Published: November 21, 2009 12:08 am      

CRIME: Testimony ends in rape case

The judge in the rape trial of Daryl Burton had to admonish a prosecutor to tone it down a notch Friday when she pursued apparent contradictions in defense witnesses’ statements.

It was day four of the trial and the prosecution rested after nearly two hours of questioning involving the second plaintiff, a North Tonawanda woman, and expert witness Dr. James J. Woytash.

The tension began after David E. Blackley, who is representing Burton, 40, called two witnesses. The first was Burton’s father, Fred Burton.

Victim number one, a Niagara Falls teenager who is a relative of Burton, claimed on Thursday that Fred Burton had promised her money and a cell phone in return for her signing a denial of the charges against Burton — a statement the victim later called false in court.

Despite giving a statement to Niagara Falls Police that he gave the victim money and a cell phone, Burton’s father denied actually making the transaction.

He said he never gave the victim any money or promises.

“Totally by herself,” were Fred Burton’s words to describe the victim’s voluntary signature on the document.

Assistant district attorney Caroline A. Wojtaszek was quick to hone in on his words, and Burton’s father admitted to her that his son told him he had hit the 17-year-old.

“So, you took (the victim) to the notary to sign the document knowing Burton hit her ... under penalty of perjury?” Wojtaszek asked the witness in a stern voice. “You ambushed a 17-year-old to benefit your own son!”

The witness said “yes,” but claimed the signed statement said nothing about Burton hitting his victim.

Wojtaszek, in a strident tone, pointed out that the document mentioned things such as the defendant never harmed the victim, but the bruises and victims’ testimony proved otherwise.

Judge Matthew Murphy III demanded the prosecutor to “tone down the notch,” but that did not stop Wojtaszek from raising her voice in apparent disbelief of the defense witness’ testimony.

The prosecutor asked Fred Burton about a meeting between himself, the victim and another family member, Patricia Toliver — who testified next. Fred Burton said there was another individual with them who he wanted to remain anonymous to the jurors.

Wojtaszek repeatedly asked who the person was, but Burton’s father would not say.

There was tension in the courtroom as the defense and prosecution attorneys argued back and forth.

Assistant district attorney Susan Bjornholm, who has been assisting Wojtaszek in the case, was next to cross-examine Toliver, the defense’s second witness.

Her testimony echoed that of Burton’s father, and she held to her story under prosecution’s questioning.

“The defense rests,” Blackley concluded.

Earlier, Dr. Woytash, a forensic pathologist for the Erie County medical examiner’s office, defined the marks on the two victims’ bodies as bruises, adding “a significant amount of force caused the injuries” to both the North Tonawanda woman and to the teen.

The pathologist said the bruises were documented at least 18 hours after the alleged beatings. He also testified that markings on each of the two women were consistent with the victims’ testimony about the alleged assaults.

Woytash said the belt buckle and bamboo sticks allegedly used to beat the Niagara Falls woman, then 17, on October 3-14, 2008, were consistent with bruise marks on her body.

Similarly, he said bruises left on the North Tonawanda woman’s neck after a Feb. 22 incident were consistent with that of a hand mark. In testimony Thursday, the woman claimed Burton choked her.

“So, you can recognize mechanisms in order to strangle someone?” Bjornholm asked Woytash.

“Yes,” Woytash responded. He explained that it only takes 4 to 12 pounds of pressure to cut off the blood flow to the brain and 15 to 30 seconds before the victim will pass out.

After prosecution rested Blackley asked Murphy to dismiss all 10 counts against his client. Blackley said the prosecution could not prove there was sexual contact without consent with either victim and claimed the defendant “did not use force intended to cause physical injury” on his victims.

Murphy denied the motion.

Murphy told jurors the trial should be finished by Monday, when Blackley and Wojtaszek make their closing arguments.

Contact reporter Britney Milazzo at 439-9222, ext. 6251.