Latest / Beyond The Horizon / Mega Edition: Judge Hippler And The Order On the 9-11 Call (8/30/26)

Transcript

Mega Edition: Judge Hippler And The Order On the 9-11 Call (8/30/26) · Beyond The Horizon

• 0:01
  Speaker 1: What's up everyone and welcome back to the program. Since
• 0:06
  Speaker 1: yesterday and the last time we were together talking about
• 0:09
  Speaker 1: this topic, the murders in Moscow, there have been a
• 0:13
  Speaker 1: few developments and a few different corrections that most certainly
• 0:17
  Speaker 1: need to be discussed. One of those corrections is the
• 0:20
  Speaker 1: girls didn't get a ride home from an Uber driver.
• 0:23
  Speaker 1: It was a personal private car. And the person that
• 0:28
  Speaker 1: was driving this car Well, the police found them and
• 0:31
  Speaker 1: they ruled this person out as well. So we were
• 0:35
  Speaker 1: hearing that it was an Uber driver previously. And now
• 0:38
  Speaker 1: we have the clarification that it was not an Uber driver.
• 0:42
  Speaker 1: We also are getting some information about who made that
• 0:45
  Speaker 1: 911 call. So let's get to this article and let's
• 0:49
  Speaker 1: just dive right in and get ourselves caught up as
• 0:52
  Speaker 1: of this morning. This article is from KHQ. A local
• 0:58
  Speaker 1: station up in Idaho. Headline. Moscow PD. Called to 911.
• 1:04
  Speaker 1: Made from inside the residence. Driver who took girls home.
• 1:08
  Speaker 1: Ruled out as a suspect. So pretty much back to
• 1:11
  Speaker 1: square one. Right? Driver not involved. The dude by the
• 1:18
  Speaker 1: food truck. Not involved. Ex-boyfriend ruled out. Roommates not suspects.
• 1:25
  Speaker 1: So basically back to square one. thinking that maybe the
• 1:29
  Speaker 1: person who dropped them off could have had some clues
• 1:31
  Speaker 1: or been involved, perhaps. Nope. So investigators, they're still pleading
• 1:35
  Speaker 1: with the public as they go through their investigation and
• 1:39
  Speaker 1: try and put these pieces together. This article was authored
• 1:43
  Speaker 1: by Amanda Smith. Moscow Police Department has released new details
• 1:49
  Speaker 1: regarding the investigation of four murdered University of Idaho students
• 1:54
  Speaker 1: on Sunday, November 13th. Detectives are calling businesses and residences
• 2:00
  Speaker 1: in the area for any outdoor surveillance footage from between
• 2:04
  Speaker 1: 3 to 6 a.m. on November 13th, whether there appears
• 2:08
  Speaker 1: to be motion or content in the footage or not.
• 2:12
  Speaker 1: So this is what I thought they'd be doing and
• 2:14
  Speaker 1: what we discussed right away. This is standard procedure at
• 2:17
  Speaker 1: this point. With the way technology is these days, and
• 2:20
  Speaker 1: how many people have like ring cameras or basic CCTV
• 2:24
  Speaker 1: at their house, there's always some kind of surveillance, well,
• 2:28
  Speaker 1: majority of the time, of people who are out here creepin'.
• 2:32
  Speaker 1: Recently we had a case in Las Vegas where an
• 2:35
  Speaker 1: elected official murdered a journalist, and it was via this
• 2:38
  Speaker 1: CCTV footage that they were able to piece things together
• 2:42
  Speaker 1: and arrest this guy. So my guess is that we're
• 2:45
  Speaker 1: gonna see something like that here eventually. The areas of
• 2:51
  Speaker 1: interest include West Taylor Avenue, North Boundary, West Palouse River Drive,
• 2:56
  Speaker 1: South Boundary, Highway 95 South to the 2700 block of
• 3:00
  Speaker 1: Highway 95 South, East Boundary, and the Botanical Garden, West Boundary.
• 3:05
  Speaker 1: And when you click on the link in the description box,
• 3:08
  Speaker 1: it'll show you a map of the grid where the
• 3:10
  Speaker 1: police are working here. Anyone who believes they may have
• 3:14
  Speaker 1: information relating to the case, including observations of suspicious behavior,
• 3:19
  Speaker 1: Surveillance footage or other relevant information should call 208-883-7180. That
• 3:27
  Speaker 1: number again, 208-883-7180. Investigation into the murder of four University
• 3:36
  Speaker 1: of Idaho students on Sunday, November 13th continues, though details
• 3:41
  Speaker 1: remain sparse for both the public and the victims' families.
• 3:46
  Speaker 1: Autopsies were conducted by the Spokane County Medical Examiner's Office
• 3:51
  Speaker 1: on Wednesday and sent to the Latah County Coroner, reporting
• 3:54
  Speaker 1: the students had died due to multiple stab wounds. The
• 3:58
  Speaker 1: coroner determined the four were likely asleep before the attack,
• 4:01
  Speaker 1: though some had defensive wounds. There were no signs of
• 4:05
  Speaker 1: sexual assault and the bodies were released to the families.
• 4:09
  Speaker 1: So my guess is, and again, just a guess, they
• 4:14
  Speaker 1: were sleeping like the coroner says here, And when they
• 4:16
  Speaker 1: got attacked, obviously a couple of them woke up and
• 4:19
  Speaker 1: fought back. And that's what the defensive wounds tell us. Hopefully,
• 4:24
  Speaker 1: underneath the fingernails, we have some DNA evidence. That way,
• 4:28
  Speaker 1: it could lead us to the person who did this
• 4:30
  Speaker 1: or the persons who did this. Because if you have
• 4:32
  Speaker 1: that kind of evidence, right, DNA evidence, that's pretty much
• 4:35
  Speaker 1: an ironclad case. And when you have that kind of evidence,
• 4:40
  Speaker 1: usually you get a conviction. So I'm hoping that when
• 4:43
  Speaker 1: they were fighting back that they happened to scratch this
• 4:46
  Speaker 1: person or get some DNA under their fingernails, whatever it
• 4:50
  Speaker 1: might be, and then that DNA can be traced back
• 4:53
  Speaker 1: and used to put together a case against this person.
• 4:58
  Speaker 1: The victims, 20-year-old Ethan Chapin, and Zanna Kernodle, and 21-year-olds
• 5:04
  Speaker 1: Madison Mogan and Kaylee Goncalves were discovered around noon on
• 5:08
  Speaker 1: Sunday in shared student housing near the U of I
• 5:12
  Speaker 1: campus following a report of an unconscious person that was
• 5:16
  Speaker 1: called into 911. Now, they're saying that the 911 call
• 5:21
  Speaker 1: was made by one of the roommates who survived, and
• 5:25
  Speaker 1: it's still weird for me, and I have questions here.
• 5:29
  Speaker 1: Because something just doesn't add up. I mean, an unconscious
• 5:33
  Speaker 1: person is the report that the 911 operator gets. Not
• 5:38
  Speaker 1: that there's dead people in my house. So, obviously, we're
• 5:40
  Speaker 1: going to have to wait for more here. More context,
• 5:43
  Speaker 1: more confirmation, more clarity. Because it doesn't make sense. The FBI,
• 5:51
  Speaker 1: the Latah County Sheriff's Office, and Idaho State Police have
• 5:55
  Speaker 1: joined Moscow Police Department in the investigation. While the full
• 5:59
  Speaker 1: timeline leading up to the attacks is still being pieced together,
• 6:02
  Speaker 1: investigators have determined some of the victims' activities the night
• 6:06
  Speaker 1: before the murder. According to MPD chief James Fry, Goncalves
• 6:12
  Speaker 1: and Mogan were seen on November 12th at the Corner
• 6:15
  Speaker 1: Club on North Main Street, a local bar, where they
• 6:18
  Speaker 1: stayed between 10 p.m. and 1.30 a.m. At around 1.40 a.m.,
• 6:23
  Speaker 1: they were captured on video at a food vendor called
• 6:26
  Speaker 1: The Grub Truck at 318 South Main Street before they
• 6:29
  Speaker 1: caught a ride with a private party to their residence
• 6:32
  Speaker 1: at 1122 King Road, arriving back at 1.45 a.m. And
• 6:38
  Speaker 1: now we also know from earlier articles that the owner
• 6:43
  Speaker 1: of the bar where the other two were hanging out
• 6:46
  Speaker 1: at He's cooperating with the police as well and says
• 6:49
  Speaker 1: that he has a good working relationship with the police.
