U.S. v. James

Full title: United States of America, Plaintiff, v. Darryl Lee James, Jr., Defendant

Court: United States District Court, D. Arizona

Date published: Aug 21, 2006

CR-03-900-PHX-MHM (D. Ariz. Aug. 21, 2006)

Opinion

CR-03-900-PHX-MHM.

August 21, 2006

ORDER

MARY MURGUIA, District Judge

Currently before the Court is Defendant Darryl Lee James' ("Defendant") Motion to Suppress Defendant's Statements (Dkt.#42,#105); Defendant's Motion to Preclude Tainted Identifications (Dkt.#45); and Defendant's Motion to Preclude "Other Bad Act" Evidence of New Mexico Conduct. (Dkt.#34, #112). After reviewing the pleadings, conducting an evidentiary hearing and hearing oral argument on June 1, 2006, the Court issues the following Order.

I. Background

Defendant is charged with twelve counts including First Degree Murder, Felony Murder, Robbery, Aggravated Sexual Abuse, Use of a Firearm during a Crime of Violence resulting in Death and Assault with a Dangerous Weapon. (Dkt.#1). The crimes charged in the indictment took place on September 23, 2002, at which time Defendant was approximately 17 years and 7 months old. The charged conduct began when Defendant allegedly committed aggravated sexual abuse against his two juvenile cousins, Jane Doe 1 and 2. Subsequent to this alleged sexual abuse, Defendant allegedly fired a rifle shot through a door that struck and injured Henry Begay and then stole a truck to make his getaway. He subsequently encountered Juanita Begay and her mother Laura Wilson at a remote sheep camp near Fluted Rock, Arizona. Defendant allegedly shot and killed Juanita Begay as she sat inside an outhouse. Defendant then allegedly stole Ms. Wilson's truck and drove to Farmington, New Mexico, where his criminal conduct continued the next day. Defendant was finally apprehended at his home by authorities on September 29, 2002. Subsequent to being apprehended by authorities, Defendant gave statements to an agent from the Federal Bureau of Investigation ("FBI") as well as to New Mexico authorities. On August 22, 2003 Defendant was transferred to adult status and on August 26, 2003 the instant indictment was filed against the Defendant. (Dkt.#1).

Defendant now moves to suppress the statements he gave to authorities subsequent to his arrest as well as to preclude the use of the identifications made of him by several witnesses. Lastly, Defendant moves to preclude the Government from introducing into evidence certain alleged criminal conduct that occurred in New Mexico subsequent to the charged conduct.

II. Motion to Suppress Defendant's Statements

A. Factual Background

The crimes charged in the indictment occurred on Monday, September 23, 2002. Subsequent to committing the charged crimes in Arizona, Defendant drove to Farmington, New Mexico to visit his grandmother in a nursing home. Defendant spent the night in the truck he allegedly stole from Ms. Wilson. After again visiting his grandmother on September 24, 2002, Defendant allegedly continued engaging in criminal conduct by stabbing Maria Armenta in her home after gaining entry upon false pretenses. In order to avoid authorities, Defendant eventually ditched the stolen truck and began hiking back towards home. After hiking for several days, Defendant found his way home. On September 29, 2002, Defendant was found by authorities in his mother's bedroom with a rifle threatening to take his own life. During a standoff with authorities, Defendant was apprehended after being struck with beanbags and with the use of flash grenades after authorities were able to distract him with food and water. Subsequent to being taken into custody, Defendant was taken to Sage Memorial Hospital and admitted sometime before 12:00 p.m. (Defendant's Reply to Motion to Suppress, Dkt.#124, Exhibit A). Defendant was admitted and treated by the medical staff. After receiving a meal, Defendant was released at approximately 1:00 p.m. to authorities. (Id.). Defendant was then taken to Chile Youth Corrections facility and admitted at approximately 1:45 p.m. Because Special Agent Ray Duncan ("Agent Duncan") of the FBI needed approval from his superior to videotape his discussion with Defendant, Defendant was able to eat and sleep for a short time before the interview began. (Evidentiary Hearing, Plaintiff's Exhibit 5). At approximately 4:45 p.m. Agent Duncan contacted the Defendant's mother. Defendant's mother came to the detention facility and was advised that Defendant had a federal warrant out for his arrest charging him with two counts of sexual assault and two counts of use of a firearm in a crime of violence. Agent Duncan advised Defendant's mother of the Defendant's Miranda rights. Defendant's mother then briefly talked with Defendant and left the room a short time thereafter. Agent Duncan then read Defendant his Miranda rights pursuant to the FBI "Advice of Rights" form and Defendant waived his rights by signing the form. (Evidentiary Hearing, Plaintiff's Exhibits 2, 3 and 3a, p. 2 (page number appearing on top left hand corner of page)). The interview with Agent Duncan began at approximately 5:00 p.m. and concluded at approximately 7:30 p.m.

