Free Trial Brief - District Court of Colorado - Colorado

Case 1:04-cr-00417-LTB

Document 88

Filed 02/17/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Case No. 04-cr-00417-LTB-1 UNITED STATES OF AMERICA, Plaintiff, v. 1. CLEMMETH D. NEVELS, Defendant.

GOVERNMENT'S TRIAL BRIEF

The United States of America, by and through Joshua Stein, Assistant United States Attorney, hereby files this Trial Brief: I. Sequestration of Witnesses The government intends to designate Joel Humphrey, a homicide detective with the Denver Police Department who was the investigating officer on this case, as its advisory witness pursuant to Fed. R. Ev. 615(2). Det. Humphrey will remain at the table with government counsel throughout the trial. The government also seeks to designate ATF Special Agent Rebecca Sauerhaft as a person whose presence in court is essential to the presentation of the government's case, pursuant to Rule 615(3). Agent Sauerhaft will not be playing an advisory role; she will not sit at counsel table. Logistical reasons, primarily the coordination of witnesses

Case 1:04-cr-00417-LTB

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and the handling of evidence, require her presence in court (with some comings and goings) throughout the trial. Due to recent retirements, the government no longer has a victim/witness coordinator and Agent Sauerhaft will perform that role, marshalling witnesses to ensure the smooth flow of trial. Furthermore, the evidence will be lodged at the ATF office across from the courthouse and Agent Sauerhaft will be bringing the evidence to and from court, including transporting firearms and ammunition into the courthouse in compliance with the Marshal's procedures, as well as maintaining custody of the evidence. Whether to allow more than one case agent under Rule 615(2) or 615(3) is vested in the sound discretion of the trial court and will not be overturned absent a showing of prejudice. United States v. Hickman, 151 F.3d 446, 453 (5th Cir. 1998), vacated on other grounds 179 F.3d 230 (1999) (en banc). Where two case agents will testify in different subject matters, there is no prejudice if both, rather than just one, remains in the courtroom. Id. at 454. Courts often allow the government to have two case agents under Rule 615(2) or allow an additional agent to be present for logistical or other reasons under Rule 615(3). See, e.g., United States v. Alvarado, 647 F.2d 537, (5th Cir. 1981) (upholding presence of two DEA case agents at counsel table under both 615(2) and 615(3)); United States v. Cooper, 283 F.Supp.2d 1215, 1226 (D. Kan. 2003) (allowing two case agents because both necessary to, inter alia, "coordinate travel and appearance of witnesses"). The primary purpose of sequestration under Rule 615 is to prevent a witness from tailoring her testimony, consciously or unconsciously, due to the testimony of other

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witnesses. Weinstein's, § 615.02[1] at pp. 615-5 to 615-6. Agent Sauerhaft's testimony is quite limited, primarily authenticating some of the documentary and recording exhibits. Agent Sauerhaft did interview Rose Burton and Rose Burton completed a written statement at that time. The government therefore would suggest the sequestration of Agent Sauerhaft during the testimony of Ms. Burton as a precautionary measure. So long as Agent Sauerhaft is sequestered during the testimony of Rose Burton, the purposes underlying the Rule will be upheld. Allowing Agent Sauerhaft to come and go in the courtroom as necessary during the testimony of witnesses other than Rose Burton will facilitate a smooth and efficient trial, while her sequestration during the testimony of Ms. Burton will prevent any possible prejudice to defendant.

II. Defendant's Statements Pursuant to the Court's Checklist for Trial, which suggests flagging evidentiary issues by way of trial brief, the government raises the issue of the manner in which defendant's statements may be introduced at trial and possible impeachment thereof. A. The Statements Defendant made 6 discrete sets of statements: (1) 911 Calls: Defendant engaged in two calls with 911 shortly after shooting the victim. Defendant asks for the police to come to his house , but he refused to identify himself or the reason for his request.

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(2) Initial On-the-Scene Statements: When officers Markell and Michael, both women, arrived as the first officers on the scene, defendant was standing outside, next to a car across the street from his residence, where he shot the victim. In a calm manner, defendant initially made a number of statements in response to questions from the officers, including that there was an intruder in the house, he did not know and could not describe the intruder, and the house belonged to him and his girlfriend. Becoming agitated, he said that he "did what he had to do". Defendant later became hostile and verbally abusive to the two officers, screaming at them to get the "real cops" since female officers could not handle the situation. Defendant was then patted down, handcuffed, and seated on the ground. (3) Later On-the-Scene Statements: Defendant was placed in the back of a patrol car. He was later brought out of the patrol car so that his hands could be bagged to preserve any traces of gunshot residue. Defendant spontaneously told officers Waidler and Sharla inter alia that he was the shooter, there would be gunpowder on his hands, and he did what he had to do. When Ofc. Waidler attempted to read defendant his rights, defendant talked over the officer, stating "I know my rights, blah, blah, blah". (4) Initial Stationhouse Statements: At police headquarters, after being advised of his rights, defendant told Sgt. Fetrow that he had to do it, he was not going to let somebody break into his house, and he "probably did you guys a favor". (5) Later Stationhouse Interview: Later, Det. Humphrey again advised defendant of his rights. Defendant requested an attorney and the detective ended the interview. As defendant was being secured back in his cell, he asked why the paper bags were on his