• 6:52
  Speaker 1: So hopefully we can get some more, you know, information
• 6:56
  Speaker 1: as far as if they ran into anybody at that bar,
• 7:00
  Speaker 1: an altercation maybe. Who the hell knows? But at this point,
• 7:03
  Speaker 1: you have to look at everything, right? You can't let
• 7:05
  Speaker 1: anything slip through the net. As an investigator, everything has
• 7:09
  Speaker 1: to be on the table. Investigators are hoping to fill
• 7:14
  Speaker 1: the gaps of the timeline leading up to the attack
• 7:17
  Speaker 1: and have set up a tip line and email to help.
• 7:21
  Speaker 1: Over 500 tips have been called in already, and investigators
• 7:24
  Speaker 1: have conducted 38 interviews with people with potential information. So
• 7:29
  Speaker 1: that's good, right? The more information that they have, the better,
• 7:32
  Speaker 1: because this person or persons, they need to be captured quickly.
• 7:37
  Speaker 1: This is getting a little out of hand now. We're
• 7:40
  Speaker 1: a week now. This person needs to be captured and
• 7:44
  Speaker 1: brought to justice, and the community as a whole needs
• 7:47
  Speaker 1: to be given a peace of mind, and these kids
• 7:49
  Speaker 1: that are going to school there, they need to be
• 7:51
  Speaker 1: able to focus on going to school, not worried about
• 7:53
  Speaker 1: some psychopath running around with a K-bar knife killing people.
• 7:59
  Speaker 1: While many are speculating online regarding the incident, despite pleas
• 8:02
  Speaker 1: from the victims' families to stop, a number of suspects
• 8:05
  Speaker 1: have been ruled out by MPD. MPD states they believe
• 8:10
  Speaker 1: neither the two surviving roommates nor the man seen standing
• 8:14
  Speaker 1: behind the two girls of the food truck were involved.
• 8:18
  Speaker 1: They also state online reports of the victims being bound
• 8:21
  Speaker 1: and gagged are not accurate. I never even seen that
• 8:24
  Speaker 1: report of them being bound and gagged. I honestly never
• 8:27
  Speaker 1: seen any reports of anything like that. But I will
• 8:29
  Speaker 1: say I don't spend too much time diving into conspiracy
• 8:32
  Speaker 1: theories or that speculation or anything like that. I spend
• 8:36
  Speaker 1: my time usually reading articles, as many as I can,
• 8:39
  Speaker 1: about the topic, and then we just use that as
• 8:41
  Speaker 1: our template. Now, it doesn't mean I'm not keeping an
• 8:44
  Speaker 1: eye on other things, but until it's picked up on
• 8:48
  Speaker 1: and reported by authorities or in the media, a lot
• 8:51
  Speaker 1: of times I'll just store it for later so we
• 8:53
  Speaker 1: can pick up on it when it does become part
• 8:56
  Speaker 1: of the mainstream conversation. We all have social media. We
• 9:00
  Speaker 1: see all the comments. The misinformation being spread is unfair
• 9:03
  Speaker 1: to everyone involved, said the Goncalves family. And that's why
• 9:06
  Speaker 1: I use the template that I use here. There's enough
• 9:09
  Speaker 1: screaming into the wind in the Internet on these forums
• 9:12
  Speaker 1: and elsewhere that I'm just not going to contribute to it.
• 9:15
  Speaker 1: I feel like my time is better served curating these
• 9:18
  Speaker 1: stories and talking about them the way we do. And,
• 9:20
  Speaker 1: you know, putting the pieces together via the information that
• 9:24
  Speaker 1: is officially given to us by the authorities. Now, that's
• 9:27
  Speaker 1: not saying there isn't a place for speculation and for
• 9:30
  Speaker 1: people to come up with. There is. It's just not
• 9:33
  Speaker 1: something that I do usually. As part of the investigation,
• 9:38
  Speaker 1: detectives seized the contents of three dumpsters on King Road
• 9:41
  Speaker 1: to search for possible evidence. Local businesses have also been
• 9:45
  Speaker 1: contacted to see if a fixed blade knife has recently
• 9:48
  Speaker 1: been purchased. DNA samples have been collected and are pending testing.
• 9:54
  Speaker 1: Regarding the lack of information to the public and families,
• 9:57
  Speaker 1: Fry stated when it comes down to the integrity of
• 9:59
  Speaker 1: the case, when you're dealing with forensic stuff, it doesn't
• 10:02
  Speaker 1: happen immediately. He explained, we're doing the fastest job, but
• 10:07
  Speaker 1: the most thorough job we can to hold the integrity
• 10:10
  Speaker 1: of this case and maintain that. Fry also stated plenty
• 10:13
  Speaker 1: of security will be in the area when U of
• 10:16
  Speaker 1: I students return to the area following Thanksgiving break. A
• 10:20
  Speaker 1: vigil will be held on Wednesday, November 30th on the
• 10:23
  Speaker 1: university's campus. So the most important bit of information that
• 10:28
  Speaker 1: we're getting from this article is the fact that The
• 10:31
  Speaker 1: phone call, the 911 phone call, is confirmed now to
• 10:35
  Speaker 1: be made by one of the surviving roommates. Which one?
• 10:38
  Speaker 1: They haven't said. But there's still so many questions around that, right?
• 10:43
  Speaker 1: Because there's not that much clarity here. They're not giving
• 10:45
  Speaker 1: us that much information. All they're saying is one of
• 10:47
  Speaker 1: the roommates called 911. But we don't have any story about,
• 10:52
  Speaker 1: you know, how this all came about. And I think
• 10:54
  Speaker 1: that's what people are looking for. An actual timeline of
• 10:57
  Speaker 1: what went down in this house. So we're starting to
• 11:00
  Speaker 1: find out a little bit more about where these kids
• 11:03
  Speaker 1: were murdered, right? In their beds, in their bedrooms. But
• 11:07
  Speaker 1: we don't have a full buildup or a full workup,
• 11:10
  Speaker 1: if you will, about the crime scene itself or about
• 11:13
  Speaker 1: what went down with these roommates. Because obviously this is
• 11:16
  Speaker 1: the most crucial part for me. The two things that
• 11:19
  Speaker 1: stand out the most so far with the stuff we've
• 11:22
  Speaker 1: read here, the articles we've went over, the mystery man
• 11:24
  Speaker 1: named Jack and the... Disconnect here with the two surviving
• 11:30
  Speaker 1: roommates as far as you know what they know what
• 11:33
  Speaker 1: they might have heard What the the story is behind
• 11:36
  Speaker 1: them not making the call to 9-1-1 till 1159 the
• 11:39
  Speaker 1: next day You know all of that stuff and now
• 11:42
  Speaker 1: that doesn't make them suspects by any stretch of the
• 11:45
  Speaker 1: imagination But to build a more robust picture here a
• 11:51
  Speaker 1: more colorful picture we have to have all of the
• 11:53
  Speaker 1: information and all of the context and But I think
• 11:57
  Speaker 1: it's significant that we can rule out that it was
• 12:00
  Speaker 1: the driver who drove them home. At least as far
• 12:03
  Speaker 1: as right now, according to the police, because yesterday when
• 12:07
  Speaker 1: we were talking, that was another point that I was making.
