Order on State Motions in Limine Regarding Text Messages and 911 Call

Filed: 04/24/2025 15:01:28 Fourth Judicial District, Ada County Trent Tripple, Clerk of the Court
By: Deputy Clerk-Waters, Renee
IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF

THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA

STATE OF IDAHO,

Plaintiff, Ada County Case No. CR01-24-31665
V.

ORDER ON STATE'S MOTIONS IN

BRYAN C. KOHBERGER, LIMINE RE: TEXT MESSAGES AND 911

CALL

Defendant.

I. INTRODUCTION

D.M. and B.F. are the two surviving roommates of 1122 King Road. At the time the homicides were believed to have occurred, D.M. saw an masked intruder in the house and began calling and texting the other roommates, including B.F. Approximately eight hours after D.M.

saw the intruder, B.F. called 911 from her phone. Before the Court is the State's motion to allow the text messages by D.M. and B.F., testimony about their conversations with each other about what D.M. saw, and the 911 call. The State argues these communications are either not hearsay or qualify under one or more exception to the hearsay rule. It also asks that a transcript of the 911 call be provided to the jury to view while listening to the audio. Defendant challenges several of the communications and objects to the use of the transcript.

Oral argument on the motions was held on April 9, 2025, after which the Court took the matters under advisement. The Court finds that some of the hearsay statements on the 911 call do not qualify under the exceptions cited by the State and, therefore, must be redacted. However, the balance of the 911 call as well as the texts and conversations noted herein are likely admissible provided that the requisite foundation is laid at trial.¹ The transcript will be allowed as a demonstrative aid, again assuming proper foundation is established.

1 The Court's rulings on the specific text messages / phone activity and the 911 call statements are appended hereto in table format as Exhibits A and B, respectively.

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II. STANDARD

Whether a statement falls within the present sense impression and / or excited utterance exceptions is a question that is left to the sound discretion of the trial court, giving consideration to the totality of the circumstances. State v. Stover, 126 Idaho 258, 262-63, 881 P.2d 553, 557- 58 (Ct. App. 1994). Use of demonstrative aids is also a discretionary determination. State v.

Weigle, 165 Idaho 482, 487, 447 P.3d 930, 935 (2019) (citing IRE 611). On discretionary matters, the trial court must: 1) correctly perceive the issue as one of discretion; 2) act within the outer boundaries of its discretion; 3) act consistently with the legal standards applicable to the specific choices available to it, and; 4) reach its decision by the exercise of reason. Lunneborg v.

My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018)).

III. FACTS2

After spending the evening out, roommates D.M., B.F., Kaylee Goncalves and Madison Morgan returned to their home at 1122 King Road in the early morning hours of November 13,
2022. At approximately 2:00 a.m., they met up in Kaylee's bedroom and talked for a while before going to bed. The fifth roommate, Xana Kernodle, who was out with her boyfriend Ethan Chapin, was not home yet. The roommates debated going out to a food truck for a late snack, prompting D.M. to send a text at 2:10 a.m. to an Uber driver she knew to see if he was driving.

Exh. D1. Ultimately, however, the girls decided to just go to bed.

At approximately 4:00 a.m., D.M. heard strange noises and crying coming from the bathroom. She opened her door at one point and saw a man dressed in black with a ski mask on walking by her bedroom door. She then placed calls and texts to her other roommates to see if they were awake. Only B.F., who resided on the ground floor, answered. They spoke once for 24 seconds, during which D.M. told B.F. she thought she heard something. They spoke again a 2 The parties submitted various portions of the grand jury transcript as different exhibits, including the State's Exhibit S-1 to the 911 call motion, Defendant's Exhibit 1 to his objection to the 911 call motion and State's Exhibits S-21 and S-3 to the text message motion. To avoid confusion, the Court will cite to the grand jury transcript, rather than cite to the individual exhibits. Citations to D.M.'s and B.F.'s phone activity in bubble format, attached as Exhibits 1 and 2 respectively to Defendant's objection to the State's text message motion, will be referenced as Exhibits D1 and D2.

