Free Motion in Limine - District Court of Colorado - Colorado

Case 1:03-cv-02633-PSF-PAC

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-02633-PSF-PAC LILLIAN BARTON, Plaintiff, v. OFFICER R. BLEY, Badge No. 99006 OFFICER N. SAGEN, Badge No. 96-021 OFFICER JOHN DOE Defendants. and Civil Action No. 04-cv-319-PSF-PAC LILLIAN BARTON, Plaintiff, v. RICHARD BLEA NICK SAGAN JOSH VASCONCELLOS Defendants. ______________________________________________________________________________ DEFENDANTS' RENEWED MOTIONS IN LIMINE ______________________________________________________________________________ Defendants, OFFICER RICHARD BLEA (incorrectly designated as "Bley"), OFFICER NICK SAGAN (incorrectly designated as "Sagen"), and OFFICER JOSH VASCONCELLOS (hereinafter "Defendants"), by their attorneys, SONJA S. McKENZIE and BRETT A. McDANIEL of SENTER GOLDFARB & RICE, L.L.C., hereby file the following Renewed Motions In Limine:

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I. INTRODUCTION At the Final Trial Preparation Conference held on July 5, 2006 in the above-referenced matter, the Court ruled on Defendants' Motions in Limine [Doc. #233]. In its ruling, the Court granted Defendants' Motion in Limine as to Plaintiff' Exhibits 14 and 15. The caveat to the s Court' ruling with regard to these exhibits was that Plaintiff would be permitted to present an s itemized list of her damages "provided that she complies with F.R.E. 1006 by making available the underlying supporting documentation." See, Courtroom Minutes [Doc. # 254]. The Court likewise denied without prejudice Defendants' Motion in Limine for exclusion of prior disciplinary records pursuant to F.R.E. 404(b). In making its ruling, the Court noted that it lacked sufficient information to determine which records were sought to be introduced and/or excluded. Since the Court' July 5, 2006 ruling on Defendants' Motions in Limine, trial in this s matter has been continued and reset to commence on October 3, 2006. In addition, since that time, no documentation has been provided by Plaintiff to support those itemizations contained within Exhibits 14 and 15 pursuant to F.R.E. 1006. As such, Defendants hereby incorporate by reference their prior Motions in Limine and further state as follows: II. RENEWED SECOND MOTION IN LIMINE (Motion in Limine to Exclude Any Evidence or Testimony Pertaining to Plaintiff' Damages) s Plaintiff' Exhibit No. 14 and Exhibit No. 15 are purportedly itemizations of damages s that Plaintiff has sustained as a result of the present litigation and the underlying criminal case. [See, Exhibits 1 and 2 attached hereto]. As an initial matter, Defendants object to these exhibits as they were not produced in the course of discovery. Moreover, Plaintiff has not produced or

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disclosed supporting documentation for any of these damages. A party that "without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1)... is not... .permitted to use as evidence at trial... any witness or information not so disclosed." Fed.R.Civ.P. 37(c)(1). As Plaintiff failed to disclose the itemization of her alleged damages and all supporting documentation in the course of formal discovery and since that time, Defendants have been deprived of their opportunity to conduct further discovery related to Plaintiff' damages. s Plaintiff' failure to make such requisite disclosures was not harmless and therefore introduction s of these exhibits and any testimony related thereto at trial in this matter must be precluded. See, id. Moreover, introduction of any itemization of these purported damages should be excluded. Defendants propounded discovery seeking any and all documentation supporting Plaintiff' damages in this case. Moreover, this Court indicated it would only allow Plaintiff' s s itemization of damages into evidence provided Defendant was timely supplied with proper supporting documentation. To date, no such documentation has been disclosed. Plaintiff has had every opportunity to secure the admissibility of such evidence or testimony related thereto since the July 2006 trial was continued. However, Plaintiff failed to produce these supporting documents. Numbers 14 and 15 is appropriate. As such, exclusion of Plaintiff' proposed Exhibit s

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III. RENEWED THIRD MOTION IN LIMINE (Motion in Limine to Exclude any Evidence or Testimony Pertaining to Defendants'Disciplinary Records) This Renewed Motion provides more specificity regarding the disciplinary records at issue to assist the Court in resolving the evidence issue. The only sustained charges for violation of departmental policy and procedure were for matters irrelevant to the present proceeding. Specifically, Officer Sagan has sustained violations for improper procedure for failure to attend Court and being involved in a preventable accident. The other officers have no sustained disciplinary complaints. While other complaints against the Defendants have been made, either the complaints were not sustained or the officers were exonerated altogether. Accordingly, the primary crux of Defendants' Renewed Third Motion in Limine.1 are unsustained 1999 and 2001 allegations of unnecessary force against Officer Sagan.2 Pursuant to Rule 404(b) of the Federal Rules of Evidence, "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action and conformity therewith." Fed.R.Evid. 404(b). However, such evidence may be admissible to establish "proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absent a mistake or accident . . ." Id. Evidence of other crimes, wrongs, or acts may be properly admitted under Rule 404(b) if the following 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;
That said, the arguments contained herein apply to all prior allegations against any Defendant. In 1999, a gentlemen, arrested and jailed earlier in the day, returned approximately ten hours following his release in an intoxicated state alleging unnecessary force against Officer Sagan. Likewise, in 2001, Officer Sagan and other officers of the Denver Police Department responded to a disturbance call at a house party. At that time, Officer Sagan was confronted by a belligerent guest at the party. Following a struggle to gain control of the suspect, he was arrested and subsequently alleged unnecessary force. Again, neither of these allegations resulted in sustained violations against Officer Sagan.
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(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. For the reasons set forth below, any evidence or testimony regarding these officers' disciplinary records, to the extent Plaintiff intends to ask about it or introduce evidence or testimony pertaining to it, should be deemed inadmissible since Plaintiff cannot meet her burden under the Huddleston analysis. If, for some reason, Plaintiff satisfies the first three elements of the Huddleston

