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United States v. Con-ui

United States District Court, M.D. Pennsylvania

March 1, 2017

UNITED STATES OF AMERICA
v.
JESSIE CON-UI, Defendant.

          MEMORANDUM

          A. Richard Caputo United States District Judge.

         Presently before me are multiple motions in limine filed by Defendant Jessie Con-ui (Docs. 922, 934, 950). For the reasons that follow: (1) Mr. Con-ui's Motion in Limine to Exclude the Presentation of the "Video-tape of the Murder, " Photographs of Blood-stained Keys and Clothing, and Post-mortem Photographs of the Victim's Body (Doc. 922, at 36), and Mr. Con-ui's Motion in Limine to “Limit the Evidence on the Statutory Aggravating Factor That the Murder of Officer Williams was Especially Heinous, Cruel and Depraved” (Doc. 922, at 52) will be GRANTED in part and DENIED in part; (2) Mr. Con-ui's Motion in Limine to Limit Victim-Impact Evidence to Members of the Victim's Family (Doc. 922, at 73) will be DENIED; (3) Mr. Con-ui's Motion in Limine to Exclude any Evidence That Is Not Particularly Relevant to One or More of the Statutory and Non-statutory Factors Alleged in the Amended Notice of Intent to Seek the Death Penalty (Doc. 922, at 42) will be NOTED; (4) Mr. Con-ui's Motion in Limine to Limit Proof of the Aggravating Factors Only to Those Facts Necessary to Establish a Conviction (Doc. 922, at 43) will be DENIED; (5) Mr. Con-ui's Motion in Limine to Bar Duplicative Use of Certain of the Aggravating Factors and Evidence (Doc. 922, at 47) will be DENIED; (6) Mr. Con-ui's Motion in Limine to Limit or Exclude Evidence Related to Mr. Con-ui's Alleged Participation in Additional Uncharged Acts of Serious Violence and Attempted Acts of Serious Violence (Doc. 922, at 52) will be GRANTED in part and DENIED in part; (7) Mr. Con-ui's Request for a Reliability Hearing (Doc. 922, at 20) will be DENIED; (8) Mr. Con-ui's Motion in Limine to Exclude From All Phases of the Penalty Case Evidence That Does Not Meet the Standards of Crawford v. Washington, 541 U.S. 36 (2004) (Doc. 922, at 25) will be GRANTED in part and DENIED in part; (9) Mr. Con-ui's Supplemental Motion in Limine to Exclude Numerous Recently-Provided Photographs Related to the Murder and Firearms Convictions Alleged in the Notice of Aggravating Factors (Doc. 934) will be DEFERRED to the time of trial; (10) Mr. Con-ui's Second Supplemental Motion in Limine to “Exclude Numerous Recently-Provided Autopsy Photographs, an Enhanced Version of the Video of the Murder, Still Photographs of the Murder from the Video, and a Sentencing Memorandum by the State Prosecutor in Mr. Con-ui's Arizona Murder Conviction” (Doc. 950) will be DENIED in part, GRANTED in part, and DEFERRED to the time of trial in part; and (11) Mr. Con-ui's request for an Amended Informational Outline (Doc. 922, at 12) will be DENIED.

         I. Factual Background

         Defendant Jessie Con-Ui is charged by indictment with two capital offenses and one non-capital offense. (Doc. 1). Counts One and Two of the indictment allege that, on February 25, 2013, Mr. Con-ui, while an inmate at the Canaan Federal Correctional Complex, committed a first-degree murder of Federal Corrections Officer Eric Williams (“Officer Williams”), in violation of 18 U.S.C. §§ 1111 and 1114(1). Count Three alleges that Mr. Con-ui knowingly possessed a prohibited object, namely, a sharpened weapon commonly known as a “shiv” or a “shank, ” in violation of §§ 1791(a)(2), (d)(1)(B), and (b)(3).

         The trial commences on April 24, 2017. On November 7, 2016, Mr. Con-ui filed the instant motions in limine and raised several additional issues for consideration. (Docs. 922, 934, 950). Oral argument on these motions was heard on January 11, 2017. The motions have been fully briefed and are now ripe for disposition. I will address each in turn.

         II. Discussion I. Mr. Con-ui's Motion in Limine to Exclude the Presentation of the “Video-tape of the Murder, ” Photographs of Blood-stained Keys and Clothing, and Post-mortem Photographs of the Victim's Body. (Doc. 922, at 36).[1]

         Mr. Con-ui asks that the Court preclude the presentation of:

(a) the video of “the actual murder of Officer Williams” (Doc. 922, at 37), and, in the alternative, allow selected stills from the video or the testimony of a witness who has viewed the video as to its contents;
(b) twenty-four (24) post-mortem photographs of Officer Williams' unclothed body displayed on an autopsy table;
(c) Officer Williams' bloody clothing and the blood-stained keys he was carrying; and
(d) Mr. Con-ui's bloody clothing.

