Free Motion in Limine - District Court of Colorado - Colorado

Case 1:04-cv-00053-WYD-MJW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-53-WYD-MJW BONNIE WINCHESTER, Plaintiff, v. BRIAN COUSINEAU, THOMAS BEACH, JAMES COLE, TROY NICHOLSON, RANDALL PICKREL, DAN ALLEY, MILES KUBLY, and GAIL CONNER, Defendants. ______________________________________________________________________________ DEFENDANTS' MOTIONS IN LIMINE ______________________________________________________________________________ Defendants, BRIAN COUSINEAU, THOMAS BEACH, JAMES COLE, TROY NICHOLSON, RANDALL PICKREL, DAN ALLEY, MILES KUBLY, and GAIL CONNER, by their attorney, ERIC M. ZIPORIN, ESQ., hereby submit the following motions in limine to preclude or limit certain testimony and/or evidence at trial as follows: I. CERTIFICATE OF CONFERRAL Pursuant to D.C.COLO.LCivR 7.1(A), undersigned counsel conferred with counsel for Plaintiff prior to the filing of this motion. Counsel for Plaintiff has indicated that his client objects to the relief requested herein.

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II. INTRODUCTION A five day jury trial is set to commence on January 23, 2006. The following combined Motions in Limine request the exclusion of trial evidence and testimony with regard to the claims for relief asserted against Defendants in this case. Specifically, Defendants seek the preclusion of testimony and evidence relating to the following: (1) any disciplinary history during any of the Defendants' prior employment or employment with the City of Englewood; (2) the nature of any citizen complaints lodged against any of the Defendants during those same time frames; and (3) any other lawsuits that any of the Defendants were alleged to have violated a citizen's civil rights. As noted below, any evidence or testimony in this regard is inadmissible pursuant to

Rules 401, 403, and 404(b) of the Federal Rules of Evidence. III. FACTUAL BACKGROUND On July 3, 2002, both police officers from the Englewood Police Department (hereinafter "Police Defendants") and members of the Englewood Fire Department (hereinafter "Fire Defendants") received a dispatch of a possible suicide/overdose at 3690 South Fox Street, apartment 205. Defendants Brian Cousineau (hereinafter "Cousineau") and Thomas Beach

(hereinafter "Beach"), both police officers with the Englewood Police Department, were on routine patrol at the time of the dispatch. Defendant James Cole (hereinafter "Cole"), a police officer, was at the police department at the time of the dispatch. Cole was provided information that the reporting party, a "Jerry," was in the lobby of the Englewood Police Department using the after-hours telephone to contact dispatch.1

The after-hours telephone is located directly adjacent to the Records Department. During after-hours, there are no employees present within the Records Department or in the lobby of the police department.

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Upon responding to the lobby to locate the reporting party, Cole discovered that the lobby was empty and assumed that Jerry had left the building. Cole did a search of the immediate area, was unable to make contact with the reporting party, and then responded to the residence. Cousineau and Beach arrived at Plaintiff's residence, pounded on the door, and announced their presence in a loud voice. Cousineau contacted dispatch and requested that dispatch

telephone the residence as well as attempt to locate an on-site manager of the apartment complex. Dispatch told Cousineau that there was not a telephone number for the residence, and that there was no on-site manager. Upon the Fire Defendants arriving, Defendants Gail Conner (hereinafter "Conner"), Troy Nicholson (hereinafter "Nicholson"), and Randall Pickrel (hereinafter "Pickrel") went up to the residence and were briefed by Cousineau and Beach. The Fire Defendants decided to enter the residence in order to provide medical assistance. Defendant Dan Alley (hereinafter "Alley"), a member of the Fire Department, knocked on the door at least two times, announced his presence in a loud voice, and then pried the door open. For the safety of everyone involved, Cousineau and Beach entered the residence with their guns drawn and yelled, "Police!" A woman, later identified as Plaintiff, came out of the back hallway and was told to put her hands up in the air and to walk toward the officers. Conner, as the medic, immediately made contact with Plaintiff and told her to sit down. Plaintiff began to calm down and indicated that she was okay and that she had not taken any drugs. Conner checked Plaintiff's vitals, which appeared to be normal, and the decision was made not to take Plaintiff to the hospital. Some who had entered began to look around the apartment for empty pill bottles in order to confirm (or call into question) the report of an overdose. Plaintiff was

