August 9, 2025 • 18 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.
to contact me:
bobbycapucci@protonmail.com
source:
042425+Order+on+States+Motions+in+Limine+RE+Text+Messages+and+911+Call.pdf
Become a supporter of this podcast: https://www.spreaker.com/podcast/the-moscow-murders-and-more--5852883/support.
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.
to contact me:
bobbycapucci@protonmail.com
source:
042425+Order+on+States+Motions+in+Limine+RE+Text+Messages+and+911+Call.pdf
Become a supporter of this podcast: https://www.spreaker.com/podcast/the-moscow-murders-and-more--5852883/support.
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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 going to pick up where we left
off with Judge Hitler's order on the motion in Lemonae.
In regard to the nine one one call, a text
message and verbal conversations between DM and BF are likely admissible.
As an initial matter, the Core finds that DM and
bf's acts of making phone calls, sending or receiving text messages,
(00:22):
and other phone activities such as accessing social media are
not hearsay. Hearsay only captures an oral assertion, written assertion,
or nonverbal conduct intended as an assertion. Thus, this order
will focus on the content of those calls and texts
to the extent available. As to the content of DM
and bf's text messages about what DM saw, the Court
(00:44):
finds they are either not hearsay because they are not
offered for the truth of the matter asserted or not assertions,
or if hearsay, they likely qualify as a present sense
impression and or excited utterance as set forth and Exhibit
A here too, they're verbal discussions are potentially admissible for
the same reasons. The state must establish the foundational requirements
(01:05):
for such profited statements at the time of trial one
DM Tex suber driver at two ten twenty nine to
inquire if he's driving. The State seeks to introduce this
text to establish the timeline, specifically to establish DM was
awake in texting at two ten am. Defendant does not
directly challenge the text because it is not offered for
the truth of the matter asserted and or not an
(01:28):
assertion effect. The court finds it not hearsay under Ire
eight oh one two text messages between four to twenty
two and four to twenty six am. The State argues
at the four minute series of text messages between DM
and BF, with one from DM to k Lee are
admissible as either present sense impressions or excited utterances. Defendants
(01:49):
suggest neither exception applies because there is no evidence they
were sufficiently startled by the events. He points out that
DM claimed only to be confused, and despite stating that
she was scared, she ran to bf's room instead of
leaving the house or otherwise calling other friends and family
for help. The court agrees with the state for those
texts qualifying as assertions. First, the present sense impression exception
(02:13):
does not require a startling event. It simply requires that
the speaker describe or explain a condition while personally perceiving
it or immediately thereafter. Most of DM's texts to BF
satisfy this exception. She first texts that no one is answering,
which describes the results of her calls to the other
roommates just moments before. She also states that she is
(02:34):
immediately feeling confused, freaked out, and scared over what she
saw and heard and the fact that none of her
roommates are answering. She further describes the intruder she saw
ie wearing a ski mask or something over his forehead
and mouth. She also relays that her phone is going
to die. Thus, these statements are all likely admissible as
present sense impressions. In addition, the events are sufficiently startling
(02:58):
to both DM and BF for purposes of the excited
utterance exception. DM and BF for young female college students
and are self described scaredy cats of the house. They
were awoken from sleep after a night of drinking, with
DM reporting that she heard noises and saw a masked
intruder in their home. None of the other roommates were
(03:18):
responding to their calls and texts further indicating something was amiss.
It would be potentially terrifying for anyone, including these young women,
to argue that they would have run out of the
house or called someone else for help had they really
been startled. Unempathetically ignored these circumstances and the trauma and
confusion they were evidently experiencing, which likely offset logical thought. Indeed,
(03:41):
the girl's fear and confusion is evident in their words,
with both questioning what was going on, DM stating that
she was freaked out, scared, and confused, and BF attempting
to get them together quickly for safety. They were clearly
under stress and attempting to make sense of the frightening situation. Additionally,
the time period that elapse between what DM saw and
(04:02):
her communication with BF about the same was a matter
of minutes. The text message exchange lasts approximately four minutes,
with the messages occurring in rapid succession. This timeline left
no time for the reflection or a fabrication, which is
ultimately what ire at three to one and at three
to two seek to protect against. Consequently, the court concludes
(04:24):
that the assertive text messages within this four minute period
are likely admissible as present sense impressions and or excited utterances,
assuming the requisite foundation is provided at the time of trial.
