1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Louis Taylor, No. CV-15-00152-TUC-RM
10 Plaintiff, ORDER
11 v.
12 County of Pima, et al.,
13 Defendants. 14 15 Pending before the Court is Plaintiff Louis Taylor’s (“Taylor”) Motion in Limine 16 re: Cyrillis Holmes. (Doc. 397.)1 Defendants filed Responses (Docs. 399, 402), and 17 Taylor filed a Reply (Doc. 405). 18 I. Background 19 In 1972, Taylor was convicted of 28 counts of murder in connection with a deadly 20 fire at the Pioneer Hotel in Tucson, Arizona. (Doc. 340-9 at 12.)2 During Taylor’s trial, 21 Cyrillis Holmes (“Holmes”) testified as an expert witness for the prosecution and opined 22 that the Pioneer Hotel fire was man-made, with multiple areas of origin ignited within 23 minutes of one another. (Doc. 338-5 at 45-48.) 24 In 2012, Taylor filed a Petition for Post-Conviction Relief alleging that new 25 developments in fire science undermined the evidence of arson introduced during his 26 trial. (Doc. 6-1 at 2-63.) The Petition relied on a report by the Innocence Project’s Arson 27 1 Other pending motions will be resolved separately. 28 2 All record citations refer to the docket and page numbers generated by the Court’s electronic filing system. 1 Review Committee that criticized Holmes’s trial testimony and concluded the Pioneer 2 Hotel fire could not be classified as arson. (Doc. 348-2.) As part of a review of the 3 Petition, the Pima County Attorney’s Office deposed Holmes on November 1, 2012. 4 (Doc. 340-10.) After the conclusion of its review, the Pima County Attorney’s Office 5 offered Taylor a plea agreement in which Taylor pled no-contest to the original 28 counts 6 of murder in exchange for a time-served sentence. (Doc. 6-1 at 73-74.) A change-of-plea 7 hearing was held on April 2, 2013, and Taylor was released from prison that day. (Doc. 8 335 at 70-71 ¶¶ 697, 705-707; Doc. 367 at 71-72 ¶ 697, 705-707.) 9 Taylor then filed the above-captioned lawsuit. (Doc. 1.) Taylor sues Defendants 10 Pima County and the City of Tucson under 42 U.S.C. § 1983, seeking monetary damages 11 for alleged constitutional violations arising from his 1972 convictions and a declaratory 12 judgment expunging his 2013 convictions. (Doc. 169.) 13 II. Taylor’s Motion in Limine re: Cyrillis Holmes 14 Taylor argues that Holmes’s original report and his pretrial and trial testimony 15 from Taylor’s criminal proceedings should be excluded because the prosecution’s failure 16 to disclose exculpatory evidence denied Taylor a full opportunity to cross-examine 17 Holmes, in violation of Taylor’s Sixth Amendment rights. (Doc. 397 at 1-4.) Taylor 18 points to Holmes’s 2012 deposition testimony, in which Holmes stated that by December 19 30, 1970—before he had concluded his investigation—he had reached a preliminary 20 determination that the Pioneer Hotel fire had been started by an 18-year-old African 21 American male because “blacks at that point, their background was the use of fire for 22 beneficial purposes.” (Id. at 2-3; see also Doc. 340-10 at 84-86.) Taylor argues that the 23 2012 statement “would have been critically important to cross examining Holmes” and 24 therefore any use of Holmes’s opinions pre-dating the 2012 testimony “would violate the 25 Sixth Amendment.” (Doc. 397 at 3.) Taylor further argues that Holmes’s testimony 26 must be precluded because Pima County did not disclose a written expert report pursuant 27 to Federal Rule of Civil Procedure 26(a)(2)(B). (Id. at 4-5.) Finally, Taylor argues that 28 Holmes’s 1970-71 analysis of the Pioneer Hotel fire is inadmissible under Federal Rule 1 of Evidence 702 and Daubert v. Merrell Dow Pharms, Inc., 509 U.S. 579 (1993), and that 2 his 2012 analysis was perfunctory and designed only to affirm his original conclusions. 3 (Id. at 5-8.) 