[00:00:00] Speaker 03:
is United States versus Hobbs, 23-5113.

[00:00:05] Speaker 02:
Counsel, you may proceed.

[00:00:09] Speaker 02:
Good morning, Your Honors.

[00:00:10] Speaker 02:
I'm Josh Lee from the Colorado Federal Public Defender's Office, and I represent Hunter Hobbs.

[00:00:15] Speaker 02:
This appeal is from a trial that ended with Mr. Hobbs being convicted of felony murder.

[00:00:20] Speaker 02:
His primary claim on appeal challenges the admission of highly inflammatory testimony that Mr. Hobbs mockingly imitated the dying breaths of one of the victims.

[00:00:30] Speaker 02:
Which wasn't objected to.

[00:00:31] Speaker 02:
That's right.

[00:00:32] Speaker 02:
We're on plain error.

[00:00:33] Speaker 02:
And this testimony was plainly inadmissible because its probative value was very slight.

[00:00:39] Speaker 02:
And it came nowhere close to justifying the extraordinary amount of unfair prejudice that it inflicted.

[00:00:45] Speaker 02:
Prosecutors emphasized this mocking testimony all three times they spoke to the jury and made it some of the last things that the jurors heard.

[00:00:54] Speaker 03:
Could I just ask you in terms of the way you're framing this issue, the word mimicking is used in the briefs, there's mocking used in the briefs, are those the same thing?

[00:01:05] Speaker 03:
I think that they are.

[00:01:06] Speaker 03:
Okay.

[00:01:06] Speaker 03:
And the second one is there's testimony about

[00:01:11] Speaker 03:
the mimicking or mocking on the one hand, and then there's the reenactment piece of it.

[00:01:17] Speaker 03:
Are you challenging those separately or together?

[00:01:22] Speaker 02:
I think both.

[00:01:24] Speaker 02:
I think that the mocking testimony on its own violated Rule 403.

[00:01:30] Speaker 02:
plainly so, and the reenactment on its own violated Rule 403 and plainly so.

[00:01:36] Speaker 03:
And when you put them together, the un- I suppose that the reenactment wouldn't have made any sense without the testimony as a foundational predicate.

[00:01:46] Speaker 02:
That's true, although what I would essentially say is,

[00:01:51] Speaker 02:
The mocking testimony violated rule 403, but if you think that that somehow maybe just barely passed it, the reenactment just like took it over the top.

[00:02:02] Speaker 02:
I mean, so, you know, I think that the government says that this testimony wasn't really all that unfairly prejudicial.

[00:02:10] Speaker 02:
I just don't see how that's possible.

[00:02:12] Speaker 02:
Ms.

[00:02:13] Speaker 02:
Darden not only claimed that Mr. Hobbs ridiculed Mr. Collier's dying breaths, but then made raspy, gasping noises in the courtroom that purported to be the dying breaths of Mr. Collier.

[00:02:27] Speaker 02:
And this was unfairly prejudicial because it surely would have aroused the jury's emotions.

[00:02:33] Speaker 02:
It would have induced sympathy for Mr. Collier, and it would have provoked an instinct to punish Mr. Hobbs.

[00:02:40] Speaker 04:
But it's what the defendant said told his girlfriend when he came home from the acts that he had committed.

[00:02:48] Speaker 04:
He's the one that told her and mimicked the death throes of the decedent.

[00:02:57] Speaker 04:
It's not like somebody made it up.

[00:02:59] Speaker 02:
No, but whether or not a fact is true, whether or not testimony is true, I don't think goes to whether it violates rule 403.

[00:03:10] Speaker 04:
Well, okay, 403 is pretty broad.

[00:03:13] Speaker 04:
No objection was made.

[00:03:15] Speaker 04:
And I'm wondering why the defender's office is missing all of these objections case after case after case.

[00:03:24] Speaker 02:
So I can't speak to... I'm not sure that this was the federal defender's office, but regardless, I think that if the question is, how could the testimony have been that prejudicial if defense counsel didn't object?

[00:03:38] Speaker 02:
Well, when it comes to the mocking testimony, we have it in black and white.

[00:03:42] Speaker 02:
We can see that it was prejudicial.

[00:03:44] Speaker 04:
So I think the absence of an objection under these certain... Just repeating what the defendant told his girlfriend.

