Opinion
Case No. 1:19-cr-00068
01-19-2021
UNITED STATES of America, Plaintiff, v. Donavan Jay WHITE OWL, Defendant.
Dawn M. Deitz, U.S. Attorney's Office, Bismarck, ND, for Plaintiff. Christopher P. Bellmore, Federal Public Defender Office, Bismarck, ND, for Defendant.
Dawn M. Deitz, U.S. Attorney's Office, Bismarck, ND, for Plaintiff.
Christopher P. Bellmore, Federal Public Defender Office, Bismarck, ND, for Defendant.
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR PRELIMINARY RULING ON ADMISSION OF EVIDENCE
Daniel Mack Traynor, District Judge
[¶1] THIS MATTER comes before the Court on a Motion for Preliminary Ruling on Admission of Evidence filed by the Defendant on April 29, 2020. Doc. No. 69. The Defendant asks for a preliminary ruling on whether a 2013 threat made by Cody Serdahl ("Serdahl") to burn down the subject home of the arson is admissible. Doc. No. 70. The Defendant contends Serdahl's statement should be admissible because (1) it is intrinsic evidence and (2) meets the requirements of Rule 404(b) of the Federal Rules of Evidence. Id. The United States filed a Response on May 13, 2020. Doc. No. 82. The United States contends Serdahl's statements should be excluded because they (1) are inadmissible hearsay; (2) are impermissible character evidence; (3) are not intrinsic evidence; and (4) insufficiently connect Serdahl to the subject arson. Id. The Defendant filed a Reply on May 20, 2020. Doc. No. 85. A hearing on the Motion was held on December 22, 2020. Doc. No. 107.
[¶2] To the extent the Defendant seeks to admit Cody Serdahl's prior threat to burn down the home as intrinsic evidence, the Motion is DENIED. However, to the extent the Defendant seeks to admit the prior threat under Rule 404(b), the Motion is GRANTED.
BACKGROUND
[¶3] The Defendant, Donavan Jay White Owl, is charged with (1) Felony Murder within Indian Country, in violation of 18 U.S.C. § 1111, 1153, and 2; as well as (2) Arson within Indian Country, in violation of 18 U.S.C. § 81, 1153, and 2. Doc. No. 16. The Defendant's charges arise from an incident that occurred around April 4, 2019. Doc. No. 16. It is alleged that the Defendant committed arson in that he
an Indian, did willfully and maliciously set fire to and burn a building, namely, 10101 Highway 73, Mandaree, North Dakota, the dwelling of Cody Serdahl (YOB 1978), and in so doing placed in jeopardy the life of any person, namely, Cody Serdahl (YOB 1978) and Winnifred Smith (YOB 1993)[.]
Doc. No. 16 at p.2. It is further alleged that in committing the arson, the Defendant, with malice aforethought, unlawfully killed Winnifred Smith. Doc. No. 16 at p.1.
[¶4] The incident occurred sometime in the late evening of April 3 or early morning hours of April 4, 2019. The Defendant, Cooke, Cody Serdahl ("Serdahl"), and Serdahl's girlfriend Winnifred Smith ("Smith") were all living at the house at that time it was burned. Cooke and the Defendant stayed in an upstairs bedroom, Serdahl and Smith lived in the basement. Serdahl's mother, Veronica Serdahl ("Veronica") owned the house. The day before the fire was Veronica's birthday. On April 3, 2019, the day before the fire, the Defendant, Cooke, Smith, and Serdahl all went to Minot to buy Veronica flowers for her birthday. That evening, Cody sent Smith and Cooke to deliver the flowers and some brownies to Veronica. Cody apparently stayed behind because his mother is always upset with him. At some point in the early morning hours of April 4, the home started on fire. Cody Serdahl was burned and found in a vehicle outside the residence when emergency responders arrived.
[¶5] The Defendant asks the Court for a preliminary ruling that a prior incident involving Serdahl be admissible as part of his defense. Those facts are taken from the police reports from the incident. Doc. No. 73.