• 12:09
  Speaker 1: Who's this mystery driver who drove them home? It wasn't
• 12:12
  Speaker 1: an Uber. If it was an Uber, they would have
• 12:14
  Speaker 1: been able to track it right away. But it was
• 12:16
  Speaker 1: a private party. So they have ruled that private party
• 12:19
  Speaker 1: out now. They say the girls aren't suspects. And we're
• 12:23
  Speaker 1: back to square one, basically. Now, I know there was
• 12:27
  Speaker 1: some forensics being done at the house. They were measuring
• 12:31
  Speaker 1: tire prints for cars to try and match up tires
• 12:34
  Speaker 1: with another vehicle if they nail somebody. But besides that,
• 12:38
  Speaker 1: that's pretty much where we're at, folks. And I wanted
• 12:41
  Speaker 1: to make sure that we got this one out early
• 12:42
  Speaker 1: this morning, got caught up, and we're, you know, on
• 12:46
  Speaker 1: top of things. That way, when more information comes in
• 12:49
  Speaker 1: later on, we can jump right back in and get
• 12:52
  Speaker 1: cracking once again. Because I have way too many questions
• 12:56
  Speaker 1: in this story, and this is one of those stories that, like,
• 12:59
  Speaker 1: I keep thinking about when I'm not even here on
• 13:01
  Speaker 1: the podcast. Like, I was sitting around watching football yesterday,
• 13:05
  Speaker 1: and I couldn't help myself but to check articles and
• 13:07
  Speaker 1: to check headlines. I want some justice for these families,
• 13:11
  Speaker 1: and I want this piece of garbage or pieces of
• 13:13
  Speaker 1: garbage to be captured. This sort of stuff is just
• 13:17
  Speaker 1: beyond gross and beyond the pale. And anyone capable of
• 13:22
  Speaker 1: doing this shouldn't be part of our society. So let's
• 13:25
  Speaker 1: hope the next episode I'm coming here and telling you
• 13:28
  Speaker 1: that these pieces of trash, these scumbag pieces of garbage
• 13:32
  Speaker 1: were captured and that they're about to face the justice
• 13:36
  Speaker 1: that they so deserve. Let's hope that's the next episode.
• 13:39
  Speaker 1: But I'll be here either way. And when new information
• 13:42
  Speaker 1: pops up, we'll definitely add it to the catalog and
• 13:45
  Speaker 1: keep it going. All right, everybody, have a great Sunday morning,
• 13:48
  Speaker 1: and I will talk to you in a little while.
• 13:50
  Speaker 1: If you'd like to contact me, you can do that
• 13:52
  Speaker 1: at bobbycapucci at protonmail.com. That's B-O-B-B-Y-C-A-P-U-C-C-I at protonmail.com. You can
• 14:00
  Speaker 1: also find me on Twitter at B-O-B-B-Y underscore C-A-P-U-C-C-I. The
• 14:07
  Speaker 1: link that I discussed can be found in the description box.
• 14:12
  Speaker 1: What's up, everyone, and welcome back to the program. In
• 14:15
  Speaker 1: this episode, we're swinging right back up to Moscow, and
• 14:18
  Speaker 1: we're going to take a look at Judge Hippler's order
• 14:20
  Speaker 1: on the state's motion in limine, text messages, and the
• 14:23
  Speaker 1: 911 call. Case number CR01-24-31665. State of Idaho Plaintiff. First,
• 14:32
  Speaker 1: Brian C. Kohlberger, the defendant. Introduction. DM and BF are
• 14:37
  Speaker 1: the two surviving roommates of 1122 King Road. At the time,
• 14:40
  Speaker 1: the homicides were believed to have occurred. DM. saw a
• 14:43
  Speaker 1: masked intruder in the house and began calling and texting
• 14:46
  Speaker 1: the other roommates, including BF. Approximately eight hours after DM
• 14:51
  Speaker 1: saw the intruder, BF called 911 from her phone. Before
• 14:55
  Speaker 1: the court is the state motion to allow the text
• 14:57
  Speaker 1: messages by DM and BF, testimony about their conversations with
• 15:02
  Speaker 1: each other, about what DM saw, and the 911 call.
• 15:06
  Speaker 1: The state argues that these communications are either not hearsay
• 15:10
  Speaker 1: or qualify under one or more exception to the hearsay rule.
• 15:14
  Speaker 1: It also asks that a transcript of the 911 call
• 15:16
  Speaker 1: be provided to the jury to view while listening to
• 15:19
  Speaker 1: the audio. Defendant challenges several of the communications and objects
• 15:23
  Speaker 1: to the use of the transcript. Oral argument on the
• 15:26
  Speaker 1: motion was held on April 9, 2025, after which the
• 15:30
  Speaker 1: court took the matters under advisement. The court finds that
• 15:34
  Speaker 1: some of the hearsay statements on the 911 call do
• 15:36
  Speaker 1: not qualify, under the exceptions cited by the state, and
• 15:40
  Speaker 1: therefore must be redacted. However, the balance of the 911 call,
• 15:44
  Speaker 1: as well as the text and the conversations noted herein,
• 15:47
  Speaker 1: are likely admissible, provided that the requisite foundation is laid
• 15:51
  Speaker 1: at trial. The transcript will be allowed as a demonstrative aid,
• 15:55
  Speaker 1: again assuming proper foundation is established to standard. Whether a
• 16:00
  Speaker 1: statement falls within the present sense impression and or excited
• 16:04
  Speaker 1: utterance exceptions is a question that is left to the
• 16:07
  Speaker 1: sound discretion of the trial court, giving consideration to the
• 16:11
  Speaker 1: totality of the circumstances, State v. Stover, 126, 1994. Use
• 16:17
  Speaker 1: of demonstrative aids is also a discretionary determination, State v. Weigel, 165, 2019.
• 16:25
  Speaker 1: On discretionary matters, the trial court must 1. Correctly perceive
• 16:29
  Speaker 1: the issue as one of discretion, 2. Act within the
• 16:32
  Speaker 1: outer boundaries of its discretion, 3. act consistently with the
• 16:36
  Speaker 1: legal standards applicable to the specific choices available to it,
• 16:40
  Speaker 1: and 4. reach its decision by the exercise of reason.
• 16:44
  Speaker 1: Loneborg vs. My Fun Life, 163, Idaho, 2018 3. Facts
• 16:51
  Speaker 1: After spending the evening out, roommates DM, BF, Kaylee Gonsalves,
• 16:55
  Speaker 1: and Madison Mogan returned to their home at 1122 King
• 16:58
  Speaker 1: Road in the early morning hours of November 13, 2022.
• 17:03
  Speaker 1: At approximately 2 a.m., they met up in Kaylee's bedroom
• 17:06
  Speaker 1: and talked for a while before going to bed. The
• 17:09
  Speaker 1: fifth roommate, Zanna Kernodle, who was out with her boyfriend,
• 17:12
  Speaker 1: Ethan Chapin, was not home yet. The roommates debated going
• 17:16
  Speaker 1: out to a food truck for a late snack, prompting
• 17:18
  Speaker 1: DM to send a text at 2 a.m. to an
• 17:21
  Speaker 1: Uber driver she knew to see if he was driving. Ultimately, however,
• 17:25
  Speaker 1: the girls decided just to go to bed. At approximately
• 17:28
  Speaker 1: 4 a.m., DM heard a strange noise and crying coming
• 17:32
  Speaker 1: from the bathroom. She opened her door at one point
• 17:35
  Speaker 1: and saw a man dressed in black with a ski
• 17:37
  Speaker 1: mask on walking by her bedroom door. She then placed
• 17:40
  Speaker 1: calls and texts to her other roommates to see if
• 17:42
  Speaker 1: they were awake. Only BF, who resided on the ground floor, answered.
• 17:47
  Speaker 1: They spoke once for 24 seconds, during which DM told
• 17:51
  Speaker 1: BF she thought that she heard something. They spoke again
• 17:54
  Speaker 1: a minute later for 41 seconds when DM told BF
• 17:58
  Speaker 1: she saw a man in a ski mask leaving the house.