Three DM text of victims. At four thirty two fifty seven,
DM texted k Lee, please answer. The State argues that
(04:45):
this text is admissible as a present sense impression and
an excited utterance. Defendant does not directly address the text. However,
the court finds it is more of a command or
request than an assertion of fact. It is not a
fact capable of being proved true or false the US
it is not barred. At ten twenty three, DM texted
Madison asking are you up, and approximately an hour later,
(05:08):
DM texted Kaylee, are you up. The State argues that
the foregoing text are not hearsay because they will not
be introduced for the truth of the matter asserted. Alternatively,
the state contends they are present sense impressions because they
represent a consistency and continuation of DM's texts from the
prior night. Defendant disputes that the exception applies, pointing out
(05:31):
that DM had been awake and accessing social media before
she sent the texts. Again, the court does not find
these texts to be assertions. These are inquiries, not declarative statements,
even if they were assertions. However, the state intends to
admit the statements to establish a timeline of events. They
are not hearsay because they are not offered to establish
(05:53):
their truth. Therefore, they are not barred by Ire eight
oh one five DMS calls and texts and from others.
The state intends that text between DM and are dead.
The texts from JM and the vandal alert are not
hearsay because they will be offered simply to show a
timeline for the morning and early afternoon. In addition, the
(06:13):
state notes that the phone call from DM DEA is
not a statement and therefore not hearsay. The court agrees
and will allow the evidence for purposes of the timeline
if the requisite foundation is laid b verbal communication between
BF and DM. The state next contends that an intense
to ask DM and BF at trial about statements they
(06:34):
made to each other on November thirteenth, twenty twenty two.
It argues the testimony will likely replicate that provided by
these witnesses at the grand jury preceding. The state contends
they are admissible under the present sense impression and or
excited utterance exception defendant does not directly address the argument.
(06:54):
To the extent, DM and BF seek to testify about
the content of the calls, texts, and conversations about what
they perceived during the four to thirty time frame. They
could be potentially admissible under the exception cited by the state. However,
the state must establish the foundational requirements for such profited statements.
The grand jury testimony does not appear to include any
(07:15):
conversations between them after four nineteen am to four thirty
seven am time frame, and the State has not pointed
any out. Thus, to the extent they testified to oral
conversations they had after they woke up the next morning,
the court will reserve ruling and consider any hearsay objections
at that time. The nine to one one call. The
(07:36):
State intends that the entirety of the nine to one
one call should be admitted because the statements therein are
either non hearsay ie not admitted for the truth of
the matter asserted, or they are accepted from the hearsay
rule as present sense, impressions or excited utterances. Defendant generally
objects to its admission, but takes particular issue with three
statements within the call. The court finds defendant's objections these
(08:00):
specific statements well placed, but will allow the balance of
the call because the statements are either not assertions, not
admitted for their truth, and or accepted from the rule
as set forth and Exhibit B here. Two one initial statements.
The nine one one call begins with BF telling dispatch
something is happening. Something happened in our house and we
(08:21):
don't know what. This statement falls squarely within the present
sense impression. The exception given that BF was experiencing concern
that something was wrong with their roommates and HJ had
just instructed her to call nine to one one after
walking through the house. Thereafter, BF attempts to provide dispatch
with the address of the house before an unidentified female
(08:41):
speaker takes the phone and provides the address in bf's
phone number. This exchange is not offered for the truth
of the matter asserted, and therefore not barred by the
hearsay rule. Two female on one of our one of
the roommates who's passed out, and she was drunk last
night and she's not waking up. The state argues a
statement as a present sense impression because the female speaker
(09:04):
is describing the scene around her. However, as defendant points out,
the roommate at issue in the statement is Xana, the
only individual who experienced saw Xana unresponsive, where DMBF and HJ. Thus,
Defendant contends the exception does not apply because the female
speaker never saw Xana unresponsive and thus lacks firsthand knowledge
(09:25):
of the information contained in the statement. The inquiry here
turns on whether the event the female speaker is describing
or explaining is that Xena is unresponsive, as defendant contends,
or whether it is more generally, the scene unfolding at
the house, i e. That their friends saw Xana unresponsive.
