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United States v. Hayes

United States District Court, D. New Hampshire

July 25, 2019

United States of America
v.
Romeo Tyree Hayes

          MEMORANDUM ORDER

          Joseph N. Laplante United States District Judge.

         Ahead of defendant Romeo Hayes's jury trial on one count of assault in a federal prison, Hayes and the prosecution each filed two evidentiary motions in limine. The court orally ruled on these four motions at the final pretrial conference, but this order serves to set forth the basis for (and in some cases, refine and clarify) the rulings in further detail. See, e.g., United States v. Joubert, 980 F.Supp.2d 53, 55 n.1 (D.N.H. 2014), aff'd, 778 F.3d 247 (1st Cir. 2015) (citing In re Mosley, 494 F.3d 1320, 1328 (11th Cir. 2007) (noting a district court's authority to later reduce its prior oral findings and rulings to writing)).

         The court reminds the parties that these rulings are made without prejudice to revisiting particular issues in response to circumstances that might arise during trial. Furthermore, these rulings are limited to grounds argued in the parties' filings and raised at the final pretrial conference and oral argument. The court reserves the right to assess other factors at trial, such as hearsay, authenticity, and best evidence, see Fed.R.Evid. 800 et seq., 900 et seq., and 1000 et seq., and where appropriate, arguments and grounds not raised by counsel. To the extent the court here rules that evidence may be admitted for a limited purpose, see Fed.R.Evid. 105, it will give the jury a limiting instruction upon the request of counsel at trial.

         I. Background

         This is an assault case, not usually brought in federal court, but for the fact that the alleged assault occurred in a federal prison. The indictment alleges that Hayes, while incarcerated at FCI-Berlin, knowingly assaulted a fellow inmate, Lorence Smith, resulting in serious bodily injury to Smith in that Smith's nasal bones, mandible, and pterygoid plate were fractured. Hayes anticipates asserting a claim of self-defense.[1]

         The prosecution moves to preclude Hayes from introducing testimony regarding specific instances of the victim's prior conduct and from introducing certain statements made by Hayes after the alleged assault. The defendant moves to preclude the prosecution from impeaching his testimony with his prior felony convictions and from introducing a recorded section of a prison phone call he purportedly made after the alleged assault.

         II. Analysis

         A. Specific instances of victim's prior conduct

         The prosecution moves to exclude evidence and testimony regarding specific instances of the alleged victim's past conduct, including Smith's prison disciplinary records, which memorialize sanctions by the Bureau of Prisons (“BOP”) for fighting other inmates and possessing weapons prior to the alleged assault.[2] The prosecution argues that such evidence is inadmissible “character” and “prior bad acts” evidence. The court disagrees in part. Although evidence of specific instances of conduct is inadmissible to prove Smith's propensity for violence or that Smith acted in accordance with such a propensity on this occasion, some such evidence may be admissible to corroborate Hayes's testimony regarding Smith's violent reputation, in order to prove the reasonableness of Hayes's belief that Smith posed a threat to him.

         Ordinarily, evidence of a person's character and specific-conduct propensity is inadmissible under Rule 404. However, in a criminal case, “a defendant may offer evidence of an alleged victim's pertinent trait” in the form of “an opinion” or “testimony about the [victim's] reputation.” Fed.R.Evid. 404(a)(2)(B) and 405(a). It is important to understand that Rule 404 governs whether, and under what circumstances, character and prior-bad-acts evidence is admissible, while Rule 405 governs how, and by what method, such evidence may be elicited and introduced.

         Under these rules, a criminal defendant may testify about his knowledge of the alleged victim's reputation for violence at the time of the alleged assault, Fed.R.Evid. 405(a), as that is an exception to the general rule prohibiting character evidence regarding victims' “pertinent” character traits. See Fed.R.Evid. 404(b)(2)(B). A defendant may also offer evidence of “specific instances” of an alleged victim's conduct to prove a character trait when it is not only pertinent (see id.), but “an essential element” of a charge, claim, or defense. Fed.R.Evid. 405(b). But an alleged victim's dangerous or violent character, while certainly “pertinent” under Rule 404, is not normally or necessarily an “essential element” of self-defense under Rule 405. United States v. Gulley, 526 F.3d 809, 819 (5th Cir. 2008) (“a self-defense claim may be proven regardless of whether the victim has a violent or passive character”); United States v. Keiser, 57 F.3d 847, 857 (9th Cir. 1995) (“the victim's violent nature is not essential to a successful claim of self-defense”); First Circuit Pattern Criminal Jury Instructions 5.04 (elements of self-defense are that (1) defendant acted under an immediate threat of serious bodily injury or death; (2) had a well-grounded belief that the threat would be carried out; and (3) had no reasonable opportunity to escape, or otherwise frustrate the threat). Hayes thus may not submit extrinsic evidence of Smith's violent acts in order to prove Smith's character or to prove that he more likely acted in a dangerous or violent manner in his encounter with the defendant giving rise to this charge.

         But Hayes may submit evidence of Smith's violent acts solely to corroborate his Rule 405(a) testimony regarding his knowledge and understanding of Smith's violent character. In other words, Hayes may not submit testimony or records of specific instances of Smith's conduct to directly prove Smith's character or to prove that Smith in fact committed those acts, but he may submit evidence that directly supports the credibility of his testimony regarding Smith's reputation or his opinion of Smith's character. Hayes thus may only submit evidence of specific instances of Smith's conduct that directly corroborate his own testimony, including those portions of Smith's prison disciplinary records that directly corroborate Hayes's professed knowledge of Smith's dangerous and violent character.[3] Hayes may either submit a proffer or, if he chooses, submit himself to a voir dire examination outside of the presence of the jury to determine the scope of this conditionally admissible evidence for this limited purpose. See Fed.R.Evid. 104.

         The prosecution's motion is thus granted except as to evidence of specific instances of Smith's conduct that is offered only to corroborate Hayes's testimony regarding Smith's character, as it pertains to his assertion of self-defense. If requested, the court will give a limiting instruction to ensure that the jury does not consider the evidence as propensity evidence to show that the alleged victim acted in a violent or dangerous manner during the confrontation in question. See Fed.R.Evid. 105; Fed.R.Evid. 404(a).

         B. Possible hearsay statements by defendant

         The prosecution moves to preclude Hayes from submitting evidence of two separate statements Hayes made to prison personnel after the alleged assault.[4] First, directly after the assault prison employees escorted Hayes from the scene to the facility's Secure Housing Unit. During the walk, Hayes stated without prompting or questioning that he “had no choice.”[5]Second, several weeks after the alleged assault, Special Investigative Services (“SIS”) Tech Glenn Brown interviewed Hayes. Hayes told SIS Tech Brown that “I was protecting myself.”[6] The prosecution, which represents that it will not introduce those statements at trial (removing them from the category of adverse-party admissions under Rule 801(d)(2)), argues that both statements are inadmissible hearsay. See Fed.R.Evid. 801, 802.

         Hayes argues that his “had no choice” statements while being led away from the scene of the alleged assault are admissible as “present sense impressions” or “excited utterances, ” exceptions to the Rule Against Hearsay. See Fed.R.Evid. 803(1), 803(2). The court agrees that the statements are excited utterances. That exception requires “(1) a startling event or condition; (2) a statement made while the declarant was subject to the influence of the event or condition; and (3) a relation between the statement and the event or condition.” United States v. Bailey,834 F.2d 218, 228 (1st Cir. 1987). The defendant's statements were made just after the alleged assault, and concerned those events. One of the correctional officers who escorted Hayes describes him as “tense and trembling” at this time, to the degree that ...


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