Motion in Limine Re 911 Call

Filed: 02/24/2025 15:40:26 Fourth Judicial District, Ada County Trent Tripple, Clerk of the Court
By: Deputy Clerk-Waters, Renee
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,
SEALED

STATE'S MOTION IN LIMINE

V. RE: 911 CALL

BRYAN C. KOHBERGER,

Defendant.

COMES NOW the State of Idaho, by and through the Latah County Prosecuting Attorney, and respectfully moves the Court for an order in limine allowing the State to admit the recording and transcript of the 911 call to Whitcom on November 13, 2022. The 911 recording was discovered as AV000002 and the transcript was discovered as Bates 12422-12426.

STATE'S MOTION IN LIMINE RE: 911 CALL

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FACTS

The facts pertinent to the issue raised by this motion can be found in the attached excerpts from the Grand Jury Transcript (State's Exhibit S-1), the 911 call recording (State's Exhibit S-2), and the transcript of the 911 call (State's Exhibit S-3).

ARGUMENT

A. The statements on the 911 call are hearsay but fall within firmly rooted hearsay exceptions and should be allowed.

In general, testimony that is hearsay is excludable at trial. However, there are many exceptions to this rule. Two firmly rooted exceptions are:
Idaho Rule of Evidence 803 (1) Present sense impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

Idaho Rule of Evidence 803 (2) Excited utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

The requirements of the federal version of each of these rules are best stated in U.S. v. Mitchell, 145 F.3d 572, 576 (3d Cir. 1998):
There are three principal requirements which must be met before hearsay evidence may be admitted as a present sense impression: (1) the declarant must have personally perceived the event described; (2) the declaration must be an explanation or description of the event rather than a narration; and (3) the declaration and the event described must be contemporaneous.

The requirements for a hearsay statement to constitute an excited utterance are:
(1) a startling occasion, (2) a statement relating to the circumstances of the startling occasion, (3) a declarant who appears to have had opportunity to observe personally the events, and (4) a statement made before there has been time to reflect and fabricate.

STATE'S MOTION IN LIMINE RE: 911 CALL

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In Idaho, the Court of Appeals viewed the requirements for excited utterance as follows:
To fall within the excited utterance exception, an out-of-court statement must meet two requirements. First, there must be a startling event that renders inoperative the normal reflective thought process of the observer and second, the declarant's statement must be a spontaneous reaction to that event rather than the result of reflective thought. Whether a statement falls within the excited utterance exception is left to the sound discretion of the trial court.... In ruling on the admissibility of a statement under the excited utterance exception, the trial court considers the totality of circumstances surrounding the statement. The circumstances to be considered include the amount of time that elapsed between the startling event and the statement, the nature of the condition or event, the age and condition of the declarant, the presence or absence of self-interest, and whether the statement was volunteered or made in response to a question.

State v. Doe, 140 Idaho 873, 876-877, 103 P.3d 967, 970-971 (Ct. App. 2004) (citations omitted).

Calls to 911 can also be deemed present sense impressions and / or excited utterances.

Hearsay statements on a 911 tape can be admitted into evidence as either a " public record, " Fed.R.Evid. 803 (8) (B), or a " business record, " Fed.R.Evid. 803 (6). See United States v. Sallins, 993 F.2d 344, 347- 48 & n. 4 (3d Cir.1993) (noting that a 911 tape itself is probably a " public record "); cf. United States v. Smith, 521 F.2d 957, 964-65 (D.C.Cir.1975) (finding that police radio broadcasts are business records). However, because citizens who call 911 are not under any " duty to report, " Fed.R.Evid. 803 (8) (B), a recorded statement by a citizen must satisfy a separate hearsay exception. See Fed.R.Evid. 805; United States v. Pazsint, 703 F.2d 420, 424-25 (9th Cir.1983) (excluding tapes of emergency calls from witnesses reporting defendant's assault of an IRS agent); Sallins, 993 F.2d at 347 (excluding 911 statement that person matching defendant's description was holding a gun). Under certain circumstances, such a statement may qualify as either a " present sense impression, " Fed.R.Evid. 803 (1), or an " excited utterance, " Fed.R.Evid. 803 (2). See United States v. Mejia-Valez, 855 F.Supp. 607, 613-14 (E.D.N.Y.1994) (admitting under either exception a tape of 911 call made by an eyewitness immediately following a shooting); United States v. Campbell, 782 F.Supp. 1258, 1260-61 (N.D.Ill.1991) (admitting under either exception a 911 tape of an eyewitness's description of a gunman).