[00:03:53] Speaker 04:
How is that prejudicial other than showing the true character of this defendant?

[00:03:59] Speaker 02:
Well, I think that that is one of the reasons that it's prejudicial, because it characterizes the defendant as an evil person.

[00:04:06] Speaker 02:
Well, he was.

[00:04:07] Speaker 04:
And he told his girlfriend exactly what she repeated in court.

[00:04:13] Speaker 04:
So where is the prejudice?

[00:04:14] Speaker 04:
I think that you're articulating the prejudice.

[00:04:17] Speaker 02:
So what the government needed to do is to, you know,

[00:04:21] Speaker 02:
prove these elements, like here, you know, prove that he committed murder, felony murder.

[00:04:29] Speaker 02:
Right.

[00:04:29] Speaker 02:
And what they can't do, which I tend to think is what you're suggesting, is to say, well, he mocked the victim's death.

[00:04:38] Speaker 02:
He's evil.

[00:04:40] Speaker 02:
Therefore, he's more likely to have done what we claim.

[00:04:42] Speaker 02:
That's the reason it's prejudicial.

[00:04:44] Speaker 04:
Well, how can they be prejudiced?

[00:04:46] Speaker 04:
The guy is dead to rights.

[00:04:48] Speaker 04:
He carjacked, he killed this lady, he made fun of her dying breath.

[00:04:55] Speaker 04:
And they repeated that in court.

[00:04:57] Speaker 04:
And how is that prejudiced?

[00:04:58] Speaker 02:
So I'm glad that you brought this up if you're going to the third prompt.

[00:05:02] Speaker 02:
Because the government didn't only have to prove that he killed this person.

[00:05:08] Speaker 02:
They also had to prove that he did so in the course of a robbery and as a result of a robbery.

[00:05:14] Speaker 02:
The only real evidence that they had that this arose from a robbery and was a result of a robbery was the uncorroborated testimony of a co-defendant who was cooperating with the government in exchange for leniency.

[00:05:28] Speaker 02:
And here's why this is important.

[00:05:30] Speaker 02:
The in the course of a robbery element was what allowed the government to get first degree murder and a life sentence.

[00:05:37] Speaker 02:
So even if the government had him dead to rights on being out there and shooting Mr. Collier, they don't get a first degree murder conviction and a life sentence without proving the robbery.

[00:05:50] Speaker 02:
The evidence of the robbery was weak.

[00:05:53] Speaker 03:
But they also had the burden of proof on the killing.

[00:05:59] Speaker 03:
I mean, I understand what you're trying to say here, but the mimicking testimony

[00:06:07] Speaker 03:
I appreciate that you're going to press the prejudice side of this, but it's also probative.

[00:06:16] Speaker 03:
The testimony that he mimicked is probative that he was there.

[00:06:23] Speaker 03:
that he knowingly and voluntarily participated.

[00:06:28] Speaker 03:
And isn't this just, this is classic 403 balancing, isn't it?

[00:06:34] Speaker 03:
Probative value.

[00:06:36] Speaker 03:
Probative value is substantially outweighed.

[00:06:39] Speaker 03:
And not only that, you've got to get, not only to error, you've got to get to plain error.

[00:06:44] Speaker 03:
How do you get to plain?

[00:06:46] Speaker 02:
Well, let me take those one at a time.

[00:06:48] Speaker 02:
First of all, when it comes to probative value, this court's case law is clear.

[00:06:53] Speaker 02:
that you have to discount the probative value if the point is already adequately established by other evidence.

[00:06:59] Speaker 02:
That's from the Wood case.

[00:07:00] Speaker 03:
Yeah, but there's plenty of cases that show that the government is entitled to present the full narrative of the case and what happened.

[00:07:10] Speaker 03:
And assuming that the witness was truthful about the mimicking, it happened.

[00:07:18] Speaker 02:
Yeah, but the mimicking is not itself part of the crime.

[00:07:22] Speaker 02:
But it's probative.

[00:07:25] Speaker 02:
It's corroborative.

[00:07:26] Speaker 02:
All right.

[00:07:26] Speaker 02:
Let me give you, I think, the best case of this is the Wood case.