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hands, to which Det. Humphrey replied that it was to test for gunshot residue. Defendant stated that he shot the victim and there would be gunshot residue on his hands. He then asked, "What would you do if someone pointed a gun at you?" He made a number of statements to the detective, including that he did what he had to do and "it happened so fast". (6) Recorded Prison Calls: Defendant has made a number of statements to his girlfriend Rose Burton and to others in recorded phone calls made by him while incarcerated pending trial. B. Admissibility & Impeachment There are 6 discrete set of statements made by defendant. The government, of course, may introduce none, some, or all of the statements for their truth as non-hearsay. Fed. R. Evid. 801(d)(2)(A).1 Should the government introduce a portion of a recorded call, then the Court may order that additional portions of the same call necessary to put the conversation into context be played at the same time. See Rule 106; Weinstein's Federal Evidence, § 106.02[2] at p. 106-11 (2nd ed. 2005 update). While Rule 106 pertains only to recorded or written statements, should the government introduce some of defendant's oral statements from one discrete set of statements, then the Court has discretion under Rule 611(a) to require the witness "to provide additional parts of the conversation when the additional information is necessary to put the portions of the

Admission of defendant's statements would still be subject to objections based on relevancy and authenticity. The government is flagging hearsay issues, and related order of proof and impeachment issues, for the Court in this trial brief.

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conversation already in evidence into context or to `paint the complete of picture.'" Weinstein's, § 611.02[2][a] at pp. 611-12 to 611-12.1. Notably, Rules 106 and 611(a) establish a rule of completeness only for the particular conversation introduced by the government. Introduction of one discrete set of statements by the government does not allow defendant to introduce his other sets of statements ­ each set of statements was made at different times, at different places, in different circumstances, to different people. The government concedes that introduction of defendant's statements by the government directly, or as required by the Court under Rules 106 and 611(a), does not allow the government to impeach defendant pursuant to Rules 806 and 609. For defendant himself to introduce any particular set of his hearsay statements, he must first lay a foundation for an exception under Rule 803. Should defendant successfully introduce his hearsay statements, the government will seek to impeach defendant with his prior convictions pursuant to Rules 806 and 609. See also Weinstein's, § 806.04[2][b] at p. 806-12 ("A defendant who chooses not to testify but who succeeds in getting his or her own exculpatory statements into evidence runs the risk of having those statements impeached by felony convictions"). If applicable, the government will also seek to impeach defendant with his other inconsistent statements, such as the recorded prison calls, and to introduce them for their truth, pursuant to Rules 806, 613, and 801(d)(2)(A). See also Weinstein's, § 806.05 at pp. 806-13 to 806-14

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("defendant who offers his or her own exculpatory statements, including hearsay, puts his or her credibility in issue" and government may impeach). 2
Respectfully submitted,

WILLIAM J. LEONE United States Attorney

By: s/ Joshua Gramling Stein JOSHUA GRAMLING STEIN Assistant United States Attorney U.S. Attorney's Office 1225 17th St., Suite 700 Denver, CO 80202 Telephone: (303) 454-0100 Fax: (303) 454-0403 Email: [email protected] Attorney for the United States

The recorded prison calls between Rose Burton (defendant's girlfriend) and defendant may also be used for impeachment of Ms. Burton to show bias. In a number of calls, defendant and Ms. Burton express their affection for each other, they discuss her future testimony at trial, and Ms. Burton expresses a desire not to testify and a fear that her previous statements will result in defendant's conviction even though she gave those statements to exculpate him. Thus, the calls (and Ms. Burton's statements therein) are admissible to show bias of the part of Ms. Burton. See Weinstein's, § 607.04[1] at pp. 607-20 to 607-21 (bias always relevant and party may introduce extrinsic evidence) and § 607.04[5] at pp. 607-37 to 607-39 (relationship between party and witness always relevant to show bias).

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Case 1:04-cr-00417-LTB

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CERTIFICATE OF SERVICE I hereby certify that on this 17th day of February, 2006, I electronically filed the foregoing GOVERNMENT'S TRIAL BRIEF with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addressed:
·

Dana M. Casper [email protected]

and I hereby certify that I have mailed or served the document or paper to the following non- CM/ECF participants in the manner (mail, hand delivery, etc.) indicated by the nonparticipant's name: None

s/ Joshua Gramling Stein JOSHUA GRAMLING STEIN Assistant United States Attorney U.S. Attorney's Office 1225 17th St., Suite 700 Denver, CO 80202 Telephone: (303) 454-0100 Fax: (303) 454-0403 Email: [email protected] Attorney for the United States

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