[00:00:00] Speaker 04:
Next case is US versus CBO 248035.

[00:00:04] Speaker 02:
May it please the court.

[00:00:10] Speaker 02:
My name is Ryan Ray, and I represent the defendant and appellant, Francis CBO Jr.

[00:00:17] Speaker 02:
And it's my intention with the court's permission to reserve two minutes of my time for rebuttal at the conclusion.

[00:00:25] Speaker 02:
This court should reverse.

[00:00:27] Speaker 02:
Mr. Acebo's convictions and sentences for murder and related charges, remanding for a new trial or other proceedings for all the reasons set forth in our briefing.

[00:00:38] Speaker 02:
But the two most significant issues and errors that we would submit require a new trial relate to the exclusion of other acts of the decedent, most principally those were threatening statements.

[00:00:57] Speaker 02:
either made to Mr. Asibor, of which he was aware.

[00:01:01] Speaker 02:
And the second issue relates to the prohibition on cross-examination of the coroner about the decedent's testing positive for methamphetamine, the extent of that, and the likely effects of such intoxication.

[00:01:21] Speaker 01:
I mean, was there a foundation on the coroner that the coroner was a

[00:01:28] Speaker 01:
was a witness that could testify to the things you just brought up, the possible effects, the level of methamphetamine in the system, that type of thing?

[00:01:37] Speaker 02:
Well, Your Honor, I would submit the coroner was testifying as a disclosed expert witness on the subject matter of the report that she rendered.

[00:01:47] Speaker 01:
Well, her report was that it was there.

[00:01:49] Speaker 01:
And regarding the cause of death, it wasn't what the defendant might have acted like if he was on meth.

[00:01:56] Speaker 02:
But Your Honor, it did adopt other parts of statements made by another appropriate medical professional, as experts can, of course.

[00:02:08] Speaker 02:
Experts can rely on other conclusions of other experts.

[00:02:13] Speaker 02:
And this particular coroner, in conducting the examination required by law, found it appropriate to rely in the report on statements regarding extent,

[00:02:27] Speaker 02:
and likely effect.

[00:02:28] Speaker 01:
And so putting her on... I mean what did the coroner's report, I mean other than saying I adopt expert so and so's opinions on this, what did the coroner's report say about likely effects?

[00:02:42] Speaker 02:
I believe it talked about level and extent of intoxication and that as those levels increased that the

[00:02:51] Speaker 02:
aberrational effects on behavior, of course, of which there was other evidence here in this case.

[00:02:56] Speaker 01:
I mean, wouldn't it be harmless in that event because it would be cumulative?

[00:03:01] Speaker 02:
Well, I don't believe so, Your Honor.

[00:03:03] Speaker 02:
And here's why.

[00:03:05] Speaker 02:
Because this is a medical professional testifying to medical data and medical results that lay witnesses could not properly interpret and explain.

[00:03:18] Speaker 02:
Certainly there are other witnesses, including Mr. Asibo himself, who were testifying to this individual's behavior, the decedent's behavior on the night in question.

[00:03:28] Speaker 01:
He was violent.

[00:03:29] Speaker 01:
He was erratic.

[00:03:30] Speaker 02:
Yes.

[00:03:31] Speaker 02:
And your honor, what was improperly excluded is that medical information from someone qualified to speak to that, who had been put on as a disclosed expert witness,

[00:03:48] Speaker 02:
It's the exclusion of that information that didn't come from any other source or any other person.

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That is the erroneous exclusion that occurred as it relates to that issue.

[00:04:02] Speaker 01:
The coroner didn't test it.

[00:04:04] Speaker 01:
Did you designate, are you appellate counsel only?

[00:04:08] Speaker 01:
You didn't try the case.

[00:04:09] Speaker 01:
I did not try the case, your honor.

[00:04:10] Speaker 01:
I'm an appellate counsel.

[00:04:11] Speaker 01:
Did the trial counsel cross-designate that expert?

