State Response to Defendant Motion in Limine 7

Electronically Filed
3/17/2025 5:25 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 2613

PROSECUTING ATTORNEY

ASHLEY S. JENNINGS, ISB 8491

SENIOR DEPUTY PROSECUTING ATTORNEY

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 RESPONSE TO DEFENDANT'S

V. MOTION IN LIMINE # 7

BRYAN C. KOHBERGER RE: WITNESS IDENTIFICATION BY BUSHY

Defendant. EYEBROWS COMES NOW the State of Idaho, by and through the Latah County Prosecuting Attorney, and hereby responds to Defendant's Motion in Limine # 7 Re: Witness Identification by Bushy Eyebrows. Defendant's basis for his motion are the Idaho Rules of Evidence Rules 403, 601, and 602. Applying the Idaho Rules of Evidence to the facts of the case at hand, the Court should find D.M's descriptions of the intruder, including that he had “ bushy eyebrows ” admissible. The State incorporates its previously filed “ State's Motion in Limine Re: Text Messages and Testimony ” as well as the “ State's Motion in Limine RE: 911 Call " into this
STATE'S RESPONSE TO DEFENDANT'S MOTION IN LIMINE # 7 RE: WITNESS IDENTIFICATION
BY BUSHY EYEBROWS 1

response (to the extent that the State is referring to any exceptions to the rule against hearsay as anticipated evidence).

FACTS

On November 13, 2022, sometime before 4:19 a.m., D.M. observed a person inside her residence which she shared with her four roommates at 1122 King Road. See State's Exhibit S-1 (summary exhibit of D.M.'s phone records). D.M. placed several phone calls and sent several text messages to her roommates. Id. at page 1-2. The only roommate who responded is B.F. They had two short phone conversations (24 seconds and 41 seconds). Id. at page 2. Within those phone calls and text messages D.M. relayed to B.F. she saw a person in the residence wearing black and he had on a ski mask that covered his forehead and mouth. Id. at pages 2-3.

On November 13, 2022, at approximately11: 56 a.m., a 911 call was placed from 1122 King Road for a reported unresponsive female. The caller stated one of the roommates was not waking up. Transcript of 911 Call, page 2, lines 62-63. The caller stated “ oh, and they saw some man in their house last night. ” Id. at line 69. Moscow Police Department responded to the scene.

Id. at line 180-182.

The same day at approximately 12:09 p.m., Moscow Police Department Officer Mitch Nunes took a statement from D.M. on scene outside of 1122 King Road. D.M. told Officer Nunes she saw a male “ not insanely tall, ” “ wearing all black, ” and a “ mask that was just covering his forehead and mouth. ” Defendant's Exhibit No. 2, page 17, lines 5-7. Later, D.M.

repeated the description " He was a little bit taller than me, ” “ I couldn't really see much of him, ” and " I'm almost positive he was wearing a full black outfit, and he had this mask that was just over his forehead and over his mouth. ” Id. at page 21, lines 2-7. D.M. gave the description a third
STATE'S RESPONSE TO DEFENDANT'S MOTION IN LIMINE # 7 RE: WITNESS IDENTIFICATION
BY BUSHY EYEBROWS 2

time repeating he had a mask, he was an inch or two taller than her, he was “ basketball player kind of skinny, " and a voice she did not recognize. Id. at page 31, lines 8-25; page 32, lines 1-3.

The same day at approximately 1:47 p.m., D.M. was interviewed at the Moscow Police Department by Detective Lawrence Mowery. During this interview, D.M. reported she saw a white male she did not know, “ maybe my height, a few inches taller, ” “ skinny, athletic built, ” wearing " all black, ” “ wearing this mask that covers just his forehead and here. " Defendant's Exhibit No. 3, page 14, lines 20-25. Regarding his height, she reported “ I'm 5'10 ” so he's probably around 6 '. ” Id. at page 15, lines 20-21. She reported “ I don't remember what his eyes looked like either, ” “ [I] didn't recognize eyes, ” but “ definitely a white guy. ” Id. at page 20, lines 19-20; page 21, lines 2-4.

