BY IRIS B. HOLTON
Sentinel City Editor
On Tuesday morning, a Hillsborough County judge declared a mistrial in a death penalty murder case. The mistrial came about after a witness made comments that had previously agreed that would be inadmissible.
A 16-panel jury was selected last Friday in the first-degree murder trial of Richard Anthony McTear, Jr. McTear, 25, is accused of causing the death of 3-month-old Emmanuel Wesley Murray, Jr., on May 5, 2009.
McTear is represented by Attorney Michael Peakcock and Attorney Theda James, of the Hillsborough County Public Defender’s Office. Hillsborough County Assistant State Attorney Ron Gale and Attorney Michelle Doherty are prosecuting the case.
Hillsborough County Judge William Fuente said on Tuesday, “The jurors heard testimony they should not have heard under any circumstances. In this court’s opinion, a mistrial is necessary. … I do this with extreme reluctance.”
In his court order Judge Fuente wrote, “The granting of a motion for mistrial is not based on whether the error is simply “prejudicial, rather the standard requires that a mistrial be granted only “where an error is so prejudicial as to vitiate the entire trial,” such that a mistrial is “necessary to ensure that a defendant receives a fair trial….
“In order for the inadmissible complained-of testimony to merit a mistrial, the testimony must deprive the defendant of a fair and impartial trial, materially contribute to any conviction, and be so harmful or fundamentally tainted as to require a mistrial, or be so inflammatory that it might influence a jury to reach a verdict that it otherwise might not.”
Ms. Jasmine Bidwell, 22, was the State’s star witness in the case. She took the stand Monday and during questioning by the prosecutor’s office, recounted incidents leading up to her son’s murder. She testified about telephone calls she had allegedly received from McTear.
At one point during the questioning Attorney Gale asked Ms. Bidwell if she had received any phone calls on May 4, 2009, from McTear and she responded that she had.
Attorney Gale then asked, “What was the nature of those phone calls?”
Ms. Bedwell replied, “He wanted to come over, and I told him no. And he told me that he was going to come over and shoot my baby in the face and p—on him and in his face and he was gonna kill both of us.”
Those comments had reportedly been linked to a battery that took place in March 2009, two months before the death of the infant. Both the State and the Defense had agreed they were inadmissible to the murder case.
Judge Fuente wrote, “… Such would not be relevant because McTear uttered those words in March 2009 in an unrelated case, hence they would not be competent evidence in the instant homicide offense of May 2009.”
McTear was acquitted of the battery charge.
After the comments were made, McTear’s counsel, Attorney Peacock called for a mistrial on the basis that the statements had already been ruled inadmissible.
A spokesperson for the Hillsborough County State Attorney’s Office declined to comment on the ruling.
Hillsborough County Public Defender Julieann Holt said of the ruling, “We thought the judge followed the law and did what was necessary to ensure a fair trial. We will be ready as soon as the court can calendar a new trial date.
Ms. Bidwell notified the Hillsborough County Sheriff’s Office on May 5, 2009, and reported that McTear was waiting inside her apartment when she arrived home. He is alleged to have attacked her, thrown the baby on concrete and fled the apartment with the infant.
The baby’s body was found on the side of I-275 less than two hours after the report was filed. McTear was arrested later that day. He was taken into custody after he was found hiding behind an apartment in Robles Pond Public Housing Complex.
The Defense argues that McTear is not guilty of the crime. A new trial date has not been set.