[00:04:16] Speaker 01:
I don't believe there's nothing I've seen in the record that would indicate that.

[00:04:21] Speaker 01:
I'm just curious, because what it seems like to me is that on cross-examination, you or your trial counsel wasn't trying to examine the coroner about something the coroner had said.

[00:04:35] Speaker 01:
It was about something else in the coroner's report that maybe they wanted in evidence themselves, but they didn't plan on putting it in on their case in chief.

[00:04:47] Speaker 01:
And, you know, brought it up as, oh, this is just, you know, I'm just cross-examining here, not the idea that they were trying to get this in as substantive evidence.

[00:04:57] Speaker 02:
I would say, Your Honor, the coroner, I would have been adopted those statements by including them within the report.

[00:05:05] Speaker 02:
And to test, and the report was disclosed in accordance with the rules as the basis of what our testimony would be.

[00:05:12] Speaker 01:
Was it admitted into the record in its entirety?

[00:05:15] Speaker 01:
I don't believe it was, Your Honor, and I'm not sure that even necessarily would be appropriate, but I still... I mean, that's sort of the point.

[00:05:24] Speaker 01:
I mean, I can see your point if the government had moved for its admission and it had gone in, and then you have that substantive evidence there that maybe you can ask questions about.

[00:05:37] Speaker 02:
But I would submit, Your Honor, it's part and parcel of what the coroner adopted

[00:05:42] Speaker 02:
and was disclosed.

[00:05:44] Speaker 02:
And so testifying to those conclusions, I would submit that anything that informs those conclusions is fair subject of cross-examination.

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And the coroner thought it sufficient enough or informative enough to the conclusion she reached to include the information in the report.

[00:06:02] Speaker 02:
And so by positing her to testify to those conclusions, I would just submit that anything

[00:06:08] Speaker 02:
that informed them was in the report and that she had chosen to adopt it should have been fair for cross-examination.

[00:06:17] Speaker 02:
Now, in addition, there's another category of issues... Wait, wait, wait, wait, wait, wait, excuse me for interrupting.

[00:06:27] Speaker 03:
But in the record, I don't...

[00:06:31] Speaker 03:
Did you make an offer or explain to the court when you weren't trial counsel?

[00:06:38] Speaker 03:
That's why this question is hard.

[00:06:40] Speaker 03:
I don't recall that there was an offer approved by the defense counsel on the basis of what you just told Judge Carson.

[00:06:50] Speaker 03:
Was there an offer after the court denied the visibility of the evidence that the trial counsel was trying to get in?

[00:07:02] Speaker 02:
So I would submit your honor that when there was an objection made, there was a discussion, there was a sidebar conference, I believe, with the court in which defense counsel did describe, we would submit in sufficient detail the nature and extent of the evidence that

[00:07:24] Speaker 02:
that he wished to admit in that.

[00:07:28] Speaker 02:
And we would just submit that that was adequate enough to disclose the nature and extent of the questioning that was sought, and it was sufficient under Rule 103 to preserve the error.

[00:07:43] Speaker 03:
You answered my question, and I apologize for taking up your time in regards to that.

[00:07:50] Speaker 03:
I just don't remember if we'll look at the record for my...

[00:07:54] Speaker 02:
I believe, Your Honor, if I recall correctly, it may be somewhere around pages 300, 301, 302 from the trial transcript.

[00:08:02] Speaker 02:
It's in our briefing, though, I'm certain of that.

[00:08:06] Speaker 02:
Thank you.

[00:08:06] Speaker 02:
Appreciate it.

[00:08:08] Speaker 02:
Certainly.

[00:08:09] Speaker 02:
Now, Mr. Acebo was also prohibited during his testimony, and he was also prohibited from cross-examining another witness about prior threats

[00:08:23] Speaker 02:
death or bodily harm that the decedent had made either to him or which he was personally aware on a number of grounds that we would submit our error.

[00:08:35] Speaker 02:
I think the first and perhaps the most significant was that he had not given pretrial notice of his intention to introduce that evidence.

