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Missing tape makes no impact; trial set



Published: Sat, October 28, 2006 @ 12:00 a.m.



Copies of the missing tape were not made, police say.

By TIM YOVICH

VINDICATOR TRUMBULL STAFF

WARREN -- A judge has ruled that the trial of Irving R. Russ will begin Monday after denying a defense motion to dismiss charges against him because of lost evidence.

Russ, 32, of Warren, is charged with failure to stop after an accident, tampering with evidence and complicity to tampering with evidence in the 2004 accident that left Annie Lee of Howland a quadriplegic when she was 11 years old.

Annie died earlier this month at age 13 while being treated in Cleveland for a brain infection.

Attys. Jeffrey Goodman and John Fowler, Russ' court-appointed lawyers, filed a motion Oct. 20 asking Judge John M. Stuard of Trumbull County Common Pleas Court to dismiss the charges because Niles police lost a tape-recorded interview of a witness. The witness was the owner of a 1992 Mazda Navajo SUV, the vehicle that struck Annie.

Chris Becker, an assistant county prosecutor, argued Friday that notes of the interview were taken and reflect what Raheema Wright told police.

During the hearing, Chung Lee, Annie's father, sat in the front row of the courtroom with a large framed photograph of his daughter beside him. Chung Lee said he is holding up since the death of his daughter and is trying to move forward with his life.

Judge Stuard ruled there is no evidence or reason to believe that malice or bad faith was involved in the loss of the tape. He said in his judgment entry that the motion to dismiss the charges based on the lost evidence is premature.

Interviewed owner

Warren police Detective Michael Stabile testified at the hearing that he interviewed Wright, of Warren, about her vehicle's being involved in the accident. She had reported the vehicle missing.

During the interview, Stabile asked Wright if Russ had stolen her SUV. According to Stabile's notes, Wright responded: "I'll be honest. I don't think so. I would hope not because if he did, he left me carrying a great weight."

No copies were made of the tape, which was turned over to Niles police Capt. Chuck Wilson, who was involved in investigating the accident, which happened at North Road and U.S. Route 422 in Niles.

During questioning by Goodman, Stabile agreed with Goodman that a taped interview is more detailed and reflects changes in the voice of the person being interviewed.

During questioning by Becker, Wilson testified he was among the investigators who took the tape to the county prosecutor's office Dec. 27, 2005, but it was garbled and couldn't be understood.

Doesn't know

Wilson told the court he doesn't know what happened to the tape after that meeting. He said it was the second time in his 35-year police career that he has misplaced evidence. Wilson said he was "concerned" that it couldn't be found.

During questioning by Goodman, Niles police Detective James Robbins testified that the tape was being treated as evidence when Niles police had it. "Things have been misplaced before," Robbins testified.

Goodman argued that the prosecution has the duty to safeguard evidence, and that duty has been breached.

Becker explained that Wright has since changed her testimony. He argued that when a witness takes the stand to testify, an earlier statement can't be introduced as evidence.

If the prosecution calls Wright and she acknowledges she changed her story to tell the truth, then the tape has no value. The tape would be used by the defense to impeach Wright only if she denies she made the original statement, which she later changed. That can't be done until she testifies, the judge ruled.

yovich@vindy.com




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