Free Motion in Limine - District Court of Arizona - Arizona

A. James Clark, #002901 CLARK & MOORE 2 256 South Second Avenue, #E Yuma, AZ 85364 3 Telephone (928) 783-6233
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Attorneys for Plaintiff Rubecca Mikkelsen, etc.

John A. Micheaels -- 05917 BEALE, MICHEAELS & SLACK, P.C. 6 1440 E. Missouri Avenue, #150 Phoenix, Arizona 85014 7 (602) 285-1444
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Attorneys for Plaintiff Dennis Mikkelsen UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA
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RUBECCA MIKKELSEN, surviving) spouse of Kelly Mikkelsen, deceased,) on behalf of MILES MIKKELSEN,) JERRET MIKKELSEN and ALLISON) MIKKELSEN, the minor children of) Kelly Mikkelsen, deceased, and on) behalf of DENNIS MIKKELSEN,) natural father of Kelly Mikkelsen,) deceased; and on behalf of TAYLOR) R. FOX, a minor, by her next friend) and natural mother, TRACY FOX-) TANGA, ) ) Plaintiffs, ) ) vs. ) ) C O R R E C T I O N A L H E A L T H) RESOURCES, INC., a foreign) corporation; KENNETH L. FAIVER) and JANE DOE FAIVER, husband and) wife; JOSEPH EDWARD RICH, M.D.) and JANE DOE RICH, husband and) wife; DOES I through V, inclusive, ) ) Defendants. ) ______________________________ )

No. CIV 02-2252-PHX-JAT PLAINTIFFS MIKKELSEN'S MOTION IN LIMINE NO. 4 TO PRECLUDE EVIDENCE OF "PRIOR BAD ACTS" OF KELLY MIKKELSEN

(Assigned to the Honorable James A. Teilborg)

Plaintiffs move this Court for an order in limine precluding any evidence, argument, or reference relating to any crimes, wrongs or bad acts allegedly committed by decedent, Kellly Mikkelsen, where such reference is made for the purpose of attacking Kelly's character "in order

Case 2:02-cv-02252-JAT

Document 244

Filed 10/17/2005

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to show that he acted in conformity therewith" or for any other irrelevant and/or improper purpose. Such evidence is irrelevant and any arguable relevance would be substantially outweighed by the dangers of unfair prejudice, delay, confusion of the issues, misleading the jury and/or waste of time. Accordingly, any such evidence should be precluded in limine per rules 401-403 of the Federal Rules of Evidence. RESPECTFULLY SUBMITTED this 17th day of October, 2005.
BEALE, MICHEAELS & SLACK, P.C.

By

/s/ John A. Micheaels John A. Micheaels 1440 East Missouri Avenue, #150 Phoenix, Arizona 85014 Attorneys for Plaintiff Dennis Mikkelsen

