Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cr-00417-LTB

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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 RESPONSE TO DEFENDANT'S MOTION IN LIMINE TO EXCLUDE LT. PRIEST AS AN EXPERT IN CRIME SCENE RECONSTRUCTION, TRAJECTORY ANALYSIS AND BLOODSTAIN PATTERN ANALYSIS (#64)

The United States of America, by and through Joshua Stein, Assistant United States Attorney, hereby responds to defendant's Motion In Limine To Exclude Lt. Priest As An Expert In Crime Scene Reconstruction, Trajectory Analysis And Bloodstain Pattern Analysis (#64) as follows: I. Introduction The government intends to introduce at trial the expert testimony of Lt. Jonathyn Priest, the chief supervisory homicide detective of the Denver Police Department, to interpret the crime scene based on the totality of forensic evidence, to include location and nature of wounds to the victim, powder markings on the victim and clothing, location of shell casings, bloodstain evidence, and location and trajectory of bullet holes in the

Case 1:04-cr-00417-LTB

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furniture and building where the shooting took place. In other words, Lt. Priest will evaluate and reconstruct the crime scene based on his observations at the scene, the observations of other officers at the scene, photographs of the scene, and the forensic evidence introduced through other government expert witnesses, such as the coroner who autopsied the victim and ballistics experts who examined the shell casings left at the scene. Based on his synthesis of this disparate evidence, Lt. Priest will opine on possible and likely positions of the victim and defendant at different times during the incident. Defendant objects to the testimony of Lt. Priest on two bases: (1) Lt. Priest is not qualified to render an expert opinion in the areas of crime scene reconstruction, trajectory analysis, and bloodstain pattern analysis because of his lack of experience in such areas; and (2) such testimony is irrelevant. Defendant requests an evidentiary hearing on the issue of Lt. Priest's qualifications. However, contrary to defendant's assertions, Lt. Priest is eminently qualified by training and experience to opine in these subject matters. Furthermore, because it is defendant that chooses to raise a necessity defense, it is defendant that makes the testimony of Lt. Priest highly relevant. Finally, the Court need not hold an evidentiary hearing prior to trial. II. Qualifications of Lt. Priest Fed. R. Ev. 702 allows for the qualification of an expert witness on the basis of "knowledge, skill, experience, training, or education." Rule 702 provides for the liberal admission of expert testimony and "[t]he presumption under the Rules is that expert testimony is admissible." WEINSTEIN'S FEDERAL EVIDENCE § 702.02[1], p. 702-6 (2nd

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ed. 2005 update) citing inter alia Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 588 (1993) ("liberal thrust" to Federal Rules of Evidence with design to "relax[] the traditional barriers to opinion testimony"). More specifically, the standard for qualifying expert witnesses is liberal, both as to substantive and formal qualifications. WEINSTEIN'S FEDERAL EVIDENCE § 702.04[1][a], p. 702-46 (2nd ed. 2005 update). For example, it is an abuse of discretion for a trial court to exclude expert testimony solely on the ground that the witness is not qualified to render an opinion because the witness lacks expertise in certain specialized areas, where the witness has educational and experiential qualifications in a general field related to the subject matter of the issue in question. Id. at pp. 702-46 to -47, citing inter alia In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 75354 (3d Cir. 1994) (trial court should have allowed testimony of internist with broad experience in field of toxic substances who was familiar with PCB medical literature even though witness lacked expertise in some relevant specialized fields). The 70-page curriculum vitae of Lt. Priest is attached and it attests to the wealth of training and experience which Lt. Priest brings to bear on crime scene reconstruction and related areas. The government would highlight, inter alia, the following pertinent education and training: · Homicide Investigation and Management course which included crime scene reconstruction and bloodstain pattern interpretation. See Curriculum Vitae of Lt. Priest at p. 3. · Criminal Profiling of Homicide Suspects course with the FBI which included crime scene review and reconstruction. Id. at 6. · National Law Enforcement Institute course on crime scene investigation, including shootings. Id. at 7.

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· Colorado Sex Crimes Investigator Training, which included crime scene and bloodstain pattern interpretation. Id. at 9. · Practical Homicide Investigation course, which included crime scene reconstruction. Id. at 11. · Colorado Association of Sex Crimes Investigators course which included bloodstain pattern interpretation. Id. · New York State Police Academy course on homicide investigation which included crime scene reconstruction and bloodstain pattern interpretation. Id. · A 40-hour course dedicated solely to bloodstain pattern interpretation. Id. · Crime Scene Reconstruction, 40 hour course. Id. at 12. · Bloodstain Pattern Analysis, 40 hour course. Id. · Crime Scene Reconstruction, 40 hour course. Id. · Association for Crime Scene Reconstruction, 4-hour course on shooting scenes. Id. · Twenty-four hour course on crime scene reconstruction for "blood and bullet" scenes. Id. at 13. · Advanced Homicide and Forensic Death Investigation, 40-hour course including bloodstain pattern analysis. Id. · Certified Medical Examiners Program, resulting in certification as a medical investigator. Id. at 14, 22. · Advanced Bloodstain Pattern Analysis, 50-hour course including crime scene reconstruction. Id. at 14. · Forensic Shooting Scene Reconstruction, 40-hour course. Id. at 15. Lt. Priest has not only received extensive training and education in crime scene reconstruction, he has also been the trainer and educator of others. He has taught crime scene interpretation at the Denver Police Academy for 17 years. Id. at 23. He has taught a number of police departments on techniques associated with crime scene interpretation

