Free Motion to Alter Judgment - District Court of Colorado - Colorado

Case 1:04-cv-01235-WYD

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I N THE U NITED S TATES D ISTRICT C OURT F OR THE D ISTRICT OF C OLORADO Civil Action No. 04-cv-01235-WYD J ASON A LAN C APPELLI, Applicant, v. JOE ORTIZ, Executive Director, and T HE A TTORNEY G ENERAL FOR THE S TATE OF C OLORADO, Respondents. PETITIONER'S M OTION TO RECONSIDER P URSUANT TO R ULE 59, F EDERAL R ULES OF C IVIL P ROCEDURE, W ITH A LTERNATE R EQUEST FOR CERTIFICATE OF A PPEALABILITY Applicant, by and through Counsel, Paul Grant, submits PETITIONER'S M OTION TO RECONSIDER P URSUANT TO R ULE 59, F EDERAL R ULES OF C IVIL P ROCEDURE, W ITH A LTERNATE R EQUEST FOR CERTIFICATE OF A PPEALABILITY: 1. Pursuant to Rule 59, Fed. R.Civ.P., Petitioner Cappelli seeks

reconsideration of the Court's Order of February 28, 2007, requesting a hearing, or, alternatively, he seeks a Certificate of Appealability pursuant to 28 U.S.C. § 2253(c). 2. The District Court stated (without explaining) in its order that the trial

court's refusal to permit Petitioner Cappelli to inquire into the issue of the motivation of a witness to falsify his testimony was more an admissibility of evidence issue under Estelle v. McGuire, 502 U.S. 62, 72 (1991), rather than a constitutional issue (Cappelli contends it is a Confrontation Clause issue under Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), a case which holds that issues relating to the motive of a witness to shade their testimony to please the prosecution 1

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are issues involving the Sixth Amendment right to confront one's accusers). Estelle v. McGuire, supra, does not deal with a denial of confrontation and in no way limits Davis v. Alaska, supra. This right of confrontation becomes even more important when considered along with the fact that the City of Lakewood was facing a jury trial on 42 U.S.C. § 1983 claims before this Court in February of 2000, (97cv1914-WYD), when Cappelli went to trial, in a case in which the Lakewood defendants used this felony conviction to blunt damages. The Sixth Amendment right to confrontation includes the right to effective cross-examination of a witness as to his motives in testifying. See Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). "[T]he exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination." Id. at 316-17, 94 S.Ct. 1105; see also Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). "Whether the jury would have been influenced by any possible bias of Ms. Linker is pure speculation. Nonetheless, the jury was entitled to have the benefit of a full cross-examination as to her possible bias in order to determine what weight to give her testimony." See Davis, 415 U.S. at 317, 94 S.Ct. 1105; Alford v. United States, 282 U.S. 687, 693, 51 S.Ct. 218, 75 L.Ed. 624 (1931) (holding that where witness was in prosecutor's custody due to pending charges, petitioner was "entitled to show by cross-examination that his

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testimony was affected by fear or favor"); see also Davis, 415 U.S. at 318 n. 6, 94 S.Ct. 1105 (recognizing Alford involved a federal criminal trial, but noting constitutional dimension of the holding applies to state criminal convictions); Bui v. DiPaolo, 170 F.3d 232, 241-42 (1st Cir.1999) (stating petitioner's entitlement to cross-examine witnesses "increases in sensitivity in direct proportion to witness's importance" to state's case), petition for cert. filed (U.S. June 14, 1999) (No. 98-9840). "Thus, reviewing de novo, see Hatch, 58 F.3d at 1467, we conclude the trial court improperly curtailed cross-examination in violation of petitioner's right to confrontation." Jones v. Gibson, 206 F.3d 946, 956, 957 (10 th Cir. 2000). (Emphasis added.) 3. The Constitutional error is further compounded by the trial court's

refusal to permit the Defense to go forward to demonstrate that Rivers was subject to the prosecution's influence after the prosecutor had Cheryl Boller testify falsely that he was a model probationer. This was further compounded by the trial court

sustaining an objection in closing argument when Petitioner's Counsel argued that Rivers was facing prison if his deferred judgment was revoked by the prosecution. (Vol. V, p. 21) In the end, the trial court's refusal to permit the defense to inform the jury of River's actual status at the time of trial (a sex offender who had no defense against a possible revocation of his deferred judgment and a resulting prison sentence ­ Rivers had pled to a misdemeanor in the first year of the DJ&S (and this had been

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concealed from the defendant Cappelli) - if the prosecution chose to pursue revocation), allowed the prosecutor to mislead the jury in his rebuttal closing: And to the extent to which, if at all, each witness is either supported -- each witness is either supported or contradicted by other evidence in the case. And is the important evidence in this case supported by every witness that you heard? Every witness. And you heard this so-called sex offender. You heard his probation officer tell you that he had complied with his probation and that she did not at any time feel it was necessary to revoke that probation. Yes, he made a mistake, a big one, four years ago for which he has paid. But what has that got to do with what happened to him that night? What has that got to do with him coming in here in court? You saw how he reacted and answered questions. What has that got to do with anything? (Vol. V, P. 31, ll 5-17) The trial court thus permitted the prosecutor to give the jury the false impression of no motive to please the prosecution, by offering the [false] testimony of the probation officer (which the trial court's orders improperly prevented the Petitioner's Counsel from discrediting) to bolster the credibility of Rivers.1 Cappelli should have been allowed to show that Rivers had every reason to shade his testimony to please the prosecution and, thus, avoid revocation. 4. In finding that there were other witnesses whose testimony would

support a finding of guilt, the District Court has overlooked the fact that Rivers was

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In fact, the motive of the probation officer to conceal the actual status of Mr. Rivers further bolsters the Defense theory that the government's case was manipulated to gain advantage for the City of Lakewood in the civil action before this Court.

