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Articles by Douglas Ankney

Colorado Supreme Court: Prosecution Prohibited From Arguing Defendant’s Failure to Retreat Showed Lack of Fear, Undermining Claim of Self-Defense

Sheila Renee Monroe got into an argument with a man on a city bus. Monroe showed the man she had a pocket knife. The man said he was going to call police. The man claimed that after he removed his phone and was dialing, Monroe stabbed him in the neck. A witness testified that the man had his phone in his hand and “was opening his jacket” when Monroe stabbed him. Monroe was charged with first-degree assault and attempted first-degree murder.

At trial, Monroe claimed that she acted in self-defense when the victim reached into his pocket.

During closing argument, the prosecutor said Monroe “didn’t have any duty to retreat, but she does have a clear line of retreat, if she’s actually scared for her safety.” Defense counsel objected, arguing that this imposed a duty to retreat. The trial court overruled the objection.

Calling the jury’s attention to the ...

Arizona Supreme Court Announces Cumulative Error Framework for Reviewing Multiple Instances of Prosecutorial Misconduct

A jury found Luis Armando Vargas guilty of several offenses, including first-degree murder. On appeal, Vargas argued that the prosecutor engaged in a “pervasive pattern of misconduct [that] cumulatively deprived [him] of his right to a fair trial.” Because trial counsel failed to object to the alleged misconduct, appellate counsel argued that the Court of Appeals should review the claim for fundamental error. Counsel supported this claim with 11 instances of alleged misconduct.

For all but three of the alleged instances of misconduct, the Court of Appeals concluded the argument waived because Vargas failed to set forth that each of those instances, by itself, was fundamental error. For each of these conclusions, the Court of Appeals relied on State v. Moreno-Medrano, 185 P.3d 135 (App. 2008). It concluded Vargas failed to establish cumulative error based on misconduct and affirmed. The Arizona Supreme Court accepted review.

The Court observed that Arizona Rule of Criminal Procedure 31.10(a)(7) sets out the procedure for properly raising and developing ...

Indiana Supreme Court: Must Be Immediate Causal Connection Between Confrontation and Other Crime by Defendant to Negate Self-Defense

Anthony Gammons, Jr. and his 10-year-old son stopped by the house of Gammons’ cousin. Gammons was immediately accosted by Derek Gilbert. Gammons knew that Gilbert liked to get drunk, fight, rob, and shoot at people. He also knew that Gilbert had previously been charged with murder. Even though Gammons was openly carrying a handgun, Gilbert squared up as if to punch Gammons, pulling at his waistband and asking if Gammons was “casket ready.”

Gammons later testified that he shot at Gilbert eight times because he feared for his life and the life of his son. But as soon as Gilbert retreated and ran away, Gammons stopped firing. Gilbert survived, and Gammons was charged with attempted murder.

At trial, Gammons conceded he was carrying the handgun without a license. Gammons requested that the court instruct the jury that he was “justified in using deadly ...

Ninth Circuit: Police Violate Fourth Amendment Executing Administrative Warrant Where Primary Purpose Is Gathering Evidence for Criminal Investigation

The U.S. Court of Appeals for the Ninth Circuit ruled that law enforcement officers violated the Fourth Amendment in executing an administrative warrant at a private residence where their “primary purpose” was to gather evidence in support of a criminal investigation.

In October 2017, the City of Lancaster, California (“City”), began investigating Franz Grey for possible violations of the City’s Municipal Code after receiving complaints from Grey’s neighbors. The neighbors complained that Grey had erected an electrified fence around his home, covered the fence with tarps, erected a 30-foot pole with an attached video camera, and installed bright lighting that illuminated their backyards. They also claimed he was operating an illegal auto repair business at his residence.

Grey’s case was referred to Russell Bailey. He was a managing member of a consulting firm that contracted with the City to provide general municipal code enforcement services.

In March 2018, Bailey went to Grey’s residence and informed him that the fence violated the City’s code and needed to be corrected. Grey indicated he would not do so.

In April 2018, one of Grey’s neighbors reported him to the Los Angeles County Sheriff’s Department (“LASD”). The neighbor told Deputy Andrew ...

North Carolina Supreme Court: Defendant Can’t Be Convicted of Both Habitual Misdemeanor Assault and Felony Assault for Same Act

In November 2015, Fields and A.R. — a transgender woman — engaged in consensual sex. Afterward, while they were bathing, Fields seized A.R. by the hair, roughly grabbed and squeezed her genitals, and slammed her to the floor. As a result, A.R. needed 15 stitches to close the wound to her scrotum.

