[00:00:00] Speaker 01:
We'll now turn to 23-4148, US versus Redfoot.

[00:00:10] Speaker 00:
May it please the Court again.

[00:00:11] Speaker 00:
I'm John Grivellius on behalf of Brandon Redfoot.

[00:00:17] Speaker 00:
This case turns on two errors that undermine Mr. Redfoot's claim of self-defense.

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First, the district court excluded testimony that would have corroborated why he went to Tesha Gardner's house that day, which was not out of murderous intent.

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but out of concern for his son.

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The second error is that the district court permitted highly inflammatory testimony that my client pointed a gun at Tasha Gardner's head a couple weeks before the shooting in this case.

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And under the facts here, that evidence served no permissible purpose other than to suggest propensity.

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These two errors tip the scales on the crucial question of whether the prosecution disproved my client's claim of self-defense beyond a reasonable doubt.

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Was it the same firearm or unknown?

[00:01:02] Speaker 00:
I don't know for certain.

[00:01:04] Speaker 00:
I think it might have been, but I don't know.

[00:01:09] Speaker 00:
I'll start with the first issue, unless the court wants to hear on others beforehand.

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So under federal rule 8033, we know that hearsay statements of the then-declarant state of mind are admissible.

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And that shows emotional condition or motive or things of that sort.

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And as this case or this court has made clear,

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that this rule permits the then declarant to express concern about well-being of another.

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That's under the Joe case.

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And the statements that we have here that Mr. Redfoot was concerned about his son fall squarely under the rule.

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They express a mental state or a mental condition of being concerned, and they do not include the reason for that concern.

[00:01:54] Speaker 00:
That was not part of it.

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And so under this court's case law, that error was obvious.

[00:01:59] Speaker 02:
Well, so you're right in that it should have fallen under the 8033 hearsay exception.

[00:02:06] Speaker 02:
Why was that relevant?

[00:02:09] Speaker 00:
Well, it was relevant because the government's whole narrative in this case was that my client formed the intent to commit murder in the truck.

[00:02:19] Speaker 02:
But what was he charged with?

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He was charged with second degree murder.

[00:02:22] Speaker 02:
So did that require him to form an intent in the truck on his way to the murder scene?

[00:02:27] Speaker 00:
It did not require it, certainly, but that was the government's whole narrative.

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And certainly, if my client, for instance, is going to this house because he's concerned for his son, that supports his position or his narrative that he went there for an innocuous intent, which was not to shoot anyone, but in order to see his son.

[00:02:50] Speaker 03:
Again, relevance problems, which is his son didn't live there.

[00:02:55] Speaker 03:
His son lived with grandma.

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Grandma had a gray sedan.

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The gray sedan wasn't there.

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There's no reason to think that the son would have been there, in other words.

[00:03:04] Speaker 00:
Well, I disagree with that.

[00:03:06] Speaker 00:
First of all, we have testimony from my client that his son had been there.

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I understand that Tesha Gardner has testified that there was a protective order, that the son had only been there once, and it was just, I think it was briefly.

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But I'll point out something about Tesha Gardner's own testimony.

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There's a couple things, actually.

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One is that,

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She's talking about violating a protective order.

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And according to my client's testimony, if it's true, then they would have been violating protective orders.

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So she at least has a motive, and certainly a good one, not to be open about how many times she's violating this protective order, not to have contact with their son.

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And another point about that is she was convicted prior of lying to police, or at least a crime related to relying to police.

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So there's good

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reason to doubt her testimony.

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And again, my client did offer evidence that this had happened before.

[00:03:57] Speaker 01:
What's our standard review on this evidence issue?

[00:04:00] Speaker 01:
Well, we're under plain error, Your Honor.

[00:04:02] Speaker 01:
You agree that it's plain error?

[00:04:03] Speaker 00:
Yes.

[00:04:05] Speaker 00:
Yes.

[00:04:06] Speaker 00:
Yeah, we're under plain error on this.

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And as I've said, we have error, and it's obvious.