[00:08:44] Speaker 02:
And Rule 404B specifically says the prosecution is required to give notice of these things.

[00:08:51] Speaker 02:
The accused, however,

[00:08:53] Speaker 02:
is not.

[00:08:55] Speaker 04:
But the district court's scheduling order did require the defendant to provide pre-trial notice of 404B evidence, correct?

[00:09:02] Speaker 02:
Well, the scheduling order, Your Honor, said any party that intends to introduce things subject to 404B.

[00:09:08] Speaker 02:
And I would submit, and trial counsel did submit at the time, that this kind of evidence, particularly in the testimony of the accused himself, is not subject to 404B at all.

[00:09:22] Speaker 02:
Because his arrest yesterday?

[00:09:23] Speaker 02:
I believe so, or it also is informative of his state of mind on the night in question.

[00:09:28] Speaker 02:
I think that's important to keep in mind here, which is that when self-defense is raised, it was here, and the court found the instruction was to be given and was given based on the trial evidence, then it becomes the government's burden of proof to prove beyond a reasonable doubt that the defendant wasn't acting in

[00:09:52] Speaker 02:
self-defense, and which necessarily includes an examination of the reasonableness.

[00:10:00] Speaker 02:
I agree it's the objective reasonableness of his conduct under all the circumstances.

[00:10:05] Speaker 04:
I don't want to interrupt your train of thought, too.

[00:10:10] Speaker 04:
But if we conclude that the district court was within its discretion in interpreting the proper evidence as either as 404B evidence

[00:10:21] Speaker 04:
rather than evidence offered for res gestaia for some reason other than 404b, would we be compelled to conclude that the district court was within its discretion in enforcing its scheduling order to disallow you to use evidence that in the court's view was 404b evidence?

[00:10:42] Speaker 04:
Notwithstanding what the federalism of evidence, 404b says.

[00:10:48] Speaker 02:
I would say no, Your Honor, for several reasons.

[00:10:50] Speaker 02:
First of all, there's nothing to indicate that that was the actual basis of the court's ruling, that this was required under the scheduling order and wasn't provided.

[00:11:00] Speaker 02:
And there's also nothing in the scheduling order itself that would objectively indicate that the court was altering the requirements of the rules.

[00:11:08] Speaker 02:
And to the extent that it was, we would submit that in itself as error, because the case law from the US Supreme Court is very clear that

[00:11:18] Speaker 02:
and imposing a local rule, or I think the equivalent of a local rule, which this would be, the court can't vary the plain language of the rules themselves.

[00:11:31] Speaker 04:
Well, you can impose obligations that are supplemental to the obligations in the federal rules, but you just can't impose rules that contradict the federal rules.

[00:11:42] Speaker 04:
Is that true?

[00:11:43] Speaker 02:
I do believe in general that's true.

[00:11:45] Speaker 02:
I think that's not particularly here, especially when it relates to the testimony of the accused.

[00:11:51] Speaker 02:
The rules obviously treat that very differently for good reason.

[00:11:55] Speaker 02:
And the idea that the accused has a duty to make a pretrial disclosure of his own testimony, I would just submit that's totally in

[00:12:06] Speaker 01:
conflict with the right to testify and the well it's not necessarily the accused you have to you have to give a under the sketching order you would have to give the subject matter that you wish notice of the subject matter that you wish to bring up if it was 404 be related

[00:12:29] Speaker 01:
And because the idea is that we're not going to use this type of information sort of as a surprise to the other party, right?

[00:12:37] Speaker 01:
So it's more like a trial management.

[00:12:41] Speaker 01:
And it wouldn't necessarily have to be the accused who brought that testimony forward.

[00:12:47] Speaker 02:
Well, I would say, Your Honor, if it is indeed.

[00:12:49] Speaker 01:
You could have his cousin testify that a few weeks before there had been a drive-by shooting at the grandmother's house by the defendant.

