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United States v. Brandon Michael Council

United States District Court, D. South Carolina, Florence Division

August 21, 2019

United States of America,
v.
Brandon Michael Council, Defendant.

          ORDER ON MOTIONS IN LIMINE

          R. Bryan Harwell Chief United States District Judge.

         This capital case is before the Court on the parties' motions in limine. See ECF Nos. 529, 530, 531, 532, 550, 551, 600, & 638. The parties filed their respective responses to each motion. See ECF Nos. 629, 630, 640, & 648. The Court heard the motions on August 14, 2019, took them under advisement, and now issues the following rulings.

         Discussion[1]

         I. Defendant's Motions in Limine (ECF Nos. 529, 530, 531, & 532)

         A.Motion in Limine (Bank Video Images)” (ECF No. 529)

         Defendant argues that the Government should be limited to playing a single, continuous, linear, realtime, and unmodified video of the robbery and killings, and that the video should be played for the jury only one time during the guilt phase and not repeated in the potential penalty phase or during jury deliberations. The Government has provided a CD exhibit of the video clips it intends to play, which the Court has reviewed.

         The Court will deny this motion. Regarding the guilt phase, the video clips (from the bank surveillance cameras) are obviously relevant to proving the crimes alleged by the Government, and their probative value is not substantially outweighed by the danger of unfair prejudice. See Fed. R. Evid. 401, 402, & 403. Regarding the potential penalty phase, the clips are relevant to the sentence and proof of the Government's aggravating factors, and their probative value is not outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury. See 18 U.S.C. § 3593(c). The clips at issue are markedly different from the video described in United States v. Con-ui, 2017 WL 783437, at *2-6 (M.D. Pa. Mar. 1, 2017) (limiting admission of a video depicting “the infliction of over 200 stab wounds, kicks to the head, and other acts of violence”), a case on which Defendant relies. The video clips may be used during presentation of the Government's evidence and during closing arguments in the guilt phase and potential penalty phase.[2] As with all evidence, the jury will have full access to the video clips during its deliberations. However, the digital files on the CD exhibit(s) that will actually be admitted at trial should not be named/described and should simply be identified by the respective exhibit number (e.g., “GX 95a, GX 95b, ” etc.). Accordingly, the Court DENIES this motion.

         B.Motions in Limine (Video and Photographic Images)” (ECF No. 530)

         Defendant challenges the admission of the Government's Exhibits 21, 22, 23, and 70, which are photographs of Donna Major's body. Defendant argues that the Government should be limited to using only one of the photographs in Exhibits 21, 22, or 23, and he seeks exclusion of Exhibit 70.

         The Court will deny this motion. Regarding the guilt phase, all four photographs are obviously relevant to proving Counts One and Two, and their probative value is not substantially outweighed by the danger of unfair prejudice or needlessly presenting cumulative evidence. See Fed. R. Evid. 401, 402, & 403. Regarding the potential penalty phase, the clips are relevant to the sentence and proof of the Government's aggravating factors, and their probative value is not outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury. See 18 U.S.C. § 3593(c). Accordingly, the Court DENIES this motion.

         C. “Motion in Limine to Exclude Government's Proposed Exhibit Numbers 55, 60, 61, 62, & 68” (ECF No. 531)

         Defendant seeks exclusion of the Government's Exhibits 55, 60, 61, 62, and 68. Exhibit 55 is a photograph of a page in Donna Major's journal; Exhibits 60, 61, and 62 are photographs of Katie Skeen's credenza; and Exhibit 68 is a photograph of a wristband on Katie Skeen's wrist.

         The Court will grant this motion in part and deny it in part. Regarding the guilt phase, none of the photographs are relevant and are therefore inadmissible. See Fed. R. Evid. 401 & 402. Regarding the potential penalty phase, however, the photographs are relevant to the sentence and proof of the Government's aggravating factors, and their probative value is not outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury. See 18 U.S.C. § 3593(c). Accordingly, the Court GRANTS this motion as to the guilt phase and DENIES this motion as to the potential penalty phase.

         D. “Motion in Limine to Exclude Prejudicial and Irrelevant Evidence of Films Found in His Possession” (ECF No. 532)

         Defendant seeks exclusion of the Government's Exhibits 152, 153, 154, and 155, which are evidence of the films/movies found in his possession during the search of his car. Exhibit 152 is an overhead photograph of multiple different DVD cases with titles of different movies, a spindle of DVDs, a liquor bottle, and an open duffle bag; Exhibit 153 is a closeup photograph of the spines showing the titles of all the DVD cases; Exhibit 154 is the physical DVDs themselves; and Exhibit 155 is a photograph of the single DVD Get Rich or Die Tryin' and a DVD player/remote. Defendant's motion mainly focuses on the film Get Rich or Die Tryin'.[3]

         The Court will exclude Exhibits 152, 153, and 154 from both the guilt and potential penalty phases because (1) assuming they are relevant in the guilt phase, their probative value is substantially outweighed by the danger of unfair prejudice, see Fed. R. Evid. 403; and (2) as to the potential penalty phase, their probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury. See 18 U.S.C. § 3593(c).

         However, Exhibit 155-the photo of just the single DVD Get Rich or Die Tryin'-is relevant because it corroborates Defendant's reference to Get Rich or Die Tryin' during his statements to law enforcement and shows the film was in his possession when he was arrested. Exhibit 155 is admissible in the guilt phase because of its relevance and because its probative value is not substantially outweighed by the danger of unfair prejudice. See Fed. R. Evid. 401, 402, & 403.

         Moreover, Exhibit 155 is admissible in any potential penalty phase because it is relevant to the sentence and proof of the Government's aggravating factors, and its probative value is not outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury. See 18 U.S.C. § 3593(c). The Government explains its evidence will show that Defendant “routinely watched” Get Rich or Die Tryin' and that he watched this film “within 24 hours after his crimes.” ECF No. 630 at pp. 15, 18. As the Government correctly argues, such evidence is relevant to the aggravating factors of pecuniary gain (trying to survive by robbing proceeds from a bank, as Defendant explained in his statements to FBI agents) and lack of remorse (watching the movie after the alleged killings). Id. at p. 18; see 18 U.S.C. § 3593(c) (“The government may present any information relevant to an aggravating factor for which notice has been provided . . . .”).

         The Court will not allow any testimony by the case agent or others describing what the film is about or other theories.[4] The case and DVD itself (from Exhibit 154) are not admissible because the jury will have a photo of the DVD; and the Court does not want to risk it being played by the jury in the jury room. While a witness may testify that Defendant watched films, they should not reference the title of any film other than Get Rich or Die Tryin'.

         Accordingly, the Court GRANTS this motion in part ...


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