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I was going to actually move to the second issue and then circle back to harm, unless the court would rather me proceed to harm.

[00:04:19] Speaker 00:
On the second issue, admission of testimony of my client pointed a gun at Tasha Gardner's head, this was unfairly prejudicial.

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The only disputed issue in this case was whether my client acted in self-defense.

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And under Comanche, we know that when self-defense is at issue, this type of evidence is highly prejudicial and inadmissible to prove anything related to self-defense.

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Now, I acknowledge, as I did in my opening brief,

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that this evidence did tend to show possession within the charge time frame of count three.

[00:04:50] Speaker 00:
Certainly, I acknowledge that.

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However, to the extent that it shows possession under count three, it was cumulative at best and had no probative value.

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Because by the time the court and the jury had heard this testimony, they had also heard from defense counsel that my client was admitting to the shooting using that gun within the charge time frame, implying that he had possession,

[00:05:14] Speaker 00:
We had unrebutted testimony from Rosa Garcia both in direct and in cross-examination that my client was the shooter that day.

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We have unrebutted testimony from Rachel Cornpeach on direct and cross-examination that my client was the shooter that day and that my client had possessed that gun in the weeks before the shooting.

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And then certainly last, Tasha Gardner, before she testified to this incident,

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had testified, albeit it's a little unclear, but that my client was there in the shooter that day.

[00:05:41] Speaker 02:
Are you saying for all those reasons the probative value was diminished or that it was zero?

[00:05:46] Speaker 00:
It was zero.

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At that point, the point had been conceded and certainly proven time and time and time again.

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What about animosity for people in the house at that address?

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I guess... He says he's going back to protect his son who's not there.

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He's also got a bad relationship with Miss Gardner, who was at the store and left because he came.

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And he ends up back at her place.

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If he pointed a gun at her head recently, that might undercut the idea that he was just back there on a goodwill mission.

[00:06:24] Speaker 00:
Well, the testimony at trial doesn't show that he was aware that Tesha Gardner was at the Merc at the time and had left the Merc at that time.

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So the testimony was that Tesha Gardner went there with her then roommate, Lily Garcia, and they went in a separate truck.

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It was a blue truck.

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And the testimony was, I believe from Tesha Gardner, that she saw the white truck pull up, and then they decided to leave.

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There's no indication that my client actually saw them leaving at that time.

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So I don't think that that sort of evidentiary connection can even be drawn from the evidence in the record.

[00:06:58] Speaker 03:
I wasn't really talking about that so much.

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Whether he saw her at the store or not, it's not that important.

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He knew where she lived.

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And he shows up and there's almost immediate gunfire.

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And if he has a bad relationship with her, seems like that might be relevant under the very loose, relevant rule, rule one, as far as what his intentions were when he got there.

[00:07:23] Speaker 00:
Well, I don't think it would really rise to that level because she, by anybody's narrative, was not an intended target of any way, shape, or form in this case.

[00:07:33] Speaker 00:
She happened to live there.

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So no, I don't believe that that theory of relevance applies.

[00:07:40] Speaker 01:
You seem to be saying, and I thought the law was to the contrary, that if the defendant concedes an element or anything, that then

[00:07:52] Speaker 01:
There's no relevance to any evidence supporting that fact.

[00:07:57] Speaker 01:
But I thought the Supreme Court has said that the defendant can concede a point, but the government can put on its case and try to prove it, the one exception being possession of a firearm.

[00:08:12] Speaker 01:
You know, the context for that.

[00:08:13] Speaker 01:
So am I misunderstanding the law in that area?

[00:08:18] Speaker 00:
Your Honor is not misunderstanding the law.

[00:08:20] Speaker 00:
I believe you're referring to old chief and sort of the maxim that the prosecution gets to prove its case the way it wants to.

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But I have two responses to that.

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First of all, 403 applies to every piece of evidence, intrinsic evidence or otherwise.

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The second response is I'm not saying that because we conceded it that therefore they couldn't present evidence.