The female speaker did not personally perceive the former, but
(09:46):
she did personally perceive the latter. When the words themselves
are considered, it's clear the event being described is that
Xana is unresponsive, not that the speaker's friends saw Xana unresponsive.
In other words, she is relayed to nine one one
what her friend observed and related to her. Her statement
is therefore outside the present sense impression, and thus the exception.
(10:08):
Thus the statement is not admissible under that exception. Three female, Oh,
they saw some men in their house last night. Yeah,
The state argues this statement is both a present sense
impression and an excited utterance because it is in response
to finding Xena unresponsive. Defendant responds that the statement references
an event DM saw eight hours prior to the nine
(10:31):
one one call and therefore is not contemporaneous. Defendant also
points out that the female speaker does not have personal
knowledge and is simply repeating what she's told by others.
The court agrees that the present sense impression exception does
not apply to the statement because the speaker is recounting
what someone else perceived. Additionally, there is no contemporarity since
(10:52):
she is describing an event that occurred hours earlier. The
excited utterance exception does not apply either. Instructive Here is
State Fox where to Idaho Supreme Court considered whether the
excited utterance exception applied to a nine to one one
call made by a man after he found a woman
screaming for help for her friend, whom she said had
(11:13):
just been pistol whit by a man who fled the scene.
The nine one one caller had not seen what had happened,
but relayed to dispatch what the victim told them about
the incident. The court held that the district Court erred
by admitting the nine one one caller's statements to dispatch
as excited utterances because the caller's voice was calm and
he had not experienced a startling event or condition. Here. Likewise,
(11:34):
the audio of the nine one one call does not
indicate that the speaker's normal reflective thought process were rendered inoperative.
Her voice sounds calm relative to bfs and dms. Although
a slight nervousness can be detected in her voice, she
is not audibly crying or breathing heavily. In fact, the
speaker took over speaking to dispatch because she was more
(11:54):
composed than BF, who initiated the call. Further, the speaker
did not personally see Xana unresponsive, nor did she see
the man allegedly in the house. She is simply repeating
what others told her, so the statement does not provide
insight into her own thought process. Consequently, the statement must
be redacted for DM's attempts to explain events. After the
(12:16):
female speakers seedes the phone to DM, DM identifies herself
and asks if she can tell Dispatch what happened. Dispatch
responds by asking what is going on and if someone
is passed out, this exchange will not be offered for
the truth of the matter asserted, and therefore is not hearsay. However,
DM then states, I don't really know, but pretty much
at four am. The state argues this statement is a
(12:39):
present sense impression and or excited utterance because DM is
trying to explain to the dispatcher what she saw while
under the current excitement of realizing that her roommate is
not waking up and something could be wrong in the house.
Defendant disagrees. Noting the event, DM begins to describe what
occurred eight hours prior. He further argues it is not
(13:00):
an excited utterance because she and BF had several hours
to reflect on what she had seen and experienced at
four am. Defendant is correct that the statement does not
qualify as a present sense impression. While DM personally perceived
the event, she is beginning to describe the contemporanity aspect
is missing. She is attempting to narrate an event she
(13:22):
saw eight hours earlier. The excited utterance exception does not
apply either. While DM is no doubt under the stress
of excitement caused by realizing Xana is unresponsive, her reflexive
thought processing appears intact. She is starting to draw connections
between Xanna being unresponsive and what she saw and heard
eight hours prior, something she has had time to reflect upon.