[00:12:59] Speaker 02:
I suppose in theory, could that occur?

[00:13:03] Speaker 02:
Perhaps so.

[00:13:04] Speaker 02:
But again, here, Your Honor, we're talking about the principal place in which this played itself out was in the accused's own testimony.

[00:13:12] Speaker 02:
I don't dispute that at all.

[00:13:14] Speaker 02:
And the second place was in the testimony of the decedent's girlfriend.

[00:13:19] Speaker 02:
And that was a prior inconsistent statement.

[00:13:22] Speaker 02:
The inconsistency didn't arise until the trial itself.

[00:13:28] Speaker 02:
And it's really there, when she says there's no conflict, I'm not aware of any conflict, she then makes her prior statement relevant.

[00:13:37] Speaker 02:
It's frankly similar to the Glossop case the Supreme Court just recently decided.

[00:13:42] Speaker 01:
I mean, it's relevant for impeachment, right?

[00:13:44] Speaker 01:
It is.

[00:13:44] Speaker 01:
It's not substantively relevant, because it would only be substantively relevant if your client knew about it.

[00:13:51] Speaker 02:
Well, and a limiting instruction could have been given, but what happened here was a complete and total bar.

[00:13:55] Speaker 01:
No, I understand that.

[00:13:55] Speaker 01:
You agree with that, though.

[00:13:56] Speaker 01:
It's not substantively relevant.

[00:13:58] Speaker 01:
It would only be relevant for impeachment.

[00:14:00] Speaker 02:
As it relates to Ms.

[00:14:01] Speaker 02:
Brown, I believe that's true.

[00:14:03] Speaker 02:
Okay.

[00:14:03] Speaker 02:
But as it relates to Mr. Acebo himself, it's not true.

[00:14:09] Speaker 02:
He could testify to substantive evidence of anything of which he had was aware.

[00:14:13] Speaker 02:
He'd have to be aware of it, but it could inform his state of mind.

[00:14:17] Speaker 02:
And it would be offered for the non hearsay purpose of his state of mind on the night in question, which can be informed by prior events involving the same person.

[00:14:29] Speaker 04:
Request reserve the remainder of my time if that leaves the court sir unless there are other questions Kevin Why don't you stop this clock judge ball lock do you have any questions?

[00:14:40] Speaker 04:
No Okay, thank you.

[00:14:43] Speaker 04:
Thank you Miss Jackson before you get started

[00:14:52] Speaker 04:
This is your time, so I don't want you to have to spend time on things you don't want to talk about.

[00:14:58] Speaker 04:
But I will tell you that it would be helpful, at least to me, on the issue involving the exclusion of Mia Brown's statement to law enforcement.

[00:15:11] Speaker 04:
If in your 15 minutes you have time to fit in a discussion about that.

[00:15:15] Speaker 04:
It's totally up to you.

[00:15:19] Speaker 00:
May it please the court, my name is Carrie Jacobson and I represent the United States.

[00:15:25] Speaker 00:
We ask the court to affirm Francis Acebo's conviction as the three issues raised on appeal were either not error at all or were harmless.

[00:15:34] Speaker 00:
Specifically, beginning with what the court has just addressed, the court's ruling that the victim's statements to witness Mia Brown were improper impeachment was not an abuse of discretion.

[00:15:45] Speaker 00:
not whimsical, arbitrary, capricious, or manifestly unreasonable under the facts of this case.

[00:15:52] Speaker 00:
The court's factual determination that the testimony was not inconsistent with her prior statements to law enforcement was not clearly erroneous.

[00:16:02] Speaker 00:
It was factually supported by the record and does not lead to a definite and firm conviction that any mistake has been made for this reason.

[00:16:10] Speaker 00:
The defense inferred

[00:16:12] Speaker 00:
there must have been conflict for the victim to have made such statements to his girlfriend.

[00:16:18] Speaker 00:
But any inference was not the question.

[00:16:21] Speaker 00:
Witness Mia Brown truthfully answered the question put to her.

