Evidence Practical Project Fall 2020

LAW 6330 (4 credits)
Section 02BB
Professor Pedro A. Malavet
Fall 2020

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 ALE and KNI will write for the defense and those whose last names fall between LAG and WIL 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 2020 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 6:00 p.m. on Wednesday, November 18, 2020. 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 using the structure 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:

People v. Melendez

THE PEOPLE OF THE STATE OF CALIFORNIA v.
KEVIN MELENDEZ, Defendant.

In The Superior Court of the State of California, County of Monterey, Salinas Division

No. 17CR005402

Facts and Procedural History

Defendant Kevin Melendez faces a jury trial on charges of of attempted voluntary manslaughter, two counts of assault with a firearm, and shooting at an occupied car. Defendant has pleaded not guilty.

Factual Background on Evidentiary Hearing

Kate (we refer to the victims by given names in the interest of privacy, intending no disrespect or familiarity. (Cal Rules of Court, rule 8.90.)) came to California from Texas and was staying with her husband (from whom she had separated) and their daughters in Prunedale. Kate had previously dated defendant in Texas. When defendant arrived in California shortly after Kate, her husband would not let him stay with them. Kate met Ronald online after she came to California, and they decided to meet for a first date. As Ronald drove past Kate’s husband’s house, he heard four gunshots. He turned his car around and called Kate because the house number she had given him was not visible from the road. He returned to the house where he had heard the shots and saw Kate in the driveway talking to someone in a Toyota Corolla. Kate walked to the road and got in Ronald’s car, visibly nervous and worried. Ronald made eye contact with the driver of the Toyota as he was pulling out of the driveway.

Ronald drove toward Highway 101, and the Toyota followed him. Ronald asked Kate who was in the Toyota, and started driving faster toward the freeway to put distance between the cars. Ronald entered Highway 101, and the Toyota followed. Ronald maneuvered through traffic looking for an exit as the Toyota gained on him. Ronald was in the fast lane and the Toyota was very close behind in the adjacent lane. Ronald looked over his shoulder and saw the driver pointing a gun out the window at his car. Ronald instinctively moved his head to the left, heard a gunshot, felt something “kind of hit my head,” and thought he had been shot. A bullet had entered through the rear window, grazed Ronald’s head, pierced the bill of the cap he was wearing, and exited through the windshield.

Kate called 911 and remained on the line until officers arrived. The operator asked whether she knew the shooter. Kate said, “I know who did it,” and she would “talk to the officers whenever they get here.” She related to the operator that the shooter had followed them from her house, he was a transient, he was driving a gray Toyota Corolla, and he had a .40 caliber black gun. Kate told the 911 operator she did not want to give the shooter’s name because she was “kinda confused,” “freakin’ out a little bit,” “kinda scared,” and did not want to “cause any more issues.”

California Highway Patrol Officer Rene Bartolomei responded to the shoulder of the highway where Ronald and Kate were parked. Kate gave Officer Bartolomei the shooter’s name, identified him as her ex-boyfriend, and provided the Texas license plate number for the Toyota Corolla. She told Officer Bartolomei defendant had shot at the vehicle, owned a black handgun, kept ammunition is his vehicle, and would shoot at law enforcement.

Defendant was arrested in Texas a few weeks later driving the Toyota Corolla. He was stopped for speeding, the car was registered in his name, and he said he had had the car for over a year. Defendant was arrested on a warrant for the shooting.

An amended information charged defendant with attempted murder (Pen. Code, §§ 187, subd. (a), 664; count 1), assault with a firearm (§ 245, subd. (a)(2); counts 2 and 3), and shooting at an occupied car (§ 246; count 4). (Undesignated statutory references are to the Penal Code.) The information alleged that defendant intentionally and personally discharged a firearm (§ 12022.53, subd. (c)), personally used a firearm (§ 12022.5, subd. (a)), and personally used a dangerous and deadly weapon (§ 969f, subd. (a)).

Kate is not expected to testify at trial. The trial court has held an evidentiary hearing on the admissibility of her out of court statements. Ronald, Officer Bartolomei, and the arresting officer testified at this hearing. At the evidentiary hearing, Kate’s relationship with defendant was established through the testimony of her brother, and Kate’s husband established the presence of defendant and his car in Prunedale a few days before the shooting. A transcript of the 911 call was admitted in evidence, and the location of a cell phone linked to a phone number used by defendant was placed in the Prunedale area at the time of the offense. The phone moved south immediately following the shooting through Bradley, Paso Robles, and California City, and was operating in Texas the next day.

