they could not do anything because they didn't know where he was.

The victim filed for an injunction for protection in June, 2009 and was granted one for 10 years the following month.

Shortly after the imposition of the injunction, the defendant posted numerous YouTube videos of an angry, threatening, sometimes sexual, nature and sent the links to her friends (whose contact info he presumably collected while he and the victim were facebook friends), asking them to watch them.  Those friends, in turn, contacted her to advise her of their existence.

The videos that were played in court would leave anyone terrified for their safety. In them he is obviously delusional and mentally ill. He insults and degrades her, insists that he will make her happy, and repeatedly demands that she meet with him and look him in the eye. They progress to tell her it's up to her to meet with him in order to save her own life.

The victim testified about one video which was produced outside the restaurant where she worked. While he was filming that video, he saw her car drive by and he ran after her. No doubt, a terrifying thing to watch.

The last video, which he sent directly to the victim, had no words. Simply gestures of him pointing at the camera (i.e., the victim), pulling the trigger of an imaginary gun twice at the viewer, putting the same "gun" to his head and pulling the trigger again.

Assistant State's Attorney Michelle Latham then read a dozen or more profanity-laced and sexually explicit YouTube messages into the record. These detailed his intent to follow her home, imprison, sexually assault and torture the victim and his desire to make her his. Additional threats of self-mutilation and suicide were made.

Note: these videos and messages have been removed from youtube.

As if that weren't enough, he used Twitter to further terrorize her (@kaypee). Twitter messages are still online (warning: graphic language).


History of Prosecution
In March, 2010 Macchione's case went to trial before Judge Bob LeBlanc but was declared a mistrial after the defendant became extremely agitated and somewhat disruptive during the victim's testimony. The Sheriff's deputies and the public defenders who represented him at the time were concerned that he might harm himself with writing utensils that were on their table. The defendant attempted to plead to the bench during the middle of his trial. He was then committed to DCF to undergo mental health treatment.

After competency had been restored, he pled guilty to all charges before Judge Murphy in December, 2011.

Sentencing Hearing
Dr. Jeffrey Danziger testified that the defendant was psychotic when he was admitted to the hospital. Macchione was diagnosed with schizophrenia and medications were prescribed that restored his competency last year. His mother testified that prior to his having been sent to the hospital, she felt that her son had been lost to her. She detailed numerous pre-diagnosis behaviors that Dr. Jeffrey Danziger described as precursors of schizophrenia.

His mother told the Court that there was a history of mental illness, drug use, retreat from society, eruptions of anger that escalated (dating back to age 7 when he chased an older brother through the house with a kitchen knife), and verbal abuse.  Her son also suffered from a serious auto accident at age 17 wherein spinal injuries paralyzed him for several months. For a short while, he did well as a student at USF, but after transferring to UF he dropped out of school, gave away his belongings and became homeless. She testified that after he received the proper medications at the hospital, she began to see a dramatic improvement in his condition and she had hope for the first time in many years. She told the judge that it has been comforting to know that he's safe in jail and offered a heartfelt apology to the victim and her family for the hell that they've endured.

Macchione's attorney, Michael DiCembre, did an effective job of showing the judge that, in the words of Dr. Danziger "this was mental illness, not evil doing." He also provided witnesses to testify to post-incarceration treatment programs that would be suitable for his client.

The State provided documentation to the judge that DOC is equally capable of providing the treatment that the defendant so desperately needed.


The Sentence
The State's original plea offer in this case was 5 years DOC + 10 years probation (this was prior to adding the most egregious charge while he was hospitalized - Written Threats to Kill, which carries a 15 year sentence). The maximum possible sentence for the charges to which he pled would have exceeded 35 years if all counts ran consecutively to one another.

The defendant, at time of sentencing, had already spent over 2 years in custody.