Id. at 36-37. I will address each in turn.

         A. The Video of the Crime Charged[2]

         The video, described in sufficient detail in Mr. Con-ui's (Doc. 922, at 37) and the government's (Doc. 932, at 46-47) motions, depicts not only the crime charged, but also events leading up to it and the subsequent response by the prison staff. Mr. Con-ui concedes that “the video is highly probative of the circumstances of the murder” (Doc. 922, at 28), but argues nevertheless that because “the probative value of the evidence is such that its blinding impact will prevent or substantially impair the ability of jurors to consider and weigh evidence in mitigation, the unfairly prejudicial value of the evidence is manifest and should be excluded.” (Id. at 29) (footnote omitted). According to Mr. Con-ui, “[i]t is difficult to imagine that any [person] could receive a fair trial or that any jury could consider anything but a verdict of death after seeing the video.” (Id. at 28). Thus, Mr. Con-ui argues that because the presentation of the video may undermine the jury's constitutional obligation to consider a life sentence, the video ought to be excluded.

         However, ascertaining the truth is the jury's most critical function. See Tehan v. Shott, 382 U.S. 406, 416, 86 S.Ct. 459 (1966). In the instant case, the truth has been preserved on a recording. The video depicts Officer Williams as he is kicked down a flight of stairs, his efforts to escape, the infliction of over 200 stab wounds, kicks to the head, and other acts of violence. The video captures the very crime with which Mr. Con-ui is charged. It is not a photograph of the event from which the factfinder must infer what happened. What is captured on the video is exactly what happened. No witness is needed to relate what happened; no photographs taken after the fact are needed to aid in the determination of what happened; no other evidence is needed to assist in the determination of what happened; and, of importance, no determinations as to credibility are needed to evaluate the video. There the crime charged is, and the jury ought to have the most dependable evidence from which to decide this case.

         Under Federal Rule of Evidence 403, “[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403. Thus, when determining whether evidence violates Rule 403, courts must balance the probative value of the evidence against its prejudicial effect. United States v. Guerrero, 803 F.2d 783, 785 (3d Cir. 1986).

         I first note the dearth of capital cases in which the admissibility of a video capturing the crime was at issue. Notably, Mr. Con-ui does not cite to a criminal case which excluded such a video.[3] The standards governing the exclusion of a murder video, however, are the same as those governing the exclusion of any other piece of evidence alleged to be unfairly prejudicial. Thus, analogizing to photographic evidence might prove instructive.

         Generally, appellate courts have been reluctant to overturn determinations by district courts that photographs, even particularly “gruesome” ones, are not unfairly prejudicial and are, therefore, admissible. See, e.g., United States v. Fields, 483 F.3d 313, 354 (5th Cir. 2007); United States v. Rodriguez-Estrada, 877 F.2d 153, 155-56 (1st Cir.1989). This has been true even if the photographs are probative of a relevant, yet undisputed, fact. Old Chief v. United States, 519 U.S. 172, 186-87 (1997). Moreover, as the Tenth Circuit has stated, “[g]ruesomeness alone does not make photographs inadmissible.” United States v. Naranjo, 710 F.2d 1465, 1468 (10th Cir.1983). In fact, “admitting gruesome photographs of the victim's body in a murder case ordinarily does not rise to an abuse of discretion where those photos have nontrivial probative value.” Fields, 483 F.3d at 355; see also Kuntzelman v. Black, 774 F.2d 291, 292-93 (8th Cir.1985) (per curiam) (holding that the admission of “flagrantly gruesome” photographs did not violate the petitioner's right to due process because the photos “were at least arguably relevant and probative”); United States v. Treas-Wilson, 3 F.3d 1406, 1410 (10th Cir.1993) (autopsy and crime scene photographs, though graphic, were relevant to the determination of the defendant's intent and state of mind).

         Although no case is the same, and analogizing to photographs may be difficult, the above-cited authority does confirm, however, that no fixed rules apply to the careful balancing of fact-specific concepts like probativeness and unfair prejudice in considering the admission of an undeniably gruesome evidentiary material.