Immediately following Agent Duncan's interview with Defendant, Detective Scott Charles ("Detective Charles") of the San Juan County Sheriff's office interviewed the Defendant. Detective Charles did not read Defendant his Miranda rights again, but instead asked Defendant if he remembered his rights and whether Defendant had a problem talking to Detective Charles. Defendant answered that he did not have a problem talking to the Detective. (Evidentiary Hearing, Plaintiff's Exhibits 10 and 10A). Detective Charles interviewed Defendant for approximately one hour at which time Defendant gave his statements. During the course of the interviews by Agent Duncan and Detective Charles, the Defendant was given at least two bathroom breaks and was given a jacket to stay warm.

B. Standards

1. Voluntariness of Statements 18 U.S.C. § 3501(b) addresses the voluntariness of statements made to police by a defendant and provides in pertinent part:

the trial judge in determining the issue of voluntariness shall take into consideration all the circumstances surrounding the giving of the confession, including (1) the time elapsing between arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment, (2) whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession, (3) whether or not such defendant was advised or knew that he was not required to make any statement and that any such statement could be used against him, (4) whether or not such defendant had been advised prior to questioning of his right to the assistance of counsel; and (5) whether or not such defendant was without the assistance of counsel when questioned and when giving such confession.

The presence or absence of any of the above-mentioned factors to be taken into consideration by the judge need not be conclusive on the issue of voluntariness of the confession.

The Government bears the burden of proof by a preponderance of the evidence to establish that the statement was made voluntarily. Lego v. Twomey, 404 U.S. 477, 489 (1972); United States v. Tingle, 658 F.2d 1332, 1335 (9^th Cir. 1981). "[A] confession obtained by police through the use of threats is violative of due process . . ., the question in each case is whether the defendant's will was overborne at the time he confessed." Haynes v. State of Washington, 373 U.S. 503, 513-14 (1963) (citing Lynnum v. Illinois, 372 U.S. 528, 534, 83 S.Ct. 917, 920 (1963)). "In short the true test of admissibility is that the confession is made freely, voluntarily and without compulsion or inducement of any sort." Id. (citing Wilson v. United States, 162 U.S. 613, 623, 16 S.Ct. 895 (1896)). The question of whether a confession was obtained by coercion or improper inducement can be determined only by examination of all attendant circumstances. Id.

"[W]hile mental condition is surely relevant to an individual's susceptibility to police coercion, mere examination of confessant's state of mind can never conclude the due process inquiry." Colorado v. Connelly, 479 U.S. 157, 165 (1986). Additionally, "coercive police activity is a necessary predicate to the finding that a confession is not `voluntary' within the meaning of the Due Process clause of the Fourteenth Amendment . . ." Id. at 167. "Where the record lacks evidence of either physical or psychological coercion by law enforcement officials, the defendant's mental capacity is irrelevant to the due process inquiry into the voluntariness of the confession." United States v. Chischilly, 30 F.3d 1144, 1151 (9^th Cir. 1994).