[¶6] On October 11, 2013, around 12:20 a.m. Officer Miller with the Three Affiliated Tribes Law Enforcement Center responded to a disturbance at 10101 Highway 73, Mandaree, North Dakota. Doc. No. 73, pp. 1-3, 8. The investigation revealed that Serdahl had come home intoxicated that night with his two kids in his vehicle. Id. at p. 8. Serdahl began arguing with Veronica. Id. During the argument, Serdahl became enraged and threw his keys at Veronica and threatened to burn down the house. Id. Serdahl then threatened to kill his brother, Laramie. Id. Veronica was scared for her life and her grandchildren's safety when Serdahl was around. Id. Veronica provided a written statement saying the same. Id. at p. 11. Laramie confirmed Veronica's story. Id. at p. 8. Laramie provided a written statement, including, "He comes back drunk and breaks up the house and threatens everybody." Id. at p. 13. A Candance Lone Bear also confirmed Veronica's story, including Serdahl's threat to burn down the house. Id. at p. 8. Candance Lone Bear provided a written statement in which she said, "Cody Serdahl came home drunk threatening to kill everyone in the house and burn down the house." Id. at p. 15. While in the squad car being transported to the jail, Serdahl "made statements that his mothers house was never going to look good like this again." Id. at p. 9.
The reports provide conflicting dates. The handwritten citations (Doc. No. 73, pp. 1-2) state the date of October 11, 2013 at 12:30 a.m. The Incident Report cover sheet also states it occurred on October 11, 2013 (Id. at p. 3), but the Incident Narrative states it occurred on October 10, 2013. Because of the consistency between the Incident Report cover sheet and the handwritten citations, the Court assumes the October 10 date in the Narrative was a typographical error.
DISCUSSION
[¶7] The Defendant asks the Court, based on the record he provided, to make a preliminary determination that the statements Serdahl made about the house are admissible. The Defendant contends the statements are intrinsic evidence, not hearsay, and, if extrinsic, admissible under Rule 404(b) of the Federal Rules of Evidence.
I. Intrinsic Evidence.
[¶8] In discussing the nature of intrinsic evidence, the Eight Circuit has stated:
Rule 404(b) "excludes evidence of specific bad acts used to circumstantially prove a person has a propensity to commit acts of that sort." United States v. Johnson, 439 F.3d 884, 887 (8th Cir. 2006). But this rule does not apply to evidence "intrinsic" to the charged offense. [U.S. v.] Thomas, 760 F.3d [879] at 883–84 [(8th Cir. 2014)]. "[I]ntrinsic evidence[ ] is evidence of wrongful conduct other than the conduct at issue offered for the purpose of providing the context in which the charged crime occurred." United States v. Campbell, 764 F.3d 880, 888 (8th Cir. 2014) (cleaned up). It "includes both evidence that is inextricably intertwined with the crime charged as well as evidence that merely ‘completes the story’ or provides context to the charged crime." United States v. Young, 753 F.3d 757, 770 (8th Cir. 2014). Intrinsic evidence need not be "necessary to the jury's understanding of the issues" to be admissible. Id. Of course, when admitting intrinsic evidence, "[t]he dictates of [R]ule 403 must still be applied to ensure that the probative value of this evidence is not outweighed by its prejudicial value." United States v. Bass, 794 F.2d 1305, 1312 (8th Cir. 1986). District courts have "broad discretion" in admitting intrinsic evidence and we will reverse "only if such evidence clearly had no bearing on the case and was introduced solely to prove the defendant's propensity to commit criminal acts." Thomas, 760 F.3d at 883 (quoting United States v. Katz, 445 F.3d 1023, 1029 (8th Cir. 2006) ).
United States v. Guzman, 926 F.3d 991, 999–1000 (8th Cir. 2019) (emphasis added).
[¶9] Here, the Defendant contends Serdahl's prior threat to burn down the subject home is intrinsic evidence because it provides further context for his defense theory that (1) Cody Serdahl burned down the cabin on April 4, 2019 and (2) law enforcement inadequately investigated the arson. The Court is unpersuaded the evidence is intrinsic to the crime charged or to the Defendant's theory of the case. The threat occurred approximately five and a half years prior to the home burning down. It does not provide contextual information for the night in question because it is neither "inextricably intertwined" with—nor completes the story of—what happened on April 4, 2019. See Id. The prior threat to burn down the home goes to Serdahl's state of mind, not to the circumstances of the arson. Whether the Serdahl's threat is admissible is properly analyzed under the rubrics of Rule 404(b).