The judge, having found that the mitigating factor of mental illness allowed a downward departure from the sentencing scoresheet's recommended sentence, ordered:

• 48 months DOC with credit for the 2 years 78 days time served
• followed by (1) year of Community Control Level 2 (the most restrictive type that includes GPS monitoring)
• followed by (2) years of Community Control Level 1
• followed by (13) years of County Probation
• no contact with the victim
• comply with the injunction
• no use of computer with internet except under supervision while in DOC, allowing him to communicate only with his family

In addition to the standard conditions of Community Control and Probation, the defendant was ordered to:

• a residential treatment program as long as medically required or until further order of the court
• comply with medical/drug regimen prescribed
• random drug testing to assure compliance

When the judge asked Ms. Latham if there were any other conditions of release that ought to be included, knowing that she wanted more DOC time, she pointedly asked him to state the reason for the downward departure (of about 2 months). She pressed further and asked, "you find under the totality of the circumstances that you should do so?" 

He replied yes.

Judge Murphy noted that under the circumstances the sentence is appropriate for the duration of the time that the offenses occurred. That it was a first offense - albeit a serious one. He then admitted that "If I was the victim, I would certainly not be happy." 

He stated that the defendant satisfied the legal requirements for this sentence and that without the mental illness factor, Macchione would have likely been sentenced to 15 years or more in DOC for this case. He noted that even though many people in prison have psychological issues, that's not where they all belong, and that the defendant had responded to treatment in a positive manner.

Judge Murphy further noted that once he is released, he will be on the most restrictive level of Community Control. The judge commented that if Macchione is going to violate the terms of his release, it would most likely be during that first year when he's on GPS. The State could then prosecute him for Violation of Community Control and he would have the 15 year DOC sentence hanging over his head. He said:

"There is no possible way that the victim will be in harm's way during that period of time because they [Community Control] will let her know. Once she knows where he'll be residing she can make sure to make all efforts that she's nowhere around.  Or if she decides to be in the same general vicinity she'll be sure to be in constant contact with Community Control.  If there's any action by Macchione she will contact Community Control. 

"There's no way she's really at risk during that time.

No possible way that the victim will be in harm's way? No way she's really at risk during that time?

Two observations:

1. The victim must assume the burden of monitoring her perpetrator's actions, thus having to continue looking over her shoulder - probably for the rest of her life.
2. In spite of the extra precautions of GPS monitoring and the very restrictive conditions placed upon the defendant, nobody can guarantee this woman's safety. She could relocate and perhaps be physically safe from him. But what about the psychological reign of cyber-terror that she endured for several months? He very well could find her on the internet - living in the same zip code, living across the country or around the world.

I just hope that Mr. Macchione complies with every restriction that is placed upon him.

And I pray that Judge Murphy won't have to eat his words.

See report on CF News 13 for more
See report on WFTV-9 here

__________

There's a hero in this story too. He undoubtedly saved this woman's life.

I'll write more about him in my next posting.

CSI: Orlando

Yesterday was one of the most gruesome days in court I've ever experienced. The photos of the victim's injuries that were projected on the screen were worse than what you see on any of the CSI shows - probably because you know that what you're seeing really happened.

Thankfully, the group of schoolchildren that came into court while the 911 tape was being played left before they saw those photos. I'm not sure if a deputy alerted the teacher or if she figured it out on her own (I was getting ready to tell her what the case involved but they were already exiting). I've often told people who want to watch a trial to check in with the staff in the jury assembly room to find out which judges are in trial. It might be a good idea for cases like this to be flagged as inappropriate for school groups.

I watched the third day of State v. John Crimins (2009-CF-018633-A-O) wherein the defendant is charged with Attempted 1st Degree Murder, two counts of Aggravated Battery (Great Bodily Harm), Cruelty to Animals, and Violation of Pretrial Release Conditions on a Domestic Violence case.

Mr. Crimins was arrested for attempting to kill his child's mother's new boyfriend in December, 2009. He also allegedly killed her chihuahua a few days before. Testimony presented at trial showed that he went to her home, assaulted her new boyfriend with a meat cleaver (completely severing 4 fingers on the victim's left hand and leaving his right thumb with only a bit of skin to keep it attached to the hand), cut her, and fled the scene. Crimins' 4-yr old daughter was in the house while the assault occurred in the front yard.

When I arrived in Judge Bob LeBlanc's courtroom yesterday, the State had already rested its case and the female victim was testifying on behalf of the defendant. She claimed that her new boyfriend was really just her drug supplier. She felt responsible for the assault because she had earlier told Crimins that she was going to kick the new boyfriend out of the house and that he could come back later that night.