[00:07:31] Speaker 02:
So in the Wood case, the prosecution had to prove that the defendant doctor, who was a doctor, killed his patient with potassium chloride.

[00:07:43] Speaker 02:
And one of the ways they proved that is they had an expert witness that said, we use this to execute criminals and to kill animals, to euthanize animals.

[00:07:52] Speaker 02:
And this court says, wait a second, you already proved the properties of potassium chloride before you got into all of this inflammatory stuff about executing criminals and killing animals.

[00:08:04] Speaker 02:
It was adequately proved with other evidence.

[00:08:06] Speaker 02:
And that's what we have here.

[00:08:08] Speaker 02:
There was no question that he was out there at Hakey Creek Park.

[00:08:13] Speaker 02:
And the jury, before this mocking testimony, from the exact same witness,

[00:08:18] Speaker 02:
They had already heard that he confessed to shooting Mr. Collier.

[00:08:23] Speaker 02:
So the way that went was like this.

[00:08:26] Speaker 02:
The prosecution's witness, Ms.

[00:08:28] Speaker 02:
Darden, said, Mr. Hobbs came home, and he confessed to me how he shot and killed Mr. Collier.

[00:08:36] Speaker 02:
So the jury had already heard better evidence from the same witness, and then it went on and elicited this mocking testimony, which was totally unnecessary.

[00:08:48] Speaker 02:
and had the primary effect of characterizing him as a fundamentally evil person and arousing the jury's instinct to punish.

[00:08:57] Speaker 03:
But your argument's sort of like it's a spillover prejudice on the other charges.

[00:09:03] Speaker 03:
On the killing itself, do you think it had to be excluded on that?

[00:09:08] Speaker 02:
I'm not sure I understand the question.

[00:09:11] Speaker 03:
Well, a few minutes ago you said it's significant.

[00:09:15] Speaker 03:
This is significant relative to these other cases.

[00:09:18] Speaker 02:
Oh, no.

[00:09:19] Speaker 02:
No, no.

[00:09:19] Speaker 02:
Sorry.

[00:09:20] Speaker 02:
He was charged with and convicted of felony murder.

[00:09:23] Speaker 02:
Right.

[00:09:24] Speaker 02:
Right.

[00:09:24] Speaker 02:
So it's inadmissible.

[00:09:27] Speaker 02:
The government, and I think what you were suggesting, is that, well, it goes to the killing.

[00:09:33] Speaker 02:
It goes to him being out there.

[00:09:35] Speaker 02:
Well, it's totally cumulative for that.

[00:09:37] Speaker 02:
And then you ask, how is it prejudicial?

[00:09:40] Speaker 02:
Well, the government's case on the robbery, the government's case that the killing was perpetrated to commit a robbery was weak.

[00:09:49] Speaker 02:
And then the danger is the jury's going to think, this is a fundamentally evil person.

[00:09:54] Speaker 02:
He needs to be punished.

[00:09:55] Speaker 02:
Oh, OK.

[00:09:56] Speaker 03:
I understand.

[00:09:56] Speaker 02:
Yeah.

[00:09:57] Speaker 02:
And they find themselves more persuaded than they otherwise would have been.

[00:10:02] Speaker 03:
So let's get to playing.

[00:10:03] Speaker 03:
Right.

[00:10:04] Speaker 03:
I mean, typically we

[00:10:07] Speaker 03:
We'd like to see a Supreme Court or 10th Circuit case.

[00:10:10] Speaker 03:
But as I understand your argument, it's more of an obviousness argument.

[00:10:14] Speaker 02:
It is.

[00:10:14] Speaker 02:
And this court does have plenty of cases.

[00:10:18] Speaker 02:
One of them that I cited in my briefs is the Jones case that says evidence can be plain based on a rule of evidence by itself.

[00:10:28] Speaker 02:
So what you have is it just comes down to the question,

[00:10:34] Speaker 02:
It's an established rule that should exclude evidence if its prejudicial effect substantially outweighs its probative value.

[00:10:42] Speaker 02:
So the question is, is it clear and obvious that the prejudicial effect of this evidence outweighs its probative value?

[00:10:51] Speaker 02:
And it is.

[00:10:52] Speaker 02:
The prejudicial effect was tremendous.