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the only witness to testify to property damage of $500 or more, and proof of that fact is necessary to make the crime of criminal mischief a felony under Colorado law, i.e., § 18-4-501, C OLORADO R EVISED S TATUTES. In fact, Rivers testified that he had an estimate of $1800 to replace all of the seats and upholstery, but that he took the $1,300 from his insurance carrier and detailed the car himself, rather than replacing anything; the $900.00 he testified the repair cost him included his claim for his own (undocumented) time to detail the vehicle. (Vol. III, p. 100). If the undocumented testimony of Rivers as to the measure of damages was not believed by the jury, then there was no evidentiary basis for more than a 24 month sentence (for misdemeanor criminal mischief) which would have been concurrent to the other Department of Corrections sentences, thus reducing Mr. Cappelli's Department of Corrections sentences by 12 years. 5. The court has in its Order overlooked that the other witnesses'

testimony was contradicted by physical evidence and that it was also inconsistent with River's testimony: A. On cross-examination, Lacey Turnbow admitted that there was

a bit more to the situation inside the video store than she related on direct. There were, in fact, at least two different movies with the title of "Ironman." (v3, p131) The movie which Turnbow retrieved for Cappelli did not match the box and was not properly filed. (v3, p132) Indeed, Cappelli had previously

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rented that movie and returned it after he discovered that it was with the wrong box. (v3, p132) He had returned to look for the movie that matched the box, which is what he wanted to rent in the first place, and this was the reason that he was sorting through the entire action section. (v3, p132) B. On direct examination, Lacey Turnbow testified that she and her

sister, who was visiting, followed Defendant out of the store. (v3, p112) Her recollection of the sequence of events differed from that of Rivers in a number of respects. According to Turnbow, Defendant went to his car, and had placed it in reverse, attempting to leave his parking spot, when the Rivers vehicle pulled up to the drop box, blocking Cappelli. (v3, p113) Rivers got out of his car. (v3, p113) Defendant became angry and began honking his horn. (v3, p113) He then came out of his car, walked up to Rivers, and kicked him in the chest. (v3, p113) Turnbow testified that she tried to break up the altercation. (v3, p114) She pushed Rivers back and yelled at Cappelli to leave. (v3, p114) She and Cappelli were in each other's faces, and both were screaming. (v3, p114) At some point, Cappelli landed two additional kicks on Rivers. (v3, p115) Cappelli then told her that he would kill her2 or kick her fat ass. (v3, p115) At this point, she became scared and went back into the store to call the

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Turnbow acknowledged at trial that she told police only about the threat to kick her, and not about the alleged threat to "kill" her. (v3, p133-134)

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police. (v3, p115) While she was inside, she observed Cappelli chasing Rivers and Aguirre around their car. (v3, p118) C. On cross-examination, Lacey Turnbow testified that Rivers was

illegally parked in a fire lane, and that, though Cappelli was still able to back out without hitting the other vehicle, it took some maneuvering to do so. (v3, p130) She acknowledged that one of her responsibilities in her job was to ensure that vehicles did not park in the fire lane, and that she never requested Rivers to move his car, because she assumed he would do so after he dropped off a movie. (v3, p129) D. According to Lacey Turnbow, while she was on the phone with

police, Cappelli completed pulling out of his parking spot and pulled forward in front of Rivers. (v3, p118) He then got out of his car, came up to Rivers on the sidewalk, and attempted to throw punches at him again. (v3, p119) He then went back to his car, obtained a can of motor oil, and returned to fling the oil all over the interior and exterior of Rivers' car. (v3, p119) He then went back to his car and drove away. (v3, p125) E. Charlotte Turnbow's testimony basically tracked that of her older

sister. The two of them had repeatedly discussed the incident together and Charlotte admitted, very frankly, that she had a clearer recollection of her sister recounting the events than she had of the events themselves. (v3, p39)

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6.

It is respectfully submitted that the Court's Order misapprehends Davis

v. Alaska, supra, and fails to take into account that River's testimony was the only testimony as to the value of the damages (necessary for a felony) and that his testimony on direct had concealed that he pocketed the money from a complete replacement estimate and detailed the car himself. W HEREFORE, the Court should revisit its ORDER DENYING 28 U.S.C. § 2254 APPLICATION (Docket # 0014) and grant a hearing on the Petition, or, in the alternative, the court should issue a Certificate of Appealability. Mr. Cappelli has made a substantial showing of the denial of a constitutional right, the Sixth Amendment right to confront his accusers. Mr. Cappelli has, therefore, satisfied the requirements of 28 U.S.C.S. § 2253(c)(2). Dated this 12 th day of March, 2007. Respectfully submitted, /s Paul Grant Paul Grant Counsel for Mr. Cappelli 6053 S. Quebec Street, # 101 Centennial CO 80111 303-771-1908

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Certificate of Mailing I hereby certify that the above PETITIONER'S M OTION TO RE CONSIDER P URSUANT TO R ULE 59, F EDERAL R ULES OF C IVIL P ROCEDURE, W ITH A LTERNATE R EQUEST FOR CERTIFICATION OF A PPEALABILITY was served upon the Respondents by placing a true and accurate copy of the document in the United States Mail, postage prepaid, on the 13 th day of March, 2007, addressed to: Laurie A. Booras First Assistant Attorney General 1525 Sherman Street, 5 th Floor Denver CO 80203

/s Paul Grant

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