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August 9, 2025 14 mins
The April 24, 2025 order issued by Judge John C. Judge in the Bryan Kohberger case addresses the prosecution's motion to limit or exclude certain pieces of evidence—specifically, the 911 call and related text messages made by surviving roommate Dylan Mortensen on the night of the murders. The state sought to prevent the defense from introducing or speculating about the content and timing of the 911 call or messages, arguing that such discussions would be prejudicial, misleading, and based on incomplete information. The court agreed in part, ruling that the defense may not reference the 911 call or text messages during opening statements, as their admissibility will depend on the context provided during trial.

However, Judge Judge left the door open for the 911 call and texts to be introduced later, depending on how the evidence unfolds and whether a proper foundation is laid. He emphasized that such materials must meet standards of relevance and reliability before being admitted in front of the jury. The ruling reflects the court’s intent to avoid speculation and ensure that jurors are only exposed to properly vetted evidence. The decision was a partial win for the prosecution, but it does not preclude the defense from raising the issue later if it becomes legally and factually appropriate.


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source:

042425+Order+on+States+Motions+in+Limine+RE+Text+Messages+and+911+Call.pdf

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Transcript

Episode Transcript

Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
What's up everyone, and welcome back to the program. In
this episode, we're swinging right back up to Moscow and
we're going to take a look at Judge Hipler's order
on the State's motion in Lemona text messages and the
nine to one one call case number CR zero one
DASH twenty four DASH three one sixty sixty five, State
of Idaho, Plaintiff First Brian C. Coberger, the defendant, introduction

(00:24):
DM and BF for the two surviving roommates of eleven
twenty two King Road. At the time the homicides were
believed to have occurred, DM saw a massed intruder in
the house and began calling and texting the other roommates,
including BF. Approximately eight hours after DM saw the intruder,
BF called nine to one one from her phone before
the cord is. The state motion to allow the text

(00:46):
messages by DM and BF testimony about their conversations with
each other about what DM saw and the nine to
one one call. The state argues that these communications are
either not hearsay or qualify under one or more exception
to the hearsay rule. It also asks that a transcript
of the nine to one one call be provided to
the jury to view while listening to the audio. Defendant

(01:09):
challenges several of the communications and objects to the use
of the transcript. Oral argument on the motion was held
on April ninth, twenty twenty five, after which the Court
took the matters under advisement. The Court finds that some
of the hearsay statements on the nine one one call
do not qualify under the exception cited by the State,
and therefore must be redacted. However, the balance of the

(01:31):
nine one one call, as well as the texts and
the conversations noted herein, are likely admissible provided that the
requisite foundation is laid at trial. The transcript will be
allowed as a demonstrative aid, again, assuming proper foundation is
established to standard, whether a statement falls within the present
sense impression and lore excited utterance exceptions is a question

(01:54):
that is left to the sound discretion of the trial court,
giving consideration to the totality of the circumstances State versed
Over one, twenty six, nineteen ninety four. Use of demonstrative
aids is also a discretionary determination State versus Weigel, one
sixty five, twenty nineteen. On discretionary matters, the trial court

(02:15):
must one correctly perceive the issue as one of discretion.
Two act within the outer boundaries of its discretion. Three
act consistently with the legal standards applicable to the specific
choices available to it, and four reached its decision by
the exercise of reason. Lannaborg vers My Fun Life, one
sixty three, Idaho, twenty eighteen. Three facts. After spending the

(02:40):
evening out, roommates DMBF, Kayley Gonsalves and Madison Mogan returned
to their home at eleven twenty two King Road in
the early morning hours of November thirteenth, twenty twenty two.
At approximately two am, they met up in Kaylee's bedroom
and talk for a while before going to bed. The
fifth roommate, Zana Kernodle, who was out with their boys
friend Ethan Chapin, was not home yet. The roommates debated

(03:04):
going out to a food truck for a late snack,
prompting DM to send a text at two am to
an Uber driver she knew to see if he was driving. Ultimately, however,
the girls decided just to go to bed. At approximately
four am, DM heard a strange noise and crying coming
from the bathroom. She opened her door at one point
and saw a man dressed in black with a ski

(03:25):
mask on walking by her bedroom door. She then plays
calls and text to her other roommates to see if
they were awake. Only BF, who resided on the ground floor, answered.
They spoke once for twenty four seconds, during which DM
told BF she thought that she heard something. They spoke
again a minute later for forty one seconds, when DM
told BF she saw a man in a ski mask

(03:48):
leaving the house. They then exchanged the following text messages
between four twenty two and four to twenty six am.
Dmdbf No one is answering DM TOBF I'm really confused
right now dmd klee Klee, DMDBF. What's going on? Bf
to DM, Yeah, dude, what the fuck? Bf to DM

(04:08):
Xana was wearing all black. DMDBF, I'm freaking out right now.
Dmdbf No, it's like a sche mask almost, BF to
DM stfu. BF to DM actually DMDBF like he had
something over his head and little bit of his mouth
dmdbf Bethan, I'm not kidding O. M so freaked out.