[00:10:55] Speaker 02:
The connection between anything that the prosecution legitimately had to prove was tenuous at best.

[00:11:02] Speaker 02:
And for its probative value, it was totally cumulative of other evidence.

[00:11:08] Speaker 04:
And then I also- Well, is there a reasonable probability that the result would have changed?

[00:11:17] Speaker 02:
Yes, and for two reasons.

[00:11:19] Speaker 02:
Number one, as I have said, to get convictions on the most serious counts, the prosecution had to prove that the robbery was a reason for the killing and the evidence of the robbery was weak.

[00:11:32] Speaker 02:
So that's number one.

[00:11:34] Speaker 02:
Number two is we have weak evidence on this essential element and then the prosecution repeatedly exploits this plainly inadmissible evidence.

[00:11:44] Speaker 02:
They bring it up every single time they speak to the jury.

[00:11:47] Speaker 02:
including twice in their rebuttal closing.

[00:11:50] Speaker 02:
So the reason it affects substantial rights is the evidence on an essential element was weak.

[00:11:56] Speaker 02:
This evidence, which was plainly inadmissible, was highly safe.

[00:11:59] Speaker 04:
Well, except you admitted during the outset that there was, and to quote, there was significant corroborating evidence of Mr. Blount's testimony that Mr. Hobbs was involved in the killing of

[00:12:13] Speaker 04:
Mr. Davis and Kite.

[00:12:15] Speaker 02:
Exactly.

[00:12:15] Speaker 02:
I agree with that.

[00:12:16] Speaker 02:
OK.

[00:12:16] Speaker 04:
And so if there was ample evidence otherwise, how is this particular evidence going to change the bottom line?

[00:12:24] Speaker 02:
Because this is a felony murder case.

[00:12:26] Speaker 02:
The prosecution cannot get a conviction without proving that the killings happened during and as a result of the robbery.

[00:12:33] Speaker 02:
He admitted it.

[00:12:35] Speaker 02:
He never admitted that it occurred during and as a result of a robbery.

[00:12:38] Speaker 02:
Thank you.

[00:12:39] Speaker 02:
I've reserved the remainder of my time.

[00:12:41] Speaker 02:
Thank you, counsel.

[00:12:50] Speaker 00:
Good morning and may it please the court, Jenny Ellickson for the United States.

[00:12:55] Speaker 00:
Mr. Hobbs' plain error challenge under Rule 403 lacks merit and this court should reject it.

[00:13:02] Speaker 00:
First, the district court properly admitted this evidence.

[00:13:05] Speaker 00:
Second, there was no clear or obvious Rule 403 error.

[00:13:09] Speaker 00:
And third, it did not affect Mr. Hobbs' substantial rights.

[00:13:13] Speaker 00:
I can walk through each of those.

[00:13:15] Speaker 00:
Now first, I'd like to talk about the probative value of this evidence.

[00:13:19] Speaker 00:
This went directly to Mr. Hobbs' state of mind and how he felt about the crimes that he had just committed at Hakee Creek Park.

[00:13:27] Speaker 00:
Those crimes included the murder, it included the robbery, and it included his working in tandem with his best friend, Denham Blount, who killed one of the two victims.

[00:13:36] Speaker 00:
The government had to prove that Mr. Hobbs knowingly and voluntarily entered into a conspiracy with Mr. Blount to rob the victims.

[00:13:44] Speaker 00:
The government had to prove

[00:13:46] Speaker 00:
It was not just felony murder, it was also killing with intent to obstruct justice, that Mr. Hobbs acted with that intent, wanting to cover up the robberies, and also with respect to the killing of Mr. Kelly Davis, which was a killing that Mr. Blount carried out.

[00:14:02] Speaker 00:
The government could prove that by showing that Mr. Hobbs aided and abetted that murder, which again required showing that he intended to help Mr. Blount in committing that crime.

[00:14:14] Speaker 00:
So all of these things,

[00:14:16] Speaker 00:
go directly to how Mr. Hobbs was feeling and what his state of mind was.

[00:14:21] Speaker 01:
How does his mocking of the victim go to his intent on any of those items?

[00:14:27] Speaker 01:
In particular, how does her reenactment of his mocking of the victim go to any of those items?

[00:14:35] Speaker 00:
So I'll take first the testimony and then the reenactment.

