Defendant Derrick Rose's Reply in Support of Motion in Limine No. 2: To Exclude Hearsay Testimony Re Plaintiff's Account of Details of Events of August 26-27, 2013

Case 2:15-cv-07503-MWF-JC Document 280 Filed 09/27/16 Page 1 of 12 Page ID #:9971
777 South Figueroa Street, Suite 4900

Los Angeles, CA 90017
Tel (213) 630-5000 Fax (213) 683-1225
BAUTE CROCHETIERE & GILFORD LLP
1 BAUTE CROCHETIERE & GILFORD LLP

MARK D. BAUTE (State Bar No. 127329)
2 mbaute@bautelaw.com
3 COURTNEY A. PALKO (State Bar No. 233822)
cpalko@bautelaw.com
4 777 South Figueroa Street, Suite 4900
Los Angeles, California 90017
5 Telephone: (213) 630-5000
Facsimile: (213) 683-1225
6
7 Attorneys for Defendant
DERRICK ROSE
8
9
UNITED STATES DISTRICT COURT
10
CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
11 JANE DOE (A Pseudonym),
Case No. CV 15-7503-MWF(JCx)
12
Complaint Filed: August 26, 2015
Plaintiff,
13
v.
14
DERRICK ROSE, an Individual;

15 RANDALL HAMPTON, an
Individual; RYAN ALLEN, an
16 Individual; and DOES 1-10 Inclusive,
17
Defendants.
18
19
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DEFENDANT DERRICK ROSES

REPLY IN SUPPORT OF MOTION
IN LIMINE NO. 2: TO EXCLUDE
HEARSAY TESTIMONY RE
PLAINTIFFS ACCOUNT OF
DETAILS OF EVENTS OF AUGUST
26-27, 2013
Further Pretrial Conference:
Date:
September 29, 2016
Time:
10:00 a.m.
Location: Courtroom 1600
TRIAL:
Date:
Time:
Location:
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October 4, 2016
8:30 a.m.
Courtroom 1600
24
Judge: Hon. Michael W. Fitzgerald
25
Pretrial Conference: September 20, 2016

Trial Date:
October 4, 2016
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250314.1

DEFT DERRICK ROSES REPLY IN SUPPORT OF MOTION IN LIMINE NO. 2: TO EXCLUDE
HEARSAY TESTIMONY RE PLTFS ACCOUNT OF DETAILS OF EVENTS OF AUGUST 26-27, 2013
TABLE OF CONTENTS
Page(s)
2
3 I.
INTRODUCTION ............................................................................................. 1
4 II.
STATEMENT OF FACTS................................................................................ 2
A.
Tommie McCaster................................................................................... 2
B.
Claudia Carleo......................................................................................... 2
C.
Marcella Carleo. ...................................................................................... 3
8 III.
ARGUMENT .................................................................................................... 4
A.
Ms. Does Offer of Proof Confirms that the Proposed Testimony

Is Inadmissible Hearsay. ......................................................................... 4
B.
Non-Percipient Witness Testimony as to Details of Sexual

Assault Later Told to Them by Plaintiff Is Inadmissible Hearsay
and Should Be Excluded. ........................................................................ 7
C.
The Testimony Should Be Excluded to Avoid Unfair Prejudice,

Confusing the Issues, Misleading the Jury, Undue Delay,
Wasting Time, and Needlessly Presenting Cumulative Evidence. ......... 7
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IV.
CONCLUSION ................................................................................................. 8
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250314.1

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1 I.
INTRODUCTION
Plaintiffs witness list (ECF # 215) and offer of proof (ECF # 268) identifies the
3 following witnesses and testimony:

4
Witness Name
Tommie McCaster, III
Plaintiff; Details of requests to engage in
group sex by Defendant Rose.
Plaintiff Does then-existing mental,
emotional or physical condition. Fed. R.

