SUPERIOR Court Associate Judge Teresa Kim-Tenorio has denied the request of Richmond Keybond to dismiss with prejudice the charge of sexual assault in the second degree filed against him.
Richmond Keybond
The judge also stayed further court proceedings in the case to allow Keybond to appeal her decision.
Keybond is one of the four men accused of raping a very intoxicated woman in June 2018.
Keybond and his uncle Joseph Aquino Saimon were the remaining defendants in the case after the court dismissed the charge against Christopher Saimon, finding him incompetent to stand trial because of mental disability. The other defendant, Romeo Aquino Saimon, has passed away.
In Dec. 2020, Judge Kim-Tenorio declared a mistrial in the jury trial of the two remaining defendants.
On Jan. 5, 2021, Joseph Aquino Saimon entered a plea agreement with the Office of the Attorney General, pleading guilty to an amended charge of kidnapping.
Intoxicated
The alleged victim, who is a former girlfriend of Joseph Aquino Saimon, had testified that Richmond Keybond and Christopher Saimon took turns raping her while she was intoxicated and in and out of consciousness.
She said Joseph and Keybond then got into an altercation, resulting in Joseph throwing a cooler at her and telling her to leave the compound.
Aided by her sister and nephew, the alleged victim left the home, not mentioning to anyone that she was raped multiple times.
The following morning, the alleged victim returned to work, still not disclosing the incident to anyone.
She said Joseph then coerced her to leave work to go home with him, threatening to post nude photos of hers if she did not comply.
She said she left her workplace and followed Joseph who, she added, sexually assaulted her.
She said she silently cried during the assault, trying to keep quiet so as not to alarm Joseph’s two young sons who were home at the time.
Keybond is represented by attorney Cong Nie while Joseph is represented by Assistant Public Defenders Jean Pierre Nogues and Emily Thomsen.
The prosecutors are Assistant Attorneys General Coleen St. Clair and Heather Barcinas.
Mistrial
Joseph, through the Public Defender’s Office, had asked the court to declare a mistrial after the alleged victim, in her testimony, said she was scared of what Joseph would do to her because he could become physical with her at times.
The defense pointed out that the alleged victim was previously told not to provide any testimony regarding domestic violence committed by Joseph against her.
In Keybond’s motion for the dismissal of the charge, the defense said the court “should hold that when mistrial is granted upon a defendant’s own motion, retrial is barred if there was prosecutorial overreaching or harassment, with willful disregard or indifference as to the prejudice caused to a defendant, regardless of the prosecutor’s intent.”
The defense said it meets the burden of proving that the government overreached by improperly questioning the alleged victim, without any qualification, whether she was in fear for herself when she was with Joseph Saimon.
According to the defense, “had the Government truly intended to establish the alleged victim’s fear within the confines of the court’s ruling, it could have qualified its question by asking the alleged victim ‘if anything that happened on the day, not before, caused her to be in fear for her life,’ and by calling [the alleged victim’s] attention to the qualification.”
The defense said the government “intentionally let the alleged victim explain why she was in fear, without providing qualifying parameters, disregarding the high probability that she would reference defendant Joseph Saimon’s prior physical violence.”
No evidence of negligence
The government, for its part, said the “double jeopardy clause” does not bar retrial when the defendant makes the motion for mistrial, “even if the basis for the motion is predicated on prosecutorial or judicial error.”
The government said there is “no evidence on the record of negligence, much less intentional misconduct coupled with an awareness of an improper result.”
The government said the defense’s suggestion that the prosecution “could have mitigated the mistrial had it framed its question regarding the alleged victim’s fear of Joseph Saimon in a manner which specified that the question referred to the alleged incident, is without merit.”
The government also noted that the alleged victim’s testimony had no bearing on Keybond, “yet he chose to join Joseph Saimon’s motion for a mistrial.”
Keybond’s assertion that the government intentionally caused the mistrial to get a second chance at trial in order to make a stronger case is baseless as the mistrial occurred on the government’s third witness when there were over 20 more witnesses to be called, the government said.