Four days later, on November 17, 2022, D.M. was interviewed by Idaho State Police (ISP) Detective Victoria Gooch and MPD Captain (then Sergeant) Dustin Blaker. D.M. gave a detailed recounting of what she did on Saturday, November 12, 2022, until she went to bed at approximately 3:20 a.m. on Sunday, November 13, 2022. Defendant's Exhibit No. 6, pages 19-
50. Sometime between 4:00 a.m. and 4:20 a.m. D.M. woke up and heard a male's voice, a voice she did not recognize, say “ It's okay, I'm going to help you. " Id. at page 50, line 11; page 52, lines 15-16; page 53, line 18; page 61, line 25; page 62, lines 1-2, 21-22. D.M. opened her door and saw:
someone ‘ cause it – from my mind, it's, like, I was almost wearing these, like, blurry glasses. Like, it's fuzzy and cloudy, but it was, like, a figure of someone wearing all black. And it was, like, they had a ski mask that was covering their forehead, and their chin, and mouth. But I could see the – I – all I remember was seeing their eyebrows. And I don't – I don't remember what their eyes looked like, but I remember their eyebrows. I don't remember the color the eyebrows were. I just remember, like, bushy eyebrows. That's all I could think about.

STATE'S RESPONSE TO DEFENDANT'S MOTION IN LIMINE # 7 RE: WITNESS IDENTIFICATION
BY BUSHY EYEBROWS 3

Id. at page 74, line 25; page 75, lines 1-10. D.M. described the male as not “ skinny tone, that basketball kind of type. " Id. at page 76, lines 2-3. D.M. stated she is 5'10 " tall so thought the male was “ around 5'10 ” and then 6 ', somewhere around there. " Id. at lines 8-10. D.M. stated the male was approximately three feet from where she was standing, “ I would say about 3 feet, from what I remember. Again, that could be m- m- off ‘ cause I – obviously, probably still a little bit drunk. I just woke up. I don't remember fully. ” Id. at page 77, lines 1-4. Again, she described the male “ I know he looked at me ' cause I could see his eyebrows. I think it – I think I just – I think I just saw one eyebrow. I don't know w- why or how. ” Id. at page 78, lines 6-9.

D.M recounted calling and texting her roommate B.F. and she discussed with B.F. that there was someone in the house wearing all black and a ski mask. See State's Exhibit S-2 (pages 79-104 of transcript not included in Defendant's Exhibit 6), page 79, lines 16-19. D.M. conveyed to the interviewers that the facts didn't fully make sense to her and she didn't know how to explain everything. Id. at page 92, lines 17-18. Detective Gooch explained to D.M. that the important thing was to tell only things she knew were true - " that's the most important. ” Id. at lines 19-24. D.M. agreed. Id. at line 25. Detective Gooch acknowledged D.M.'s trauma. Id. at page 93, line 1-2. D.M. confirmed. Id. at line 3. Detective Gooch and Cpt. Blaker confirmed the facts from D.M.s memory again. D.M. reiterated: she saw a male figure in the hallway approximately three feet from her; he was holding something; he was wearing all black clothes;
his forehead was covered; he was wearing a mask; she remembered his eyebrows. Id. at page 96, line 18-24; page 97, line 3; Defendant's Exhibit 6, page 105, line 18-25. Cpt. Blaker asked what was covering his face and D.M. stated:
STATE'S RESPONSE TO DEFENDANT'S MOTION IN LIMINE # 7 RE: WITNESS IDENTIFICATION
BY BUSHY EYEBROWS 4

I don't know... weird-looking ski mask. It wasn't like the regular ski mask with, like, eyes and, you know, because I saw his eyebrows, and I could –I think I saw his nose and, like, this part of his face, but I don't know.