         I have independently examined the video at issue and find that it should not be excluded. I do not find that the video is merely “dragged in by the heels for the sake of its prejudicial effect, ” Fields, 483 F.3d at 354 (citation omitted), nor is there a “genuine risk that the emotions of the jury will be excited to irrational behavior, and that this risk is disproportionate to the probative value of the offered evidence.” United States v. Powers, 59 F.3d 1460, 1467 (4th Cir. 1995). The term "unfair prejudice, " as applied to a criminal defendant, "speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged." Old Chief, 519 U.S. at 180, 117 S.Ct. at 650. Here, the video depicts the very events underlying the murder charges against Mr. Con-ui, making it both relevant and highly probative on a number of issues of consequence that only the video can capture. The video at issue allows the jury to be a witness to the crime charged, and by having a more vivid picture of the incident, the jury might, for instance, be in a better position to make inferences about Mr. Con-ui's intent. More importantly, because the video captures conscious physical suffering by Officer Williams which did not stop Mr. Con-ui from further attacks, it is highly probative of Mr. Con-ui's intent to kill and consciousness of guilt. See United States v. Pinke, 614 Fed.Appx. 651 (4th Cir. 2015) (finding that the district court did not abuse its discretion in admitting videos of defendant assaulting another inmate and resulting injuries); United States v. Patrick, 513 Fed.Appx. 882 (11th Cir. 2013) (reversing a district court's exclusion of prison assault videos because they were "relevant and highly probative" to proving the crime).

         On the other side of the equation, I find that the presentation of the video would not be unfairly prejudicial.[4] The video is of good enough quality to allow the viewer to discern the movement of the persons involved, but of poor enough quality to guard against exposing the jury to gruesome depictions of the body, wounds, blood, and gore. The actions depicted in the video occur at some distance from the camera, which further alleviates concerns of the video's prejudicial impact. In fact, compared to what modern audiences are exposed to in the media, the video is somewhat muted for a crime of this magnitude and presents a soundless and largely bloodless version of the events. There is no close-up of the victim's or Mr. Con-ui's face, nor does the video show in any detail the injuries Officer Williams suffered as a result of the attack. “[H]owever, the vicious, brutal nature of a defendant's conduct is not itself sufficient to justify a complete exclusion of evidence tending to show the defendant engaged in those acts.” United States v. Lujan, 603 F.3d 850, 858 (10th Cir. 2010). Here, there is no “tendency to show”; the video shows the crime charged.

         Moreover, the government is “not required to sanitize its case because the victim has died, ” United States v. Werther, 2013 WL 1410136 *1 (E.D. Pa. 2013), nor will I allow Mr. Con-ui “to benefit from a Rule 403 exclusion for unfair prejudice simply because [his] conduct was of a grisly nature.” Lujan, 603 F.3d at 858. Otherwise, “the capital defendant would be rewarded for his greater level of violence . . . because the more heinous nature of the acts would make it more likely that the district court would exclude evidence of those acts . . . on the grounds of unfair prejudice.” Id. at 858-59. See also United States v. Smith, 459 F.3d 1276, 1296 (11th Cir. 2006) (“That the nature of the crime itself, and therefore the nature of the evidence tending to prove it, is emotionally charged does not mean that the prosecution must be deprived of its most probative evidence.“). “In a criminal trial, a jury is entrusted with the weighty obligation to find the facts and it is incompatible with that degree of trust to attempt to protect them from the evidence of the crime.” United States v. Tsosie, 288 F.App'x 496, 500 (10th Cir. 2008) (citation and quotation marks omitted).

         Mr. Con-ui's apparent willingness to concede certain facts, or conceding guilt, does not make the video irrelevant.[5] As the Supreme Court explained, "evidentiary relevance under Rule 401" is not "affected by the availability of alternative proofs, " such as a defendant's admission, and that the exclusion of relevant evidence "must rest not on the ground that other evidence has rendered it ‘irrelevant, ' but on its character as unfairly prejudicial.” Old Chief, 519 U.S. at 179, 117 S.Ct. at 649-50. Thus, Mr. Con-ui's potential concession as well as the proposed alternatives to showing the video do not undermine the high probative value of the video. See United States v. Sampson, 486 F.3d 13, 43-44 (1st Cir. 2007) (upholding the admission of autopsy photographs because they shed light on the manner in which each victim was killed; noting that although the government had other means of making its points, “within reasonable limits, the prosecution-even in a capital case-is entitled to present its case through the evidence it deems most appropriate”) See also United States v. Salameh, 152 F.3d 88, 122-23 (2d Cir. 1998) (no abuse of discretion to admit a “significant” number of “graphic” and “disturbing” photos of World Trade Center bombing victims, including corpse of a pregnant woman, despite defendants' stipulation offer). While prosecutorial need alone does not mean that probative value always outweighs prejudice, United States v. Frick, 588 F.2d 531, 538 (5th Cir. 1979), the more essential the evidence, the greater its probative value, and the less likely that a trial court should order the evidence excluded. See United States v. Mills, 704 F.2d 1553, 1560 (11th Cir.1983). As the Supreme Court has held, absent exceptional circumstances, “the prosecution is entitled to prove its case by evidence of its own choice” and a “criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case as the Government chooses to present it.” Old Chief, 519 U.S. at 186-87, 117 S.Ct. at 653. The full evidentiary force of the video is self-evident; it is the centerpiece of the government's case.