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minute later for 41 seconds when D.M. told B.F. she saw a man in a ski mask leaving the house.³ They then exchanged the following text messages between 4:22 and 4:26 a.m.:
D.M. to B.F.: No one is answering
D.M. to B.F.: I'm rlly confused rn.

D.M. to Kaylee: Kaylee
D.M. to B.F.: What's going on
B.F. to D.M.: Ya dude wtf
B.F. to D.M.: Xana was wearing all black
D.M. to B.F.: I'm freaking out rn
D.M. to B.F.: No it's like a ski mask almost
B.F. to D.M.: Stfu
B.F. to D.M.: Actually
D.M. to B.F.: Like he had soemtbinf over is for head and little nd mouth
D.M. to B.F.: Bethant I'm not kidding o am so freaked out
B.F. to D.M.: So am I
D.M. to B.F.: My phone is going to die fuck
B.F. to D.M.: Come to my room
B.F. to D.M.: Run
B.F. to D.M.: Down here
D.M. to B.F.: I'm scRwd tho
B.F. to D.M.: Ya IK but it's better than being alone Exh. D1.4 During the foregoing exchange, D.M. also attempted contacting Ethan Chapin through Snapchat. Id; GJ Trans. at 181: 6-21.5 She again tried calling Kaylee and Xana, but neither responded. Exh. D1; GJ Trans. at 182: 4-15. D.M. then exited her room and began running toward B.F.'s bedroom. On her way, she noticed Xana lying on the floor of her bedroom, with her head towards the wall and her feet toward to the door. D.M. thought Xana was drunk. GJ
Trans. at 182: 16-183: 7.

Once D.M. arrived at B.F's room, they locked the door and both made additional unanswered calls to the other roommates. At 4:32 a.m. D.M. again texted Kaylee, " Pls answer " 3 B.F. testified to her recollection of the content of these two phone calls before the grand jury; however, D.M. could not recall specifics about what was said. GJ Trans., 171: 20-173: 5; 236: 19-238: 11.

4 The typos and abbreviations are in the original messages.

5 D.M. testified before the grand jury that Instagram is a text messaging app that is used by young adults to communicate.

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with no response. Exh. D1. Between approximately 5:00 a.m. and 6:30 a.m., D.M. engaged in activity on her phone, primarily creating, editing and deleting images and videos. Id. Her phone activity then ceased until 8:05, when D.M. accessed Instagram for a few minutes. Id. At 10:00 a.m., D.M. again accessed Instagram and communicated over Snapchat. At 10:23, she texted Madison, asking " R u up [.] " Id. She received no response. D.M. continued to access Instagram and Snapchat until 11:29 a.m., when she texted Kaylee, " R u up?? " Id. Again, there was no response, which D.M. thought was strange because Kaylee and Madison were “ early wakers. ”
GJ Trans. at 188: 15-24. D.M. continued accessing various social media sites, included checking Ethan and Xana's Snapmap locations. Exh. D1; GJ Trans., at 188: 7-13. At approximately 11:40, D.M.'s father texted her about scheduling a time for a chat, to which D.M. responded. She also received two texts from a person named " Jenna " stating: " bro " and " do u guys need me to come get u? " Exh. D1.

At approximately 11:50 a.m., D.M. called her friend E.A. and asked her to come over and check the house because she was scared. E.A. and her boyfriend, H.J. came over. Exh. D1; GJ
Trans. at 276: 9-12. They met D.M. and B.F. at the bottom floor of the house. GJ Trans. at 277: 2-
4. Together D.M., B.F. and H.J. started to walk up the stairs to the second floor. When they reached the second floor, H.J. went to the kitchen to grab a kitchen knife. When he came back out, D.M. " saw Xana again for a split second. And I just started bawling because I thought she had just like-I don't even know. I thought maybe she was still just drunk and all asleep on the floor. " GJ Trans. at 190: 1-25; 245: 22-246: 20. B.F. also saw Xana lying on the floor. Id. at 231: 13-17.