A jury convicted Fields of both misdemeanor assault and felony assault for his attack on A.R. Because Fields had stipulated to two prior misdemeanor assault convictions within the past 15 years, the superior court imposed a sentence of nine to 20 months for habitual misdemeanor assault and a consecutive sentence of 19 to 32 months for the felony assault. Fields appealed, arguing, inter alia, that he could not be convicted of both habitual misdemeanor assault and felony assault for the same act. The Court of Appeals agreed with Fields and vacated his habitual misdemeanor assault conviction. The North Carolina Supreme Court granted the State’s petition for discretionary review.

The Court observed that N.C.G.S. § 14-33(c)(1) (2019) (“misdemeanor ...

Medical Experts Publish Guidelines on SUDC

Unlike Sudden Infant Death Syndrome (“SIDS”), SUDC is the listed cause of death when a child age 12 months or older dies and the death cannot be explained after investigation and autopsy. And, unlike SIDS, SUDC is not usually part of the educational instruction received by pediatricians nor is it something medical examiners evaluate often enough to reach a comprehensive understanding.

The SUDC Foundation (“Foundation”) is the single organization dedicated to promoting research into SUDC. A grant from the Foundation paid for the development and publication of the first national consensus guidelines for SUDC.

“Unexplained Pediatric Deaths: Investigation, Certification, and Family Needs” was published in January 2020 by a panel of experts from over 30 contributors. The experts are from multiple disciplines, including medical examiners, pediatricians, and federal agency experts in fields such as death investigation, autopsy performance, neurology, child abuse, and many others.

A Canadian neuropathologist described the book as “amazing” and said, “Finally, practicing forensic pathologists have practice recommendations to follow, and achieve when ...

Tenth Circuit: District Court Plainly Erred in Giving Erroneous Constructive Possession of Firearm Instruction, Conviction Reversed

The U.S. Court of Appeals for the Tenth Circuit reversed Fernando Miguel Samora’s conviction for being a felon in possession of a firearm because the U.S. District Court for the District of Utah gave the jury an erroneous instruction on constructive possession.

In May 2017, Samora borrowed Maria Hernandez’s car and drove it alone to a restaurant. When Samora exited the restaurant and approached the vehicle, officers converged to arrest him on an outstanding warrant. After Samora was arrested, they searched the vehicle and found a loaded firearm inside the center console.

The Government charged him with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

At the ensuing trial, the Government’s DNA expert testified that (1) Samora contributed most of the DNA on the firearm, (2) Samora’s DNA was the major profile on the firearm, and (3) because of Samora’s DNA being the major profile, it was likely he had handled the gun at some point.

Hernandez testified that the firearm belonged to her, and she had placed it in the center console a couple of days before Samora borrowed the car. She testified she kept the firearm for home ...

Second Circuit: District Court’s Failure to Offer Explanation for Its Sentence Constitutes Plain Error

The U.S. Court of Appeals for the Second Circuit held that a district court’s failure to offer an explanation for its sentence was plain error in violation of 18 U.S.C. § 3553(c).

Gilberto Rosa pleaded guilty to conspiracy to commit wire fraud (Count One) and aggravated identity theft (Count 2) for his role in fraudulently obtaining auto loans. Under the plea agreement, Rosa was to pay $798,542.43 in restitution to his victims. After pleading guilty, Rosa continued defrauding people, and the Probation Office determined that altogether he fraudulently obtained $850,104.23. Based on Rosa’s post-plea conduct, the Probation Office’s Presentence Report (“PSR”) assigned him a three-level enhancement pursuant to § 3C1.3 of the Guidelines for a total offense level of 26.

But at the sentencing hearing, the parties and the district court agreed that § 3C1.3 does not apply. The district court adjusted Rosa’s offense level to 23, and his Sentencing Guidelines range for Count 1 became 51 to 63 months. The district court sentenced Rosa to the maximum 63 months’ imprisonment on Count One and an additional mandatory consecutive 24 months on Count Two for an aggregate sentence of 87 months’ imprisonment. The court also ordered $715,857.25 ...

Protecting Your Phone at Protests

* Be sure to set your phone to require a PIN or password. The courts have ruled that it doesn’t violate the constitution if the police force you to unlock your phone using your thumb, facial recognition, or other biometric. But police cannot compel you to reveal a password or PIN;

* Be sure to set your phone to require the PIN or password to unlock it before EACH use. After most phones are unlocked, they won’t require a PIN or password again until after a set time of inactivity. Unless the setting is changed to require a PIN or password before each use, anyone can access your information after you’ve unlocked it; ...

EFF Releases Database that Tracks Law Enforcement’s Use of High Tech Surveillance Gear

by Douglas Ankney

The Electronic Frontier Foundation (“EFF”) partnered with Reynolds School of Journalism at the University of Nevada-Reno (“RSJ”), to release for use by journalists, academics, and the general public a database containing thousands of data points on over 3,000 sheriff’s offices and police departments nationwide. The Atlas of ...



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