United States v. Jordan

• Decision Date: 06 May 2014
• Docket Number: Criminal Case No. 04-cr-00229-LTB
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. MARK JORDAN, Defendant.
• Court: U.S. District Court — District of Colorado

UNITED STATES OF AMERICA, Plaintiff, v. MARK JORDAN, Defendant.

Criminal Case No. 04-cr-00229-LTB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Dated: May 6, 2014

Lewis T. Babcock, Judge

ORDER

This case is before me on Defendant's Objection to New Government Evidence [Doc # 700]. By Order dated March 21, 2014, I ordered that this motion be held in abeyance pending further briefing by the parties regarding statements Mr. Stone made after he was stabbed. This briefing has been completed, and I now find and conclude as follows:

Before addressing whether Mr. Stone's statements after he was stabbed are admissible as dying declarations, I must determine whether these statements may be considered in the context of Defendant's motion for a new trial even though they were excluded at Defendant's original trial. The parties have not cited any Tenth Circuit authority directly addressing this issue, and there appears to be little authority on point from other jurisdictions.

In support of its argument that Mr. Stone's statements may be considered in the context of Defendant's motion for a new trial, the government principally relies on United States v. Kelly, 539 F.3d 172 (3d Cir. 2008). There, the Third Circuit stated that in determining thecredibility of a defendant's "new evidence," a district court "must weigh the proffered evidence against all of the other evidence in the record, including the evidence already weighed and considered by the jury in the defendant's first trial", id. at 189 (emphasis added), and "should take into account all of the evidence that a jury would be likely to hear and consider were the defendant granted a new trial." Id. at 190. I am persuaded that this broad perspective is the proper approach and that it would be a waste of judicial resources to grant Defendant's motion without considering evidence that will have a significant impact on whether Defendant is likely to be acquitted at a new trial. See United States v. Gwathney, 465 F.3d 1133, 1143 (10th Cir. 2006) (to procure a new trial based on newly discovered evidence, a defendant must show, among other things, that new evidence is of such a nature that in a new trial it would probably produce an acquittal).

Having concluded that Mr. Stone's statements after he was stabbed may be considered in the context of Defendant's motion for a new trial, I must next determine whether these statements constitute admissible evidence. The first question in making this determination is whether Mr. Stone's statements qualify as dying declarations under Fed. R. Evid. 804(b)(2). I previously ruled that they did, see United States v. Jordan, 2005 WL 513501 at *1-2 (D. Colo. March 3, 2005), and this is now the law of the case. See McIlravy v. Kerr-McGee Coal Corp., 204 F.3d 1031, 1034 (10th Cir. 2000) (under law of the case doctrine, once a court decides upon a rule of law, that decision should continue to govern the same issue in subsequent stages of the same case). Even if I did not at that time consider Defendant's argument that Mr. Stone's dying declarations should be deemed inadmissible because they reflect mere speculation on Mr. Stone's part, I find this argument unpersuasive. See Shepard v. United States, 290 U.S. 96, 101-2 (1933) (declaration may be inadmissible as dying declaration "if the setting of the occasion satisfies the judge, or in reason ought to satisfy him, that the speaker is giving expression to suspicion or conjecture and not to known facts").

Although I previously...