• 18:01
  Speaker 1: They then exchanged the following text messages between 422 and
• 18:05
  Speaker 1: 426 AM. DM to BF. No one is answering. DM
• 18:09
  Speaker 1: to BF. I'm really confused right now. DM to Kaylee. Kaylee.
• 18:13
  Speaker 1: DM to BF. What's going on? BF to DM. Yeah, dude,
• 18:17
  Speaker 1: what the fuck? BF to DM. XANA was wearing all black.
• 18:21
  Speaker 1: DM to BF. I'm freaking out right now. DM to BF. No,
• 18:25
  Speaker 1: it's like a ski mask almost. BF to DM. STFU.
• 18:30
  Speaker 1: BF to DM, actually. DM to BF. Like he had
• 18:34
  Speaker 1: something over his head and a little bit of his mouth.
• 18:38
  Speaker 1: DM to BF. Bethant, I'm not kidding. Oh, I'm so
• 18:43
  Speaker 1: freaked out. A lot of typos here. BF to DM,
• 18:46
  Speaker 1: so am I. DM to BF, my phone is going
• 18:48
  Speaker 1: to die. Fuck. BF to DM, come to my room.
• 18:52
  Speaker 1: BF to DM, run. BF to DM, down here. DM
• 18:56
  Speaker 1: to BF, I'm screwed though. BF to DM, yeah, I know,
• 19:00
  Speaker 1: but it's better than being alone. During the foregoing exchange,
• 19:05
  Speaker 1: DM also attempted contacting Ethan Chapin through Snapchat. She again
• 19:10
  Speaker 1: tried calling Kaylee and Zanna, but neither responded. She then
• 19:14
  Speaker 1: exited her room and began running toward BF's bedroom. On
• 19:18
  Speaker 1: her way, she noticed Zanna lying on the floor of
• 19:20
  Speaker 1: her bedroom with her head towards the wall and her
• 19:22
  Speaker 1: feet towards the door. DM thought Zanna was drunk. Grand
• 19:26
  Speaker 1: jury transcripts at 182 16-183-7. Once DM arrived at BF's room,
• 19:33
  Speaker 1: they locked the door and both made additional unanswered calls
• 19:37
  Speaker 1: to the roommates. At 4.32am, DM again texted Kaylee, please answer,
• 19:42
  Speaker 1: with no response. Between approximately 5 a.m. and 6.30 a.m.,
• 19:47
  Speaker 1: DM engaged in activity on her phone, primarily creating, editing,
• 19:51
  Speaker 1: and deleting images and videos. Her phone activity then ceased
• 19:55
  Speaker 1: until 8.05 when DM accessed Instagram for a few minutes.
• 19:59
  Speaker 1: At 10 a.m., DM again accessed Instagram and communicated over Snapchat.
• 20:04
  Speaker 1: At 10.23, she texted Madison asking, are you up? She
• 20:09
  Speaker 1: received no response. DM continued to access Instagram and Snapchat
• 20:13
  Speaker 1: until 11.29 a.m. when she texted Kaylee, Are you up? Again,
• 20:18
  Speaker 1: there was no response, which DM thought was strange because
• 20:21
  Speaker 1: Kaylee and Madison were early wakers. Grand Jury Transcript at 1.88.15-24
• 20:29
  Speaker 1: DM continued accessing various social media sites including Checkin' Ethan's
• 20:34
  Speaker 1: and Zanna's Snapchat locations. At approximately 11.40, DM's father texted
• 20:40
  Speaker 1: her about scheduling a time for a chat, to which
• 20:42
  Speaker 1: DM responded. She also received two texts from a person
• 20:46
  Speaker 1: named Jenna stating, Bro, and do you guys need me
• 20:48
  Speaker 1: to come get you? At approximately 11.50 AM, DM called
• 20:53
  Speaker 1: her friend, EA, and asked her to come over and
• 20:55
  Speaker 1: check the house because she was scared. EA and her boyfriend, HJ,
• 20:59
  Speaker 1: came over. They met DM, BF, at the bottom of
• 21:03
  Speaker 1: the floor of the house. Grand jury transcript at 2.77,
• 21:07
  Speaker 1: Two through four. Together, DM, BF, and HJ started to
• 21:11
  Speaker 1: walk up the stairs to the second floor. When they
• 21:14
  Speaker 1: reached the second floor, HJ went to the kitchen to
• 21:16
  Speaker 1: grab a kitchen knife. When he came back out, DM said,
• 21:20
  Speaker 1: saw Zanna again for a split second, and I just
• 21:22
  Speaker 1: started bawling because I thought she had just like, I
• 21:25
  Speaker 1: don't even know. I thought maybe she was still just
• 21:28
  Speaker 1: drunk and all asleep on the floor. Grand jury transcript.
• 21:32
  Speaker 1: At 190, 125, 245, 22, 246, and 20. BF also
• 21:39
  Speaker 1: saw Zanna lying on the floor, ID at 231, 13
• 21:43
  Speaker 1: and 17. H.J. told D.M. and B.F. to get out. E.A.,
• 21:48
  Speaker 1: who had started up the stairs, also turned around after A.J.
• 21:51
  Speaker 1: instructed her not to come any further. They both went outside.
• 21:56
  Speaker 1: Shortly afterwards, H.J. exited the house and told them to
• 21:59
  Speaker 1: call 911. He was pale white and mentioning something about
• 22:02
  Speaker 1: someone being unconscious. At 11.56 a.m., BF called 911 from
• 22:08
  Speaker 1: her cell phone and spoke to Carolina Calvin, the 911 dispatcher.
• 22:12
  Speaker 1: The call lasted 4 minutes and 11 seconds. During the call,
• 22:15
  Speaker 1: the phone was passed around to different individuals, including BF, DM, HJ,
• 22:20
  Speaker 1: and an unidentified female speaker. Heaving, heavy breathing, and crying
• 22:26
  Speaker 1: can be heard throughout the call. BF first spoke, stating,
• 22:29
  Speaker 1: Something is happening, something happened in our house, and we
• 22:32
  Speaker 1: don't know what. BF attempted to provide the address of
• 22:36
  Speaker 1: the house to dispatch but could not continue. At one point,
• 22:40
  Speaker 1: an unidentified female speaker took the phone and provided the
• 22:43
  Speaker 1: address and BF's phone number. The following exchange ensued. 911 operator, okay,
• 22:49
  Speaker 1: and tell me exactly what's going on. Female, um, one
• 22:53
  Speaker 1: of our, one of the roommates who's passed out and
• 22:56
  Speaker 1: she was drunk last night and she's not waking up.
• 22:58
  Speaker 1: 911 operator, okay. Female. Oh, and they saw a man
• 23:03
  Speaker 1: in the house last night. Yeah. 911. Operator. And are
• 23:07
  Speaker 1: you with the patient? DM. Hi, this is DM. 911. Operator. Okay,
• 23:12
  Speaker 1: I need someone to keep the phone. Stop passing it around. DM.
• 23:16
  Speaker 1: Can I just tell you what happened pretty much? 911. Operator.
• 23:19
  Speaker 1: What is going on currently? Is someone passed out right now? DM.
• 23:24
  Speaker 1: I don't really know, but pretty much at 4 a.m. 911. Operator. Okay,
• 23:28
  Speaker 1: I need to know what's going on right now. If
• 23:30
  Speaker 1: someone has passed out, can you find out, please? DM, yeah,
• 23:34
  Speaker 1: I'll come. Come on. B, we gotta check. But we
• 23:36
  Speaker 1: have to. If she passed out? She's passed out. What's wrong?
• 23:39
  Speaker 1: She's not waking up. H.J.? Zanna? DM then informed the
• 23:44
  Speaker 1: dispatch that Zanna was 20 years old, and at that point, H.J.
