A Macomb County judge upheld the guilty verdict of a 64-year-old woman in the drowning death of her 4-year-old grandson even though he disagreed with it.
Judge Peter J. Maceroni on Wednesday denied a new trial for Terry Borgia, who in her fourth trial in March was convicted of felony murder and child abuse for the January 2010 drowning death of DeAngelo Tobia in her bathtub.
During an emotional circuit court hearing, a choked-up Maceroni said it was the most difficult sentencing of his judicial career. He said he was bound by law to deny another trial.
“This is my 23rd year on the bench, and this is by far the most difficult sentence I’ve ever had to impose,†he said. “Although the jury saw it one way, case law says even if the court feels another way, I can’t do anything about it from a legal standpoint.â€
Borgia was convicted in her fourth trial after two trials were aborted for legal reasons, and a third jury deadlocked. Maceroni noted that two of the juries were leaning toward not guilty verdicts.
Maceroni also noted the evidence was circumstantial.
DeAngelo’s parents, Bashar and Amelia Alkasmikha; his aunt, Vickie Borgia; and Borgia’s defense attorney, Mark Haddad, believe that Borgia is covering up for her daughter, Tonina Borgia, DeAngelo’s aunt who also was in the apartment at the time of his death.
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During her time to speak during the court hearing, Borgia turned to her family seated in the gallery and said, “I just want to tell my family I love all my children and my grandchildren. I loved DeAngelo.â€
Bashar Alkasmikha responded in court: “Tell us the truth. We love him.â€
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Bashar Alkasmikha outside court criticized Clinton Township police, saying they should have investigated both Terry and Tonina Borgia.
“We feel they got the wrong one,†he said. “I wasn’t there at the time, but there were two people at that home. They should have arrested both of them at the time. They should have questioned both of them. … They should have put them in separate rooms and investigated them further. Instead, they just arrested the mom and let the daughter go. That’s basically what they did. That’s what got us no justice.â€
Amelia Alkasmikha added: “And now my mom’s going to prison for the rest of her life.â€
She said that while visiting Borgia at the Macomb County Jail before the last trial, her mother gestured with her hand and mouthed to her, “I didn’t do it.â€
Tonina Borgia, whose family said is now living in northern Macomb County, did not attend the hearing and has appeared in court for the case only once, last November when she denied killing her nephew.
That was after she went to the police station in 2011 and told a detective she killed DeAngelo, although during testimony she said she made the comments during a “psychotic break†when not taking her medications for bipolar and other psychological issues.
Tonina, now 28 or 29, has been taking medications since age 23 and at the time of her testimony was under court order to take them.
Vickie Borgia said Tonina was not taking medications at the time of the drowning.
Assistant Macomb prosecutor William Cataldo said Wednesday he sympathizes with DeAngelo’s parents but is certain he convicted the right person. He noted Borgia told four police officers and Vickie Borgia that she did it.
“Unfortunately, the family is struggling with it, but she confessed to four different police officers and to her daughter.
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Bashar Alkasmikha said he and his wife appreciate the judge despite denying the new-trial motion.
The request for a new trial was based on a comment made by Cataldo during closing arguments when he said if Borgia was covering up for Tonina, she would have pleaded guilty.
The remark improperly swayed the jury against Borgia, Haddad contended.
But Cataldo argued Judge Maceroni cured the mistake with a jury instruction to ignore it. Cataldo pointed to prior case law that indicates such a comment was not severe enough to reverse a verdict, noting that closing arguments are not evidence during which lawyers often have made wild claims.
Ironically, Borgia in February 2012 pleaded no contest to first-degree murder, but Maceroni took it under advisement and Haddad, with input from her family, filed a motion to withdraw it.
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Borgia has an automatic right to appeal, at which Haddad believes she has a good chance at reversal.
Amelia Alkasmikha said she will “fight†for her mother and plans to visit her in prison. She hopes her mother will reveal what happened the morning DeAngelo was held under water in a bathtub of Borgia’s Clinton Township apartment.