Defendant's Exhibit 6 at page 105, lines 22-25; page 106, line 1.

Detective Gooch asked D.M. if she knew what a balaclava was and showed her a picture.

Id. at pages 106, line 2. In response and addressing whether she could see the male's mouth, D.M.

stated:
No. And I don't remember if I saw it – like I don't remember if I saw his nose, but I know I saw eyebrows. And I don't remember his eyes. I just feel like I can see eyebrows, but I mean, that could be it.

I mean, that would make sense why the forehead was covered and this part of his face was covered.

Id. at page 107, lines 12-18. The investigators inquired if D.M. could provide a composite for an artist. Id. at page 134, lines 13-15. D.M. responded:
No, I don't ' remember what his eyes looked like. I don't remember what his nose looked like. I just remember eyebrows. I don't know exactly what the eyebrows looked like at all really. I just remember thinking, like, eyebrows.

Yeah, bushy, but that's all -- like I don't remember the shape. I don't remember, like, the color. I just remember, like, bushy eyebrows.

That's the only thing I can remember.

Id. at page 134, lines 18-23; page 135, lines 1-4.

On December 1, 2022, (18 days after first interview) D.M. was interviewed by Forensic Interviewer Erin Williamson. D.M. gave a detailed accounting of Saturday, November 12, 2022, until she went to bed on Sunday, November 13, 2022. Defendant's Exhibit No. 7, page 19-20;
See State's Exhibit S-3 (pages 21-31 of transcript which were not included in Defendant's Exhibit 7), page 21-29. D.M. reported she heard a “ man's voice, and it wasn't Ethan's. It was, like ‘ It's okay, I'm gonna help you '. ” Defendant's Exhibit No. 7, page 32, lines 9-15. D.M. stated
STATE'S RESPONSE TO DEFENDANT'S MOTION IN LIMINE # 7 RE: WITNESS IDENTIFICATION
BY BUSHY EYEBROWS 5

she saw a “ all black figure about my height, maybe few inches taller, ” “ skinny build, ” wearing a mask. Id. at page 33, line 19-22; page 34, line 1. D.M. described “ I don't remember if it was just, like, one eyebrow or two, but it was just, like, this bushy eyebrow. " Id. at page 34, lines 3-5.

D.M. texted B.F. “ there's a guy in all black. ” Id. at page 35, line 22-23. Again, D.M. described the ski mask:
I couldn't see any of his hair... But I remember jus like, seeing like, it was like, almost rectangular like not the circle ones.

It was rectangular ‘ cause I remember seeing like, just like, I don't know how to explain it. Just seeing like, this. Maybe, I'd be able to see like, a cross. But I don't ' remember seeing his eyes, but I feel like his eyes were there. I could just see like, an eyebrow. I feel like that's how I know he saw me ‘ cause I could see his eyebrow.

Like, if I can see his eyebrow, he can see me.

Id. at page 97, lines 6-17. D.M. reiterated:
From what I remember, I think he was like just, like, walking past that little wall and going towards the kitchen. And I don't know like I just remember seeing an eyebrow. I don't know why I just see one it was just, like, one bushy eyebrow. I don't remember the color, like the full shape. I just remember it being bushy.

Id. at page 98, lines 20-25; page 99, lines 1-2. She described his clothing again stating the male was wearing black long sleeves, black pants, and black boots. Id. at page 99, lines 14-19. At the end of the interview, D.M. drew the mask for the interviewer. Id. at. page 174, lines 20-25. While drawing, she gave a consistent description of the mask and noted the eyebrows “ I don't remember if I saw one or two. Like, it was it was just weird. ” Id. at page 176, lines 2-3.

On December 29, 2022, Bryan Kohberger was arrested in Albrightsville, Pennsylvania.

