Free Response - District Court of Arizona - Arizona

1 JON M. SANDS Federal Public Defender 2 850 W. Adams, Ste 201 Phoenix, Arizona 85007 3 Telephone: 602-382-2700 4 DAVID LEE TITTERINGTON State Bar # 006500 5 Asst. Federal Public Defender [email protected] 6 Attorney for Defendant 7 8 9 10 11 12 13 14 15 vs. William Domingo, Defendant. William Kevin Domingo, through undersigned counsel, respectfully United States of America, Plaintiff, No. CR-04-1100-PHX-DGC RESPONSE TO GOVERNMENT'S MOTION IN LIMINE (Oral Argument Requested) IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

16 submits the following response to the government's motion in limine to preclude 17 evidence of prior criminal histories of government witnesses. 18 19 20 21 22 23 24 25 26 27 28 s/ David Lee Titterington DAVID LEE TITTERINGTON Assistant Federal Public Defender Respectfully submitted: April 4, 2006. JON M. SANDS Federal Public Defender

Case 2:04-cr-01100-DGC

Document 77

Filed 04/04/2006

Page 1 of 6

1 2 I. 3 Introduction.

Memorandum William Kevin Domingo is charged with 10 counts resulting from a

4 shooting at his residence, which is located in Laveen on the west end of the Gila 5 River Indian Community. During the shooting both Mr. Domingo and his friend 6 Theopholis James were shot twice. Mr. Domingo survived, but Mr. James died. 7 Government witnesses include Russell Blackwater Sr., Lawrence Samuel 8 Kisto, Lisa Pablo, and Hubert Evans. All four of these people had been visiting Mr. 9 Domingo on the night of Sunday, January 12, 2003. During the visit, Mr. Domingo 10 and Mr. Kisto began arguing. They went outside to finish the argument, after Mr. 11 Domingo said that they should "take it outside." At the end of the argument, Mr. 12 James lay dead on the ground. Mr. Domingo struggled back into his trailer and 13 telephoned for help. The four visitors sped off in their pickup truck. 14 The four government witnesses contend that after they left Mr. 15 Domingo's residence, they discovered that Mr. Evans had also been shot. They did 16 not take Mr. Evans to a hospital where he could receive medical attention for his 17 wound. Instead, they traveled to Perry Park, near 32nd Street and Virgina in Phoenix, 18 where they left Mr. Evans. They then drove to a Dunkin' Donuts shop near 40th 19 Street and Thomas, where they used a pay phone to call the Phoenix police. During 20 this anonymous phone call, they reported to the Phoenix police that there was a 21 gunshot victim at Perry Park. 22 Mr. Evans was eventually found by Phoenix police at Perry Park, and 23 taken to the Maricopa Medical Center. Mr. Evans reported to the police that he had 24 been shot at Perry Park by a Hispanic male who drove by the park in a white vehicle. 25 He told the police that he could not identify the man who shot him. 26 The three remaining government witnesses drove through the town of 27 Gilbert toward east end of the Gila River Indian Community. They stopped on a dirt 28 road off of Gilbert Road near the intersection of the Hunt Highway and Arizona 2
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1 Route 87. There, Mr. Kisto hid a .40-caliber Glock semi-automatic handgun under 2 some brush. After they had hidden the gun, the three remaining witnesses drove to 3 Mr. Blackwater's residence, which is located in Sacaton on the east end of the Gila 4 River Indian Community. There, they picked up some belongings of Mr. Kisto and 5 Ms. Pablo, and then they drove to Phoenix again. Mr. Blackwater dropped Mr. Kisto 6 and Ms. Pablo off near 3rd Street and Portland in Phoenix, where they lived. Mr. 7 Blackwater then returned home. 8 9 15, 2006. The four government witnesses did not report to the police until January By then, Mr. Blackwater had heard that Mr. Domingo had been

10 hospitalized, and Mr. James had died. Mr. Blackwater determined that the four 11 government witnesses must tell their side of the story to the police. He went to 12 Phoenix to gather up Mr. Kisto and Ms. Pablo, and took them to the Gila River Police 13 Department to make their reports. Mr. Evans did not go with them because he was 14 still in the hospital. 15 Basically, the four government witnesses contended that Mr. Domingo 16 had started the confrontation by shooting a handgun at them. They contended that 17 Mr. Evans and Mr. Kisto both shot a handgun, but only in self-defense. Although 18 neither Mr. Evans nor Mr. Kisto admit to aiming the handgun at Mr. Domingo or Mr. 19 James, it is apparent that one of them did shoot both Mr. Domingo and Mr. James. 20 They contend, however, that they acted in self-defense because Mr. Domingo had 21 started the shootout. 22 II. 23 24 25 26 27 28 The Prior Criminal Histories of the Four Government Witnesses Are Relevant To Disprove the Theory of the Government's Case. In United States v. Crosby, 57 F.3d 875 (9th Cir. 1995), the Ninth Circuit stated that "`[f]undamental standards of relevancy . . . require the admission of testimony which tends to prove that a person other than the defendant committed the crime that is charged.'" Id. at 1347. The defendant, as well as the government, may invoke the provisions of Rule 404(b), Federal Rules of Evidence. United States v.