         Of course, I am mindful of the reasons which underlie Mr. Con-ui's objections and arguments about the video's impact. Having considered this issue carefully, I have determined that the best course of action is to allow only one viewing of the video. The government will be permitted to show the video in its case-in-chief during the guilt phase, but no other presentations of the video will be permitted, either at the guilt or penalty stage.[6]The jurors will not be allowed to view the video again during their deliberations at either stage as the video will not be taken to the jury room.

         Further, because no one angle captures all relevant events, the government will be permitted to edit the existing videos, which represent different angles of the incident, into one continuous, single-screen, video. The government may not enhance the video in any way, zoom in, or add any modifications except for arranging the sequence of the videos capturing different angles into one linear video.[7]

         I am sensitive to the argument that the jury's decision of whether or not to impose the sentence of death cannot be made “based on . . . caprice or emotion.” Gardner v. Florida, 430 U.S. 349, 357-58 (1977). However, my detailed jury instructions as well as the passage of time between the presentation of the video in the government's case-in-chief in the guilty phase and the jury's deliberation at the end of the penalty phase weeks later (including a break between the two phases) should soften those concerns.

         As to my bar on the presentation of the video at the penalty stage, although I agree that the video is highly relevant in light of the statutory aggravating factors set out in the government's notice of intent, a second showing of the video would constitute merely “a graphic depiction of an event that had already been thoroughly proven.” United States v. Bailey, 840 F.3d 99, 122 (3d Cir. 2016). More importantly, the standard governing admission of evidence at the penalty phase is different. The Federal Death Penalty Act, 18 U.S.C.A. § 3591-3598 (“FDPA”), is more restrictive than Rule 403. Specifically, 18 U.S.C. § 3593(c) permits exclusion if probative value is outweighed by the danger of prejudice, while the Rule 403 standard allows exclusion only if the probative value is substantially outweighed by the danger of prejudice. The FDPA, however, eliminates considerations of undue delay, waste of time and needless presentation of cumulative evidence from the court's calculus. 18 U.S.C. § 3593(c).

         A second showing of the video would greatly diminish its probative value. “Even though the two sets of videos were probative, . . . the law of diminishing marginal returns still operates. The probative value of each clip was reduced by the existence of the clips before it. . . . As a result, after one excerpt from each video was displayed, the probative value of the remaining excerpts became diminished because knowledge . . . had already been established . . . by the prior video excerpts.” United States v. Cunningham, 694 F.3d 372, 389-90 (3d Cir. 2012). Thus, I find that the “aggregate risk of unfair prejudice” is high, while the probative value of a second showing of the video low. Id. at 390.

         However, because a district court "is not required to scrub the trial clean of all evidence that may have an emotional impact, ” United States v. Ganoe, 538 F.3d 1117, 1124 (9th Cir. 2008), I will allow five (5) stills from the video at the penalty stage. Such stills would be probative by showing, for instance, that victim was alive and even conscious during the incident, that, even when faced with a badly injured victim, Mr. Con-ui did not stop from further attacks, and that Mr. Con-ui stopped the assault only to resume it a moment later after washing his hand. I find that the use of stills lessens the prejudicial impact enough to not run afoul of the FDPA's more restrictive balancing. The stills may still be gruesome, however, “[g]ruesome crimes result in gruesome photographs.” State v. Green, 274 Kan. 145, 148, 48 P.3d 1276 (2002). See also Gov't of V.I. v. Krepps, 438 F.App'x 86, 88-89 (3d Cir.2010) (affirming decision to allow jury to view photos of victim's mummified and partially decomposed body). These still photographs have particular probative value in light of the aggravating factors alleged by the government.