(13:45):
She does not launch spontaneously into what she saw at
four am. Rather, she asks the dispatcher if she can
explain what she saw. Based on this exchange, it's clear
her powers of reflection are quite active, thus obviating the
purpose behind the exception. The statement is therefore not admissible
and must be redacted statements regarding Xana. Dispatch then instructs
(14:06):
DM to find out if someone passed out. DM appears
to make statements to a bystander that they have to
go check if Xana passed out. This is not offered
by the state for the truth of the matter and
therefore not hearsay. DM then states that Xana is not
waking up. HJ has heard stating Xana in the background.
These are squarely present sense impressions because they are describing
(14:27):
what the speakers are seeing. DM then responds to dispatch
inquiry about Xana's age, again not offered for the truth
of the matter asserted before HJ takes the phone and
confirms that Xana is not breathing. This is also a
present sense impression and also likely falls within Ire eight
oh three four six statements. After law enforcement arrived. Around
(14:49):
the time HJ confirmed to dispatch that Xana was not breathing,
law enforcement had arrived on scene, HJ can be heard
telling DM, I need you to talk to them. I
can't talk to them. I need you to talk to them.
The court finds this admissible as either a present sense
impression or excited utterance. HJ had discovered Zana's body moments before.
He is operating under the stress of the discovery and
(15:12):
attempting to answer dispatch questions. His statements described as inability
to speak to law enforcement at the moment and therefore
are admissible. At that point, DM took the phone again
and Dispatch instructed her to get a defibrillator if one
was available. DM as Dispatch to repeat the question and stated,
there's a police here right now. After Dispatch repeated the question,
(15:34):
DM indicated that they did not have a defibrillator and
ask the responding officer if he did. The officer responded affirmatively,
after which Dispatch indicated she was going to let the
officer take over and ended the call. To the extent
the state seeks to admit the statements by DM for
their truth. They qualify as present sense impressions, as DM
is explaining the events as are happening. They also are
(15:57):
likely admissible under Ire eight oh three four in so
far as they regard the defibrillator. Finally, many of the
statements are not assertions and thus not hearsay. Seven cry
and breathing heaving is not hearsay. Apart from statements, the
state also moves for admission of the audible crying, breathing
and heavy heaving made by the nine one one callers.
(16:19):
Defendant does not address the argument, and the court finds
it well placed. While assertive conduct can qualify as hearsay,
non assertive conduct does not. There is no indication the
nine one one call that the speakers are intending to
make assertions through their crying and heavy breathing. It's clearly
an involuntary response to the circumstances. Further, it's relevant to
(16:42):
show the stress and emotional impact the girls are under,
which puts the call into context. Thus it is admissible
d The transcript of the nine one one call will
be allowed as a demonstrative evidence. The final issue is
whether to allow the jury to view the official transcript
of the nine one one call while listening to the
defendant contends it could be cumulative and asks that either
(17:04):
the call or the transcript be allowed, but not both.
The court uws this issue as essentially a request for
use of the transcript as a demonstrative aid. A demonstrative
exhibit is relevant if it supplements the testimony of witnesses
or assists the jury in obtaining a better understanding of
facts an issue. Transcripts are widely used as demonstrative aids
(17:26):
to help the jury understand contents of audio recordings. When
used in this way, courts will typically instruct the jury
that the transcript is not evidence independent of the audio recording,
and if the jury determines that the transcript is incorrect,
it should disregard it to the extent and rely on
its own interpretation of the audio recording. In addition, the
(17:46):
transcript must be authenticated by showing that it fully inaccurately
complies with the audio recording. Against this background, the court
will permit a transcript of the nine one one call
to be used as a demonstrative aid, Assuming the proper
foundation one for nine one one call is established and
the transcript is properly authenticated. To this end, the state
is responsible for proposing an appropriate jury instruction. The transcript
(18:10):
will not be admitted as substantative evidence and will not
be available to the jury except when the nine one
one call is being played, including during deliberations, because it
is not going to be used as evidence. The Court
does not find that the transcript is cumulative to the
nine one one audio or otherwise prejudicial to defendant order
based on the foregoing, the State's motion in Lemona Text,
(18:33):
Messages and testimony is granted in part and reserved in part.