II. Hearsay and Rule 404(b)
[¶10] The United States contends Serdahl's 2013 statements relating to the cabin are inadmissible hearsay. The United States argues that the Defendant seeks to admit them for the truth of the matter asserted, that is, to show that, in 2019, Serdahl made good on this threat to burn down the house. This argument essentially conflates Rule 802's general prohibition against hearsay with Rule 404(b)(1)'s general prohibition against bad act evidence. Specifically, the United States argues, "[t]he threat in this case is hearsay because it is offered to show that Cody Serdahl had the intent to do what he threatened." Doc. No. 82, p. 5. That is a classic argument under Rule 404(b)(1), Fed. R. Evid. Put differently, if the Court were to find the statements could be admitted for the truth of the matter asserted, the Court would permit a violation of Rule 404(b)(1). The Defendant does not seek to admit the threat for its substantive truth (see Doc. No. 85, p. 2), but for purposes under Rule 404(b). The Court will therefore conduct the relevant analysis pursuant to Rule 404(b).
In making this argument, the United States relies on United States v. Swanson, 9 F.3d 1354, 1358 n.7 (8th Cir. 1993), for the proposition that threats may be hearsay if used to prove the truth of the matter asserted. In Swanson, the Eighth Circuit found the threat in that case was not admitted for the truth of the matter asserted and the district court misclassified it as hearsay but affirmed the district court on other grounds. Id. The Eighth Circuit noted, however, "[t]he threat would constitute hearsay only if Swanson offered the threat to prove the truth of the words asserted. For example, admission of ‘I've killed before, and I'll kill you,’ to provide the declarant killed before is for the truth of the matter asserted." Id. at n.7. The threat at issue here is being offered to show Serdahl's motive and intent as well as law enforcement's incomplete investigation. As such, the threat is not being offered to prove the truth of the matter asserted.
The Defendant argues Serdahl's 2013 statements were excited utterances. The Court disagrees. The circumstances under which Serdahl made the statements are not a "startling event or condition." See Fed. R. Evid. 803(2).
--------
[¶11] Generally, "Evidence of any other crimes, wrong, or act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Fed. R. Evid. 404(b)(1). Despite this general prohibition, evidence of prior crimes, wrongs, or other acts "may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Fed. R. Evid. 404(b)(2). Once a non-propensity purpose has been established, the Eighth Circuit has instructed, "[s]uch evidence is admissible if ‘(1) it is relevant to a material issue; (2) it is similar in kind and not overly remote in time to the crime charged; (3) it is supported by sufficient evidence; and (4) its potential prejudice does not substantially outweigh its probative value.’ " United States v. Cockerham, 417 F.3d 919, 921 (8th Cir. 2005) (quoting United States v. Frazier, 280 F.3d 835, 847 (8th Cir. 2002) ).
i. Non-Propensity Purpose
[¶12] The Defendant argues Serdahl's 2013 statements relating to the home are admissible under Rule 404(b)(2) because it goes to: (1) Serdahl's motive and intent; (2) identity or modus operandi; and/or (3) investigator bias and lack of thoroughness and credibility. The United States appears to concede the threat is being offered for at least one non-propensity purpose when it states, while arguing it is hearsay, "it is offered to show that Cody Serdahl had the intent to do what he threatened." Doc. No. 82. Nevertheless, the United States contends the Defendant is offering the prior threats solely to prove Serdahl's criminal propensity.
[¶13] The Court has little doubt the evidence is being offered for a non-propensity purpose in this case. The statements made by Serdahl are being offered not to prove the truth of what he asserted, but to show he had a motive and intent to commit the purported arson. It also goes to identifying who started the fire and why that individual may have started it. Significantly, the record indicates Serdahl stayed away from his mother on her birthday because of some long-standing gripe. His mother was the owner of the home that was burned. Finally, it also directly impacts the Defendant's defense that law enforcement performed an inadequate investigation and his claim they failed to consider Serdahl as a suspect in the arson. The statements also tend to show that, if proven, the fire was not an accident or a mistake as it shows Serdahl's purported intent.
ii. Relevancy
[¶14] Generally relevant evidence is admissible in evidence. Fed. R. Evid. 402. The United States contends, "[t]he threat can only be relevant to an alternative perpetrator defense, which the defendant wishes to bootstrap to the defense, essentially arguing Serdahl's threat supports an alternative perpetrator defense evidenced by the prior threat." Doc. No. 82, p. 9. In making this argument, the United States contends the Defendant invites confusion in his "circular reasoning." Id. The Defendant argues the evidence is relevant to show someone else started the fire.