         I am mindful of due process concerns in this case, generally. The Due Process Clause guards against situations when “evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair.” Payne v. Tennessee, 501 U.S. 808, 825, 111 S.Ct. 2597 (1991) (citing Darden v. Wainwright, 477 U.S. 168, 179-83, 106 S.Ct. 2464 (1986)). Thus, I must ensure that the admission of evidence does not “so infect[] the sentencing proceeding with unfairness as to render the jury's imposition of the death penalty a denial of due process.” Romano v. Oklahoma, 512 U.S. 1, 12, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994). "[B]ecause a fundamental-fairness analysis is not subject to clearly definable legal elements, when engaged in such an endeavor a federal court must tread gingerly and exercise considerable self-restraint." Duckett v. Mullin, 306 F.3d 982, 999 (10th Cir.2002) (quotations omitted). I must ensure that Mr. Con-ui receives a fundamentally fair trial, a violation of which "could arise out of a single action or piece of evidence. It could also arise from the cumulative effect of a number of pieces of evidence in combination." United States v. Sampson, 335 F.Supp.2d 166, 183 (D. Mass. 2004). Thus, I will permit only one showing of the video at the guilt phase, followed by a presentation of five (5) stills at the penalty stage.

         B. Autopsy Photographs

         Next, Mr. Con-ui asks that I preclude the presentation of twenty-four “(24) postmortem photographs of Officer Williams' unclothed body displayed on an autopsy table.” (Doc. 922, at 38).

         The photographs show the victim's body from various angles and from various degrees of proximity. They all show the victim completely nude - the clothes apparently having been removed to facilitate the autopsy. Many show the size and shape of the wounds. The most disturbing of these show the victim's peeled off skin at the top of his head to facilitate the examination of the injuries to the head. That picture will be excluded from both phases of the trial. See United States v. Rezaq, 134 F.3d 1121, 1138 (D.C. Cir. 1998) (close-up photo of section of victim's skull, with skin removed, carried risk of significant prejudice; court stated that “photographs of gore may inappropriately dispose a jury to exact retribution”).

         Courts routinely admit autopsy photographs, even particularly "gruesome" ones. See, e.g., Fields, 483 F.3d at 354 (13 gruesome autopsy photos and 19 crime scene photos showing victim's wounds had probative value and therefore were admissible); Rodriguez-Estrada, 877 F.2d at 155-56; United States v. Eyster, 948 F.2d 1196, 1212 (11th Cir. 1991) (photos of victim's charred remains properly admitted despite defense stipulation as to cause of death); United States v. Soundingsides, 820 F.2d 1232, 1242-43 (10th Cir. 1987) (gruesome autopsy photos that painted a clearer picture of the victim's injuries, cause of death, and the defendant's malice aforethought admissible); Treas-Wilson, 3 F.3d at 1410 (graphic crime scene and autopsy photos relevant and admissible to prove defendant's state of mind). However, in none of those cases the crime at issue was captured by a video recording; rather, in each case, autopsy photographs constituted the central evidence against the defendants and were often more probative of the intent to kill than any other piece of evidence. That is not the case here. Moreover, the brutality of the murder is not an element the government must establish at the guilt stage; rather, its focus is, inter alia, on premeditation, motive, and intent. The presentation of the video of the murder covers those elements exhaustively. Thus, to minimize the risk of any unfair cumulative effect, I will not permit any autopsy photographs at the guilt phase.

         As to the penalty stage, because I find that the probative value of the autopsy photographs is not outweighed by their prejudicial effect, they will be permitted as especially relevant to the aggravating factor requiring the showing of serious physical abuse or torture at the time of the murder. The pictures, no doubt, are gruesome. However, given that one of the statutory aggravating factors is that the “defendant committed the offense in an especially heinous, cruel, or depraved manner in that it involved torture or serious physical abuse to the victim” 18 U.S.C. § 3592(c)(6), the rulemakers contemplated exposing the jury to evidence that would have to prove those very characteristics, and such evidence might often be graphic and disturbing. After all, evidence that intends to prove that a murder was heinous must be capable of proving that, and cannot sanitize what it seeks to establish. As already mentioned, gruesome murders produce gruesome photographs. Thus, following other courts, the autopsy pictures will be admitted during the penalty phase. See Sampson, 486 F.3d at 43-44 (upholding the admission in a capital sentencing of autopsy photographs); United States v. Ortiz, 315 F.3d 873, 897 (8th Cir. 2002) (in capital case admission of graphic photos of bloody corpse that corroborated testimony of victim's murder and established that it was heinous and depraved not abuse of discretion).

         The FDPA standard governing the admission of evidence at the penalty phase is more restrictive than Rule 403 by demanding exclusion if probative value is outweighed by the danger of prejudice (as opposed to “substantially” outweighed), and less restrictive by eliminating considerations of undue delay, waste of time and needless presentation of cumulative evidence from the court's calculus. 18 U.S.C. § 3593(c).