Evid. 803(3).
11
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Details of sexual assault told to her by
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Substance of Testimony
Claudia Carleo (Deposition)
details of sexual assault told to her by
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Plaintiff
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Evid. 803(3).
Marcella Carleo (Deposition)1
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details of sexual assault told to her by
17
Plaintiff
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Evid. 803(3).
21
22
Mr. Rose submits this reply to his motion in limine to exclude this testimony on
23 the grounds that the testimony identified above constitutes inadmissible hearsay and
24 should be excluded under Federal Rule of Evidence 802. ECF # 210.
25
26
Plaintiff identified Marcella Carleo as a deposition witness but her deposition was not
27 taken in this case. It is also undisputed that Marcella Carleo did not see or interact with
28 Ms. Doe until the following evening after work on August 27, 2013.
250314.1
1
1 II.
STATEMENT OF FACTS
Plaintiffs offer of proof confirms that the testimony she seeks to introduce is
3 facially inadmissible hearsay which should be excluded. What Plaintiff later (self4 servingly and falsely) told her friends, colleagues, and roommates about the alleged
5 incident is not reliable testimony for deciding the truth of the matter. What is relevant
6 is the testimony of Ms. Doe, Mr. Rose, Mr. Hampton, Mr. Allen, and Ms. Groff the
7 individuals with personal knowledge of the details of the events of August 26-27, 2013.
8
A.
Tommie McCaster, III worked with Plaintiff and Keyana LaVergne on August
Tommie McCaster.
11 Plaintiff worked a full day. Mr. McCaster submitted a declaration in this case (ECF #
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10 27, 2013. Mr. McCaster interacted with Plaintiff at work on August 27, 2013, when
12 156-5) but was not deposed. Baute Decl. Ex. A. Mr. McCaster was not at the Beverly
13 Hills house or Plaintiffs apartment on the evening of August 26-27, 2013. Mr.
14 McCaster did not interact with Plaintiff during the alleged incident on the evening of
15 August 26-27, 2013 and is not a percipient witness as to the details of the events of the
16 alleged incident.
17
Plaintiffs self-serving statements after the fact to Mr. McCaster are hearsay.
18 This portion of Mr. McCasters proposed testimony is also duplicative and unhelpful to
19 the jury in deciding the issues in this case.
20
B.
21
Claudia Carleo was Plaintiffs roommate on August 26-27, 2013. She was in the
Claudia Carleo.
22 apartment in the early morning of August 27, 2013 and interacted with Plaintiff later
23 that same morning before Plaintiff went to work. Claudia Carleo submitted a
24 declaration and was deposed in this case. Claudia Carleos deposition testimony will
25 be used at trial. Baute Decl. Ex. B. Claudia Carleo has personal knowledge of the
26 events of August 26-27, 2013 about which she testified at her deposition. In Ms. Does
27 offer of proof, Ms. Doe has misstated Claudia Carleos testimony.
28
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2
Claudia Carleo saw Ms. Does company in the living room and interacted with
2 them in the early morning of August 27, 2013. Claudia Carleo testified that she was
3 not nervous or scared when she interacted with Plaintiffs company inside the
4 apartment in the early morning August 27, 2013. She showed Mr. Allen to the
5 restroom because she thought he was looking for the restroom. Claudia Carleo saw no
6 damage to the apartment complex door (which was locked and locks automatically);
7 she saw no damage to the apartment door; Plaintiffs bedroom door was open, and
8 Claudia Carleo exchanged pleasantries with three men in the living room. Claudia
9 Carleo testified that nothing seemed out of the ordinary in the apartment on the early
11 Plaintiff scream or say no. Claudia Carleo testified that Plaintiff was happy and
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10 morning of August 27, 2013 and that she had no reason to worry. She did not hear
12 smiling and seemed normal the morning of August 27, 2013 before she left for work.
13 Ms. Doe did not mention to Claudia Carleo anything about a rape and a bloody blanket
14 until a week later.
15
C.
16
Marcella Carleo was also Plaintiffs roommate on August 26-27, 2013.
Marcella Carleo.
17 However, it is undisputed that Marcella Carleo was not in the apartment in the early
18 morning of August 27, 2013 and has no personal knowledge of the events of August
19 26-27, 2013 and did not interact with Ms. Doe until the following evening after Ms.
20 Doe returned home from work. On August 27, 2013, Ms. Doe did not mention to
21 Marcella Carleo that Mr. Rose raped her. Ms. Doe did not mention any rape to
22 Marcella Carleo until a week later. Marcella Carleo submitted a declaration but was
23 not deposed in this case. Baute Decl. Ex. C. Marcella Carleos proposed testimony
24 about Plaintiff Does then-existing mental, emotional or physical condition. Fed. R.
25 Evid. 803(3) is inadmissible hearsay.
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1 III.
ARGUMENT
A.
3
4
Ms. Does Offer of Proof Confirms that the Proposed Testimony Is