4 Defendants argue that Holmes is a percipient witness to Taylor’s core allegations 5 in this case and that his 1970s opinions and the bases for those opinions are directly at 6 issue. (Doc. 399 at 12-14; Doc. 402 at 3-4.)3 Because Holmes is a percipient witness, 7 Defendants contend he was not required to submit a written report pursuant to Federal 8 Rule of Civil Procedure 26(a)(2)(B). (Doc. 402 at 3-4.) Defendants also contend that 9 Taylor’s arguments concerning the cause of the Pioneer Hotel fire are barred by Heck v. 10 Humphrey, 512 U.S. 477 (1994). (Doc. 399 at 3-4; Doc. 402 at 4.) Defendants argue that 11 the Sixth Amendment does not bar Holmes’s testimony and that Taylor’s Motion 12 improperly seeks dispositive rulings on substantive claims. (Doc. 399 at 4-7; Doc. 402 at 13 2-3.) Defendants further argue that Taylor’s Daubert arguments go to the weight of 14 Holmes’s opinions rather than their admissibility. (Doc. 402 at 4-5.) Finally, Defendants 15 argue that Plaintiff failed to confer with Defendants prior to filing his Motion, in 16 violation of LRCiv 7.2(l), and failed to preserve his Sixth Amendment and Rule 26(a)(2) 17 objections to Holmes’s testimony in his Controverting Statement of Facts. (Id. at 2.) 18 In his Reply, Taylor disputes that Heck bars him from litigating whether the 19 Pioneer Hotel fire was arson. (Doc. 405 at 2-3.) He further disputes that his Motion in 20 Limine seeks dispositive rulings on substantive claims. (Id. at 6-7.) He argues that 21 Holmes has always been a retained expert for whom Rule 26(a)(2)(B) requires a written 22 report. (Id. at 3-5.) He also argues that constitutional violations can render evidence 23 inadmissible in civil proceedings. (Id. at 7-9.) Finally, he argues that Holmes’s analysis 24 is useless and fails Daubert, and that the jury can resolve Taylor’s claims without hearing 25 the testimony. (Id. at 2, 5-6, 10.) Taylor does not respond to Defendants’ arguments 26 concerning LRCiv 7.2(l) and the preservation of objections. 27 . . . . 28 3 Defendants join in one another’s Responses. (See Doc. 399 at 1; Doc. 402 at 1.) 1 III. Discussion 2 Even assuming that the prosecution in Taylor’s criminal trial should have 3 disclosed that Holmes had concluded, prior to finishing his investigation, that an African 4 American had started the Pioneer Hotel fire, the failure to disclose that evidence did not 5 violate the Sixth Amendment’s Confrontation Clause. “The Confrontation Clause does 6 not require that the prosecution disclose evidence that would help the defense effectively 7 cross-examine a prosecution witness.” Coleman v. Calderon, 150 F.3d 1105, 1112 (9th 8 Cir. 1998), rev’d on other grounds, 525 U.S. 141 (1998); see also Pennsylvania v. 9 Ritchie, 480 U.S. 39, 52-54 (1987) (the prosecution’s failure to disclose evidence 10 potentially useful to a defendant’s cross examination of a witness does not violate the 11 Confrontation Clause). Accordingly, Taylor has failed to show that the Sixth 12 Amendment requires the exclusion of Holmes’s original report and prior pretrial and trial 13 testimony. 14 Taylor has also failed to show that Federal Rule of Civil Procedure 26(a)(2)(B)’s 15 written report requirement is applicable.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Louis Taylor, No. CV-15-00152-TUC-RM
10 Plaintiff, ORDER
11 v.
12 County of Pima, et al.,
13 Defendants. 14 15 Pending before the Court is Plaintiff Louis Taylor’s (“Taylor”) Motion in Limine 16 re: Cyrillis Holmes. (Doc. 397.)1 Defendants filed Responses (Docs. 399, 402), and 17 Taylor filed a Reply (Doc. 405). 18 I. Background 19 In 1972, Taylor was convicted of 28 counts of murder in connection with a deadly 20 fire at the Pioneer Hotel in Tucson, Arizona. (Doc. 340-9 at 12.)2 During Taylor’s trial, 21 Cyrillis Holmes (“Holmes”) testified as an expert witness for the prosecution and opined 22 that the Pioneer Hotel fire was man-made, with multiple areas of origin ignited within 23 minutes of one another. (Doc. 338-5 at 45-48.) 24 In 2012, Taylor filed a Petition for Post-Conviction Relief alleging that new 25 developments in fire science undermined the evidence of arson introduced during his 26 trial. (Doc. 6-1 at 2-63.) The Petition relied on a report by the Innocence Project’s Arson 27 1 Other pending motions will be resolved separately. 28 2 All record citations refer to the docket and page numbers generated by the Court’s electronic filing system. 1 Review Committee that criticized Holmes’s trial testimony and concluded the Pioneer 2 Hotel fire could not be classified as arson. (Doc. 348-2.) As part of a review of the 3 Petition, the Pima County Attorney’s Office deposed Holmes on November 1, 2012. 