(04:32):
A lot of typos here, BF t DM so am
I DMDBF my phone is going to die. Fuck. BF
to DM, come to my room. BF to DM. Run
BF to DM down here, DMDBF. I'm screwed though, BF
to DM, Yeah, I know, but it's better than being alone.
During the foregoing exchange, DM also attempted contacting Ethan Chapin

(04:56):
through Snapchat. She again tried calling Kaylee and Xana, but
neither responded. She then exited her room and began running
toward bf's bedroom. On her way, she noticed Xena lying
on the floor of her bedroom with her head towards
the wall and her feet towards the door. DM thought
Xana was drunk. Grand Jury transcripts at one eighty two

(05:17):
sixteen through one eighty three seven. Once DM arrived at
bf's room, they locked the door and both made additional
unanswered calls to the roommates. At four thirty two am,
DM again texted Kylee please answer, with no response. Between
approximately five am and six thirty am, DM engaged in
activity on her phone, primarily creating, editing, and deleting images

(05:40):
and videos. Her phone activity then ceased until eight o five,
when DM accessed Instagram for a few minutes. At ten am,
DM again accessed Instagram and communicated over Snapchat. At ten
twenty three, she texted Madison asking are you up? She
received no response. DM continued to act as Instagram and

(06:00):
Snapchat until eleven twenty nine am, when she texted Kaylee
are you up again? There was no response, which DM
thought was strange because Kaylee and Madison were early wakers.
Grand Jury transcript at one eighty eight fifteen through twenty four,
DM continued accessing various social media sites, including checking Ethan's

(06:22):
and Xana snapchat locations. At approximately eleven forty eight, DM's
father texted her about scheduling a time for a chat,
to which DM responded. She also received two texts from
a person named Jenna, stating bro and do you guys
need me to come get you. At approximately eleven fifty am,
DM called her friend Ea and asked her to come

(06:43):
over and check the house because she was scared. Ea
and her boyfriend HJ came over. They met DM DF
at the bottom of the floor of the house. Grand
Jury transcript at two seventy seven two through four. Together, DM, BF,
and HJ started to walk up the stairs to the
second floor. When they reached the second floor, HJ went

(07:04):
to the kitchen to grab a kitchen knife. When he
came back out, DM said saw Xana again for a
split second, and I just started bawling because I thought
she had just like I don't even know. I thought
maybe she was still just drunk and all asleep on
the floor. Grand Jury transcript at one ninety one, twenty five,
two forty five, twenty two, two forty six, and twenty

(07:26):
BF also saw Xana lying on the floor id at
two thirty one, thirteen and seventeen. HJ told DM and
BF to get out. Ea, who had started up the stairs,
also turned around after AJ instructed her not to come
any further. They both went outside. Shortly afterwards, HJ exited

(07:46):
the house and told them to call nine one one.
He was pale, white and mentioning something about someone being unconscious.
At eleven fifty six am, BF called nine one one
from her cell phone and spoke to Carolina Calvin, the
nine to one one dispatch. The call lasted four minutes
and eleven seconds. During the call, the phone was passed
around to different individuals, including BF, DM, HJ, and an

(08:09):
unidentified female speaker. Heaving, heavy breathing and crying can be
heard throughout the call, BF first spoke, stating, something is happening.
Something happened in our house and we don't know what.
BF attempted to provide the address of the house to dispatch,
but could not continue. At one point, an unidentified female

(08:29):
speaker took the phone and provided the address and bf's
phone number. The following exchange ensued. Nine to one one operator, Okay,
and tell me exactly what's going on. Female? One of
our one of the roommates who's passed out and she
was drunk last night and she's not waking up. Nine
to one one operator. Okay, female. Oh, and they saw

(08:51):
a man in the house last night. Yeah, nine one
one operator. And are you with the patient? DM? Hi,
this is DM operator. Okay, I need someone to keep
the phone. Stop passing it around. DM. Can I just
tell you what happened? Pretty much? Nine oh one one operator?
What is going on currently? Is someone passed out right now? DM?

