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United States v. Dumire

United States District Court, W.D. Virginia, Roanoke Division

August 26, 2016



          Elizabeth K. Dillon United States District Judge

         Pending before the court are various motions in limine filed by the defendant, John Phillip Dumire, and by the United States. The motions have been fully briefed and were argued at two hearings. The court announced some of its rulings at the second hearing, and below provides below those rulings, some additional rulings, and further reasoning.

         Dumire stands charged with two counts of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and two obstruction-of-justice offenses: one count of witness intimidation, in violation of 18 U.S.C. §1512(b)(1), and one count of threatening to retaliate against a witness, in violation of 18 U.S.C. §1513(b)(1) and (2). He brings three motions in limine seeking the exclusion of certain evidence from his upcoming trial.[1] In the first, he asks the court to keep out evidence that he possessed a firearm outside the dates of the charged offenses. In the second, he asks the court to keep out evidence that he committed acts of domestic violence against his former girlfriend and evidence that he threatened to assault her mother. And in the third, he asks the court to keep out six categories or pieces of evidence. For the reasons stated on the record and in more detail below, the court will grant in part and deny in part the first motion, deny the second, and grant in part and deny in part the third.

         The Government has filed two motions in limine of its own. In the first, which Dumire agrees should be granted under current Fourth Circuit precedent, the Government seeks to exclude evidence and argument referencing or mentioning any sentence, punishment, or other penalty or consequences that he might receive if convicted. (Dkt. No. 141.) The court will grant that motion, but Dumire has preserved his objection to it for appeal. In the second, the Government requests that the court exclude certain impeachment evidence related to “Witness One, ” now identified as Officer Presson, who is a law enforcement officer and expected to testify at trial. That motion is granted in part and denied in part.

         I. BACKGROUND

         The following background is derived from the Government's factual proffer and exhibits.

         A. Ray Cooper's Death

         At around 7:30 on the morning of December 27, 2014, officers with the Roanoke City Police Department responded to a 911 call and found Ray Cooper lying in the alleyway behind his house on 8th Street in southeast Roanoke, Virginia. Cooper had suffered a fatal gunshot wound. Officers recovered a knife, a .25-caliber handgun, and a .380 cartridge casing from the scene.

         As officers were responding to the scene of Cooper's death, Dumire was at Roanoke Memorial Hospital, seeking medical attention for multiple stab wounds. Officers responded to the hospital and seized (among other things) Dumire's shoes, which were splattered with blood. Dumire had been taken to the hospital by his then-girlfriend Meghan Smith. At the time, the two were living with her mother, Jennifer Smith, who had a house on the same block of 8th Street as Cooper. Cooper was the grandfather of Meghan's four-year-old boy.

         B. Events Before Cooper's Death

         On the evening of December 26, 2014, Dumire and Meghan attended a party at a house on Stewart Avenue in southeast Roanoke. Dumire drank alcohol and took Xanax. He also carried two guns-a .25-caliber handgun and a .380-caliber handgun. The .25-caliber handgun was silver with a white handle, like the .25-caliber handgun later recovered at the scene of Cooper's death. Sometime later that night or early the next morning, Dumire decided to leave the party and take two other guests, Charles Tabor and Justin Hall, home. Meghan went, too.

         The group left in a pickup truck. In spite of being intoxicated, Dumire drove. The group first headed to Tabor's house in southeast Roanoke. On the way, Dumire struck several parked cars. After dropping Tabor off, the group travelled to the town of Vinton to pick up Jennifer and take her home. She was waiting at the Burger King where she worked. The group arrived at around 5 a.m. Jennifer got in the truck, and the group headed back to southeast Roanoke. Before reaching Jennifer's house, Dumire, who was still armed with both of his guns, told the other members of the group that if police stopped him, he was going to shoot at them. He also told his passengers to tell police that they had been taken hostage.

         When the group arrived at Jennifer's house, Dumire got out of the truck and went across the street to urinate, leaving both of his guns behind. Jennifer also got out of the truck. As she began walking to her house, Meghan called her back. Fearful of what Dumire might do with the guns, Meghan asked Jennifer to take them. Jennifer grabbed the guns and wrapped them in her work shirt. She then walked to her house and hid the guns outside.

         The group next took Hall to an apartment near the city of Salem where he was staying. Dumire and Meghan went inside with Hall. When Dumire and Meghan left, he began to verbally and physically assault her. The two had been fighting throughout the evening, but Dumire became especially violent toward Meghan when he realized that she had taken his guns and given them to Jennifer. As Dumire and Meghan travelled to Jennifer's house, they came across their neighbor Ricky Akers in his car. Akers saw Dumire physically assaulting Meghan inside the truck. When Dumire and Meghan reached Jennifer's house, he again physically assaulted her. He also threatened Jennifer until she turned over his guns.