Inadmissible Hearsay.
Plaintiff mischaracterizes the testimony of the only percipient non-party witness,
5 Claudia Carleo, and offers two non-percipient witnesses, Tommie McCaster and
6 Marcella Carleo, to testify as to Plaintiff Does then-existing mental, emotional or
7 physical condition. Fed. R. Evid. 803(3). Federal Rule of Evidence 803(3) expressly
8 excludes a statement of memory or belief to prove the fact remembered or believed.
9 Fed. R. Evid. 803(3). To find otherwise would swallow up the hearsay rule. Federal
11 not to prove something already happened (looking backward). See Shepard v. United
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10 Rule of Evidence 803(3) is intended to bring in statements of intent (looking forward)
12 States, 290 U.S. 96, 10406 (1933) (Declarations of intention, casting light upon the
13 future, have been sharply distinguished from declarations of memory, pointing
14 backwards to the past. There would be an end, or nearly that, to the rule against hearsay
15 if the distinction were ignored.).
16
This case is readily distinguishable from Wagner v. County of Maricopa, 747
17 F.3d 1048, 105253 (9th Cir. 2013). Wagner involved a mentally ill prison inmates
18 statements to his sister about what he thought happened to him offered to prove the
19 impact it had on him, but not to prove that he was raped it did not involve non20 percipient third parties other than the alleged victim quoting the alleged victims self21 serving statements later told to them several hours, days, or weeks after the alleged
22 incident. And as the Court properly noted, [h]ere, there is no obvious, independent
23 relevance to Plaintiffs mental or emotional condition apart from the truth of the
24 allegation of rape. ECF # 265 at 9. Here, unlike in Wagner, Ms. Doe seeks to use
25 highly untrustworthy hearsay testimony from dubious third parties days and weeks after
26 the incident, which are contradicted by Ms. Does own testimony. Here, no prior
27 consistency exists; her roommates, Claudia and Marcella Carleo, were surprised when
28 Ms. Doe first mentioned any rape a week later, after Ms. Doe had behaved normally for
250314.1
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1 that week. And she never mentioned rape to her then-colleague, friend, and later
2 roommate, Keyana LaVergne. And Ms. Doe continued communicating with Mr. Rose,
3 with whom shed been in a consensual sexual relationship for nearly two years, and
4 with Mr. Allen, with no mention of rape. Thus, not only is there no prior consistent
5 statement at issue here; instead, the obvious inconsistencies serve to underscore the
6 lack of trustworthiness and the clearly inadmissible and self-serving nature of the
7 hearsay that Ms. Doe seeks to inject into the case.
8
The Court should not admit Ms. Does statements to her roommates or
9 colleagues that she had been raped as prior consistent statements under Federal Rule of
11 801(d). In any event, this rule does not save her because no statements came before
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10 Evidence 801(d). ECF # 265 at 9. Ms. Doe does not rely on Federal Rule of Evidence
12 Ms. Doe had a motive to lie. Rather, they only come hours, days, and weeks later. And
13 no such consistency exists at all; Claudia Carleo was present in the apartment during
14 the alleged rape and heard and saw nothing unusual; she interacted with Ms. Doe first
15 thing in the morning when Ms. Doe acted normal and happy and said nothing about any
16 rape. At work, Ms. LaVergne said that Ms. Doe made no mention of rape, and despite
17 living, working, and socializing together, Ms. LaVergne testified that to this day, Ms.
18 Doe had never mentioned to her that she had been raped.
19
Under Federal Rule of Evidence 801(d), the consistent statement must predate
20 the alleged influence or motive to fabricate. The Rule permits the introduction of a
21 declarants consistent out-of-court statements to rebut a charge of recent fabrication or
22 improper influence or motive only when those statements were made before the
23 charged recent fabrication or improper influence or motive. Tome v. United States,
24 513 U.S. 150, 167 (1995); Whitbeck v. Vital Signs, Inc., 159 F.3d 1369, 1375 (D.C. Cir.
25 1998); United States v. Frazier, 469 F.3d 85, 8894 (3rd Cir. 2006). Consistent
26 statements made after the alleged motive to fabricate arose are not admissible as