[00:16:25] Speaker 00:
The victim had told his girlfriend Mia Brown he had to put down my brother or his kids weeks before the murder.

[00:16:33] Speaker 00:
When Mia Brown was asked by defense counsel if she had ever observed any conflict between Red Star and Mr. Acebo, she testified,

[00:16:41] Speaker 00:
Not that I know of, no.

[00:16:43] Speaker 04:
So you don't think it was inconsistent to say, have you ever observed any conflict between Judge Carson and Judge Baccarat?

[00:16:59] Speaker 04:
And the answer is no.

[00:17:01] Speaker 04:
And then the impeachment question is, well, did Judge Carson, a couple of weeks ago, say he wanted to take Judge Baccarat out?

[00:17:11] Speaker 04:
And that's not inconsistent with, you've never observed any conflict between Judge Carson and Judge Beckerack?

[00:17:19] Speaker 00:
Well, you are asking for an inference there.

[00:17:22] Speaker 04:
So the inference would be, if a person were to... Typically, when you say you want to kill somebody, that's a conflict.

[00:17:30] Speaker 00:
There's been some conflict.

[00:17:32] Speaker 00:
But what the court explored at the sidebar then, Mia Brown was not aware of what that conflict was.

[00:17:39] Speaker 00:
There was never a part of the evidence that said why the victim had made this statement, the context of it, what his... That's a different question.

[00:17:47] Speaker 04:
That she wasn't aware of anything in their relationship that might have caused either one of them to be fearful of the other.

[00:17:56] Speaker 04:
So presumably, she might have answered that truthfully because he didn't know that Acebo had

[00:18:05] Speaker 04:
had told Red Star that he wanted to kill him.

[00:18:09] Speaker 04:
It was the preceding question that I'm troubled by.

[00:18:12] Speaker 04:
Have you ever observed any conflict between Red Star and Acebo?

[00:18:17] Speaker 00:
And Mia Brown's testimony had been they had been hanging out.

[00:18:22] Speaker 00:
She had been hanging out with them on a couple of other occasions.

[00:18:26] Speaker 00:
She considered them to be bros, which was established at the

[00:18:31] Speaker 00:
vehicle where the defendant claimed that Red Star threatened him.

[00:18:34] Speaker 04:
So they cleared things up, but how does that negate her observation that there was a conflict previous?

[00:18:45] Speaker 04:
Maybe they resolved it.

[00:18:46] Speaker 04:
Maybe there's no reason for him to be scared.

[00:18:49] Speaker 04:
But all he was wanting to impeach with was when you say you never observed any conflict,

[00:18:58] Speaker 04:
A couple of weeks ago, you did hear him say that he wanted to kill him.

[00:19:02] Speaker 00:
But that is different than the question put to her, I would submit.

[00:19:05] Speaker 00:
Have you ever observed any conflict?

[00:19:09] Speaker 00:
The statement the victim made to her was by themselves alone in their bedroom.

[00:19:13] Speaker 00:
He makes the statement, I've got to put him down or his kids.

[00:19:17] Speaker 00:
And she tells him, no, you're not going to do that.

[00:19:20] Speaker 00:
And in her mind, that's the end of it.

[00:19:22] Speaker 00:
Now, has she observed a conflict?

[00:19:23] Speaker 00:
I would submit to you, she has not.

[00:19:26] Speaker 00:
And I believe the district court

[00:19:28] Speaker 00:
then explored every conflict that I knew of from the investigation for the judge to consider.

[00:19:35] Speaker 00:
Does this witness know of any conflict between these two people?

[00:19:39] Speaker 00:
And ultimately, the court concluded that she did not.

[00:19:43] Speaker 01:
So your position would be for her to have answered that there had been a conflict, she would have had to witness them together and seen a conflict between them.

[00:19:55] Speaker 01:
Or heard it, perhaps.

[00:19:57] Speaker 00:
heard it or even heard of it because let's just say hypothetically the victim had said to her, this guy's made me so mad, I've got to put him down or his kids down.