The court understood from the hearing briefs that Kate and Ronald were shot at while driving on the highway, and the bullet went through the hat Ronald was wearing. The prosecutor stated as an offer of proof: “Officer Bartolomei was the first responder and when he arrived both [Ronald] and [Kate] seemed very distressed and worried and concerned that the shooter, the defendant, might return and harm them,” and the conversation took place on the side of the road 10 minutes after [Kate] placed the 911 call.

At the hearing Officer Bartolomei testified that he spoke with Kate only briefly before she divulged the shooter’s identity, during which time Kate remained under the stress of the event. She and her date had just been shot at, and the bullet nearly entered Ronald’s head. Officer Bartolomei described Kate’s demeanor at the time as “terrified,” and “visibly shaken,” observations that are consistent with Kate’s statements and demeanor during the 911 call.

Officer Bartolomei testified that he spoke with Kate “briefly about how important it was to identify who the shooter was,” but he did not relate the substance of that conversation. The 911 operator had also urged Kate to disclose the shooter’s identity for safety reasons (defendant does not challenge the non-testimonial nature of Kate’s conversation with the 911 operator), and Officer Bartolomei explained that safety was his immediate priority: “Due to the nature of the call when I first arrived my priority, my responsibility was to ensure the safety of everyone associated with this.” While Officer Bartolomei acknowledged the shooter needed to be captured in order to be held accountable for his actions, he was chiefly concerned with “prevent[ing] any further harm to anyone whether it be the two passengers or anyone else that this person may come across.”

Although the court heard a recording of the 911 call during the evidentiary hearing only the transcript of the conversation was admitted for the record. The court provided the following comment on the recording: “what I’m hearing is a highly stressful incident of driving on the road, a bullet coming through the car window, shattering the window, and going through an individual’s cap that was being worn on his head. That strikes me as something that would cause someone to be highly agitated and excited and fearful.”

Defendant called no witnesses at this hearing but his counsel argued that the prosecution will fail to meet its burden of proving the shooter’s identity and intent at trial. Defendant argued that the court should exclude Kate’s out-of-court statements as hearsay and “subject to a constitutional challenge pursuant to Crawford v. Washington (2004) 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177.”

The court ordered both the State and Defendant to file motions in limine setting forth their arguments in this regard based on the evidence described above.

Important Jury Instructions

California Pattern Jury Instruction 970: Shooting Firearm or BB Device in Grossly Negligent Manner (Pen. Code, § 246.3)
The defendant is charged [in Count ____________] with shooting a (firearm/BB Device) in a grossly negligent manner [in violation of Penal Code section 246.3].

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant intentionally shot a (firearm/BB device);
2. The defendant did the shooting with gross negligence;
   [AND]
3. The shooting could have resulted in the injury or death of a person(;/.)
   <Give element 4 when instructing on self-defense or defense of another.>
   [AND
4. The defendant did not act (in self-defense/ [or] in defense of someone else).]

Gross negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with gross negligence when:

1. He or she acts in a reckless way that creates a high risk of death or great bodily injury. AND
2. A reasonable person would have known that acting in that way would create such a risk.

In other words, a person acts with gross negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act.

[Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.]
 [A firearm is any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion.]
 [A BB device is any instrument that expels a projectile, such as a BB or a pellet, through the force of air pressure, gas pressure, or spring action.]
[The term[s] (great bodily injury/ [and] firearm) (is/are) defined in another instruction to which you should refer.]

California Pattern Jury Instruction 253: Union of Act and Intent: Criminal Negligence
For you to find a person guilty of the crime[s] of ______________________ <insert name[s] of alleged offense[s]> [or to find the allegation[s] of ______________________ <insert name[s] of enhancement[s]> true], a person must do an act [or fail to do an act] with (criminal/gross) negligence. (Criminal/Gross) negligence is defined in the instructions on that crime.

[Graphic: Map of the area. Why was this supposed to be useful?]

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.

• Facts taken and modified for examination purposes from People v. Figueroa, 2019 Cal. App. Unpub. LEXIS 6605; 2019 WL 4747243 (September 30, 2019).