Free Motion in Limine - District Court of Arizona - Arizona

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Daniel B. Treon ­ 014911 Kelly Jo - 021525 TREON & SHOOK, P.L.L.C. 2700 North Central Avenue, Suite 1000 Phoenix, Arizona 85004 Telephone: (602) 265-7100 Facsimile: (602) 265-7400 Attorney for Plaintiffs UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA TERESA AUGUST, a single woman, MARK AUGUST and JANE DOE AUGUST, husband and wife, for themselves and as parents and guardians for their minor child, MARCUS DAKOTAH AUGUST Plaintiffs, vs. CITY OF PHOENIX, a body politic of the State of Arizona; OFFICER LYLE MONSON and JANE DOE MONSON, husband and wife; OFFICER NICHOLAS LYNDE and JANE DOE LYNDE, husband and wife; OFFICER TOBY DUNN and JANE DOE DUNN, husband and wife; OFFICER T. HEDGECOKE and JANE DOE HEDGECOKE, husband and wife; and R. GRIFFIN and JANE DOE GRIFFIN, husband and wife Defendants. ____________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV03-1892 PHX ROS

PLAINTIFFS' MOTION IN LIMINE NO. 7 RE: COLLATERAL EVIDENCE RE: MARK AUGUST

Plaintiff moves to exclude from trial evidence her adult son Mark August's alleged prior
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bad acts, police contact and any reference to or inquiry regarding Mark August's ex-wife,
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Geraldine Draper. Mark August had been a Plaintiff in this lawsuit alleging wrongful arrest. The Court dismissed his wrongful arrest claim. Nonetheless, Mark August is still a witness to the events that occurred at his mother, Teresa August's house, and Plaintiff will call him to testify.

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During discovery of this case, Defendants dug up thirteen-year-old, eleven-year-old,
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and five-year-old past events in Mark August's life which should be excluded from this trial as completely collateral and not relevant. I. Petition and Order of Protection By Mark August's Ex-Wife, March 7, 1989 Mark August had a tumultuous relationship with his now ex-wife, a convicted felon who now goes by the name of Geraldine Draper. Mrs. Draper's felony convictions for fraud occurred many years after she and Mark August's marriage ended. On March 7, 1989, Mrs. Draper, then Mark August's wife, petitioned for and obtained an Order of Protection against Mr. August (EXHIBIT 1, copy of Petition for Protective Order).

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These remote events have nothing to do with the instant litigation, and admission
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thereof would be unduly prejudicial.

These events are completely collateral and do not

involve statements of dishonesty. Even if they involved a criminal conviction, they would be inadmissible under Rule 609(b). II. Police Contact in 1991 In November 1991, Mark August had police contact (EXHIBIT 2, copy of November 30, 1991 Phoenix Police Department Report). This police contact had nothing to do with Mark August's veracity, did not result in any conviction, and is too remote; therefore it also

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should be excluded from evidence.
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III.

1997 Domestic Violence Criminal Damage and Assault Charge Things came to a head between Mark August and his now ex-wife's then illicit

paramour, David Draper, in 1997. Mark August found his then estranged wife and Mr. Draper in a state of pari dilecto and fisticuffs ensued. As with the previously cited occurrence, these events are again unrelated to the excessive use of force claim by Teresa August in 2002, are unrelated to truthfulness, and should be excluded.

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IV.
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Mark August's Interaction With Ex-Wife Relative to This Case During discovery, Defendants' investigator contacted Mark August's ex-wife. When

Mark August learned that Defendants were prying into his personal life, he spoke with his exwife. Once he learned that the City of Phoenix was attempting to dredge mud from events of years long gone by, he let Mrs. Draper know that she should tell the truth if she decided to respond to the investigator. He then reminded his ex-wife that during the investigation of her felonious conduct in New Mexico, he stayed out of her business; he requested the same courtesy. Defendants allege that he was tampering with her as a witness. However,

tampering did not occur. Furthermore, Mrs. Draper is not a witness on any relevant non10

collateral issue in this case. (EXHIBIT 3, copy of Mark August's deposition p. 61 ­ 67.)
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The Court dismissed Mark August's claim, and any contact he had with Mrs. Draper related to his claim, not the claim of his mother, Teresa August. Thus his communication with Mrs. Draper is completely immaterial, irrelevant and collateral to his testimony about the events he observed in his mother's case. In the event that Mark August testifies, none of what transpired between him and his ex-wife, is admissible -- it is collateral to his percipient testimony about June 10, 2002 and does not impugn his truthfulness. Moreover, any testimony or reference to Mr. August's exwife will cause extreme prejudice to Teresa August simply because of Mrs. Draper's three

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prior felony convictions for fraud. Mrs. August, who not only has no prior convictions but has
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no prior criminal history, should not suffer the smear of association that would result from admission of Mark August and his ex-wife's interactions.

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DATED this 17th day of November, 2006.
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TREON & SHOOK, P.L.L.C. By: s/ Daniel B. Treon Daniel B. Treon Kelly Jo Attorney for Plaintiffs

CERTIFICATE OF SERVICE I hereby certify that on November 17, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic to the following CM/ECF registrants: Daniel B. Treon: [email protected]; [email protected] [email protected]; [email protected]; [email protected] [email protected]; [email protected] [email protected]; [email protected]

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Kathleen Wieneke:
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Jennifer L. Holsman: Randall H. Warner:

By:

s/ Aly Shomar-Esparza

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