27 nonhearsay under Rule 801(d)(1)(B)(i). Tome, 513 U.S. at 15859; United States v.
28 Bao, 189 F.3d 860, 86465 (9th Cir. 1999); Frazier, 469 F.3d at 88.
250314.1
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Our holding is confined to the requirements for admission
under Rule 801(d)(1)(B).
introduction of a declarants consistent out-of-court
statements to rebut a charge of recent fabrication or
improper influence or motive only when those statements
were made before the charged recent fabrication or
improper influence or motive.
admissibility were not established here.
The Rule permits the
These conditions of
9 Tome, 513 U.S. at 167 (emphasis added); see United States v. Holden, 625 F. Appx
11 properly excluded. The statements were not prior consistent statements because they
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10 316, 318 (9th Cir. 2014) ([T]he taped conversation between Holden and Dr. Lee was
12 were made after Holden knew about the investigation and had a motive to testify
13 falsely, Fed.R.Evid. 801(d)(1)(B), and the statements were not present sense
14 impressions because they did not describe or explain an event Holden was currently
15 perceiving, Fed.R.Evid. 803(1).).
16
Here, Jane Doe already had a motive to fabricate from the time she realized in
17 July 2013 that Mr. Rose had stopped communicating with her and had terminated his
18 involvement with her, and definitely by the time she woke up several hours after the
19 events of August 26-27, 2013, interacted normally with Claudia Carleo and Keyana
20 LaVergne, and spent the whole day at work (and feared being in trouble for her poor
21 performance at work). Ms. Doe had Mr. Rose, Mr. Allen, and Mr. Hampton exactly
22 where she wanted them; she trapped Mr. Rose into a compromising position when she
23 reeled him back in by sending texts to him out of the blue and inviting Mr. Rose, Mr.
24 Allen, and Mr. Hampton to her apartment. She was financially motivated, as evidenced
25 by her texts claiming falsely that Mr. Rose owed her reimbursement for a sex belt she
26 didnt buy and cab fare that she did not pay for. Because she knew she was lying, she
27 didnt go to the police for two-plus years, she didnt ask for a rape kit, she didnt test
28 for any date rape drugs, and she failed to provide any evidence of any injuries.
250314.1
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Also, if and to the extent the declarant cannot be cross-examined, the prior
2 consistent statement cannot come in through that declarant (e.g., Tommie McCaster or
3 Marcella Carleo if they dont show up at trial). The person testifying about the prior
4 consistent statement must be subject to cross-examination concerning the statement.
5 Fed. R. Evid. 801(d)(1) (requiring that [t]he declarant testifies and is subject to cross6 examination about a prior statement). If this Court allows Ms. Doe, Mr. McCaster, or
7 Marcella Carleo to testify about the earlier allegedly consistent statement despite the
8 fact that it post-dates inconsistent statements by Ms. Doe these witnesses are subject
9 to cross-examination concerning their memory of past events and their motives to
11
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10 falsify. United States v. Hebeka, 25 F3d 287, 29192 (6th Cir. 1994).
B.
Non-Percipient Witness Testimony as to Details of Sexual
12
Assault Later Told to Them by Plaintiff Is Inadmissible Hearsay
13
and Should Be Excluded.
14
The subject matter of the testimony Plaintiff offers to prove the details of sexual
15 assault is self-serving, unreliable hearsay. Testimony about what Plaintiff told her
16 friends, colleagues, and roommates several hours or several days after the alleged
17 incident is inadmissible. These are not admissions by a party-opponent because the
18 statements are not being offered against a party. Fed. R. Evid. 801(d)(2). The
19 testimony does not fall under any exception to the hearsay rule.
20
C.
The Testimony Should Be Excluded to Avoid Unfair Prejudice,
21
Confusing the Issues, Misleading the Jury, Undue Delay, Wasting
22
Time, and Needlessly Presenting Cumulative Evidence.
23
Additionally, the evidence will unfairly prejudice Mr. Rose, is needlessly
24 cumulative, irrelevant to the issues the jury must decide, and will unnecessarily waste
25 time and result in undue delay. The testimony should be excluded under Federal Rule
26 of Evidence 403.
27
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250314.1

