Free Motion in Limine - District Court of Arizona - Arizona

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TERRY GODDARD Arizona Attorney General Darrin J. DeLange Assistant Attorney General Arizona State Bar No. 015699 1275 West Washington Street Phoenix, AZ 85007-2997 (602) 542-7693 Telephone (602) 542-7670 Facsimile [email protected] Attorneys for Defendant James UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Andre Almond DENNISON, Plaintiff, v. Conrad LUNA, et al. (Assigned to the Hon. Susan R. Bolton) Defendants. (Expedited Consideration Requested) Case No. CV 03-2373 PHX SRB DEFENDANT'S MOTION IN LIMINE RE: PLAINTIFF'S PREVIOUSLY EXCLUDED WITNESSES INCLUDED IN PLAINTIFF'S SUPPLEMENTAL TRIAL WITNESS LIST (DKT #187): WHITEAKER, MERRITT, EMORE, STAPLER, LAMB, ECCLES, GORDON, OSGOOD, RITTER, EVANS, AND CLEMENSHAW

Defendant James, by undersigned counsel, submits his Motion In Limine regarding Plaintiff's previously excluded witnesses listed again in "Plaintiff's Supplemental Trial Witness List": Dave Whiteaker, Dennis Merritt, Neil Emore, Dr. Patricia Stapler, Carol Lamb, Wendy Eccles, Cristle Gordon, CO Osgood, Matthew Ritter, CO III Evans, and Jennifer Clemenshaw. ... ... ... ...

Case 2:03-cv-02373-SRB

Document 191

Filed 03/14/2007

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Plaintiff Ignored This Court's Instructions and Included Eleven Witnesses in His Supplemental Witness List That Were Previously Excluded at the Final Pretrial Hearing By This Court After Discussion With the Parties. Plaintiff listed 11 witnesses in his "Plaintiff's Supplemental Trial Witness List

Pursuant to February 8, 2007 Court Order (DKT 175)" ("Supplemental Witness List") that were previously excluded by this Court after discussion and consent by both parties at the February 8, 2007, Final Pretrial Hearing ("Final Pretrial Hearing"). The Court instructed Plaintiff to reduce his number of proposed witnesses he would present at trial, which at the start of the Pretrial Hearing were 26. Plaintiff agreed to reduce his number of witnesses and, Defendant agreed to make available to Plaintiff certain defense witnesses, thereby eliminating the time and cost for Plaintiff to issue subpoenas. Now Plaintiff has included the following previously excluded witnesses in his Supplemental Witness List: Dave Whiteaker, Dennis Merritt, Neil Emore, Dr. Patricia Stapler, Carol Lamb, Wendy Eccles, Cristle Gordon, CO Osgood, Matthew Ritter, CO III Evans, and Jennifer Clemenshaw. Plaintiff's Supplemental Witness List now includes 20 witnesses, 11 of which were previously not approved at the Pretrial Hearing by this Court. Because the 11 above-listed witnesses were discussed and excluded in open court at the Pretrial Hearing, Plaintiff should not be permitted to again include these witnesses in his Supplemental Witness List and, therefore, the 11 previously excluded witnesses should be stricken from Plaintiff's Supplemental Witness List by this Court. 2. Plaintiff's Supplemental Witness List Does Not Comply With This Court's Order. Plaintiff's Supplemental Witness List does not comply with the Court's Order to supplement the existing Plaintiff's Witness List. In the February 8, 2007, Minute Entry, the Court ordered the Plaintiff "to file . . . a supplement to his witness list stating the expected testimony of [Plaintiff's] witnesses" and the Defendant to notify the Plaintiff of 2
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the witnesses available to him. Defendant notified Plaintiff of the available witnesses in a letter to Plaintiff dated February 28, 2007, and Plaintiff filed his Supplemental Witness List on March 12, 2007. In Plaintiff's Supplemental Witness List, Plaintiff added 11 witnesses to the list not approved, and, in fact, excluded by this Court at the Pretrial Hearing. Rather than merely supplementing the descriptions of expected testimony of Plaintiff's approved witnesses, Plaintiff has ignored this Court's instructions and included the following 11 additional witnesses: Dave Whiteaker, Dennis Merritt, Neil Emore, Dr. Patricia Stapler, Carol Lamb, Wendy Eccles, Cristle Gordon, CO Osgood, Matthew Ritter, CO III Evans, and Jennifer Clemenshaw. This Court did not give Plaintiff leave to add additional witnesses to his Supplemental Witness List. Therefore, Plaintiff's Supplemental Witness List does not comply with this Court's instructions to merely provide a summary of expected testimony of the 9 witnesses that this Court approved for Plaintiff. Therefore, the 11 additional witnesses recently added to Plaintiff's Supplemental Witness List should be excluded from testifying by Order of this Court. 3. Plaintiff's Additional Witnesses' Testimony Is Needlessly Duplicative and/or Cumulative. Plaintiff added to his Supplemental Witness List 11 additional witnesses that were previously excluded because their testimony would be needlessly duplicative and/or cumulative of testimony other witnesses are expected to give. Under Federal Rule 403 of Evidence, otherwise relevant evidence "may be excluded if its probative value is substantially outweighed . . . by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." At the Pretrial Hearing, the Court instructed

Plaintiff to pare down his witness list from its original size of 26 witnesses. Plaintiff then chose his essential witnesses, and further agreed to limit the total number of witnesses to 9 plus him. However, Plaintiff's Supplemental Witness List now consists of 20 witnesses. 3
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Of those 20, only 9 were agreed-upon witnesses, as directed by this Court at the Final Pretrial Conference of February 8, 2007; the additional were previously excluded, after discussion with the parties, because their testimony would be irrelevant or duplicative of testimony to be offered by other witnesses. Besides the 9 approved witnesses, Plaintiff has added 11 witnesses to his Supplemental Witness List not approved by this Court at the Final Pretrial Conference on February 8, 2007. Defendant respectfully requests that this Court strike the following witnesses inappropriately added to "Plaintiff's Supplemental Witness List" because the parties and this Court agreed that their testimony should be precluded: Dave Whiteaker, Dennis Merritt, Neil Emore, Dr. Patricia Stapler, Carol Lamb, Wendy Eccles, Cristle Gordon, CO Osgood, Matthew Ritter, CO III Evans, and Jennifer Clemenshaw. RESPECTFULLY SUBMITTED this 14th day of March, 2007. TERRY GODDARD Arizona Attorney General

/s/Darrin J. DeLange Darrin J. DeLange Assistant Attorney General Attorneys for Defendant James ORIGINAL e-FILED this 14th day of March 2007, with: Clerk of the Court UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 401 West Washington Street, SPC 1 Phoenix, AZ 85003-2118

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COPY of the foregoing MAILED this 14th day of March 2007, to: Andre Almond Dennison, #143931 ASPC - Lewis - Morey Unit P.O. Box 3300 Buckeye, AZ 85326-3300 Plaintiff Pro Se /s./Elizabeth A. Swanson Secretary, Arizona Attorney General's Office
IDS04-0294/RM:G04-20632
#1004020

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