Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01235-WYD

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01235-WYD JASON ALAN CAPPELLI, Applicant, v. JOE ORTIZ, Executive Director, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents. RESPONDENT'S RESPONSE TO MOTION TO RECONSIDER PURSUANT TO RULE 59, FEDERAL RULES OF CIVIL PROCEDURE Respondents respond to Petitioner's Motion to Reconsider Pursuant to Rule 59, Federal Rules of Civil Procedure, as follows: 1. Petitioner Cappelli complains that this Court incorrectly characterized his claim as one of exclusion of evidence rather than a denial of his right to confrontation under Davis v. Alaska, 415 U.S. 308 (1974). However, this Court correctly construed the claim. 2. Cappelli's federal habeas corpus application asserted that, while he was permitted to show that prosecution witness Rivers was under supervision as a sex offender, he was not permitted to ask Rivers's probation officer (Cheryl Boller)

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whether he had violated his supervision by engaging in "street peddling" and whether she had filed a motion to revoke the probation, in order to rebut her testimony on cross-examination that Rivers had been an exemplary probationer. 3. Boller was not a prosecution witness. Cappelli had called her in order to establish that Rivers had a motive to fabricate certain portions of his testimony. Bollers testified that if Rivers had assaulted someone or had given false information to a police officer, that his probation could be terminated (Exhibit A, p. 15). Thus, Cappelli was able to impeach the bias or motive of Rivers in compliance with Davis v. Alaska. 4. To the extent that Cappelli now complains that he was not able to impeach his own witness's testimony (Boller), he does not make a Confrontation Clause claim. See Richmond v. Embry, 122 F.3d 866, 871 (10th Cir. 1997) (where defendant attempted to introduce impeachment evidence through his own witness, claim was properly characterized as a denial of the right to present evidence and not as a denial of the right to confrontation); United States v. Bales, 813 F.2d 1289, 1296 (4th Cir. 1987) (distinguishing between excluding defendant's own witness and confronting a witness against him in assessing claim of violation of the Sixth Amendment right to confrontation).

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5. In contrast, in Davis v. Alaska, 415 U.S. 308 (1974), the defendant was precluded from cross-examining a key prosecution witness about the witness's adjudication as a juvenile delinquent and his probation status at the time of the events as to which he was to testify. Here, this Court properly construed Cappelli's federal habeas corpus claim as one of exclusion of evidence under Estelle v. McGuire, 502 U.S. 62 (1991). 6. Moreover, because Cappelli was permitted to cross-examine both Rivers and Boller, he was not denied his right to confrontation. The Colorado court excluded the evidence that Cappelli wished to elicit as being irrelevant (Exhibit B, pp. 9-10, citing v. 4, p. 196; Exhibit C, p. 5). Restriction of cross-examination on relevancy grounds does not violate a defendant's right to confrontation. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (trial judges do not violate the Confrontation Clause by imposing reasonable limits on cross-examination based on concerns about harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant); see also Bui v. DiPaolo, 170 F.3d 232, 242 (1st Cir. 1999), cited by Cappelli. 7. Cappelli also criticizes this Court's observation that additional impeachment of Rivers would not have affected the credibility of other prosecution witnesses on the basis that the testimony of these witnesses was "contradicted by
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physical evidence and was also inconsistent with Rivers's testimony" (Rule 59 motion at p. 5). However, the testimony of the other prosecution witnesses was a matter of credibility for Cappelli's initial jury to decide. WHEREFORE, Respondents respectfully request that Petitioner's motion be denied.

JOHN W. SUTHERS Attorney General s/ Laurie A. Booras LAURIE A. BOORAS, 19648* First Assistant Attorney General Appellate Division Criminal Justice Section Attorneys for Respondents 1525 Sherman Street, 7th Floor Denver, Colorado 80203 D.C. Box No. 20 Telephone: (303) 866-5785 FAX: (303) 866-3955

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CERTIFICATE OF SERVICE

I hereby certify that on this _14th___ day of March, 2007, I electronically filed the above RESPONDENT'S RESPONSE TO MOTION TO RECONSIDER PURSUANT TO RULE 59, FEDERAL RULES OF CIVIL PROCEDURE with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:

[email protected] [email protected] s/ Laurie A. Booras ___________________

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