[00:14:38] Speaker 00:
So with respect to the testimony, it shows his attitude after the murders.

[00:14:42] Speaker 00:
And this is relevant partly because

[00:14:44] Speaker 00:
of the defense that Mr. Blount was trying to put forward at trial.

[00:14:47] Speaker 00:
He was trying to paint a picture of Mr. Hobs was trying to paint a picture of Mr. Blount being kind of an angry person who he was intimidated by, that he was there but not wanting to participate.

[00:15:00] Speaker 00:
This is all refuted by the fact that right after the murders, when they come back to the house, Mr. Hobs is telling his girlfriend,

[00:15:08] Speaker 00:
relishing the story of what they had done.

[00:15:11] Speaker 00:
And it refutes the idea that he was sort of an unwilling participant or not happy to have been a part of it.

[00:15:19] Speaker 00:
It shows he was quite happy to be part of it.

[00:15:22] Speaker 00:
And this was important.

[00:15:24] Speaker 00:
The fact that he mimicked, rather than just describing the murders, describing his participation in the murders sheds less light on his state of mind than the fact that he then kind of reveled in the violence that he had just committed.

[00:15:39] Speaker 00:
And with respect to the reenactment, I think that if you look at the cold record, there was no objection.

[00:15:44] Speaker 00:
So frankly, we don't know exactly what she did.

[00:15:47] Speaker 00:
All it says is that the government asked, can you do it for us?

[00:15:51] Speaker 00:
And she complied.

[00:15:52] Speaker 01:
The defense counsel said he couldn't hear.

[00:15:55] Speaker 01:
Apparently, it was hearing impaired.

[00:15:58] Speaker 01:
But as I recall, defense counsel said I kept repeating he couldn't hear her.

[00:16:02] Speaker 01:
And then so the government or somebody asked her to do it again.

[00:16:08] Speaker 00:
Not with respect to the demonstration.

[00:16:12] Speaker 00:
This was with respect to some of her earlier testimony.

[00:16:14] Speaker 01:
Yes, she did it again, because he couldn't hear it.

[00:16:16] Speaker 01:
And he even said, I don't really want her to, but I can't hear it.

[00:16:21] Speaker 00:
Well, that was with respect to the testimony and not with respect to the reenactment.

[00:16:24] Speaker 00:
But I think whether or not, with respect to the fact that it's a plain error, it's the question of not just should the defense attorney have objected, but should the district court have Sue Esponte

[00:16:35] Speaker 00:
observing this said, this is something that is clearly and obviously outrageous that the jury should not hear.

[00:16:42] Speaker 00:
There's no allegation that the district court had a hearing issue.

[00:16:45] Speaker 00:
The district court witnessed it and did not.

[00:16:49] Speaker 00:
The district court certainly didn't see this as clear and obvious.

[00:16:51] Speaker 03:
Was it obviously cumulative?

[00:16:54] Speaker 03:
She'd already talked about it.

[00:16:58] Speaker 03:
And then we have a reenactment.

[00:17:00] Speaker 03:
The counsel's argument is that it was needlessly

[00:17:05] Speaker 00:
I think, Your Honor, it's a little hard to tell from the transcript again because of not knowing exactly what happened.

[00:17:12] Speaker 00:
But if you look at Ms.

[00:17:14] Speaker 00:
Darden's testimony leading up to the reenactment, it had been a little bit, I think, not necessarily clear for the jury to parse.

[00:17:20] Speaker 00:
Because first she said, well, it was both serious and joking, but more serious.

[00:17:26] Speaker 00:
But then she said it was more of a mocking.

[00:17:28] Speaker 00:
She was having trouble articulating what exactly this

[00:17:32] Speaker 00:
imitation entailed, and so the government asked her to do it.

[00:17:37] Speaker 00:
And as soon as she did it, the questions ended.

[00:17:39] Speaker 00:
There was no further discussion in her testimony about it until, of course, cross-examination when there were further questions by defense counsel.

[00:17:47] Speaker 00:
But I think based on that cold record, it indicates that her imitation was clarifying

[00:17:54] Speaker 00:
And I think this court also has to give it its minimum prejudicial value, and so it has to assume that it was short and relatively uninflammatory.