The State's motion in Lemona nine one one call is
granted in part and denied in part and reserved in part.
This document was signed on April twenty fourth of twenty
twenty five, and it was signed by Judge Hipler. All
of the information that goes with this episode can be
found in the description box.
What's up everyone, and welcome back to the program. In
this episode, we're going to pick up where we left
off with Judge Hitler's order on the motion in Lemonae.
In regard to the nine one one call, a text
message and verbal conversations between DM and BF are likely admissible.
As an initial matter, the Core finds that DM and
bf's acts of making phone calls, sending or receiving text messages,
(00:22):
and other phone activities such as accessing social media are
not hearsay. Hearsay only captures an oral assertion, written assertion,
or nonverbal conduct intended as an assertion. Thus, this order
will focus on the content of those calls and texts
to the extent available. As to the content of DM
and bf's text messages about what DM saw, the Court
(00:44):
finds they are either not hearsay because they are not
offered for the truth of the matter asserted or not assertions,
or if hearsay, they likely qualify as a present sense
impression and or excited utterance as set forth and Exhibit
A here too, they're verbal discussions are potentially admissible for
the same reasons. The state must establish the foundational requirements
(01:05):
for such profited statements at the time of trial one
DM Tex suber driver at two ten twenty nine to
inquire if he's driving. The State seeks to introduce this
text to establish the timeline, specifically to establish DM was
awake in texting at two ten am. Defendant does not
directly challenge the text because it is not offered for
the truth of the matter asserted and or not an
(01:28):
assertion effect. The court finds it not hearsay under Ire
eight oh one two text messages between four to twenty
two and four to twenty six am. The State argues
at the four minute series of text messages between DM
and BF, with one from DM to k Lee are
admissible as either present sense impressions or excited utterances. Defendants
(01:49):
suggest neither exception applies because there is no evidence they
were sufficiently startled by the events. He points out that
DM claimed only to be confused, and despite stating that
she was scared, she ran to bf's room instead of
leaving the house or otherwise calling other friends and family
for help. The court agrees with the state for those
texts qualifying as assertions. First, the present sense impression exception
(02:13):
does not require a startling event. It simply requires that
the speaker describe or explain a condition while personally perceiving
it or immediately thereafter. Most of DM's texts to BF
satisfy this exception. She first texts that no one is answering,
which describes the results of her calls to the other
roommates just moments before. She also states that she is
(02:34):
immediately feeling confused, freaked out, and scared over what she
saw and heard and the fact that none of her
roommates are answering. She further describes the intruder she saw
ie wearing a ski mask or something over his forehead
and mouth. She also relays that her phone is going
to die. Thus, these statements are all likely admissible as
present sense impressions. In addition, the events are sufficiently startling
(02:58):
to both DM and BF for purposes of the excited
utterance exception. DM and BF for young female college students
and are self described scaredy cats of the house. They
were awoken from sleep after a night of drinking, with
DM reporting that she heard noises and saw a masked
intruder in their home. None of the other roommates were
(03:18):
responding to their calls and texts further indicating something was amiss.
It would be potentially terrifying for anyone, including these young women,
to argue that they would have run out of the
house or called someone else for help had they really
been startled. Unempathetically ignored these circumstances and the trauma and
confusion they were evidently experiencing, which likely offset logical thought. Indeed,
(03:41):
the girl's fear and confusion is evident in their words,
with both questioning what was going on, DM stating that
she was freaked out, scared, and confused, and BF attempting
to get them together quickly for safety. They were clearly
under stress and attempting to make sense of the frightening situation. Additionally,
the time period that elapse between what DM saw and
(04:02):
her communication with BF about the same was a matter
of minutes. The text message exchange lasts approximately four minutes,
with the messages occurring in rapid succession. This timeline left
no time for the reflection or a fabrication, which is
ultimately what ire at three to one and at three
to two seek to protect against. Consequently, the court concludes
(04:24):
that the assertive text messages within this four minute period
are likely admissible as present sense impressions and or excited utterances,
assuming the requisite foundation is provided at the time of trial.