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informed of the report of a possible suicide/overdose and the reason behind the entry. Before leaving, Alley and Nicholson put Plaintiff's door back together as best they could. Plaintiff thanked the Fire Defendants as they left her residence. IV. CLAIMS FOR RELIEF Plaintiff's sole claim, her First Claim for Relief, is brought pursuant to 42 U.S.C. § 1983 and alleges that Defendants illegally entered and searched her residence in violation of her Fourth Amendment rights. V. LEGAL AUTHORITY The burden is upon the proponent of evidence to show its admissibility. Aetna Life Ins. Co. v. Kern-Bauer, 62 F.2d 477, 479 (10th Cir. 1933). Pursuant to Rule 401 of the Federal Rules of Evidence, "relevant" evidence "means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Rule 403 of the Federal Rules of Evidence states that "relevant evidence may be excluded `if its probative value is substantially outweighed by the danger of unfair prejudice.'" Phillips v. Hillcrest Medical Center, 244 F.3d 790, 800 (10th Cir.

2001); FED. R. EVID. 403. "The district court has `broad discretion to determine whether prejudice inherent in otherwise relevant evidence outweighs its probative value.'" United States v. Magleby, 241 F.3d 1306, 1315 (10th Cir. 2001) (citing United States v. Youts, 229 F.3d 1312, 1319 (10th Cir.2000)). "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." FED. R. EVID. 404(b). However, such evidence may be admissible to establish "proof of motive, opportunity, intent, preparation, plan,

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knowledge, identity, or absence of mistake or accident ..." Id. Evidence of other crimes, wrongs, or acts is properly admitted under Rule 404(b) if four requirements are met: (1) the evidence was offered for a proper purpose under Fed. R. Evid. 404(b); (2) the evidence was relevant under Fed. R. Evid. 401; (3) the probative value of the evidence was not substantially outweighed by its potential for unfair prejudice under Fed. R. Evid. 403; and (4) the district court, upon request, instructed the jury pursuant to Fed. R. Evid. 105 to consider the evidence only for the purpose for which it was admitted. See, United States v. Becker, 230 F.3d 1224, 1232 (10th Cir. 2000) (referring to Huddleston v. United States, 485 U.S. 681, 691-92, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988)). Such requirements have been referred to by the courts as the "Huddleston" analysis. VI. ARGUMENT A. THE COURT SHOULD EXCLUDE ANY EVIDENCE OR TESTIMONY REGARDING DEFENDANTS' DISCIPLINARY HISTORY, CITIZEN COMPLAINTS FILED AGAINST THEM, AND OTHER LAWSUITS AS SUCH DOES NOT SATISFY THE REQUIREMENTS OF THE HUDDLESTON ANALYSIS.

During the course of discovery in this case, Plaintiff inquired into the following areas with each of the Defendants: · Whether or not they had been discharged from any employment, and if so, the name of the employer and the reason for the discharge; · Whether or not they had ever received any discipline from the City of Englewood, or been investigated during the course of their employment, and any sanctions which may have resulted there from; and

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Whether or not each named Defendant had ever been accused of violating a citizen's civil rights.

Both in response to Plaintiff's written discovery and during the course of Defendants' respective depositions, undersigned counsel objected to the inquiries and instructed his clients not to answer on the basis that the information sought was neither relevant nor reasonably calculated to lead to the discovery of admissible evidence and, more importantly, was simply sought to harass and embarrass the Defendant in violation of the official information privilege. At no time during the course of discovery did Plaintiff challenge Defendants' refusal to provide this information by way of a motion pursuant to Fed.R.Civ.P. 37. It is nonetheless expected that Plaintiff intends to again inquire into these areas at trial. 1. Evidence is Inadmissible Under Rule 404(b).

Evidence or testimony regarding Defendants' disciplinary records, citizen complaints, and other lawsuits will not be offered for a proper purpose under Rule 404(b). Rule 404(b) of the Federal Rules of Evidence permits evidence of other "acts" to establish "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . ." FED.R.EVID. 404(b). Defendants cannot contemplate how evidence or testimony related to these areas could be relied upon by Plaintiff to establish motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident with regard to the contact with Plaintiff. Instead, to the extent that Plaintiff intends to offer evidence or testimony related to any discipline, citizen complaints, or other lawsuits, it would be for the specific purpose of proving the character of Defendants in order to show action and conformity with the alleged behavior during the contact with Plaintiff. Put simply, Plaintiff may be attempting to rely upon this

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evidence in order to establish that the character of Defendants resulted in the alleged violations of Plaintiff's rights. Such is in clear contravention of Rule 404(b) and, as a result, any evidence or testimony relating to these disciplinary records should not be allowed for this purpose. 2. Evidence is Irrelevant Under Rule 401.

