Court Filing
Electronically Filed 3/24/2025 2:32 PM Fourth Judicial District, Ada County Trent Tripple, Clerk of the Court By: Jennifer Keyes, Deputy Clerk LATAH COUNTY PROSECUTOR'S OFFICE WILLIAM W. THOMPSON, JR., ISB No. 2613 PROSECUTING ATTORNEY ASHLEY S. JENNINGS, ISB No. 8491 SENIOR DEPUTY PROSECUTOR Latah County Courthouse 522 S. Adams Street, Ste. 211 Moscow, ID 83843 Phone: (208) 883-2246 paservice@latahcountyid.gov IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA STATE OF IDAHO, Case No. CR01-24-31665 Plaintiff, STATE'S REPLY TO DEFENDANT'S OBJECTION TO MOTION IN LIMINE V. RE: TEXT MESSAGES AND TESTIMONY BRYAN C. KOHBERGER, Defendant. COMES NOW the State of Idaho, by and through the Latah County Prosecuting Attorney, and respectfully replies to “ Defendant's Objection to State's Motion in Limine RE: Text Messages and Testimony ” filed March 17, 2025. Defendant includes additional records from D.M. and B.F.'s phone for the Court's review. However, using the records provided in the Defendant's response does not change the Idaho Rules of Evidence Rule 801 and 803 analysis. STATE'S REPLY TO DEFENDANT'S OBJECTION TO MOTION IN LIMINE RE: TEXT MESSAGES AND TESTIMONY 1 The following phone records are from November 13, 2022, between 2:10 a.m. to 4:37 a.m. Starting at 4:19 a.m., D.M. makes statements to B.F. regarding seeing an unknown male in the residence – the statements are immediately after she perceived this event. In addition, D.M. and B.F. are under the “ stress of excitement ” caused by this “ startling event or condition. " Time (11/13/22) Record Authority for Admission 2:10:29 a.m. D.M. to E.G. (Uber Driver) inquiring if he Not Hearsay. Not for the truth was driving of the matter asserted. 2:13:00 a.m. E.G. to D.M. confirming he was driving Not Hearsay. Not for the truth of the matter asserted. 2:53 a.m. M.M. calls B.F. Not Hearsay. Not a statement. 3:51:03 a.m. D.M. creates a new contact in her phone Not Hearsay. Not a statement. 4:19:07 a.m. B.F. calls D.M. The record of the call itself is not hearsay since it is not a statement. In addition, B.F. and D.M. should be able to testify regarding what was discussed during this phone call as present sense impressions. 4:20:00 a.m. D.M. calls Χ.Κ. Not Hearsay. Not a statement. 4:20:20 a.m. D.M. calls K.G. Not Hearsay. Not a statement. 4:20:28 a.m. D.M. calls B.F. for 41 seconds The record of the call itself is not hearsay since it is not a statement. In addition, B.F. and D.M. should be able to testify regarding what was discussed during this phone call as present sense impressions and / or excited utterances. 4:21 a.m. B.F. calls Χ.Κ. Not Hearsay. Not a statement. 4:21:50 a.m. D.M. calls M.M. Not Hearsay. Not a statement. 4:22 a.m. B.F. calls E.C. Not Hearsay. Not a statement. 4:22:08 a.m. D.M. to B.F.: “ No one is answering " Present Sense Impression and / or Excited Utterance 4:22:11 a.m. D.M. to B.F.: “ I'm rlly confused rn. ” Present Sense Impression and / or Excited Utterance 4:22:42 a.m. D.M. to K.G.: " Kaylee " Not Hearsay. Not for the truth of the matter asserted. STATE'S REPLY TO DEFENDANT'S OBJECTION TO MOTION IN LIMINE RE: TEXT MESSAGES AND TESTIMONY 2 Alternatively, a present sense impression. 4:22:43 a.m. D.M. to K.G. “ What's going on ” Present Sense Impression and / or Excited Utterance 4:23 a.m. BF outgoing message (Snapchat) The record of the message itself is not hearsay since it is not a statement. The content of the message would be a present sense impression. 