Commonwealth v. Richardson (Lawyers Weekly No. 09-019-17)

Docket No. 11-10159
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.
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
1 Defendant is charged with indecent assault and battery on a person over 14, assault and battery with a dangerous weapon (two counts), assault with a dangerous weapon, assault and battery, and carrying a dangerous weapon.
2 Also before me is a motion to dismiss on speedy trial act grounds. I will address that motion separately.
3 Trial has begun, or nearly begun, a number of times. Issues in the case have been reviewed at least twice by a Single Justice under G.L. c. 211, § 3.
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.
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.
4 All dates herein are in 2017 unless otherwise indicated.
5 I take judicial notice of the docket entries in this case. Jarosz v. Palmer, 49 Mass. App. Ct. 834, 835 (2000).
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.
6 Courtroom 817 is a dedicated criminal trial session. Other than handling trial-related motions and motions to reschedule trials close to the trial date, and conducting plea proceedings on the eve of trial, Courtroom 817 conducts trials in criminal cases.
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. Richardson was then on trial and had no communications with ADA Weinstein regarding the warrant for Mr. Richardson’s arrest.
On the morning of July 20, the fugitive unit had a few different possible addresses for Mr. Richardson. Although they sent a few police officers out to observe those addresses, they did not contact anyone at those addresses and did not apprehend Mr. Richardson in those locations. At approximately 8 a.m., the fugitive unit sent three officers to Suffolk Superior Court, where Mr. Richardson was scheduled to be in court for this case.
Around 8:15 a.m. on July 20, Off. Murphy, Boston Police Officer Greg McCormack and Sgt. Tyler Peters of the Suffolk Sheriff’s Office, went to the Suffolk Superior Court to wait for Mr. Richardson to arrive. All three men were dressed in plainclothes, although their badges and firearms were visible. It was apparent that they were police officers. Off. Murphy went inside the building to speak with the probation office. He learned that Mr. Richardson did not have any obligation to check in with probation. Off. Murphy then went upstairs to Courtroom 817 and found a court officer just unlocking the door to the courtroom. The court officer told Off. Murphy that no one was yet inside the courtroom and that Mr. Richardson had not yet arrived. Off. McCormack also asked a court officer at the front security area if Mr. Richardson had yet arrived and, according to Off. Murphy, was told that he had not.7
7 It seems utterly incredible that none of the Boston police officers involved in the issuance of the warrant and the apprehension of Mr. Richardson learned that Mr. Richardson was on trial in Suffolk Superior Court before he was arrested on July 20. None admitted to having such knowledge. I make no finding in this regard because, as described below, regardless of whether police knew or did not know, the law does not attribute their actions – whether intentional or merely reckless or negligent – to the prosecution for purposes of the double jeopardy analysis required by the pending motion.
The three undercover police officers waited outside the Suffolk County Courthouse. They stopped one man outside the courthouse, believing he was Mr. Richardson. When he showed identification indicating that he was not Mr. Richardson, they let him go. When Mr. Richardson arrived outside the courthouse, the three officers followed him into the courthouse and apprehended him while he was waiting in line to go through the security screening to get into the building.
At no time did anyone from the Boston Police notify ADA Weinstein, any other prosecutors working with her on this case, or any court personnel of the warrant for Mr. Richardson’s arrest. Likewise, no one from the homicide or fugitive units of the Boston Police Department notified the police officers working on this case, including the lead investigator Boston Police Sergeant Detective Michael Talbot, or the Court of the existence of the warrant. The Boston Police did not seek the assistance of the Court, the probation office, or the court officers in taking Mr. Richardson into custody in as undisruptive a way as possible. The first time ADA Weinstein (and the ADAs working with her), Sgt. Det. Talbot and the Court learned of the existence of the warrant for Mr. Richardson’s arrest was on July 20, after Mr. Richardson had been apprehended in full view of jurors in his case.
The Double Jeopardy Clause of the United States Constitution provides that “[n]o person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. Amend. V. The Double Jeopardy clause applies to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 787 (1969). In addition to the federal constitutional requirements, Massachusetts has common law and statutory protections equivalent
to the U.S. Constitution’s Double Jeopardy Clause. Powers v. Commonwealth, 426 Mass. 534, 537 n. 5, 540 n. 13 (1998).
For double jeopardy purposes, jeopardy attaches “when the jury is empaneled and sworn.” Martinez v. Illinois, ___ U.S. ___, 134 S. Ct. 2070, 2074 (2014) (and cases cited). Here, the jury was sworn on July 18 and had heard two days of evidence before I was compelled to declare a mistrial on defendant’s motion. Jeopardy plainly attached. This, however, merely “begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial.” Serfass v. United States, 420 U.S. 377, 390 (1975), quoting Illinois v. Somerville, 410 U.S. 458, 467 (1973). “The remaining question is whether the jeopardy ended in such a manner that the defendant may not be retried.” Martinez, 134 S. Ct. at 2075.
