United States v. Con-Ui

• Decision Date: 01 March 2017
• Docket Number: No. 3:13-CR-123,3:13-CR-123
• Parties: UNITED STATES OF AMERICA v. JESSIE CON-UI, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

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

No. 3:13-CR-123

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

March 1, 2017

(JUDGE CAPUTO)

MEMORANDUM

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 Charged²

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 suchthat 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 excludedsuch 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."...