[00:18:02] Speaker 00:
And it was, to the extent that it was cumulative of the earlier testimony, that also just shows that it actually didn't have a significant additional potential prejudicial value.

[00:18:13] Speaker 00:
The jury had already heard her describe that Mr. Hobbs had mocked the victim's dying breaths.

[00:18:19] Speaker 00:
And the jury had previously heard Mr. Blount's testimony describing in detail how the victim had been trying to raise himself up and was the dying breast of the victim in that respect.

[00:18:31] Speaker 00:
And so this was all the idea that it would be the demonstration would kind of arouse some special feeling in the jury that wasn't already aroused by that other evidence that was

[00:18:47] Speaker 01:
At a minimum, it seems that the government thought it was pretty important since they repeated it three times.

[00:18:52] Speaker 00:
Well, the government actually only referenced the demonstration once, and that was briefly in closing argument.

[00:18:57] Speaker 01:
But also referenced two more times, didn't they, the blocking.

[00:19:03] Speaker 00:
Yes, referenced in the opening and rebuttal.

[00:19:06] Speaker 00:
And that's because it goes to the probative value of this evidence.

[00:19:09] Speaker 00:
This evidence was important.

[00:19:10] Speaker 00:
It showed Mr. Hobbs' attitude towards the crimes.

[00:19:14] Speaker 00:
It showed how he was feeling.

[00:19:16] Speaker 00:
And as the government explained in its closing argument when it referenced this evidence, one of the things that was kind of striking about these crimes is that they seemed in so many ways to be senseless.

[00:19:27] Speaker 00:
There was no personal grudge.

[00:19:30] Speaker 00:
There was very little to gain from these crimes.

[00:19:33] Speaker 00:
And I think that made it potentially more of a challenge for the government to be able to persuade the jury that Mr. Hobbs actually was kind of

[00:19:42] Speaker 00:
had joined in Mr. Blount in doing these things, because why would you commit these crimes for so little?

[00:19:49] Speaker 00:
He had multiple guns.

[00:19:52] Speaker 00:
Why would he help Blount steal another gun?

[00:19:55] Speaker 00:
Why would he put himself in this situation?

[00:19:57] Speaker 00:
And the fact that Mr. Hobbs seemed to have enjoyed it, I think, helps to answer the question of why he would have voluntarily and intentionally participated in these

[00:20:11] Speaker 00:
seemingly low stakes crimes.

[00:20:13] Speaker 00:
And that was what the government was explaining when it used this evidence in its presentations to the jury.

[00:20:19] Speaker 00:
That this helps to explain, and the government said this in the closing argument, one of the things that makes this kind of a challenging case is that the first thing I think you're going to think about is why did he do these things?

[00:20:31] Speaker 00:
And the government wanted to answer that question to clear up any confusion about whether he actually did do those things.

[00:20:37] Speaker 00:
If the jury thinks it doesn't make sense for him to do these things because he didn't have a grudge against the victims, he stood so little to gain, the government needed to show that Hobbs was getting something out of it.

[00:20:52] Speaker 00:
And so I think that it goes directly to the state of mind.

[00:20:57] Speaker 01:
It also, importantly... If Hobbs was just a horrible person, it seems that's what they were trying to show.

[00:21:02] Speaker 00:
No, no, no, no.

[00:21:03] Speaker 00:
That's definitely... This is...

[00:21:05] Speaker 00:
that he seemed to enjoy it.

[00:21:08] Speaker 00:
And that is borne out by the evidence.

[00:21:12] Speaker 00:
The evidence showed that he was joking about the murders after the fact, not just with Darden, but with Blount as they were driving away the next morning when he talked to the friend who gave him a ride.

[00:21:23] Speaker 03:
So the bottom line is you're saying this is state of mind evidence.

[00:21:26] Speaker 00:
Yes, and that state of mind that goes directly to his intent.

[00:21:31] Speaker 00:
And it undercut his defense, which was that he lacked the mens rea to commit these crimes.

[00:21:36] Speaker 03:
Well, how do you respond to Mr. Lee's argument about weakness of evidence on the robbery?

[00:21:42] Speaker 00:
So I definitely disagree with the idea that the robbery evidence was weak.

