Evidence Practical Project Fall 2019

LAW 6330 (4 credits)
Section 02BB
Professor Pedro A. Malavet
Fall 2019

Instructions

As I announced in my Syllabus, I require each student to submit a practical project that accounts for ten percent (10%) of your testing score for this course. The project is judged on a pass/fail basis.

Each student will work individually, although I have assigned you a role to play as indicated below. You are allowed to discuss the problem with your classmates and may refer to forms and other resources, as long as you draft your own motion.

Your assignment is to write a motion in limine, based on the fact-pattern that follows. Students with last names starting with letters between ADE and HAN will write for the defense and those whose last names fall between HIN and WAI will write for the prosecution, the State.

You will assume that the applicable rules are the Federal Rules of Evidence, together with accompanying caselaw as studied in your Fall 2019 Evidence Course. Your motion must adequately represent the interests of the party you represent, be it the defendant or the People of the State, and make reference to the pertinent Federal Rules of Evidence, cases and other materials included in your casebook and Rules supplement (you are allowed to extend your research beyond these resources, but it is not required).

I recommend a list of bibliographic resources collected by the Legal Information Center [click here to view the bibliography]. I also highly recommend the Public Defender Service of the District of Columbia Criminal Practice Institute Trial Manual 2015 is the current one (click here for PDF); there is a supplement (click here to for PDF).

DUE DATE: Projects are due on or before 4:00 p.m. on MONDAY, November 18, 2019. All documents must be in either MS Word or PDF format and must be uploaded to the eLearning in Canvas course page using the Motion in Limine-Practical Project assignment created for that purpose.

The system will be set to allow multiple submissions up until the time of the final deadline. Uploading a file that is corrupted and cannot be opened will be treated as a failure to make a timely submission.

• Frequently Asked Questions
  • Is there a maximum length to the project?
    • No.You may write as much as wish.
  • Is there a minimum length?
  • There is certainly a minimal level of effort required to pass. But, at least five (5) to ten (10) pages, double-spaced, is about what it should take to do minimal justice to the project.
  • May and should I use headings and subheadings?
  • Yes. Preferably the ones I post on the board every day.
  • What title should I use?
  • Motion in Limine To:
    • Admit [certain evidence], if you are the prosecution
    • Exclude [certain evidence], if you are the defense

Fact-Pattern:

Raymond v. State
Court of Appeal of Florida, Fifth District
Appeal from the Circuit Court for Citrus County, Richard A. Howard, Judge.

Christopher M. Raymond faces a jury trial on charges of attempted second-degree murder by discharging a firearm. Applicable law includes sections 784.04(2), 777.04(1), 775.087(1), 775.087(2)(a)1., and 775.087(2)(a)2., Florida Statutes (2017). However, the correct statute regarding second-degree murder is section 782.04(2), not section 784.04(2), which has been renumbered to section 784.021 and pertains to aggravated assault. See, e.g., Williams v. State, 244 So. 3d 1200, 1203-04 (Fla. 1st DCA 2018) (discussing second-degree murder conviction pursuant to section 782.04(2)).

The State alleges that Raymond attempted to kill his mother, Nicole Raymond, by firing a shotgun over her head when she was in her bedroom. Mrs. Raymond is not expected to testify at the trial because the state has been unable to find her to serve her with a subpoena. To prove its case, the State will rely on the 911 phone call Mrs. Raymond made after the shooting as well as her statements to the responding officers. The State will also offer inculpatory statements Raymond made to officers and photographic evidence of the shooting.

At an evidentiary hearing in support of the state's intention to present statements, the following facts were placed on the record for the court.

