Dated on April 29, 2024
Now comes the State of Indiana, by Prosecuting Attorney Nicholas C. McLeland, and respectfully requests that the Court enter an Order required the Defendant or his counsels to refrain from mentioning in the presence of the jury during voir dire, opening argument, presentation of evidence, and closing argument, any and all references to the following, either directly or indirectly:
1. Any comments about Counsel for the State that constitutes a personal attack on the attorney for the State or comments on the role of the State's attorney. Johnson v. State, 453 N.E.2d 365 (Ind.Ct.App. 1983); Craig v. State, 267 Ind. 359, 370 N.E.2d 880 (1977); Bardonner v. State, 587 N.E.2d 1353 (Ind.Ct.App. 1992); Flynn v. State, 379 N.E.2d 548 (Ind.Ct.App. 1978).
2. Any comment which constitutes the personal opinion of Defense Counsel about any evidence, witness, outcome or penalty. Ind. R. Prof. Conduct 3.4(e); Hossman v. State, 473 N.E.2d 1059 (Ind.Ct.App. 1985); U.S. v. Young, 470 U.S. 1038 (1985). For instance, Defense Counsel cannot vouch for the truthfulness or competency of any of the State's witnesses, including police officers or any of his own witnesses.
3. Any innuendo or inference that is not supported by admissible evidence. Ind.R.Prof.Conduct 3.4(e); U.S. v. Elizondo, 920 F.2d 1308, 1313 (7th Cir. 1990); U.S. v. Wolf, 787 F.2d 1094, 1098 (7th Cir. 1986); Benson v. State, 762 N.E.2d 748 (Ind. 2002) (attorney cannot assert unsubstantiated allegations on collateral matters); Bagnell v. State, 413 N.E.2d 1072, 1076-77, n. 4 (Ind.Ct.App. 1980) (attorney may not comment or allude to inadmissible evidence during trial); Donnelly v. DeChristoforo, 416 U.S. 637 (1974).
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4. Any attempt to indoctrinate the jury during voir dire by exposing the jury to substantive issue in the case. Von Almen v. State, 485 N.E.2d 55 (Ind. 1986).
5. Any attempt during voir dire to have the jury pre-judge the credibility of a witness. Hawn v. State, 565 N.E.2d 362 (Ind.Ct.App. 1991).
6. Any hypothetical questions that includes facts that are not in evidence or questions that are not helpful in violation of Rule 705.
7. Any attempt to introduce evidence of 3rd party motive that is not relevant and/or the probative value is outweighed by unfair prejudice, confusion of the issues or has the potential to mislead the jury in violation of Rule 401. Lashbrook v. State, 762 N.E.2d 756 (Ind. 2002); Pelley v. State, 901 N.E.2d 494 (2009). Before any such evidence may be permitted the Defense must show some connection between the 3rd party and the crime. Holmes v. South Carolina, 547 U.S. 319 (2006). Further it must be a direct connection based on admissible evidence and not founded in hearsay, speculation, rumors, conjecture or theory. Mcintyre v. State, 717 N.E.2d 114 (1999); McGaha v. State, 926 N.E.2d 1050 (Ind. Ct. App. 2010); Tibbs v. State, 59 N.E.3d 1005 (Ind. Ct. App. 2016). The State requests such Order in Limine to include but not be limited to the following:
8. Any reference to an investigation conducted by Todd Click, along with any reports or investigative materials from Todd Click that is not relevant or is used for the purpose of confusing the issues or has the potential to mislead the jury in violation of Rule
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401. IRE 401. Burden is on the opponent to show why it is relevant. Mullins v. State, 646 N.E.2d 40 (Ind. 1995). Relevant evidence may be excluded if its probative value is substantially outweighed by its prejudicial effect. Rolston v. State, 81 N.E.3d 1097 (Ind. Ct. App. 2017). Evidence may be excluded if it confuses the issues. Lee v. Hamilton, 841 N.E.2d 223 (Ind. Ct. App. 2006).
9. Any reference to geofencing and/or any testimony from Kevin Horan about geofencing or the findings from any geofence search that is not relevant or is for the purpose of confusing the issues or has the potential to mislead the jury in violation of Rule 401. IRE 401. Burden is on the opponent to show why it is relevant. Mullins v. State, 646 N.E.2d 40 (Ind. 1995). Relevant evidence may be excluded if its probative value is substantially outweighed by its prejudicial effect. Rolston v. State, 81 N.E.3d 1097 (Ind. Ct. App. 2017). Evidence may be excluded if it confuses the issues. Lee v. Hamilton, 841 N.E.2d 223 (Ind. Ct. App. 2006).
10. Any reference to any prior bad acts or acts of any witnesses that plan to testify at the trial that is not relevant to what the Defendant is on trial for, that is not an act that is an exception to IRE 404(b) and that is not both relevant under IRE 401 and tend to negate the guilt of the Defendant. Garland v. State, 788 N.E.2d 425 (2003); Allen v. State, 813 N.E.2d 349 (Ind. Ct. App. 2004). IRE 404.
11. Any reference to how the files were labeled that were handed over to the Defense as part of the information and discovery provided to Defense Counsel by the State that are not relevant or that would tend to cause confusion of the issues or has the potential to mislead the jury in violation of Rule 401. IRE 401. Burden is on the opponent to show why it is relevant. Mullins v. State, 646 N.E.2d 40 (Ind. 1995). Relevant evidence may be excluded if its probative value is substantially outweighed by its prejudicial effect. Rolston v. State, 81 N.E.3d 1097 (Ind. Ct. App. 2017). Evidence may be excluded if it confuses the issues. Lee v. Hamilton, 841 N.E.2d 223 (Ind. Ct. App. 2006).
12. Any reference to any PowerPoints provided by the State as Executive Briefs involving any person or persons that were investigated by law enforcement as part of the 6 year investigation into the murder of Abigail Williams and Liberty German that are not relevant or would tend to cause confusion of the issues or has the potential to
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mislead the jury in violation of Rule 401. IRE 401. Burden is on the opponent to show why it is relevant. Mullins v. State, 646 N.E.2d 40 (Ind. 1995). Relevant evidence may be excluded if its probative value is substantially outweighed by its prejudicial effect. Rolston v. State, 81 N.E.3d 1097 (Ind. Ct. App. 2017). Evidence may be excluded if it confuses the issues. Lee v. Hamilton, 841 N.E.2d 223 (Ind. Ct. App. 2006).
WHEREFORE, the State of Indiana, by Prosecuting Attorney, Nicholas C. McLeland, respectfully requests this Court to grant the following relief:
A. Order the Defendant, through his counsel, and witnesses to refrain from mentioning, commenting, or making any reference whatsoever, either directly or indirectly, to any of the above matters without first obtaining permission of the Court outside the presence and hearing of the jury;
B. To further order said persons to make no reference to the fact that this motion has been filed and granted, and all other relief just and proper in the premises.
/s/ Nicholas C. McLeland
Attorney #28300-08
Prosecuting Attorney
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing instrument was served upon the Defendant's attorney of record, through personally delivery, ordinary mail with proper postage affixed or by service through the efiling system and filed with Carroll County Circuit Court, this 29th day of April, 2024.
/s/ Nicholas C. McLeland
Attorney #28300-08
Prosecuting Attorney
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