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Commonwealth v. Richardson

Superior Court of Massachusetts, Suffolk

September 18, 2017

Commonwealth
v.
Kareem Richardson

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER ON DEFENDANT'S MOTION TO DISMISS FOLLOWING MISTRIAL

          Peter B. Krupp, Justice of the Superior Court.

         Defendant Kareem Richardson is facing long-pending, serious charges arising from events that occurred at Rumors nightclub in 2010.[1] After defendant's successful motion for a mistrial, the case is before me on Defendant's Motion to Dismiss Based on Egregious Misconduct (Docket #106).[2] After hearing, I am constrained to deny the motion.

         Introduction

         After a series of previously failed attempts, [3] this case came before me for trial in July 2017. In the midst of trial, and without prior notice to the Court, the Boston Police caused a warrant to be issued for Mr. Richardson for misdemeanor charges out of the Taunton District Court; arranged for its fugitive unit to arrest Mr. Richardson on that warrant; and chose to make the arrest at about 8:30 a.m. as Mr. Richardson was entering the public entrance of the Suffolk County Courthouse for the fourth day of trial. Not surprisingly, jurors selected for this trial were also entering the building through the public entrance and observed the police apprehend Mr. Richardson. Because the police removed Mr. Richardson from the premises, trial proceedings were delayed and jurors understandably discussed their observations in the jury room as the jury, the lawyers, investigators, witnesses and the Court waited for the police to bring Mr. Richardson back to the courthouse. After interviewing each of the jurors, I granted a defense request for a mistrial.

         Defendant now moves to dismiss the case, claiming that the police officers' actions induced him to move for a mistrial and should be chargeable to the Commonwealth for double jeopardy purposes. Over two days, I conducted an evidentiary hearing on the motion to dismiss. I heard testimony from 12 witnesses and received 12 exhibits. I now find the following facts based on a preponderance of the credible evidence.

         FINDINGS OF FACT

         On June 5, 2017, [4] this case was set for trial on July 17.[5] On July 13, I held a final pretrial conference. The Commonwealth was represented by Assistant District Attorney Lindsey Weinstein. At all relevant times before me, ADA Weinstein represented that the Commonwealth wished to proceed with trial as scheduled and, due to an earlier ruling by the Court (Gordon, J.) on a speedy trial motion, among other reasons, she did not want the trial date continued.

         On July 7, the Taunton District Court issued plaintiff Kim Cooper an ex parte abuse prevention order against Mr. Richardson under G.L.c. 209A. The Taunton District Court scheduled a hearing for July 21. Defendant was not served with the Taunton restraining order until July 14 at 11:25 a.m.

         On July 14 at about 11:15 a.m., Ms. Cooper walked into the Boston Police Department's District A-1 and reported that on July 13 she had encountered Mr. Richardson who made threats against her. The police officer who took Ms. Cooper's report was unable to confirm the existence of a restraining order on Mr. Richardson's record. At about 2:18 p.m. on July 14, Ms. Cooper told a Boston police officer that Mr. Richardson had again violated the restraining order by approaching her on Shawmut Avenue and arguing with her. Both complaints by Ms. Cooper found their way to Boston Police Detective Roque Heath for investigation. Det. Heath was unable to determine that Mr. Richardson had been served with a restraining order. As a result, on July 17, Det. Heath filled out an application for a criminal complaint as to both incidents and sought a clerk magistrate's hearing in the Roxbury Division of the Boston Municipal Court to determine whether a criminal charge should be brought in either instance. Under this procedure, Mr. Richardson was to be notified of the hearing date and summonsed into court for the hearing. Det. Heath did not ask for a warrant to issue. The hearing was scheduled for August 24. Det. Heath sent a letter to Ms. Cooper notifying her of the date of the hearing.

         Meanwhile, trial in this case began on July 17. A jury of 14 was selected. On July 18, the jurors were sworn. Evidence began on July 18 and 19. Trial was scheduled to continue on July 20 and subsequent days.

         On July 19, Det. Heath received a telephone call from a Boston Police Lieutenant, who asked if Det. Heath would take a call about Mr. Richardson from Boston Police Sergeant Detective Thomas Foley, who was assigned to the homicide unit. This call was unusual and inconsistent with standard police protocol because Sgt. Det. Foley was not Det. Heath's supervisor. Det. Heath agreed to take the call. Sgt. Det. Foley, in effect, asked Det. Heath to seek a warrant for Mr. Richardson's arrest. Det. Heath agreed to look into the matter. After confirming with the Taunton District Court that Mr. Richardson had been served with the restraining order, Det. Heath contacted the Roxbury Division of the Boston Municipal Court and asked an assistant clerk to issue a warrant for Mr. Richardson's arrest. The Roxbury clerk did so based on the " additional concern provided by Officer Heath." Det. Heath contacted Sgt. Det. Foley to let him know that the warrant issued.

         Sgt. Det. Foley contacted Boston Police Sergeant Detective Brian Alpert of the fugitive unit to notify him of the existence of the warrant, and then sent him information about the warrant. Sgt. Det. Foley also notified others in the homicide unit, including Boston Police Detective Robert Kenney.

         On the afternoon of July 19, Boston Police Officer Patrick Murphy, who was assigned to the fugitive unit, was tasked with finding out where Mr. Richardson could be apprehended. Among other things, he ran Mr. Richardson's criminal record and learned that Mr. Richardson had an open case in Suffolk Superior Court and had been due in court on July 19. Off. Murphy called the Suffolk Superior Court Criminal Clerk's Office and learned that Mr. Richardson was not in custody, had appeared in court on July 19, and was due back in Courtroom 817 on July 20. Although Off. Murphy was told that this was an ongoing proceeding, he says he did not ask if Mr. Richardson was on trial, was not told that Mr. Richardson was on trial, and he did not put two and two together to figure out that Mr. Richardson was on trial in Courtroom 817.[6]

         Assistant District Attorney Tara Burdman is assigned to prosecute homicide cases. In that context, she was working with Det. Kenney in July. At about 3 p.m. on July 19, Det. Kenney contacted ADA Burdman and told her that there was an outstanding warrant for Mr. Richardson, that Mr. Richardson had been in court on July 19 and was returning on July 20, and that the Boston Police would try to execute the warrant in court on July 20. ADA Burdman was not aware Mr. ...


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