Free Motion for Miscellaneous Relief - District Court of Colorado - Colorado

Case 1:04-cr-00417-LTB

Document 65

Filed 01/08/2006

Page 1 of 4

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 RESPONSE TO GOVERNMENT'S FED. R. EV.404(B) NOTICE ________________________________________________________________________ The defendant Clemmeth Nevels objects to the admission of any evidence that Mr. Nevels and Mr. McLamb were in the same gang and shared common tattoos of that gang and moves this Court to exclude any evidence or reference thereto. The grounds for this are as follows: The defense acknowledges the facts in the Government's Notice are generally accurate, although not complete. According to the police, Mr. Nevels made statements suggesting that the person whom he'd shot was an intruder, a stranger, someone not known to him. However, Mr. Nevels told officers that this person had a gun and he made this statement in the same sentence. Specifically, according to Officer Markell's report, when Mr. Nevels was asked what was going on, he told her that he had called and there was an "intruder on the couch with a gun." Further, when asked who the intruder was, Mr. Nevels said "I don't know, but he's probably still in there with a gun. You better call for back up."

Case 1:04-cr-00417-LTB

Document 65

Filed 01/08/2006

Page 2 of 4

The government intends to show these statements were false and in order to demonstrate that to the jury, they want to introduce they knew each other because they were in the same gang. However, the fact that Mr. Nevels and Mr. McLamb knew each other is not in dispute and will be directly refuted by the government's primary witness Rose Burton. Ms. Burton will testify that Mr. Nevels and Mr. McLamb were good friends, that they hung out together regularly and that they'd known each other for 12-15 years. This information is contained in the discovery provided to the defense by the government. This is the evidence which will impeach the credibility of Mr. Nevels' statements he made to the police when initially contacted after the shooting. Further, this is evidence which the government will argue undermines Mr. Nevels' necessity defense. If the Court employs the balancing test as required by Fed. R. Ev. 403, the introduction of gang affiliation in these circumstances should be excluded because the probative value is substantially outweighed by the danger of unfair prejudice to Mr. Nevels. The cases cited by the government are distinguishable to the facts involved in Mr. Nevels' case and thus are not dispositive of the issues before this Court. In the United States v. Thomas 86 F.3d 647 (1996) case, gang affiliation was permitted to show a conspiracy and drug enterprise existed between defendants in a drug case in order to show they acted together to commit crimes. In United States v. Brown, 200 F.3d 700 (1999), the court permitted evidence of common gang ties between co-defendants and between the co-defendants and a witness in order to show motive and bias between them. The intent to offer "gang affiliation" between Mr. Nevels and Mr. McLamb is nothing more than at attempt to inflame the jury and prejudice Mr. Nevels' right to a fair trial. A limiting jury instructing will not cure the prejudicial impact to Mr. Nevels

Case 1:04-cr-00417-LTB

Document 65

Filed 01/08/2006

Page 3 of 4

should the Court admit evidence that he and Mr. McLamb were gang associates. There is no such thing as a "small" street gang as the government portrays in its Notice. The word "gang" to a common juror means violence, crime, danger and guns. There is no remedy this Court can employ that can address the inherent prejudicial impact of the word "gang". Importantly, the government doesn't need this evidence and can show the relationship between Mr. Nevels and Mr. McLamb by alternative, non-prejudicial means. Based on the foregoing, the defense moves this Court for an Order prohibiting the Government from introducing any evidence that Mr. Nevels and Mr. McLamb were in the same gang or that they had the same or similar gang tattoos. DATED this 7th 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

Case 1:04-cr-00417-LTB

Document 65

Filed 01/08/2006

Page 4 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

I hereby certify that on January 7, 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]