Casey Biuk, a 911 communications officer with the Citrus County Sheriff’s call center, testified that on the night of the incident, she answered a call from Mrs. Raymond, who sounded distraught. Mrs. Raymond was crying and relayed that her son had just shot at her in her bedroom. Mrs. Raymond told Officer Biuk that “he’s going to kill me . . . hurry . . . please hurry.” The State played a recording of Mrs. Raymond’s call for the jury.
The State Attorney wanted jurors to signal if they did not understand something on the recording. The defense objected that “the recording should speak for itself.” The prosecutor responded: “Well, it doesn’t need to be translated. [But] [b]ecause she’s whispering, some of it can be hard to understand.” The court ruled that the recording would have to speak for itself. [Tr. 35].

Officer Biuk explained that after gathering some basic information, she sends a dispatch message that is visible on the computer screens in the deputies’ patrol vehicles. The arrest affidavit for the case, which is part of the case file, indicates that Citrus County Deputy Christopher Knight was dispatched to the scene at 1:58 a.m. and arrived there a few minutes thereafter at the same time as two other deputies who were in a separate patrol car. The recording of the 911 call, which is approximately fifteen (15) minutes long, is transcribed in the hearing transcript. It indicates that Mrs. Raymond was on the line with officer Biuk when the responding deputies arrived at her home, whereupon Officer Biuk asked Mrs. Raymond to meet the deputies who were waiting outside her house.

Deputy Knight, the responding officer, testified that when he entered the residence, Mrs. Raymond was alone in her bedroom, crying hysterically and shaking uncontrollably. Upon Deputy Knight’s questioning, Mrs. Raymond detailed the evening’s events that led to Raymond firing the weapon. Deputy Knight observed a spent shotgun shell at the foot of the bed as well as evidence on the pillow and wall consistent with the firing of a shotgun.

Deputy Knight testified at hearing that “When I very first made contact with the victim, she was highly upset, she looked scared, she was crying hysterically and shaking her hands uncontrollably.” The prosecutor then asked “And when you first got on scene, did she tell you what happened?”. The testimony is then interrupted while the court addresses the defense hearsay and confrontation objections by overruling them. Deputy Knight then continued: “The very first thing she told me [was] that her ears were ringing due to a shotgun blast.” [Tr. 52]. Deputy Knight then testified:

• She stated that at approximately 1:00 o’clock in the morning she was lying in bed watching TV, and she heard the front door to her residence sound like it was being opened. So she got out of bed, walked into the living room, and that's when she seen her son, the defendant, Mr. Christopher Raymond, sitting on the couch.
• After that she told him that he needed to be quiet because she was trying to go to sleep. At which time she walked back into her bedroom and continued watching TV.
  
• Once she walked into her bedroom and continued watching TV, she stated her son had followed her into her bedroom, sat down at the end of her bed and was drinking a beer. She told him to leave. At which time he set his beer can on top of the night stand or the TV stand and walked out of the bedroom door, closing it behind him.
  
• After that she --she told me that about 30 seconds later the front-- or her bedroom door had opened and her son was standing at the foot of her bed holding a shotgun directly at her face. She told me before she could say anything, he pulled the trigger and a round went off directly above her head.
  
• She stated at that time she pleaded for him not to do this, that she loved him. And that’s when he racked [opened the action of] the shotgun [and expelled the spent shell] and ran out of the house with the gun.
  
• [The Assistant State Attorney then asks: “did you see any evidence that was consistent with what she told you happened?” and the Deputy responds:]
  I did. As soon as I walked in the bedroom, I immediately noticed a purple shotgun shell casing sitting at the foot of the bed on the ground. While I was looking around the room, I noticed that her pillow, the top corner of it was shredded or torn. And behind that was a two-inch circular hole in the wall that was consistent with a shotgun round.
  
• [Tr. 53-54, most questions have been edited out for ease of reading].

Deputy Fernandez, who also responded to the scene, testified that upon making contact with Mrs. Raymond, she stated that she had just been shot at by her son and that he fled to his grandmother’s house nearby. Deputy Fernandez subsequently approached Raymond at his grandmother’s house and testified that as Raymond was exiting the house, he stated, “The devil is going to give her hers . . . she’s going to get hers.” The deputies recovered a [single shot, single barrel, 16-gauge Stevens] shotgun from the grandmother’s house and a hooded sweatshirt containing four unspent shotgun shells consistent with the shell recovered from Mrs. Raymond’s bedroom.

