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United States v. Dodge

United States District Court, D. New Mexico

July 9, 2018



         THIS MATTER comes before the Court upon the Government's First Omnibus Motion in Limine, filed May 14, 2018 (Doc. 60), and the Government's Motion for Lafler/Frye Hearing, filed May 14, 2018 (Doc. 57). Having reviewed the parties' briefs and applicable law, the Court finds that the Government's motions are well-taken and, therefore, are GRANTED IN PART. The motions are otherwise set for hearing on July 23, 2018.


         Defendant is charged with killing John Doe by striking him with an axe, with malice aforethought, in violation of 18 U.S.C. §§ 1153 and 1111. During an allegedly voluntary confession, Defendant admitted to getting into an altercation with John Doe. He alleges John Doe swung a piece of firewood at him, scraping his face, and that he picked up an axe and struck John Doe in the neck with it. Defendant filed a Motion to Suppress (Doc. 54) this confession which is currently set for hearing on July 23, 2018.


         I. Defendant's Exculpatory Hearsay Statements Should be Excluded.

         The Government seeks to prohibit Defendant from introducing his prior exculpatory statements, because they are hearsay. The Government argues that these statements cannot be admitted as exceptions to hearsay under Fed.R.Evid. 801(d)(2), because the statements at issue here are self-serving or exculpatory statements.

         The Court agrees. The hearsay rule generally excludes self-serving or exculpatory statements made and offered by a party, and Defendant has provided no exception. See United States v. Larsen, 175 Fed.Appx. 236, 241 (10th Cir. 2006) (“Rule 801(d)(2), which excludes from the definition of hearsay admissions by a party-opponent, does not apply because that rule does not permit self-serving, exculpatory statements made by a party and offered by that same party.”); see also United States v. Cunningham, 194 F.3d 1186, 1199 (11th Cir. 1999) (“[A] defendant cannot attempt to introduce an exculpatory statement made at the time of his arrest without subjecting himself to cross-examination”), and United States v. Marin, 669 F.2d 73, 84 (2d Cir. 1982) (“When the defendant seeks to introduce his own prior statement for the truth of the matter asserted, it is hearsay, and it is not admissible.”).

         Defendant argues that his prior exculpatory statements should be admitted without him taking the stand, because his limited intellectual capacity makes him vulnerable to suggestion on cross-examination. Defendant has not provided, and the Court has not found, any law or case that indicates that the hearsay rules are abrogated because of a Defendant's limited intellectual capacity. Therefore, the Court concludes that the Government's request to exclude exculpatory hearsay statements is well-taken. Defendant's prior exculpatory statements are therefore EXCLUDED.

         II. Defendant's Reference to Self-Defense.

         The Government seeks to exclude any evidence or discussion of self-defense, unless Defendant makes a threshold showing of the elements of self-defense. Generally, a defendant must make a threshold showing on the elements of an affirmative defense prior to the presentation of the evidence to the jury. United States v. Bailey, 444 U.S. 394, 412-15, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980). Other circuits have applied this requirement to an assertion of self-defense. See United States v. Haynes, 143 F.3d 1089, 1090 (7th Cir. 1998) (“A judge may, and generally should, block the introduction of evidence supporting a proposed defense unless all of its elements can be established.”), citing Bailey; cf. Lakin v. Stine, 80 Fed.Appx. 368, 374 (6th Cir. 2003) (“No due process violation occurs from the failure to give an instruction on a defense where there was insufficient evidence as a matter of law to support such a charge.”). It appears that Defendant concedes that this requirement applies here. See Doc. 73, p. 4.

         A Defendant may not present an affirmative defense that lacks any evidentiary support. See United States v. Fraser, 647 F.3d 1242, 1245 (10th Cir. 2011) (“No one, after all, has a right under the Constitution or at common law to present evidence that is insufficient as a matter of law to establish any recognized defenses.”); see also United States v. Barrett, 797 F.3d 1207, 1218 (10th Cir. 2015) (self-defense instruction warranted if, based on evidence presented, jury could have had a reasonable doubt that defendant believed he was in imminent danger of death or great bodily harm).

         Defendant argues that John Doe attacked him, and that he therefore had a reasonable belief that the use of force was necessary to defend himself against the immediate use of unlawful force. However, Defendant has not indicated what evidence will be profferred. The Court concludes that a proffer of evidence to support the affirmative defense of self-defense is necessary. Therefore, Defendant is ordered to proffer evidence, though representations of counsel, which would support a theory of self-defense[1] at the July 23, 2018 hearing.

         III. References to Potential Punishment.

         The Government argues that any reference to potential punishment should be excluded at trial. See Shannon v. United States, 512 U.S. 573, 579 (1994). Defendant does not ...

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