4 (Doc. 340-10.) After the conclusion of its review, the Pima County Attorney’s Office 5 offered Taylor a plea agreement in which Taylor pled no-contest to the original 28 counts 6 of murder in exchange for a time-served sentence. (Doc. 6-1 at 73-74.) A change-of-plea 7 hearing was held on April 2, 2013, and Taylor was released from prison that day. (Doc. 8 335 at 70-71 ¶¶ 697, 705-707; Doc. 367 at 71-72 ¶ 697, 705-707.) 9 Taylor then filed the above-captioned lawsuit. (Doc. 1.) Taylor sues Defendants 10 Pima County and the City of Tucson under 42 U.S.C. § 1983, seeking monetary damages 11 for alleged constitutional violations arising from his 1972 convictions and a declaratory 12 judgment expunging his 2013 convictions. (Doc. 169.) 13 II. Taylor’s Motion in Limine re: Cyrillis Holmes 14 Taylor argues that Holmes’s original report and his pretrial and trial testimony 15 from Taylor’s criminal proceedings should be excluded because the prosecution’s failure 16 to disclose exculpatory evidence denied Taylor a full opportunity to cross-examine 17 Holmes, in violation of Taylor’s Sixth Amendment rights. (Doc. 397 at 1-4.) Taylor 18 points to Holmes’s 2012 deposition testimony, in which Holmes stated that by December 19 30, 1970—before he had concluded his investigation—he had reached a preliminary 20 determination that the Pioneer Hotel fire had been started by an 18-year-old African 21 American male because “blacks at that point, their background was the use of fire for 22 beneficial purposes.” (Id. at 2-3; see also Doc. 340-10 at 84-86.) Taylor argues that the 23 2012 statement “would have been critically important to cross examining Holmes” and 24 therefore any use of Holmes’s opinions pre-dating the 2012 testimony “would violate the 25 Sixth Amendment.” (Doc. 397 at 3.) Taylor further argues that Holmes’s testimony 26 must be precluded because Pima County did not disclose a written expert report pursuant 27 to Federal Rule of Civil Procedure 26(a)(2)(B). (Id. at 4-5.) Finally, Taylor argues that 28 Holmes’s 1970-71 analysis of the Pioneer Hotel fire is inadmissible under Federal Rule 1 of Evidence 702 and Daubert v. Merrell Dow Pharms, Inc., 509 U.S. 579 (1993), and that 2 his 2012 analysis was perfunctory and designed only to affirm his original conclusions. 3 (Id. at 5-8.) 4 Defendants argue that Holmes is a percipient witness to Taylor’s core allegations 5 in this case and that his 1970s opinions and the bases for those opinions are directly at 6 issue. (Doc. 399 at 12-14; Doc. 402 at 3-4.)3 Because Holmes is a percipient witness, 7 Defendants contend he was not required to submit a written report pursuant to Federal 8 Rule of Civil Procedure 26(a)(2)(B). (Doc. 402 at 3-4.) Defendants also contend that 9 Taylor’s arguments concerning the cause of the Pioneer Hotel fire are barred by Heck v. 10 Humphrey, 512 U.S. 477 (1994). (Doc. 399 at 3-4; Doc. 402 at 4.) Defendants argue that 11 the Sixth Amendment does not bar Holmes’s testimony and that Taylor’s Motion 12 improperly seeks dispositive rulings on substantive claims. (Doc. 399 at 4-7; Doc. 402 at 13 2-3.) Defendants further argue that Taylor’s Daubert arguments go to the weight of 14 Holmes’s opinions rather than their admissibility. (Doc. 402 at 4-5.) Finally, Defendants 15 argue that Plaintiff failed to confer with Defendants prior to filing his Motion, in 16 violation of LRCiv 7.2(l), and failed to preserve his Sixth Amendment and Rule 26(a)(2) 17 objections to Holmes’s testimony in his Controverting Statement of Facts. (Id. at 2.) 18 In his Reply, Taylor disputes that Heck bars him from litigating whether the 19 Pioneer Hotel fire was arson. (Doc. 405 at 2-3.) He further disputes that his Motion in 20 Limine seeks dispositive rulings on substantive claims. (Id. at 6-7.) He argues that 21 Holmes has always been a retained expert for whom Rule 26(a)(2)(B) requires a written 22 report. (Id. at 3-5.) He also argues that constitutional violations can render evidence 23 inadmissible in civil proceedings. (Id. at 7-9.) Finally, he argues that Holmes’s analysis 24 is useless and fails Daubert, and that the jury can resolve Taylor’s claims without hearing 25 the testimony. (Id. at 2, 5-6, 10.) Taylor does not respond to Defendants’ arguments 26 concerning LRCiv 7.2(l) and the preservation of objections. 27 . . . . 28 3 Defendants join in one another’s Responses. (See Doc. 399 at 1; Doc. 402 at 1.) 