2. Waiver of Miranda Rights

For a confession obtained during a custodial interrogation to be admissible, any waiver of Miranda rights must be voluntary, knowing, and intelligent. United States v. Vallejo, 237 F.3d 1008, 1014 (9^th Cir. 2001) (citing Miranda v. Arizona, 384 U.S. 436, 479 (1966)). Courts look to the "totality of the circumstances including the background, experience, and conduct of defendant in determining whether a waiver was valid." Id. The Government need only prove "by a preponderance of the evidence" that an effective waiver of a defendant's Miranda rights was obtained. Connelly, 479 U.S. at 168

C. Defendant's Statements to Agent Duncan and Detective Charles

In reviewing the totality of the circumstances surrounding the voluntariness of Defendant's statements, it is clear that the statements were Constitutionally obtained.

Defendant argues that his waiver and statements to Agent Duncan and Detective Charles were the product of coercion. For instance, Defendant cites: (1) the Defendant's juvenile age at the time; (2) Defendant's mental impairment; (3) the use of leading and suggestive questions; (4) Defendant's poor condition after hiking through the wilderness; (5) Defendant's education; (6) Defendant's lack of counsel or presence of his mother; (7) the size of the room and (8) the challenges to Defendant to tell the truth. However, these factors are not persuasive as the circumstances surrounding Defendant's statements demonstrate voluntariness. For instance, Defendant was only approximately five months away from his eighteenth birthday with an educational background up to the tenth grade and had several previous encounters with authorities while a juvenile. More importantly, at a previous encounter with authorities on August 10, 2000, where Defendant's mother was not present, Defendant was read his Miranda rights and exercised his right to remain silent by declining the interview. (Evidentiary Hearing, Plaintiff's Exhibit 7). Thus, because Defendant was able to invoke his rights approximately two years earlier without the presence of his mother or his attorney, he certainly was able to do so at the interview at issue. However, this time, Defendant waived the rights and decided to speak to the authorities.

Additionally, although Defendant undoubtedly went through trying conditions during the week that he was at large, it is clear that none of those conditions rendered him unable to make a voluntary decision. For instance, after being arrested at his mother's home, Defendant was taken to a hospital, admitted, treated, fed and released after being examined by medical personnel. Defendant was then transferred to the detention facility where he again was given time to eat and sleep prior to being interviewed. These intervening factors clearly demonstrate that Defendant's decision to waive his rights and speak to authorities was made voluntarily and not the product of coercion based upon his physical condition.

Defendant also raises issue with his mental condition at the time of his interview. Subsequent to the evidentiary hearing, Defendant introduced two reports from Dr. Roger Martig, Ph.D evaluating Defendant. The first report dictated on May 7, 2003, opined that Defendant was likely unable to recognize the consequences of his behavior at the time of the offenses. (Evidentiary Hearing, Defendant's Exhibit 20, p. 12). Moreover, Dr. Martig opined that Defendant also likely lacks understanding of some of his basic rights, although with some education he could likely become aware of such rights. (Id. at p. 11). On January 30, 2005, Dr. Martig dictated another report concluding that at the time of the offense Defendant was in a disassociative psychotic state and that Defendant possessed some deficiencies in the area of understanding his basic rights. (Evidentiary Hearing, Exhibit 21, p. 5). These reports; however, do not indicate that Defendant's statement could not be made voluntarily. First, these reports are clearly not offered in the context of determining whether Defendant would be able to waive his legal rights or make a voluntary statement to authorities. Second, "[w]here the record lacks evidence of either physical or psychological coercion by law enforcement officials, the defendant's mental capacity is irrelevant to the due process inquiry into the voluntariness of the confession." United States v. Chiscilly, 30 F.3d 1144, 1151 (9^th Cir. 1994) (citing Derrick v. Peterson, 924 F.2d 813, 818 (9^th Cir. 1990), cert denied, 502 U.S. 853, 112 S.Ct. 161 (1991). Here, there is simply no evidence of physical or psychological coercion.

