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RANDYMIZE Chief Deputy Office of the Primary Public Defender County of San Diego

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KRISTIN SCOGIN
Deputy Public Defender State Bar No. 235440 450 B Street, Suite 900 San Diego, California 92101 Telephone: (619) 338-4736 Kristin. Scogin@sdcounty.ca.gov Attorneys for Defendant TAMMYRIEF

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SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO

11 12 13 Plaintiff, 14 v. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE IS HEREBY GIVEN that on the above date and time, or as soon thereafter as counsel may be heard in the courtroom assigned for trial, defendant, by and through her attorney, the Public Defender for San Diego County, will move this court to grant all listed motions in limine. The Defense may potentially call the following witnesses during the jury trial in the abovementioned case, if the District Attorney choses not to (note: all of the below witnesses are contained on the District Attorney's witness list): ---------------------------------) TO: THE PEOPLE ABOVE-NAMED AND THEIR ATTORNEY, BONNIE DUMANIS, DISTRICT ATTORNEY FOR THE COUNTY OF SAN DIEGO: TAMMYRIEF, Defendant. THE PEOPLE OF THE STATE OF CALIFORNIA, )
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Case No.: SCD242110 DA No.: ADF517 WITNESS LIST; NOTICE OF MOTIONS AND MOTIONS IN LIMINE

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Date: March 21,2014 Time: 9:00 a.m. Dept: S5

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3 1) Tiffany Rief (Sister of Tammy Rief) 2) Penelope Nagel ("Penny") (Friend of Tammy Rief) 3) Mamie Cavet Cheney (Friend of Tammy Rief) 4) Earl Rief(Father of Tammy Rid) 5) Cherie Rief (Mother of Tammy Rief)
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The motions in limine include:

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General Motions in Limine: a. Motion to exclude witnesses. b. Motion to admonish witnesses not to discuss their testimony. c. Motion to federalize objections.

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Specific Motions in Limine: a. Motion to admit evidence of Mr. Rief' s belief that her son would be exposed to significant bodily and/or emotional harm if placed back in the care of Mr. Sullivan. b. Motion to exclude opinion testimony as to whether or not Ms. Rief

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actually had a good faith and/or reasonable belief as to her son's wellbeing while in the care of Mr. Sullivan. c. Motion to exclude evidence of purported prior court order violations by Ms. Rief. Said motion will be based on this notice of motion, the pleadings memorandum in this action, the attache

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of points and authorities, and evidence to be presented at the time and place herei

scheduled for the motion. Dated: March 19,2014 Respectfully Submitted, RANDYMIZE Chief Deputy Office of the Primary Public Defender

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by:

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Attorneys for Defendant TAMMYRIEF

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RANDYMIZE

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Chief Deputy Office of the Primary Public Defender County of San Diego KRISTIN SCOGIN Deputy Public Defender State Bar No. 235440 450 B Street, Suite 900 San Diego, California 92101 Telephone: (619) 338-4736 Kristin.Scogin@sdcounty.ca.gov Attorneys for Defendant

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TAMMYRIEF SUPERIOR COURT OF THE STATE OF CALIFORNIA

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FOR THE COUNTY OF SAN DIEGO 11

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THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff,

v. TAMMYRIEF,

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Case No.: SCD242110 DANo.: ADF517

POINTS AND AUTHORITIES IN SUPPORT OF MOTIONS IN LIMINE

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Defendant.
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STATEMENT OF FACTS
The following statement of facts and facts further cited in this motion are based primarily on discovery received from the People and from the preliminary hearing in this matter. Defendant in no way admits the truth of these facts nor their accuracy as cited in these motions. Further, Defendant reserves the right to challenge the truth and accuracy of these facts in any subsequent pleadings or during any further proceedings.

