The opinion of the court was delivered by: Lewis T. Babcock, Chief Judge
Defendant Clemmeth Nevels ("Nevels") is indicted for one count of possession of a restricted firearm, in violation of 18 U.S.C. 922(g)(1), and one count of possession of a firearm whose serial number has been removed or obliterated, in violation of 18 U.S.C. § 922(k). Plaintiff United States ("Government") also charges Nevels with possession of a restricted firearm under 18 U.S.C. § 924(e)(1), which imposes a mandatory sentence enhancement for individuals with three prior felonies. The Government filed notice of its intent to use evidence under Fed. R. Evid. 404(b). Nevels filed motions opposing the Government's Fed. R. Evid. 404(b) notice, and two motions in limine; one requesting a pre-trial evidentiary hearing to assess the admissibility of the testimony of a witness and one to exclude evidence. Based on the parties' briefs and a Motions' Hearing in Court January 25, 2006, Defendant's motions are DENIED.
On the morning of January 11, 2004 Nevels was involved in a deadly altercation at his residence at 1426 East 23rd Avenue in Denver. When the Denver Police arrived in response to Nevels' 911 call, Nevels informed them that he had shot an armed intruder, Mr. McLamb, ("McLamb.") McLamb was dead when the police arrived. Nevels told the police that "I did what I had to do, he was going to hurt me." Later, he told the police, "I did what I had to do. I am not going to let someone break into my house. I might have done you all a favor." Nevels told the police that he did not know who the intruder was.
Inside the house, police officers found two weapons, a Ruger model P89 9mm pistol and a Ruger model P95DC 9 mm pistol, with a defaced serial number. According to Rose Burton, Nevels' girlfriend and owner of the residence, both pistols belonged to Nevels and Nevels "always" carried firearms with him. Burton stated that she and Nevels attended a gun show together about two weeks before the incident of January 11, 2004, that she purchased two guns for him at the gun show and that she saw him carrying the guns prior to January 11, 2004.
In an earlier motion, Nevels advised the court that he is likely to use the affirmative defense of necessity. Nevels moved for a legal determination that the burden of proof on a necessity defense lies with the Government. The Court denied this motion, ruling that since the felon in possession statute is a general intent crime necessity does not negate an element of the defense and so the burden of persuasion lies with the defendant, Nevels.
This Order addresses the following motions: 1) Nevels' motion objecting to the Government's use of evidence under Fed. R. Evid. 404(b) that Nevels and McLamb were part of the same street gang, 2) Nevels' motion in limine requesting an evidentiary hearing on the admissibility of the testimony of Lieutenant J.W. Priest ("Priest") as an expert in crime scene reconstruction, and 3) Nevels' motion in limine to exclude evidence that McLamb died as a result of Nevels' actions. I will consider each of these motions individually.
A. Nevels' Objection to the Government's 404(b) Evidence that He and McLamb Were Part of the Same Street Gang
The Government has provided notice to the Court that it intends to offer evidence that Nevels and McLamb were part of the same street gang, under Fed. R. Evid. 404(b). Nevels objects to this evidence because another witness will already testify that Nevels and McLamb were friends, and because reference to their common membership in a gang will unnecessarily prejudice the jury. Nevels argues that the danger of unfair prejudice of this evidence substantially outweighs its probative value, and should be excluded under Fed. R. Evid. 403.
The Government contends that this evidence is probative of whether Nevels knew McLamb, which is in turn probative of Nevels' necessity defense. Outside of the context of a trial it is very difficult to determine the relevancy of this evidence. I therefore deny Nevels' motion without prejudice. The Government shall hold this evidence to the later part of its case in chief, or to its rebuttal. If the Government chooses to use this evidence it will provide notice to the Court, and there will be an opportunity at that time for the parties to argue the relevance and prejudice of this evidence. The Government shall prepare a limiting instruction for the jury in the event I find this evidence to be admissible.
B. Nevels' Motion in Limine Requesting an Evidentiary Hearing to Consider the Admissibility of the Testimony of Lieutenant Priest
The Government proposes to use Priest as an expert witness on crime scene reconstruction. According to the Government, Priest's testimony will address the reconstruction and interpretation of the crime scene, based on the totality of the forensic evidence, including his own observations and other evidence, such as ballistic evidence and the observations of the coroner. Priest will opine on the likely positions of Nevels and McLamb during the events of the night of January 11, 2004.
At the Hearing January 25, 2006, Nevels did not argue that Priest was unqualified, nor that his testimony is not relevant. Rather, Nevels argued that an evidentiary hearing is necessary because Priest proposes to go beyond his immediate observations of the crime scene to reach conclusions regarding what transpired that night. Nevels contends that this kind of testimony is speculation and ...