Lastly, Defendant raises issue with the type of questioning used by Agent Duncan and Detective Charles in obtaining the statements from Defendant. Specifically, both officers challenged Defendant during the course of their respective interviews by stating that they did not appreciate being lied to and that Defendant was leaving out details of his recollection. In fact, both officers provided some of the details of the events to Defendant after the Defendant provided his narrative of events. However, again, in reviewing this line of questioning, none of it leads the Court to conclude the Defendant was somehow coerced into giving his statement. The Ninth Circuit in United States v. Wolf, 813 F.2d 970, 975 (9^th Cir. 1987) noted that the fact authorities express disbelief to a defendants' story to elicit further information from the defendant is in no way coercive. As such, the fact that the officers challenged the Defendant to tell the truth as well as expressed disbelief to his omission of details that they felt Defendant purposefully left out does not suggest coercion. Defendant makes note that Detective Charles encouraged Defendant to be forthright so that he could understand Defendant's side of the story during his interview of Defendant. However, again, while encouraging Defendant to tell the truth, there is nothing in the record demonstrating the either officer made false promises or inducements to overcome Defendant's will.

Thus, in reviewing the totality of the circumstances, and the factors of § 3501(b), the Court finds that Defendant's statements to Agent Duncan and Detective Charles were voluntary and not the product of coercion.

D. Defendant's Waiver of His Miranda Rights

In reviewing the record, it is equally clear that under the totality of the circumstances analysis, that Defendant provided a voluntary, knowing and intelligent waiver of his Miranda rights to Agent Duncan at the beginning of the interview. Again, this finding is exemplified by the Defendant's previous invocation of such rights in a similar situation involving the FBI approximately two years prior. (Evidentiary Hearing, Plaintiff's Exhibit 7). In reviewing the transcript and video it is clear that Defendant was aware of his rights and voluntarily waived them. Defendant was read his rights, indicated he understood them and signed the waiver. (Evidentiary Hearing, Plaintiff's Exhibit 2). Moreover, the fact that Detective Charles did not read these rights to Defendant again and obtain another waiver immediately following the conclusion of Agent Duncan's interview is of little relevance as the Ninth Circuit has spoken to this issue. See United States v. Baron, 94 F.3d 1312, 1320 (9^th Cir. 1996) (holding that when a defendant is separately interrogated by two officers representing separate sovereigns, there is no requirement that the second interrogator independently re-advise the defendant of his Miranda rights).

Thus, the Court finds that Defendant provided a voluntary, knowing and intelligent waiver of his Miranda rights.

III. Defendant's Motion to Preclude Tainted Identifications

A. Photo Array #'s 1 2.

Defendant moves to preclude the Government from introducing into evidence any out-of-court or in-court identifications made by witnesses identifying the Defendant as the perpetrator of the alleged crimes. There are two out-of-court identifications at issue, ("Photo Array #1" and "Photo Array #2").

Photo array #1 possesses six pictures of Native American males that was produced for identification to Ms. Laura Wilson and Ms. Maria Armenta; victims and witnesses to Defendant's alleged crimes. Defendant's picture in Photo Array #1 was obtained by authorities from the Defendant's family. This black and white photo array, which is a copy of the original color photo array was presented to Ms. Laura Wilson on October 4, 2000. (Evidentiary Hearing, Plaintiff's Exhibit 8). Ms. Wilson identified the Defendant as the assailant in the array. Additionally, a fax copy of Photo Array #1 was also presented to Ms. Maria Armenta on September 27, 2002, but she was not able to identify anyone in the array. (Evidentiary Hearing, Plaintiff's Exhibit 11).

Photo Array #2 also possess six individuals. Defendant's picture is his booking photo after being taken into custody. This array was generated and presented to Ms. Wilson on October 7, 2002. (Evidentiary Hearing, Plaintiff's Exhibit 9). Again, Ms. Wilson identified the Defendant in the array. Moreover, a copy of Photo Array #2 was transferred to Detective Charles and on October 2, 2002 this array was presented to Ms. Armenta. (Evidentiary Hearing, Exhibit 12). This time, Ms. Armenta positively identified the Defendant.

