Free Response to Motion - District Court of Arizona - Arizona

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Daniel P. Struck, Bar #012377 Rachel Love Halvorson, Bar #019881 J ONES, S KELTON & H OCHULI, P.L.C. 2901 North Central Avenue Suite 800 Phoenix, Arizona 85012 Telephone No.: (602) 263-1700 Facsimile No.: (602) 263-1784 E-Mail: [email protected]; [email protected] Attorneys for Defendants, Corrections Corporation of America and Stolc IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Cheryl Allred Plaintiff, v. Corrections Corporation of America, Inc.; Bruno Stolc Defendants. NO. CIV 03-2343 PHX-DGC DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION IN LIMINE NO. 4 TO EXCLUDE EVIDENCE OF 1991 ARREST AND HANDGUN CHARGE AND RELATIONSHIP PROBLEMS WITH BOYFRIEND CARLOS

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Defendants Corrections Corporation of America ("CCA") and Warden Stolc respond in opposition to Plaintiff's Motion in Limine No. 4, which seeks to exclude evidence of Plaintiff's 1991 arrest for unlawful carrying of a handgun and surrounding circumstances related to family violence involving Plaintiff and her boyfriend, Carlos Ornelos. In short, Plaintiff was arrested on the weapons charge after she went to the house of a woman she suspected was having an affair with Carlos, found Carlos there, the police were called by persons seeing and/or hearing the resulting fight between Plaintiff and Carlos and the police found Plaintiff in possession of a weapon. Defendants do not intend to offer evidence of Plaintiff's 1991 arrest for unlawfully carrying a handgun and the surrounding family violence circumstances. However, such evidence may become relevant under F ED.R.E VID . 401 and 402

Case 2:03-cv-02343-DGC

Document 159

Filed 01/11/2006

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should Plaintiff open the door to the admissibility of such evidence for impeachment purposes regarding Plaintiff's damages claims. In this case, Plaintiff will assert at trial that because of the rape, she has suffered life altering emotional distress which has affected every aspect of her life, including her job and her relationships with others. Should Plaintiff testify at trial that that her life before her July, 2001 arrest and the alleged November, 2001 rape was not marred by any run-ins with the law or any difficulties in her relationship with boyfriend Carlos, then Plaintiff's prior arrest and family violence history involving Carlos becomes relevant. Under F ED.R.E VID . 401 and 402, evidence regarding the arrest and problems with Carlos have a tendency to make the nature and extent of Plaintiff's damages claims less probable than it would be without the evidence. "Evidence is relevant simply if it tends to make a witness' testimony more or less credible." 1 J. Weinstein & M. Berger, Weinstein's Evidence ¶ 401[05]. In addition to the above, should Plaintiff open the door, such evidence is not prohibited by F ED.R.E VID . 404. The 1991 arrest and relationship troubles with Carlos are not offered to prove conduct in conformity. Rather, such evidence is offered to contradict evidence that before 2001, Plaintiff lived the life of a model citizen and had no relationship troubles whatsoever. Evidence of Plaintiff's prior run-ins with police and her relationship problems also does not run afoul of F ED.R.E VID . 608 where such inconsistent statements are admissible under F ED.R.E VID . 801(d)(2) as an admission by a party opponent. Finally, should the arrest and relationship problems become relevant, to exclude such evidence would result in prejudice to Defendants under F ED.R.E VID . 403. The probative value of the 1991 arrest and problems with Carlos is

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substantially outweighed by the danger of unfair prejudice to Plaintiffs. There is no danger of confusion of the issues or misleading the jury where such evidence will be presented only if Plaintiff claims that prior to November 28, 2001, she had been a model citizen and had enjoyed a life untouched by discord in her relationship with Carlos. The evidence is straightforward and relates only to the issues of impeachment and damages. Based upon the foregoing, Defendants request this Court deny Plaintiff's motion to exclude evidence of the 1991 arrest and relationship troubles with Carlos should Plaintiff's testimony to the contrary open the door. DATED this 11th day of January, 2006. J ONES, S KELTON & H OCHULI, P.L.C. By s/ Rachel Halvorson Daniel P. Struck Rachel Love Halvorson 2901 North Central Avenue Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants, Corrections Correction of America and Stolc Foregoing filed ELECTRONICALLY this 11 th day of January, 2006 with the United States District Court, District of Arizona. COPY of the foregoing mailed even date to:

19 20 21 22 23 24 25 26 3 Case 2:03-cv-02343-DGC Document 159 Filed 01/11/2006 Page 3 of 3 Leon Schydlower, Esq L AW O FFICE O F L EON S CHYDLOWER 210 North Campbell Street El Paso, Texas 79901 and Brett Duke, Esq. L AW O FFICES OF B RETT D UKE 4157 Rio Bravo El Paso, Texas 79902 Attorneys for Plaintiff, Cheryl Allred s/ Carol S. Madden