April 29, 2005

A 50-year-old South Toledo man who lived in a vegetative state in a Fostoria nursing home for nearly two years after he was brutally beaten for a pack of cigarettes died yesterday.

David Ziss died at 7:09 a.m. at St. Catherine's Care Center of Fostoria. An autopsy to determine his cause of death is scheduled for today at the Lucas County coroner's office.

Mr. Ziss was knocked to the ground and kicked repeatedly in the head and body on July 15, 2003, in the 900 block of Colburn Street. The assailants took a pack of cigarettes and his wallet, but returned the wallet when nothing of value was found in it, according to court records.

Less than a month after the assault, Mr. Ziss was moved from St. Vincent Mercy Medical Center to the Fostoria nursing home, said Bob Hannon, a coroner's investigator.

Two Toledoans charged in the attack later pleaded guilty to aggravated robbery with the understanding that they could face a more serious charge if Mr. Ziss died.

Steven J. Colston, 23, entered an Alford plea last year and is serving a nine-year sentence at Lebanon Correctional Institution, according to the Ohio Department of Rehabilitation and Correction. In an Alford plea, a defendant does not admit guilt, but pleads guilty to a lesser charge to escape the possibility of more severe penalties had the case gone to trial and the defendant been found guilty.

Dwayne A. Smith, 16, who was certified to stand trial as an adult because of the severity of the assault, pleaded guilty in December, 2003. He also received a nine-year sentence.

Two days after he was sentenced, Smith tried to hang himself with a bedsheet in the Lucas County jail. He died of his injuries nine days later in St. Vincent Mercy Medical Center.

Smith was on a precautionary suicide watch, the lowest level of suicide watch, at the time he hanged himself.

Initially, both assailants were indicted on attempted murder and felonious assault charges. County prosecutors dismissed those charges to avoid a double-jeopardy situation if Mr. Ziss died from injuries he suffered in the attack.

Tim Braun, an assistant county prosecutor, said the prosecutor's office intends to proceed with charges against Colston if the coroner rules Mr. Ziss's death a homicide.

Mr. Braun said Colston entered into a plea agreement stating that if Mr. Ziss died as a result of the beating, Colston would be given the opportunity to plead to murder. If he chooses not to go that route, he said, prosecutors will indict Colston and proceed with a trial.

Francis Collins, Colston's attorney, said he learned yesterday afternoon about Mr. Ziss's death. He said he will attempt to notify Colston of the death, which he called "a tragedy."

Mr. Ziss' family could not be reached for comment last night.

Though police were notified of Mr. Ziss' assault and officers went to the scene, a police report wasn't made until nearly two days later after one of Mr. Ziss' friends called detectives.

The delay led to internal investigations by Toledo police into dispatch procedures and to determine why a report was not made immediately.

Two communications operators ultimately received verbal warnings for procedural errors. One did not change the priority of the incident to require police to respond immediately with lights and sirens when the call about Mr. Ziss' assault was deemed life-threatening.

The other operator failed to send officers who responded to the scene to St. Vincent to do a report, or to tell a police dispatcher that Mr. Ziss was at the hospital so the dispatcher could send officers there for a report.

Contact Christina Hall at
chall@theblade.com
or 419-724-6007.
http://www.toledoblade.com/