[00:20:08] Speaker 00:
You know, he, I don't know, you know, killed my dog last week or whatever.

[00:20:12] Speaker 00:
Then I think she'd have to say, yeah, I've, well, I've observed conflict or I'm aware of conflict.

[00:20:18] Speaker 00:
I would say if she was aware of conflict, then I wouldn't be standing here making this same argument.

[00:20:25] Speaker 00:
But the victim provided no background to that statement.

[00:20:31] Speaker 03:
Judge Baldoch has a question.

[00:20:32] Speaker 03:
I have a question, please.

[00:20:35] Speaker 03:
Your word that you're saying is key to this whole thing is the use of the word observe.

[00:20:46] Speaker 03:
That's the key to your argument.

[00:20:48] Speaker 00:
I would go further than that.

[00:20:52] Speaker 00:
Go ahead, please.

[00:20:53] Speaker 00:
I would go further than that, Your Honor.

[00:20:55] Speaker 00:
And I would say that, based on the record, the judge explored with some depth that Mia Brown was not aware of any conflict.

[00:21:06] Speaker 00:
Now, the question put to her, as you've pointed out correctly, had she ever observed any conflict, clearly would say that, have you ever seen it with your own eyes or ears?

[00:21:18] Speaker 00:
But what the judge explored

[00:21:20] Speaker 00:
and I believe may have weighed differently on his question that this was improper impeachment, was whether she was even aware of any prior conflict.

[00:21:29] Speaker 00:
No argument that she's aware of the statement that the victim made to her.

[00:21:33] Speaker 00:
I've got to put the defendant or his kids down.

[00:21:35] Speaker 00:
But as to what the basis of that was, what any conflict between them was, not only had she never observed any, but based on the record, we showed the judge that she was not even aware of any conflict

[00:21:49] Speaker 00:
between the two of them prior to her testimony.

[00:21:54] Speaker 00:
So my short answer is I don't think that I'm hanging my hat on the word observed.

[00:22:03] Speaker 01:
Let's move on to the other statements that he wanted to testify himself as the defendant.

[00:22:08] Speaker 01:
What do you think about the textual argument that the notice requirement applies only to the government?

[00:22:14] Speaker 00:
Do you agree with that?

[00:22:15] Speaker 00:
I do agree with that.

[00:22:16] Speaker 00:
That is accurate.

[00:22:17] Speaker 01:
And so what is your defense of the district court's decision on those?

[00:22:22] Speaker 00:
My defense is that the defense never proffered sufficiently to the court at any time what the defendant wanted to testify to.

[00:22:32] Speaker 00:
Not by way of previewing his self-defense claim, but by way of testifying to any specific bad acts

[00:22:39] Speaker 00:
or specific threats by the victim.

[00:22:42] Speaker 00:
The only proffer the defense ever made as to what the defendant wanted to testify to was that on such and such a day, he threatened to kill me.

[00:22:54] Speaker 00:
There was no context given, no time frame in relation to the murder, no basis of the defendant's knowledge.

[00:23:02] Speaker 00:
Nothing further was ever proffered by the defense.

[00:23:05] Speaker 00:
So when the judge is trying to make a determination

[00:23:08] Speaker 00:
Can the defendant testify to this?

[00:23:11] Speaker 00:
Can this come in under the reverse 404B test that we see in our mayhoe?

[00:23:17] Speaker 00:
The first, of course, prong is the court has to determine is the defendant aware of this?

[00:23:24] Speaker 00:
And was the defendant aware of these threats or specific bad acts at the time of the commission of the offense?

[00:23:31] Speaker 00:
And the answer is,

[00:23:32] Speaker 00:
We don't know, and the court doesn't know, because it was never proffered to the defense.

[00:23:37] Speaker 01:
Do you remember where in the record that colloquy was?

[00:23:43] Speaker 00:
I do, Your Honor.