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Ms. Tammy Riefis accused of violating California Penal Code section 278.5, Deprivation of
custody of a child or right to visitation. III II I II I
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The charges arise out of events that occurred between April 30, 2012 and November 5, 2012. Portion of time line containing relevant facts: December 2007 - Son, IR. (subject of this matter, will refer to Ms. Rief and Mr. Sullivan's son as lR. for remainder of motion) born to mother, Ms. Tammy Rief. November 2008 - Brian Sullivan files "Petition to Establish Paternal Relationship." February 2009 - Ms. Rief obtains an Alabama order granting temporary custody of l.R. to Ms. Rief. August 2009 - CA Court Statement of Decision - holds that California is child's home state and California has jurisdiction; orders J.R. returned to San Diego. November 2010 - Alabama Court orders Ms. Riefto appear on 12/2110 with 1.R.. December 2, 2010 - Ms. Rief appears without J.R. and is held in contempt of court. December 4,2010 - Mr. Sullivan takes custody of 1.R. February 2011 - Alabama Court relinquishes jurisdiction to San Diego January 2011 - July 2011 - California Court, Honorable Gergory W. Pollack presides over trial DN153612, Sullivan v. Rief. 6/23/11 - Judge Pollack orally declares 50150 shared visitation (2-2-5-5 plan) with Ms.

Sullivan having tie breaker calls in the event of a dispute; Judge tells Ms. Rief J.R.is not to leave California without the permission ofMr. Sullivan (for the next 5 years)
11/18111 - Judgment from DN153612 filed.

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Until April 2012 - parents share custody and exchange 1.R. between the two of them. April 30, 2012 - Ms. Rieffails to exchange J.R.. May 2012 - CA Court grants Mr. Sullivan sole custody of J.R.with no visitation to Ms. Rief. April 30 - November 2012 - No contact by Ms. Rief to Mr. Sullivan. November 5, 2012 - Ms. Rief and lR. apprehended by law enforcement in North Carolina April 3, 2013 - Ms. Rief, having been out of custody and alleged to have failed to appear for various court hearings, was arrested and held without bail. July 2, 13 - Ms. Riefwas extradited to San Diego.

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Throughout the years, since Mr. Sullivan entered into lR.' s life, Ms. Rief has suspected lR.to have been abused physically, emotionally and sexually while in the care of Mr. Sullivan. She has reported this belief to various law enforcement entities (and a physician) in various locations, including San Diego, Arizona, Alabama, and North Carolina. As an illustration to this Court, Ms. Riefreported her belief that J.R. was in danger to authorities on: 11108/09,6/01/10,4/07111,5117111, 11109/12. Ms. Rief went to the San Diego District of various

5/23/11, 6/18111, 6/20/11, 6/27/11, 12/14/11, Attorney's office on 4/07/11

and 4/12111, asking for help and brought hundreds

"supporting" documents with her. The paralegal who tended to Ms. Rieftold her that "until she has an actual and valid custody order signed by the judge stating that the child's primary residence is with her, that [the District Attorney's office] would not be assisting her. Ms. Riefhas been in custody since April 3, 2013 for the current charges and has current trial date set for March 28,2014.

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GENERAL MOTIONS IN LIMINE

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1. Motion to exclude all witnesses from the courtroom.

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Motion to admonish all witnesses not to communicate with one another during the course of the trial on matters regarding this case.

3. Motion to federalize objections. a. Motion to permit counsel to refer to this brief in place of lengthy, record-making objections To make a proper constitutional objection, the state and federal courts have required

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precision and specificity by counsel. In other words, simply objecting "hearsay" will not preserve a

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confrontation issue, nor will objecting "352" or "unfair trial" preserve a due process issue. 23 Such imprecision can result in the sacrifice of a meritorious claim as happened in Duncan v.

