Opinion
Case No. 3:18-cr-00019-LRH-CLB
11-23-2020
UNITED STATES OF AMERICA, Plaintiff, v. STONEY PRIOR Defendant.
ORDER
On September 3, 2020, the Grand Jury returned a superseding indictment on two counts of Second-Degree Murder Within Indian Country, pursuant to 18 U.S.C. §§ 1111, 1151, 1153, for the killings of A.S. and A.H., two Native American women on the tribal lands of the Fort McDermitt Indian Reservation on or about January 31, 2018. ECF No. 105. Trial was set to begin December 7, 2020, with jury selection to take place in Elko, Nevada, on December 3 and 4, 2020; however, due to the rise in positive COVID-19 cases in both Washoe and Elko Counties, the Court vacated the trial date to protect the health and safety of all involved in this case. ECF No. 174.
Before the Court is Defendant's motion in limine (ECF No. 162) to preclude certain evidence under Federal Rules of Evidence 401, 402, 403, and 404, and the Government's motion in limine (ECF No. 168) to preclude impeachment of witnesses by cross-examination of their criminal history. The Government responded to Defendant's motion (ECF No. 173); Defendant did not respond to Government's motion. For the following reasons, the Court grants in part and denies in part Defendant's motion and grants the Government's motion.
I. LEGAL STANDARD
A motion in limine is "used to preclude prejudicial or objectionable evidence before it is presented to the jury." Stephanie Hoit Lee & David N. Finley, Federal Motions in Limine § 1:1 (2019). The decision on a motion in limine is consigned to the district court's discretion— including the decision of whether to rule before trial at all. See Hawthorne Partners v. AT&T Techs., Inc., 831 F. Supp. 1398, 1400 (N.D. Ill. 1993) (noting that a court may wait to resolve the evidentiary issues at trial, where the evidence can be viewed in its "proper context"). Motions in limine should not be used to resolve factual disputes or to weigh evidence, and evidence should not be excluded prior to trial unless the "evidence is clearly inadmissible on all potential grounds." Indiana Ins. Co. v. Gen. Elec. Co., 326 F. Supp. 2d 844, 846 (N.D. Ohio 2004). Even then, rulings on these motions are not binding on the court, and the court may change such rulings in response to developments at trial. See Luce v. United States, 469 U.S. 38, 41-42 (1984).
Generally, all relevant evidence is admissible. FED. R. EVID. 402. Evidence is relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence." FED. R. EVID. 401. The determination of whether evidence is relevant to an action or issue is expansive and inclusive. See Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384-87 (2008). However, the court may exclude otherwise relevant evidence "if its probative value is substantially outweighed by the danger of" unfair prejudice. FED. R. EVID. 403. Further, evidence may be excluded when there is a significant danger that the jury might base its decision on emotion, or when non-party events would distract reasonable jurors from the real issues in a case. See Tennison v. Circus Circus Enterprises, Inc., 244 F.3d 684, 690 (9th Cir. 2001); United States v. Layton, 767 F.2d 549, 556 (9th Cir. 1985).
II. DISCUSSION
Defendant's motion in limine (ECF No. 162) is denied in part and granted in part.
First, Defendant seeks exclusion of Defendant's school suspension history, criminal history, including his past conviction for rape, and rumors that he is a "child molester". The Government argues this motion should be denied as moot because it has no intention of introducing any of the listed evidence in its case-in-chief. It reserves the right to introduce this evidence should defendant open the door and/or choose to testify. It also notes that it intends to have witnesses G.C. and R.S. testify that Defendant confessed to them that he killed A.H. and A.S., and did so because they were "calling him a molester," a "child molester," and a "rapist." The Government argues that such evidence is admissible as both confessions by Defendant and as evidence of motive. The Government does not intend to prove that the statements are true by introducing his sexual assault conviction, that he is a registered sex offender, or any other "rumor." The Court finds that this is admissible evidence. See FED. R. EVID. 801(d)(2) (opposing party's statement). The Court is inclined to offer a cautionary instruction to ensure the jury considers this evidence for the limited purpose for which it is intended to be introduced. The Court suggests the parties discuss a mutually agreed upon cautionary instruction in advance of trial.
Second, Defendant seeks to exclude 461 calls Defendant has made while in jail, or in the alternative, require the Government to articulate which calls it intends to introduce at trial. At the time of the Government's filing, it articulates that it provided Defendant with a single jail call that it intends to introduce in its case-in-chief, but argues that it reserves the right to introduce additional jail calls after it hears Defendant's case and cross-examination of certain Government witnesses. The Court finds that the Defendant will have had the jail calls for more than 2 years prior to trial—the Government provided the 461 jail calls to defense on December 3, 2018. That is more than enough time for the Defendant to become well versed in the contents of these calls. The Government has also articulated the call it intends to use in its case-in-chief, and that others will be in response to Defendant's case and cross-examination of witnesses. The Court finds that a blanket exclusion of these calls without context is improper. The Court defers ruling on the admissibility of each call based on the relevancy or prejudicial effect of the call until it can be considered in light of the evidence presented at trial, or Defendant can articulate why the Court should exclude a particular call on these grounds. Likewise, the Court will not rule on the admissibility of the jail calls from September and October 2020, disclosed to Defendant on November 3, 2020, until a motion as to these specific calls is submitted.
The Defendant further requests that any jail call be "sanitized" to preclude any reference that Defendant is in custody. The Court agrees with the Government that if it intends to introduce a jail call into evidence, it must be done properly, which would include authenticating the call and proving that it was Defendant that made the call. Here, there is an "obvious and relevant reason" to reference defendant's custodial status—to authenticate and properly admit evidence—and therefore, the Court will permit the Government to offer evidence that would indicate Defendant was/is in custody. See U.S. v. Washington, 462 F.3d 1124, 1137 (9th Cir. 2006). The Court suggests that the parties come to a mutually acceptable agreement or stipulation on how calls will be introduced. The Court notes that it would also be inclined to give a cautionary jury instruction and suggests that the parties discuss a mutually acceptable instruction in advance of trial.
Finally, Defendant seeks to preclude family members of the victims from wearing "expressive clothing or engaging in other visual representations memorializing the victims." It is the Court's view that such clothing and representations do not have a place in the Courtroom. The Court will instruct security officers and U.S. Marshals to remind those seated in the gallery that neither their dress nor any visual representations should appeal to sympathy for the victims or attempt to illicit strong feelings of prejudice or support for either side. The Court requests the parties articulate this ruling to any individuals they expect will attend the trial.
III. CONCLUSION
IT IS THEREFORE ORDERED that Defendant's motion in limine (ECF No. 162) is DENIED in part and GRANTED in part.
IT IS FURTHER ORDERED that the Government's motion in limine (ECF No. 168) is GRANTED; Defendant's failure to respond constitutes consent to granting this motion. See LCR 47-3.
IT IS FURTHER ORDERED that Defendant's motion to add an exhibit to his motion to suppress evidentiary hearing exhibit list (ECF No. 170) is GRANTED. Given that the Government does not oppose the inclusion (see ECF No. 175), the Court will permit Defendant to add, as Exhibit 513, the "uncorrupted version of Dr. Leany's report." Because the report contains information protected by HIPAA, the Court permits Defendant to file this exhibit under seal.
IT IS SO ORDERED.
DATED this 23rd day of November, 2020.
/s/_________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE