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Judge considers mistrial in McTear baby death case

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Published:   |   Updated: August 20, 2013 at 09:19 AM

TAMPA — A judge is considering whether to grant a mistrial in the case of a man accused of tossing an infant out a car window on Interstate 275.

The trial was disrupted Monday afternoon after the baby's mother appeared to violate a court order in her testimony.

About 20 minutes after she took the witness stand against Richard A. McTear Jr., Jasmine Bedwell was asked by a prosecutor about the nature of phone calls made to her by McTear on May 4, 2009, a few hours before her baby's killing.

“He wanted to come over and I told him no,” she said. “He told me he was going to come over and shoot my baby in the face and piss on him and in his face, and he was going to kill both of us.”

The testimony drew an immediate objection from the defense. After a brief bench conference, Circuit Judge William Fuente sent jurors out of the courtroom so he could hear arguments from attorneys.

Public Defender Michael J. Peacock asked for a mistrial, noting Fuente had entered an order before the trial barring those statements from being presented in the trial.

Assistant Hillsborough State Attorney Ronald Gale said he hadn't expected Bedwell to give that testimony regarding her conversations with McTear on that date. In previous interviews, Bedwell had said McTear made those statements in March, and so the prosecution had agreed they wouldn't be relevant to McTear's trial for the May 5, 2009, slaying, Gale said.

Fuente issued the order barring the testimony after the prosecution said it had no plans to elicit the statements in this trial.

McTear was acquitted in 2010 of assaulting Bedwell in March 2009.

Gale said when he asked Bedwell on Monday about her conversations with McTear on May 4, 2009, he expected her to say, “He threatened to come over and hurt me and my baby.”

Peacock urged a mistrial, saying the testimony was in direct violation of Fuente's pretrial order and that it was the obligation of the prosecution to make sure the witness didn't give it.

Gale agreed that the testimony violated Fuente's order but argued that a mistrial wasn't necessary because threatening statements made by McTear before the slaying should be considered admissible evidence.

Noting that it took a week to select a jury, Fuente said he was “on the horns of a dilemma” and gave lawyers until Tuesday morning to research the legal issues. He ordered them to return to court at 8:30 a.m., then told jurors to go home and come back at 9:30 a.m.

Bedwell's credibility is a central issue of the defense.

In his opening statement Monday morning, Peacock told jurors that if they don't believe Bedwell, they can't convict McTear. The lawyer said Bedwell provided several different stories and told a teacher, “I lied, Mr. Tom. That's what I do.”Peacock also told jurors there's no proof that the 3-month-old ever was thrown from a car.“There's no doubt he died from great trauma,” Peacock said regarding the death of Emanuel Wesley Murray. “How and why and who is at fault is not so clear. … We do not know who killed Emanuel, but it was not Richard Anthony McTear Jr.”

Gale told jurors the prosecution will prove McTear murdered the infant during a violent confrontation with Bedwell, his former girlfriend, after Bedwell returned to her apartment from a visit with a male friend, Liderrius Moore.

After setting the baby's car carrier down, Moore gave Bedwell a kiss on the cheek and left, Gale said. After Bedwell locked the door behind him, Gale said, McTear came at her from the bedroom and demanded to know who the man was. He began beating her, kicking her and biting her, Gale said.

McTear then went to the refrigerator and took a drink of water, taking a can of soda and pouring it on the face of the baby, who began crying, Gale said. McTear threw the car carrier and told Bedwell to make the baby be quiet, Gale said, and the mother tried to soothe the baby. As McTear walked into the bedroom, Bedwell saw a chance to escape, Gale said.

As she was unlocking the door, McTear confronted her, getting the baby away from her, Gale said. Bedwell ran to a neighbor's house and called 911.

Hillsborough County sheriff's deputies arrived and began searching the apartment complex for the baby. A television station employee on his way to work found Emanuel on the side of the highway. A car McTear had been using was found, and the hood was hot to the touch as if the car had recently been running.

McTear answered calls to Bedwell's cellphone, including one from another ex-girlfriend and the mother of his child, Gale said, and McTear told her, “You all are next.”

McTear ran when spotted by law enforcement, Gale said. He was found hiding under a car. Investigators said they later found the baby's DNA on the console of the car McTear had been driving. An expert will testify that bite marks on Bedwell were consistent with McTear's teeth.

The day before the baby was killed, Bedwell said someone had taken him at University Mall, Peacock said. After the baby was killed, she told someone her uncle was responsible.

Peacock told jurors how McTear, when confronted by reporters after his arrest, said, “It's a dirty game.”

“The question is,” Peacock said, “what was the game and who was playing it.”

esilvestrini@tampatrib.com

813-259-7837

Twitter: @ElaineTBO

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