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Henry (1995) 513 U.S. 364. There, Mr. Henry was tried in a California court for alleged molesting a 25 5-year old child. The prosecution was allowed to put on evidence of the parent of another child who

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testified that twenty years previous, Henry molested that child. 27 III

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Henry's lawyer objected that the evidence should not come in and cited Evidence Code section 352, arguing the evidence was far more unduly prejudicial than relevant. was convicted. The parent testified and Henry and

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On direct appeal, his lawyers argued that the evidence was irrelevant

inflammatory and that the resulting error resulted in a miscarriage of justice under the California Constitution (the standard for whether an error is harmless under the state constitution). The Court

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of Appeal found error, but ruled it harmless. Henry then petitioned in federal district court, arguing that the error was not harmless and denied him federal due process of law. The district court granted the petition, and the Court of Appeal for the Ninth Circuit affirmed the ruling. The United States Supreme Court summarily reversed the grant of relief stating that Mr. Henry never explicitly raised the federal due process issue in state court and thus did not "exhaust" his claim. The court observed that the test for the state law claim is was similar to, but not quite the same as the federal due process claim. By not intoning the magic words "due process" under the federal constitution, the issue was lost and Mr. Henry's reversal of his felony conviction went with it. As the Supreme Court stated, similarity of claims is not enough to exhaust an issue in state court to permit its being raised in federal court. Justice Stevens' dissent placed the impact of this ruling more bluntly: the case "tightens the pleading screws ... to hold that the exhaustion doctrine includes an exact labeling requirement." (Duncan v. Henry (1995) 513 U.S. 364,368.) no objection on appropriate (people v. Clark (1993) 5

Of course, the federal rules apply equally to state review:

grounds, no review on appeal because the issue has not been preserved.

Cal. 4th 950, 988 n.13 (When a party does not raise an argument at trial, he many not do so no appeal); see also In re Robbins (1998) 18 Cal. 4th 770; People v. Gordon (1990) 50 cal. 3d 1223, 1254 n.6 (a hearsay objection does not raise a federal confrontation question and thus the federal constitutional issue was waived by counsel's incompetently made objection); People v. Raley (1992) 2 Cal. 4th 870, 892 (defendant contended on appeal the court erred in admitting evidence and violated his federal constitutional rights, but because defendant objected only on statutory grounds at trial, the constitutional arguments are not cognizable on appeal.)

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Obviously, this is no small point. Precious constitutional rights can be sacrificed for lack of a few syllables in stating an objection. One thing is clear, the State will urge that trial counsel waived

raising a claim and thus the defendant must be deemed procedurally barred from asserting. (Gordon, supra at 1250). Remedy. To save this court's time during this trial, to not frustrate the jury during needless recordmaking sidebars for objections, and to not unduly interrupt opposing counsel's presentation of his or her case, present counsel requests permission constitutional to use abbreviated terminology in making his

objections. This same simplified technique is commonly used to make standard

evidentiary objections under the Evidence Code. Thus, it is common to object by saying "352" in order to make an objection to evidence which has some relevance but which outweighed by it's prejudicial value. By the same token, the defense requests to make his constitutional objections in the same manner. Thus, any Fifth Amendment due process objection would be made by simply adding "5" to the evidentiary Constitution objection. This objection encompasses the Fifth Amendment of the U.S.

due process guarantee of a fair trial as made available to the States through the (Franklin v. Duncan (9th Cir. 1995) 70 F.3d 75.)

Fourteenth Amendment.

Sixth Amendment confrontation or right to present evidence objections would be made by adding "6" to such claims protected by the Sixth Amendment. This objection states that the

defendant's state and federal constitutional rights to confront witnesses against him as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, and under the similar, but separate and independent California Constitutional protections provided by article one, sections Us. v. Kojayan

seven and fifteen, are violated. (9th Cir. 1993) 8 F.3d 1315,1321;

(Crawford v. Washington 124 S.Ct. 1354 (2004); Us. v. Prantil (9th Cir. 1985) 756 F.2d 759,764).

When objecting to unconstitutional object by saying "prosecution error."

argument by the prosecutor to the jury, counsel would

(see People v. Hill (1998) 17 Ca1.4th 800, 823, n.1 (holding

that the claim of prosecutorial misconduct is more properly called prosecutorial "error".).

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This objection includes the statement that the prosecutor's comment is irrelevant, inflammatory, and prejudicial. The objection is grounded in the defendant's state and federal due process rights to a

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fair trial under the Fifth and Fourteenth Amendments to the United States Constitution, as well as my client's state and federal constitutional right to confront witnesses against him as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, and under the similar, but separate and independent seven and fifteen. California Constitutional protections provided by Article one, sections

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The error has "so infected the trial with unfairness as to make the resulting (Donnelly v. De Christoforo (1974) 416 U.S. 637, 643.) Along

conviction a denial of due process."

