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A Night To Remember

Articles by Douglas Ankney

North Carolina Supreme Court Announces Harbison Applies When Defense Counsel Implies Defendant’s Guilt Without Prior Consent


by Douglas Ankney

The Supreme Court of North Carolina extended State v. Harbison, 337 S.E.2d 504 (N.C. 1985) (holding per se violation of defendant’s constitutional right to effective counsel when counsel concedes guilt to jury without defendant’s prior consent), to include cases where defense counsel impliedly – rather than expressly – admits the defendant is guilty of a charged offense.

Anton Thurman McAllister repeatedly slapped his live-in girlfriend, Stephanie Leonard, outside a gas station. McAllister then forced Leonard back to their apartment. An attendant at the gas station reported the altercation.

Once inside the apartment, McAllister continued to hit Leonard and twice attempted to suffocate her. McAllister then forced Leonard into the bathtub where he washed the blood from Leonard’s body. Afterward, they went to bed and had sexual intercourse.

The following evening, officers located McAllister. He agreed to accompany the officers to the police station for a non-custodial interview. The interview was videotaped, during which McAllister stated he: (1) pushed Leonard to the ground outside the gas station, (2) backhanded her in the face, (3) smacked her in the lip, (4) grabbed her in the mouth, (5) bit her hand, and (6) “smacked [her] ass ...

First Circuit Announces Residual Clause of U.S.S.G. § 4B1.2(a)(2) When Applied Pre-Booker Is Unconstitutional Under Johnson

by Douglas Ankney

Bucking the trend among the majority of federal circuits, the U.S. Court of Appeals for the First Circuit announced that the residual clause of U.S. Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) § 4B1.2(a)(2) – when applied prior to United States v. Booker, 543 U.S. 220 (2005) – is unconstitutionally vague pursuant to Johnson v. United States, 576 U.S. 591 (2015), and a challenge to a sentence imposed under the residual clause may be collaterally raised via 28 U.S.C. § 2255(f)(3). 

In 1997, Anthony M. Shea was convicted in the U.S. District Court for the District of New Hampshire, inter alia, of armed attempted bank robbery under 18 U.S.C. § 2113(a) and (d) (“Count 1”) and of using a firearm during a crime of violence [the armed attempted bank robbery] under 18 U.S.C. § 924(c) (“Count 2”). But the district court also classified Shea as a “Career Offender” under U.S.S.G. § 4B1.2(a)(2)’s residual clause based on Shea’s prior violent felony convictions for federal armed bank robbery and assault and battery on a police officer in Massachusetts. 

Both U.S.S.G. § 4B1.2(a)(2) and the Armed Career Criminal Act, 18 U.S.C. 924(e)(2)(B) (“ACCA”), defined “violent felony” as ...

Cincinnati Police Department Agrees to Audit of Its DNA Database

The Innocence Project of New York, along with the Cincinnati, Ohio, law firm of Gerhardstein & Branch (collectively “Plaintiff’s Counsel”), negotiated a settlement on September 14, 2020, wherein the Cincinnati Police Department (“CPD”) agreed to an unprecedented audit of its DNA-based homicide cases.

The settlement emerged from a 2018 civil rights lawsuit filed by Plaintiff’s Counsel on behalf of Joshua Maxton.

Maxton spent over a year in jail until a jury acquitted him of murder. During trial, the defense learned for the first time that the Cincinnati police were informed seven months earlier that DNA evidence from the crime scene resulted in a “CODIS hit” for alternate suspect Dante Foggie. A CODIS hit is a match of DNA submitted to the FBI’s CODIS database, which is a compilation of more than 18 million DNA profiles taken from people convicted of crime across the U.S.

The terms of the settlement provide that an audit team, overseen by court-appointed Special Master Ronald Safer, will conduct “a comprehensive investigation into a subset of homicide cases to determine whether DNA evidence obtained by the CPD was properly disclosed to persons, as is required by law.”

Covering cases from June 2011 to ...

