Free Motion in Limine - District Court of Colorado - Colorado

Case 1:04-cr-00417-LTB

Document 66

Filed 01/08/2006

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UNITED STATES DISTRICT COURT DISTRICT OF COLORADO Chief Judge Lewis T. Babcock Criminal Case No. 04-CR-417-LTB UNITED STATES OF AMERICA, Plaintiff, vs. CLEMMETH NEVELS Defendant. _______________________________________________________________________ DEFENSE 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 ________________________________________________________________________ Recognizing that this Honorable Court discourages counsel from filing Motions in Limine, counsel files this Motion in anticipation that this issue will be highly contested by the Government and to avoid unnecessary delay immediately before the trial. In addition, pursuant to Fed. R. Ev. 104(a), there are legal grounds for this Honorable Court to make a pretrial ruling on the admissibility of the evidence which is the subject of this Motion. The grounds for this Motion are as follows: 1. The Court is aware of the nature of the charges in this case, to wit:

Unlawful Possession of a Weapon by a Prohibited Person. The Court is similarly aware that there was a companion state court prosecution for First-Degree Murder which was dismissed without prejudice because of the federal case filing. It is anticipated that the state will re-file First-Degree Murder charges against Mr. Nevels after the completion of the federal case.

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2.

Defendant Nevels contends the fact that Mr. McLamb was killed is

irrelevant to the charges in this federal prosecution. Fed. R. Ev. 401. The issues present before this Court are: Was Mr. Nevels in possession of a weapon? Was he a prohibited person from being in possession of the weapon? If he did have possession of a weapon, was he justified in having possession of the weapon? The fact that Mr. McLamb died as a result of the conduct of Mr. Nevels is not relevant to the charges here. They are only relevant in the state prosecution because in that case, the charges concern the death of a person, unlike here. 3. Counsel anticipates the government will argue the fact Mr. McLamb died

is probative of the affirmative defense of necessity. However, the only fact probative of this affirmative defense is that Mr. McLamb himself was armed. The fact that Mr. Nevels killed him doesn't have bearing on the issue of whether Mr. Nevels was justified in being possession of a weapon. 4. Even if this Court were to find that it was relevant that Mr. McLamb died,

such evidence should be excluded under Fed. R. Ev. 403. Under this Rule, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. The unfair prejudice in admitting this evidence is three-fold. First, the fact that a person died is in and of itself prejudicial to Mr. Nevels. It is likely the jury would punish Mr. Nevels for his actions of killing Mr. McLamb rather than for the charges he faces in this federal prosecution. Second, the evidence of Mr. McLamb's death is prejudicial because there has been no finding that the killing was unlawful. Specifically, Mr. Nevels hasn't been convicted of any crime relating to the unlawful killing of Mr. McLamb. Third, since Mr. Nevels hasn't been convicted of murder or any

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lesser crime, admitting evidence that Mr. Nevels killed Mr. McLamb is impermissible character evidence pursuant to Fed. R. Ev 404. The impermissible character trait is that Mr. Nevels is a violent person because he killed Mr. McLamb. Violence is not a pertinent character trait in a weapons prosecution case. As such, it should be excluded. 5. The fact that Mr. McLamb died would only be pertinent should Mr.

Nevels be convicted of these charges. If this occurs, it may be proper for this Court to consider the fact that Mr. Nevels used a firearm to kill another person. 6. Mr. Nevels moves for a hearing on this Motion to be heard at the same

time as the other pending motions in this case.

DATED this 8th day of January, 2006

Respectfully submitted,

s/Dana M. Casper DANA M. CASPER Attorney for Defendant 600 S. Cherry Street, Suite 305 Denver, CO. 80246 (303) 321-5850

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

I hereby certify that on January 8, 2005, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected] [email protected] [email protected]

s/Dana M. Casper Dana M. Casper Attorney for Defendant 600 S. Cherry Street, Suite 305 Denver, CO. 80246 (303) 321-5850-phone (303) 321-5805-fax [email protected]

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