4:23:15 a.m. B.F. to D.M. " Ya dude WTF " Excited Utterance and / or Present Sense Impression 4:23:28 a.m. B.F. to D.M. “ Xana was wearing all Excited Utterance and / or black " Present Sense Impression 4:23:33 a.m. D.M. to B.F. " I'm freaking out rn " Excited Utterance and / or Present Sense Impression 4:23:42 a.m. D.M. to B.F. " No its like a ski mask Excited Utterance and / or almost " Present Sense Impression 4:23:48 a.m. B.F. to D.M. " Stfu " Excited Utterance and / or Present Sense Impression 4:23:51 a.m. B.F. to D.M. “ Actually ” Excited Utterance and / or Present Sense Impression 4:23:52 a.m. D.M. to B.F. " Like he had soemtbinf over Excited Utterance and / or is for head and little nd mouth " Present Sense Impression 4:24:00 a.m. D.M. to B.F. “ Bethant I'm not kidding o Excited Utterance and / or am so freaked out " Present Sense Impression 4:24:07 a.m. B.F. to D.M. " So am I " Excited Utterance and / or Present Sense Impression 4:24:11 a.m. D.M. to B.F. " phone is going to die fuck " Excited Utterance and / or Present Sense Impression 4:24:14 a.m. B.F. to D.M. “ Come to my room " Excited Utterance and / or Present Sense Impression 4:24:22 a.m. B.F. to D.M. " Run " Excited Utterance and / or Present Sense Impression 4:24:27 a.m. B.F. to D.M. " Down here " Excited Utterance and / or Present Sense Impression 4:24:39 a.m. D.M. calls E.C. Not Hearsay. Not a statement. 4:24:58 a.m. D.M. to B.F. Not Hearsay. Not a statement. 4:25:16. a.m. B.F. to D.Μ. Not Hearsay. Not a statement. 4:27:11 a.m. D.M. outgoing call Not Hearsay. Not a statement. 4:27:30 a.m. D.M. outgoing message (Snapchat) The record of the message itself is not hearsay since it is not a statement. The content of the message would be a present sense impression. STATE'S REPLY TO DEFENDANT'S OBJECTION TO MOTION IN LIMINE RE: TEXT MESSAGES AND TESTIMONY 3 4:27:40 a.m. D.M. outgoing message (Snapchat) The record of the message itself is not hearsay since it is not a statement. The content of the message would be a present sense impression. 4:27:47 a.m. D.M. calls K.G. Not Hearsay. Not a statement. 4:28:44 a.m. D.M. calls Χ.Κ. Not Hearsay. Not a statement. 4:29 a.m. B.F. calls M.M. Not Hearsay. Not a statement. 4:30 a.m. B.F. calls Μ.Μ. Not Hearsay. Not a statement. 4:30 a.m. B.F. calls K.G. Not Hearsay. Not a statement. 4:31 a.m. B.F. calls K.G. Not Hearsay. Not a statement. 4:32:57 a.m. D.M. texts K.G. Not Hearsay. Not a statement. 4:34 a.m. B.F. accessed Snapchat Not Hearsay. Not a statement. 4:37 a.m. B.F. accessed Instagram Not Hearsay. Not a statement. The State's evidence will show D.M. and B.F. went to sleep after 4:37 a.m. The State seeks to introduce the following phone records from the next morning from D.M. and B.F: Time Record Authority for Admission 10:23:23 a.m. D.M. to M.M. " R u up " Not Hearsay. Not for the truth of the matter asserted. Alternatively, this would be a present sense impression. 11:29:27 a.m. D.M. to K.G. " R u up? " Not Hearsay. Not for the truth of the matter asserted. 11:49 B.F. phone call to J.M. Not Hearsay. Not a statement. 11:56 a.m. B.F. call to 911 Not Hearsay. Not statement. The above records are not hearsay. These records do not need to be analyzed applying the present-sense impression or excited utterance exceptions of I.R.E. 803. Also, other communications and interactions on social media during this timeframe is irrelevant for the purposes of this Court making an admissibility determination. Regarding D.M. and B.F. other communications, Defendant will have the opportunity to cross-examine them at trial. STATE'S REPLY TO DEFENDANT'S OBJECTION TO MOTION IN LIMINE RE: TEXT MESSAGES AND TESTIMONY 4 CONCLUSION The State respectfully requests the court's approval in limine for admission of the abovedescribed phone records for D.M. and B.F. and any statements made between D.M. and B.F. prior to approximately 4:37 a.m. on November 13, 2022. RESPECTFULLY SUBMITTED this 24th day of March 2025. asheups. ganing Ashley S. Jennings Sr. Deputy Prosecuting Attorney STATE'S REPLY TO DEFENDANT'S OBJECTION TO MOTION IN LIMINE RE: TEXT MESSAGES AND TESTIMONY 5 CERTIFICATE OF DELIVERY I hereby certify that true and correct copies of the STATE'S REPLY TO DEFENDANT’S OBJECTION TO MOTION IN LIMINE RE: TEXT MESSAGES AND TESTIMONY were served on the following in the manner indicated below: Anne Taylor Mailed Attorney at Law E-filed & Served / E-mailed PO Box 2347 Faxed Coeur D Alene, ID 83816 Hand Delivered Dated this 24th day of February 2025. STATE'S REPLY TO DEFENDANT'S OBJECTION TO MOTION IN LIMINE RE: TEXT MESSAGES AND TESTIMONY 6