• 23:48
  Speaker 1: took the phone. Dispatch asked him if she was still breathing,
• 23:52
  Speaker 1: to which H.J. answered no. Law enforcement arrived at that point,
• 23:56
  Speaker 1: and after confirming... with DM that the responding officer had
• 24:00
  Speaker 1: a defibrillator, dispatch ended the call. Later, at approximately 1.04 p.m.
• 24:05
  Speaker 1: that day, DM received a vandal alert regarding the homicide. 4.
• 24:10
  Speaker 1: Analysis The state seeks to admit DM and BF's phone
• 24:14
  Speaker 1: records from November 13, 2022, including call records and text messages,
• 24:19
  Speaker 1: as well as illicit testimony by DM and BF regarding
• 24:22
  Speaker 1: their communications with each other on November 13, 2022. that
• 24:27
  Speaker 1: they testified to before the grand jury. The state also
• 24:30
  Speaker 1: seeks to admit 911 call and the official transcript thereof.
• 24:35
  Speaker 1: The state argues these records and communications are not hearsay,
• 24:38
  Speaker 1: or they are accepted from hearsay as excited utterances or
• 24:43
  Speaker 1: present-sense impressions. Defendant objects, arguing that apart from HHA's statement
• 24:48
  Speaker 1: to 911 that Zanna was not breathing, the exceptions do
• 24:51
  Speaker 1: not apply to the hearsay statement's The court finds the
• 24:54
  Speaker 1: bulk of the statements are likely admissible, with three exceptions
• 24:58
  Speaker 1: of statements made during the 911 call. Hearsay is an
• 25:02
  Speaker 1: out-of-court statement admitted to prove that the truth of the
• 25:05
  Speaker 1: matter asserted, IRE 801. To be hearsay, the statement must
• 25:09
  Speaker 1: be intended as an assertion of fact and offered by
• 25:12
  Speaker 1: the proponent for purposes of proving the truth of the assertion.
• 25:17
  Speaker 1: Hearsay statements on a 911 call can typically be be
• 25:20
  Speaker 1: admitted into evidence under either the public record or business
• 25:23
  Speaker 1: record exceptions to the hearsay rule, Bemis v. Edwards, 45,
• 25:27
  Speaker 1: 9th Circuit, 1995. However, because citizens who call 911 are
• 25:33
  Speaker 1: not under any duty to report FEDAR Evidence 803-AB, a
• 25:38
  Speaker 1: recorded statement by a citizen must satisfy a separate hearsay exception. Typically,
• 25:43
  Speaker 1: these exceptions include the present sense impression exception and the
• 25:46
  Speaker 1: excited utterance exception. For Clifford S. Fishman Jones on Evidence,
• 25:51
  Speaker 1: Section 2816, 7th Edition, December 2024 Update. The present sense
• 25:57
  Speaker 1: impression exception authorizes the admission of hearsay if it is
• 26:01
  Speaker 1: a statement describing or explaining an event or condition made
• 26:05
  Speaker 1: while or immediately after the declarant perceived it. IRE 8031.
• 26:11
  Speaker 1: The rationale justifying the exception is that the immediacy of
• 26:14
  Speaker 1: the statement offers no opportunity for fabrication. Lola-Kaziar Revocable Trust v. Kaziar,
• 26:22
  Speaker 1: 167 Idaho 109, 2020. The rule recognizes that in many,
• 26:27
  Speaker 1: if not most, instances, precise contemporaneity is not possible and
• 26:32
  Speaker 1: hence a slight time lapse is allowable. Quoting F.R.E. 8031.
• 26:37
  Speaker 1: Advisory Committee Note. Emphasis added in Kaziar. The Excited Utterance
• 26:42
  Speaker 1: Exception to the hearsay. Rule authorizes the admission of hearsay
• 26:45
  Speaker 1: if the testimony recounts a statement relating to a startling
• 26:49
  Speaker 1: event or condition while the declarant was under stress of
• 26:52
  Speaker 1: excitement caused by the event or condition. IRE 8032. To
• 26:57
  Speaker 1: fall within the excited utterance exception, 1. There must be
• 27:00
  Speaker 1: a startling event that renders inoperative the normal reflective thought
• 27:04
  Speaker 1: process of the observer, and 2. The declarant's statement must
• 27:08
  Speaker 1: be spontaneous reaction to the event rather than the result
• 27:12
  Speaker 1: of reflective thought. State v. Hansen, 1999. In considering whether
• 27:18
  Speaker 1: the statement meets the excited utterance requirement, the totality of
• 27:21
  Speaker 1: circumstances must be considered, including the amount of time that
• 27:25
  Speaker 1: elapsed between the startling event and the statement, the nature
• 27:29
  Speaker 1: of the condition or event, the age and condition of
• 27:31
  Speaker 1: the declarant, the presence or absence of self-interest, and whether
• 27:35
  Speaker 1: the statement was volunteered or made in response to a question.
• 27:39
  Speaker 1: There is no bright-line rule as to the allowable time
• 27:42
  Speaker 1: span between the event and the statement, and one likely
• 27:44
  Speaker 1: should not be drawn. As with the present sense impression exception,
• 27:48
  Speaker 1: the rationale underlying the excited utterance exception is a special
• 27:52
  Speaker 1: reliability which is regarded as furnished by the excitement suspending
• 27:57
  Speaker 1: the declarant's powers of reflection and fabrication. I.D. quoting Burton, 115, Idaho, 1989.
• 28:04
  Speaker 1: All right, we're going to wrap up right here, and
• 28:07
  Speaker 1: in the next episode, we're going to pick up where
• 28:09
  Speaker 1: we left off. All of the information that goes with
• 28:12
  Speaker 1: this episode can be found... in the description box. What's
• 28:15
  Speaker 1: up everyone and welcome back to the program. In this episode,
• 28:18
  Speaker 1: we're going to pick up where we left off with
• 28:20
  Speaker 1: Judge Hippler's order on the motion in limine in regard
• 28:23
  Speaker 1: to the 911 call. A text message and verbal conversations
• 28:27
  Speaker 1: between DM and BF are likely admissible. As an initial matter,
• 28:32
  Speaker 1: the court finds that DM and BF's acts of making
• 28:34
  Speaker 1: phone calls, sending or receiving text messages, and other phone
• 28:38
  Speaker 1: activities such as accessing social media are not hearsay. Hearsay
• 28:42
  Speaker 1: only captures an oral assertion, written assertion, or nonverbal conduct
• 28:47
  Speaker 1: intended as an assertion. Thus, this order will focus on
• 28:50
  Speaker 1: the content of those calls and texts to the extent available.
• 28:54
  Speaker 1: As to the content of DM and BF's text messages
• 28:57
  Speaker 1: about what DM saw, the court finds they are either
• 29:01
  Speaker 1: not hearsay because they are not offered for the truth
• 29:03
  Speaker 1: of the matter asserted or not assertions or if hearsay.
• 29:07
  Speaker 1: They likely qualify as a present-sense impression and or excited
• 29:11
  Speaker 1: utterance as set forth in Exhibit A here too. Their
• 29:15
  Speaker 1: verbal discussions are potentially admissible for the same reasons. The
• 29:18
  Speaker 1: state must establish the foundational requirements for such proffered statements
• 29:22
  Speaker 1: at the time of trial. 1. DM texts Uber driver
• 29:25
  Speaker 1: at 2.10.29 to inquire if he's driving. The state seeks
• 29:29
  Speaker 1: to introduce this text to establish a timeline, specifically to
• 29:33
  Speaker 1: establish DM was awake and texting at 2.10 a.m., Defendant
• 29:37
  Speaker 1: does not directly challenge the text. Because it is not
• 29:40
  Speaker 1: offered for the truth of the matter asserted and or
• 29:43
  Speaker 1: not an assertion of fact, the court finds it not
• 29:45
  Speaker 1: hearsay under IRE 801. 2. Text messages between 4.22 and 4.26 a.m.