The following day, on December 30, 2022, (47 days after her first interview) D.M. was interviewed by Idaho State Police (ISP) Detectives Joe Lake and Gary Tolleson in Coeur d'Alene, Idaho. Defendant's Exhibit No. 9. D.M. was asked about Bryan Kohberger. D.M. was
STATE'S RESPONSE TO DEFENDANT'S MOTION IN LIMINE # 7 RE: WITNESS IDENTIFICATION
BY BUSHY EYEBROWS 6

asked " [h] ave you seen a picture of Mr. Kohberger? ” Id. at page 96, line 23-24. D.M. responded “ Yeah, I looked him up today when I found out. ” Id. at page 96, line 25; page 97, line 1.

Regarding what picture she saw, she stated “ I've seen the mugshot one with the vest thing, I think. " Id. at page 97, line 6-7. The interviewer asked “ this Bryan Kohberger the person that you saw in this mugshot? Is that the person you saw in your house? ” Id. at page 97, lines 16-18. D.M.

responded:
I have no clue. From what I remember, I just remember seeing this figure that was, like, not fat, obviously but more of like the skinnier tone build, and some mask on. I don't know what the mask exactly was.

But when I thought about it, it was just, like, covering here and here. I don't know if it was covering his mouth, his nose, or below his mouth and nose. I just remember knowing that he was white, but I didn't know how he was white. I just knew he was. And this knowing there's -- like I knew he had looked at me because of the bushy eyebrow. That's all I remember.

But I have no idea what he looked like. I don't like --when I looked at his picture, nothing came back to me at all. So that like I don't know. I feel like if I saw that, my mind would be like, oh, yeah, that's him, but it just – I don't remember at all.

Id. at page 97, lines 19-25, page 98, lines 1-5, 15-20. Regarding D.M. telling B.F. the male had a big nose, D.M. stated:
All I remember... but I don't remember big nose at all, like at all.

That's like – all I remember is like some bushy eyebrow in all black and some sort of mask, but it wasn't like one of those circle ski masks. That's all I remember.

Id. at page 99, lines 12-16.

On May 15, 2023, (183 days after D.M's first interview), D.M. testified at the grand jury proceeding for the above-titled matter. See State's Exhibit S-4, Grand jury testimony. Regarding November 13, 2022, D.M. testified she woke up around 4:00 a.m. to noises (music, Murphy,
STATE'S RESPONSE TO DEFENDANT'S MOTION IN LIMINE # 7 RE: WITNESS IDENTIFICATION
BY BUSHY EYEBROWS 7

talking, and / or singing). Id. at page 168, lines 4-11. D.M. testified she opened her door and heard a man's voice say “ It's okay, I'm going to help you. And I didn't know who the man's voice was. " Id. at pages 174, lines 25; page 175, lines 1-2. D.M. testified she opened her door again and saw:
a figure in all black, which I believe was a person.

I knew the person was white. I don't know how, but I just knew it.

Knew it was male. I think I knew that because of the voice. The person was around my height or a few inches taller.

And then I knew his build wasn't like scrawny, and he wasn't fat, so I figured it was like the basketball toned, lean build.

Id. at page 175, lines 23-25; page 176, 1-13. Regarding what the person was wearing, D.M.

testified There was like, form what I think I remember, it was like a black mask, almost like a ski mask, but not – it just like covered the head, and then maybe up to the mouth, maybe more. I can't remember if it covered just the chin, the mouth, or the nose or lower.

Id. at page 176, lines 14-20. D.M. testified the clothing was “ all black. ” Id. at page 176, line 25.

She testified " Well, the thing I can really remember was something about a bushy eyebrow. I don't remember seeing anything else, just something about a bushy eyebrow. ” Id. at page 177, lines 3-6.