[¶15] Because Serdahl's 2013 statements have non-propensity purposes, the Court concludes the 2013 statements are relevant to determining who started the fire. The primary trial issue appears to be a classic who did it scenario. The Defendant is certainly within his rights to point the finger at someone else. Serdahl's prior threats have a "tendency to make a fact more or less probable than it would be without the evidence" and this fact will have consequence to determining the Defendant's guilt or lack thereof. See Fed. R. Evid. 401.
[¶16] Furthermore, it is unclear to the Court how the Defendant's argument is circular reasoning. The Defendant's argument is simple and logical. The defense is that Serdahl did it. And the prior threat evidences his intent to do it. It is plain Serdahl's 2013 threats are relevant to establishing an alternative perpetrator defense. Nor will this create a mini-trial. It merely allows the Defendant to point the finger at someone other than himself—something he is entitled to do. The United States' arguments do little more than attack the weight to be given to the relevancy of Serdahl's prior threat. That is a decision the Court leaves for the jury to decide. Serdahl's 2013 threat to burn down the home is relevant to the Defendant's alternative perpetrator defense and should be considered by the jury. It is perfectly natural for a person accused of a crime to point his or her finger at someone else and exclaim, "He did it."
iii. Similar in Kind and Not Overly Remote
[¶17] The threat to burn the house down is similar in kind to the actual burning of the house down. The circumstances surrounding the threat and the actual arson differ in that it was Serdahl's immediate family present when he made the threat, but White Owl, Tera Cooke, and Winnifred Smith were present on the night of the fire. It is also true that the original threat occurred in the course of an argument between Serdahl and his mother, Veronica. On the day before the arson, it was Veronica's birthday and he noted he did not visit her that evening because she was always upset with him. While the circumstances are not exact, the subject matter (burning down the house) is. As is the tumultuous relationship between Serdahl and Veronica, which, according to the Defendant, allegedly played a role in both instances. Serdahl was allegedly under the influence on both occasions. Serdahl was also inside the home when the fire was ignited with the assistance of an accelerant. Serdahl's feet were burned. All of these show the circumstances are sufficiently similar in kind.
[¶18] The dispute over this issue relates to whether the time between threat and arson is too remote to warrant admissibility. The United States simply contends there is no rational reason Serdahl waited five and a half years to commit the arson he threatened to do in 2013. The Defendant contends five and a half years is not too remote under the circumstances. The Court agrees.
[¶19] In United States v. Engleman, the Eighth Circuit instructed, "there is no absolute rule regarding the number of years that can separate offenses." 648 F.2d 473, 479 (8th Cir. 1981). In making the determination under this element, "the court applies a reasonableness standard and examines the facts and circumstances of each case." Id. In Engleman, the Eighth Circuit found a thirteen-year gap was not too remote in time. Id.
[¶20] Looking at the facts and circumstances known in this case and the circumstances surrounding Serdahl's 2013 threat, the five-and-a-half-year timeframe between events is not unreasonable and remote in time to warrant its exclusion. While the United States may be correct in asserting it is irrational for Serdahl to have waited five and a half years to commit the arson, that is an argument the United States can address to the jury. The gap in time is not so remote as to render it inadmissible.
iv. Supported by Sufficient Evidence
[¶21] This factor is uncontested. The police reports, at this stage, provide sufficient basis for the Court's preliminary ruling Serdahl's 2013 threat to burn the home down is admissible.
v. Potential Prejudice and Probative Value
[¶22] The probative value of Serdahl's 2013 threat outweighs and prejudice it may cause to the United States' case. The United States appears to argue the threat is more prejudicial than probative because it does not directly relate to the crime "as charged" against the Defendant. In other words, the evidence, according to the United States, is more prejudicial because it is extrinsic rather than intrinsic evidence. The Court disagrees this factor weighs in favor of a finding of greater prejudice.