[00:23:48] Speaker 00:
The sidebar from, now the colloquy, now if you're referring to the colloquy concerning the proffer of evidence of drive-by shooting at Grandma's house five weeks ahead of time,

[00:24:01] Speaker 00:
victim threatening to beat the defendant's ass because he caught him molesting his children and the time that the defendant shot the firearm in the victim's home two weeks before the murder and got into a conflict with another man, not the defendant.

[00:24:17] Speaker 00:
That colloquy was on February 14th, and that was only as to the court's exploration of whether or not the question put to me at Brown was proper impeachment.

[00:24:28] Speaker 00:
And that is on volume 3, page 470.

[00:24:33] Speaker 00:
That's where the government is proffering those three pieces of evidence that I'm aware of that the victim has done in the past, allegedly, I don't know, but were the only bad acts or threats by the victim towards the defendant that the government was aware of.

[00:24:50] Speaker 00:
Those were provided to the court as it's trying to work through, is Mia Brown aware of any conflict between these two men?

[00:24:59] Speaker 00:
The next time when we're talking about what the defendant's going to testify to, that sidebar is on the next day.

[00:25:06] Speaker 00:
And at that sidebar, the only proffer of evidence is that my client wants to testify that on such and such day, the victim threatened to kill him.

[00:25:16] Speaker 00:
That's it.

[00:25:17] Speaker 00:
There was no additional proffer to the court.

[00:25:20] Speaker 00:
And so when the court's trying to make this determination as to relevance, does he have a basis of knowledge

[00:25:26] Speaker 00:
Did the defendant have a basis of knowledge of any specific prior bad act or prior threat by the victim?

[00:25:33] Speaker 00:
The answer is the court doesn't know.

[00:25:35] Speaker 00:
It's not been provided to him.

[00:25:37] Speaker 00:
And then when the court goes further trying to determine any 401, if it's relevant, or a 403 balance, the court did what it could with the evidence before it, ultimately determining that the defendant would be allowed to testify to a generalized fear of this victim

[00:25:56] Speaker 00:
Excuse me.

[00:25:59] Speaker 00:
You're trying to interrupt now.

[00:26:01] Speaker 00:
But that even though the defense never did really proffer that it was going to admit any kind of character or trait evidence under Rule 405, but the court permitted the defendant to testify to this generalized fear because that's all it had in front of it at the time.

[00:26:21] Speaker 00:
So our position, of course, is that this was not an abuse of discretion.

[00:26:26] Speaker 00:
The court did apply the rule, the reverse 404B test appropriately, but that the defense had just never sufficiently proffered the evidence to allow the court to make any different ruling.

[00:26:39] Speaker 01:
So would you disagree that the court relied on a lack of notice?

[00:26:47] Speaker 01:
Well, it seems like here you're saying

[00:26:50] Speaker 01:
even on the day he wanted to testify about it, he could come forward with nothing to say exactly what he was going to testify about, or he came forward with nothing to say what he was going to testify about.

[00:27:07] Speaker 01:
But what about the notice?

[00:27:09] Speaker 00:
Right.

[00:27:10] Speaker 00:
Well, I would suggest to the court that I cannot speak for the district court, but throughout the record, you will notice the court saying,

[00:27:19] Speaker 00:
Well, that will be proffer to the court in the future.

[00:27:24] Speaker 00:
Well, I expect to hear about that.

[00:27:26] Speaker 00:
And yes, the court did make the discovery ruling saying that 404B notice had to be noticed earlier before trial.

[00:27:34] Speaker 00:
But as you look at the colloquy at the sidebar, you can see the court would still entertain a proffer of evidence that the defendant wanted to testify to.

[00:27:44] Speaker 00:
And I myself kept using the word notice and notice.

[00:27:47] Speaker 00:
But really, more artfully, it would have been if I had said proffer, proffer.

[00:27:52] Speaker 00:
The court and myself were just searching for what is it that the defendant wants to testify to.

[00:27:58] Speaker 04:
So you're not relying on the lack of pretrial notice?

