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.

Whatever happened to. . . ? #25

Danzelski A Hester
2009-CF-016233-A-O

Attempted 1st Degree Murder; Aggravated Battery Great Bodily Harm

This was a drug related assault that the defendant allegedly commited just after Judge Michael Murphy gave Hester the option to do 1 year of home confinement instead of 6 months jail for violating probation in 2007-MM-5357-A-O (which was a DV Battery case).

Count 1 was nolle prossed. Defendant pled to Count 2, was adjudicated guilty and sentenced to 24 months DOC with credit for 210 days time served.

William Randle Richardson
2010-CF-001082-A-O

Intercept Wire/Oral Communications; Video Voyeurism; Loitering or Prowling

Defendant allegedly videotaped under the skirt of his victim as she was shopping for wedding rings at the Mall at Millenia with her fiance

Defendant pled no contest to Video Voyeurism and was sentenced to 4 days jail w/credit for 4 days time served, placed on probation for 12 months and ordered to complete 25 hours of community service.

Celeste Roberta Meyer
2009-CF-009583-A-O
Lewd/Lascivious Molestation
Defendant allegedly molested a 7-yr old girl she was babysitting.
Defendant was acquitted by a jury.

Jermie Nakai Nez

2010-CF-007792-A-O
Burglary of Dwelling w/ Assault or Battery; Resist Officer w/o Violence; Tamper w/Witness Hinder Comm w/LEO; Assault; Misues Public Sexual Predator Info; Battery; Threaten Public Servant
Defendant allegedly attacked a registered sex offender (having located him using the web), threatened to kill him, and subsequently threatened to sexually assault the officer's daughter while en route to the jail

Defendant pled no contest to counts 2, 4, & 5, was sentenced to 6 months jail and ordered to have no contact with the victim. The remaining counts were nolle prossed.

Robert Acosta

2008-CF-018275-A-O

Attempted Murder, Sexual Battery; Battery on Person>65yrs old; Burglary

Defendant allegedly assaulted a friend's elderly mother who lived down the street from his friend.

Defendant was found guilty by a jury of all counts and sentenced to LIFE in the Department of Corrections.  Sentinel report here.

Tyrone Tarmae Dukes

2009-CF-017067-A-O

Sexual Battery WDW; Battery; Kidnap w/Intent Commit Felony

Defendant allegedly used a gun to assault victim at 3:15am as she was walking in downtown Orlando - defendant had previously pled in Volusia to Attempted Sexual Battery and sentenced to probation.
Defendant was acquitted by a jury.

Jonathan E Osberry

2010-CF-007112-A-O

Kidnap w/Intent to Commit Felony; Aggravated Assault w/Deadly Weapon; Possess Firearm by Minor

Defendant (age 17) allegedly attempted to rape a 40-yr old woman at a hotel in Winter Park.

Case was nolle prossed.

James Lanzer

2010-CF-008359-A-O

Lewd/Lascivious Exhibition

Defendant allegedly exposed himself & performed a sex act in front of children on a Lynx bus.

Defendant is deceased.

Jasmine Clairzimon

2009-CF-005035-A-O

2nd Degree Murder

Defendant allegedly shot a man in the chest while he was sitting in the backseat of a car.

Defendant was acquitted by a jury.

Christopher James Henson
2009-CF-011441-A-O
Lewd/Lascivous Battery; Impregnating Child <16 yrs old
Defendant (age 28) failed to return to his trial on 4/14/10 after the Court recessed for lunch.

Defendant pled no contest to Count 2 and was sentenced to 5 years DOC with credit for 113 days time served.  Count 1 was nolle prossed.

Lakisha Elaine Pickett

2010-CF-006124-A-O

Aggravated Battery w/Deadly Weapon (DV); Criminal Mischief

Defendant allegedly backed a car into her boyfriend during an argument (both were allegedly intoxicated).

Defendant pled to Count 2, adjudication was withheld. Defendant was sentenced to 3 years probation, ordered to undergo a substance abuse evaluation, and to have no contact with the victim.

Shastine Pavao

2008-CF-019171-B-O

(not DV) RICO; Conspiracy to Commit Racketeering; Fraud; Theft (8cts)

See our previous blogs about this case.

Defendant pled guilty to Count 2 and was given a suspended sentence of 72 months DOC with credit for 112 days time served. Sentence was suspended on condition that she successfully complete 12 years of probation, pay resitution.
John Pavao pled guilty to RICO & is scheduled for sentencing 11/5/10.
Debra Pavao's passport was returned to her 10/4. No new date yet.

Practically "off the hook"

Most people think that misdemeanor offenses aren't as "bad" as felonies, and legally speaking, I suppose they're not. After all, the maximum penalty for a misdemeanor is 1 year in jail and/or a $1,000 fine. But some of the most frightening cases occur in the misdemeanor domestic violence division, which is why CourtWatch is delighted that Orange County has a specialized court for these cases.