Bemis v. Edwards, 45 F.3d 1369, 1372 (9th Cir. 1995). See also State v. Valverde, 128 Idaho 237, 912 P.2d 124 (Idaho App. 1996) (eight-year-old victim's statements to paramedic during 911
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phone call made within approximately one-half hour of last lewd act were admissible under excited utterance exception to hearsay rule; victim was in obvious distress, and lapse of time was not so great as to render exception inapplicable).

In the case at bar, most of the declarations made were present sense impressions. Hunter Johnson located the unresponsive body of Xana Kernodle and informed Bethany Funke and Dylan Mortensen to call 911. Emily Alandt was present at the time. All declarants personally perceived the event (i.e. Kernodle unresponsive). The majority of the declarations were describing to Dispatcher Carolina Calvin what they were perceiving (i.e. present sense impressions). Those statements relate to Kernodle being passed out and not waking up. The declarations were made immediately after Johnson discovered Kernodle's body.

Some declarations made would also be considered excited utterances. Those statements include " Oh, and they saw some man in their house last night. Yeah " as well as the heaving breathing and crying that can be heard throughout the call. The declarants were responding to a startling occasion (discovery of unresponsive roommate). The statement regarding a person being in the home is in direct response to why Kernodle might be passed out. All statements are made while the declarants are processing what is happening and were made before an opportunity to reflect and fabricate why Kernodle is unconscious. Clearly, the statements of Bethany Funke, Dylan Mortensen, Emily Alandt, Hunter Johnson, and the dispatcher, Carolina Calvin, fall within the hearsay rule exceptions.

Judge John Judge has already ruled that the 911 call is not hearsay (i.e. not offered for the truth of the matter asserted) and even if deemed hearsay, the exceptions for present sense impression and excited utterance apply. On August 23, 2023, Defendant moved to dismiss the grand jury indictment. One basis for that motion was that the 911 call was “ improperly admitted
STATE'S MOTION IN LIMINE RE: 911 CALL

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hearsay, cumulative, irrelevant, and an improper attempt to bolster witness testimony. ” In response, Judge John Judge held as follows:
Further, even if the 911 call is hearsay, the exceptions for ‘ present sense impression ' and ‘ excited utterance ' apply as the statements made by the callers (i.e. the surviving roommates, Hunter Johnson, and another friend who had arrived) were made immediately after Mr. Johnson discovered Ms. Kernodle's body and instructed the roommates to call 911. I.R.E.

803 (1) and 803 (2); E. Side Highway Dist. V. Delavan, 167 Idaho 325, 337, 470 P.3d 1134, 1146 (2019) (the rationale justifying the present sense impression exception is ‘ that the immediacy of the statement offers no opportunity for fabrication "); State v. Petite, 122 Idaho 809, 839 P.2d 1223 (Ct. App. 1992) (finding statements made were excited utterances because victim was still under the stress of the event).

“ Sealed Order Denying Motion to Dismiss Indictment on Grounds of Biased Grand Jury, Inadmissible Evidence, Lack of Sufficient Evidence, and Prosecutorial Misconduct ", Pages 18- 19, Filed 12/15/2023.

Regarding the “ emotion ” in the callers ' voices, Judge Judge further held that the evidence was relevant “ as to why law enforcement was sent to 1122 King Road on November 13, 2022, as opposed to just EMS when the call was for an ' unconscious ' individual. ” This testimony was deemed relevant to the effect it had on Dispatcher Calvin and was not cumulative of Officer Nunes ' testimony. Id.

