ST. JOSEPH — Mark Abbatoy told a Berrien County judge March 12 that his mother was caring, loving and affectionate and his father was “quiet in the background.” He said his childhood was “happy, for the most part.”
But testifying in Berrien County Trial Court, Abbatoy also told the court he was sexually abused as a child by a step-great-grandfather and an older brother. He said he was spanked by his mother once or twice a day between the age of 7 and 13, and that he ran away from their Bridgman home several times because “I felt like I wasn’t safe ... it was horrible.”
Abbatoy said one day, his father bashed him on the head with a guitar until it broke, then hit him on the head with a rifle, then threw a knife at him. He said his brother beat him up because he said he was going to tell their parents about the sexual abuse.
Abbatoy, 40, was testifying during a hearing to determine whether he will ever get out of prison. He was 17 when he and his friend, Anthony DePalma, also 17 at the time, beat to death DePalma’s mother, Connie DePalma, so they could steal her car and go to California. Both were convicted of first degree murder in the May 7, 1997, homicide, and were handed the then-mandatory sentence of life in prison without parole.
The U.S. Supreme Court, in the 2012 case of Miller vs. Alabama, ruled that automatic sentence unconstitutional for any defendant under age 18, and in 2016 made the ruling retroactive. So prison inmates who were sentenced to life without parole as juveniles can be re-sentenced. The sentencing judge has the discretion to re-sentence to life without parole or sentence to a term of years. Berrien Assistant Prosecutor Cortney O’Malley-Septoski argued for the sentence to stay the same, life without parole. Abbatoy’s lawyers, Leonid Feller, Taryn Lewis and Sunil Shenoi, argued for him to be re-sentenced to a term of years, giving him a chance to someday walk out of prison.
Abbatoy, who has spent 23 years in prison for the murder of Connie DePalma, had his Miller hearing in Berrien County March 11 and 12. At the conclusion of testimony on March 12, Judge Charles LaSata told lawyers to submit their written arguments to him within 45 days, then he will set a date for sentencing.
DePalma’s Miller hearing was in December and Berrien County Judge Sterling Schrock ruled that he planned to re-sentence him to some term of years. DePalma testified during his hearing that although Abbatoy delivered all the blows to his mother’s head, it was his idea and “Mark would not have done this without me.”
One of the factors a judge takes into consideration is admission of guilt and the taking of responsibility for one’s actions. Other factors, besides the facts of the crime, include family background, educational background, behavior in prison, potential for being rehabilitated and mental health issues. According to testimony in Abbatoy’s hearing, he was diagnosed with bi-polar disorder as a child, but his parents declined to have him treated with medication. Over the years in prison, he has been given medications and sometimes refused to take them.
Dr. Michael Karlek, a prison psychiatrist, testified that Abbatoy has been in his care for the past few years, is taking his medication and is doing well. He said he is no longer resistant to treatment.
“His symptoms are relatively under control. I’m pleased,” Karlek said. He added, however, that Abbatoy is required to take his medications, based on past refusal. He said if Abbatoy is released from prison, it will be important for his continued treatment to be monitored.
He’s made significant changes the last couple of years. I’ve seen him as reserved, with a small circle of friends. He stays to himself and avoids conflict. He’s very aware of wanting to avoid trouble,” Karlek told the court.
Under questioning by Lewis, Karlek said he does not believe Abbatoy’s behavior has improved just because of the Miller ruling and the possibility of release from prison.
“I don’t think so. I think he’s behaving better because he is better,” the doctor said.
Abbatoy told the court that the night of May 7, 1997, he and DePalma went to DePalma’s house and stole money and his mother’s car keys, then went to Chicken Coop. There, he said, “Tony devised a plan to knock her out and steal the car. It was his plan.”
“We went back to her house and that’s when everything went crazy. I hit Mrs. DePalma three times downstairs, and at least 10 more times upstairs until she passed out. Tony said ‘finish her off.’ I handed him the shovel. He went upstairs and I went downstairs. She was upstairs, and she was still breathing,” Abbatoy testified. “When I found out she was dead my whole world turned upside down.”
In cross-examination, O’Malley-Septoski asked Abbatoy why he never told the police that DePalma had also hit his mother.
“I didn’t know,” he replied. He said another prison inmate one day told him that “Tony said that he was the one. He said he killed his mother and Mark thinks he did it.”
Abbatoy told the court, “Tony tricked me into thinking I murdered her.”
The only witness called by O’Malley-Septoski on March 11 was Michael Danneffel, who has worked for the Berrien County Sheriff’s Department for 34 years. He was put on loan from the sheriff’s department from January to May of 2017 to investigate Berrien County’s juvenile-lifer prison inmates in preparation for hearings.
Danneffel said Abbatoy grew up with a father, mother and four older brothers, did poorly in school in the ninth and 10th grade, had more than 10 contacts with police between 1993 and 1997, and has had 47 misconduct “tickets” while in prison.
Feller objected to the admission of police reports from the 10 contacts with police, saying, “These are random police contacts that didn’t lead to arrest and I can’t cross-examine a 30-year-old police report.” The judge over-ruled the objection and allowed the reports into evidence.
O’Malley-Septoski played clips from several recorded prison phone calls between Abbatoy and his mother, Elizabeth Abbatoy. In some of them, he makes reference to not wanting to take his medication. In others, he tells his mother he is lazy, does not like to work and plans to live on Social Security disability when he gets out. In another call, he asks his mother to deposit money into another prison inmate’s account so he can avoid a restitution payment.
In cross examination, Feller noted that the calls were from 2016 and 2017 and Danneffel does not have current information regarding Abbatoy’s behavior in prison. Danneffel noted that his investigations concluded in 2017.
Lewis called Abbatoy’s mother, Elizabeth Abbatoy, to the witness stand. She said Mark was “a happy, very active, typical little boy” until age 4 or 5 when he began “acting out.” She said she disciplined her children by “paddling them, then hugging them.” She said at age 14, Mark started being “very agitated” and ran away several times at age 15. She said he was diagnosed with manic/ depressive (bi-polar) disorder after a three-day stay in a mental health facility in 1993.
“I said no, I didn’t want him on drugs. I refused. I was afraid of side effects. I was afraid to put him on meds,” she told the court.
Asked whether knowing what she knows now, she would have, she replied, “Absolutely.”
Lewis asked Elizabeth Abbatoy if she knows why her son kept running away as a teen.
“I did not know until recently that he was sexually abused at age 4,” she responded. She was he was sexually assaulted by her mother’s husband, her step-father.
“He also said his brother sexually abused him. It broke my heart. I never dreamed that was going on in my house,” the mother told the court, crying.
In cross examination, O’Malley-Septoski asked Elizabeth Abbatoy whether she ever filed a police report about the alleged sexual abuse, and she said “No.” Asked which of Abbatoy’s three brothers were alleged to have assaulted him, she said, “I’d rather not say.” She said Abbatoy’s three brothers all have children of their own.
“This doesn’t concern you?” O’Malley-Septoski asked.
“All of this concerns me,” she replied.
“But not enough to do anything about it?” the prosecutor asked.
“No,” Abbatoy responded.