Most people wonder why someone who had suffered such a brutal assault would testify on behalf of the perpetrator. But she told us why. She wants her 4-yr old daughter to have a relationship with her daddy. She even stated she didn't want to have any part of sending him to prison.

The "happily ever after" and "Prince Charming" stories that little girls are taught in childhood leave a strong impression when they get old enough to start dating. 

Additionally, family courts frown upon parents who attempt to thwart the other parent's efforts to spend time with their children. The message, when you're in the throes of a divorce/separation is clear.  If you don't make every effort to facilitate the other parent's relationship with your mutual child, you could be held in contempt.

The defendant, knowing about her drug usage, had threatened to call DCF in the past.

Most mothers, even those who use drugs, will do anything to keep from losing their child.  Using children as a weapon to continue controlling the other parent is perhaps the most powerful thing an abuser can do to their victim.

There was "bad blood" between the men, even though they had never met face-to-face before that night.  Crimins testified on the stand that when they finally did meet, they were "doing the whole alpha male thing." Tragically for the victim, Crimins came armed with a meat cleaver and a knife (he is employed as a chef), alleging that he was in fear of being assaulted because of the threats that had made to him before. Interestingly enough, Crimins (who had 12 years of martial arts experience and knew how to disarm an opponent) told the detective when he was arrested that he was not afraid of the victim.

Crimins also admitted to having violated the Court's "no contact" order that was imposed as a result of an assault upon his girlfriend earlier in the year. That case is still pending.

Crimins couldn't seem to remember how many felony convictions he had. The State introduced evidence of two cases from New Jersey and two from Seminole County. The Florida cases were of a domestic nature and involved this same victim.

Perhaps most chilling, Crimins explained how the dog died. He claimed that the dog ran into the street and its head was crushed under the wheels of a light truck that drove by. When asked by the State if he had ever seen a dog with a crushed skull before, he replied "several times." He elaborated by saying that "two girls that I dated growing up both had dogs that got hit the exact same way. Chasing a car and the back tire ran over the head." Crimins' ex was then recalled to the stand and testified that the defendant had told her that she needed to come get her dog (whom he had rescued from the house after she allegedly abandoned it without food or water after the earlier assault) because it would get hit by a car.
Hmmm. That's a bit too coincidental to be a coincidence. Does anyone else see a pattern here?

When shown a photo of the dog's body, which was found on the defendant's property, the victim had difficulty in identifying the animal as hers because of all the blood. The detective who investigated the case later testified that the dog appeared to have a stab wound.
 
The jury is deliberating right now.

                
VERDICT
Friday, 3/25/11 at 3:10 PM:
Attempted 1st Degree Murder: hung jury
Aggravated Battery (male victim): guilty (30 years DOC maximum)
Aggravated Battery (female victim): not guilty
Animal Cruelty: not guilty
Violation of Pretrial Release Conditions on DV case: guilty (5 years DOC maximum)

Sentencing scheduled for April 7, 2011 at 10:00 AM in Courtroom 7D

4/7/11 UPDATE: Judge LeBlanc found Crimins to be a Habitual Felony Offender, which permits him to impose a sentence that is greater than the statutory guidelines for the offense. In this case, the State requested LIFE in prison, while the defense requested the 81.68 months that he scored. The Court sentenced Crimins to 30 years in prison, ordered restitution to the victim who suffered the cleaver attack, and ordered no contact with the victim.

Crimins' ex-girlfriend, who was also wounded that night, called the Court from NC and told the judge that she loves the defendant, her daughter wants her daddy, and that Mr. Crimins should not have to pay for the mistakes of other people (alluding to the fact that she invited him to the house that evening, in spite of a "no contact" order being put in place).

Judge LeBlanc emphasized more than once that the defendant had no right to be at the home and stated, "I'd be hard pressed not to find he's a danger to the community with his record."

I would agree with the Judge's assessment of his record.

Kudos to ASA Sarah Freeman and to Judge LeBlanc for holding this man accountable.