Three DM text of victims. At four thirty two fifty seven,
DM texted k Lee, please answer. The State argues that
(04:45):
this text is admissible as a present sense impression and
an excited utterance. Defendant does not directly address the text. However,
the court finds it is more of a command or
request than an assertion of fact. It is not a
fact capable of being proved true or false the US
it is not barred. At ten twenty three, DM texted
Madison asking are you up, and approximately an hour later,
(05:08):
DM texted Kaylee, are you up. The State argues that
the foregoing text are not hearsay because they will not
be introduced for the truth of the matter asserted. Alternatively,
the state contends they are present sense impressions because they
represent a consistency and continuation of DM's texts from the
prior night. Defendant disputes that the exception applies, pointing out
(05:31):
that DM had been awake and accessing social media before
she sent the texts. Again, the court does not find
these texts to be assertions. These are inquiries, not declarative statements,
even if they were assertions. However, the state intends to
admit the statements to establish a timeline of events. They
are not hearsay because they are not offered to establish
(05:53):
their truth. Therefore, they are not barred by Ire eight
oh one five DMS calls and texts and from others.
The state intends that text between DM and are dead.
The texts from JM and the vandal alert are not
hearsay because they will be offered simply to show a
timeline for the morning and early afternoon. In addition, the
(06:13):
state notes that the phone call from DM DEA is
not a statement and therefore not hearsay. The court agrees
and will allow the evidence for purposes of the timeline
if the requisite foundation is laid b verbal communication between
BF and DM. The state next contends that an intense
to ask DM and BF at trial about statements they
(06:34):
made to each other on November thirteenth, twenty twenty two.
It argues the testimony will likely replicate that provided by
these witnesses at the grand jury preceding. The state contends
they are admissible under the present sense impression and or
excited utterance exception defendant does not directly address the argument.
(06:54):
To the extent, DM and BF seek to testify about
the content of the calls, texts, and conversations about what
they perceived during the four to thirty time frame. They
could be potentially admissible under the exception cited by the state. However,
the state must establish the foundational requirements for such profited statements.
The grand jury testimony does not appear to include any
(07:15):
conversations between them after four nineteen am to four thirty
seven am time frame, and the State has not pointed
any out. Thus, to the extent they testified to oral
conversations they had after they woke up the next morning,
the court will reserve ruling and consider any hearsay objections
at that time. The nine to one one call. The
(07:36):
State intends that the entirety of the nine to one
one call should be admitted because the statements therein are
either non hearsay ie not admitted for the truth of
the matter asserted, or they are accepted from the hearsay
rule as present sense, impressions or excited utterances. Defendant generally
objects to its admission, but takes particular issue with three
statements within the call. The court finds defendant's objections these
(08:00):
specific statements well placed, but will allow the balance of
the call because the statements are either not assertions, not
admitted for their truth, and or accepted from the rule
as set forth and Exhibit B here. Two one initial statements.
The nine one one call begins with BF telling dispatch
something is happening. Something happened in our house and we
(08:21):
don't know what. This statement falls squarely within the present
sense impression. The exception given that BF was experiencing concern
that something was wrong with their roommates and HJ had
just instructed her to call nine to one one after
walking through the house. Thereafter, BF attempts to provide dispatch
with the address of the house before an unidentified female
(08:41):
speaker takes the phone and provides the address in bf's
phone number. This exchange is not offered for the truth
of the matter asserted, and therefore not barred by the
hearsay rule. Two female on one of our one of
the roommates who's passed out, and she was drunk last
night and she's not waking up. The state argues a
statement as a present sense impression because the female speaker
(09:04):
is describing the scene around her. However, as defendant points out,
the roommate at issue in the statement is Xana, the
only individual who experienced saw Xana unresponsive, where DMBF and HJ. Thus,
Defendant contends the exception does not apply because the female
speaker never saw Xana unresponsive and thus lacks firsthand knowledge
(09:25):
of the information contained in the statement. The inquiry here
turns on whether the event the female speaker is describing
or explaining is that Xena is unresponsive, as defendant contends,
or whether it is more generally, the scene unfolding at
the house, i e. That their friends saw Xana unresponsive.