         Thus, the rulemakers intended for the courts to apply greater scrutiny to the balancing of probativeness against any prejudicial effect, yet were less concerned with the cumulative effect of the evidence so long as it survives the initial balancing. However, I am, again, cognizant of the overarching due process concerns in this case. As already mentioned, a violation of Mr. Con-ui's due process right to a fair trial may "arise out of a single action or piece of evidence. It could also arise from the cumulative effect of a number of pieces of evidence in combination." Sampson, 335 F.Supp.2d at 183. Here, although each autopsy picture may be admissible when examined individually, in the context of the admissibility of the murder video and in combination with other types of evidence, the aggregate effect may amount to a due process violation. Therefore, my ruling as to the admissibility of the autopsy pictures at the penalty phase is, in part, motivated by due process concerns which demand that I consider the case as a whole and assess the overall effect of all evidence which may involve the danger of unfair prejudice. I am also motivated by the diminished probative value of each additional picture depicting the same, or similar, condition. As the Third Circuit has stated in relation to video clips, “[t]he probative value of each clip was reduced by the existence of the clips before it. . . . As a result, after one excerpt from each video was displayed, the probative value of the remaining excerpts became diminished because knowledge . . . had already been established . . . by the prior video excerpts." Cunningham, 694 F.3d at 389-90. Thus, the depravity of the crime charged can be proven without the need to display every single autopsy picture in order to mitigate against the risk that the aggregate effect of too many photographs will diminish their overall probative value and run afoul of 18 U.S.C. § 3593(c)'s balancing.

         As such, although the challenged photographs have high probative value and “they are in no sense so shocking as to . . . unfairly prejudice[] the defendant, ” Naranjo, 710 F.2d at 1469, I will only permit five (5) autopsy photographs at the penalty phase. See Ortiz, 315 F.3d at 897 (admission of graphic photos of bloody corpse not abuse of discretion, as they corroborated testimony regarding victim's murder and established that it was heinous and depraved).

         C. Photographs of the Crime Scene

         Mr. Con-ui also asks that I preclude the presentation of a number of photographs taken at the crime scene. Because they support the penalty phase aggravating factor that the crime was committed in a depraved and heinous manner, by, for instance, pointing to the victim's blood loss during the assault, I will allow one picture of the crime scene during the penalty phase. As to the guilt stage, crime scene photographs are cumulative in light of the admissibility of the video, and because they provide nothing in the way of new evidence, they will be excluded, given their low probative value.

         However, a close-up picture of Officer Williams' face while he is carried on a stretcher will be permitted at both stages. It is the only picture depicting the extent of the injuries to his face shortly after the incident when the medical personnel tended to the injured victim. “The bloodied head and face of the victim gives an indication, although admittedly an imperfect one, of how the victim must have appeared to [the defendant] at the end of the [assault]. Without these photos, the prosecution would have been handicapped in its ability to convey the nature and extent of the beating to the jurors.” United States v. Sarracino, 340 F.3d 1148, 1169 (10th Cir.2003). Therefore, I find that the danger of unfair prejudice does not outweigh the photograph's high probative value. See Sampson, 335 F.Supp.2d at 183 (“[T]he court admitted only a small subset of the proffered photographs. The photographs admitted were those that most closely depicted the condition of the victims at the time they were left by the defendant.”); Naranjo, 710 F.2d at 1468 (admission of photograph depicting entry wound at the right upper lip of victim, “and a great deal of blood on the pillow, bedsheets, and the victim's face” was not “unduly nor designedly inflammatory”).

         D. Photographs of Mr. Con-ui's Bloody Clothing

         The pictures provided by the defense for in camera review do not readily show any blood on Mr. Con-ui's clothing. As such, their probative value is questionable. To the extent, however, that those or other photographs of Mr. Con-ui's clothing help link him to the crime charged because they were found in Mr. Con-ui's cell after the incident and have been positively tested for the victim's DNA, they will be permitted in the government's case-in-chief in the guilt phase.

         E. Photographs of Officer Williams' Bloody Keys and Clothing[8]

         Preliminary, I find that the picture of Officer Williams' bloody keys has no probative value and will be excluded.

