Free Supplement - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Criminal Case No. 00-cr-00531-WYD UNITED STATES OF AMERICA, Plaintiff, v. RUDY CABRERA SABLAN, et al. Defendant. ______________________________________________________________________________ SUPPLEMENTAL MEMORANDUM IN SUPPORT OF RUDY SABLAN'S MOTION IN LIMINE TO ADMIT EVIDENCE OF WILLIAM SABLAN'S MENTAL CONDITIONS (Docket #257) ______________________________________________________________________________ Rudy Sablan filed a motion in August 2001 seeking to admit evidence of his codefendant's mental conditions. (Docket #257) Even in those early stages of the proceedings, it was apparent that William Sablan had significant mental health issues and that his mental state was an integral part of the events leading to Mr. Estrella's death and subsequent events depicted on the cell video. Since the motion was filed, the landscape of this case has changed significantly. William Sablan was found incompetent to proceed and was transferred to a medical facility for several months. The defendants were severed for trial. Evidence presented at William's trial confirmed that William's mental conditions defined his actions during the confrontation with Mr. Estrella. In October, 2007, William's medical records were released to counsel for Rudy Sablan. One of the witnesses in William's trial was Dr. David Lovejoy, a neuropsychologist. Dr. Lovejoy reviewed medical records and reports regarding William from many sources, including

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Dr. Herbel of the BOP. He testified that William has three primary conditions and he is inextricably tied to these conditions. These conditions "define on a day-in and day-out basis how William will react in particular situations." The mental conditions are: 1. 2. 3. Dementia due to traumatic injury and frontal-lobe syndrome; Psychotic disorder NOS; and Posttraumatic Stress Disorder.

These three are "one big mental health condition." "They define William." He calls this a "classic triad." "PTSD traumatic brain injury, particularly involving the frontal lobes of the brain and psychosis with paranoia have been defined classically in the literature as risk factors for impulsive aggression." (P. 5893-94.) The frontal lobes, damaged in William, serves as "the brakes for behavior." They "provide that protected time and space to say, you know what, this looks like a bad idea, I'm not going to do this." It is also important for good judgment, reasoning and planning ahead. ". . . [D]epending on what the environment throws at you, depending on how those environmental factors intermix with someone's neurologic damage, that's when we have what we often refer to as a perfect storm." People who suffer from PTSD are on edge. They are "constantly expecting threatening situations. . . ." (P. 5905-07.) In 1997 and 1998, Dr. Post "recognized that William was psychotic." In 2001, Dr. Poch did psychological testing. The "profile that Dr. Poch reported on was consistent with psychosis." In 2004 and 2005, Dr. Herbel, with BOP did an evaluation and "his diagnosis was psychotic disorder, NOS." In 2006, Dr. Morgan "notes in his report as well that William suffers from psychosis. . . . "

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Dr. Lovejoy testified that after the death of his daughter and near the time of his head injuries William "started to display some symptoms that were alarming to me from a psychiatric perspective." William was talking to himself, seeing people who weren't there, and worried that people were coming after him trying to kill him. There was probably a "break with reality" as far back as 1995. (P. 5923.) Our environment is important. "The more stressful an environment, the more psychotic someone may seem." William suffers from false beliefs. They guide his behavior because he believed they were real. The psychosis "distorts William's reality, and it raises his perception of threat." (P. 5928.) The entire testimony of Dr. Lovejoy on March 29, 2007, is incorporated by reference. It provides a compelling summary of William's serious mental conditions. In the penalty phase of William's trial, eight jurors found, as a mitigating factor, that "William Sablan committed the offense under a severe mental and emotional disturbance." (Mitigating Factor No. 5.) LEGAL FRAMEWORK FOR THE RELEVANCY OF THE EVIDENCE Rudy Sablan is charged as an aider and abettor under 18 U.S.C. 2. To convict Mr. Sablan under this statute, the government must first prove, beyond a reasonable doubt, that someone (William, according to the government) committed first-degree murder. United States v. Rodgers, 419 F.2d 1315, 1317 (10th Cir. 1969). The government must also prove that Rudy "shared the criminal intent or purpose of the perpetrators and that he knowingly assisted them in the accomplishment of that purpose." United States v. Barfield, 447 F.2d 85, 88 (5th Cir. 1971) (reversing a conviction as an aider and abettor on insufficiency of evidence).

