United States District Court, E.D. Kentucky, Central Division, Lexington
ORDER AND OPINION
K. CALDWELL, CHIEF JUDGE
matter is before the Court on two Motions in Limine by the
government to preclude the introduction evidence at trial.
(DE 16 and 19). This Order addresses the government's
motion to preclude the victim's prior assault victim
status (DE 16) and Dr. John Hunsaker III's testimony and
related evidence (DE 19). For the reasons stated below, the
Court ORDERS that both motions are
GRANTED in part and DENIED
Ewing was charged with assault within maritime and or
territorial jurisdiction resulting in bodily injury under 18
USC § 113(a)(6). The government filed two Motions in
Limine to preclude evidence. (DE 16 and 19). The
government's first Motion in Limine seeks to preclude
evidence concerning the victim's crime of incarceration
and prior assault victim status (DE 16), and the
government's second Motion in Limine seeks to preclude
testimony and related evidence by Dr. Hunsaker (DE 19).
During the telephone conference on February 6, 2019, this
Court denied the government's Motion in Limine to
preclude evidence concerning the victim's crime of
incarceration as moot. (DE 36.) Accordingly, this Order only
addresses the government's Motion in Limine to preclude
evidence of the victim's prior assault victim status and
Motion in Limine to preclude the testimony and related
evidence of Dr. Hunsaker.
Government's Motion in Limine to preclude evidence
concerning the victim's prior assault status. (DE
government's Motion in Limine to preclude evidence
concerning the victim's prior assault status seeks an
order from this Court “prohibiting defense counsel from
eliciting any testimony or otherwise introducing any evidence
or arguments concerning…prior, unrelated assault[s] of
[the victim.” (DE 16 at 1.) Defense has indicated an
intent to use evidence of previous assaults on the victim to
support that the victim was an aggressor, which prompted the
Defendant to act in self-defense, and to show a potential
intervening cause of death. (See DE 26 at 2-5.)
Rule of Evidence 404(a) allows a defendant to offer evidence
of an alleged victim's pertinent trait. Such evidence may
be proved by testimony about the person's reputation or
by testimony in the form of an opinion. Fed.R.Evid. 405.
Federal Rule of Evidence 404(b) prohibits the use of crimes,
wrongs, or other acts to prove a person's character to
show that on a particular occasion, the person acted in
accordance with the character. However, specific instances of
conduct may be used to prove character when the trait is an
essential element of a charge, claim, or defense. Fed.R.Evid.
405. Further, such evidence may be admissible for another
purpose, including but not limited to, motive, opportunity,
intent, preparation, plan, knowledge, identity, and absence
of mistake. Fed.R.Evid. 404(b)(2). Some courts have also
permitted such evidence in the context of self-defense to
prove the defendant's state of mind or reasonableness of
force. See United States v. Keiser, 57 F.3d 847,
852-53 (9th Cir. 1995).
present case, defense seeks to introduce evidence related to
the victim's prior assault status to support that the
victim was an aggressor, which prompted the Defendant to act
in self-defense, and to show a potential intervening cause of
death. (DE 26 at 2-5.) Based on FRE 404 and 405, the
Defendant may only offer reputation and opinion evidence of
the victim's character as an aggressor and may not use
specific instances of crimes, wrongs, or other acts to show
that in this case, the victim acted in accordance with that
character. The government, in fact, does not contest the
Defendant's use of reputation and opinion evidence, if it
exists, to support that the victim was an aggressor or
provocateur in this instance. (DE 32 at 4.) Accordingly, to
the extent that the government's Motion in Limine seeks
to preclude specific instances of crimes, wrongs, or other
acts related to the victim's prior assaults for the
purpose of proving the victim's character, it is granted.
However, the Defendant may have the ability to introduce
specific instances of crimes, wrongs, or other acts related
to the victim's prior assaults if a proper purpose is
identified, a foundation is laid, and the Court determines
the evidence is relevant and nonprejudicial. Should either
party find that specific instance evidence related to the
prior victim's assaults becomes relevant in light of
other evidence introduced at trial, counsel shall approach
the bench, lay the proper foundation, and request permission
of this Court to admit the evidence.
would also like the ability introduce evidence related to the
prior victim's assault status to support that the victim
did not suffer a serious bodily injury “as a
result” of a confrontation with the defendant. (DE 26
at 4.) Defense seems to be asserting that the jury should
have the opportunity to review evidence related to the
victim's prior assaults to determine whether there was
some intervening cause of death. (DE 26 at 4.) To support the
intervening cause analysis, defense wants to use evidence of
the victim's medical records showing health complications
deriving from past assaults and testimony by Dr. Hunsaker
indicating a history of health complications caused by prior
assaults. (DE 26 at 2-4.)
intervening cause is one that supersedes the defendant's
conduct such that the causal link between the defendant's
conduct and the victim's injury is broken. See Wilson
v. Sentry Ins., 993 F.Supp.2d 662, 665-66 (6th Cir.
2014). It is not necessary that the defendant's conduct
be the sole cause of harm. Id. See also Billingslea v.
Jackson, 83 Fed.Appx. 33, 42 (6th Cir. 2003). His
conduct need only be a contributory cause that was a
substantial factor in producing the harm. Id.
Moreover, a defendant is responsible when he inflicts an
injury that materially accelerates a death, even if the death
is “proximately occasioned by a preexisting
cause.” 40 C.J.S. Homicide § 12; See also
United States v. Long Feather, 299 F.3d 915 (8th Cir.
2002). Stated differently, a defendant must take his victim
as he finds him. Long Feather, 299 F.3d at 917;
Brackett v. Peters, 11 F.3d 78, 81 (7th Cir. 1993).
this Court certainly recognizes that an intervening cause is
an appropriate defense to the crime charged, this Court is
not persuaded that the Defendant has any evidence of an
intervening cause. The medical records relating to the
victim's past assaults filed by the Defendant do not
reveal an intervening cause because they provide absolutely
no evidence of a superseding cause. (See DE 30.) At
most, the medical records show that the victim had
preexisting injuries which caused him to be particularly
vulnerable. The victim's preexisting injuries, however,
are not relevant because a defendant must take his victim as
he finds him. Long Feather, 299 F.3d at 917.
Furthermore, the written opinion of Dr. Hunsaker provided to
this Court also does not identify an intervening cause.
(See DE 18-1.) If anything, Dr. Hunsaker identified
a contributing cause of death. The opinion states that Dr.
Hunsaker agrees with the pathologist's determination that
the victim's injuries were caused by a closed head
injury, but that he would have added “anticoagulation
therapy” as a contributory cause of death. (DE 18-1 at
3.) But this identified contributory cause is not intervening
or superseding. Instead, it is an identification of a
preexisting condition or vulnerability of the victim which
heightened his susceptibility to injury. The fact that Dr.
Hunsaker refers to the victim as a “ticking
timebomb” and states that there is “no scientific
methodology to pinpoint when the injuries happened” is
irrelevant because he is expounding upon his identification
of the victim's overall physical condition along with a
potential contributory cause, not opining as to an
time, the Court does not find the victim's prior assault
status to be relevant. Should the parties uncover evidence of
an intervening cause or otherwise find that evidence related
to the victim's prior assault status becomes relevant,
counsel shall approach the bench, lay the proper foundation,
and request permission of this Court to admit the evidence.
Government's Motion in Limine to preclude testimony of
Dr. John Hunsaker, III, ...