Eighth Circuit Vacates Sentence After District Judge 
Interfered With Plea Negotiations and Made Disparaging 
Remarks About Federal Judiciary

by Douglas Ankney

The U.S. Court of Appeals for the Eighth Circuit vacated Seneca Harrison’s sentence because the judge for the U.S. District Court for the Western District of Missouri interfered with plea negotiations and made disparaging remarks about the federal judiciary.

The Government offered Harrison a deal where, in exchange for his guilty plea, both sides could argue for a sentence between the recommended Guidelines range of 70 to 87 months on a charge of felon in possession of a firearm. At the plea hearing, Harrison stated “we can, like, get this out of the way, like, right now today” because he did not “even [want to] go to trial.”

But upon hearing that a Guidelines-range sentence was all that the Government was offering, the district judge said “[t]hat’s probably worse than if he got convicted right? I mean, because if he gets convicted, he can argue for less, right?” The judge excused the prosecutor from the courtroom and then told Harrison that the federal system “sucks” and is “really harsh.”

The judge then offered advice that if Harrison were to plead guilty he would be sentenced by a less lenient judge, but if Harrison chose to go to ...

Massachusetts Supreme Court: Brady Requires Disclosure of Exculpatory Material Revealed During Immunized Testimony Before Grand Jury

by Douglas Ankney

The Supreme Judicial Court of Massachusetts affirmed an order of a trial judge requiring a district attorney to disclose to defense attorneys details of misconduct by two police officers that were disclosed during the immunized testimony of the officers before a grand jury.

In July 2019, Fall River police officer Michael Pessoa submitted an arrest report, claiming the arrestee was noncompliant and threatened to punch the officers whereupon Pessoa used force (an “arm bar take down”) to take the arrestee to the ground. Because the arrestee was noncompliant, Pessoa added a charge of resisting arrest. Two additional Fall River officers were present during the arrest, and they each submitted use-of-force reports corroborating Pessoa’s account and supporting the additional charge of resisting arrest.

Shortly thereafter, surveillance video revealed that the arrestee had been compliant when Pessoa approached and punched the man on the left side of his head, and then, Pessoa violently took him to the ground in a manner not using the arm bar takedown. An ensuing criminal investigation resulted in 15 indictments against Pessoa. During the course of the investigation, the district attorney obtained orders of immunity pursuant to G. L. C. 233, §§ 20C-20G for ...

California Court of Appeal Reverses Murder Conviction Because Superior Court Erred by Allowing Deceased’s Out-of-Court Statements Into Evidence

by Douglas Ankney

Division One of the Fourth Appellate District of the California Court of Appeal reversed Rene Quintanilla, Jr.’s murder conviction because the Superior Court allowed as evidence the deceased’s out-of-court statements under the hearsay exception in Evidence Code § 1390.

Quintanilla killed his live-in girlfriend (identified only as Charlene) by shooting her in the chest with a shotgun. He was charged with several felonies, including murder.

The People filed a motion in limine to admit out-of-court statements Charlene had made to friends and family members describing Quintanilla’s domestic violence toward her over the years of their relationship. The trial court ordered a foundational hearing to determine if the statements could be admitted as evidence under the hearsay exception in Evidence Code § 1390. Under § 1390, out-of-court statements made by a person unavailable to testify at trial may be admitted as evidence if the defendant “engaged ... in wrongdoing that was intended to, and did, procure the unavailability of” the witness. At the hearing, the trial court heard testimony from:

• Charlene’s aunt who testified that Charlene said Quintanilla strangled her twice (once with his bare hands and once with a belt causing her to lose consciousness); Quintanilla ...

Hawai’i Supreme Court Announces Admissibility of Third-Party Culpability Evidence Is Same Relevancy Test That’s Applied for Other Evidence, Superseding Rabellizsa


by Douglas Ankney

The Supreme Court of Hawai’i announced that the standard for admission of third-party culpability evidence is the same as the relevancy test that is applies to other types of evidence, superseding State v. Rabellizsa, 903 P.2d 43 (Haw. 1995).