[00:21:46] Speaker 00:
First of all, there was Blount's testimony, which was corroborated in many respects throughout both of the sets of crimes, both the attempted carjacking and

[00:21:56] Speaker 00:
the murders and robbery at Hakee Creek Park, there was extensive corroboration for that.

[00:22:01] Speaker 00:
But there was specific corroboration for the robbery piece of it.

[00:22:05] Speaker 00:
So the robbery charges rested on three items.

[00:22:11] Speaker 00:
First, it was the gun that they stole from Mr. Davis, and it was the car that they drove off with after the robbery, and the cell phones that were left in the car.

[00:22:21] Speaker 00:
They stole all of those things.

[00:22:23] Speaker 00:
So with respect to the gun,

[00:22:25] Speaker 00:
As soon as they came back from the murders when they were with Darden in the apartment, Darden was actually on a Snapchat call at the time with Blount's girlfriend.

[00:22:35] Speaker 00:
And Blount took the phone from Darden and he and Hobbs then showed off two handguns.

[00:22:42] Speaker 00:
And the Blount's girlfriend said that they seemed giddy and proud to have them.

[00:22:47] Speaker 00:
The evidence showed that there was only one handgun that was actually fired and used that night at Hakee Creek Park.

[00:22:53] Speaker 00:
It was a handgun and a shotgun and that they actually, that Hobbs had to reload the handgun and Blount had the shotgun and he was worried about whether he had enough bullets.

[00:23:06] Speaker 00:
So it seemed like there was no other gun that they had with them except then they stole Davis' gun.

[00:23:11] Speaker 00:
And that was corroborated by the fact that they were showing off two handguns.

[00:23:15] Speaker 00:
The fact that that witness testified that they seemed proud to have them, I think the jury

[00:23:19] Speaker 00:
would reasonably see that as showing off a murder weapon and showing off the spoils of the murder.

[00:23:24] Speaker 00:
So that's the cooperation with respect to the gun.

[00:23:26] Speaker 00:
With respect to the car, there was surveillance video presented that the victims got into the backseat of the, sorry, the victims were driving a car.

[00:23:36] Speaker 00:
The defendants got into the backseat after arranging to meet them.

[00:23:40] Speaker 00:
There were Facebook messages that showed how they had arranged to meet them.

[00:23:45] Speaker 00:
They drove together to an isolated park in the, you know,

[00:23:49] Speaker 00:
Blount testified about what happened, but it was corroborated by the fact that shots rang out.

[00:23:53] Speaker 00:
Witnesses heard shots.

[00:23:54] Speaker 00:
The police responded.

[00:23:55] Speaker 00:
They found the bodies there.

[00:23:56] Speaker 00:
They found no car.

[00:23:58] Speaker 00:
Instead, the next day, they found the car located within a block or so of the apartment where Hobbs and Blount were staying.

[00:24:05] Speaker 00:
The car had been burned.

[00:24:06] Speaker 00:
So if you look at this evidence, it shows they get in the car.

[00:24:09] Speaker 00:
They go to an isolated park.

[00:24:11] Speaker 00:
Clearly, their plan to leave the park is to leave in the car.

[00:24:15] Speaker 00:
And in fact, they ordered the victims out of the car.

[00:24:18] Speaker 00:
They shot them outside the car.

[00:24:19] Speaker 00:
They didn't shoot them inside the car, which again corroborates the fact that they were planning to leave in that car.

[00:24:25] Speaker 00:
They didn't want the car damaged.

[00:24:27] Speaker 00:
And then, of course, the car being found exactly where Blount said and burned in exactly the way that Blount described.

[00:24:33] Speaker 00:
The phones were in the car.

[00:24:35] Speaker 00:
I think that was maybe less of a focus of the robbery.

[00:24:38] Speaker 00:
The robbery was really focused more on taking the gun and then leaving in the car.

[00:24:44] Speaker 00:
But certainly, I think the jury would look at this evidence and say, well, obviously, if they're stealing the car, they're intending to steal everything in the car.

[00:24:51] Speaker 00:
And certainly, they knew that at least Kelly Davis had a phone because they had been communicating with him on Facebook until the very moment, basically, when they got in the backseat of the car.

[00:25:02] Speaker 00:
So they knew he had the phone as well.