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with the objection, counsel is asking the court to assign this as misconduct, strike the offending comments, and admonish the jury to disregard the comments. 208,215-16, n.5.) (People v. Bolton (1979) 23 Cal. 3d

II.
SPECIFIC MOTIONS IN LIMINE 1. Motion to admit evidence of Mr. Rief's belief that her son would be exposed to harm if
placed in Mr. Sullivan's care any further. a. Motion to admit evidence of Mr. Rief s belief that her son would be exposed to significant bodily andlor emotional harm if placed back in the care of Mr. Sullivan.
i. Relevance under California's recognized "necessity" defense:

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In California, all relevant evidence is admissible. (See Evid. Code, 350.) '''Relevant evidence'
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means evidence [... ] having any tendency in reason to prove or disprove any disputed fact that is 20

consequence to the determination of the action." (210.) This includes evidence supporting any defense 21 raised by the Defendant. The California courts have recognized the defense of necessity. (In re Eichorn, 22
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(1998) 69 CaLApp.4th 382.) This defense is founded upon public policy and provides a justificatio distinct from the elements required to prove the crime. (People v. Verlinde, (2002) 100 Cal. App. 4t

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In order to establish this defense, the defendant must prove that: 1. She acted in an emergency to prevent a significant bodily harm or evil to herself or someon else; 2. She had no adequate legal alternative; 3. The defendant's acts did not create a greater danger than the one avoided; 4. When the defendant acted, she actually believed that the act was necessary to prevent th threatened harm or evil; 5. A reasonable person would also have believed that the act was necessary under circumstances; and 6. The defendant did not substantially contribute to the emergency. (CALCRIM 3403) Prior to her arrest, Ms. Rief alleged Mr. Brian Sullivan several times of committing child abuse against their son, IR.. For example, on November of2009, Ms. Rieffiled a report with the Health and Human Services Agency Child Welfare Services (herein "HHS") after lR. returned home from a custody visit with a bruise below his right eye, a cut on his right cheek, a bruise on his left arm, a bruise on his left foot, and a "terrible red ring around his anus." On May of 2011, Ms. Rief filed another report with the HHS after lR. returned from a custody visit exhibiting "strange behaviors," as well as bruising. On this incident, J.R. had also told Ms. Riefthat Mr. Sullivan, Denise (Mr. Sullivan's girlfriend), and lR.'s grandfather hit him. On June of 2011, Ms. Rief called the San Diego Police face,

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Department and filed another report with the HHS after observing bruises and abrasions on lR.'s forearm, hip and elbow. When asked by Ms. Rief who caused the injury, lR.replied,

"Daddy."

Furthermore, Ms. Rief contacted Dr. Gretchen Gainor, J.R.'s physician, a number of times to inquire into and examine the injuries sustained by J.R. Friends and family members of Ms. Riefalso provided statements to law enforcement corroborating these allegations of child abuse by Mr. Sullivan. These reports and statements are relevant Ms. Rief's claim of legal necessity. The evidence

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evidence of Ms. Rief' s belief of child abuse by Mr. Sullivan should be admitted pursuant to Evidence Code 350. Ms. Rief's belief will be further illustrated to the jury by testimony of Ms. Rief's friends and family who also witnessed injuries on and who talking to lR. after visits from III

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ii. Relevance under PC 278.7 Penal Code Section 27S.7(a) states: "Section 278.5 does not apply to a person with a right t custody of a child who, with a good faith and reasonable belief that the child, if left with the othe person, will suffer immediate bodily injury or emotional harm, takes, entices away, keeps, withholds,
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conceals that child." The section also sets notification requirements: "The person who takes, entice away, keeps, withholds, or conceals a child shall do all of the following: (1) Within a reasonable time from the taking [... ], make a report to the office of the distric attorney of the county where the child resided before the action ... (2) Within a reasonable time from the taking [... J, commence a custody proceeding in a court 0 competent jurisdiction ... (3) Inform the district attorney's office of any change of address or telephone number of th person and the child." (Section 278.7(b The defendant bears the burden of raising a reasonable doubt regarding whether section 27S.7(a

