by Douglas Ankney

The Supreme Court of Arizona held that the word “person” in the state’s self-defense justification statute, A.R.S. § 13-404(A), applies only to a defendant’s conduct, not the victim’s as well.

Jordan Christopher Ewer and two others confronted two people identified as “Gilbert” and “Emily.” Ewer drew his gun, and Emily threatened to hit him with a golf club. The two groups threw rocks at one another. Ewer and his companions backed away from the scene. Emily and Gilbert pursued them, and Ewer fired in their direction. Gilbert was struck in the back and died at the scene. Ewer was charged with second degree murder.

Prior to trial, Ewer requested the jury be instructed using the Revised Arizona Jury Instructions (“RAJI”) for justified use of deadly force in self-defense – RAJI 4.04 and 4.05; defense of a third person – RAJI 4.06; and crime prevention – RAJI 4.11. The State proposed that the word “defendant” in each of the instructions be replaced by the word “person.” The State argued that the jury could apply the justification instructions to Gilbert’s conduct as well as to Ewer’s. Over Ewer’s objection, the trial court obliged the State’s requested modifications to the ...

by Douglas Ankney

The U.S. Court of Appeals for the Second Circuit held that kidnapping in the second degree under New York Penal Law (“NYPL”) § 135.20 is not categorically a crime of violence pursuant to 18 U.S.C. § 924(c)(3)(A).

In June 2021, the Second Circuit affirmed the judgment against Thamud Eldridge that included a conviction for kidnapping in aid of racketeering in violation of 18 U.S.C. § 1959(a)(1) predicated on kidnapping in the second degree under NYPL § 135.20 (Count 5); a conviction for attempted Hobbs Act robbery or conspiracy to commit Hobbs Act robbery (Count 6); and a conviction for possessing and brandishing a firearm in the furtherance of a crime of violence in violation of § 924(c)(1)(A)(ii) (Count 7). The jury verdict did not specify whether the Count 5 conviction or the Count 6 conviction was the underlying crime of violence supporting the Count 7 conviction. Eldridge had argued that it did not matter because none of his convictions qualified as a crime of violence. The U.S. Supreme Court vacated the judgment and remanded to the Second Circuit for further consideration in light of United States v. Taylor, 142 S. Ct. 2015 (2022).

On remand, the ...

by Douglas Ankney

The U.S. Court of Appeals for the Eleventh Circuit, sitting en banc, held that the definition of “controlled substance offense” for purposes of the career offender sentencing enhancement under U.S. Sentencing Guideline (“USSG”) § 4B1.2(b) unambiguously excludes inchoate offenses like conspiracy and attempt, and therefore, the commentary notes are inapplicable. The Court expressly overruled prior precedent that held to the contrary, viz., United States v. Weir, 51 F.3d 1031 (11th Cir. 1995), and United States v. Smith, 54 F.3d 690 (11th Cir. 1995).

Brandon Romel Dupree pleaded guilty to possession of a firearm after having been convicted of a felony in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); conspiracy to possess with intent to distribute heroin and cocaine in violation of 21 U.S.C. § 846; and carrying a firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A)(i).

 The Presentence Investigation Report (“PSR”) revealed that Dupree had two previous convictions for controlled substance offenses. And the PSR identified Dupree’s current § 846 conspiracy conviction as a third controlled substance offense. Together, these three offenses qualified Dupree for the career offender enhancement of USSG § 4B1.1(a). With the enhancement, Dupree’s ...

by Douglas Ankney

The Supreme Court of Kansas held that the Legislature intended to tie a single unit of prosecution to multiple items of drug paraphernalia in K.S.A. 2016 Supp. 21-5709(b)(1) (“§ 21-5709(b)(1)”) and K.S.A. 2016 Supp. § 21-5709(b)(2) (“§ 21-5709(b)(2)”).

After Amber Dial reported to the Miami County Sheriff’s Office that Justin Burke Eckert had beaten her, officers executed a search warrant at his home and found a tent, nine grown marijuana plants, and more than 25 drug paraphernalia objects – including propane, a blower, rolling papers, two bongs, and three fans. Ultimately, Eckert was charged with eight felony counts of possession of paraphernalia with intent to manufacture, cultivate, and plant marijuana under § 21-5709(b)(1). He was also charged with 21 misdemeanor counts of possessing drug paraphernalia to store and to introduce marijuana into the human body under § 21-5709(b)(2).

The trial court dismissed four of the misdemeanor counts. A jury found Eckert guilty of numerous offenses related to the assault of Dial as well as guilty of all the drug paraphernalia counts. The trial court sentenced Eckert to 362 months’ imprisonment. For each felony paraphernalia possession conviction, Eckert was sentenced to 11 months’ imprisonment to run concurrent to ...

by Douglas Ankney

The Supreme Court of Mississippi, sitting en banc, held that the Court of Appeals (“COA”) improperly permitted the State to add to the record on appeal and the evidence presented to the trial court was insufficient to sustain a finding that Lorenzo Manuel was a habitual offender.