7
1 IV.
CONCLUSION
For the reasons set forth above, Mr. Rose requests that the Court exclude the
3 following testimony on the grounds that it is inadmissible hearsay:

4
5
Witness Name
Tommie McCaster, III

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Evid. 803(3).
Substance of Testimony
Claudia Carleo (Deposition)
10
11
Evid. 803(3).
12
Marcella Carleo (Deposition)
13
14
Evid. 803(3).
15
16 DATED: September 27, 2016
17
18
By: /s/ Mark D. Baute
MARK D. BAUTE
COURTNEY A. PALKO
Attorneys for Defendant
DERRICK ROSE, an individual
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250314.1

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PROOF OF SERVICE
JANE DOE v. DERRICK ROSE

Case No. CV 15-7503-MWF(JCx) [2235.1]
3
4 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
At the time of service, I was over 18 years of age and not a party to this
action. I am employed in the County of Los Angeles, State of California. My
6 business address is 777 South Figueroa Street, Suite 4900, Los Angeles, CA 90017.
5
On the date indicated below, I served true copies of the following

document(s) described as DEFENDANT DERRICK ROSES REPLY IN
8 SUPPORT OF MOTION IN LIMINE NO. 2: TO EXCLUDE HEARSAY
TESTIMONY RE PLAINTIFFS ACCOUNT OF DETAILS OF EVENTS OF
9 AUGUST 26-27, 2013 on the interested parties in this action as follows:
7
(**SEE ATTACHED SERVICE LIST**)
BY CM/ECF NOTICE OF ELECTRONIC FILING: I

electronically filed the document(s) with the Clerk of the Court by using the
12 CM/ECF system. Participants in the case who are registered CM/ECF users will be
served by the CM/ECF system. Participants in the case who are not registered
13 CM/ECF users will be served by mail or by other means permitted by the court
rules.
14
I declare under penalty of perjury under the laws of the United States of
15 America that the foregoing is true and correct and that I am employed in the office
of a member of the bar of this Court at whose direction the service was made.
16
Executed on this 27th day of September, 2016, at Los Angeles, California.
17
11

Tel (213) 630-5000 Fax (213) 683-1225
10
18
/s/ Courtney A. Palko

COURTNEY A. PALKO
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250314.1

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SERVICE LIST
JANE DOE v. DERRICK ROSE

Case No. CV 15-7503-MWF(JCx) [2235.1]

Tel (213) 630-5000 Fax (213) 683-1225
3
4 Brandon J. Anand, Esq.
ANAND LAW, PC
5 5455 Wilshire Blvd., Suite 1812
Angeles, CA 90036
6 Los
Telephone: (323) 325-3389
7 Fax: (323) 488-9659
E-mail: brandon@anandlaw.com;
8 info@anandlaw.com
Attorneys for Plaintiff

JANE DOE
9 Waukeen Q. McCoy, Esq.

McCOY LAW FIRM P.C.
10 555 Montgomery Street, Suite 1100
San Francisco, CA 94111
11 Telephone: (415) 675-7705
Fax: (415) 675-2530
12 E-mail: mail@mccoyslaw.com

JANE DOE
13 Thaddeus J. Culpepper, Esq.

14 CULPEPPER LAW GROUP
3818 Crenshaw Blvd., Suite 905
15 Los Angeles, CA 90008
Telephone: (310) 997-0806
16 E-mail: culpepper@alumni.pitt.edu

JANE DOE
17 Patrick M. Maloney, Esq.

THE MALONEY FIRM, APC
18 2381 Rosecrans Avenue, Suite 405
El Segundo, California 90245
19 Telephone: (310) 540-1505
(310) 540-1507
20 Fax:
E-mail: pmaloney@maloneyfirm.com
Attorneys for Defendants

RANDALL HAMPTON and RYAN
ALLEN
21
22
23
24
25
Michael D. Monico, Esq.

Barry A. Spevack, Esq.
MONICO & SPEVACK
20 S. Clark Street, Suite 700
Chicago, IL 60603
Telephone: (312) 782-8500
Fax: (312) 759-2000
E-mail: mm@monicolaw.com
Attorneys for Defendants

RANDALL HAMPTON and RYAN
ALLEN
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250314.1

ii

Defendant Derrick Rose's Reply in Support of Motion in Limine No. 2: To Exclude Hearsay Testimony Re Plaintiff's Account of Details of Events of August 26-27, 2013

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Case 2:15-cv-07503-MWF-JC Document 280 Filed 09/27/16 Page 1 of 12 Page ID #:9971

777 South Figueroa Street, Suite 4900

BAUTE CROCHETIERE & GILFORD LLP

1 BAUTE CROCHETIERE & GILFORD LLP

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

11 JANE DOE (A Pseudonym),

Case No. CV 15-7503-MWF(JCx)

Complaint Filed: August 26, 2015

DERRICK ROSE, an Individual;