Paragraph 19 reads: "According to Rifkin, Hor told police that Burdett was under psychiatric care and took medication to control anxiety and depression, but she was worried about him that night when he didn’t return because he had not taken his medications since before arriving in Miami."

Paragraph 13 reads: " 'It’s something you can’t fathom him doing,' said Burdett. 'He’s got plenty of money. It doesn’t make any sense'.”

Paragraph 15 reads: "Family and friends of Burdett have repeatedly said such a scenario would have been completely out of character for Burdett, a Springfield College graduate, who was vacationing with his girlfriend, Linna Hor, who was 23 and living in Lowell at the time."

Florida investigators say 2009 shooting of Needham man by off-duty officer was justified

http://www.boston.com/yourtown/news/needham/2011/03/florida_investigators_say_2009.html

Posted by Your Town March 15, 2011 11:39 AM

By Lisa Kocian, Globe Staff

A Florida prosecutor today said the state will not charge the off-duty sheriff’s deputy who shot and killed Nicholas Burdett of Needham two years ago on Miami Beach, a finding that Burdett’s family and their attorney are reacting to with a mix of disbelief and outrage.

Burdett, who was on vacation celebrating his 25th birthday, allegedly threatened the off-duty deputy and the deputy’s girlfriend with a knife and demanded money, according to the investigation closeout memo written by Abbe Rifkin, Miami-Dade assistant state attorney.

The investigation found that Burdett, a former college athlete, had presciption medications and alcohol in his system. The off-duty deputy, Justin Clayton, was on the beach with his girlfriend and neither of them knew Burdett.

Clayton said he fired because he “didn’t know any other way to make this stop, make this end….I was afraid I was going to die.”

The Burdetts' family attorney rejected the findings today.

“That is such a fairy tale,” responded Timothy Burke, attorney for the Burdett family. “They’re simply trying to make a square peg fit in a round hole.”

Burke called the timing – just days before the two-year statute of limitations expires – “outrageous.”

“They withheld this information for two years because they were afraid we would file a lawsuit,” he said this morning. “This is a calculated, intentional move on their part to prevent us from any further discovery in this case prior to the statute of limitations expiring.”

Rifkin dismissed the criticism.

“The state of Florida has no stake in the outcome of this investigation,” she said this morning by phone. “The delay in final closeout should have no bearing on an experienced attorney doing his own investigating and filing whatever lawsuit he deemed appropriate, regardless of the outcome of the criminal investigation.”

In her memo, Rifkin also apologized to the family for any further pain the delay caused but said the timeframe was necessary.

David Burdett, Nicholas’s father, declined to comment this morning, but he and his wife coincidentally sat down for an interview yesterday with the Globe to discuss the delay in closing the investigation. They had not seen the closeout memo but knew of the allegations against their son.

“It’s something you can’t fathom him doing,” said Burdett. “He’s got plenty of money. It doesn’t make any sense.”

Rifkin wrote that the actions of Clayton, the Palm Beach County Sheriff’s deputy who had been walking on the beach with his girlfriend prior to the alleged attack, were “lawful, justifiable, and not actionable.”

Family and friends of Burdett have repeatedly said such a scenario would have been completely out of character for Burdett, a Springfield College graduate, who was vacationing with his girlfriend, Linna Hor, who was 23 and living in Lowell at the time.

According to Rifkin, Hor allegedly told police that she and Burdett had gotten into an argument the evening of March 16, just hours after arriving in Florida, because Burdett had left a $60 deposit with a tattoo parlor. Hor was buying Burdett a tattoo as a gift and told police that she had yelled at Burdett and belittled him for paying the deposit, according to Rifkin. When police asked Hor why Burdett might have tried to rob someone, she allegedly said, “Perhaps he was trying to get the money he lost on the deposit back,” Rifkin wrote. Burdett left the couple’s hotel room shortly after the argument, telling Hor that he wanted to retrieve his sunglasses, which he thought the left at the tattoo parlor, according to Rifkin. She never saw him again.

Hor also told police that she was unaware of any knife purchase by Burdett in Miami, and also said he owned a hunting knife, which she did not believe he brought with him, according to Rifkin. DNA swabs from the knife handle and blade were insufficient for analysis, wrote Rifkin.

Hor told police that Burdett was dependent on her both emotionally and financially.

According to Rifkin, Hor told police that Burdett was under psychiatric care and took medication to control anxiety and depression, but she was worried about him that night when he didn’t return because he had not taken his medications since before arriving in Miami.

A toxicological analysis detected “numerous psychotropic/prescription medications… in varying quantities, as well as the presence of ethanol,” wrote Rifkin. Late in the afternoon, Burdett had had two mojitos and one scotch whiskey, according to Rifkin, while he was waiting for Hor to get ready to go out. The blood work did not determine what levels either the narcotics or the ethanol were at the time of the shooting due to the medical intervention Burdett received after his injuries, according to Rifkin.

Asked about the medication yesterday, David Burdett said “I don’t think it has bearing on anything.”

Rifkin also raised an issue from Clayton’s past. Clayton received a written reprimand for neglecting his duties by omitting information from a probable cause affidavit in a misdemeanor arrest, according to Rifkin. “The more serious allegation, that of being untruthful, was not sustained, and was, in fact, dismissed and attributed to Mr. Clayton’s inexperience with the Palm Beach Sheriff,” wrote Rifkin.

Clayton’s personnel complaint report obtained by the Globe, is dated March 9, 2009, a week before the shooting. But Rifkin said it did not come to light until after the shooting and was not a serious incident. She said she did not consider it in determining criminal liability in the shooting.

Clayton told police that after he and his girlfriend had dinner together at a nearby restaurant, they decided to take a walk on the beach. Around 10 p.m. on March 16, they made their way to a lifeguard stand, where they began kissing. Clayton said he noticed a man, later identified as Burdett, moving toward the lifeguard stand at a “fast pace,” wrote Rifkin, and then up the stairs of the lifeguard stand, where Clayton and his girlfriend were standing.

According to Clayton’s account, Burdett said to them, “Give me your money and everything you’ve got.” Clayton grabbed Burdett’s hand that was holding the knife. After a brief struggle, Clayton said he was able to push Burdett away and he drew his .40-caliber Glock from his hip holster and fired twice. Burdett died the following day, March 17, his birthday.

An autopsy of Burdett showed a “penetrating gunshot wound of the abdomen” and “stab wounds of the left lower back and flank,” according to Rifkin.

Clayton told police that after firing he told his girlfriend to run and he also ran away from the lifeguard stand, when he saw police officers running toward him. The officers had heard the gunshots, according to Rifkin, and heard the couple screaming that someone had tried to rob them. There was increased police presence in the area, according to Rifkin, because it was spring break, so it was a matter of seconds before the officers made it to the lifeguard stand.

Rifkin wrote that Clayton has immunity from prosecution under Florida’s Stand Your Ground Law, which allows for deadly force when a person “reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony,” which includes robbery, said Rifkin.

On Sunday, the Burdetts held a celebratory mass for their son to mark the two-year anniversary of his death, they said in the Globe interview. Yesterday, they described their son as smart and funny, a “jock” who liked to play the guitar.

Lisa Kocian can be reached at lkocian@globe.com.