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Murder In Moscow: The State Of Idaho And The Admission Of The 9-11 Call Into Evidence · Beyond The Horizon

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  Speaker 1: What's up everyone and welcome back to the program. In
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  Speaker 1: this episode we're headed right back up to Moscow and
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  Speaker 1: this time we're going to take a look at something
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  Speaker 1: that everybody's been pining to take a look at for
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  Speaker 1: quite some time. And that is the 911 call that
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  Speaker 1: was made about 8 hours after the murders. So let's
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  Speaker 1: dive in and see if we can get some context.
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  Speaker 1: Case number CR01-24-31665 State of Idaho Plaintiff, Brian C. Kohlberger,
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  Speaker 1: the defendant. Comes now, the State of Idaho, by and
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  Speaker 1: through the Latah County Prosecuting Attorney, and respectfully moves the
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  Speaker 1: court for an order in Lameen, allowing the state to
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  Speaker 1: admit the recording and transcript of the 911 call to
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  Speaker 1: WITCOM on November 13, 2022. The 911 recording was discovered
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  Speaker 1: as AV-00002, and the transcript was discovered as Bates-12422-0022. The
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  Speaker 1: facts pertinent to the issue raised by this motion can
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  Speaker 1: be found in the attached excerpts from the grand jury transcript,
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  Speaker 1: the 911 call recording, and the transcript of the 911 call.
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  Speaker 1: The statements on the 911 call are hearsay but fall
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  Speaker 1: within the firmly rooted hearsay exceptions and should be allowed.
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  Speaker 1: In general, testimony that is hearsay is excludable at trial. However,
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  Speaker 1: there are many exceptions to this rule. Two firmly rooted
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  Speaker 1: exceptions are Idaho Rule of Evidence 803.1 Present Sense Impression
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  Speaker 1: A statement describing or explaining an event or condition made
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  Speaker 1: while or immediately after the declarant perceived it. Idaho Rule
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  Speaker 1: of Evidence 803.2 Excited Utterance A statement relating to a
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  Speaker 1: startling event or condition made while the declarant was under
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  Speaker 1: the stress of excitement that it caused. The requirements of
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  Speaker 1: the federal version of each of these rules are best
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  Speaker 1: stated in U.S. v. Mitchell. There are three principal requirements
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  Speaker 1: which must be met before hearsay evidence may be admitted
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  Speaker 1: as a present-sense impression. 1. The declarant must have personally
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  Speaker 1: perceived the event described. 2. The declaration must be an
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  Speaker 1: explanation or description of the event rather than a narration. 3.
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  Speaker 1: The declaration and the event described must be contemporaneous. The
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  Speaker 1: requirements for hearsay statement to constitute an excited utterance are 1.
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  Speaker 1: a startling occasion, 2. a statement relating to the circumstances
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  Speaker 1: of the startling occasion, 3. a declarant who appears to
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  Speaker 1: have had opportunity to observe personally the events, and 4.
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  Speaker 1: a statement made before there has been time to reflect
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  Speaker 1: and fabricate. In Idaho, the Court of Appeals viewed the
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  Speaker 1: requirements for excited utterance as follows. To fall within the
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  Speaker 1: excited utterance exception, an out-of-court statement must meet two requirements. First,
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  Speaker 1: there must be a startling event that renders inoperative the
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  Speaker 1: normal reflective thought process of the observer, and the second,
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  Speaker 1: the declarant's statement must be a spontaneous reaction to the
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  Speaker 1: event rather than the result of reflective thought. Whether a
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  Speaker 1: statement falls within the excited utterance exception is left to
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  Speaker 1: the sound discretion of the trial court. In ruling on
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  Speaker 1: the admissibility of a statement, under the excited utterance exception,
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  Speaker 1: the trial court considers the totality of circumstances surrounding the
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  Speaker 1: statement The circumstances to be considered include the amount of
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  Speaker 1: time that's elapsed between the startling event and the statement,
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  Speaker 1: the nature of the condition of the event, the age
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  Speaker 1: and condition of the declarant, the presence or absence of self-interest,
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  Speaker 1: and whether the statement was volunteered or made in response
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  Speaker 1: to a question. Calls to 911 can also be deemed
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  Speaker 1: present sense impressions and or excited utterances. Hearsay statements on
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  Speaker 1: a 911 tape can be admitted into evidence as either
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  Speaker 1: public record, FedR Evidence 803-8B, or a business record, FedR
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  Speaker 1: Evidence 803-6, C.U.S. v. Sollins, 993, 3rd Circuit, 1993. Noting
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  Speaker 1: that a 911 tape itself is probably a public record, U.S. v. Smith, 521, D.C.
