Free Response to Motion - 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 Action No. 00-cr-00531-WYD-1 UNITED STATES OF AMERICA, Plaintiff, v. 1. WILLIAM CONCEPCION SABLAN, Defendant.

GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION IN LIMINE TO EXCLUDE EVIDENCE OF POST-MORTEM INJURIES

The United States of America, by Troy A. Eid, United States Attorney for the District of Colorado, through Brenda Taylor and Philip A. Brimmer, Assistant United States Attorneys, responds as follows to defendant William Sablan's Motion in Limine to Exclude Evidence of Post-Mortem Injuries. 1. William Sablan's motion in limine seeks to preclude the government from introducing "any evidence of post-mortem injuries, specifically injuries to Joey Estrella's torso and abdomen including evidence of evisceration." Motion in Limine re PostMortem Injuries at 4. The motion is based on three claims: First, that the introduction of such evidence is not relevant. Second, that any relevance is outweighed by the danger of unfair prejudice. And third, that such evidence would unduly inflame the passions of the jury and therefore violate Due Process.

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2. Relevance ­ The defendant claims that evidence of wounds inflicted after Mr. Estrella's death are irrelevant to the cause of his death or any other material issue. Motion in Limine re Post-Mortem Injuries, ¶ 2. This assertion ignores the obvious ­ William Sablan's mutilation and evisceration of Mr. Estrella's body is highly relevant to the issues of his participation in the homicide and to his mental state at the time of the homicide. It is also direct proof of one of the statutory aggravators, namely, the heinous, cruel, and depraved manner of committing the offense. 18 U.S.C. § 3592(c)(6). a. Guilt Phase Relevance ­ Evidence of post-mortem injuries to Mr. Estrella's body have multiple layers of relevance. 1. First, the videotape taken through the cell window shows both defendants' behavior shortly after the homicide was committed. It is extraordinarily relevant evidence of William Sablan's state of mind at the time of the murder. "It is well settled that the conduct of an accused person following the commission of an alleged crime may be circumstantially relevant to prove both the commission of the acts charged to the accused and the intent and purpose with which those acts were committed." Rivers v. United States, 270 F.2d 435, 438 (9 th Cir. 1959) (photographs of dismemberment relevant to defendant's probable state of mind). See also United States v. Treas-Wilson, 3 F.3d 1406, 1410 (10 th Cir. 1993) (photographs that graphically depicted nature of the fatal wound were probative of defendant's state of mind). Such state of mind evidence bears directly on elements of First Degree Murder. For example, the government must prove

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that William Sablan committed the murder with "malice aforethought," meaning that he killed Mr. Estrella deliberately and intentionally. Evidence of William Sablan mutilating and abusing the body of Mr. Estrella demonstrates that his state of mind at the time was to deliberately kill Mr. Estrella by cutting open his neck just as he deliberately and intentionally eviscerated Mr. Estrella by cutting open his abdomen and pulling out organs. See, e.g., United States v. Soundingsides, 820 F.2d 1232, 1243 (10 th Cir. 1987) (autopsy photographs had considerable probative value on the issue of malice aforethought). Second, just as the videotape is relevant to show William Sablan's state of mind at the time of the homicide, so too are photographs and coroner findings related to the mutilation. This evidence is not duplicative or cumulative. The videotape was shot through a window that the defendants had smeared with blood. The photographs are not obstructed and show the condition of the body and the cell more clearly. The coroner examination of the abdomen and body parts will, among other things, demonstrate the effort and deliberation that William Sablan used to eviscerate the body, and is therefore relevant to proving the defendant's malice aforethought and deliberation in regard to cutting Mr. Estrella's neck. Third, William Sablan's actions in mutilating the body is relevant to the element of identification regarding the murder. The fact that the videotape shows William abusing the body and holding body parts is material to proving that he participated in cutting Mr. Estrella's neck.

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2. Another element of First Degree Murder is that the government must prove that William Sablan acted with premeditation, meaning that the murder was the result of planning or deliberation. Once again, the videotape taken through the cell window shows the defendant's state of mind. William Sablan's obvious planning and deliberation in mutilating Mr. Estrella's body and strewing his organs around the cell is reflective of his planning or deliberation in cutting Mr. Estrella's neck open as a means of causing his death. 3. The defendant is also belatedly attempting to endorse an expert in toxicology, Dr. Kathey Verdeal. Whether or not the Court allows this late endorsement, her endorsement reflects the fact that William Sablan will claim intoxication as a defense in this case. Voluntary intoxication is a defense to First Degree Murder. Thus, whether or not evidence of post-mortem injuries is relevant to First Degree Murder, William Sablan's behavior after the homicide is relevant to showing that he was not intoxicated. 4. The defendant has filed a Rule 12.2 notice indicating his intention to introduce expert evidence on the issue of both guilt and punishment. He has endorsed numerous witnesses who will suggest that William Sablan could not form the mental intent necessary to be guilty of First Degree Murder, e.g. that he could not deliberate. Evidence of post-mortem injuries is relevant to this issue because William Sablan's ability to systematically and methodically cut open Mr. Estrella's abdomen with a safety razor, pull out his organs, and then further abuse the body while being aware of the video