• 29:53
  Speaker 1: The state argues that the four-minute series of text messages
• 29:56
  Speaker 1: between DM and BF, with one from DM to Kaylee,
• 29:59
  Speaker 1: are admissible as either present-sense impressions or excited utterances. Defendants
• 30:05
  Speaker 1: suggest neither exception applies because there is no evidence they
• 30:08
  Speaker 1: were sufficiently startled by the events. He points out that
• 30:12
  Speaker 1: DM claimed only to be confused, and despite stating that
• 30:15
  Speaker 1: she was scared, she ran to BF's room instead of
• 30:17
  Speaker 1: leaving the house or otherwise calling other friends and family
• 30:20
  Speaker 1: for help. The court agrees with the state for those
• 30:23
  Speaker 1: texts qualifying as assertions. First, the present-sense impression exception does
• 30:28
  Speaker 1: not require a startling event. It simply requires that the
• 30:31
  Speaker 1: speaker describe or explain a condition while personally perceiving it
• 30:36
  Speaker 1: or immediately thereafter. Most DMs text to BF satisfy this exception.
• 30:41
  Speaker 1: She first texts that no one is answering, which describes
• 30:44
  Speaker 1: the results of her calls to the other roommates just
• 30:47
  Speaker 1: moments before. She also states that she is immediately feeling confused,
• 30:51
  Speaker 1: freaked out, and scared over what she saw and heard,
• 30:54
  Speaker 1: and the fact that none of her roommates are answering.
• 30:57
  Speaker 1: She further describes the intruder she saw, i.e. wearing a
• 31:00
  Speaker 1: ski mask or something over his forehead and mouth. She
• 31:03
  Speaker 1: also relays that her phone is going to die. Thus,
• 31:06
  Speaker 1: these statements are all likely admissible as present-sense impressions. In addition,
• 31:11
  Speaker 1: the events are sufficiently startling to both DM and BF
• 31:14
  Speaker 1: for purposes of the excited utterance exception. DM and BF
• 31:18
  Speaker 1: are young female college students and are self-described scaredy cats
• 31:23
  Speaker 1: of the house. They were awoken from sleep after a
• 31:27
  Speaker 1: night of drinking with DM reporting that she heard noises
• 31:30
  Speaker 1: and saw a masked intruder in their home. None of
• 31:32
  Speaker 1: the other roommates were responding to their calls and texts
• 31:35
  Speaker 1: further indicating something was amiss. It would be potentially terrifying
• 31:39
  Speaker 1: for anyone, including these young women, to argue that they
• 31:43
  Speaker 1: would have run out of the house or called someone
• 31:45
  Speaker 1: else for help had they really been startled, unempathetically ignores
• 31:49
  Speaker 1: the circumstances and the trauma and confusion they were evidently experiencing,
• 31:54
  Speaker 1: which likely offset logical thought. Indeed, the girls' fear and
• 31:57
  Speaker 1: confusion is evident in their words, with both questioning what
• 32:00
  Speaker 1: was going on, DM stating that she was freaked out,
• 32:03
  Speaker 1: scared and confused, and BF attempting to get them together
• 32:07
  Speaker 1: quickly for safety. they were clearly under stress and attempting
• 32:11
  Speaker 1: to make sense of the frightening situation. Additionally, the time
• 32:15
  Speaker 1: period that elapsed between what DM saw and her communication
• 32:18
  Speaker 1: with BF, about the same, was a matter of minutes.
• 32:22
  Speaker 1: The text message exchange lasts approximately four minutes, with the
• 32:25
  Speaker 1: messages occurring in rapid succession. This timeline left no time
• 32:30
  Speaker 1: for the reflection or fabrication, which is ultimately what IRE
• 32:33
  Speaker 1: 8031 and 8032 seek to protect against. Consequently, the court
• 32:39
  Speaker 1: concludes that the assertive text messages within this four-minute period
• 32:43
  Speaker 1: are likely admissible as present-sense impressions and or excited utterances,
• 32:47
  Speaker 1: assuming the requisite foundation is provided at the time of trial. 3.
• 32:52
  Speaker 1: DM Text to Victims At 4.3257, DM texted Kaylee, please answer.
• 32:59
  Speaker 1: The state argues that this text is admissible as a
• 33:02
  Speaker 1: present-sense impression and an excited utterance. Defendant does not directly
• 33:06
  Speaker 1: address the text, however, the court finds, it is more
• 33:09
  Speaker 1: of a command or request than an assertion of fact.
• 33:12
  Speaker 1: It is not a fact capable of being proved true
• 33:14
  Speaker 1: or false, thus it is not barred. At 10.23, DM
• 33:19
  Speaker 1: texted Madison asking, are you up? And approximately an hour later,
• 33:23
  Speaker 1: DM texted Kaylee, are you up? The state argues that
• 33:27
  Speaker 1: the foregoing texts are not hearsay because they will not
• 33:29
  Speaker 1: be introduced for the truth of the matter asserted. Alternatively,
• 33:33
  Speaker 1: the state contends, They are present-sense impressions because they represent
• 33:38
  Speaker 1: a consistency and continuation of DM's texts from the prior night.
• 33:43
  Speaker 1: Defendant disputes that the exception applies, pointing out that DM
• 33:47
  Speaker 1: had been awake and accessing social media before she sent
• 33:50
  Speaker 1: the texts. Again, the court does not find these texts
• 33:54
  Speaker 1: to be assertions. These are inquiries, not declarative statements. Even
• 33:59
  Speaker 1: if they were assertions, however, the state intends to admit
• 34:02
  Speaker 1: the statements to establish a timeline of events. They are
• 34:05
  Speaker 1: not hearsay because they are not offered to establish their truth. Therefore,
• 34:10
  Speaker 1: they are not barred by IRE 801. 5. DMs calls
• 34:14
  Speaker 1: and texts to and from others. The state contends that
• 34:18
  Speaker 1: texts between DM and her dad, the texts from JM
• 34:21
  Speaker 1: and the Vandal Alert, are not hearsay because they will
• 34:24
  Speaker 1: be offered simply to show a timeline for the morning
• 34:26
  Speaker 1: and early afternoon. In addition, the state notes that the
• 34:30
  Speaker 1: phone call from DM to EA is not a statement
• 34:33
  Speaker 1: and therefore not hearsay. The court agrees and will allow
• 34:36
  Speaker 1: the evidence for purposes of the timeline if the requisite
• 34:39
  Speaker 1: foundation is laid. B. Verbal communication between BF and DM.
• 34:45
  Speaker 1: The state next contends that it intends to ask DM
• 34:47
  Speaker 1: and BF at trial about statements they made to each
• 34:50
  Speaker 1: other on November 13, 2022. It argues the testimony will
• 34:55
  Speaker 1: likely replicate that provided by these witnesses at the grand
• 34:59
  Speaker 1: jury proceeding. The state contends they are admissible and Under
• 35:02
  Speaker 1: the present sense impression and or excited utterance exception, defendant
• 35:06
  Speaker 1: does not directly address the argument. To the extent DM
• 35:11
  Speaker 1: and BF seek to testify about the content of the calls, texts,
• 35:14
  Speaker 1: and conversations about what they perceived during the 430 timeframe,
• 35:18
  Speaker 1: they could be potentially admissible under the exception cited by
• 35:21
  Speaker 1: the state. However, the state must establish the foundational requirements
• 35:25
  Speaker 1: for such proffered statements. The grand jury testimony does not
• 35:29
  Speaker 1: appear to include any conversations between them after 419 a.m.
