Pretrial Motions

Today (Friday, November 15, 2013),  John and I sat in the courtroom as the judge reviewed pretrial motions that had been submitted by the district attorney and the defense attorney. These are called motions in limine and are used to get a ruling to allow for the inclusion of evidence or to get a ruling as to whether or not evidence will be precluded from trial (definition from Wikipedia).

Mr. Allison—the district attorney—had submitted 15 and Mr. Duncan, for the defense, had submitted 20. These pretrial motions were about what evidence would be allowed in the trial. As we listened to them, we realized that we were also getting a preview of what would be presented during the trial.

Some of the motions were quickly decided by the judge and some were discussed at length. All 15 of Mr. Allison’s motions were heard and decided, but the hearing ended at 12:30, with about 10 of Mr. Duncan’s motions still to be heard. As a consequence, the judge asked the attorneys to return at 8:30 AM Monday morning to continue with the motions for half an hour before the jury arrives at 9:00 and the trial begins. If the judge hears the motions in the courtroom, we can sit in and listen. If she meets with the attorneys in chambers, we will not be able to be present.

As things turned out, quite a few of the motions in limine still hadn't been heard by the time the trial began on Monday, November 18, 2013. These were addressed during the trial, out of the presence of the jury.

There seemed to be two main issues regarding the motions. The first was relevance. Some of the motions had to do with whether or not certain evidence was relevant or not to the issues at stake in the trial. The second had to do with evidence being prejudicial. Some information that was uncovered during the investigation was quite personal and the judge had to decide if it was too inflammatory to present to the jury. In other words, if a piece of evidence had only a little relevance to the crime, but had the potential to influence the jury one way or the other, it was kept out. Of course evidence that is clearly relevant to the case was kept in, no matter how inflammatory.

During the trial, these motions needed to be kept confidential just in case a juror was to somehow find them during the trial--even though they were instructed to do no research on the trial while it was going on. Now that the trial is over, there is no reason not to share them with everyone. The following were the pretrial motions discussed the Friday before the trial began.

Mr. Allison's motions in limine

1. Move to not allow the testimony of Mr. Thornhill. Mr. Thornhill was Chris’ supervisor at the Fire and Ice bar at the Ramada Inn who fired him from that job (Chris was working two others at the time) for drinking before coming to work. In his statement, Mr. Thornhill said several negative things about Chris’ character.

• Motion granted – relevance and Chris is not on trial.

2. Move to not allow the testimony of Mr. Dunigan, a cook at Fire and Ice who also said that Chris had been drinking when he came to work and that he also drank while on the job. His statement also included negative things about Chris’ character.

• Motion granted – relevance and Chris is not on trial.

3. Move to allow the immediate family members to be present in court even if they are on the witness list.

• Motion granted for Chris’ mother and father only (apparently, this is permitted under California law). Other witnesses will not be allowed in the courtroom until after they have testified.

4. Move to not allow any prior record of Chris to be presented at the trial.

• Motion granted – relevance and Chris is not on trial.

5. This motion had to do with a witness, Kris Lubbers, a cousin of Amber Lubbers’ husband. Mr. Lubbers is currently under house arrest for marijuana manufacture and may also have another felony drug conviction. Mr. Allison wanted to have this Mr. Lubbers’ situation clarified.

• Mr. Allison said he would continue to work on the record of Mr. Lubbers.

6. Move to not allow testimony regarding Chris’ alleged drug use, of which there didn’t seem to be much, if any, testimony.

• Motion granted – relevance and Chris is not on trial.

7. Move to not allow testimony about Patricia being raped when she was a teenager.

• Motion granted – relevance.

8. Motion about including information about Patricia’s military service.

• Information about Patricia’s military service may be presented in court.

9. Motion to not allow testimony about Chris’ sex life.

• Motion granted unless such testimony is used to show that Chris was not fully committed to the reconciliation between him and Patricia.

10. Motion about the purchase of Patricia’s gun.

• I believe the final decision was to allow testimony about the gun purchase, although the purchase of the gun did not come up during the trial.

11. Motion to allow statements by Chris on the day he died as reported by other people.

• Such statements will be allowed provided there is proper foundation.

12. Motion to not allow defendant’s statements as reported by other people, such as police interviews, news reports, witnesses, etc.

• Motion granted – using such statements essentially allows Patricia to testify to the court by proxy, without having to take the witness stand. This testimony by proxy issue was a big one for the prosecution who wanted to insure that any statements made by Patricia during the trial come from her while on the witness stand so that she could be cross examined.

13. Motion to not allow the statement by a witness, Ms. Hubbert, that Amber Lubbers’ family is white trash and that Ms. Lubbers is a liar.

• Motion granted, hearsay.

14. Motion to not allow the defense during opening arguments to use the statement from a witness, Ms. Setstoy, that Chris told her that Amber had sent him a text saying that she loved him, which Chris then deleted so that there is no record of that text.

• Motion granted, hearsay.

15. Motion to not allow the statement of Patricia who claimed that an unnamed FTD employee said that Chris had told her that he was going camping with an ex-girlfriend, Samantha.

• Motion granted, hearsay.

Mr. Duncan's motions in limine

1. Motion that objections made during the trial be considered under both federal and state law.

• Motion denied. The judge said that although she is aware that federal and state laws are slightly different when it comes to objections, she is not fully aware of all of the differences. She will deal with any such discrepancies should they arise during the trial on a case-by-case basis.

2. Motion to exclude information about Chris’ life insurance policy.

• Motion denied.

3. Motion to exclude testimony by witnesses that Patricia overspends.

• Motion denied.

4. Motion to exclude testimony that Patricia received money from her grandmother who also provided Patricia with a car.

• Motion denied.

5. Motion to exclude testimony that Chris contemplated suicide.

• Motion approved, relevance.

6. Motion to exclude testimony by Amber Lubbers that Patricia went through Chris’ trousers and may have taken his wallet after she had shot him.

• Motion denied.

7. Motion to exclude statements by Patricia after she allegedly shot her husband.

• Motion denied.

8. Motion to exclude testimony regarding a bullet that was found in a tree at the campsite.

• Motion denied.

9. Motion to exclude testimony regarding relationships Patricia had with other men.

• Relationships that both Chris and Patricia had during the time they were separated are not relevant, unless they can speak to either Chris’ lack of commitment to the reconciliation or to Patricia’s motives to commit murder. Any relationships either may have had after they reconciled can be brought in.

10. Motion to exclude testimony regarding Patricia’s activity on dating service websites.

• Patricia’s activity on dating websites during the time of separation will not be allowed. Her activity on dating websites after her reconciliation with Chris will be allowed. Activity on fetish dating websites will not be allowed.

End of pretrial motions
Last update: 4/30/14 - Return to the Patricia MacCallum trial home page