As a result of the many hurtful comments from both sides on this forum, I have decided to delete all comments relating to this case and not permit additional posts on this blog. I refuse to permit this site to be used by either side to antagonize the other.

Whatever happened to . . . ? #18

Orange County Cases

Jeovanni Bonanno
2009-CF-014612-A-O
Aggravated Assault w/Intent to Commit Felony; Armed Burglary; Grand Theft
Defendant allegedly threatened to kill a pregnant neighbor & her 6-yr old son.
Case was nolle prossed (dismissed)

Brucell James Brumfield
2010-MM-005618-A-O
Exposure of Sexual Organs; Indecent Exposure
Defendant allegedly exposed himself to children at the Boca Club Apartments & asked one child to come over to him.
Defendant pled no contest to Exposure of Sexual Organs and was adjudicated guilty. Sentenced to 30 days in jail + 11 months probation and is required to complete a psych evaluation and any recommended treatment.

Dennis Joel Rivera
2008-CF-016850-A-O (offense date 11/6/08)
Aggravated Child Abuse; Attempt Cause Bodily Injury During Felony
Pled no contest to count 1 and sentenced to 10 years Department of Corrections + 2 years probation; Batterer's Intervention Class

2008-CF-016883-A-O (offense dates 10/1/08, 10/3/09 & 10/19/08)
False Imprisonment; Battery (3 counts)
Case nolle prossed as part of global plea (see above)

2008-CF-017574-A-O (offense date 11/19/08)
Attempted Felony Murder reduced to Causing Bodily Injury During Felony
Victim was defendant's girlfriend's 18-month old son
Case nolle prossed as part of global plea (see above)

Nedal Ismail Awad
2009-CF-004071-A-O
Solicitation of Minor via Computer; Protection of Minors/Obscenity; Poss of material depicting child in sexual peformance (2cts); Aggravated Child Neglect
Defendant allegedly gave cell phone to 11-yr old daughter of family friend & then sent her sexual text messages.
Defendant was found guilty by jury of count 1, acquitted of count 2, pled no contest to Count 3 and no action was taken on counts 4 & 5.
Judge LeBlanc sentenced defendant to 1 year 1 day in Department of Corrections with credit 33 days time served + 3 years probation.
There's no indication that defendant's probation requires him to register as a sexual offender. Awad has previous arrests in Orange County (2007-2009) for Aggravated Assault, Battery, Follow/Harass/Cyberstalk, Incest (2 counts), and Sexual Battery.

No jail time for man who nearly killed a puppy

Today's trial for Frank Nibbs, age 50, who was charged with felony animal cruelty, was resolved during a plea to the bench before Judge Bob LeBlanc this morning.

Nibbs allegedly entered the property of Sylvia Brantley last October and used a six-foot construction level to beat her four-pound Pekingnese puppy in front of her and her 13-year-old son. The dog, Max, was beaten unconscious, sustained a broken jaw, lost several teeth and an eye.

A plea conference on May 14th was held and the State's offer was for Nibbs to be adjudicated guilty, serve 6 months jail plus 3 years probation, pay restitution, and to complete an anger management class.

Nibbs faced a maximum penalty of 5 years in prison for this offense.

The evidence in the case included first-hand witness accounts, officer depositions, victim testimony and veterinary assessments of the dog's injuries, from which he is still recuperating.

The judge undercut Assistant State Attorney Elizabeth Baird's offer, which included 6 months jail, by ordering only a 3-year probationary sentence, despite emotional testimony from the victim about the impact on her child and her pet. At least Nibbs, who had no criminal record here in the US, was adjudicated guilty of felony cruelty, so he is now a convicted felon. It is unknown how long ago he moved to the US from the Virgin Islands (I couldn't hear whether he came from the US or British Virgin Islands - if from the US, the criminal records search should include any history).
 
After hearing Ms. Brantley's emotional testimony, and in spite of his apparent disgust with Nibbs' crime, Judge LeBlanc still refused to order the defendant to serve any time in jail, citing his lack of criminal history.
 
The family was in such fear following the traumatic incident that they moved from the home they've occupied for 13 years. Ms. Brantly testified that her son continues to have nightmares about the incident. She also believes that if she had not intervened, the dog would have been killed.
 