H.J. told D.M. and B.F. to " get out. " E.A., who had started up the stairs, also turned around after H.J. instructed her not to come any further. Id. at 276: 13-21. They both went outside. Shortly afterwards, H.J. exited the house and told them to call 911. He was pale white and mentioned something about someone being unconscious. Id. at 191: 9-18.

At 11:56 a.m., B.F. called 911 from her cell phone and spoke to Carolina Calvin, the 911 dispatcher. The call lasted four minutes and 11 seconds. During the call, the phone was passed around to different individuals, including B.F., D.M., H.J. and an unidentified female speaker.

Heaving, heavy breathing and crying can be heard throughout the call. B.F. spoke first, stating " something is happening. Something's happened in our house and we don't know what. " State's Exh. S-2 (911 call audio). B.F. attempted to provide the address of the house to dispatch but 4

could not continue. Id. At that point, an unidentified female speaker took the phone and provided the address and B.F.'s phone number. The following exchange ensued:
911 operator: Okay. And tell me exactly what's going on.

Female: Um, one of our one of the roommates who's passed out and she was drunk last night and she's not waking up.

911 operator: Okay.

Female: Oh, and they saw some man in their house last night. Yeah.

911 operator: And are you with the patient?

D.M.: Hi, this is [D.M.] 911 operator: Okay. I need someone to keep the phone, stop passing it around.

D.M.: Can I just tell you what happened, pretty much?

911 operator: What is going on currently? Is someone passed out right now?

D.M.: I don't really know, but pretty much at 4:00 a.m.

911 operator: Okay. I need to know what's going on right now, if someone is passed out. Can you find that out?

DM: Yeah, I'll come come on. B. We got to go check. But we have to.

Is she passed out? She's passed out. What's wrong? She's not waking up.

H.J.: Xana Id.

D.M. then informed dispatch that Xana was twenty years old. At that point, H.J. took the phone. Dispatch asked him if " she ” was breathing, to which H.J. answered " No. " Law enforcement arrived at that point and, after confirming with D.M. that the responding officer had 5

a defibrillator, dispatch ended the call. Later, at approximately 1:04 p.m. that day, D.M. received a Vandal Alert regarding the homicide.

IV. ANALYSIS

The State seeks to admit D.M.'s and B.F.'s phone records from November 13, 2022, including call records and text messages, as well as elicit testimony by D.M. and B.F. regarding their communications with each other on November 13, 2022 that they testified to before the grand jury. The State also seeks to admit the 911 call and the official transcript thereof. The State argues these records and communication are not hearsay, or they are excepted from hearsay as exited utterances or present sense impressions. Defendant objects, arguing that-apart from H.J.'s statement to 911 that Xana was not breathing-the exceptions do not apply to the hearsay statements. The Court finds the bulk of the statements are likely admissible, with three exceptions of statements made during the 911 call.

Hearsay is an out-of-court statement admitted to prove the truth of the matter asserted.

IRE 801. To be hearsay, the statement must be intended as an assertion of fact and offered by the proponent for purposes of proving the truth of the assertion. State v. Guerra, 169 Idaho 486, 500, 497 P.3d 1106, 1120 (2021) (citations omitted). If a statement is hearsay, to be admitted, it must fall under an exception.

Hearsay statements on a 911 call can typically be admitted into evidence under either the public record or business record exceptions to the hearsay rule. Bemis v. Edwards, 45 F.3d 1369, 1372 (9th Cir. 1995) (citing FRE 803 (8) and 803 (6)). “ 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. " Id. Typically these exceptions include the present sense impression exception and the excited utterance exception. 4 Clifford S. Fishman, Jones on Evidence § 28:16 (7th ed) (Dec. 2024 update).

The present sense impression exception authorizes the admission of hearsay if it is " a statement describing or explaining an event or condition, made while or immediately after the declarant perceived it. " IRE 803 (1). " The rationale justifying the exception is that the immediacy of the statement offers no opportunity for fabrication. " Lola L. Cazier Revocable Tr. v. Cazier, 167 Idaho 109, 119, 468 P.3d 239, 249 (2020) (citation omitted). The rule " recognizes that in many, if not most, instances precise contemporaneity is not possible and hence a slight [time] lapse is allowable. " Id. (quoting FRE 803 (1) advisory committee note (emphasis added in 6

Cazier)). In Cazier, the Idaho Supreme Court observed that time lapses as short as forty-five minutes have been considered too long to invoke the protection of the exception. Id. (citation omitted).

