United States District Court, D. Minnesota
ORDER ON MOTIONS IN LIMINE
Nancy
E. Brasel United States District Judge.
Defendant
Darwin Lee Lussier, Sr. is charged with Assault with a
Dangerous Weapon in violation of 18 U.S.C. §§
113(a)(3), 1151, and 1153(a) and Assault Resulting in Serious
Bodily Injury in violation of 18 U.S.C. §§
113(a)(6), 1151, and 1153(a). Trial is set to begin June 17,
2019, and a pretrial conference was held June 14, 2019, where
the parties argued motions in limine. [ECF Nos. 68,
69, 70, 75, 76, 77, 78, 79, 80.]
BACKGROUND
At
approximately 1:22 p.m. on October 7, 2018, D.M.N. placed an
emergency call to the Red Lake Department of Public Safety
Dispatch Center requesting help from the Red Lake Police
Department. The dispatcher was unable to get any specifics
regarding D.M.N.'s need for assistance and the call was
disconnected. D.M.N. called the Red Lake Department of Public
Safety Dispatch two more times in rapid succession. The
second telephone call was disconnected almost immediately. On
the third call, D.M.N. informed dispatch that she was at
Defendant's residence in Circle Pines and that she needed
help because she had been abused, sustained injuries, and was
being threatened with a weapon. D.M.N. placed a final
emergency call at approximately 1:28 p.m. D.M.N. reported to
the dispatcher that she had been clubbed over the head.
D.M.N. told dispatch that after Defendant assaulted her, he
fled their residence. D.M.N. requested medical assistance
because she was bleeding from head. Law enforcement responded
to D.M.N.'s request for assistance.
As a
result of the events of October 7, 2018, a grand jury
returned an indictment charging Defendant with Assault with a
Dangerous Weapon in violation of Title 18, United States
Code, Sections 113(a)(3), 1151, and 1153(a), and Assault
Resulting in Serious Bodily Injury in violation of Title 18,
United States Code, Sections 113(a)(6), 1151, and 1153(a).
The parties have filed several motions in limine and
other pretrial motions. The Court addresses each pending
motion, in turn.
ANALYSIS
I.
Government's Motions in Limine
A.
To Allow 404(b) Evidence
The
government moves the Court for an order regarding the
admissibility of evidence of prior bad acts under Federal
Rule of Evidence 404(b). [ECF No. 68.] The government seeks
to offer evidence of Lussier's prior alleged assaultive
behavior towards D.M.N. The government indicated at the
pretrial that it was withdrawing its motion with respect to
Lussier's alleged prior alleged assaults of G.B. (2016
and 2017 assaults) because it is unable to locate G.B.
Lussier argues that the prior allegations should be excluded
because they are propensity evidence and constitute mere
allegations of quasi-assaultive behavior.
Rule
404(b) of the Federal Rules of Evidence provides that
“[e]vidence of a crime, wrong, or other 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). But a party
may admit that evidence “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). Rule 404(b) is a
“rule of inclusion, such that evidence offered for
permissible purposes is presumed admissible absent a contrary
determination.” United States v. Johnson, 439
F.3d 947, 952 (8th Cir. 2006). “Evidence of prior bad
acts is admissible if (1) the evidence is relevant to a
material issue; (2) the prior bad acts are similar in kind
and reasonably close in time to the crime charged; (3) there
is sufficient evidence to support a finding by the jury that
the defendant committed the prior acts; and (4) the potential
prejudice of the evidence does not substantially outweigh its
probative value.” United States v. Anderson,
879 F.2d 369, 378 (8th Cir. 1989). The Eighth Circuit has
ruled that rule 404(b) permits admission of such evidence
“unless it tends to prove only the defendant's
criminal disposition.” United States v. Adams,
898 F.2d 1310, 1313 (8th Cir. 1989) (quoting United
States v. O'Connell, 841 F.2d 1408, 1422 (8th Cir.
1988)).
