Free Response to Motion - District Court of Arizona - Arizona

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Kathleen L. Wieneke, Bar #011139 Jennifer L. Holsman, Bar #022787 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1700 Fax: (602) 200-7858 [email protected] [email protected] Attorneys for Defendants Griffin, Dunn, Lynde and Monson UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Teresa August, et al, Plaintiff, v. The City of Phoenix, et al, Defendant. NO. CV03-1892-PHX-ROS DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION RE: ADMISSIBILITY OF PRESENT SENSE IMPRESSION/EXCITED UTTERANCE OF DAKOTAH AUGUST

Defendants object to the admission of Dakotah August's statement to his father by phone on the night of the incident. The statement in question is neither an excited utterance nor a present sense impression since it occurred after the events it describes. It is a request that his father arrive as quickly as possible. I. BACKGROUND Plaintiff seeks to admit Dakotah August's statement to his father after Plaintiff's arrest. At 7:49 P.M. Plaintiff sat in the back of a police cruiser and the Fire Department was en route. See Exhibit 1, CAD Report. Five minutes later at 7:54 P.M. Sam Hickey dialed Mark August's cell phone number and passed the phone to Dakotah, Mr. August's nine year old son. See Exhibit 2, deposition of Marcus Dakotah Cheske

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August, 54:2-22; see Exhibit 3, Alltel account record for Mark August, Bates No. 1436, Call 263 June 10, 7:54 P.M. from 602-279-7412. Dakotah told his father "...the police officers are beating on my grandma, come quick, come quick, hurry." See Exhibit 2, deposition of Marcus Dakotah Cheske August, 55:5-12. II. DAKOTAH'S STATEMENT IS NOT A PRESENT SENSE IMPRESSION Dakotah's statement is being offered for its truth and is hearsay. FED R. EVID. 801(c). Unlike United States v. Murillo, 288 F.3d 1126 (9th Cir. 2002) the

statement in question does not describe a present sense impression. FED R. EVID. 803(1). In that case the victim of a murder had called a friend and told him that she was at a hotel with the suspect. The victim's statements described the situation at the time of the statement and was admitted. statement. Police were not "beating on" Plaintiff when Dakotah spoke with his father ­ Plaintiff rested in the back of a police cruiser and the fire department was on the scene to treat her. See Exhibit 1, CAD Report. The statement did not describe what was Nor did the statement take place 288 F.3d at 1137. This is in contrast with Dakotah's

happening when Dakotah spoke to his father.

immediately after the incident in question. At least five minutes passed from the time that Plaintiff was placed in the back of the cruiser and Dakotah spoke with his father. See Exhibit 1, CAD; See Exhibit 3, Alltel account record for Mark August Bates No. 1436, Call 263 June 10, 7:54 P.M. from 602-279-7412. III. DAKOTAH'S STATEMENT IS NOT AN EXCITED UTTERANCE An excited utterance is a statement related to a startling event or condition made under the stress caused by the event or condition. FED R. EVID. 803(2). Courts have distinguished between general excited utterances and those statements made by child victims. See Morgan v. Foretich, 846 F.2d 941, 947 (4th Cir. 1988) (instead of focusing on the time lapsed between the event and the statement courts should be aware of the child
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victim's first opportunity to report the incident). The cases cited by Plaintiff involve sexual assaults against children. In each case the statement in question was made

immediately upon contact with a third party. United States v. Rivera, 43 F.3d 1291, 1296 (9th Cir. 1995); United States v. Nick, 604 F.2d 1199, 1201 (9th Cir. 1979). Dakotah did not make this statement while the arrest was transpiring, or shout it out in exclamation at the earliest possible moment. It was made to his father as a request for him to hurry to the scene. The words "...come quick, come quick, hurry" and "Dad, hurry up and get here..." indicate that what Dakotah wanted most was his father's presence. This explains why his statement did not describe what had happened. Instead, Dakotah incorrectly described what was happening, "...officers are beating on my Grandma." See Exhibit 2, deposition of Marcus Dakotah August 54:8-10; see also Exhibit 4, deposition of Mark August, 104:8-11 "...police are beating up Grandma" emphasis added. Whether this was a calculated equivocation is irrelevant, the statement does not describe the situation at hand but is a persuasive statement meant bring a father as quickly as possible. IV. THE STATEMENT IS UNNECESSARY AND PREJUDICIAL Unfair prejudice under Rule 403 is evidence that tends to suggest to the jury an improper basis for deciding the case. See Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 652 (1997) (unfair prejudice is "the capacity of some...evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged"). Dakotah's statement to his father is likely to play heavily on the emotions of jurors in a manner that is unfair to Defendants and may unfairly prejudice the jury and improperly lead it to find against the Defendants for reasons that have nothing to do with whether they used excessive force on Plaintiff. Because Dakotah will testify at trial, admission of this statement is unnecessary and highly prejudicial. Dakotah will have the opportunity to describe the
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events that he witnessed ­ including the fact that he could not see how Plaintiff's arm or how it was injured. Moreover, because Dakotah did not see the injury to Plaintiff's arm and did not provide testimony that officers were using any type of force that looked like Plaintiff was being "beat up" his statement is conclusory and not supported by the facts. Dakotah's statement to his father could lead a jury to improperly conclude that Dakotah saw something he did not. The admission of Dakotah's statement to his father would be unfairly prejudicial and confuse and mislead the jury. Fed. R. Evid. 403. V. CONCLUSION For the forgoing reasons Defendants respectfully request that the Court deny Plaintiff's Motion Regarding Admissibility of Present Sense Impression/excited Utterance of Dakotah August. DATED this 5th day of January, 2007. JONES, SKELTON & HOCHULI, P.L.C.

By /s/Jennifer L. Holsman Kathleen L. Wieneke Jennifer L. Holsman 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants Griffin, Dunn, Lynde and Monson

Electronically filed and served this 5th day of January, 2007, to: ALL PARTIES ON ELECTRONIC SERVICE LIST COPY mailed this same date to:

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The Hon Rosalyn O. Silver United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 624 401 West Washington Street, SPC 59 Phoenix, Arizona 85003

BY
1729107.1

s/Peggy Sue Trakes

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