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This principle alone requires the admission of evidence regarding William's mental conditions. His mental state at the time of the offense is relevant to the threshold question of whether William committed first-degree murder. This case involves issues of self-defense, premeditation, intoxication and mental capacity. The mutilation of the body is clearly a product of mental illness and any inferences to be drawn from those acts must be drawn carefully and with informed consideration of William's severe mental conditions which "define how William will react . . . in particular situations." If the government proves the threshold issue that another person committed first-degree murder, it must prove four additional elements to convict a defendant as an aider and abettor under 18 U.S.C. 2: 1. 2. 3. 4. the specific intent to facilitate the commission of a crime by another; guilty knowledge; that an offense was being committed by someone, and; the defendant assisted or participated in the commission of the offense.

United States v. Salamanca, 990 F.2d 629, 638 (D.C. Cir. 1993). Aiders and abettors "must possess the same criminal intent as the principals." Id., emphasis added. William's intent, influenced if not controlled by his mental conditions, is pivotal to Rudy's defense. In United States v. Salamanca, supra, Hector Salamanca was present when his brother Jose viciously attacked a police officer, causing serious injuries. On appeal, Hector argued that the evidence was insufficient as a matter of law to sustain his conviction as an aider and abettor. The government argued that Hector was present and aware of what Jose was doing to the officer. The Court of Appeals noted, however, that "it is well settled that mere presence at the scene of a

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crime and awareness that a crime is being committed is insufficient to support a conviction for aiding and abetting." Id. The court found Hector's contention dispositive, ". . . that he did not know it was going to take place and did nothing to encourage or facilitate it while it was taking place. There is no evidence in this case that Hector had any advance knowledge of Jose's intention to assault officer Culver." Id. The government in Salamanca, as it does in Rudy Sablan's case, argued that Hector's actions after the attack support an inference that he intended to assist or participate in the attack itself. Hector helped Jose to flee the scene, attempted to conceal evidence and eluded the police. After the assault, he told Jose, "Let's go." The Court of Appeals was not deceived by this argument: "A person cannot be found guilty of aiding and abetting a crime that has already been committed." Id., at 639 (citations omitted). The court reversed Hector's conviction for aiding and abetting. See also Sanders/Miller v. Logan, 710 F.2d 645 (10th Cir. 1983) (reversing murder conviction as aider and abettor where evidence did not show, beyond a reasonable doubt, that defendant had knowledge of the intent of the principal to kill the victim). In Rudy Sablan's case, the government must show that he knew William intended to kill Mr. Estrella at the time he "assisted" William under the government's theory. The intent of a mentally compromised, perhaps delusional ("I saw my daughter Mae just like that when I kill the Mexican . . .") (10/20/99 letter) person would have been rather difficult for Rudy Sablan to discern, unaware of William's mental condition. Rudy is entitled to an informed jury with knowledge of all the facts necessary to fairly and reliably evaluate the evidence. This issue reaches to the elements of the offense.

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RULES OF EVIDENCE The Court really does not need to go beyond F.R.E. 401 and 402. This evidence is relevant as explained above and in the letter report from Dr. Lovejoy. Relevant evidence is admissible. In the original motion, Rudy Sablan noted that this evidence was admissible as part of the res gestae. Whether this evidence is called res gestae, background evidence, intrinsic evidence or something else, it is something the jury must know to fairly decide the case. In United States v. Roberts, 548 F.2d 665, 667 (6th Cir. 1977), the court ruled that evidence that the defendants were inmates of an FCI on a work release program at the time of a bank robbery was admissible. The court's reasoning, while not attributed to any particular legal theory, is logical, reasonable and applicable to the analysis of William Sablan's mental health issues: "The jury is entitled to know the `setting' of a case. It cannot be expected to make its decision in a void without knowledge of the time, place and circumstances of the acts which form the basis of the charge." (Emphasis added.) In United States v. Masters, 622 F2d 83 (4th Cir. 1980), the defendant moved to suppress ". . . all discussions between the parties leading up to a purchase and sale of a firearm and to confine the parts of the taped conversations admitted to the simple purchase and sale itself." The court held that the discussion leading up to the purchase was relevant and admissible. It was "so much a part of the setting of the case and its environment that its proof [was] appropriate in order to complete the story of the crime on trial by proving its immediate context or the res gestae . . ." id., at 86.