B. Standard for Identification

Witness identifications, based upon a photo lineup, must be suppressed only if the photo spread is so impermissibly suggestive that it created a substantial likelihood of misidentification. See United States v. Jones, 84 F.3d 1206, 1209 (9^th Cir. 1996). In determining whether an identification procedure is so impermissibly suggestive as to violate due process, the court looks to the totality of the circumstances. Jones, 84 F.3d 1206; Neil v. Biggers, 409 U.S. 188 (1972).

To determine whether the identification was sufficiently reliable to warrant admission, we weigh the indicia of reliability against the corrupting effect of the suggestive identification procedure itself. Bagley, 772 F.2d at 492. "Several factors which should be considered in evaluating the reliability of both in-court and out-of-court identifications are:

(1) the opportunity of the witness to view the criminal at the time of the crime,

(2) the witness' degree of attention,

(3) the accuracy of the witness' prior description of the criminal,

(4) the level of certainty demonstrated by the witness at confrontation, and

(5) the length of time between the crime and confrontation."

United States v. Bagley, 772 F.2d 482, 492 (citing Neil v. Biggers, 409 U.S. 188, 198-99 (1972)).

C. Analysis

At oral argument, Defense counsel scrutinized the photo arrays presented by the authorities to Ms. Wilson and Ms. Armenta. For instance, with respect to Photo Array #1, Defense counsel noted that Defendant is the only person smiling; the backgrounds are not identical; Defendant appears younger than the other individuals; the Defendant's body size is smaller than the others; Defendant's neck is smaller than the others and Defendant's picture, in the array presented to Ms. Wilson (Evidentiary Hearing, Plaintiff's Exhibit #8), is cropped on the top left corner while the other pictures are not.

With respect to Photo Array #2, Defense counsel at oral argument argued that the array is impermissibly suggestive because of the following problems: Defendant's background is different than the others; one of the individuals appears to have an earring; one of the individuals looks to have down syndrome or fetal alcohol syndrome which differentiates him; one of the individuals from Photo Array #1 was repeated in Photo Array #2; Defendant's picture appears in the same location as in Photo Array #1; one individual appears to have some Caucasian features; and in the second array provided to Ms. Armenta (Evidentiary Hearing, Plaintiff's Exhibit 12), Defendant's picture is slightly larger than the others.

Defendant points out many differentiating features between the different arrays and Defendant's picture as compared to the other pictures. However, the Court disagrees with several of Defendant's alleged distinguishing features and finds that the relevant distinguishing features to be minimal, if at all. For instance, the fact that Defendant is the only Defendant smiling in Photo Array #1 does not make the array tainted. See United States v. Carbajal, 956 F.2d 924, 929 (9^th Cir. 1992) (holding that photo array not tainted where defendant was the only individual with discernible bruises on his face and wearing a wig). Moreover, the difference between the size of the other individuals' pictures in Photo Array #2 presented to Ms. Armenta (Evidentiary Hearing, Plaintiff's Exhibit 12) is minimal at best. The pictures in both photo arrays appear to be of six similar looking Native American males of approximately the same size head and neck. The Court does not notice anyone who might have Caucasian features or might have down syndrome or fetal alcohol syndrome or wearing jewelry. In short, the test in determining if a photo array is impermissibly suggestive is not that the array be perfect, rather the test is that it not be so impermissibly suggestive to create a substantial likelihood of misidentification. Jones, 84 F.3d at 1209. In light of this test, and in taking into account theBiggers factors and the totality of the circumstances, it is apparent that the Photo Array # 1 and #2 comply with Constitutional considerations and thus will be permitted into evidence.