• 35:34
  Speaker 1: to 437 a.m. time frame, and the state has not
• 35:37
  Speaker 1: pointed any out. Thus, to the extent they testify to
• 35:40
  Speaker 1: oral conversations they had after they woke up the next morning,
• 35:44
  Speaker 1: the court will reserve ruling and consider any hearsay objections
• 35:47
  Speaker 1: at that time. The 911 call. The state contends that
• 35:52
  Speaker 1: the entirety of the 911 call should be admitted because
• 35:55
  Speaker 1: the statements therein are either non-hearsay, i.e. not admitted for
• 35:59
  Speaker 1: the truth, of the matter asserted, or they are accepted
• 36:03
  Speaker 1: from the hearsay rule as present sense impressions or excited utterances.
• 36:07
  Speaker 1: Defendant generally objects to its admission, but takes particular issue
• 36:11
  Speaker 1: with three statements within the call. The court finds defendant's
• 36:14
  Speaker 1: objections to these specific statements well placed, but will allow
• 36:18
  Speaker 1: the balance of the call because the statements are either
• 36:21
  Speaker 1: not assertions, not admitted for their truth, and or accepted
• 36:25
  Speaker 1: from the rule as set forth in Exhibit B here too. 1.
• 36:29
  Speaker 1: Initial Statements The 911 call begins with BF telling dispatch
• 36:33
  Speaker 1: something is happening, something happened in our house, and we
• 36:36
  Speaker 1: don't know what. This statement falls squarely within the present-sense impression,
• 36:41
  Speaker 1: exception given that BF was experiencing concern that something was
• 36:45
  Speaker 1: wrong with her roommates and H.J. had just instructed her
• 36:48
  Speaker 1: to call 911 after walking through the house. Thereafter, BF
• 36:52
  Speaker 1: attempts to provide dispatch with the address of the house
• 36:55
  Speaker 1: before an unidentified female speaker takes the phone. and provides
• 36:59
  Speaker 1: the address and BF's phone number. This exchange is not
• 37:02
  Speaker 1: offered for the truth of the matter, asserted and therefore
• 37:05
  Speaker 1: not barred by the hearsay rule. To female, um, one
• 37:09
  Speaker 1: of our, one of the roommates who's passed out, and
• 37:12
  Speaker 1: she was drunk last night, and she's not waking up.
• 37:15
  Speaker 1: The state argues this statement is a present-sense impression, because
• 37:18
  Speaker 1: the female speaker is describing the scene around her. However,
• 37:22
  Speaker 1: as defendant points out, the roommate at issue in the
• 37:25
  Speaker 1: statement is Zanna, The only individual who experienced saw Zanna
• 37:29
  Speaker 1: unresponsive were DM, BF, and HJ. Thus defendant contends the
• 37:33
  Speaker 1: exception does not apply because the female speaker never saw
• 37:37
  Speaker 1: Zanna unresponsive and thus lacks first-hand knowledge of the information
• 37:41
  Speaker 1: contained in the statement. The inquiry here turns on whether
• 37:45
  Speaker 1: the event the female speaker is describing or explaining is
• 37:49
  Speaker 1: that Zanna is unresponsive as defendant contends or whether it
• 37:53
  Speaker 1: is more generally the scene unfolding at the house. i.e.
• 37:56
  Speaker 1: that their friend saw Zana unresponsive. The female speaker did
• 37:59
  Speaker 1: not personally perceive the former, but she did personally perceive
• 38:03
  Speaker 1: the latter. When the words themselves are considered, it's clear
• 38:07
  Speaker 1: the event being described is that Zana is unresponsive, not
• 38:11
  Speaker 1: that the speaker's friend saw Zana unresponsive. In other words,
• 38:14
  Speaker 1: she is relaying to 911 what her friend observed and
• 38:17
  Speaker 1: relayed to her. Her statement is therefore outside the President's
• 38:20
  Speaker 1: sense impression, and thus the exception. Thus, the statement is
• 38:24
  Speaker 1: not admissible under that exception. 3. Female. Oh, they saw
• 38:29
  Speaker 1: some men in their house last night, yeah. The state
• 38:32
  Speaker 1: argues this statement is both a present-sense impression and an
• 38:36
  Speaker 1: excited utterance because it is in response to finding Zanna unresponsive.
• 38:41
  Speaker 1: Defendant responds that the statement references an event DM saw
• 38:45
  Speaker 1: 8 hours prior to the 911 call and therefore is
• 38:48
  Speaker 1: not contemporaneous. Defendant also points out that the female speaker
• 38:52
  Speaker 1: does not have personal knowledge and is simply repeating what
• 38:55
  Speaker 1: she's told by others. The court agrees that the present-sense
• 38:59
  Speaker 1: impression exception does not apply to the statement because the
• 39:02
  Speaker 1: speaker is recounting what someone else perceived. Additionally, there is
• 39:06
  Speaker 1: no contemporaneity since she is describing an event that occurred
• 39:10
  Speaker 1: hours earlier. The excited utterance exception does not apply either.
• 39:14
  Speaker 1: Instructive here is State v. Fox, where to Idaho Supreme
• 39:18
  Speaker 1: Court considered Whether the excited utterance exception applied to a
• 39:22
  Speaker 1: 911 call made by a man after he found a
• 39:24
  Speaker 1: woman screaming for help for her friend, whom she said
• 39:27
  Speaker 1: had just been pistol whipped by a man who fled
• 39:29
  Speaker 1: the scene. scene the 911 caller had not seen what
• 39:32
  Speaker 1: had happened but relayed to dispatch what the victim told
• 39:35
  Speaker 1: him about the incident the court held that the district
• 39:38
  Speaker 1: court erred by admitting the 911 caller's statements to dispatch
• 39:42
  Speaker 1: as excited utterances because the caller's voice was calm and
• 39:45
  Speaker 1: he had not experienced a startling event or condition Here, likewise,
• 39:49
  Speaker 1: the audio of the 911 call does not indicate that
• 39:52
  Speaker 1: the speaker's normal reflective thought process were rendered inoperative. Her
• 39:57
  Speaker 1: voice sounds calm relative to BF's and DM's. Although a
• 40:00
  Speaker 1: slight nervousness can be detected in her voice, she is
• 40:03
  Speaker 1: not audibly crying or breathing heavily. In fact, the speaker
• 40:07
  Speaker 1: took over speaking to dispatch because she was more composed
• 40:10
  Speaker 1: than BF, who initiated the call. Further, the speaker did
• 40:14
  Speaker 1: not personally see Zanna unresponsive, nor did she see the
• 40:17
  Speaker 1: man allegedly in the house. She is simply repeating what
• 40:20
  Speaker 1: others told her, so the statement does not provide insight
• 40:23
  Speaker 1: into her own thought process. Consequently, the statement must be redacted. 4.
• 40:28
  Speaker 1: DM's attempts to explain events After the female speaker cedes
• 40:32
  Speaker 1: the phone to DM, DM identifies herself and asks if
• 40:35
  Speaker 1: she can tell dispatch what happened. Dispatch responds by asking
• 40:39
  Speaker 1: what is going on and if someone has passed out.
• 40:42
  Speaker 1: This exchange will not be offered for the truth of
• 40:44
  Speaker 1: the matter asserted and therefore is not hearsay. However, DM
• 40:48
  Speaker 1: then states, I don't really know, but pretty much at
• 40:51
  Speaker 1: 4 a.m. The state argues this statement is a present-sense
• 40:54
  Speaker 1: impression and or excited utterance because DM is trying to
• 40:58
  Speaker 1: explain to the dispatcher what she saw while under the
• 41:01
  Speaker 1: current excitement of realizing that her roommate is not waking
• 41:04
  Speaker 1: up and something could be wrong in the house. Defendant disagrees,
• 41:09
  Speaker 1: noting the event DM begins to describe what occurred eight
• 41:12
  Speaker 1: hours prior. He further argues it is not an excited
• 41:16
  Speaker 1: utterance because she and BF had several hours to reflect
• 41:20
  Speaker 1: on what she had seen and experienced at 4 a.m.
• 41:23
  Speaker 1: Defendant is correct that the statement does not qualify as
• 41:27
  Speaker 1: a present sense impression. While DM personally perceived the event
• 41:31
  Speaker 1: she is beginning to describe, the contemporaneity aspect is missing.