The two
alleged prior offenses proffered by the government of
assaultive behavior by Lussier towards D.M.N. meet the
requirements of 404(b). They are similar in kind and close in
time to the charged offense, and they are relevant to the
issues of intent, absence of mistake, and lack of accident.
To prove the prior alleged assaults, the government proffers
that it intends to call D.M.N. to testify as to the events
she experienced first-hand. Admission of the prior offenses
is more probative than prejudicial. Evidence of past crimes
can be probative of a defendant's intent to commit a
similar act, especially in domestic violence cases. See
United States v. Littlewind, 595 F.3d 876, 881 (8th Cir.
2010) (The “relative probative value of prior crime
evidence is increased by the fact that [both] offenses were
associated with the same victim.”) While the Court
understands the concerns regarding propensity, in this case
the evidene is more probative than prejuicial, and concerns
regarding propensity will be addressed with a limiting
instruction. See United States v. Lucas, 521 F.3d
861, 866 (8th Cir. 2008) (“A limiting instruction
diminishes the danger of unfair prejudice.”). The
government's motion is granted with respect to D.M.N.
B.
Regarding Bad Acts/Convictions of Witnesses
The
government requests that the Court preclude the defense from
offering evidence of or cross-examining any witness regarding
prior bad acts or convictions of a witness to only those
matters permitted under Fed.R.Evid. 404(b), 608, and 609,
without first providing a basis for inquiry of the alleged
bad act or conviction outside the presence of the jury so
that the government can be heard on the admissibility of such
evidence. [ECF No. 69.] Lussier opposes this motion. This
motion, as it relates to G.B., is now moot as the government
no longer intends to call G.B. to testify.
With
respect to any prior bad acts of D.M.N., Lussier indicated at
the pretrial that he does not intend to offer evidence
relating to the government's decision not to charge the
Defendant with kidnapping based upon D.M.N.'s report to
law enforcement. The two issues that were raised at the
pretrial were (1) D.M.N.'s alleged lies to a federal
agent, and (2) her alleged EBT card fraud. The parties appear
in agreement that cross-examination on these issues is
allowable as cross-examination by contradiction, and the
Court agrees. Any ruling regarding extrinsic evidence of
these allegations is reserved for trial.
C.
To Preclude Mention of Punishment
The
government requests to preclude Lussier from making any
reference to the sentence he may receive if convicted. [ECF
No. 70.] Lussier does not object. This motion is granted as
unopposed.
II.
Lussier's Motions in Limine
A.
To Exclude Character Crimes, Wrongs, Other Acts, and Prior
Convictions
Lussier
requests that the Court preclude the government from
impeaching the Defendant or otherwise offering (1)
inadmissible character, crimes, wrongs, or other acts
evidence, and (2) prior conviction evidence. [See
ECF No. 75.] Specifically, the Defendant argues, first, that
all character and “other bad acts evidence”
regarding allegations of assaultive behavior towards D.M.N.
should be excluded as irrelevant and impermissible propensity
evidence, remote in time to the crimes charged, not provable
by the preponderance of the evidence gatekeeping standard,
and more prejudicial than probative. Second, the Defendant
argues that his prior conviction from 2005 for possession of
an unregistered firearm should be excluded under Fed.R.Evid.
609.
The
first portion of this motion, regarding Lussier's alleged
prior assaultive behavior, is addressed above, and the motion
is denied.
With
respect to Lussier's conviction from 2005, the use of
convictions greater than 10 years old is limited by
Fed.R.Evid. 609(b). The government concedes this. Thus, the
2005 conviction is inadmissible and the motion is granted.
B.
For Attorney-Conducted Voir Dire
Lussier
requests that the Court allow counsel to question the jury on
the topic of implicit bias. [ECF No. 76.] The government does
not object. The Court will allow each party 15 minutes of
voir dire.
C.
Regarding Irrelevant and Prejudicial Evidence and
Argument
Lussier
seeks preclusion of certain evidence and argument as
irrelevant and prejudicial per Federal Rules of Evidence 402
and 403. [ECF No. 77.] The Court addresses each subpart of
this motion in turn.
i.
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