         As to the photographs of the victim's bloody clothing, “[i]n homicide prosecutions, the general rule is that the clothing worn by the victim at the time of the killing is admissible in evidence, even where its introduction may be prejudicial to the accused.” Sampson, 335 F.Supp.2d at 184 (citation omitted). The Third Circuit also has held that “[p]istols, fruits of the crime, clothing, parts of the body of the person killed, everything pertaining to the crime which will aid the jury in its consideration of the (alleged) crime and the guilt or innocence of the accused, is admissible. This has been the law for centuries.” United States v. Bamberger, 456 F.2d 1119, 1127 n. 5 (3rd Cir. 1972) (citation omitted). See also Todd v. Stegall, 2000 WL 654960 (E.D. Mich. 2000) (commenting that victim's clothing properly was admitted to show the manner and means of the assault and ensuing death). However, “in the context of [a] capital case, there [may be] unique considerations that indicate[] that exclusion [is] appropriate.” Sampson, 335 F.Supp.2d at 184-85. As the Sampson court held,

[w]hile the shirts were, as described above, relevant to material issues in this case, it is likely that the jury would not have considered them solely on those issues. During the trial, the prosecution produced evidence, especially through the confessions of the defendant, that was more directly probative of the intent element of serious physical abuse. Rather than as circumstantial evidence of intent, the jury would likely have regarded the shirts as powerful and immediate symbols of the victims and the brutality of their murders.

Id. at 185. Similarly, I find that, in the context of this case, the probative value of the victim's bloody clothing is low when balanced against the risk of unfair prejudice. First, the condition of the clothing as displayed in the photographs may not be the same as the condition of the clothing at the time of the assault because the clothes were removed and cut when rescuers attempted to revive Officer Williams. It is also likely that reanimation and rescue efforts increased the amount of blood on the clothes, which may distort the jury's understanding of the assault. Finally, the presence of the victim's flesh in the photographs strongly cautions against their admissibility. Because I fear that the clothing may be introduced “only to arouse and inflame the emotions of the jury, ” State v. Steele, 120 Ariz. 462, 586 P.2d 1274, 1277-78 (1978), they will be excluded.

         II. Mr. Con-ui's Motion in Limine to Limit Victim-Impact Evidence to Members of the Williams Family. (Doc. 922, at 73).

         Mr. Con-ui asks the Court to limit the scope of victim-impact testimony to exclude opinions about the crime, the Mr. Con-ui, and the appropriate sentence, and to confine victim-impact evidence to members of the Williams family only.

         In Payne v. Tennessee, 501 U.S. 808 (1991), the Supreme Court, by reversing its prior decision in Booth v. Maryland, 482 U.S. 496 (1987), sanctioned the use of "'victim-impact' evidence relating to the personal characteristics of the victim and the emotional impact of the crimes on the victim's family." Id. at 817. The FDPA also explicitly refers to the "effect of the offense on the victim and the victim's family." 18 U.S.C. § 3593(a). However, although both Payne and the FDPA invoke the phrase “victim's family, ” which may suggest an important limitation on the scope of this type of evidence, “[c]ourts have interpreted Payne and the FDPA to permit similarly situated witnesses, i.e., family members, friends, and co-workers, to give victim-impact testimony.” United States v. Lawrence, 735 F.3d 385, 405 (6th Cir. 2013). Indeed, allowing evidence from non-family members about their own grief and loss is consistent with an overwhelming weight of authority in this country. See, e.g, United States v. Whitten, 610 F.3d 168, 187-88 (2d Cir. 2010); United States v. Bolden, 545 F.3d 609, 626 (8th Cir.2008); United States v. Fields, 516 F.3d 923, 946 (10th Cir. 2008); United States v. Barrett, 496 F.3d 1079, 1099 (10th Cir. 2007); United States v. Nelson, 347 F.3d 701, 713-14 (8th Cir. 2003); United States v. Bernard, 299 F.3d 467, 478 (5th Cir.2002); United States v. Battle, 173 F.3d 1343 (11th Cir. 1999).

         Mr. Con-ui insists, however, that a recently decided case by the Supreme Court, Bosse v. Oklahoma, 137 S.Ct. 1, 1, 196 L.Ed.2d 1 (2016) (per curiam) requires a reconsideration of the now well-settled principle that the scope of permissible victim-impact evidence extends to friends and co-workers. Mr. Con-ui contends that Bosse's citation to Payne overrules or undermines the Second, Fifth, Sixth, Eighth, Tenth, and Eleventh Circuit decisions that explicitly allow victim-impact evidence from non-family members. I disagree.

         The principal problem with Mr. Con-ui's argument is his inaccurate reading of Bosse and his imprecise characterization of Bosse's holding. Mr. Con-ui writes:

Bosse underscores the fact that victim-impact evidence remains limited to “‘victim impact' evidence relating to the personal characteristics of the victim and the emotional impact of the crimes on the victim's family.”