The female speaker did not personally perceive the former, but
(09:46):
she did personally perceive the latter. When the words themselves
are considered, it's clear the event being described is that
Xana is unresponsive, not that the speaker's friends saw Xana unresponsive.
In other words, she is relayed to nine one one
what her friend observed and related to her. Her statement
is therefore outside the present sense impression, and thus the exception.
(10:08):
Thus the statement is not admissible under that exception. Three female, Oh,
they saw some men in their house last night. Yeah,
The state argues this statement is both a present sense
impression and an excited utterance because it is in response
to finding Xena unresponsive. Defendant responds that the statement references
an event DM saw eight hours prior to the nine
(10:31):
one one call and therefore is not contemporaneous. Defendant also
points out that the female speaker does not have personal
knowledge and is simply repeating what she's told by others.
The court agrees that the present sense impression exception does
not apply to the statement because the speaker is recounting
what someone else perceived. Additionally, there is no contemporarity since
(10:52):
she is describing an event that occurred hours earlier. The
excited utterance exception does not apply either. Instructive Here is
State Fox where to Idaho Supreme Court considered whether the
excited utterance exception applied to a nine to one one
call made by a man after he found a woman
screaming for help for her friend, whom she said had
(11:13):
just been pistol whit by a man who fled the scene.
The nine one one caller had not seen what had happened,
but relayed to dispatch what the victim told them about
the incident. The court held that the district Court erred
by admitting the nine one one caller's statements to dispatch
as excited utterances because the caller's voice was calm and
he had not experienced a startling event or condition. Here. Likewise,
(11:34):
the audio of the nine one one call does not
indicate that the speaker's normal reflective thought process were rendered inoperative.
Her voice sounds calm relative to bfs and dms. Although
a slight nervousness can be detected in her voice, she
is not audibly crying or breathing heavily. In fact, the
speaker took over speaking to dispatch because she was more
(11:54):
composed than BF, who initiated the call. Further, the speaker
did not personally see Xana unresponsive, nor did she see
the man allegedly in the house. She is simply repeating
what others told her, so the statement does not provide
insight into her own thought process. Consequently, the statement must
be redacted for DM's attempts to explain events. After the
(12:16):
female speakers seedes the phone to DM, DM identifies herself
and asks if she can tell Dispatch what happened. Dispatch
responds by asking what is going on and if someone
is passed out, this exchange will not be offered for
the truth of the matter asserted, and therefore is not hearsay. However,
DM then states, I don't really know, but pretty much
at four am. The state argues this statement is a
(12:39):
present sense impression and or excited utterance because DM is
trying to explain to the dispatcher what she saw while
under the current excitement of realizing that her roommate is
not waking up and something could be wrong in the house.
Defendant disagrees. Noting the event, DM begins to describe what
occurred eight hours prior. He further argues it is not
(13:00):
an excited utterance because she and BF had several hours
to reflect on what she had seen and experienced at
four am. Defendant is correct that the statement does not
qualify as a present sense impression. While DM personally perceived
the event, she is beginning to describe the contemporanity aspect
is missing. She is attempting to narrate an event she
(13:22):
saw eight hours earlier. The excited utterance exception does not
apply either. While DM is no doubt under the stress
of excitement caused by realizing Xana is unresponsive, her reflexive
thought processing appears intact. She is starting to draw connections
between Xanna being unresponsive and what she saw and heard
eight hours prior, something she has had time to reflect upon.
(13:45):
She does not launch spontaneously into what she saw at
four am. Rather, she asks the dispatcher if she can
explain what she saw. Based on this exchange, it's clear
her powers of reflection are quite active, thus obviating the
purpose behind the exception. The statement is therefore not admissible
and must be redacted statements regarding Xana. Dispatch then instructs
(14:06):
DM to find out if someone passed out. DM appears
to make statements to a bystander that they have to
go check if Xana passed out. This is not offered
by the state for the truth of the matter and
therefore not hearsay. DM then states that Xana is not
waking up. HJ has heard stating Xana in the background.