IV. Defendant's Motion to Preclude "Other Bad Act" Evidence of New Mexico Conduct

A. Background

Defendant moves to preclude evidence of an alleged "prior bad act" of Mr. James occurring in New Mexico. The other bad act evidence relates to conduct that occurred the day after the charged conduct in Arizona. After spending the night in the stolen truck taken from Ms. Wilson's residence in the parking lot of his grandmother's nursing home in Farmington, New Mexico, Defendant allegedly engaged in additional criminal conduct. The Government alleges that at approximately 10:00 a.m. on September 24, 2002, Defendant visited the residence of Ms. Maria Armenta. Defendant gained access to the residence under the false pretense that he was interested in buying the residence as it was for sale. After touring the home and leaving, the Defendant returned several minutes later asking if the residence needed a lot of repairs. Ms. Armenta allowed Defendant into the residence again and showed him an area of a wall of the home that recently had repairs done to it. Defendant then distracted Ms. Armenta by asking who was in her yard; as she looked away the Defendant stabbed her. Somehow Ms. Armenta was able to get to a phone and dialed 911. Defendant then took the phone and Ms. Armenta then begged for her life. Defendant then washed off his knife; turned up the television and left the residence. Ms. Armenta had to have surgery performed and a blood transfusion.

B. Analysis

The Government contends that this evidence is admissible under three independent theories: (1) The New Mexico incident involving Ms. Armenta is inextricably intertwined with the charged crimes; (2) Rule 404(b) of the Federal Rules of Evidence permits it; and (3) the conduct is admissible to rebut Defendant's insanity defense.

1. Inextricably Intertwined

"Evidence is not `other acts' evidence within the scope of Rule 404(b) if it is inextricably intertwined with the crime charged."United States v. Williams, 291 F.3d 1180, 1189 (9th Cir. 2002) (citation omitted). "Evidence is `inextricably intertwined' if it constitutes a part of the transaction that serves as the basis for the criminal charge or was necessary to . . . permit the prosecutor to offer a coherent and comprehensible story regarding the commission of the crime." Id. (citing United States v. Vizcarra-Martinez, 66 F.3d 1006, 1012-13 (9th Cir. 1995)).

Here, the Government argues that the New Mexico conduct involving Ms. Armenta will provide the jury with an understanding of the events subsequent to the charged conduct the day prior and explain why the Defendant was not apprehended sooner. The New Mexico conduct involving Ms. Armenta occurred the day after the charged conduct occurred, thus it is not clear at this time that this stabbing incident would provide significant probative value explaining the commission of the charged crimes. Moreover, the fact that Defendant remained at large after the charged crimes on September 23, 2002, does not seem to necessitate explanation of the circumstances surrounding the attack of Ms. Armenta. However, the fact that Defendant visited his grandmother the day after the charged conduct and that Ms. Wilson's truck was found abandoned 10 to 15 miles away from Defendant's home provides probative value, with minimal prejudicial effect, regarding Defendant's conduct subsequent to the charged conduct. As such, it is not clear at this stage that the New Mexico conduct involving Defendant's alleged attack on Ms. Armenta is "inextricably intertwined" with the charged conduct. However, the Court will reserve final ruling on whether to admit the New Mexico stabbing incident on the basis that it is inextricably intertwined until trial. The Court will be in a better posture to evaluate whether it is necessary to permit the Prosecution to offer a "coherent and comprehensible story regarding the commission of the crime."Williams, 291 F.3d at 1189. 2. Rule 404(b) Fed.R.Evid.

The Government also contends that Defendant's New Mexico conduct involving Ms. Armenta is admissible under Rule 404(b) of the Federal Rules of Evidence. The Government argues that such evidence is admissible to demonstrate the Defendant's intent, knowledge and plan to commit the charged crimes. For instance, with respect to the New Mexico attack on Ms. Armenta it is alleged that Defendant engaged in a planned and intentional attack on her by gaining entry upon false pretenses and attacking her after distracting her.

Defendant; however, at oral argument argued that the exceptions of intent, knowledge and plan to Rule 404(b) are only admissible if the bad act actually occurred prior to the charged conduct. However, the Court is unaware of any such requirement and binding authority demonstrates the opposite conclusion. In United States v. Corona, 34 F.3d 876, 881 (9^th Cir. 1994), the Ninth Circuit held that "Rule 404(b) allows for the admission of other crimes or bad acts for the purpose of proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Evidence of subsequent, as well as prior acts is admissible to show the defendant's state of mind." (citing United States v. Conkins, 9 F.3d 1377, 1382 (9^th Cir. 1993). Thus, in Corona, the defendant's subsequent possession of a list of drug customers was deemed relevant because it tended to show the defendant's knowledge and intent. Id. As such, Defendant's argument that subsequent bad acts cannot be used to demonstrate intent, knowledge or plan is misplaced.