Wednesday, however, one defendant was barely given a slap on the wrist by Judge Michael Murphy for terrorizing his wife and her parents. There is also a 2-year old son involved.

Edward Adair Hook III was arrested December 2009 for Aggravated Assault and False Imprisonment for an incident involving his estranged wife and their son, but the case was transferred to misdemeanor court in February, 2010. Two months later, he pled to Improper Exhibition of a Weapon/Firearm and the False Imprisonment charge was dropped. Adjudication was withheld and he was sentenced to 2 days jail with credit for 2 days time served, ordered to undergo mental health evaluation & treatment, to have no hostile contact with his wife, to possess no weapons or ammunition and to complete 12 months of probation.

Hook's estranged wife and mother-in-law successfully obtained injunctions for protection in Lake County (Judge Michael Takac) earlier this month, although the wife's injunction permits "non-violent face to face contact" when exchanging their son for visits (a highly dangerous situation). Court records also note that phone, mail and email contact are permitted for matters relating to the child; also "that the 500 foot provision as it relates to Petitioner's (wife's) residence and place of employment do not apply" (say what?!?! This essentially renders the injunction worth less that the paper it's printed on).  The injunctions also prohibit the possession of firearms. At least the mother-in-law's injunction prohibits him from coming to her home.

Exactly one month after being sentenced in Orange County, on Mother's Day weekend, Mr. Hook violated his probation by (1) possessing a firearm and (2) making harassing phone calls to his in-laws in Lake County. Hook's father contacted the victim (Hook's mother-in-law) to notify her that Hook had come to his home in Seminole County, pointed a gun to his face, demanded he give him all his guns, and advised him that he (the defendant) was going to the victim's residence to "take care of her." Hook allegedly ripped the door to the room where the gun safe was located off its hinges. His father was concerned about his son's mental state and he was Baker Acted in Seminole County.

Mr. Hook's Violation of Probation hearing was Wednesday in Judge Murphy's courtroom.

His estranged wife testified that his physical abuse of her began when she was 7 months pregnant with their son, that he had made threatening calls and left threatening messages on facebook, he had stalked her, and that he had pulled a gun on her and their 2-year old son (the original offense for which he was arrested in December).

His mother-in-law testified that Hook told her he would do anything to get to his son.

His father-in-law testified that he now sleeps in the front room of their home to make sure the house is secure. He also told the Court that Hook told him to remember what happened to their neighbor's daughter & grandchild who were murdered in a domestic violence incident, saying "these things happen." The in-laws' neighbor happens to be a Lake County deputy sheriff whose daughter and grandchild who were killed by her husband.

The defendant's estranged wife testified that when she once asked him why he wants to harm innocent people, he replied "so my son can see me on TV."

Clearly, this defendant is a danger to his estranged wife, their child, and her parents.

Assistant State's Attorney Alison Kerestes vigorously argued for the judge to sentence Mr. Hook to 12 months in jail.

In his closing argument, Defense Counsel Robert Fisher told the judge that his client did not get to see his son on Father's Day (he was in custody).

Judge Michael Murphy, before he sentenced the defendant, stated to the victim "No one will be happy with the sentencing." He indicated that he believed, with his experience as a prosecutor, defense attorney and as a judge, that 80 days was appropriate. Hook was also given credit for 37 days he has already served. If he earns gaintime (also known as time off for good behavior), he could be out in less than a month.

Eighty days?

If any case deserved the maximum penalty (or at least close to the maximum penalty), CourtWatch thinks this is it. It should not matter that he will face charges in another county. What should matter is that he blatantly broke the law and needs to learn that there will be consequences for doing so.

In addition to violating the injunctions from Lake County and violating his Orange County probation, he made threats to kill and then acted upon those threats. Thank God the defendant's father called the victims and cooperated with law enforcement to get him hospitalized. Otherwise there very easily could have been a Mother's Day Massacre in Lake County.

CourtWatch is extremely disappointed that our misdemeanor DV court, something that the Domestic Violence Commission worked hard to create, did not send a stronger message to this perpetrator.

However, we are delighted that the different law enforcement agencies responded efficiently and effectively to protect the victims, to get help for the defendant, and to hold him accountable for his actions. Kudos to Lake, Seminole and Orange County law enforcement, the Orange County State Attorney and Orange County Probation for working well together. Hopefully, the court in Lake County won't let Mr. Hook "off the hook" for violating their injunction (also a misdemeanor charge).

Defendant Takes Advantage of Opportunity to Re-Assault His Victim

Last week, defendant Kyle Duffee admitted to a violating his probation in a VOP hearing before Judge Michael Murphy in case 2008MM13931 (he originally pled to a 12/10/08 offense of violating an injunction). His probation officer subsequently filed an affadavit of violation because the defendant had failed to undergo substance abuse evaluation & treatment, enter & complete Batterers’ Intervention Program, and he tested positive for marijuana.

