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Undisclosed evidence slows start of hearing in child assault case

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CANTON — The testimony of a Massena patrolman was brought into question during a pretrial hearing of a Watertown man, formerly of Massena, accused of assaulting a 13-month-old child.

Evidence suppression hearings began Friday at St. Lawrence County Court in the case against Daniel A. Frederick, 29, 417 Washington St.

Frederick was charged with second-degree assault and endangering the welfare of a child after an alleged March 16, 2012 assault on his then-girlfriend Kaitlin Murray’s 13-month-old daughter, Isabella.

The child reportedly had a burn mark on her right cheek and several other red marks on her chest, back, arms and legs. She was treated at Massena Memorial Hospital.

Frederick’s attorney, David A. Haggard, argued the police conducted a warrantless search without consent at the home his client shared with Ms. Murray and any evidence that was collected at that time would be inadmissible.

But before witnesses could take the stand, there was a dispute over evidence that was allegedly not turned over to the defense by St. Lawrence County Assistant District Attorney Joshua A. HaberkornHalm.

Mr. Haggard told St. Lawrence County Judge Jerome J. Richards that Massena police incident reports from the investigation state that two belts, a small amount of marijuana and pills were collected but never put into evidence.

“We won’t be talking about marijuana, belts in trial because he didn’t bring it forward as evidence,” Judge Richards said.

Furthermore photographs were allegedly taken of the crime scene by Massena police investigator Jason Olson which Mr. Haggard said he never received as discovery.

“There are photos with this case,” Mr. HaberkornHalm told the judge. “I don’t know that they were developed. They could be on this CD-ROM.”

Judge Richards asked how it is possible to come to an evidence suppression hearing without having the evidence being looked at turned over to defense.

“If the police were in the residence illegally and photos were taken it is fruit of the poisonous tree,” Judge Richards told Mr. HaberkornHalm. “You don’t get to hide what you have until the hearing. The defendant’s entitled to discovery in the interest of fairness. We are on the verge of a sanction right now.”

Mr. HaberkornHalm returned to the DA’s office to review the CD only to return to tell the judge he was unable to access the file due to its format.

“There are images that we didn’t know how to open,” Mr. HaberkornHalm said. “The officer said he did take pictures of the inside of the house. They exist. I know that they are there.”

“I need a club that says ‘turn everything over’ and when I hit you with it, it has to instill that in you,” Judge Richards said. “I don’t know if it is laziness, overwork, or what, but this man is facing up to seven years in state prison, and he is entitled to hold you to the fire and nothing short of that.”

“I missed that. That’s on me. I’m not trying to get a leg up on Mr. Haggard,” Mr. HaberkornHalm told the judge, apologizing to the court and defense. “The photos I had I turned over. These images will take me a little more time but if you want to move forward, I’m ready to move forward with the hearing.”

Mr. HaberkornHalm was put “on notice” by Judge Richards to turn over any photos and additional evidence that the DA’s office was in possession of.

In the remaining half hour, Massena Patrolman Travis P. MacDonald took the stand and was questioned on his involvement in the investigation.

Patrolman MacDonald told Mr. HaberkornHalm that he had been dispatched to the home of Jessica Durand, Ms. Murray’s sister, at 40 Willow St. shortly after 7 p.m. on March 16 when the call came in.

Massena Rescue had already arrived on the scene and Patrolman MacDonald said he had only spoke with the child’s grandmother, Karen A. Murray, who was with the child.

The patrolman said he followed the ambulance to the hospital, and then returned to the station, where he interviewed Kaitlin Murray until 9 p.m. At that time, he said she signed a voluntary consent form to search the home she shared with Mr. Frederick at 7 Paddock St.

But Mr. Haggard said that testimony was hard to swallow.

Mr. Haggard pointed out that at the bottom of the consent to search form there was a blank line where a time of signature was supposed to be filled out.

“I don’t know why they didn’t fill that out,” Patrolman MacDonald said.

Mr. Haggard added Patrolman MacDonald had previously testified that he had only interviewed the child’s grandmother at the Willow Street. When cross examined by Mr. Haggard the patrolman said he had a conversation with Ms. Durand at that address as well.

Mr. Haggard added tthe incident report compiled by Massena policeindicated Investigator Olson and Sgt. Adam Love had gathered evidence and taken photos at the 7 Paddock St. address from 8:50 p.m. to 9:55 p.m.

Those photographs were the bone of contention at the start of the hearing.

If that were the case, Mr. Haggard said, the evidence would be inadmissible.

The hearings are adjourned to a date yet to be determined.

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