         In the early morning of December 27, 2014, Robert Overstreet, one of Dumire's friends, received a call that Dumire was intoxicated and agitated. Overstreet went over to Jennifer's house to see Dumire. As the two talked outside, they saw Cooper walking his dog. Dumire told Overstreet that he should have killed Cooper by now. Overstreet tried to calm Dumire down and told him to put away the .25 and the .380 that Dumire was carrying.

         During this time, Overstreet's girlfriend kept calling him, so he decided to head over to her house. As he walked away, Overstreet heard yelling. He turned around and went back. He saw Dumire with one of his guns pointed at Cooper, who had his hands up. Dumire told Cooper that he should have killed him already. With the gun raised, Dumire cried out: “This shit won't shoot!” He then dropped the gun and began fighting with Cooper. As the two tussled, Overstreet heard a gunshot and saw Cooper fall to the ground. Dumire ran to Jennifer's house, and Overstreet ran to his girlfriend's house.

         Dumire later admitted to several persons that he shot Cooper. He claimed, however, that it was in self-defense.

         C. Events After Cooper's Death

         After Dumire was discharged from the hospital, he and Meghan decided to stay at a local hotel. During their stay, Dumire carried his .380-caliber handgun as well as another firearm. He also physically assaulted Meghan, apparently after she hid the .380 from him. This occurred approximately one week after December 27, and approximately two weeks before the gun was seized.

         On January 21, 2015, Dumire attended another party at the house on Stewart Avenue. During that party, officers with the Roanoke City Police Department responded to a disturbance call. When they entered the house, Dumire was sitting on a sofa in the living room. The officers searched the sofa and found a .380-caliber handgun underneath the cushion where Dumire had been sitting. They seized the gun.

         Forensic scientists tested the gun, the .380-caliber casing found at the scene of Cooper's death, and the bullet removed from Cooper's body, and concluded that the casing and bullet had been fired from the gun. They also tested the blood on Dumire's shoes and determined that the blood on one of them was Cooper's.

         D. Dumire's Arrest and Indictment

         Dumire was arrested and indicted on two counts of being a felon in possession of a firearm. The first count charged him with possessing a .25-caliber semi-automatic pistol and a .380-caliber semi-automatic pistol on or about December 27, 2014, and the second charged him with possessing a .380-caliber semi-automatic pistol on or about January 21, 2015. He pleaded not guilty to both charges and was remanded to the marshal's custody pending trial. While being detained at the Roanoke City Jail, Dumire ran into Overstreet, who was also in custody at the jail. Dumire told Overstreet that he was being held on two federal gun charges that were being connected to the “murder.” Dumire went on to tell Overstreet not to run his mouth because Dumire knew were his “peoples” lived. Overstreet understood these words to be a threat against his family.

         As a result of this conduct toward Overstreet, Dumire has been indicted on two more counts-one for witness tampering and one for retaliation against a witness. He has pleaded not guilty to these additional charges as well.

         E. Motions in Limine

         Dumire is scheduled to be tried on all charges beginning August 29, 2016. In preparation for trial, he brings three motions in limine, as noted above. Nearly all relate to what he describes as other-bad-acts evidence and he urges that the various categories of evidence are inadmissible under the Federal Rules of Evidence. As noted, the Government has also filed two motions in limine. All five motions are discussed below


         A. Standard of Review

         A motion in limine allows the trial court to rule in advance of trial on the admissibility of anticipated evidence. Luce v. United States, 469 U.S. 38, 41 n. 4 (1984). The trial court should exclude evidence on a motion in limine only when the evidence “is clearly inadmissible on all potential grounds.” United States v. Verges, No. 1:13-cr-222, 2014 WL 559573, at *3 (E.D. Va. Feb. 12, 2014). When faced with a motion in limine, though, the court “may reserve judgment until trial so that the motion is placed in the appropriate factual context.” Verges, 2014 WL 559573, at *3 (citing Nat'l Union Fire Ins. Co. v. L.E. Myers Co. Group, 937 F.Supp. 276, 287 (S.D.N.Y. 1996)). Moreover, even if the trial court does rule on the motion before trial, its decision “is subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the [factual] proffer.” Luce, 469 U.S. at 41.

         B. Applicable Rules

         In support of his motions, Dumire relies on Federal Rules of Evidence 401, 402, 403, and 404(b). Rules 401 and 402 address relevancy. Under Rule 402, all “[r]elevant evidence is admissible unless” specifically prohibited by the Constitution, a federal statute, or another evidentiary rule. Fed.R.Evid. 402. Rule 401 defines relevant evidence as having “any tendency to make a fact [of consequence to the determination of the case] more or less probable than it would be without the evidence.” Fed.R.Evid. 401.

         But even relevant evidence may be excluded under certain circumstances. Rule 403 instructs the trial court to “exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue ...

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