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Evidence can also provide a "background" for other testimony. In this case the mental health evidence is background evidence for the evaluation of William Sablan's statements on the government's DVD, as well as his letter to his mother and his uncle. The United States Court of Appeals for the Tenth Circuit recently upheld the admissibility of evidence considered res gestae. This evidence is admissible, the court said, ". . . to complete the story of the crime. . . ." United States v. Lee-Clark, 2007 WL 4290497 (10th Cir. 12/7/07), at p. 5. As this Court recently noted in United States v. French, 2007 WL 2908412 (D. Colo. 2007), evidence which is "intrinsic" to the charged offense and "part and parcel" of the offense, is admissible and is not subject to an F.R.E. 404(b) analysis. Evidence of William Sablan's mental conditions are "necessary preliminaries to the crime charged." It is so inextricably intertwined with death of Mr. Estrella that "testimony concerning the charges would [be] confusing and incomplete . . ." without it (p. 1). The attached letter report from Dr. Lovejoy confirms the relevance and importance of the mental health evidence. "If the jury is to fairly and reliably evaluate the events surrounding Joey Estrella's death . . . they must understand William Sablan's unique blend of neurologic and psychiatric conditions and their potential contribution to impairments in his thinking, emotional functioning, and behavior." This pivotal evidence must not be kept from the jury. It provides necessary context to the confrontation between Mr. Estrella and William. It provides necessary context to William's statements and actions on the DVD. If the Court admits the letter to William's mother, it provides the context for William's admissions. It has a "tendency" (F.R.E. 401) to make it more probable that William killed Mr. Estrella; more probable that his extreme

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reactions were more the product of mental issues than premeditation; more probable that his acts were impulsive and unpredictable by Rudy Sablan; more probable that Rudy did not share the same "intent" as William; and more probable that the manifestations of William's mental conditions influenced Rudy's behavior after the killing. "When mentally ill persons exhibit extreme behavior it can influence the behavior of those around them. The likelihood of this would be particularly true in close confined places such as a prison cell where there is no ability to escape." (Lovejoy letter report.) The jurors must be careful and informed in evaluating the inferences the government would have them draw from Rudy's conduct on the DVD. The jury cannot reliably consider this evidence without the context and background of William's mental conditions. WHEREFORE, Rudy Sablan requests an order granting his Motion In Limine to Admit Evidence of William Sablan's Mental Conditions.

Respectfully submitted, s/ Forrest W. Lewis Forrest W. Lewis FORREST W. LEWIS, P.C. 1600 Broadway, Suite 1525 Denver, Colorado 80202 Telephone: (303) 830-2190 Facsimile: (303) 830-1466 E-mail: [email protected] Attorneys for Defendant Rudy Sablan s/Donald R. Knight Donald R. Knight KNIGHT & MOSES, LLC 7852 S. Elati Street, Suite 201 Littleton, Colorado 80120 Telephone: (303) 797-1645 Facsimile: (303) 730-0858 E-mail: [email protected]

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CERTIFICATE OF SERVICE I hereby certify that the foregoing SUPPLEMENTAL MEMORANDUM IN SUPPORT OF RUDY SABLAN'S MOTION IN LIMINE TO ADMIT EVIDENCE OF WILLIAM SABLAN'S MENTAL CONDITIONS (Docket #257) was electronically filed with the Clerk of the Court using the CM/ECF system on this 21st day of December, 2007, which will send notification of such filing to the to the following e-mail addresses:

Brenda Taylor [email protected] Philip Brimmer [email protected]

s/Polly Ashley

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