(Doc. 922, at 73-74) (citing Payne, 501 U.S. at 817) (emphasis added). However, Bosse states merely that:

the Court [in Payne] granted certiorari to reconsider [the] ban on victim impact evidence relating to the personal characteristics of the victim and the emotional impact of the crimes on the victim's family.

Bosse, 137 S.Ct. at 1-2 (citation omitted). As such, nowhere does Bosse proclaim that victim-impact evidence “remains limited, ” as Mr. Con-ui claims, to members of the victim's family. In fact, the citation invoked by Mr. Con-ui appears in the second sentence of the Bosse decision and serves merely as an introductory background rather than a dispositive ruling on the admissibility of victim-impact testimony by friends and co-workers. Instead, the proper reading of Payne, and thus, Bosse's reference to Payne, is merely that “the Eighth Amendment erects no per se bar” to the admission of victim-impact evidence and to prosecutorial argument on that subject. Payne, 501 U.S. at 827. Put simply, Payne held that the Eighth Amendment permits capital sentencing juries to consider victim-impact evidence from family members; it did not hold, as Mr. Con-ui appears to contend, that the Eighth Amendment limits capital sentencing juries to consider victim-impact evidence only from family members.

At issue in Payne was testimony from a family member of the victims; but while the holding of Payne is therefore expressed in those terms, nothing in the Court's reasoning suggests that the principle is so limited. Elsewhere in the opinion, the Court states that a factfinder should be allowed to measure the “specific harm” the defendant caused by committing the murder, a phrase broad enough to embrace the loss felt by friends or co-workers who were close to the victim. The opinion refers repeatedly to the specific harm caused as encompassing loss felt by “community” or “society.”

Whitten, 610 F.3d at 187-88 (internal citations omitted). More importantly, a distinction between victim-impact testimony by non-family and family members is a dubious one. The victim-impact evidence by a friend or co-worker may not be materially distinguishable from that offered by a sibling. Both may meaningfully touch upon the same issues of loss and grief. Mr. Con-ui's strict construction of the language in Payne would preclude any victim-impact statements in a case where the victim had no family but many friends, or preclude critical victim-impact testimony from a life-long, yet unmarried, partner of the victim. None of these issues were taken up by the Supreme Court in its short, per curiam decision in Bosse, which focused on the scope of victim-impact testimony, rather than its source, as Mr. Con-ui seems to suggest.

         Therefore, I join the overwhelming majority of courts in finding that “the Constitution allows evidence from non-family members about their own grief and about the loss felt by other non-family members, ” Whitten, 610 F.3d at 188, and nothing in Bosse requires me to reexamine that principle. Thus, Mr. Con-ui's motion will be denied.

         As to the scope of victim-impact evidence, the limitations are well-established. The Supreme Court permits testimony which relates “to the personal characteristics of the victim and the emotional impact of the crimes[.]” Payne, 501 U.S. at 817. As Bosse recently reaffirmed, the admission of “characterizations and opinions about the crime, the defendant, and the appropriate sentence violates the Eighth Amendment[.]” Bosse, 137 S.Ct. at 2 (quoting Payne, 501 U.S. at 830 n.2). I have no reason to doubt that the government is aware of these important limitations.

         III. Mr. Con-ui's Motion in Limine to Exclude any Evidence That Is Not Particularly Relevant to One or More of the Statutory and Non-statutory Factors Alleged in the Amended Notice of Intent to Seek the Death Penalty. (Doc. 922, at 42).

         Mr. Con-ui argues that the mere fact that certain evidence is admitted at the first stage of the trial does not make it automatically relevant on the issue of punishment. Mr. Con-ui would like to reserve the right to object to any evidence introduced at the first stage of the trial if the evidence is not also relevant on the issue of punishment. It is so noted.

         IV. Mr. Con-ui's Motion in Limine to Limit Proof of the Aggravating Factors Only to Those Facts Necessary to Establish a Conviction. (Doc. 922, at 43).

         Mr. Con-ui argues that the circumstances underlying each of the three convictions set out in the amended notice of intent are not particularly relevant to the sentencing decision, and the government should not be allowed to “re-try the facts and circumstances of these three past offenses.”[9] (Id. at 44). Specifically, Mr. Con-ui asks this Court to confine the government's proofs to documents that only establish the fact of the conviction because “[a]ny other course will require a trial-within-a-trial of the facts and circumstances of the underlying offenses.” (Id. at 43-44).

         I note at the outset that I will not allow the government to “re-try” the facts of Mr. Con-ui's previous convictions, nor will the presentation of evidence related to those convictions amount to a “trial-within-a-trial.” That is, however, not to say ...


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