214 F. Supp. 3d 1124
D.N.M.2016Background
- On March 21, 2015, three Shirley brothers allegedly forced entry into the BlueEyes trailer; Brandon BlueEyes was killed and Perry BlueEyes was stabbed. Witnesses described a banana-shaped knife used in the attack.
- Maynard Shirley fled; investigators later found his white BMW burned and damaged. The government alleges the brothers destroyed the vehicle to eliminate evidence.
- On March 25, 2015, Maynard was arrested in Aztec concealed between a mattress and box spring; officers found him holding a Bear Grylls-branded Gerber knife and later recovered several knives and a Bear Grylls Gerber axe from bags belonging to him and his fiancée.
- The government seeks to admit physical items and photos of the knives and axe as res gestae / 404(b) evidence (consciousness of guilt, access to weapons, destruction of evidence); defendant moves in limine to exclude them as irrelevant, unduly prejudicial, and impermissible propensity evidence.
- At a pretrial hearing the court excluded evidence of prior possession of knives, pocketknives found in bags, and the Gerber knife Maynard allegedly clutched at arrest, but admitted evidence of the Gerber axe (and related photos) tied to alleged destruction of the BMW—subject to redaction of knives in some photographs. Parties agreed to stipulate that defense would not later fault the government for omitting forensic results about unrelated knives.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of evidence of defendant's past possession of various knives (testimony and photos of pocketknives) | Knives show access/familiarity with sharp objects, relevant to investigation and to ability to produce a weapon; probative of consciousness of guilt and thoroughness of investigation | Knives are unrelated to the charged offense, risk improper propensity inference and unfair prejudice, and have minimal probative value | Excluded: testimony and photos of unrelated/pocket knives are inadmissible under Rules 401/403/404; photos may be admitted if knives are redacted to preserve other probative items (e.g., incendiary devices) |
| Admissibility of the Gerber knife defendant held at arrest | Knife during concealment shows flight and consciousness of guilt; admissible as res gestae / 404(b) evidence | Holding a knife adds little beyond concealment evidence, invites prejudice and propensity inference; no evidence it was used in the charged crime | Excluded: evidence that defendant was clutching the Gerber knife at arrest is unfairly prejudicial and duplicative of concealment evidence; concealment/hiding may be shown without the knife |
| Admissibility of the Gerber axe recovered from defendant's belongings | Axe is linked to the post-offense destruction of the white BMW (witnesses and circumstantial evidence), so it is probative of spoliation/consciousness of guilt | Axe not proven to be the tool used; risk juror confusion or improper inference that axe implies propensity to use knives in the homicide | Admitted: axe evidence and photos are relevant and probative of destruction of evidence and consciousness of guilt; any depictions of knives in the same photos must be redacted |
Key Cases Cited
- Huddleston v. United States, 485 U.S. 681 (U.S. 1988) (framework for admissibility of other-act evidence under Rule 404(b))
- United States v. McVeigh, 153 F.3d 1166 (10th Cir. 1998) (discussion of res gestae and evidence "inextricably intertwined" with the charged offense)
- United States v. Zamora, 222 F.3d 756 (10th Cir. 2000) (four-part 404(b) test and requirement for limiting instruction)
- United States v. Martinez, 681 F.2d 1248 (10th Cir. 1982) (flight as admission by conduct — consciousness of guilt)
- United States v. Rodella, 804 F.3d 1317 (10th Cir. 2015) (application of 404(b) and 403 balancing for similar-act evidence)