Deputy Fernandez testified on direct:

• A. When I arrived on the scene, uh, I was met with an elderly lady. Uh, she was in complete shock and confusion, uh, shaken, upset. And she had told us that she had been shot at by her son.
  
• Q. Now when you say she was --was shaken and upset, describe for the jury exactly what it was about her or about her demeanor that led you to believe that.
  
• A. Uh, she was very loud, uh, very nervous, you could hear the crack in her voice. She was upset, she was crying hysterically. Uh, she was pretty much defenseless and in shock.
  

[Tr. 66.]

Defense counsel then renewed their hearsay and confrontation clause objections regarding Mrs. Raymond’s statements. The court overruled them, and Deputy Fernandez went to testify that the victim told them her son was probably at his Grandmother’s house nearby. Deputy Fernandez and a colleague then went to find the defendant.

The State’s last witness, Detective Ricci, testified regarding an interview of Raymond conducted upon his arrest. During the interview, Raymond stated that on the night of the shooting, he had been drinking alcohol in the home, then entered his mother’s bedroom, fired a shot, and left the residence. Raymond offered no explanation for his actions but expressed remorse for what he had done. The jury heard a recording of the interview.
The list of exhibits admitted at hearing, as numbered for the record and certified by the court clerk were: (1) CD recording of 911 call; (2) photos of the crime scene (showing the damaged pillow, headboard, and the hole in the wall as well as related debris as described in the testimony); (3) one (1) spent purple 16-gauge shotgun shell; (4) photo of a shotgun: (5) a 16-gauge shotgun; (6) four (4) purple 16-gauge shotgun live rounds; (7) CD recording of interview of the defendant.

The evidence established that Raymond fired one shot, at close range, from a shotgun. Unlike a single projectile fired from a rifle, a shotgun shell is loaded with multiple projectiles which spread after being fired. Despite his close proximity, not one projectile struck Mrs. Raymond. The physical evidence reflected that Raymond opened the shotgun and expelled the shell, leaving it at the scene. The evidence also established that Raymond possessed four additional unspent shells but had made no effort to reload and fire a second shot, notwithstanding the State’s theory that Raymond attempted to kill his mother. The defense emphasized the lack of injury to Mrs. Raymond and that Christopher Raymond had made no effort to reload in their closing arguments.

Proceeding In Limine, Raymond raises two objections …: that it would be error to admit at trial Mrs. Raymond’s 911 call with Officer Biuk and the testimony of Deputies Knight and Fernandez regarding statements made by Mrs. Raymond to them over his attorney’s hearsay and Confrontation Clause objections. The tate’s counters that the statements by Mrs. Raymond to the 911 operator and to the responding deputies were “excited utterances” and that they were not barred by the Confrontation Clause.

Statutory Materials

• Fla. Statute 777.04(1)
  • 777.04 Attempts, solicitation, and conspiracy.—
    (1) A person who attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such offense, but fails in the perpetration or is intercepted or prevented in the execution thereof, commits the offense of criminal attempt, ranked for purposes of sentencing as provided in subsection (4). Criminal attempt includes the act of an adult who, with intent to commit an offense prohibited by law, allures, seduces, coaxes, or induces a child under the age of 12 to engage in an offense prohibited by law.
• Fla. Statute 775.087(1); Fla. Statute 775.087(2)(a)1; Fla. Statute 775.087(2)(a)2.
• 775.087 Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence.—
  (1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens to use, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows:
  • (a) In the case of a felony of the first degree, to a life felony.
  • (b) In the case of a felony of the second degree, to a felony of the first degree.
  • (c) In the case of a felony of the third degree, to a felony of the second degree.
    For purposes of sentencing under chapter 921 and determining incentive gain-time eligibility under chapter 944, a felony offense which is reclassified under this section is ranked one level above the ranking under s. 921.0022 or s. 921.0023 of the felony offense committed.
• (2)(a)1. Any person who is convicted of a felony or an attempt to commit a felony, regardless of whether the use of a weapon is an element of the felony, and the conviction was for:
  