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  Speaker 1: Circuit Court, 1975. Finding that police radio broadcasts or business records, However,
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  Speaker 1: because citizens who call 911 are not under any duty
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  Speaker 1: to report, FED R.E.V. 803.8b, a recorded statement by a
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  Speaker 1: citizen must satisfy a separate hearsay exception. See FED R.E.V.
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  Speaker 1: 805 U.S. v. PASNET, 1983. Excluding tapes of emergency calls
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  Speaker 1: from witness reporting defendant's assault of an IRS agent, Salins 993.
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  Speaker 1: Excluding 911 statement, that person matching defendant's description was holding
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  Speaker 1: a gun. Under certain circumstances, such a statement may qualify
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  Speaker 1: as either a present-sense impression, FedR Evidence 803, or an
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  Speaker 1: excited utterance, FedR Evidence 803-2. See U.S. v. Meja Velez, 855,
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  Speaker 1: EDNY 1994. Admitting, under either exception, a tape of 911
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  Speaker 1: call made by an eyewitness immediately following a shooting... United
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  Speaker 1: States v. Campbell, 782. Northern District of Illinois, 1991. Admitting
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  Speaker 1: under either exception a 911 tape of an eyewitness's description
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  Speaker 1: of a gunman. Bemis v. Edwards. Ninth Circuit, 1995. See
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  Speaker 1: also State v. Valverde. 128 Idaho 237. Idaho Appeals, 1996.
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  Speaker 1: Eight-year-old victim's statements to paramedic during 911 phone call made
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  Speaker 1: within approximately one half hour of last lewd act were admissible.
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  Speaker 1: underexcited utterance exception to hearsay rule, victim was in obvious
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  Speaker 1: distress and lapse of time, was not so great as
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  Speaker 1: to render exception inapplicable. In the case at bar, most
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  Speaker 1: of the declarations made were present sense impressions. H.J. located
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  Speaker 1: the unresponsive body of Zanna Kernodle and informed B.F. and D.M.
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  Speaker 1: to call 911. E.A. was present at the time. All
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  Speaker 1: declarants personally perceived the event, i.e. Kernodle, unresponsive, The majority
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  Speaker 1: of the declarations were describing to dispatcher Carolina Calvin what
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  Speaker 1: they were perceiving, i.e. present sense impressions. Those statements relate
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  Speaker 1: to Kernodle being passed out and not waking up. The
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  Speaker 1: declarations were made immediately after H.J. discovered Kernodle's body. Some
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  Speaker 1: declarations made would be considered excited utterances. Those statements include, oh,
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  Speaker 1: and they saw some man in their house last night, yeah,
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  Speaker 1: as well as the heaving, breathing, and crying that can
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  Speaker 1: be heard throughout the call. The declarants were responding to
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  Speaker 1: a startling occasion, discovery of an unresponsive roommate. The statement
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  Speaker 1: regarding a person being in the home is in direct
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  Speaker 1: response to why Kernodle might be passed out. All statements
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  Speaker 1: are made while the declarants are processing what is happening
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  Speaker 1: and were made before an opportunity to reflect and fabricate
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  Speaker 1: why Kernodle is unconscious. Clearly, the statements of BF, DM, EA, HH,
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  Speaker 1: and the dispatcher Carolina Calvin fall within the hearsay rule exception.
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  Speaker 1: Judge John Judge has already ruled that the 911 call
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  Speaker 1: is not hearsay, i.e. not offered for the truth of
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  Speaker 1: the matter asserted, and even if deemed hearsay, the exception
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  Speaker 1: for present sense impression and excited utterance apply. On August 23, 2023,
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  Speaker 1: defendant moved to dismiss the grand jury indictment. One basis
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  Speaker 1: for that motion was the 911 call was improperly admitted, hearsay, cumulative, irrelevant,
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  Speaker 1: and an improper attempt to bolster witness testimony. In response,
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  Speaker 1: Judge John Judge held as follows. Further, even if the
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  Speaker 1: 911 call is hearsay, the exception for present-sense impression and
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  Speaker 1: excited utterance apply, as the statements made by the callers, i.e.