Yoko Kato was arrested on charges of second-degree murder. The complaining witness (identified as “CW”) was a Japanese national. She had received a text message from a woman calling herself Ai Akanishi, asking the CW to meet her for drinks. The message arrived via the LINE application using the CW’s personal LINE identification (“LINE ID”). Even though the CW did not know anyone named Akanishi and hadn’t given her LINE ID to anyone by that name, she agreed to the meeting.

The CW rode her bicycle to the designated location. A man speaking in broken Japanese (“spoken by a nonnative speaker”) directed her where to park her bicycle. While she was parking her bike, the man stabbed her several times. She fled to a nearby business, and the owners called police.

When describing her assailant, the CW told police her attacker could have been a woman because the voice was high for a male. She later ...

New Hampshire Supreme Court Announces Adoption of Lafler When Reviewing IAC Claims in Plea Bargain Cases

by Douglas Ankney

The Supreme Court of New Hampshire announced that it has adopted the approach of Lafler v. Cooper, 566 U.S. 156 (2016), in reviewing claims of ineffective assistance of counsel where the defendant rejected a plea offer and chose to go to trial based upon advice of counsel.

Keith Fitzgerald was indicted on five counts of theft by unlawful taking (Class A felonies) for using his power of attorney to transfer money from his father’s accounts into accounts in his name. Each count carries a penalty of 7.5 to 15 years. The State notified Fitzgerald in a plea offer that the sentence enhancements of RSA 651:6, III (2016) could be applied because his father was over 65 years old. Unable to reach an agreement at the first settlement conference, the parties filed a motion stating they continue to “engage[ ] in productive settlement discussions [and] are in agreement that the defendant have some time to consider the State’s current offer.” 

Ultimately, the State made its final offer of two years’ incarceration in a county facility, followed by two years of home confinement in exchange for a guilty plea to all five counts.

Defense counsel advised Fitzgerald ...

Colorado Supreme Court: Convictions for Murder and Attempted Murder Violate Double Jeopardy

Jackson, along with other members of the gang known as “Sicc Made,” drove to an apartment complex to kill rival gang member “E.O.” One of Jackson’s cohorts spotted “Y.M.” exiting a vehicle similar to that driven by E.O. Mistaking Y.M. for E.O., the cohort shot Y.M. twice in the head, killing him instantly.

Relying on a complicity theory, the People indicted Jackson on several charges, including first-degree murder (naming Y.M. as the victim) and attempted first-degree murder (naming E.O. as the victim). The jury found Jackson guilty on all charges. The trial court sentenced him to life in prison without parole on the first-degree murder conviction and to a consecutive term of 24 years on the attempted murder conviction.

Jackson appealed, arguing, inter alia, that the murder and attempted murder convictions violated his state and federal constitutional protections against double jeopardy. A division of the court of appeals, believing there were two victims and relying on the doctrine of “transferred intent,” concluded that the two convictions violated double jeopardy. The court of appeals vacated ...

Kansas Supreme Court Reverses Conviction Where Trial Court Refused to Give Self-Defense Instruction

Keyes was tried for the murder of Jimmy Martin. State’s witness Carlo Malone testified that Keyes ordered him to stand outside the backdoor of Martin’s mobile home while Keyes entered the trailer armed with a pistol. He testified that he poked his head inside the door, but it was too dark to see anything. He heard an exchange of words between Keyes and Martin, culminating with Martin telling Keyes “do what you got to do.” Martin testified that he heard a gunshot and that he later helped Keyes bury Martin’s body.

Keyes testified that he neither ordered Malone to stand outside the backdoor nor was Malone even present. Keyes testified that Tina Martin – the owner of the property – had instructed him (Keyes) to evict Martin. Because Keyes knew that Martin was known to be armed with a knife, Keyes armed himself with the pistol. He confronted Martin inside the mobile home and told him he had to move. Martin threatened to kill Keyes, grabbed a knife, and began slashing it toward Keyes. Keyes ...



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