  • a. Murder;
    
  • b. Sexual battery;
    
  • c. Robbery;
    
  • d. Burglary;
    
  • e. Arson;
    
  • f. Aggravated battery;
    
  • g. Kidnapping;
    
  • h. Escape;
    
  • i. Aircraft piracy;
    
  • j. Aggravated child abuse;
    
  • k. Aggravated abuse of an elderly person or disabled adult;
    
  • l. Unlawful throwing, placing, or discharging of a destructive device or bomb;
    
  • m. Carjacking;
    
  • n. Home-invasion robbery;
    
  • o. Aggravated stalking;
    
  • p. Trafficking in cannabis, trafficking in cocaine, capital importation of cocaine, trafficking in illegal drugs, capital importation of illegal drugs, trafficking in phencyclidine, capital importation of phencyclidine, trafficking in methaqualone, capital importation of methaqualone, trafficking in amphetamine, capital importation of amphetamine, trafficking in flunitrazepam, trafficking in gamma-hydroxybutyric acid (GHB), trafficking in 1,4-Butanediol, trafficking in Phenethylamines, or other violation of s. 893.135(1); or
    
  • q. Possession of a firearm by a felon
    and during the commission of the offense, such person actually possessed a “firearm” or “destructive device” as those terms are defined in s. 790.001, shall be sentenced to a minimum term of imprisonment of 10 years, except that a person who is convicted for possession of a firearm by a felon or burglary of a conveyance shall be sentenced to a minimum term of imprisonment of 3 years if such person possessed a “firearm” or “destructive device” during the commission of the offense. However, if an offender who is convicted of the offense of possession of a firearm by a felon has a previous conviction of committing or attempting to commit a felony listed in s. 775.084(1)(b)1. and actually possessed a firearm or destructive device during the commission of the prior felony, the offender shall be sentenced to a minimum term of imprisonment of 10 years.
    2. Any person who is convicted of a felony or an attempt to commit a felony listed in sub-subparagraphs (a)1.a.-p., regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a “firearm” or “destructive device” as defined in s. 790.001 shall be sentenced to a minimum term of imprisonment of 20 years.
• Fla. Statute 784.04(2)
  • (2) The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree and constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.

The court of appeals has summarized important jury instructions that would be used at trial thusly:

• To establish the second element of attempted second-degree murder, the State was required to prove beyond a reasonable doubt that Raymond committed an act “imminently dangerous to another and demonstrating a depraved mind without regard for human life.” Fla. Std. Jury Instr. (Crim.) 6.4; § 782.04(2), Fla. Stat. (2017). An act is imminently dangerous if “a person of ordinary judgment would know [it] is reasonably certain to kill or do serious bodily injury to another, and [it] is done from ill will, hatred, spite, or an evil intent, and [it] is of such a nature that the act itself indicates an indifference to human life.” Fla. Std. Jury Instr. (Crim.) 6.4.

Argument:

Each side must argue for or against admissibility using the applicable Federal Rules of Evidence, together with any common law doctrines that may be pertinent here as well as any constitutional rules that may apply.

I have given you a more detailed factual background than you would normally have before trial in order to make the motions a more substantial exercise. I used the court file to supplement the opinion with a more developed factual background. I reference the arrest affidavit, the clerk’s certified exhibit list and the hearing transcript prepared for the appellate decision that I actually used for the exam. One item that I found shocking was that the trial court did NOT listen to the 9-1-1 recording before trial. That is most certainly NOT the best practice. But, that is what motions in limine are for.

• Facts taken and modified for examination purposes from Raymond v. State, 2018 Fla. Appeals Lexis 15549 (November 2018).