The ruling that halted a murder trial involving a toddler could affect other pending indictments, including one against Mesac Damas, who is accused of killing his wife and five children in 2009.
However, officials with the State Attorney’s Office are confident their indictment against Todd Allen Akers will be upheld by the Second District Court of Appeal in Lakeland.
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 against only one person if the defendant is named in the caption — State v. Todd Akers — and introductory paragraph.
The indictment against Damas, 34, who is charged with slitting the throats of his wife and children, adheres to the office’s policy and doesn’t list his name in each count.
“Literally thousands upon thousands of cases have been charged successfully this way,” McGruther said. “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.”
Akers’ trial was halted Tuesday, when Collier Circuit Judge Fred Hardt dismissed the second count against him, aggravated child abuse, because Akers’ name was not in that count, but it was in the first.
Assistant state attorneys Steve Maresca and Dave Scuderi didn’t want to proceed solely on the premeditated murder charge and stated their intent to file an interlocutory appeal, which involves pretrial rulings. That halted proceedings.
It was Hardt who spotted the omission, but defense attorney Kevin Shirley of Punta Gorda jumped on it, arguing Akers was not charged with aggravated child abuse. Prosecutors contended it was unnecessary because he was named in the caption and introduction and they cited state statute and case law supporting their arguments.
Prosecutors also pointed to Florida Rules of Criminal Procedure, which say no indictment, information or count shall be dismissed due to any defect, unless a judge rules it is so “vague, indistinct, and indefinite as to mislead the accused and embarrass him” in the preparation of a defense or “expose the accused after conviction or acquittal to substantial danger of a new prosecution for the same offense.”
In rendering his decision, Hardt cited two Second DCA rulings:
n In 1977, in Russell v. State, the appeals court reversed a defendant’s convictions on robbery and grand larceny in a murder case because a judge amended an indictment, adding Russell’s name to those charges, just before trial.
n In Desmond v. State, the appeals court in 1991 refused to overturn convictions for kidnapping, robbery, battery and assault, ruling the defendant waived any objection to the fact he wasn’t named in a multi-count indictment. The court ruled the law doesn’t favor allowing defendants to “wait until the last minute to unravel the whole proceeding.”
McGruther noted those rulings deal with multiple defendants, while Akers’ indictment was sufficient because it only named him.
If Hardt’s ruling is upheld, it won’t affect cases that already went to trial because a defendant waives the right to challenge an indictment or “court information” afterward if it’s not brought up in pretrial motions and arguments. When defendants are charged in a “court information,” prosecutors can amend charges the day of trial.
In this case, a jury had not be sworn in. If it had, double jeopardy would attach and a defendant can’t be charged twice for the same crime. Akers remains held in the county jail pending appeal.
If the appeals court rules it is an error, prosecutors would have to reconvene a grand jury, a panel of 15 to 21 people that would hear evidence and testimony and hand up an indictment.
Once they file a notice of appeal, it will be handled by the State Attorney General’s Office and attorneys would have 15 days to file briefs. McGruther is confident their policy will be upheld.
Arthur “Buddy” Jacobs, counsel for the Florida Prosecuting Attorneys Association, wasn’t aware of a standard statewide policy for naming a defendant in indictments.
“It could be considered to be form over substance,” said Jacobs, whose roughly 20,000-member group represents state attorneys and assistant state attorneys statewide. “Judges are judges, but I would side with the State Attorney’s Office on that one.”