ARGUMENT

I. D.M.'s statements are independently reliable as law enforcement did not employ a witness identification procedure triggering a Manson-Biggers balancing test
STATE'S RESPONSE TO DEFENDANT'S MOTION IN LIMINE # 7 RE: WITNESS IDENTIFICATION
BY BUSHY EYEBROWS 8

The cases relied upon by the Defendant deal with witness identifications that result from the use of law enforcement identification techniques. The facts of each of the cited cases are important because they differ vastly from the facts in the case at hand. In State v. Hoisington, witnesses were shown a six-photo lineup (resulting in Hoisington being identified); photographs of only Hoisington; and a six-person corporeal (i.e. live) lineup (which resulted in witnesses positively identifying Hoisington). In Wurdemann v. State, the witness was shown a six-person video lineup (with only one male matching the description given by the witness) which led to the identification of Wurdemann. In State v. Trevino, the witness was shown a photographic lineup containing several pictures of several men including Trevino. This process did not result in identification until Trevino showed up to police station shortly thereafter.

The United States Supreme Court has held that due process requires the exclusion of identification evidence if police suggestiveness creates the substantial risk of mistaken identification. Stovall v. Denno, 388 U.S. 293, 97 S.Ct. (1967). In Manson v. Brathwaite, the Supreme Court held, “ [R] eliability is the linchpin in determining the admissibility of identification testimony. ” 432 U.S. 98, 114, 97 S.Ct. 2243, 2253 (1977). In Neil v. Biggers, the Supreme Court held that the central question is “ whether under ‘ the totality of the circumstances ’ the identification was reliable even though the [identification] procedure was suggestive. ” 409 U.S. 188, 199, 188 93 S.Ct. 375, 382 (1972). The Supreme Court gave factors to be considered under the totality of the circumstances to determine whether an identification was reliable (i.e.

the Manson-Biggers test). The reliability factors to be employed after a witness identification are as follows: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness ' degree of attention; (3) the accuracy of his prior description of the criminal; (4) the level of certainty demonstrated at the identification; and (5) the length of time between the crime and
STATE'S RESPONSE TO DEFENDANT'S MOTION IN LIMINE # 7 RE: WITNESS IDENTIFICATION
BY BUSHY EYEBROWS 9

the identification. Manson v. Brathwaite, 432 U.S. at 114, 97 S.Ct. at 2253; Neil v. Biggers, 409 U.S. at 199, 93 S.Ct. at 382. If there are “ aspects of reliability ” evident from the factors that substantially outweigh the “ corrupting effect of the suggestive identification, " then the identification testimony will be admissible (i.e. does not violate due process). Manson v.

Brathwaite, 432 U.S. at 106, 114, 97 S.Ct. at 2249, 2253.

In each of the above cited cases, law enforcement employed identification procedures that were arguably suggestive. As a result, it was necessary for the Courts to employ the Manson- Biggers balancing test to determine if the witness ' identification were reliable or instead impermissibly tainted by suggestions that would lead to misidentification. The facts of the Kohberger case are vastly different than the cases relied upon by the Defendant.

In the case at hand, on four separate occasions prior to Bryan Kohberger being arrested, D.M. gave consistent descriptions of the male she saw in the 1122 King Road residence around
4:00 a.m. D.M. gave the following consistent descriptions: (1) white; (2) male; (3) wearing all black; (4) few inches taller than D.M.; (5) wearing a mask; (6) skinny / athletic build / toned; (7) not a voice she recognized. During three of those interviews, D.M. also consistently describes the male's eyebrows. Five times D.M. uses the term “ bushy ” to describe the eyebrow (s).

Regarding identification, after Bryan Kohberger was arrested, D.M. was interviewed. She relayed that she saw a mug shot of the Bryan Kohberger on the internet. Detective Lake asked D.M. “ is this Bryan Kohberger the person that you saw in this mug shot? Is that the person you saw in your house ”? D.M. responded “ I have no clue. ” She relayed to Detective Lake the person she saw had a mask on that covered his mouth and nose. The only discernable features were that the subject was white and had bushy eyebrows. This questioning of D.M. is not a witness identification. There was no law enforcement procedure employed to suggest identification. Most
STATE'S RESPON