Manuel was convicted by jury of second-degree murder and aggravated assault for his role in the shooting death of Justin Shannon and the wounding of Keandria Mitchell. At his sentencing, the prosecution offered two prior sentencing orders into evidence and asked the circuit court to sentence Manuel as a habitual offender. Both orders stated Manuel had pleaded guilty to a charge of selling hydrocodone. When the judge asked if the two orders were identical, the prosecutor pointed out that one order had a case number of 08-1180 and the other had 08-1181. The judge then asked if the prosecution had anything further, and the prosecutor answered: “No, Your Honor, other than the fact that I believe that we’ve presented evidence that shows that he has been charged with two different felonies arising out of separate charges, separate times, and sentenced to a term of one year or more.”

The judge ...

by Douglas Ankney

The U.S. Court of Appeals for the Fifth Circuit held that the federal statute which prohibits the possession of firearms by a person subject to a domestic violence restraining order, 18 U.S.C. § 922(g)(8), is unconstitutional in light of N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022).

Zackey Rahimi was indicted for possessing a firearm while under a domestic violence order in violation of 18 U.S.C. § 922(g)(8) after officers from the Arlington, Texas, Police Department executed a search warrant at his home and found a rifle and a pistol. Rahimi moved to dismiss the indictment on the ground that the statute is unconstitutional, but he acknowledged that United States v. McGinnis, 956 F.3d 747 (5th Cir. 2020), foreclosed his argument.

The U.S. District Court for the Northern District of Texas denied his motion, and he pleaded guilty. On appeal, a panel of the Fifth Circuit agreed that McGinnis foreclosed Rahimi’s argument. While Rahimi’s petition for a rehearing en banc was pending, the U.S. Supreme Court decided Bruen. The panel withdrew its opinion and ordered supplemental briefing on the impact of Bruen on Rahimi’s case. Rahimi then contended ...

by Douglas Ankney

In a case of first impression, the Supreme Court of California clarified that proof of first-degree murder by means of poison requires the prosecution to show that the defendant deliberately gave the victim poison with the intent to kill the victim or to inflict injury likely to cause death.

Heather Rose Brown placed her sleeping five-day-old daughter, Dae-Lynn Rose, face down on the bed between her and Dae-Lynn’s father, Daylon Reed. While the three of them slept, Dae-Lynn stopped breathing. When Brown awoke and discovered her baby was warm but not breathing, she directed Reed to call 911. The 911 dispatcher instructed Brown in administering CPR until paramedics arrived. Unfortunately, Dae-Lynn was pronounced dead upon arrival at the hospital.

An autopsy report revealed that Dae-Lynn died from exposure to methamphetamine and heroin. Brown admitted that she and Reed smoked both heroin and methamphetamine but not in the same room as Dae-Lynn. However, she fed Dae-Lynn breast milk and baby formula shortly before she died.

Brown was prosecuted for first degree murder on the theory that Brown poisoned her newborn daughter by feeding her breast milk after smoking methamphetamine and heroin. The superior court instructed the jury that ...

by Douglas Ankney

The continuous refrain of “police reform” touting “better training” and laws banning actions such as chokeholds seems to echo endlessly. In 2021, the U.S. House of Representatives passed the George Floyd Justice in Policing Act (“Act”), but it died in the Senate. However, even if the Act’s ban on chokeholds had become law, it would not have saved the life of Tyre Nichols.

Nichols was savagely beaten to death by Memphis police officers using every assault imaginable other than the chokehold. Amid the calls for “professionalizing the police” by raising the current 650 hours of training to match Finland’s 5,500 hours – or by requiring police officers to have a college degree – is Noah Smith. 

On his Substack, Smith admits that there are not “good causal studies on the impact of total hours of police training on police brutality” but argues there is some evidence suggesting particular subtypes of training are effective. Yet, one of those subtypes was the de-escalation training undergone by the officers who killed Nichols.

And while diversity in a police force is a politically correct move, it does little to prevent police brutality as shown by the fact that Nichols was a ...

by Douglas Ankney

The group “Voters for Oversight and Police Accountability” (VOPA) apparently amassed the 25,000 signatures needed in Austin, Texas, to have a referendum entitled “Austin Police Oversight Act” added to the ballot. But there was already an “Austin Police Oversight Act” on the ballot seeking to open police records to public access and to give the city’s office of police oversight an active role in the investigations of officer misconduct.

However, the VOPA version differed in two significant ways: (1) it was funded almost entirely by a police union – the Austin Police Association had contributed nearly every penny of the campaign’s $300,000 and (2) the VOPA version would keep particular misconduct records hidden from public eyes and give the board only a passive role in investigations.

Austin is not an outlier. In January 2023, a city councilor in Albuquerque, New Mexico, proposed abolishing the oversight board to replace it with a smaller, less powerful civilian panel. A state legislator told the Albuquerque Journal it was a “done deal.” Abigail Cerra, former chairperson of the Minneapolis Police Oversight Commission, acknowledged the importance of oversight groups as an important check on police authority: “Without any such check or oversight, ...

by Douglas Ankney 

The Court of Criminal Appeals of Texas held that the trial court erred when it prohibited William Rogers from presenting evidence to support his claim of self-defense and also when it refused to instruct the jury on self-defense.

Rogers was tried by jury on charges of Burglary ...