(09:12):
I don't really know, but pretty much at four am,
nine to one one operator, Okay, I need to know
what's going on right now? If someone has passed out,
can you find out please? DM? Yeah, I'll come come on,
B We got a check, but we have to if
she passed out. She's passed out, what's wrong? She's not
waking up? HJ Xana. DM then informed the dispatch that

(09:33):
Xana was twenty years old, and at that point HJ
took the phone. Dispatch asked him if she was still breathing,
to which HJ answered no. Law enforcement arrived at that point,
and after confirming with DM that the responding officer had
a defibillator, dispatch ended the call. Later, at approximately one
oh four pm that day, DM received a vandal alert

(09:55):
regarding the homicide for analysis. The state seeks to admit
DM and bf's phone records from November thirteenth, twenty twenty two,
including call records and text messages, as well as illicit
testimony by DM and BF for regarding their communications with
each other on November thirteenth, twenty twenty two, that they
testify to before the grand jury. The state also seeks

(10:19):
to admit nine to one one call and the official
transcript thereof the State argues these records and communications are
not hearsay or they are accepted from hearsay as excited
utter instances, or present sense impressions defendant objects, arguing that
apart from Hja's statement to nine one one that Zena
was not breathing. The exceptions do not apply to the

(10:40):
hearsay statements. The Court finds the bulk of the statements
are likely admissible, with three exceptions of statements made during
the nine one one call. Hearsay is an out of
court statement admitted to prove that the truth of the
matter asserted Ire eight O one. To be hearsay, the
statement must be intended as an assertion of fact and
offered by the proponent for purposes of proving the truth

(11:03):
of the assertion. Hearsay statements on a nine to one
one call can typically be admitted into evidence under either
the public record or business record. Exceptions to the hearsay
rule Bemis Verse Edwards, forty five, Ninth Circuit, nineteen ninety five. However,
because citizens who call nine one one are not under
any duty to report fed our evidence eight O three

(11:25):
a B, a recorded statement by a citizen must satisfy
a separate hearsay exception. Typically, these exceptions include the present
sense impression exception and the excited utterance exception. For Clifford
as Fisherman Jones on Evidence Section twenty eight sixteen seventh edition,
December twenty twenty four update. The present sense impression exception

(11:47):
authorizes the admission of hearsay if it is a statement
describing or explaining an event or condition made while or
immediately after the declaran perceived it. Ire Aight oh three
to one. The rationale justifying the exception is that the
immediacy of the statement offers no opportunity for fabrication Lola

(12:07):
Casiar revocable trust versus Caziar one sixty seven, Idaho one
oh nine, twenty twenty. The rule recognizes that in many,
if not most instances, precise contemporarity is not possible, and
hence the slight time lapse is allowable. Quoting Fre Aight
oh three to one Advisory Committee, note emphasis added in casir.

(12:29):
The excited utterance exception to the hearsay rule authorizes the
admission of hearsay if the testimony recounts a statement relating
to a startling event or condition while the declarant was
under stress of excitement caused by the event or condition.
Ire aight o three to two. To fall within the
excited utterance exception, one, there must be a startling event

(12:49):
that renders inoperative the normal reflective thought process of the observer,
and two, the declarence statement must be spontaneous reaction to
the event rather than the result of reflective thought state
vers Hansen, nineteen ninety nine. In considering whether the statement
meets the excited utterance requirement, the totality of circumstances must

(13:11):
be considered, including the amount of time that elapsed between
the startling event and the statement, the nature of the
condition or event, the age and condition of the declarant
the presence or absence of self interest, and whether the
statement was volunteered or made in response to a question.
There is no bright line rule as to the allowable
time span between the event and the statement, and one

(13:32):
likely should not be drawn. As with the present sense
impression exception, the rationale underlying the excited utterance exception is
a special reliability which is regarded as furnished by the excitement,
suspending the declarence powers of reflection and fabrication id quoting
Burton one fifteen Idaho, nineteen eighty nine. All right, we're

(13:54):
going to wrap up right here, and in the next
episode we're going to pick up where we left off.
All of the information that goes with this episode can
be found in the description box
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