United States District Court, D. South Dakota, Central Division
For Mary Peneaux, Defendant: Randall Briggs Turner, LEAD ATTORNEY, Federal Public Defender's Office, Pierre, SD.
For USA, Plaintiff: Jay P. Miller, LEAD ATTORNEY, U.S. Attorney's Office, Pierre, SD.
OPINION AND ORDER ON MOTIONS IN LIMINE
ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE.
At the pretrial conference and motion hearing held on October 6, 2014, this Court heard argument on the pending motions in limine and made preliminary rulings thereon. Ruling on motions in limine are preliminary in nature, and presentation of evidence at trial may open evidentiary doors that appear to be closed when viewing the case before trial. This Opinion and Order provides the Court's reasoning for its rulings.
This is an arson case, where the Government charges that Defendant Mary Peneaux willfully and maliciously burned the Spotted Tail home on March 23, 2013. Peneaux has pleaded not guilty, contends that the fire should be classified as undetermined rather than incendiary, and posits that the fire was accidentally started by Brian Metcalf, a resident of the Spotted Tail home, who allegedly was cooking while highly intoxicated.
Peneaux's first Motion in Limine, Doc. 31, seeks to prohibit that, when she was a teenager dating Richard Spotted Tail, she burned her name into the ceiling of Richard's bedroom within the Spotted Tail home. The fire alleged to be arson occurred when Peneaux was 24. The Government's theory of the case is that Peneaux on March 23, 2013, was trying to rekindle a romantic relationship with Richard, was drinking with him that night, was spurned in her efforts to reconcile with Richard, and lit his bed on fire using an open flame after Richard left her. The Government asserts that it expects Richard to testify that, before he left Peneaux in his bedroom, the two of them talked about Peneaux's burned name on his bedroom ceiling and thus that the burned name is part of the res gestae of the case. The admissibility of evidence of Peneaux's charred name on the bedroom ceiling turns on whether Richard testifies about discussing it with Peneaux on the night of the alleged arson. If the burned name was not something discussed between Richard and Peneaux on the night of the fire, the act is inadmissible under Rule 404 of the Federal Rules of Evidence. If Richard so testifies, then the burned name on the ceiling is admissible as part of the res gestae. See United States v. Thomas, 760 F.3d 879, 883 (8th Cir. 2014) (explaining that Rule 404(b) does not apply to res gestae, or intrinsic evidence); United States v. Young, 753 F.3d 757 (8th Cir. 2014) (stating that res gestae evidence is admissible because it " completes the story or provides a total picture of the charged crime" ) (citation omitted). Peneaux then would be allowed to present evidence that others had written their names in various ways on that bedroom ceiling and the circumstances surrounding her charring her name into the ceiling many years previously.
The Government's Motion in Limine, Doc. 37, seeks to exclude testimony from Brian Metcalf's former girlfriend and the sister of the former girlfriend that Metcalf on previous occasions cooked while intoxicated producing lots of smoke, that Metcalf three years ago lit hay bales on fire, and that Metcalf had passed out previously with a cigarette in his hand. Peneaux
does not contend that Metcalf started the fire intentionally or by passing out with a cigarette in his hand, but posits that Metcalf may have started the fire in the kitchen while cooking.
As a general rule, a defendant may attempt to show that someone else committed the crime with which the defendant is charged. See Holmes v. South Carolina, 547 U.S. 319, 327, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006) (" Evidence tending to show the commission by another person of the crime charged may be introduced by accused when it is inconsistent with, and raises a reasonable doubt of, his own guilt; but frequently matters offered in evidence for this purpose are so remote and lack such connection with the crime that they are excluded." (quoting 41 C.J.S. Homicide § 216 (1991))). Here, Peneaux contends that evidence about Metcalf having burned food while drunk in the past is admissible under Federal Rules of Evidence 404(a)(2)(B) and 404(b).
Rule 404(a)(2)(B) provides that a defendant in a criminal case " may offer evidence of an alleged victim's pertinent trait." If the defendant offers evidence of the victim's character, it must be in the form of reputation or opinion testimony. Fed.R.Evid. 405(a). Specific acts may be used to prove character only if the character trait at issue is an essential element of a charge or defense. Id. 405(b). Although it is not entirely clear, it appears from reading Peneaux's response to the Government's motion in limine that she will be seeking to offer testimony describing specific instances when Metcalf got drunk and burned food. Thus, even assuming that getting drunk and burning food is a " trait," testimony about specific instances of Metcalf's trait is not admissible under Rule 405 because it is not an essential element of the charge or Peneaux's defense. Rather, evidence about Metcalf's character trait is circumstantial evidence Peneaux hopes to use to prove a consequential fact.
Rule 404(b)(2) provides that evidence of crimes, wrongs, or other bad acts may be admissible in a criminal case to prove " motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident."  Although the prosecution frequently uses Rule 404(b) to introduce " other crimes" evidence against a defendant, " a seldomly used subspecies of Rule 404(b) known as 'reverse 404(b)' . . . is utilized to exonerate defendants." United States v. Stevens,935 F.2d 1380, 1383, 1402 (3d Cir. 1991). When determining whether to admit reverse 404(b) evidence, " a district court must balance the evidence's probative ...