[00:25:04] Speaker 00:
So all of that together, the robberies were heavily corroborated.

[00:25:10] Speaker 00:
Just pulling back also, I think if you look at this, even if this court thinks that the Rule 403 analysis is a hard call, that's not enough to show clear and obvious Rule 403 error.

[00:25:22] Speaker 00:
What you need is for it to be so obvious under current law that the district court was derelict in allowing this evidence to come in.

[00:25:31] Speaker 00:
And there is no case that suggests that when the defendant is in the process of confessing to a crime,

[00:25:38] Speaker 00:
within an hour or two after it occurred that the district court has an obligation to interrupt and stop any testimony that suggests that the defendant had a lack of remorse about what he had done or that the defendant was being callous about his crimes.

[00:25:56] Speaker 00:
There's no case that I'm aware of that suggests that that kind of evidence is clearly and obviously inadmissible under Rule 403.

[00:26:05] Speaker 00:
If the court has other questions, I'm happy to answer them.

[00:26:10] Speaker 00:
We'll rest on the briefs and ask the court to affirm.

[00:26:12] Speaker 00:
Thank you.

[00:26:13] Speaker 03:
Thank you, counsel.

[00:26:22] Speaker 02:
A key problem with both the government's merits argument and its substantial rights argument is it does not pay adequate attention to what the actual elements of the crimes were.

[00:26:32] Speaker 02:
So first of all,

[00:26:34] Speaker 02:
The elements of the crime determine what evidence is material, because the evidence has to be probative of a material fact, a fact that the law makes material.

[00:26:45] Speaker 02:
The defendant's attitude or feelings about what happened at Hakee Creek Park, that's not a mens rea element.

[00:26:52] Speaker 02:
The mens rea elements are, one, intent to rob, and two,

[00:26:57] Speaker 02:
intent to obstruct justice.

[00:26:59] Speaker 02:
The fact that a defendant behaves callously about having killed someone doesn't say anything about why the killing happened.

[00:27:07] Speaker 02:
It does not indicate that the killing was done to perpetrate a robbery or to obstruct justice.

[00:27:14] Speaker 02:
Also, the government says, well, we said a lot of things in closing about motive, and that's what makes it relevant.

[00:27:21] Speaker 02:
But the government's closing argument does not make evidence material.

[00:27:26] Speaker 02:
The elements make them material.

[00:27:28] Speaker 02:
And this callousness, mocking testimony just does not go to what the government actually had to prove.

[00:27:35] Speaker 02:
Doesn't it go to the willingness to participate in the murder?

[00:27:40] Speaker 02:
That was not an element.

[00:27:41] Speaker 02:
It's not an element because the government chose not to charge this as intent to kill murder.

[00:27:47] Speaker 02:
They chose to charge felony murder, which had the two

[00:27:50] Speaker 02:
Benz-Ray elements that I indicated.

[00:27:52] Speaker 03:
Well, you're not suggesting, though, that any evidence showing willingness to participate should be deemed irrelevant and excluded?

[00:28:00] Speaker 02:
No.

[00:28:01] Speaker 02:
I don't think it has to be irrelevant.

[00:28:03] Speaker 02:
I think it's not very probative for the reasons that I mentioned.

[00:28:06] Speaker 03:
Could I just ask you on the reenactment?

[00:28:09] Speaker 03:
There really isn't much we have to work with from the transcript.

[00:28:14] Speaker 03:
And district judge was there.

[00:28:18] Speaker 03:
could see the whole thing, could make the assessment and all the rest.

[00:28:22] Speaker 03:
The defense didn't make any proper extra record that would assist us on appeal.

[00:28:29] Speaker 03:
What are we supposed to do with that?

[00:28:31] Speaker 02:
So you have to ask what the reasonable probative value and prejudicial effect would have been.

[00:28:38] Speaker 02:
And I think that we can infer that filling the courtroom with what purport to be the raspy, gasping, dying breaths of a murder victim is going to be highly prejudicial.

[00:28:51] Speaker 02:
Thank you.

[00:28:52] Speaker 02:
Thank you, counsel.

[00:28:53] Speaker 02:
Thank you both for your arguments this morning.

[00:28:55] Speaker 03:
The case will be submitted.

[00:28:57] Speaker 03:
The counsel are excused.