analysis, a limiting instruction regarding the evidence is required. Evidence or testimony of these officers' unsustained complaints or disciplinary records (specifically Officer Sagan' unsustained 1999 and 2001 allegations of unnecessary force) and/or s Officer Sagan' sustained violations for a preventable accident or failure to appear cannot be s offered for any proper purpose(s) pursuant to 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). Evidence regarding these officers' disciplinary records will not establish motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident with regard to the officers'contact with Plaintiff on February 24, 2002. Instead, Plaintiff would only be offering this evidence or testimony for the specific purpose of proving the character of these officers in order to show action and conformity with

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the alleged behavior on the date of the subject incident. Put simply, should Plaintiff attempt to rely upon evidence of other disciplinary actions to establish that the character of these officers resulted in the use of excessive force upon Plaintiff (particularly, the unsustained complaints), this tactic is in contravention of Rule 404(b). Accordingly, any evidence or testimony relating to the officers'disciplinary records should not be allowed for this purpose. Further, evidence or testimony related to the Officers' disciplinary records rerenced herein is not relevant pursuant to Rule 401. Rule 401 of the Federal Rules of Evidence states that evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. Based upon the claims asserted by Plaintiff, evidence pertaining to these officers' disciplinary records (as referenced herein) does not survive this test. As a result, such testimony is not only violative of Rule 404(b), but is irrelevant for purposes of Rule 401. Additionally, the probative value of evidence or testimony related to the officers' disciplinary records referenced herein is substantially outweighed by unfair prejudice. As stated above, any evidence regarding the officers'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 the Defendant officers. The Tenth Circuit has held that "evidence 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' attitude toward the Defendant wholly apart from its judgment as to his guilt s

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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, the admission of this evidence would only serve to provoke an emotional response from the jury or adversely affect the jurors' attitudes towards these officers. Such evidence would not only result in the jury inappropriately forming impressions with regard to these officers' actions when contacting citizens, but also might cause a jury to conclude that these officers 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 the officers' disciplinary records referenced herein significantly outweighs its unfair prejudice to these officers. As such, this evidence fails the third requirement of the Huddleston analysis. Should the Court determine that the testimony or evidence pertaining to the officers' disciplinary records is admissible, a limiting jury instruction is necessary. If the Court decides to admit this evidence, Defendants respectfully request that the Court provide the jury with a limiting instruction that explains for what specific purpose such evidence or testimony may be relied upon. Such an instruction must be given if requested. See, United States v. Wilson, 107 F.3d 774, 782 (10th Cir. 1997). IV. CONCLUSION For the reasons herein, Defendants respectfully request that the Court enter an Order, in limine, precluding the presentation of any evidence or testimony relating to Defendants' disciplinary records (specifically including Officer Sagan' unsustained 1999 and 2001 s

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allegations of unnecessary force) and Plaintiff' itemization of damages as set forth within Joint s Exhibits 14 and 15.

Respectfully submitted,

s/ Sonja S. McKenzie Sonja S. McKenzie

s/ Brett A. McDaniel Brett A. McDaniel Senter Goldfarb & Rice, L.L.C. 1700 Broadway, Suite 1700 Denver, CO 80290 Telephone: (303) 320-0509 FAX: (303) 320-0210 E-mails: [email protected] [email protected] Attorneys for Defendants Gerald Whitman, City and County of Denver, Officer Richard Blea, Officer Nick Sagan, Chris Ramsey, Mayor John Hickenlooper, Rudy Sandoval, Wellington Webb, J. Wallace Wortham, Jr. and Officer Josh Vasconcellos

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 21st day of September, 2006, I electronically filed a true and correct copy of the above and foregoing DEFENDANTS' RENEWED MOTIONS IN LIMINE with the Court via CM/ECF system and served via CM/ECF system and served via the U.S. mail, first class postage prepaid, addressed as follows:

A. Thomas Elliott, Jr. [email protected]

and also served via the U.S. mail, first class postage prepaid, addressed as follows: John Eckhardt, Esq. Assistant City Attorney 201 West Colfax Ave., Dept. 1207 Denver, CO 80202-5375

s/ Kathleen Bertz Kathleen Bertz E-mail: [email protected] Secretary for Attorney Brett A. McDaniel

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