Judge Murphy sentenced the defendant to 365 days jail, with the promise that he would suspend all but 90 days if he returned the following week (i.e., today) to turn himself in.  That night, Mr. Duffee committed a domestic battery by strangulation assault (new case 2009CF14471) against his victim.

Mr. Duffee returned today, but he was already in a jail jumpsuit and chains. He is being held on no bond in the felony case. Certainly, at this point, Judge Murphy would give him 365 days in jail, wouldn't he? Wouldn't you?

Apparently, he chose to stick to his original sentence of 90 days, saying he had no legal authority to revoke his sentence. 

Judge Murphy is a man of his word. Usually I find that an admirable quality. In a situation like this however, it is anything but.

I think I understand why Mr. Duffee is smirking in his mugshot.

Where the Rubber Meets the Road

I spent most of the morning today in Judge Michael Murphy's specialized misdemeanor DV court for the VOP (violation of probation) pretrial conferences, hearings and pleas. VOP hearings are important to monitor because it's really where the rubber meets the road. Is the Court going to hold the defendant accountable (post-conviction) if he/she fails to comply with the terms of their probation? Or will they get a "slap on the wrist" and suffer no real consequences?

A defendant can be violated by their probation officer for several reasons that may or may not have anything to do with the original offense. They might fail to keep appointments with their probation officer, pay the costs associated with supervision, test positive for drug usage, etc. Or they might not do what they were instructed to do when sentenced: successfully enroll in and complete classes, evaluations, or treatment programs. Or they might be arrested for new offenses. Additionally, defendants in DV cases will sometimes violate "no contact" or "no hostile contact" orders that were part of their sentence.

Most of the defendants in court today had failed to either enroll in BIP (Batterer's Intervention Program) or had been dismissed by the BIP for reasons that weren't given in open court. Judge Murphy does an excellent job of "selling" defendants on the merits of BIP - explaining that many people benefit from having participated in the program. He even offers defendants the opportunity to avoid jail by revoking (cancelling) their probation, putting them back on pretrial release (which requires weekly supervision), and giving them time to enroll and complete the BIP program - but he hangs a 365 day jail sentence over their head if they fail to comply. CourtWatch would like to see this suspended sentence be a part of their original sentence instead of giving them the opportunity to not comply for several months before having to come before the judge again. Additionally, the defendant is required to come to court every 60 days for a status hearing until they've complied. If they're found to have not complied, the cuffs are slapped on and it's off to 33rd Street they go.

UNFORTUNATELY, it doesn't always work out that way. In State v. Mark William Alvarado (2008MM2643), Judge Murphy only slapped the cuffs on the defendant for 90 days for his repeated failure to comply. Alvarado was adjudicated guilty in May, 2008 of two counts of violating an injunction, got 7 days jail with credit for time served, was ordered into BIP and told to have no contact with the victim. He was also to have a psych evaluation & counseling. Nearly 10 months later, in February 2009, he got another chance to enroll in BIP (having previously failed to do so). In April, another violation was recorded and subsequently amended the following month. Alvarado then failed to appear for his June hearing, so a capias was issued. He appeared 2 weeks later and the capias was quashed (recalled). His July 1st hearing was rescheduled to July 29th when he admitted to violating his probation and was sentenced to 365 days with today being his "turn in date." I learned that the judge had told Mr. Alvarado that if he showed up today, he would give him 90 days instead of the 365, which is what happened.

Judge Murphy does a very good job on the "front end" of his cases - setting terms of pretrial release, bond, etc. CourtWatch would like to see him follow through with more "rubber on the road" in the VOP hearings.

Stalking Firefighter Gets His Gun Returned

Last year Derek Lennon, an Orlando firefighter, got a huge break from Judge Jerry Brewer after being convicted by a jury for misdemeanor stalking. See WFTV's report at the time: http://www.wftv.com/news/15247420/detail.html.

Today Judge Michael Murphy returned Lennon's firearm to him, over the objections of the Orange County Sheriff's Department and the State Attorney's Office. The judge granted his motion because adjudication had been withheld by Judge Brewer in February 2008 - in spite of the fact that a jury had adjudicated him guilty!

Lennon, at the time of trial, even had the gall to ask whether or not the GPS device that he planted on his ex-wife's car could be returned to him. Even in the subsequent civil injunction hearings, he attempted to avoid complying with court-ordered psychological evaluations and Batterers' Intervention requirements.

CourtWatch is concerned for his victim's safety now that he has completed his probation and is no longer under supervision of the Court. We can only hope that he has learned a valuable lesson and he refrains from further criminal behavior.