B. The Statements Made on the 911 Call Are Admissible Regardless of Whether or Not Witnesses Testify Under I.R.E. 803, present sense impressions and excited utterances are admissible whether or not the declarant is available as a witness. I.R.E. 803 (1) and (2).

Any statement found outside of the above exceptions to hearsay are non-testimonial for purposes of a Crawford analysis. Further, even if somehow deemed testimonial, the Confrontation Clause of the Sixth Amendment does not bar their admission:
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Finally, we reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. See California v. Green, 399 U.S. 149, 162, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). It is therefore irrelevant that the reliability of some out-ofcourt statements " ' cannot be replicated, even if the declarant testifies to the same matters in court. ' " Post, at 1377 (quoting United States v. Inadi, 475 U.S. 387, 395, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986)). The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.

Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 1369 (2004). The State submits if any of the declarations made are deemed testimonial, each of the declarations will testify at trial.

CONCLUSION

Based on above cited authority, the State respectfully prays for the court's approval in limine of the admission of the recordings and transcripts of the 911 call to Whitcom on November 13, 2022, immediately following the discovery of Xana Kernodle unresponsive at 1122 King Road.

RESPECTFULLY SUBMITTED this 24th day of February 2025.

ashups. Suning Ashley S. Jennings Sr. Deputy Prosecuting Attorney
STATE'S MOTION IN LIMINE RE: 911 CALL

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CERTIFICATE OF DELIVERY

I hereby certify that true and correct copies of the STATE'S MOTION IN LIMINE RE:
911 CALL 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.

Se Jacie
STATE'S MOTION IN LIMINE RE: 911 CALL

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████████████████████████████████████████ STATE'S EXHIBIT exhibitsticker.com
S-1

CR01-24-31665

█

█

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Exhibit S-2 - – Audio File on Thumb Drive Hand-Delivered Separately
SEALED

State's Motion in Limine RE: 911 Call STATE'S EXHIBIT exhibitsticker.com
S-2

CR01-24-31665

911 CALL

Interviewer: Dispatch / Case # CR29-22-2805 Page 1 1 2 3 4 5 6
7 911 CALL

8 Q = Dispatch 9 Q1 = Man 10 Q2 = Woman1 11 Q3 = Man1 12 Q4 = Man2 13 Q5 = Man3 14 A = Woman 15 A1 = Woman1 16 A2-Man 17 18 19 Q: 911, location of your emergency.

20 21 A: Hi, something is happening. Something happened in our house. We don't 22 know what. We have...

23 24 Q: What is the address of the emergency?

25 26 A: 1122-no don't...

27 28 Q: What is the rest of the address?

29 30 A: Oh, Kings Road.

31 32 Q: Okay. And is that a house or an apartment?

33 34 A: It's a house.

35 36 Q: Can you repeat the address to make sure that I have it right?

37 38 A1: I'll talk to you guys. We're, um, we live at the right, so we're next to them.

39 40 Q: I need someone to repeat the address for verification.

41 42 A1: The-the address? 1122 King Road.

STATE'S EXHIBIT exhibitsticker.com
S-3

CR01-24-31665

911 CALL

Interviewer: Dispatch / Case # CR29-22-2805 Page 2 43 44 Q: And what's the phone number that you're calling from?

45 46 A1: What's your phone number?

47
48 A: █████████

49
50 A1: ████████

51
52 A: █████████████

53 54 A1: █████ what's the rest?

55
56 A: 3185.

57
58 A1: 3185.

59 60 Q: Okay. And tell me exactly what's going on.

61 62 A1: Um, one of our-one of the roommates who's passed out and she was drunk 63 last night and she's not waking up.

64 65 A: No, we saw...

66 67 Q: Okay.