This Circuit follows a four part test in determining if prior or subsequent criminal conduct may be admitted: (1) the evidence tends to prove a material point; (2) the other act is not too remote in time; (3) the evidence is sufficient to support a finding that the defendant committed the other act; and (4) the act is similar to the offense charged. Id.; see also United States v. Murillo, 255 F.3d 1169, 1175 (9^th Cir. 2001), cert denied, 122 S.Ct. 1342 (2002). In reviewing these factors, they support admissibility of Defendant's New Mexico conduct involving Ms. Armenta. First, the evidence is relevant to show the Defendant's intent, knowledge or plan in committing the charged crimes. Second, the New Mexico conduct occurred less than 24 hours after the charged conduct. Third, there is sufficient evidence suggesting that the Defendant committed the New Mexico conduct, including his statements to Detective Charles and Ms. Armenta's identification of Defendant as the attacker. Fourth, the New Mexico conduct is sufficiently similar to the charged conduct as both involve attacks by the Defendant after putting the victim at ease under false pretenses. Specifically, the Defendant is alleged to have lured Jane Doe 1 into his home under the false pretense that he had just shot a coyote. With respect to the alleged murder of Ms. Juanita Begay, the Defendant first interacted with Ms. Begay and Ms. Wilson under the false pretense that he needed directions. However, a few short minutes later he allegedly shot and killed Ms. Begay while she was in a nearby outhouse. Finally, in New Mexico, Defendant allegedly put Ms. Armenta at ease by expressing interest in buying her home. Thus, the act occurring in New Mexico and the charged conduct are sufficiently similar.

Lastly, the Court is cognizant of the fact that the Defendant's New Mexico conduct, while providing probative value also possesses prejudicial value. At this point, the Court finds that the probative value of the New Mexico conduct outweighs any prejudicial effect. However, the Court will revisit this issue, if necessary, at trial.

3. Defendant's Insanity Defense

Lastly, the Government argues that the Defendant's New Mexico acts involving Ms. Armenta are also relevant to rebut Defendant's insanity defense. Rule 405 of the Federal Rules of Evidence relates in pertinent part: "[i]n cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct." Here, the Defendant is alleging that he was insane at the time of the charged conduct; as such, his character is at issue. Moreover, this alleged insanity may be rebutted with specific instances, such as the New Mexico conduct.

The New Mexico conduct certainly provides probative value to rebut the insanity defense. Specifically, the New Mexico conduct involving Ms. Armenta appears to involve a degree of deliberate planning and intent to deceive the victim to lower any defense to an attack. This evidence can likely be used to rebut any argument by the Defendant that he was not in control of his actions because of insanity. Defendant's argument that there is ample other evidence in New Mexico demonstrating that the Defendant may not have been insane at the time of the charged conduct is partially true. For instance, far less prejudicial evidence would involve the Defendant's visit to his grandmother's nursing home in Farmington, New Mexico after the crimes. However, that evidence does not address an instance in which the Defendant allegedly intentionally and deliberately attacked a victim after putting the victim at ease by appearing to pose no threat.

Thus, the Court finds, at this time, that the New Mexico conduct is admissible to rebut the Defendant's insanity defense and that its probative value outweighs any prejudicial effect. The Court will revisit the issue at trial, if necessary.

Accordingly,

IT IS HEREBY ORDERED denying Defendant's Motion to Suppress Defendant's Statements (Dkt.#42, #105).

IT IS FURTHER ORDERED denying Defendant's Motion to Preclude Tainted Identifications (Dkt.#45).

IT IS FURTHER ORDERED denying Defendant's Motion to Preclude "Other Bad Act" Evidence of New Mexico Conduct. (Dkt.#34, #112). This evidence is admissible under a Rule 404(b) analysis as well as to rebut Defendant's insanity defense.