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  Speaker 1: surviving roommates, H.J., and another friend who had arrived, were
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  Speaker 1: made immediately after H.J. discovered Ms. Kernodle's body and instructed
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  Speaker 1: the roommates to call 911. IRE 803-1 and 803-2. Eastside
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  Speaker 1: Highway District v. Delavan 167. 2019. The rationale justifying the
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  Speaker 1: present sense impression exception is that immediacy of the statement
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  Speaker 1: offers no opportunity for fabrication. State v. Petit, 122 Idaho, 809, 1992.
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  Speaker 1: Finding statements made were excited utterances because victim was still
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  Speaker 1: under the stress of the event. Sealed order denying motion
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  Speaker 1: to dismiss indictment on grounds of biased grand jury, inadmissible evidence,
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  Speaker 1: lack of sufficient evidence, and prosecutorial misconduct. Pages 18 and
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  Speaker 1: 19 filed 12-15-2023. Regarding the emotion in the caller's voices,
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  Speaker 1: Judge Judge further held that the evidence was relevant as
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  Speaker 1: to why law enforcement was sent to 11-22 King Road
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  Speaker 1: on November 13, 2022, as opposed to just EMS, when
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  Speaker 1: the call was for an unconscious individual. The testimony was
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  Speaker 1: deemed relevant to the effect it had on Dispatcher Calvin
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  Speaker 1: and was not cumulative of Officer Nunez's testimony. B. The
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  Speaker 1: statements made on the 911 call are admissible regardless of
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  Speaker 1: whether or not witness testifies. Under IRE 803, present sense
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  Speaker 1: impression and excited utterances are admissible whether or not the
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  Speaker 1: declarant is available as a witness. Any statements found outside
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  Speaker 1: of the above exceptions to hearsay are non-testimonial for purposes
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  Speaker 1: of a Crawford analysis. Further, even if somehow deemed testimonial,
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  Speaker 1: the Confrontation Clause of the Sixth Amendment does not bar
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  Speaker 1: their admission. Finally, we reiterate that when the declarant appears
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  Speaker 1: for cross-examination at trial, the Confrontation Clause places no constraints
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  Speaker 1: at all on the use of his prior testimonial statements.
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  Speaker 1: See California's v. Green, 399 U.S. 149, 16290 Supreme Court, 1930, 26L. ED. 2D, 489, 1970.
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  Speaker 1: It is therefore irrelevant that the reliability of some out-of-court
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  Speaker 1: statements cannot be replicated in Even if the declarant testifies
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  Speaker 1: to the same matter as in court, Post Act 1377, U.S. v. Anati, 475, 1986.
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  Speaker 1: The clause does not bar admission of a statement as
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  Speaker 1: long as the declarant is present at trial to defend
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  Speaker 1: or explain it. Crawford v. Washington, 2004. The state submits
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  Speaker 1: if any of the declarations made or deemed testimonial, each
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  Speaker 1: of the declarations will testify at trial. Conclusion Based on
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  Speaker 1: the above cited authority, the state respectfully prays for the
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  Speaker 1: court's approval in the mean of the admission of the
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  Speaker 1: recordings and transcripts of 911 call to WITCOM on November 13th, 2022,
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  Speaker 1: immediately following the discovery of Zanacur Notal's unresponsive body at
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  Speaker 1: 1122 King Road. Respectfully submitted this 24th day of February
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  Speaker 1: and signed by Ashley Jennings. If you'd like to contact me,
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  Speaker 1: you can do that at bobbycapucci at protonmail.com That's B-O-B-B-Y-C-A-P-U-C-C-I
• 11:18
  Speaker 1: at protonmail.com. Or if you prefer, you can find me
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  Speaker 1: on X at B-O-B-B-Y underscore C-A-P-U-C-C-I. All of the links
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  Speaker 1: that go with this episode can be found in the
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  Speaker 1: description box.