• 41:35
  Speaker 1: She is attempting to narrate an event she saw eight
• 41:37
  Speaker 1: hours earlier. The excited utterance exception does not apply either,
• 41:42
  Speaker 1: while DM is no doubt under the stress of excitement.
• 41:46
  Speaker 1: Caused by realizing XANA is unresponsive, her reflexive thought processing
• 41:50
  Speaker 1: appears intact. She is starting to draw connections between XANA
• 41:54
  Speaker 1: being unresponsive and what she saw and heard 8 hours prior.
• 41:57
  Speaker 1: Something she has had time to reflect upon. She does
• 42:00
  Speaker 1: not launch spontaneously into what she saw at 4am. Rather,
• 42:03
  Speaker 1: she asks the dispatcher if she can explain what she saw.
• 42:07
  Speaker 1: Based on this exchange, it's clear her powers of reflection
• 42:10
  Speaker 1: are quite active, thus obviating the purpose behind the exception.
• 42:14
  Speaker 1: The statement is, therefore, not admissible and must be redacted.
• 42:19
  Speaker 1: Statements regarding XANA Dispatch then instructs DM to find out
• 42:22
  Speaker 1: if someone passed out. DM appears to make statements, to
• 42:26
  Speaker 1: a bystander, that they have to go check if XANA
• 42:28
  Speaker 1: passed out. This is not offered by the state for
• 42:31
  Speaker 1: the truth of the matter and, therefore, not hearsay. DM
• 42:35
  Speaker 1: then states that Zanna is not waking up. HJ is
• 42:37
  Speaker 1: heard stating Zanna in the background. These are squarely present
• 42:41
  Speaker 1: sense impressions because they are describing what the speakers are seeing.
• 42:45
  Speaker 1: DM then responds to dispatch inquiry about Zanna's age, again,
• 42:48
  Speaker 1: not offered for the truth of the matter asserted before
• 42:51
  Speaker 1: HJ takes the phone and confirms that Zanna is not breathing.
• 42:55
  Speaker 1: This is also a present sense impression and also likely
• 42:58
  Speaker 1: falls within IRE 8034. 6. Statements after law enforcement arrived.
• 43:04
  Speaker 1: Around the time H.J. confirmed to dispatch that Zanna was
• 43:07
  Speaker 1: not breathing, law enforcement had arrived on scene. H.J. can
• 43:11
  Speaker 1: be heard telling D.M., I need you to talk to them.
• 43:14
  Speaker 1: I can't talk to them. I need you to talk
• 43:16
  Speaker 1: to them. The court finds this admissible as either a
• 43:19
  Speaker 1: present-sense impression or excited utterance. H.J. had discovered Zanna's body
• 43:24
  Speaker 1: moments before. He is operating under the stress of the
• 43:26
  Speaker 1: discovery and attempting to answer dispatch questions. His statements describe
• 43:31
  Speaker 1: his inability to speak to law enforcement at the moment
• 43:34
  Speaker 1: and therefore... are admissible. At that point, DM took the
• 43:38
  Speaker 1: phone again and dispatch instructed her to get a defibrillator
• 43:40
  Speaker 1: if one was available. DM asked dispatch to repeat the
• 43:43
  Speaker 1: question and stated, there's a police here right now. After
• 43:47
  Speaker 1: dispatch repeated the question, DM indicated that they did not
• 43:51
  Speaker 1: have a defibrillator and asked the responding officer if he did.
• 43:54
  Speaker 1: The officer responded affirmatively, after which dispatch indicated she was
• 43:58
  Speaker 1: going to let the officer take over and ended the call.
• 44:02
  Speaker 1: To the extent the state seeks to admit the statements
• 44:04
  Speaker 1: by DM for their truth, they qualify as present sense impressions,
• 44:08
  Speaker 1: as DM is explaining the events as they're happening. They
• 44:12
  Speaker 1: also are likely admissible under IRE 8034, insofar as they
• 44:16
  Speaker 1: regard the defibrillator. Finally, many of the statements are not
• 44:19
  Speaker 1: assertions and thus not hearsay. 7. Cry and breathing. Heaving
• 44:25
  Speaker 1: is not hearsay. Apart from statements, the state also moves
• 44:28
  Speaker 1: for admission of the audible crying, breathing, and heavy... heaving
• 44:31
  Speaker 1: made by the 911 callers. Defendant does not address the
• 44:36
  Speaker 1: argument and the court finds it well placed. While assertive
• 44:39
  Speaker 1: conduct can qualify as hearsay, non-assertive conduct does not. There
• 44:45
  Speaker 1: is no indication the 911 call that the speakers are
• 44:48
  Speaker 1: intending to make assertions through their crying and heavy breathing
• 44:52
  Speaker 1: is clearly an involuntary response to the circumstances. Further, it's
• 44:57
  Speaker 1: relevant to show the stress and emotional impact the girls
• 44:59
  Speaker 1: are under when which puts the call into context, thus
• 45:02
  Speaker 1: it is admissible. D. The transcript of the 911 call
• 45:06
  Speaker 1: will be allowed as demonstrative evidence. The final issue is
• 45:10
  Speaker 1: whether to allow the jury to view the official transcript
• 45:13
  Speaker 1: of the 911 call while listening to the call. Defendant
• 45:16
  Speaker 1: contends it could be cumulative and asks that either the
• 45:20
  Speaker 1: call or the transcript be allowed, but not both. The
• 45:23
  Speaker 1: court views this issue as essentially a request for use
• 45:26
  Speaker 1: of the transcript as a demonstrative aid to A demonstrative
• 45:30
  Speaker 1: exhibit is relevant if it supplements the testimony of witnesses
• 45:34
  Speaker 1: or assists the jury in obtaining a better understanding of
• 45:36
  Speaker 1: facts and issue. Transcripts are widely used as demonstrative aids
• 45:41
  Speaker 1: to help the jury understand contents of audio recordings. When
• 45:45
  Speaker 1: used in this way, courts will typically instruct the jury
• 45:47
  Speaker 1: that the transcript is not evidence independent of the audio recording,
• 45:52
  Speaker 1: and if the jury determines that the transcript is incorrect,
• 45:55
  Speaker 1: It should disregard it to the extent and rely on
• 45:57
  Speaker 1: its own interpretation of the audio recording. In addition, the
• 46:01
  Speaker 1: transcript must be authenticated by showing that it fully and
• 46:04
  Speaker 1: accurately complies with the audio recording. Against this background, the
• 46:09
  Speaker 1: court will permit a transcript of the 911 call to
• 46:11
  Speaker 1: be used as a demonstrative aid, assuming the proper foundation
• 46:15
  Speaker 1: for 911 call is established and the transcript is properly authenticated.
• 46:20
  Speaker 1: To this end, the state is responsible for proposing an
• 46:22
  Speaker 1: appropriate jury instruction. The transcript will not be admitted as
• 46:27
  Speaker 1: substantive evidence and will not be available to the jury
• 46:30
  Speaker 1: except when the 911 call is being played, including during deliberations.
• 46:35
  Speaker 1: Because it is not going to be used as evidence,
• 46:37
  Speaker 1: the court does not find that the transcript is cumulative
• 46:40
  Speaker 1: to the 911 audio or otherwise prejudicial to defendant. Order.
• 46:45
  Speaker 1: Based on the foregoing, the state's motion in limine, text messages,
• 46:49
  Speaker 1: and testimony is granted in part and reserved in part.
• 46:52
  Speaker 1: The state's motion in Lemonade 911 call is granted in
• 46:55
  Speaker 1: part and denied in part and reserved in part. This
• 46:59
  Speaker 1: document was signed on April 24th of 2025 and it
• 47:03
  Speaker 1: was signed by Judge Hippler. All of the information that
• 47:06
  Speaker 1: goes with this episode can be found in the description box.