MEMORANDUM OF POINTS AND AUTHORITIES Defendants have indicated that they may attempt to introduce evidence of a litany of alleged prior bad acts by Kelly Mikkelsen for the sole purpose of destroying his character. (See Rubecca Mikkelsen deposition, pp. 51-53 attached hereto as Ex. A.) Defendants have attempted to justify the use of such evidence, because Dr. Skip Heck (in his report concerning the psychological health of the decedent's children following their father's death) made reference to how the decedent's wife and children viewed the decedent as a father. A copy of Dr. Heck's report is attached as Ex. B. In other words, because Mrs. Mikkelsen and the children describe the decedent as a loving and caring father, defendants may attempt to introduce evidence attacking the decedent's character by reference to a series of unrelated events which occurred as long as 15 year sago, and had nothing to do with Kelly's relationship with his children, two of whom were not even alive when many of the events occurred; and the third of whom was an infant. F.R.E. 404 states: Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: (1) Character of Accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evident of a trait of character of the alleged victim of the crime is
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offered by an accused and admitted under Rule 404 (a)(2), evidence of the same trait of character of the accused offered by the prosecution; (2) Character of Alleged Victim. Evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor; (3) Character of Witness. Evidence of the character of a witness, as provided in rules 607, 68, and 609. (B) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case, shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. Defendants would like to introduce evidence of specific crimes, wrongs or acts for the sole purpose of destroying the character of the decedent in the eyes of the jury. Defendants are not entitled to do this under Rule 404. The admission of character evidence gives rise to a strong likelihood of prejudice and has slight probative value. That is why such evidence is barred. Elia v. Pifer, 194 Ariz. 74, 977 P.2d 796 (1999). This is universally the rule: Ordinarily when the topic of character evidence is raised, what is meant is the use of character circumstantially. By proving that a party had violent, larcenous, or careless character, the trier is invited to infer that he assaulted, stole, or was negligent on the occasion in issue. With a few exceptions, such evidence has never been admitted. It is not that it is irrelevant; all of us routinely rely on the character of those we deal with to determine how they will probably behave. Rather, it is that with respect to whether a particular episode occurred, such evidence is of relatively slight probative value compared to the risk of misuse by the jurors. M. Udal & J. Livermore, Law of Evidence § 83. While Kelly Mikkelsen's relationship with his surviving children is relevant, Kelly's character, generally, is not at issue, and evidence suggesting a bad character generally is not admissible. Kemp v. Pinal County 8 Ariz. App. 41, 45, 442 P.2d 864 (App. 1968) (relationship, not character, is at issue); Mears v. Colvin, 768 A.2d
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1264, 1268-1269 (Vt. 2000)(evidence of bad acts improperly places character, rather than relationship, on trial); St. Clair v. Eastern Air Lines, 279 F.2d 119 (2nd Cir. 1960) (defendant not entitled to put on evidence of everything bad it can unearth about plaintiff in guise of damages evidence); F.R.E. 404. Such evidence is irrelevant, misleading, confusion, unfairly prejudicial, and a waste of time. Id. Kelly Mikkelsen's Criminal Background. Between 1988 and 1997, decedent Kelly Mikkelsen was charged with DUI (disposition unknown), trespass arising out of an alleged burglary (probation revoked resulting in prison sentence of one to five years), domestic violence (disposition unknown), disturbing the peace, (disposition unknown), Public indecency (disposition unknown), disorderly conduct (dismissed), and damage to property (dismissed). In 2000, he was charged with illegal dumping of water (dismissed), contempt of court and threat and intimidation. In 2001, he was charged with the use of offensive words in public. (See records attached as Ex. C.) With the exception of the trespass charge occurring almost 15 years ago and the misdemeanor contempt charge for which he was incarcerated at the time of his death, none of the charges against Kelly resulted in any significant time in jail. Most of the charges were dismissed or were otherwise not prosecuted. None of the crimes were committed in front of the decedent's children, and none of the charges involved decedent's children. Miles, the oldest child, was born in1996; Jarett was born in 1998; and Allison was born in 2000. From 1997 through 1998, decedent used methamphetamines. In 1999, he stopped the use of drugs and never used them again. (Rubecca Mikkelsen

deposition, pp. 33, 37, Ex. A.) During the deposition of Rubecca Mikkelsen, defense counsel also asked about other criminal acts allegedly committed by Kelly Mikkelsen, for which there is no record, or for which no action was taken, including possession of a pistol, threatening a mechanic, and a general reference to domestic violence. None of these alleged events resulted in any criminal charges being filed.

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None of Kelly Mikkelsen's prior bad acts are relevant or admissible in this litigation. In Bell v. State, 143 Ariz. 305, 693 P.2d 96 (1984), Bell sued the State for personal injuries sustained at the hands of a prison gang where Bell was incarcerated. The State attacked Bell's character throughout the trial. In reversing a verdict in favor of the State, the Court held: The use of character evidence has traditionally been limited because it is of slight probative value and the strong likelihood of prejudice or confusion resulting from its admission. See generally, 2 J. Weinstein & M. Berger, Weinstein's Evidence 404-1-142 (1982); S. Saltzburg & K. Redden, Federal Rules of Evidence Manual 124-56 (3d ed. 1982). "Character evidence is of slight probative value and may be very prejudicial. It tends to distract the trier of fact from the main question of what actually happened on the particular occasion. It subtly permits the trier of fact to reward the good man and to punish the bad man because of their respective characters despite what the evidence in the case shows actually happened." Rule 404, advisory committee. See 1 M. Udall & J. Livermore, Law of Evidence, § 83 (2d ed. 1982). "[E]vidence of one's character is generally inadmissible to prove his conduct on a certain occasion." Pyeatte v. Pyeatte, 21 Ariz. App. 448, 453, 520 P.2d 542, 547 (1974). * * *