[00:28:03] Speaker 00:
Secondarily, I would say the judge did, Your Honor.

[00:28:05] Speaker 00:
He first, it was never sufficiently proffered.

[00:28:08] Speaker 00:
Secondarily, no 404B notice was provided.

[00:28:13] Speaker 00:
But in looking at the record, I believe the court was still

[00:28:17] Speaker 00:
inviting notice at the sidebar right before the defendant wanted to testify.

[00:28:23] Speaker 00:
And of course, and then the defense has mischaracterized the record by listing the victims prior bad acts as though the defense proffered them to the court at the sidebar before his client testified.

[00:28:38] Speaker 00:
And that includes the drive-by shooting, the threatening to beat his ass, and then the reckless shooting at his house two weeks prior to

[00:28:46] Speaker 00:
the murder.

[00:28:47] Speaker 00:
And the prior band acts were never proffered by the defense, never adopted.

[00:28:53] Speaker 00:
He didn't ever try to adopt my proffer of those when I was trying to give the court some ground to rule on the impeachment issue for Mia Brown.

[00:29:02] Speaker 00:
The defense argued that any victim threats were inextricably intertwined.

[00:29:09] Speaker 00:
But ultimately, the court found that the threats in the hours leading up to the murder to include two

[00:29:15] Speaker 00:
Two threats by the victim with two different firearms in two locations.

[00:29:21] Speaker 00:
The defendant got to testify he was fearful after both of those threats that those are what was inextricably intertwined.

[00:29:30] Speaker 00:
And the defense testified expansively about all of the victim's bad acts and all of the victim's threats in the hours leading up to the actual murder itself.

[00:29:44] Speaker 00:
also allowed the defendant to testify to his generalized fear of the victim in the past.

[00:29:51] Speaker 00:
And that was not an abuse of discretion, because here it was allowed as a circumstantial use of character evidence.

[00:30:01] Speaker 00:
And so the court allowed the defendant really to testify in a manner that was similar to trait or character, even though the defense never moved to admit the evidence under Rule 405.

[00:30:13] Speaker 00:
And if there are no further questions, I would submit on the briefs.

[00:30:16] Speaker 00:
Thank you.

[00:30:17] Speaker 04:
Judge Baldock, do you have any questions?

[00:30:22] Speaker 04:
No.

[00:30:23] Speaker 04:
Thank you.

[00:30:27] Speaker 02:
I'll be very brief.

[00:30:28] Speaker 02:
I would just respectfully invite the court to pages eight and nine of our reply brief as it relates to Ms.

[00:30:34] Speaker 02:
Brown, as it relates to the inconsistency that she gave, and as it relates to exactly the substance of the inconsistency that counsel wished to pursue.

[00:30:50] Speaker 02:
And also, as to Mr. Acebo's testimony, I believe that's

[00:30:55] Speaker 02:
The record on that's from roughly page 740 to page 800 of the trial transcript.

[00:31:00] Speaker 02:
I think the record will very clearly bear out that notice was the basis.

[00:31:05] Speaker 02:
And the context, further offer of proof, is not needed if the substance is clear from the context.

[00:31:12] Speaker 02:
This had been brief pretrial.

[00:31:13] Speaker 02:
There had been pretrial hearings on it.

[00:31:15] Speaker 02:
There had also been proceedings involving Ms.

[00:31:18] Speaker 02:
Brown's testimony the day before.

[00:31:20] Speaker 02:
It was clear from the context what the substance was.

[00:31:25] Speaker 02:
And the record bears out that it was excluded on erroneous grounds.

[00:31:30] Speaker 02:
If there's no other questions, we would ask for reversal for the reasons in our brief.

[00:31:35] Speaker 04:
Thank you.

[00:31:41] Speaker 04:
Appreciate the excellent advocacy from both sides.

[00:31:44] Speaker 04:
This matter is submitted.

[00:31:45] Speaker 04:
We'll take a 10-minute break.