[¶23] All evidence contrary to the United States position is by its very nature prejudicial to their case, just as all evidence the United States has against the Defendant is prejudicial to the Defendant. See United States v. Betcher, 534 F.3d 820, 825 (8th Cir. 2008) ("Rule 403 does not offer protection against evidence that is merely prejudicial in the sense of being detrimental to a party's case. The rule protects against evidence that is unfairly prejudicial." (quotation marks and citation omitted)).
[¶24] In essence, the United States argues because the evidence is extrinsic, the prejudicial effect outweighs the 2013 threat's probative value. This argument would circumvent the entire purpose of Rule 404(b) evidence. " Rule 404(b) applies only to extrinsic evidence." United States v. Buckner, 868 F.3d 684, 688 (8th Cir. 2017). Taking the United States at its word, all evidence offered under Rule 404(b) would have a prejudicial effect that would outweigh the probative value because it is extrinsic evidence. But extrinsic evidence is precisely the type of evidence Rule 404(b) governs.
[¶25] The United States argues that allowing this evidence will create a mini trial over the purported threats. It is clear to the Court the concern over whether a mini trial will occur is not so much a concern over actually having a separate trial. Rather, the concern is over whether the Defendant should be allowed to put on a full defense, including pointing the finger at Serdahl. Certainly, this will take time and energy, but the issue is not so complex as to warrant its exclusion. Such is the nature of trials. The Court cannot ignore the fact the Defendant has the right to present a meaningful defense. Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986). Allowing evidence of Serdahl's 2013 threat will not unduly prejudice the United States to the point it outweighs the threat's probative value.
vi. Threat Connecting Serdahl to the Arson
[¶26] Finally, the United States contends the threat insufficiently connects Serdahl to the Arson. In making this argument, the United States relies on United States v. Thibeaux, 784 F.3d 1221 (8th Cir. 2015). In Thibeaux, the Eighth Circuit concluded the district court did not abuse its discretion in excluding evidence relating to an alternative perpetrator defense where the subsequent incident was months after the crime charged and involved different circumstances. Id. at 1125-26. The Circuit Court also found the evidence was cumulative. Id. at 1126. In its reasoning, the Eighth Circuit held, "such evidence may be excluded where it does not sufficiently connect the other person to the crime, as, for example, where the evidence is speculative or remote, or does not tend to prove or disprove a material fact in issue." Id. (citation and quotation marks omitted).
[¶27] Here, the proffered evidence tends to prove Serdahl's intent and motive. Who started the fire appears to be a central issue for this trial. In deciding who started the fire, evidence relating to Serdahl's intent is directly applicable to the defense of this case. Also applicable to the defense is the issue of law enforcement's investigation. As discussed by the Defendant, his alternate theory is that law enforcement failed in their investigation to consider Serdahl as a suspect. This is especially important when it comes to the fact that Serdahl had previously threatened to burn down the house and the day of the fire was a day when Serdahl's feud with his mother was exposed. The Defendant is certainly free to point out the alleged failures of law enforcement in investigating this offense, which includes probing the issue of Serdahl's prior threat. In short, the threat connects Serdahl to the alleged arson because it speaks to his intent and motive to burn down the house while in an intoxicated and emotional state.
CONCLUSION
[¶28] In sum, the United States' arguments why Cody Serdahl's 2013 threat to burn down the home subject to the arson in this case should not be admissible go to the weight the prior threat should be given, not to whether it ought to be admissible. Each point made by the United States appears to be a proper argument reserved for consideration by the jury. Furthermore, the Court agrees that any harm caused by admitting Serdahl's prior threat can be adequately addressed by a limiting instruction outlining for the jury the proper scope and role of the evidence.
[¶29] Therefore, and as discussed above, the evidence of Cody Serdahl's 2013 threat to burn down the home in question is not intrinsic evidence but will nevertheless be admissible under Rule 404(b)(2) of the Federal Rules of Evidence. In these respects, the Defendant's Motion for Preliminary Ruling on Admission of Evidence is GRANTED IN PART and DENIED IN PART .
[¶30] IT IS SO ORDERED.