United States District Court, W.D. Missouri, Southern Division
ORDER ON GOVERNMENT'S MOTIONS IN LIMINE
KAYS, CHIEF JUDGE.
before the Court are five Government motions in
limine: The Government's First Motion in Limine to
Preclude “Proportionality” Evidence and Argument
(Doc. 169); the Government's Second Motion in Limine to
Preclude “Mercy” Instruction (Doc. 292); the
Government's Third Motion in Limine to Preclude Capital
Punishment Opinion Evidence (Doc. 293); the Government's
Fourth Motion in Limine to Preclude Residual Doubt Argument
(Doc. 294); and the Government's Motion in Limine in
Response to Defense Disclosures (Doc. 341).
carefully considering the parties' arguments, the Court
rules as follows.
motion to exclude “proportionality” evidence and
argument is GRANTED.
event this case reaches a penalty phase, the Government moves
to preclude Defendant from introducing evidence or arguing
that the death sentence should not be imposed because the
facts surrounding Timothy Baker's murder are less
egregious than those in other cases where a death sentence
was not imposed.
Court holds that comparative proportionality evidence is not
proper mitigation evidence. The Court also holds the
probative value of such evidence or argument is outweighed by
the danger of creating unfair prejudice, confusing the
issues, and misleading the jury because introducing such
evidence will inevitably result in mini-trials debating the
facts of past death penalty cases. United States v.
Umana, No. 3:08CR134-RJC, 2010 WL 1740487, at *4 (W.D.
N.C. Apr. 28, 2010) (rejecting mitigation factors that would
amount to proportionality review because evidence was
“irrelevant to [the defendant's] character or the
circumstances of the offense, and is likely to confuse and
mislead the jury”). The Court also notes a sister court
in this district precluded such evidence in a recent capital
murder trial. See United States v. Coonce, et al.,
No. 10-3029-02-CR-S-GAF, (W.D. Mo. Mar. 12, 2014), ECF No.
motion is GRANTED.
The motion to preclude a “mercy” instruction is
TAKEN UNDER ADVISEMENT.
second motion in limine, the Government moves to preclude
Defendant from offering a so-called “mercy”
instruction; that is, an instruction advising the jury that
regardless of its findings with respect to aggravating and
mitigating factors, it is never required to impose a death
sentence. The Government objects to any instruction that the
jury may disregard the aggravating and mitigating factors
analysis and impose a sentence less than that justified by
responds by acknowledging that the Eighth Circuit held a
district court did not abuse its discretion in declining to
give a mercy instruction, the Supreme Court affirmed a case
in which a similar jury instruction was purportedly used.
See United States v. Allen, 247 F.3d 741, 780 (8th
Cir. 2001). Defendant also notes that a district court in the
Western District of Tennessee that gave a mercy instruction
noted several other cases where mercy instructions were
given, and that none of these instructions were reversed on
appeal. See United States v. Hayes, 265 F.Supp.2d
914, 923 (W.D. Tenn. 2003). Defendant also argues the Court
should decline to rule on the propriety of giving a mercy
instruction until after a specific, proposed instruction is
submitted for the Court's consideration.
the Court is skeptical of any instruction that would suggest
the jury could disregard the aggravating and mitigating
factors analysis, the Court declines to rule on this motion
in limine until a specific proposed instruction is filed.
The motion to exclude opinion evidence about the death
penalty is GRANTED.
Government moves to preclude any defense witness from
expressing his or her opinion as to an appropriate sentence,
requesting Defendant not be given a death sentence, or
providing a non-expert opinion about how Defendant will
conduct himself in prison in the future.
evidence is inadmissible. See Bosse v. Oklahoma, 137
S.Ct. 1, 1 (2016). Accordingly, the motion is GRANTED. Should
this case reach the penalty phase, no witness called by