Indictment snafu could affect Mesac Damas case

— The omission in an indictment that halted Todd Allen Akers' trial this morning also could affect the murder case against Mesac Damas, who is accused of killing his wife and five children in 2009.

Like the indictment involving Akers, 34-year-old Damas' indictment just lists the charges he faces, six counts of first-degree premeditated murder in the slayings of his wife, Guerline, 32, and five children: Meshach “Zack” Damas, 9; Maven, 6; Marven, 5; Megan, 3; and Morgan, 19 months.

Their bodies were found with their throats cut inside the family’s North Naples home in September 2009.

Prosecutors contend the indictment adheres to state statute, it wasn't an error and that's how they file all indictments. However, the judge dismissed the second count in Akers' indictment, aggravated child abuse, because his name wasn't listed in that count, only the caption, State v. Akers and the first sentence. Without that charge, the prosecution couldn't argue felony murder, as well, a murder that occurred during the commission of another crime, aggravated child abuse. That made their case stronger.

"We're not happy going to trial without count two," Maresca told reporters outside the court.

The indictment against Akers lists his name in the caption, State of Florida vs. Todd Akers, then in the first sentence, and in the first count, but just lists the charge, place and date for the second count.

Assistant State Attorney Dave Scuderi said it was unusual that they used his name in the first count because that's not their policy. The omission caught the judge's notice and made the lack of his name more glaring.

The Damas indictment adheres to their policy, which is to list a defendant's name in the caption, then the first sentence, but only to list the date, county, and charge for each count.

The error only affects indictments, which are required in murder cases. A court information, which is the usual charging method, can be amended right up to trial. But grand juries must be convened to hear cases, a more lengthy process.

The error wouldn't affect cases that already went to trial because a defendant waives the right to challenge it afterward if it's not brought up during pretrial motions and arguments. In this case, it was the judge who noticed the error before a jury could be sworn.

If a jury had been sworn, double jeopardy would attach and a defendant can't be charged twice for the same crime. For now, Akers remains held in the county jail pending the interlocutory appeal. The state, which cites Florida Court Rules, contends there is no error and will argue that to the Second District Court of Appeal.

Randall McGruther, chief assistant state attorney for the 20th Judicial Circuit, said it's the office's practice not to list a defendant's name in each count of an indictment if the defendant is named in the caption, State v. Todd Akers, and introductory paragraph.

"Literally thousands upon thousands of cases have been charged successfully this way," McGruther said in a prepared statement. "The cases cited in the judge's order both deal with indictments that charge multiple defendants, where naming the defendant charged in each count becomes necessary to inform each defendant of which counts he or she is charged with."

The appeal will be handled by the State Attorney General's Office, he said, noting that his office does not take appealing a court ruling "lightly" and doesn't appeal unless there's a "substantial prospect of winning the appeal."

He added: "We therefore do not feel that this ruling will negatively impact other cases, either those pending or where a conviction has been obtained."

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