68 69 A1: Oh, and they saw some man in their house last night. Yeah.

70 71 A: Hi...

72 73 Q: And are you with the patient? Okay. I need someone to keep the phone, stop 74 passing it around.

75 76 A: Can I just tell you what happened, pretty much?

77 78 Q: What is going on currently? Is someone passed out right now?

79 80 A: I don't really know, but pretty much at 4:00 am...

81 82 Q: Okay. I need to know what's going on right now, if someone is passed out.

83 Can you find that out?

84

911 CALL

Interviewer: Dispatch / Case # CR29-22-2805 Page 3 85 A: Yeah, I'll come-come on. Let's-we gotta go check. But we have to. Is she 86 passed out? She's passed out. What's wrong?

87 88 Q: Dispatching Moscow Law ambulance for...

89 90 A: She's not waking up.

91 92 Q:... unconsciousness, 1122 King Road.

93 94 Q1: Seven zero is en route...

95 96 Q: Okay. One moment. I'm getting help started that way.

97 98 A: Okay maybe...

99 100 Q: (Unintelligible) 1122 King Road. All ambulance respond for unconsciousness.

101 1122 King Road...

102 103 Q2: I copy.

104 105 Q: (Unintelligible) 58. Multiple RPs on the phone advised saying the roommate 106 on scene is passed out and not waking up. Believe she got drunk last night and 107 (unintelligible) about a male being in the room with them.

108 109 Q1: (Unintelligible) being around.

110 111 Q: That one I copy about 20-year-old female unconscious trying to get further.

112 113 Q1: Copy.

114 115 A2: Yeah. Yeah, it's (Evan).

116 117 A: Okay.

118 119 Q: Okay. And how old is she?

120 121 A: Um, she's 20.

122 123 Q: 20 you said?

124 125 A: Yes, 20, here do you wanna talk to ' em?

126

911 CALL

Interviewer: Dispatch / Case # CR29-22-2805 Page 4 127 Q: Okay.

128 129 A2: Hello? Hello?

130 131 Q: Okay. I need someone to stop passing the phone around because I've talked to 132 four different people.

133 134 A2: Okay. Sorry. They just gave me the phone.

135 136 Q: Is she breathing?

137 138 A2: Hello?

139 140 Q: Is she breathing?

141 142 A2: No.

143 144 Q: Okay.

145 146 Q1: (Unintelligible) en route.

147 148 A2: (Bethany) or (Dylan) I need you to-to talking to them, okay? I can't talk to 149 them. I need you to talk to them.

150 151 A: Okay. Hello?

152 153 Q: Okay. I have already sent the ambulance and law enforcement, stay on the 154 line.

155 156 A: Okay.

157 158 Q: If there is a defibrillator available, send someone to get it now and tell me 159 when you have it. Unit's responding RPs advising...

160 161 A: (Unintelligible).

162 163 Q:... the patient is not conscious, not breathing.

164 165 A: (Unintelligible).

166

911 CALL

Interviewer: Dispatch / Case # CR29-22-2805 Page 5 167 Q: Okay. If there is a defibrillator available, send someone to get it now and tell 168 me when you have it.

169 170 A: We don't have one.

171 172 Q1: Unconscious, not breathing.

173 174 A: Do you have a defibrillator?

175 176 Q3: Yep.

177 178 A: Yes, we have one.

179 180 Q: But are you talking to the officer?

181 182 A: Yes.

183 184 Q: Okay. I'm gonna let you go since he's there with you and can help you.

185 186 A: Okay. Thank you. Bye.

187 188 Q: Okay.

189 190 Q4: Moscow 46 out.

191 192 Q: Copy.

193 194 Q4: 13. I think we have a homicide.

195 196 Q5: Moscow engine 20 is en route.

197
198 Q4: 13 70.

199 200 Q1: 70 (unintelligible). 107 I relayed it.

201 202 203 This transcript has been reviewed with the audio recording submitted and it is an accurate 204 transcription.

205 Signed