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Judge hears emotional confession, apology from man charged with killing fellow Wendover student

ELKO, Nev. — Courtroom observers Tuesday heard a tearful plea by a father for his son to do what's right, followed by a tearful confession from an 18-year-old charged with murder.

And then a tearful apology.

The first day of the preliminary hearing for Kody Cree Patten ended with an emotional 45-minute recording of Patten's interview with police on the night he was arrested in connection with the death of fellow West Wendover High School student, 16-year-old Micaela "Mickey" Costanzo.

"Can I just say on the record, that I'm sorry," a tearful Patten tells police investigators at the end of the recorded interview. "I hate being me, being in the wrong place at the wrong time, that it had to happen to someone who didn't deserve it."

The emotional confession and apology came at the end of a full day of testimony in Elko Justice Court Judge Al Kacin's courtroom. Patten is charged with kidnapping and killing Costanzo on March 3 and then burying her body in a shallow grave in the desert outside of Wendover. Last month, Patten's fiancée and co-defendant, 19-year-old Toni Fratto, was ordered to stand trial for her alleged role in the killing.

Fratto was bound over for trial despite no physical or forensic evidence that linked her to the crime. The decision was based on two confessions that Fratto's attorneys say came from non-credible sources.

But outside the courthouse Tuesday, Patten's defense attorney John Ohlson noted that no physical or forensic evidence had been presented yet against his client, either. Ohlson believes his client's girlfriend, Fratto, is the main culprit behind Micaela's death.

"Kody's not entirely responsible for this. We don't think he's the engine, the motivation, the force behind this killing," he said.

Ohlson wasn't trying to argue that his client is completely free of responsibility, but said the reason he was hired was to fight against a possible death penalty sentence if he's convicted.

The Elko District Attorney's Office has not said whether it will seek the death penalty.

What prosecutors did present Tuesday was an emotional interview between Patten and police that began on the night of March 6 and ended early the next morning.

After Patten's Miranda rights are read, investigators give him time to speak alone with his father, Kip Patten, to consider whether he wanted to waive his right to remain silent and have an attorney present. Because his rights had been read, the recording was still running during the meeting between Patten and his father.

During the discussion, an emotional Kip Patten tells his son to tell detectives what they needed to know so they could begin the process of healing and moving on.

"You gotta start fixin' this as much as you can," an emotional Kip Patten tells him. "I know you want to be with your family and I wanna be with you. … I wanna be with you as much as I can. I don't want to abandon you."

The detectives interviewing Kody Patten agree to let his family stay with him at the police station until morning.

"You gotta go all the way. You need to put this to bed as quickly as you can," Kip Patten pleads with his son. "Get it done. The family needs their answers."

Kip Patten continues with more words of encouragement like, "We have to fix this. You understand that you did something wrong. I know it's horrible." Patten finally has a big outburst of tears as he tells his son, "You realize you're going away, right?"

Kody Patten tells his father, however, that his concern is what will happen to his parents.

"I'm fine, Dad. I know what's going to happen to me. I'm willing to accept it."

Nearly everyone sitting in the small, packed basement courtroom was either choked up or openly crying as the recording was played. Kody Patten, who had fluctuated between being tearful, looking frequently around the courtroom at the audience and writing or doodling on a piece of paper throughout the day, tried to bury his head in the table in front of him as the interview was played. A bailiff handed him several tissues as he wiped away tears.

After agreeing to talk to police, a tearful Patten indicates that Micaela seemed to be interested in getting back together with him but that he wasn't willing to leave Fratto. During Fratto's preliminary hearing last month, a close friend of Micaela said she had no interest in doing that at all.

As Micaela and Patten continued to argue, he told police that he stopped the vehicle they were in. The two got out and the argument became physical when Micaela kept pushing Patten. Patten said he eventually reacted by pushing back.

"She just fell back and hit her head on the back bumper of the car. She didn't get up," Patten said.

When Micaela finally came to, she struggled with him and Patten said he shoved her again. This time, she fell backward and hit her head on a rock and went into a seizure.

"I knew something bad was happening," he said.

Patten claimed he tried to pick up Micaela and put her in the car to get help. But as she continued to struggle, Patten said he thought maybe knocking her out would help, so he hit her in the back of her head with a shovel, causing severe damage.

"She made a really horrible sound that I can't get out of my head," he said crying.

From there, Patten said he panicked. "I was so scared."

He started pulling her clothes off, thinking that would cause her to decompose faster. At one point he said he considered taking her body "to the dump and just dump her out there" but couldn't convince himself to do it. When asked about the plastic zip ties found on Micaela's wrist, Patten said it was part of the plan to dump her body.

Patten told investigators he burned the clothes he took off Micaela and put her body in a shallow grave. After that, he said he "sat there for two hours" and just cried before leaving to pick up Fratto.

During his confession, Patten never said Fratto was with him. But Ohlson said his client's confession also didn't account for all the injuries Micaela suffered.

Fifteen witnesses were called to the witness stand Tuesday. An additional six to seven were expected to be called Wednesday.


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