Opinion
CRIMINAL NO. CCB-02-0410
April 9, 2004
MEMORANDUM AND ORDER
Counsel for Keon Moses has filed Motions in Limine to Exclude Testimony of Royal Downs (docket no. 357); to Exclude Evidence of the Pearson/Hargrove Murders (docket no. 358); and to Exclude Evidence of the Underlying Facts of the Byron Parker Shooting (docket no. 356). In those motions, he renews aspects of his earlier Motion for Pretrial Ruling on Sufficiency and/or Reliability of Evidence Supporting Aggravating Factors (docket no. 115), which was denied in the pretrial context. Similarly, counsel for Michael Taylor has filed an Omnibus Motion in Limine for Sentencing Relief (docket no. 354), which (1) asks the court to rule on the reliability of the government's proof of unadjudicated violent conduct before it is offered to the jury; (2) seeks to exclude all juvenile conduct as aggravating factors (e. g., the murders of Spain, Harris, Cromwell, and Hamlin); and (3) seeks to exclude or restrict victim impact testimony within the limits set by the Supreme Court inPayne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597 (1991).
Moses and Taylor join in each other's motions, as they have throughout the trial and sentencing proceedings, to the extent relevant.
Regarding the reliability of evidence of unadjudicated criminal conduct, the court adopts the reasoning of United States v. Beckford, 964 F. Supp. 993 (E. D. Va. 1997), finding it appropriate to require a specific proffer from the government, including the taking of testimony if that appears necessary, before the evidence is admitted, sufficient for the court to determine reliability before the evidence is presented to the jury. 964 F. Supp. at 1000. See also United States v. Friend, 92 F. Supp.2d 534, 535-37, 543-45 (E. D. Va. 2000); United States v. Davis, 912 F. Supp. 938, 941 (E. D. La. 1996). The court also must determine that the probative value of the proffered evidence is not outweighed by "the danger of creating unfair prejudice, confusing the issues, or misleading the jury. " 18 U.S.C. § 3593(c); see also Beckford, 964 F. Supp. at 1005. In that regard, the government made a sufficient proffer, supported by FBI 302's, court records, transcripts of audiotaped conversations, and other information to establish that the evidence offered to prove the statutory aggravator of the Parker conviction and the non-statutory aggravators of the James murder (as to Moses), and the Cromwell and Hamlin murders (as to Taylor), is reliable and that its probative value is not outweighed by any unfairly prejudicial effect. Further, evidence of Mr. Moses's involvement in the Parker shooting is sufficient to prove the statutory aggravator of prior conviction of a state offense punishable by a term of imprisonment for more than one year involving the use or attempted or threatened use of a firearm against another person. See 18 U.S.C. § 3592(c)(2); United States v. Higgs, 353 F.3d 281, 316 (4th Cir. 2003).
A ruling on the evidence related to the Pearson and Hargrove murders has been reserved pending review of the government's proffer and further discussion regarding the possible testimony of Tavon Mints and Royal Downs. The court understands the government may withdraw its request to introduce some or all of this evidence.
Taylor's motion to exclude categorically evidence of juvenile conduct as an aggravating factor (e. g., the murders of Cromwell, Hamlin, Spain, and Harris) is not well supported by case law and will be Denied The jury is entitled to receive a broad range of relevant information about the defendant at sentencing. Indeed, it would be incongruous to permit the jury to hear and consider extensive mitigating evidence about Mr. Taylor's juvenile history but entirely preclude evidence about violent or otherwise aggravating conduct. Further, the murders about which evidence has been proffered are not remote; all occurred in 2001 shortly before Mr. Taylor's 18th birthday.
Taylor's motion regarding victim impact testimony is largely moot, as the government agreed to instruct its witnesses concerning the appropriate limits on their testimony and had no objection to the court also cautioning the witnesses out of the presence of the jury, which was done. The limits set in Payne, permitting testimony about the victim's personal characteristics and the impact of the crime on his family, 111 S.Ct. at 2608; see also id at 2612 (O'Connor, J., concurring), were observed. The oral motion made by counsel for Mr. Moses that the government not be allowed to present more than one witness per victim was Denied See United States v. Nelsoa 347 F.3d 701, 712-13 (8th Cir. 2003). Unduly prejudicial or cumulative testimony, however, will be excluded.
Accordingly, the motions are Denied (No. 356); Reserved (No. 357 and 358); or Granted in part and Denied in part (No. 354) as stated above.
SO ORDERED.