1 III. Discussion 2 Even assuming that the prosecution in Taylor’s criminal trial should have 3 disclosed that Holmes had concluded, prior to finishing his investigation, that an African 4 American had started the Pioneer Hotel fire, the failure to disclose that evidence did not 5 violate the Sixth Amendment’s Confrontation Clause. “The Confrontation Clause does 6 not require that the prosecution disclose evidence that would help the defense effectively 7 cross-examine a prosecution witness.” Coleman v. Calderon, 150 F.3d 1105, 1112 (9th 8 Cir. 1998), rev’d on other grounds, 525 U.S. 141 (1998); see also Pennsylvania v. 9 Ritchie, 480 U.S. 39, 52-54 (1987) (the prosecution’s failure to disclose evidence 10 potentially useful to a defendant’s cross examination of a witness does not violate the 11 Confrontation Clause). Accordingly, Taylor has failed to show that the Sixth 12 Amendment requires the exclusion of Holmes’s original report and prior pretrial and trial 13 testimony. 14 Taylor has also failed to show that Federal Rule of Civil Procedure 26(a)(2)(B)’s 15 written report requirement is applicable. A party’s expert disclosure must be 16 accompanied by a written report prepared and signed by the witness “if the witness is one 17 retained or specially employed to provide expert testimony in the case or one whose 18 duties as the party’s employee regularly involve giving expert testimony.” Fed. R. Civ. 19 P. 26(a)(2)(B). Holmes was retained as an expert witness in Taylor’s criminal trial, but 20 Taylor has presented no evidence that Pima County or the City of Tucson retained or 21 specially employed Holmes to provide expert testimony in this civil action. Furthermore, 22 Taylor has presented no evidence that Holmes reviewed any new information provided 23 by defense counsel for purposes of developing opinions beyond those formed during his 24 original 1970s analysis or 2012 review. See Goodman v. Staples The Office Superstore, 25 LLC, 644 F.3d 817, 824, 826 (9th Cir. 2011) (holding that a treating physician is 26 considered a percipient witness who is exempt from Rule 26(a)(2)(B)’s written report 27 requirement “to the extent that his opinions were formed during the course of treatment,” 28 but that Rule 26(a)(2)(B) requires a written report if the treating physician was retained to 1 || review new information and offer opinions developed for purposes of the litigation). 2 The Court will resolve on summary judgment the issue of whether Heck bars Taylor from litigating his innocence and the cause of the Pioneer Hotel fire. If the Court 4|| finds there is no Heck bar, the Court will then resolve whether Holmes’s testimony can 5 || support a finding that the Pioneer Hotel fire was caused by arson. Accordingly, the Court || will take Taylor’s Motion in Limine under advisement to the extent it seeks rulings on 7|| those issues.* 8 IT IS ORDERED that Plaintiff's Motion in Limine re: Cyrillis Holmes (Doc. 9 || 397) is denied to the extent it argues that Holmes’s testimony must be excluded due to a || violation of the Sixth Amendment or for failure to comply with the written report 11 || requirement of Federal Rule of Civil Procedure 26(a)(2)(B). The Motion is otherwise □□ taken under advisement. 13 Dated this 27th day of March, 2023. 14 15 16 — yy Ply’ ) 17 ANGULAyf Honorable Rostsiary □□□□□□□ 18 United States District □□□□□ 19 20 21 22 + Because Taylor’s counsel did not certify that Taylor conferred in ood faith prior to 23 filing his Motion in Limine, LRCiv 7.2(1) provides an additional, independent basis for denying the Motion to the extent it raises non-Daubert arguments. See LRCiv 7.2(1) 24 (“No opposed motion in limine will be considered or decided unless moving counsel certifies therein that the movant has in good faith conferred or attempted to confer with 25|| the opposing party or counsel in an effort to resolve disputed evidentiary issues that are the subject of the motion.”) However, LRCiv 7.2(1) does not necessarily preclude 26|| consideration of Taylor’s Daubert arguments. See Alsadi v. Intel Corp., No. CV- 16- 03738-PHX-DGC, 2019 WL 4849482, at *1 n.1 (D. Ariz. Sept. 30, 2019) (finding LRCiv 7 .2(1) inapplicable to Daubert motions). Furthermore, although Taylor does not contest Defendants’ argument that he failed to preserve his Sixth Amendment and Rule 26(a)(2) 28 objections, Defendants do not argue that Taylor failed to preserve his Daubert arguments. (See Doc. 402 at 2.) _5-