These are squarely present sense impressions because they are describing
(14:27):
what the speakers are seeing. DM then responds to dispatch
inquiry about Xana's age, again not offered for the truth
of the matter asserted before HJ takes the phone and
confirms that Xana is not breathing. This is also a
present sense impression and also likely falls within Ire eight
oh three four six statements. After law enforcement arrived. Around
(14:49):
the time HJ confirmed to dispatch that Xana was not breathing,
law enforcement had arrived on scene, HJ can be heard
telling DM, I need you to talk to them. I
can't talk to them. I need you to talk to them.
The court finds this admissible as either a present sense
impression or excited utterance. HJ had discovered Zana's body moments before.
He is operating under the stress of the discovery and
(15:12):
attempting to answer dispatch questions. His statements described as inability
to speak to law enforcement at the moment and therefore
are admissible. At that point, DM took the phone again
and Dispatch instructed her to get a defibrillator if one
was available. DM as Dispatch to repeat the question and stated,
there's a police here right now. After Dispatch repeated the question,
(15:34):
DM indicated that they did not have a defibrillator and
ask the responding officer if he did. The officer responded affirmatively,
after which Dispatch indicated she was going to let the
officer take over and ended the call. To the extent
the state seeks to admit the statements by DM for
their truth. They qualify as present sense impressions, as DM
is explaining the events as are happening. They also are
(15:57):
likely admissible under Ire eight oh three four in so
far as they regard the defibrillator. Finally, many of the
statements are not assertions and thus not hearsay. Seven cry
and breathing heaving is not hearsay. Apart from statements, the
state also moves for admission of the audible crying, breathing
and heavy heaving made by the nine one one callers.
(16:19):
Defendant does not address the argument, and the court finds
it well placed. While assertive conduct can qualify as hearsay,
non assertive conduct does not. There is no indication the
nine one one call that the speakers are intending to
make assertions through their crying and heavy breathing. It's clearly
an involuntary response to the circumstances. Further, it's relevant to
(16:42):
show the stress and emotional impact the girls are under,
which puts the call into context. Thus it is admissible
d The transcript of the nine one one call will
be allowed as a demonstrative evidence. The final issue is
whether to allow the jury to view the official transcript
of the nine one one call while listening to the
defendant contends it could be cumulative and asks that either
(17:04):
the call or the transcript be allowed, but not both.
The court uws this issue as essentially a request for
use of the transcript as a demonstrative aid. A demonstrative
exhibit is relevant if it supplements the testimony of witnesses
or assists the jury in obtaining a better understanding of
facts an issue. Transcripts are widely used as demonstrative aids
(17:26):
to help the jury understand contents of audio recordings. When
used in this way, courts will typically instruct the jury
that the transcript is not evidence independent of the audio recording,
and if the jury determines that the transcript is incorrect,
it should disregard it to the extent and rely on
its own interpretation of the audio recording. In addition, the
(17:46):
transcript must be authenticated by showing that it fully inaccurately
complies with the audio recording. Against this background, the court
will permit a transcript of the nine one one call
to be used as a demonstrative aid, Assuming the proper
foundation one for nine one one call is established and
the transcript is properly authenticated. To this end, the state
is responsible for proposing an appropriate jury instruction. The transcript
(18:10):
will not be admitted as substantative evidence and will not
be available to the jury except when the nine one
one call is being played, including during deliberations, because it
is not going to be used as evidence. The Court
does not find that the transcript is cumulative to the
nine one one audio or otherwise prejudicial to defendant order
based on the foregoing, the State's motion in Lemona Text,
(18:33):
Messages and testimony is granted in part and reserved in part.
The State's motion in Lemona nine one one call is
granted in part and denied in part and reserved in part.
This document was signed on April twenty fourth of twenty
twenty five, and it was signed by Judge Hipler. All
of the information that goes with this episode can be
found in the description box.
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