...evidence of Bell's alleged violent character is only circumstantially relevant and is laced with all of the dangers which have led courts and the drafters of the rules of evidence to mark a bright line prohibiting the introduction of such testimony. In Blankenship v Duarte, 137 Ariz. 217, 669 P.3d 994 (1983), a personal injury suit alleging injury as a result of an assault, the court held that the plaintiff's felony conviction for assault which occurred more than ten years prior to the trial was not admissible under Rule 609(b), 17A, Arizona Rules of Evidence. Here, as in Bell and Blankenship, evidence of Kelly Mikkelsen's prior bad acts is not relevant or admissible. The only purpose for the introduction of such evidence would be general character assassination, which is improper and impermissible. Kelly Mikkelsen's Counseling Records. Beginning in 1997, Kellly Mikkelsen sought psychological treatment from clinical psychologists, Nancy Friends and Nada Cox. The records of treatment are set forth in Exs. D and E, attached. These records contain a great deal of candid information concerning Mr. Mikkelen's use of drugs in 1997 and 1998, as well as
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his past criminal record, including references to jail, amphetamines, shoplifing, DUI, criminal trespass, AA meetings, drug rehabilitation and other irrelevant and highly prejudicial matters. There is no evidence that Kelly Mikkelsen abused any drugs post 1998. He certainly did not have a drug abuse problem at the time of his death. In accordance with Rule 404 and Kassman v. Busfield Enterprises, Inc., 131 Ariz. 163, 639 P.2d 353 (1981), and Bell v. State, supra, the counseling records should be excluded from evidence along with any reference to those portions of the records which contain negative and irrelevant information regarding the character of decedent. CONCLUSION. Kelly Mikkelsen was not a saint. But his relationship with his children, Miles, Jarett and Allison, was a good one. There is no evidence to the contrary. Defendants should not be permitted to destroy Kelly Mikkelsen's character by reference to a series of unrelated events that took place as long as 15 years ago, and had nothing to do with the relationship between Kelly Mikkelsen and his children. Any generalized argument or suggestion that Kelly Mikkelsen was a bad person is simply improper and inadmissible character assassination. Liability and damages should be resolved on the merits of this case, not on a test or comparison of character and who the jury likes more. Plaintiffs respectfully request that the Court enter an order in limine precluding Defendants from moving into evidence, referring to, or in any way attempting to advise the jury of, any crimes, wrongs, or bad acts alleged to have been committed by decedent Kelly Mikkelsen for the purpose of attacking his character and making him less likeable/sympathetic. F.R.E. § 401-403, 408.

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RESPECTFULLY SUBMITTED this 17th day of October, 2005.
BEALE, MICHEAELS & SLACK, P.C. By /s/ John A. Micheaels John A. Micheaels 1440 East Missouri Avenue, #150 Phoenix, Arizona 85014 Attorneys for Plaintiff Dennis Mikkelsen

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Original/Copy of the foregoing mailed/ delivered this 17th day of October, 2005, to: Clerk of the U.S. District Court 401 West Washington Street Phoenix, Arizona 85003

Honorable James A. Teilborg U. S. District Court 401 West Washington Street 12 Phoenix, Arizona 85003
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A. James Clark, Esq. CLARK & MOORE 256 South Second Avenue, Suite E Yuma, Arizona 85364 Attorneys for Plaintiffs Rebecca Mikkelsen, et al, . James W. Barnhouse, Esq. RENAUD, COOK, DRURY & MESAROS, P.A. One North Central Avenue, #900 Phoenix, Arizona 85004 Attorneys for Defendants Correctional Health Resources, Inc., Faiver and Rich

Michael J. Aboud Esq. ABOUD & ABOUD 100 North Stone Avenue, #303 21 Tucson, Arizona 85701 Co-Counsel for Plaintiff Fox
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Mary K. Boyte, Esq. BOYTE & MINORE, P.C. 150 W. Second Street 24 Yuma, Arizona 85364 Co-Counsel for Plaintiff Fox
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