Free Motion in Limine - District Court of Colorado - Colorado

Case 1:04-cr-00417-LTB

Document 64

Filed 01/08/2006

Page 1 of 6

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 MOTION IN LIMINE TO EXCLUDE LEUTENANT J.W. PRIEST AS AN EXPERT IN THE FIELDS OF CRIME SCENE RECONSTRUCTION; TRAJECTORY ANALYSIS AND BLOODSTAIN PATTERN ANALYSIS ________________________________________________________________________

Defendant Clemmeth Nevels, through counsel Dana M. Casper, moves this Honorable Court to exclude Lt. J.W. Priest from rendering expert testimony as an expert in the fields of Crime Scene Reconstruction, Trajectory Analysis and Bloodstain Pattern Analysis. The grounds for this are two-fold: First, that this witness is not qualified based on his education and experience, to render opinions in these areas. Second, that even if this Court was to find this witness so qualified, that his testimony is irrelevant to the charges before the Court, which involves the Unlawful Possession of a Firearm by a Prohibited Person. II. Admissibility of Expert Testimony The admissibility of expert testimony is governed by Federal Rule of Evidence Rule 702, and the Supreme Court cases of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786 (June 28, 1993); remanded to 43 F. 3d 1311 (January 4, 1995);

Case 1:04-cr-00417-LTB

Document 64

Filed 01/08/2006

Page 2 of 6

cert. denied 516 U.S. 869 (October 2, 1995) and Kumho Tire Company v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167 (March 23, 1999). The Daubert court recognized that Fed. R. Ev. 702 governed expert testimony and that this Rule superseded the Frye "general acceptance" test for admissibility of scientific evidence. Fed. R. Ev. 702 provides: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify in the form of an opinion or otherwise." Fed. R. Ev. 702. Under this Rule, the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. Daubert, 113 S. Ct. at 2795. The Supreme Court's Daubert decision interpreted Fed. R. Ev. 702 as imposing a duty upon federal judges to perform a "gate-keeping" function to satisfy themselves that scientific evidence meets certain standards of reliability before it is admitted. Daubert, 113 S. Ct. at 2798. This is the first prong of the two-part analysis. The next step required judges to determine the relevancy of the proffered evidence, that is, whether the testimony will assist the jury to understand the evidence or determine a fact in issue. Fed. R. Ev. 702; Daubert, 113 S. Ct. at 2795. The Daubert case concerned the admissibility of "scientific" expert testimony, specifically, whether expert testimony was admissible to establish a causal relationship between the drug Bendectin and birth defects. The Daubert court also listed factors that may be helpful to judges when determining the reliability of scientific expert testimony. For example, "one important consideration in determining admissibility of expert scientific testimony is whether experts are proposing to testify about matters growing

Case 1:04-cr-00417-LTB

Document 64

Filed 01/08/2006

Page 3 of 6

naturally and directly out of research they have conducted independent of litigation, or whether they have developed their opinions expressly for purposes of testifying." Daubert, 43 F.3d at 1317. Another factor is whether the underlying scientific principles which are the basis for the expert opinion are based on sound science. Daubert, 113 S. Ct. at 2795. The case of Kumho Tire held that Daubert's "gatekeeping" obligation, requiring an inquiry into both relevance and reliability, applies not only to "scientific" testimony, but also to testimony based on "technical" and "other specialized" knowledge. Kumho Tire, 119 S. Ct. at 1171. Further, the Court in Kumho Tire recognized that the factors listed by the Daubert Court weren't the only factors Courts could consider in determining the reliability of expert testimony. Because the test of reliability of expert testimony is "flexible", Daubert's list of factors neither necessarily nor exclusively apply to all experts in every case. Kumho Tire, 119 S. Ct. at 1171. III. Proposed Expert Not Qualified to Render Opinions In Fields of Crime Scene Reconstruction, Trajectory Analysis and Blood Stain Pattern Analysis It is counsel's understanding that Lt. Priest will be asked to render expert opinions in the fields of Crime Scene Reconstruction, Trajectory Analysis, and Bloodstain Pattern Analysis; as any opinion regarding reconstruction of a crime involving a firearm, necessarily includes expert opinions about the direction and path of the bullet shots and the bloodstain patterns. From Lt. Priest's report, it appears that Lt. Priest will be asked to give an opinion as to the most probable sequence of events that occurred during the commission of the homicide; specifically, how the homicide occurred. Lt. Priest is a law enforcement officer with the Denver Police Department.

Case 1:04-cr-00417-LTB

Document 64

Filed 01/08/2006

Page 4 of 6

Counsel acknowledges that Lt. Priest has vast experience with homicide cases in his capacity as patrol officer, homicide detective, Sergeant and Lieutenant. Undoubtedly, Lt. Priest has expertise in all the investigative aspects of a homicide, including how to process a crime scene. Lt. Priest has expertise in the following areas: how to secure a crime scene; preserve a crime scene; find the evidence; mark evidence; record evidence; preserve the evidence; secure weapons; collect the evidence; video a crime scene; clear the scene; find witnesses; interview witnesses; interrogate suspects; and "manage" the case from start through a trial. However, his law enforcement experience with homicide cases does not mean he is qualified to render expert opinions concerning how a crime happened, i.e. a Crime Scene Reconstruction Expert. Nor does his law enforcement experience equate to giving expert opinions on bullet paths and trajectories and analyzing blood stain patterns. The Court would need to conduct an evidentiary hearing on the issue of whether the government's proposed expert was qualified to render any expert opinions in this case. Counsel would be requesting such an evidentiary hearing. IV. Expert Opinion Irrelevant in Unlawful Possession of Weapons Case Even if the Court were to find Lt. Priest qualified to render expert opinions in any or all the fields mentioned herein, it is the defense position that these expert opinions are not probative to any material fact at issue in the charges Mr. Nevels faces in this case. As set forth above, the second "gate-keeping" function of the Court, is to determine whether the expert testimony will be helpful to the jury to determine a material fact which is at issue in the case. Mr. Nevels isn't charged with homicide, the unlawful killing of Terrell McLamb. He is charged with possessing a gun illegally. He is charged

Case 1:04-cr-00417-LTB

Document 64

Filed 01/08/2006

Page 5 of 6

with unlawful possession of the weapon used to inflict wounds to Mr. McLamb; there are no charges stemming from a second gun found at the crime scene. The government's theory of their case is that Mr. Nevels unlawfully possessed a weapon in the weeks prior to the homicide and unlawfully possessed it at and immediately before the shooting. As the Court is aware, the necessity defense will likely be raised by the evidence. The pertinent fact to the necessity defense is that there was a second weapon found at the scene in the hands/on the body of Terrell McLamb. Thus, expert testimony on Crime Scene Reconstruction/Trajectory Analysis/Bloodstain Pattern Analysis is irrelevant to the present case. V. Conclusion Based on the foregoing, the Defense moves to exclude any expert testimony from Lt. J.W. Priest. The defense moves for an evidentiary hearing on the issues raised in this motion. 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 64

Filed 01/08/2006

Page 6 of 6

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]