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camera demonstrates that William Sablan was fully capable of planning, deliberation, and intentionality. 5. Evidence of post-mortem injuries is also relevant to the issue of self-defense. The government anticipates that the defendant will request a self-defense instruction. On the videotape from the cell, William Sablan claims self-defense. Evidence of post-mortem injuries is relevant to this defense. The right to use self-defense is limited to using only as much force as reasonably necessary under the circumstances. 1.28, Pattern Jury Instructions, Criminal Cases, Tenth Circuit (2005). The videotape, photographs, and coroner evidence will show that the injuries to Mr. Estrella are not consistent with self-defense, but rather show that William Sablan did not limit his use of force to that which reasonably appeared necessary to fend off an assault. Instead, he not only deliberately cut open the victim's neck, but also used extreme violence in mutilating the body. These actions are not consistent with the reasonable use of force and hence are relevant to the issue of self-defense. b. Penalty Phase Relevance ­ The defendant's motion in limine does not mention the penalty phase, but the relevance of post-mortem injuries is obvious to several issues. First, William Sablan's mutilation of Mr. Estrella's body is the essence of one of the statutory aggravators in the Third Amended Notice of Intent to Seek the Death Penalty for William Concepcion Sablan, namely, the Heinous or Depraved Manner of Committing Offense. See 18 U.S.C. § 3592(c)(6). See also United States v. Ortiz, 315 F.3d 873, 897

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(8 th Cir. 2002) (graphic photographs of body were relevant to issue of `heinous and depraved'). Second, the jury must make a finding under 18 U.S.C. § 3591(a)(2) regarding intent during the penalty phase. Thus, all of the reasons cited above for the relevance of post-mortem injuries on the issue of state of mind are equally relevant during the penalty phase. Finally, evidence of post-mortem injuries is relevant to the issue of future dangerousness. The defendant's mutilation and abuse of the body shows a lack of remorse which bears on the issue of his future danger to other inmates and prison staff. 3. Danger of Unfair Prejudice and Due Process ­ The defendant acknowledges that the Tenth Circuit has held that "gruesomeness alone does not make photographs inadmissible." United States v. Naranjo, 710 F.2d 1465, 1468 (10 th Cir. 1983). However, the defendant claims that evidence of post-mortem injuries is shocking and will elicit an emotional response. That is not the test. As the Ninth Circuit noted in Rivers v. United States, 270 F.2d 435, 438 (9 th Cir. 1959), If the mere gruesomeness of the evidence were ground for its exclusion, then it would have to be said that the more gruesome the crime, the greater the difficulty of the prosecution in proving its case. In State v. Long, 195 Or. 81, 244 P.2d 1033, 1052, the court said: `The persistent assertion in criminal cases that the jury should not be permitted the benefit of relevant evidence because it is thought to be `gruesome' constitutes, in effect, an attack on the entire jury system. If a jury is incapable of performing its function without being improperly influenced by evidence having probative force, then the jury system is a failure. It is not a failure. Long experience convinces us of the ability and willingness of citizens called for jury duty to perform that duty with fidelity.' Here the jury will be presented with gruesome videotape images and photographs, but

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there is no reason to believe that the jury cannot perform its duties in a proper manner or that the relevance as such images is substantially outweighed by the images' probative value. As such, there are no Rule 403 issues and no violations of Due Process. WHEREFORE the United Stated requests that the Court deny William Sablan's Motion in Limine to Exclude Evidence of Post-Mortem Injuries.

Respectfully submitted this

28th

day of December, 2006.

TROY A. EID United States Attorney

BY: s/ Brenda K. Taylor BRENDA K. TAYLOR Assistant U.S. Attorney U.S. Attorney's Office 1225 17 th Street, Suite 700 Denver, Colorado 80202 Telephone (303)454-0100 FAX: (303) 454-0406 E-mail address: [email protected] Attorney for Government

BY: s/ Philip A. Brimmer PHILIP A. BRIMMER Assistant U.S. Attorney U.S. Attorney's Office 1225 17 th Street, Suite 700 Denver, Colorado 80202 Telephone (303)454-0100 FAX: (303) 454-0403 E-mail address: [email protected] Attorney for Government

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CERTIFICATE OF SERVICE I hereby certify that on this 28th day of December, 2006, I electronically filed the foregoing GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION IN LIMINE TO EXCLUDE EVIDENCE OF POST-MORTEM INJURIES with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:

Attorneys for William Sablan Patrick J. Burke [email protected] Nathan Dale Chambers [email protected] [email protected] Susan Lynn Foreman [email protected]

s/ Janet D. Zinser JANET D. ZINSER Supervisory Legal Assistant U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, CO 80202 Phone (303) 454-0100 Fax (303) 454-0403 E-mail address [email protected]

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