NAPLES — A 29-year-old East Naples man’s murder trial came to a screeching halt Tuesday after a judge threw out an aggravated child-abuse count, weakening the state’s case.
The omission of Todd Allen Akers' name in the particular indictment has left his trial, in which he is accused of killing 2-year-old Abigail Rose Boran, in limbo.
Assistant state attorneys Steve Maresca and Dave Scuderi, who argued there was no error or omission in Akers’ indictment, intend to file an interlocutory appeal with the Second District Court of Appeal. They plan to argue that a defendant’s name in each charge of an indictment against one defendant is unnecessary if it’s cited in the caption, State v. Todd Akers, and introductory paragraph.
Depending on the ruling, which is expected to be quick, it could affect other pending murder cases, such as the one against Mesac Damas, 34, of North Naples, who is accused of killing his wife and five children in 2009.
The state’s announcement of its intent to appeal halted proceedings, preventing Akers’ trial on solely the premeditated murder charge involving the death of Abby Boran, a toddler who died of six skull fractures on May 7, 2006.
Akers remains held without bail in the county jail and faces an automatic life sentence if convicted.
“We’re not happy going to trial without count two,” Maresca told news reporters, who gathered outside the courtroom after Collier Circuit Judge Fred Hardt dismissed count two of the indictment, aggravated child abuse.
That charge bolstered the state’s case and would have allowed prosecutors to push for conviction on felony murder, a killing during the commission of another crime, the aggravated child abuse.
If the state is forced to reconvene another grand jury, which is required for murder cases, it could delay the case for months.
The victim’s mother, Nicole Napier, had hoped to put the trial behind her and get closure, but was visibly upset and left the courtroom with her mother and Betty Ardaya, a victim advocate for the State Attorney’s Office.
Akers was Napier’s fiancé and lived with her and Abby at the Enclave, where Akers made a 911 call on May 5, 2006, contending Abby fell out of her bed and hit her head. Napier was at work at the time and was to testify about Akers’ call to her and the day she and Abby’s father, Ryan Boran, who has since died, held her as doctors took her off life support.
In addition to skull fractures, an autopsy showed bruises on her scalp, chest, thighs, lower leg, stomach, back, upper arm, wrist — and hemorrhages. Doctors were to testify the fractures were “high-velocity” injuries, from being thrown, not dropped, and her brain injuries suggested she might have been shaken. She would have been 3 years old the next month.
Court-appointed defense attorney Kevin Shirley of Punta Gorda explained the delay to Akers’ mother, who cried and was consoled by his stepfather.
Forty potential jurors waiting upstairs for jury selection were then released.
Earlier in the day, Hardt ruled jurors could watch Akers’ three-hour videotaped interrogation on May 5 and 6, 2006, when he told Collier Sheriff’s detectives Ray Wilkinson and David Hurm he dropped Abby 4 feet to the ground, onto her head. The 6-foot man demonstrated to the detectives how he cradled the 33-pound toddler and dropped her because she wouldn’t stop crying.
“The defendant’s statements were made freely and without any form of coercion,” Hardt ruled, denying a defense motion to suppress the videotape.
Akers also said during the interrogation that he had pulled a blanket out from under her, causing her to fall backward and hit her head; tossed her on the couch, causing her to fall off; and hit her head with his hand and her red plastic phone.
He listed various incidents of abuse over a three-month period, which Hardt on Monday ruled jurors could hear about — both through the videotape and Napier’s testimony.
That ruling involved a Williams Rule motion filed by Maresca. It allows a prosecutor to show prior incidents, usually similar, to prove a defendant’s intent, motive and lack of mistake or accident.
Akers, a beer deliveryman, admitted he’d taken out his frustrations on Abby because he’d been beaten as a child, he’d just buried his father, and he and Napier had financial problems.
In denying the suppression motion, the judge cited the testimony of Dr. Gregory DeClue, a defense psychologist and “confessionologist.” Hardt ruled his opinion was not based on known scientific theories.
The judge questioned how the expert had arrived at his conclusions if he hadn’t read the investigators’ narrative report describing what occurred and the witnesses they’d interviewed, hadn’t listened to another audio interview of Akers, and hadn’t watched Akers’ videotaped interrogation until last September, seven months after writing his report.
“How you could come to conclusions without watching this is incomprehensible ...” Hardt said of DeClue’s expert report.
Although he found DeClue’s opinions “speculative at best,” Hardt didn’t go so far as to prohibit his testimony, as Maresca had pushed for. Shirley had argued jurors should make their own conclusions about DeClue’s credibility.
Whether he testifies will be determined at trial, after DeClue, the defense’s expert, is qualified and outlines his education and certifications. Maresca has challenged DeClue’s opinion that Akers’ confession was coerced on the basis that DeClue’s opinion does not meet the Frye Standard, which involves scientific evidence.