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applies; there is no burden upon the defendant to affirmatively prove facts by a preponderance. (Peopl 13
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v. Neidinger, (2006) 40 CaI. 4th 67, 70.) Like with Ms. Rief's nonstatutory legal necessity defense, th statements and testimony suspecting Mr. Sullivan (or someone while in his care) of child abuse are als

15 probative to Ms. Rief's defense under Section 278.7. This evidence illustrates to the jury the harm Ms. 16 Rief believed lR. was in, while under the care of Mr. Sullivan; it corroborates Ms. Rief's position tha 17 IS 19 20 21 22 23 From the point of view of Ms. Rief, the District Attorney's office turned it's back on Ms. Rief an she had a good faith and reasonable belief that lR. would suffer immediate bodily injury. Furthermore, the notification requirements set out in Section 278.7(c) were attempted during the years preceding this case, with two visits to the District Attorney's office in April of 20 11.

refused to help her; no doubt leaving Ms. Riefto feel helpless as to ever getting help from that office. 2. Motion to exclude opinion testimony enforcement. To ask a witness to comment on whether another witness is a liar is inflammatory, usurps the function of the jury whose job it is to determine credibility. of any judicial officer or any member of la

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irrelevant, an

(US. v. Sanchez (9th Cir. 1999

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176 FJd 1214, 1219-1220.)

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The prosecution in this case must "avoid statements to the effect that, if the defendant is innocent government agents must be lying." (U.s. v. Richter (2d Cir. 1987) 826 F.2d 206,209.) In this case the District Attorney may attempt to solicit opinions of family court judge(s)

4 peace officer(s) or members of their investigatory staff as to whether they believed Ms. Riefhad a goo

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faith andlor reasonable beliefthat lR. was in danger. This usurps the duty of the jury to decide facts an 6 determine credibility issues in criminal cases. 7 8 9

3. Motion to exclude evidence of purported prior court order violations by Ms. Rief. a.

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the court. For example, on January, March, and August of 2010, Ms. Rief was found to violate a cou 13 order by refusing Mr. Sullivan visitation. And on December of 2011, Ms. Rief was found to be i 14 contempt of the Alabama court in DeKalb County for violating a court order by failing to produce lR. 15 These court order violations, however, are irrelevant as they do not prove or disprove any disputed fac 16 that is of consequence to the determination of this case. The sole issue in this case is whether Ms. Rie 17 violated Penal Code 278.5 and in turn, whether she has an adequate defense to such allegations. 18 Evidence of Ms. Rief s prior court order violations do not tend to prove or disprove this, and introducin 19 them into evidence will only serve to unfairly prejudice the jury against Ms. Rief. 20 Section 352 of the California Evidence Code states that: 21 22 23 "The court in its discretion. may exclude evidence if its probative value is substantiall outweighed by the probability that its admission will (a) necessitate undue consumption 0 time or (b) create substantial danger of undue prejudice, of confusing the issues, or 0 misleading the jury." Furthermore, Section 1101 (a) of the California Evidence Code states that: " ... evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. " 10

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Given its lack of probative value, importing these prior court order violations into this instan

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This would also likely confuse the jury given the number of events and proceedings that took plac multiple states over the two-year period. In addition, such evidence will only invite unfair prejudice by the jury against Ms. Rief. Becaus evidence of the prior court order violations carries no probative value, the only impression its admissio can make on a jury is that "Ms. Rief had a propensity to violating court orders, and that Ms. Rief acte consistently with this propensity in this instant case." Therefore, evidence of Ms. Riefs prior court orde violations should be precluded from trial pursuant to Evidence Code Sections 352 and 1101(a).

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CONCLUSION For the above-mentioned motions in limine be granted. reasons, the defense and TAMMY RIEF request that all listed

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Dated: March 19, 2014 Respectfully Submitted, RANDYMIZE Public Defender

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