In addition to probation, Nibbs was ordered to complete an anger management class, an animal care class, pay restitution and a $2500 fine, have no contact with the victim or her family, and own no pets while on probation.
 
It is disappointing, however, that Nibbs will not see any jail time for assaulting a helpless pet in front of a child. But then again, it's disappointing that our court system fails to put people in jail for assaulting their children or their spouse/partner in front of children too.
 
WFTV Coverage

Kudos to Judge LeBlanc

I had occasion to monitor a bond motion in Judge Bob LeBlanc's court today for defendant Darrel Rayford, charged with Burglary, Lewd/Lascivious Battery, Lewd/Lascivious Molestation, and Possession of Cannabis.

Rayford, age 25, allegedly used the cannabis to lure a 15-yr old girl while she was on her way to school. After smoking it, they had consensual sex (though a 15-yr old cannot legally consent). The defense contended that she lied about her age.

Defense Attorney Robert Larr did a good job of eliciting testimony from the defendant's mother about the family's finances (which are minimal) and ties to the community (Rayford recently moved here from Miami, but his mother has lived here 4 years). He requested a $2,500 bond.

Assistant State Attorney Lisa Gong made sure the judge was aware of Rayford's 14 previous convictions for crimes like armed robbery, cocaine possession, burglary, grand theft motor vehicle, trespass, cannabis, resisting officer w/o violence, etc. She indicated that the victim and her mother are very afraid of the defendant (they were not able to be present in court today and were extremely upset that he was seeking a bond).

The defendant actually started to argue with the judge that he did not have 14 convictions - not seeming to understand that each charge counted as one, even though they were consolidated into two or three court cases. The judge was patient but firm as he explained how he could have so many convictions with so few court cases.

Judge LeBlanc expressed great concern for the victim and her mother as he announced his decision. He granted a $26,100 bond and put the defendant on home confinement, ordered that he have no contact with the victim, submit to drug testing, and abide by a 9:00pm to 7:00am curfew. I always thought home confinement meant he was confined to home. I'll look into that further.

Thank you Judge LeBlanc.

Three Co-Defendants, Four Wasted Lives

As reported in the Sentinel on September 14, 2007....

Morgan Willis may have died because he wouldn't get off the phone.

His nephew and a nephew's friend beat, kicked and stabbed him, cut his throat, then urinated on him -- all because he was tying up the line when the nephew was waiting for a call from his girlfriend, according to the Orange County Sheriff's Office.

Jerry Allen Henry, age 22, was sentenced today in the 2007 murder of his uncle, Morgan Willis (age 37), to 40 years in prison as part of a plea that involved two other cases (a felony battery and a violation of probation for a theft charge).

When Assistant State Attorney Les Hess gave the factual basis for the plea, he indicated that Henry and his two co-defendants beat Willis to death after their initial attack on him because they feared going to jail for having assaulted him.

In addition to being stabbed and having his neck slashed, the victims beat Willis' head with an axe handle wrapped in a bicycle chain. His body was buried near his home in a shallow grave and was undiscovered for several months.

Mr. Hess did not seem as on top of things with this case as we usually see him in the courtroom. The sentencing scoresheet needed two corrections (in fact, a driver's license offense that was incorrectly attributed to the defendant was deleted because he was 10 years old at the time). Mr. Hess also had to ask Judge Bob LeBlanc to repeat the sentence on the Violation of Probation case before him.

The soonest Mr. Henry will be able to leave prison (with gain time for good behavior) will be after he has served 34 years. That's a long time for someone who feared going to jail.

Co-defendant James Hollriegel, age 19, (pictured here) is expected to testify against the third co-defendant, Francis Fowler, who is awaiting extradition from Canada.

Three young lives lost to incarceration. And a fourth life to the grave.

Victim Participation Does Make a Difference

After Thursday's bond hearing in this case, I'm left wondering why only the mothers are speaking out about their daughters' victimization by 18-yr old Edwin Cintron (see my earlier blog entry). Four mothers of the victims were in court for this brief hearing. I commend them for taking the time to attend. I believe that it does make a difference to the Court when victims are represented. Many important decisions regarding a defendant's prosecution are made in these pretrial hearings (particularly bond motions and motions to suppress). The stronger the State's case, the more leverage they have with respect to future plea negotiations. The presence of the victim does have an impact in these hearings, even when they don't address the Court.