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We're not talking about evidentiary alternatives.

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I'm not standing before the court telling this court how the prosecution

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could have proven its case or should have.

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I'm telling the court that it was conceded and the prosecution had proven that element time and time again.

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By the time, this evidence already came out.

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So the prosecution had already done its job, is what I'm saying, unlike the situations that we see in Herrera and Old Chief and the like.

[00:09:07] Speaker 02:
Do you have any cases where this court has found plain air on a 403 analysis?

[00:09:12] Speaker 02:
I don't mean whether it's theoretically possible.

[00:09:14] Speaker 02:
I mean that this court has found plain air on a 403 analysis.

[00:09:17] Speaker 00:
I do not, Your Honor, but this is a good first case for that.

[00:09:23] Speaker 00:
But no, I am not aware of one in this circuit.

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Did you know of any elsewhere?

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Not off the top of my head.

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I'm going to talk about cumulative harm now from the errors.

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So starting with the first issue, the exclusion of the testimonies I've talked about, that would have helped him corroborate why he

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you know, went to the Tasha Gardner's house, excuse me, and it would have corroborated or at least help support his self-defense theory in that he didn't intend to shoot anyone until he exited the truck.

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Secondly, having heard that he pointed a gun at the mother of his child would make

[00:10:05] Speaker 00:
jurors much more likely to uncritically accept the prosecution's case.

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As we know from Comanche, this type of evidence is, quote, strong medicine for jurors.

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And this is true even if the government, as in this case, didn't argue it in closing.

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And that was also true even if jurors, unlike this case, receive an instruction telling them not to use it for propensity.

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And so balance that against the evidence supporting self-defense.

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Certainly we have Mr. Redfoot testify he acted in self-defense.

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Rosa Garcia, for her part, did admit to law enforcement that she thought she might have heard two gunshots at the time.

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The back window of the red truck, the red truck was backed into the driveway.

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The back window had been shot out, suggesting there could have been a shooter from that side of the house.

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We have a neighbor testifying to a bald left-handed shooter.

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Everyone at the house, for their part, was high on meth.

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possibly drunk, and the two admitted to also being high on cocaine.

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Also, there was no search for weapons for anyone at that house.

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Everyone at that house left the scene immediately.

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So we know Rosa Garcia took Mr. Rodriguez to the hospital, but Tasha Gardner, Lily Garcia, and Hokey, for their part, left.

[00:11:23] Speaker 00:
Hokey was dropped off at the Merc.

[00:11:26] Speaker 02:
There may not have been a search for weapons, but there was a search for shell casings, is my understanding.

[00:11:30] Speaker 02:
And they had 29 attributable to your client that were discharged, and then one that was determined to have been old or could not have been discharged at that scene.

[00:11:40] Speaker 02:
Was that contested at the trial at all?

[00:11:43] Speaker 00:
It was in the sense, well, to the point of the, I think it was a .40 caliber shell casing that the government witness testified he believed was old.

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But he did admit that he couldn't date it and determine definitively that it hadn't been shot.

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But more importantly than that, as the government

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expert on firearms.

[00:12:01] Speaker 00:
I think his name is Gleim.

[00:12:02] Speaker 00:
I don't want to mess up his name, but it's in the record.

[00:12:07] Speaker 00:
He testified, as anybody who knows a little bit about guns knows, is that not all guns eject casings when they're fired.

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He talked about revolvers, for instance.

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Revolvers don't automatically eject shell casings.

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And so we don't have any sort of testimony that what was being used against my client was a semi-automatic handgun.

[00:12:26] Speaker 00:
We just don't have that.

[00:12:29] Speaker 03:
Do we have any testimony from anyone other than your client that there was oncoming gunfire?

[00:12:35] Speaker 00:
Your Honor, he was the only one who testified definitively to oncoming gunfire.

[00:12:39] Speaker 00:
But again, I'll remind the court that Rosa Garcia did tell the police she thought she heard two different gunshots.