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 (i) REPLY TO DEFENDANT'S RESPONSE TO GOVERNMENT'S 404(B) NOTICE (#65); AND (ii) RESPONSE TO DEFENDANT'S SECOND MOTION IN LIMINE TO EXCLUDE EVIDENCE THAT MR. MCLAMB DIED AS RESULT OF ACTIONS OF DEFENDANT AND REGARDING PENDING HOMICIDE CASE IN STATE COURT (#66)

The United States of America, by and through Joshua Stein, Assistant United States Attorney, hereby replies to defendant's Response to Government's 404(b) Notice (#65), and responds to defendant's Second Motion In Limine To Exclude Evidence That Mr. McLamb Died As Result Of Actions Of Defendant, And Regarding Pending Homicide Case In State Court (#66) as follows: I. Defendant's Response to Government's 404(b) Notice (#65) Defendant objects to the introduction of the common gang affiliation of himself and the victim by the government to show the falsity of defendant's statements at the time of arrest that he did not know, and could not describe, the person whom he killed. Defendant's main contention seems to be that such evidence has little probative value because another government witness, Rose Burton, will testify that the defendant and victim were well acquainted. Defendant's Response at *2. Defendant seems to indicate that he will not dispute this evidence.

Case 1:04-cr-00417-LTB

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See Defendant's Response at *2 ("the fact that [defendant and victim] knew each other is not in dispute"). However, Ms. Burton is also expected to testify that defendant had possessed the firearm used as the murder weapon for at least two months prior to the shooting. Accordingly, the government expects defendant to vigorously cross-examine Ms. Burton and to undermine her credibility. Furthermore, regardless of defendant's implicit assertion, the government has no assurance that defendant will not contest Ms. Burton's testimony as to the relationship between defendant and victim. Finally, even if defendant were not to attack Ms. Burton's testimony specifically as to the relationship between defendant and victim, the vigorous cross-examination of Ms. Burton, if effective, may leave the jury doubting all of her testimony as a general matter. As stated more fully in the government's Rule 404(b) Notice, unless defendant takes the stand, virtually the entire evidence of defendant's necessity defense will be defendant's self-serving hearsay at the time of his arrest that he shot an armed and unknown intruder in his home out of self-defense. The government should be able to refute defendant's necessity defense ­ and his self-serving hearsay in support thereof ­ with evidence that directly contradicts his statements. A unanimous Supreme Court upheld the introduction of far more prejudicial common gang affiliation in United States v. Abel, 469 U.S. 45 (1984). In Abel, defendant called a fellow inmate to impeach the testimony of a co-defendant cooperating with the prosecution. The government put on evidence of both defendant's and his fellow inmate's membership in "a secret type of prison organization" (the Aryan Brotherhood) whose creed required its members to "lie, cheat, steal, [and] kill" for the gang. Id. at 47-8. The Court held that this detailed exposition of the common gang affiliation of defendant and his witness was proper impeachment by showing the possible bias of the defense witness in favor of defendant. Id. at 49-52. Because this evidence was impeachment of the witness, the Court held that it was probative and did not run

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afoul of Rule 403, overturned the court of appeals, and upheld the admission of the evidence by the district court. Id. at 53-55. Notably, in the instant case the government seeks only to introduce that defendant and victim were members of the same gang, corroborated by matching tattoos, and the government does not seek to introduce any specific prejudicial information concerning the gang itself or the activities of its members. Following Abel, the Tenth Circuit upheld the introduction of common gang membership in United States v. Keys, 899 F.2d 983 (1990). The Keys court found that the gang membership in this case was not properly admitted to show bias of a witness because there was no showing that the witness and defendant were in the same gang. Id. at 986-87. The court implied that the common gang membership would have been admissible for impeachment had the foundation of been laid that they were members of the same gang. Id. However, even without that foundation, the evidence of gang membership was properly admitted to show possible bias due to fear on the part of a witness. Id. at 987. In conducting the balancing test under Rule 403, the Keys court emphasized that "[c]redibility was crucial to resolution of this case." Id. Similarly, in the instant case, the credibility of defendant's hearsay statements at the scene that he shot the victim in selfdefense are crucial to resolving defendant's necessity defense. II. Defendant's Second Motion In Limine To Exclude Evidence That Mr. McLamb Died As Result Of Actions Of Defendant And Regarding Pending Homicide Case In State Court (#66) Defendant seeks to preclude admission of evidence that the victim died from gunshots fired by defendant, allegedly in self-defense, claiming that such evidence is not probative under Rule 401. However, the victim's death is inextricably intertwined with the evidence regarding the charged offense and thus admissible. United States v. O=Brien, 131 F.3d 1428, 1432 (10th Cir. 1997). Officers responding to the scene moved items of evidence, including the gun by the

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victim's body and the victim's body itself. Paramedics responded to the scene to transport the victim, after which homicide detectives and investigators documented the crime scene. Most importantly, the forensics evidence will include the testimony of the coroner who autopsied the victim. Her testimony, and the accompanying photographs, such as the location of defendant's gunshot wounds, both entry and exit, is highly probative of what happened and thus defendant's necessity defense. Especially given that the only two witnesses to the shooting are either dead or have a Fifth Amendment right to not testify, the testimony of the coroner is a critical component of the government's case. Defendant contends that evidence related to the death of the victim is not probative because defendant is not charged with homicide but with being a felon in possession of a firearm. It is defendant who raises the necessity defense, thus making the issue of the lawfulness of the killing of the victim the central disputed issue of the case. Defendant further contends that evidence of the victim's death is unduly prejudicial under Rule 403. "Relevant evidence is inherently prejudicial; but it is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter under Rule 403." United States v. Naranjo, 710 F.2d 1465, 1469 (10th Cir. 1983) (case involving gruesome photographs). In performing the balancing test required by Rule 403, a trial court should "give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value." Deters v. Equifax Credit Information Services, Inc., 202 F.3d 1262, 1274 (10th Cir. 2000). Application of Rule 403 must be cautious and sparing. Naranjo, 710 F.2d at 1469. The standard required to exclude relevant evidence under Rule 403 is high. United States v. Dornhofer, 859 F.2d 1195, 1199 (4th Cir. 1988). The possibility of prejudicial effect can "require exclusion only in those instances where the trial judge believes that there is a genuine risk that the emotions of the jury will be excited to irrational behavior, and that this risk is

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disproportionate to the probative value of the offered evidence." Id. The appropriate practice is to give the jury a limiting instruction that prejudice is not to influence their verdict. Naranjo, 710 F.2d at 1469. Defendant's summary conclusion to the contrary, there is no basis to believe that the evidence is unfairly prejudicial. Defendant's necessity claim in essence is a claim that he had to shoot the victim to prevent his own serious injury or death. Should the jury believe defendant's claim of necessity, the victim's death would unfortunate but the shooting deserved ­ there would be no prejudice at all because the shooting would be justified in the first instance.

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 13th day of January, 2006, I electronically filed the foregoing Government's Response to Defendant's Motions (# 65, 66) 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 nonCM/ECF participants in the manner (mail, hand delivery, etc.) indicated by the non-participant'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