Mr. Cintron’s bond was posted and his passport was surrendered subsequent to the June 26th hearing. However, his grandmother was unable to house him because her landlord would not permit it. Thursday's bond motion was to ask if Mr. Cintron could live with his uncle in Texas. Judge Bob LeBlanc denied his request. Since there is nowhere for him to go, he is still at the Orange County Correctional Facility.

As a sidenote, Mr. Cintron’s 13-yr old sister has been sent to another state, removed from her friends (the victims), to protect her brother. Removing her is tantamount to punishing her for the actions of her brother. This will likely cause her friends to feel guilty about their willingness to speak up and prosecute Mr. Cintron. She has essentially been exiled, which can only make their recovery more difficult.

Click here to see WFTV's coverage of the hearing. And here's what can happen to sex offenders who have no place to go. I wish I knew what the best solution is for a situation like this. At the moment, it appears to be jail.

Kudos to Judge LeBlanc

Last week I saw a no contest plea in the case of State v. Eberson Florial (2009CF960) in front of Judge Bob LeBlanc. Florial was initially charged with Domestic Battery by Strangulation, but the formal charge was Felony Battery - Great Bodily Harm. Florial was sentenced to 2 days in jail with credit for time served (the Statute requires 5 days), enroll in a Batterers' Intervention Program (BIP), and 18 months probation.

I am delighted to see the State include BIP in the sentence (it's not often we see this in felony court). The kudos to Judge LeBlanc are because he asked the State if there was also to be a no contact order or, at a minimum, a "no hostile" contact provision added to the sentence. The State admitted that it wasn't part of the plea negotiations, but the judge included a "no hostile" provision in the sentence.

If the judges begin to hold the State accountable for negotiated sentences according to what Florida Statute requires, I think the judicial system will begin to hold perpetrators accountable for their crimes more effectively than it sometimes does now.

Attempted Murderer Only Gets 15 Years in Plea Agreement

The State of Florida had 4 felony cases against Raymond Lewis, Jr. for numerous crimes last year. His run ins with the law began 3/11/08 when, after arguing with his girlfriend, he hunted her down and fired at her and 6 other people. Thankfully, no one was wounded. On 5/15, he was granted bond by Judge Bob LeBlanc in the amount of $11,500 for 7 counts of Aggravated Assault w/Deadly Weapon and 1 count of Shooting from Vehicle. He posted bond on 5/21/09 and was put on Home Confinement.

On 7/30/08 he was charged with Grand Theft of equipment relating to his home confinement and could not be located. On 8/2/08 he attempted to murder his girlfriend by shooting her in the chest (she survived). A capias for his arrest was issued and he was subsequently apprehended on 8/16/08 - but not before adding charges of Robbery w/Firearm, Carjacking, Aggravated Fleeing/Attempting to Elude & Resisting Officer w/o Violence relating to a chase where he totaled the vehicle he was driving.

The Attempted Murder charge should have won a sentence of 25 years in prison for possession & discharge of a firearm. The State knocked this charge down to 15 years (amending the charges to merely possessing the firearm) in their plea agreement with Defense Counsel. A 10-yr minimum mandatory term is included in the 15 years. All the other charges to which Lewis pled were also 15 years or less and run concurrently to this Attempted Murder charge. State Attorneys Benjamin Kashi & Marlene Wells represented to the Court that all the victims were agreeable to this resolution.

Raymond Lewis, Jr. is now 24 years old. His sentencing points (a measure of his criminal record & the severity of his crimes) totaled a staggering 412.6 points. From what I've observed in other cases, it seems as though each point is worth a month. So based on points, his sentence should be approximately 34 years.

Mr. Lewis, in my opinion, got off too easy. Are our resources so strained that we can't effectively prosecute someone like this to the fullest extent of the law? Not knowing whether or not the victims were cooperative, it's hard for me to know why the State would agree to this plea. But I shudder to think of the danger he'll pose to our community when he is released in 10-15 years.