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and reconstruction, including the Boulder, Lakewood, and Denver police departments. See, e.g., id. at 24, 25. He has taught in the FBI course Understanding Crime Scenes. Id. at 30. Overall, he has extensive experience as an instructor to a variety of lawenforcement professionals in crime scene reconstruction and related areas. See generally id. at 24-37. He has also authored an impressive number of training bulletins and other professional articles on related subjects. See generally id. at 42-45. Most importantly, in addition to his extensive training and instructing in these areas, Lt. Priest brings a wealth of professional experience with a law enforcement career that began in 1980. In his time with the Assault Unit, Internal Affairs, and Homicide Unit, Lt. Priest has spent approximately 15 years in positions where he has extensively investigated shootings and homicides. In his current position as the commander of the Crimes Against Persons Bureau, he oversees not only the Homicide Unit, but the Sex Crimes and Cold Case Investigations Units as well. He has been in this position for almost 6 years. Id. at 17-20. Specific to his expertise in this case, Lt. Priest has been qualified as an expert in crime scene reconstruction and given expert testimony in a variety of Colorado state courts in at least 12 cases, including the quadruple-homicide Best Bank case. Id. at 54-70.1 Conservatively estimated, he has prepared approximately 170 crime scene reconstructions, interpretations, and evaluations of homicides or shootings. Id at 54-70.

1

Specifically, id. at 55, 57, 58, 59, 60, 63, 64, 66.

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Should the Court not find Lt. Priest's curriculum vitae sufficient to decide the issue, the Court still need not hold an evidentiary hearing prior to trial. The decision of whether to hold an evidentiary hearing before trial, or to wait until the expert is tendered at trial, is within the sound discretion of the trial court. See United States v. Nichols, 169 F.3d 1255, 1262-1264 (10th Cir. 1999) (within trial court's discretion to deny defendant's motion for evidentiary hearing before trial and instead hear evidence related to expert witness in presence of jury in the course of trial). As in Nichols, defendant's challenge to the qualifications of the government's expert would be better litigated at trial, thus conserving the Court's resources and allowing the Court to evaluate defendant's objections in the context of the evidence received at trial. Accordingly, the Court should DENY defendant's Motion on the merits based on a challenge to the qualifications of Lt. Priest without an evidentiary hearing, or in the alternative, DENY the motion without prejudice and await trial to consider defendant's objections. III. Relevance of Testimony

In a perfunctory argument, defendant contends that the expert testimony of Lt. Priest to reconstruct the crime scene is not relevant because defendant is charged with unlawful possession of a firearm, not homicide. However, as defendant acknowledges, defendant intends to raise a necessity defense, in this context a more restricted variant of self-defense. This makes Lt. Priest's testimony decidedly relevant and helpful to the jury. Without Lt. Priest's testimony, as noted above, the jury will be confronted with a variety

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of forensic evidence from several witnesses. The testimony of Lt. Priest will synthesize this evidence into a coherent whole that allows for some possibilities in how the shooting occurred and excludes others. "Doubts about whether an expert's testimony will be useful should generally be resolved in favor of admissibility unless there are strong factors such as time or surprise favoring exclusions." Robinson v. Missouri Pacific R.R., 16 F.3d 1083, 1090 (10th Cir. 1994) (citing WEINSTEIN'S FEDERAL EVIDENCE; internal quotations omitted). Should the Court not find the briefs of the parties sufficient to decide the issue of relevance, the Court still need not hold an evidentiary hearing prior to trial. As noted above, the decision of whether to hold an evidentiary hearing before trial, or to wait until the expert is tendered at trial, is within the sound discretion of the trial court. Nichols, 169 F.3d at 1262-1264 (10th Cir. 1999). Particularly with an objection based on relevance, defendant's challenge to the government's expert would be better litigated at trial, thus conserving the Court's resources and allowing the Court to evaluate defendant's relevance objection in the context of the evidence received at trial.

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Accordingly, the Court should DENY defendant's Motion on the merits based on a challenge to the relevance of the testimony of Lt. Priest without an evidentiary hearing, or in the alternative, DENY the motion without prejudice and await trial to consider defendant's relevance objection.

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

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CERTIFICATE OF SERVICE I hereby certify that on this 17th day of January, 2006, I electronically filed the foregoing Government's Response To Defendant's Motion In Limine To Exclude Lt. Priest As An Expert In Crime Scene Reconstruction, Trajectory Analysis And Bloodstain Pattern Analysis (#64) 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