Evidence or testimony related to the disciplinary records, citizen complaints, or other lawsuits is also irrelevant under Rule 401. Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." FED.R.EVID. 401; see also, United States v. Espinoza, 244 F.3d 1234, 1239, n.4 (10th Cir. 2001). Moreover, Rule 402 bars the introduction of any evidence that is not relevant. See, FED.R.EVID. 402; see also, Koch v. Koch Indus., 203 F.3d 1202, 1227 (10th Cir. 2000). Evidence or testimony pertaining to these areas does not survive this test. Plaintiff's claims are for an unlawful entry into her apartment and seizure of her person. It is believed that Plaintiff may therefore be attempting to use the evidence or testimony regarding Defendants' disciplinary records, citizen complaints, and other lawsuits in order to establish that any of them had a propensity to violate a person's rights and thus acted in conformity with this behavior during the subject incident. Such purpose is not permissible and is in clear violation of Rule 404(b). More importantly, evidence or testimony related to these areas does not make it more probable than not that any of the Defendants violated Plaintiff's civil rights. As a result, such testimony not only violates Rule 404(b), but also is irrelevant for purposes of Rule 401. It should also be noted that the City of Englewood is not a defendant in this case, and that Plaintiff does not have any claims against any other public entity. Plaintiff therefore does not

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need to prove a custom or practice of the City of Englewood which would typically render the information sought admissible at trial depending upon the nature of the allegations against the public entity. Here, Plaintiff need not prove at trial a custom or practice of failing to train or supervise since the City of Englewood is not a named party. As such, the information sought has no relevance to whether or not the Defendants either unlawfully entered her home or seized her on the day in question. 3. Probative Value Outweighed by its Prejudicial Effect.

In addition, the probative value of evidence or testimony related to Defendants' disciplinary records, citizen complaints, and other lawsuits is substantially outweighed by unfair prejudice. As stated above, any evidence or testimony regarding these disciplinary records is irrelevant for purposes of Rule 401. It therefore cannot be argued that such testimony has any probative value, let alone some probative value which would outweigh its significant prejudicial effect to Defendants. The Tenth Circuit has held that "[e]vidence is unfairly prejudicial if it `makes a [verdict] more likely because it provokes an emotional response in the jury or otherwise tends to affect adversely the jury's attitude towards the Defendant wholly apart from his judgment as to his guilt or innocence of the crime charged.'" United States v. Roberts, 88 F.3d 872, 880 (10th Cir. 1996) (citing United States v. Yazzie, 59 F.3d 807, 811 (9th Cir. 1995)). Without any probative value to this evidence or testimony, the admission of same would only serve to promote an emotional response from a jury or adversely affect the juror's attitude toward that particular Defendant. Such evidence would not only likely result in the jury forming improper impressions with regard to a particular Defendant's actions when contacting citizens,

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but, even potentially more prejudicial, that such prior behavior made it more likely that he acted inappropriately in their contact with Plaintiff. Plaintiff will therefore be unable to establish that the probative value of the proposed evidence or testimony regarding these areas significantly outweighs its unfair prejudice to these officers. As such, this evidence fails the third requirement of the Huddleston analysis. 4. If Deemed Admissible, Limiting Instruction is Necessary.

Should the Court determine that the testimony or evidence pertaining to these disciplinary records, citizen complaints, or other lawsuits is admissible, a limiting jury instruction is necessary. Any evidence or testimony regarding this evidence does not meet the requirements of Rule 404(b) under the Huddleston analysis. However, if the Court disagrees, Defendants

respectfully request that the Court provide the jury with a limiting instruction that explains against whom the evidence is admitted and for what specific purpose such evidence or testimony may be relied upon. Such instruction must be given if requested. See, United States v. Wilson, 107 F.3d 774, 782 (10th Cir. 1997). VII. CONCLUSION For the reasons stated herein, Defendants respectfully request that the Court enter an order excluding any testimony or evidence relating to Defendants' employment disciplinary records, citizen complaints, and other lawsuits.

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Respectfully submitted,

s/ Eric M. Ziporin Eric M. Ziporin SENTER GOLDFARB & RICE, L.L.C. 1700 Broadway, Suite 1700 Denver, CO 80290 Telephone: 303-320-0509 Facsimile: 303-320-0210 [email protected] Attorney for Defendants

CERTIFICATE OF MAILING I HEREBY CERTIFY that on this 11th day of November, 2005, I electronically filed a true and correct copy of the above and foregoing Defendants' Motions in Limine with the clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: Daniel J. Schendzielos, Esq. [email protected]

s/ Barbara A. Ortell Barbara A. Ortell E-mail: [email protected] Secretary for Attorney Eric M. Ziporin

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