Ordinarily, when a defendant moves for a mistrial, there is no bar to retrial. Oregon v. Kennedy, 456 U.S. 667, 672-673 (1982); Commonwealth v. Patten, 401 Mass. 20, 23 (1987). In Oregon v. Kennedy, the Supreme Court sought to delineate more fully an exception to this general rule for situations when a prosecutor or judge acts in bad faith. As the Court stated:
Where prosecutorial error even of a degree sufficient to warrant a mistrial has occurred, “[t]he important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over the course to be followed in the event of such error.”
. . . Only where the governmental conduct in question is intended to “goad” the defendant into moving for a mistrial may defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.
456 U.S. at 676 (citation omitted, emphasis added). In Kennedy, the Supreme Court used the phrase “governmental conduct” in the context of discussing “bad-faith conduct by judge or prosecutor.” Id. at 674, quoting United States v. Dinitz, 424 U.S. 600, 611 (1976). It did not sweep police conduct into the discussion or suggests that the police alone could constitute “governmental” actors for these purposes.
In Massachusetts, a “defendant who has successfully moved for a mistrial, is not entitled to the dismissal of the indictment against him unless there has occurred prosecutorial misconduct intended to provoke him into moving for the mistrial.” Donavan v. Commonwealth, 426 Mass. 13, 14-15 (1997) (and cases cited). See Commonwealth v. Murchison, 392 Mass. 273, 276 (1984) (“To implicate double jeopardy protections, . . . prosecutorial misconduct must be . . . intended to goad the defendant into moving for a mistrial . . . or . . . [must have] resulted in such irremediable harm that a fair trial of the complaint or indictment is no longer possible.”). “Unintentional prosecutorial mistakes, arising from negligence or inadvertence . . . , although resulting in mistrials, do not bar a second trial.” Commonwealth v. Curtis, 53 Mass. App. Ct. 636, 639-640 (2002), quoting Commonwealth v. Cobb, 45 Mass. App. Ct. 271, 274 (1998). See, e.g., Commonwealth v. Patten, 401 Mass. 20, 23 (1987) (retrial permitted where prosecutor’s conduct not deliberate, and not intending to harass or cause a mistrial, but was “unfortunate”).
Here, there was no prosecutorial misconduct; indeed, there was no misconduct by any member of the team of prosecutors and police investigators involved with this prosecution. Instead, the actions creating juror contamination in this case were those of the Boston Police — both the homicide and the fugitive units — setting about to apprehend Mr. Richardson in a public courthouse without considering the consequences for a pending criminal jury trial. The police had many available options. They could have contacted the Suffolk ADA involved in the prosecution of Mr. Richardson; the Court’s security officers, who take defendants into custody every day; and/or the Court or the probation office to alert them to the fact that there was a warrant for Mr. Richardson’s arrest. The police should have determined the reason why Mr.
Richardson would be in court on July 20.8 At a minimum, the police should have thought twice about the potential prejudice and waste of judicial, jury and prosecutorial resources associated with arresting Mr. Richardson in the public area of the courthouse. The police availed themselves of none of these options. Instead, the fugitive unit’s unilateral decision caused a mistrial, an unfortunate waste of time for 14 jurors who had given their time over four days and committed to try the case, and precipitated a further delay of a case that was already long due for trial.
However negligent and irresponsible the police conduct, I cannot attribute it to the prosecution. This situation is not like a Brady violation, where disclosure obligations fall on the prosecutor and the police and where nondisclosure by the police may be attributable to the prosecution. Conduct provoking a mistrial is different. See Commonwealth v. Lam Hue To, 391 Mass. 301, 311-312 (1984). Actions of police have not been attributed to the prosecution in the double jeopardy context requiring analysis of conduct resulting in a mistrial.
In addition, I cannot even find based on the evidence presented that the police motive was to goad the defendant into moving for a mistrial. Even if they knew of the defendant’s pending trial, their focus was on apprehending Mr. Richardson, not on prompting a mistrial. See, e.g., United States v. Fowlkes, 804 F.3d 954, 971-972 (9th Cir. 2015) (government’s arrest of defense witness in hallway after witness testified and in view of jurors did not goad defendant to move for a mistrial; no evidence of prosecutorial intent to provoke defense to seek mistrial); United States v. Ford, 17 F.3d 1100, 1103 (8th Cir. 1994) (improper arrest of witness at federal courthouse not attributed to prosecution where the prosecutor notified law enforcement that the
8 Although I find it extremely hard to believe that the Boston Police homicide and fugitive units did not know that Mr. Richardson was on trial on July 20, there was no evidence presented from which I can find that any one person had actual knowledge that Mr. Richardson was on trial.
witness was testifying that day but did not intend improper arrest). More importantly under the applicable case law, I cannot find that the prosecution, which was unaware of the warrant and the effort to apprehend Mr. Richardson, harbored any such motive.
Finally, even defendant concedes this is not a situation where the actions of the police caused irremediable harm to the future conduct of a fair trial.
Defendant’s Motion to Dismiss Based on Egregious Misconduct (Docket #106) is DENIED. The case is already scheduled for a trial assignment conference on September 26, 2017, at which time a prompt trial date shall be set.
Dated: September 18, 2017 Peter B. Krupp
Justice of the Superior Court

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