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1 Perkins, 937 F.2d 1397, 1400 (9th Cir. 1991); United States v. McCourt, 925 F.2d 2 1229, 1230-36 (9th Cir. 1991). In this case, the government's theory is that Mr. 3 Domingo shot Mr. Evans, thereby precipitating a confrontation that resulted in Mr. 4 Kisto shooting both Mr. Domingo and Mr. James. The evidence the government 5 seeks to exclude would be relevant to show that Mr. Kisto and/or Mr. Evans are liable 6 for the death of Mr. James, and that they did not act in self defense, as they claim. 7 9 The prior criminal histories of Mr. Kisto and Mr. Evans are relevant and First, Mr. Kisto has a lengthy history of domestic violence, most all of 8 admissible in at least two ways. 10 which is directed at Ms. Pablo, who is his girlfriend and the mother of his children. 11 In United States v. Tsinnijinnie, 91 F.3d 1285 (9th Cir. 1996), the Ninth Circuit held 12 that the government could introduce evidence of prior incidents of abuse of the victim 13 by the defendant because it was not introduced to prove criminal propensity, but to 14 show why the victim would not readily complain about the defendant's actions. Id. 15 at 1289. On several occasions, Mr. Domingo has been charged with domestic 16 violence or aggravated assault against Ms. Pablo. One charge resulted in a conviction 17 for aggravated assault, and Mr. Kisto went to prison. On several other occasions, 18 however, Ms. Pablo was a reluctant witness, as many victims of domestic violence 19 often are. On those other occasions, because of her reluctance to testify against Mr. 20 Kisto, the charges did not result in convictions. It is apparent, however, that this 21 history of domestic violence is relevant to show bias on the part of Ms. Pablo. She 22 has frequently been the victim of domestic violence at Mr. Kisto's hands, and is a 23 reluctant witness against him as a result. As a result, the history of domestic violence 24 is relevant to establish Ms. Pablo's bias, and to attack her credibility when she 25 testifies about how Mr. Kisto acted only in self defense. 26 Second, Mr. Kisto and Mr. Evans both have a long history of charges Rule 404(b), Federal Rules of 27 involving violence and weapons misconduct.

28 Evidence, is a rule of inclusion which admits evidence of other crimes or acts relevant 4
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1 to an issue in the trial, except where it tends to prove only criminal disposition. 2 United States v. Sangrey, 586 F.3d 1312, 1314 (9th Cir. 1978). The history of 3 violence and weapons possession by Mr. Kisto and Mr. Evans is relevant and 4 admissible under Rule 404(b), Federal Rules of Evidence, on the issue of their intent, 5 specifically to show that Mr. Kisto and Mr. Evans were not acting in self-defense 6 when they shot Mr. Domingo and Mr. James. 7 For example, in United States v. Haukaas, 172 F.3d 542 (8th Cir. 1999), 8 the Eighth Circuit ruled that the government could admit testimony of a prior assault 9 with a knife in a prosecution for two counts of assault with a knife. The court 10 reasoned that the prior assault was relevant and admissible on the issue of intent, 11 specifically to show absence of mistake or accident, and to rebut his claim of self 12 defense. Id. at 544. Likewise, in United States v. Weddell, 890 F.2d 106 (8th Cir. 13 1989), the Eighth Circuit also held that evidence of the defendant's practice of 14 carrying and using knives was admissible, specifically because the defendant had 15 claimed self-defense and denied any intent to kill the victim. Id. at 107-08. 16 Finally, the prior arrest of Mr. Blackwater Sr. just 12 days before the 17 shooting is relevant to his motive and credibility in this case. On New Year's Eve, 18 2002, Mr. Blackwater Sr. was arrested after shots were fired at his residence, 19 allegedly in celebration of the New Year. Mr. Blackwater was arrested as an 20 accessory to misuse of firearms. That evening, although two other persons were 21 arrested for possession of a 9 mm handgun, an SKS rifle, and a .32 caliber revolver, 22 Mr. Blackwater was arrested by Gila River police "for party to the offense by 23 allowing persons with weapons into his backyard to discharge weapons for New 24 Year's Eve celebrations, placing other persons at risk.." This is specifically related 25 to Mr. Blackwater Sr.'s motivation for coming forward with information about the 26 shooting three days after Mr. Domingo and Mr. James had been shot. Based upon his 27 prior experience, only days earlier, Mr. Blackwater Sr. knew that he could be held 28 liable for allowing someone else to misuse firearms, thereby putting other people in 5
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1 danger. Obviously, it reflects on his desire to come forward and to report a version 2 of events that reflects positively on him. Even by his own admission, he decided to 3 come forward only after hearing that Mr. Domingo had been shot and Mr. James had 4 been killed. 5 III. 6 8 9 10 11 12 13 14 Copy of the foregoing transmitted by CM/ECF for filing this 4th day 15 of April, 2006, to: 16 Clerk's Office United States District Court 17 Sandra Day O'Connor Courthouse 401 W. Washington 18 Phoenix, Arizona 85003 19 Tom Simon Assistant U.S. Attorney 20 United States Attorney's Office Two Renaissance Square 21 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 22 Copy mailed to: 23 William Domingo 24 Defendant 25 s/ Kathy A. Kruckeberg 26 Kathy A. Kruckeberg 27 28 6
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Conclusion. For the above stated reasons, the government's motion in limine should be Respectfully submitted: April 4, 2006. JON M. SANDS Federal Public Defender s/ David Lee Titterington DAVID LEE TITTERINGTON Assistant Federal Public Defender

7 denied.