The excited utterance exception to the hearsay rule authorizes the admission of hearsay if the testimony recounts " [a] statement relating to a startling event or condition while the declarant was under the stress of excitement caused by the event or condition. " IRE 803 (2). To fall within the excited utterance exception: 1) there must be a startling event that renders inoperative the normal reflective thought process of the observer, and; 2) the declarant's statement must be a spontaneous reaction to that event rather than the result of reflective thought. State v. Hansen, 133 Idaho 323, 325, 986 P.2d 346, 348 (Ct. App. 1999) (cites omitted).

In considering whether a statement meets the excited utterance requirements, the totality of circumstances must be considered, including 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. Id. (citation omitted). " There is no bright line rule as to the allowable time span between the event and the statement, and one likely should not be drawn. " State v. Griffith, 144 Idaho 356, 363, 161 P.3d 675, 682 (Ct. App. 2007). As with the present sense impression exception, the rationale underlying the excited utterance exception is the " special reliability which is regarded as furnished by the excitement suspending the declarant's powers of reflection and fabrication. " Id., (quoting State v. Burton, 115 Idaho 1154, 1156, 772 P.2d 1248, 1250 (Ct.App.1989)).

A. Text Messages and Verbal Conversations Between D.M. and B.F. are Likely Admissible.

As an initial matter, the Court finds that D.M. and B.F.'s acts of making phone calls, sending or receiving text message and other phone activity such as accessing social media are not hearsay. Hearsay only captures an " oral assertion, written assertion, or nonverbal conduct intended as an assertion. " IRE 801 (a). Thus, this Order will focus on the content of those calls and texts, to the extent available.

As to the content of D.M. and B.F.'s text messages about what D.M. saw, the Court finds they are either not hearsay because they are not offered for the truth of the matter asserted or not assertions or, if hearsay, they likely qualify as a present sense impression and / or excited utterance as set forth in Exhibit A hereto. Their verbal discussions are potentially admissible for 7

these same reasons. The State must establish the foundational requirements for such proffered statements at the time of trial.

1. D.M. texts Uber driver at 2:10:29 to inquire if he is driving The State seeks to introduce this text to establish a timeline, specifically to establish D.M.

was awake and texting at 2:10 a.m. Defendant does not directly challenge the text. Because it is not offered for the truth of the matter asserted and / or not an assertion of fact, the Court finds it is not hearsay under IRE 801.

2. Text messages between 4:22 and 4:26 a.m.

The State argues that the four-minute series of text messages between D.M. and B.F., with one from D.M. to Kaylee, are admissible as either present sense impressions or excited utterances. Defendant suggests neither exception applies because there is no evidence they were sufficiently startled by the events. He points out that D.M. claimed only to be " confused " and, despite stating she was scared, she ran to B.F.'s room instead of leaving the house or otherwise calling other friends and family for help. The Court agrees with the State for those texts qualifying as assertions.6 First, the present sense impression exception does not require a startling event. It simply requires that the speaker describe or explain a condition while personally perceiving it or immediately thereafter. IRE 803 (1). Most of D.M.'s texts to B.F. satisfy this exception. She first texts that " no one is answering, " which describes the results of her calls to the other roommates just moments before. She also states what she is immediately feeling, i.e., " confused, ” “ freaked out, " and " scared " " over what she just saw and heard and the fact that none of her roommates are answering. She further describes the intruder she saw, i.e., wearing a " ski mask " or something over his forehead and mouth. She also relays that her phone is " going to die. " Thus, these statements are all likely admissible as present sense impressions.

In addition, the events are sufficiently startling to both D.M. and B.F. for purposes of the excited utterance exception. D.M. and B.F. are young female college students and the self- 6 Several of the texts in this exchange are not assertions of fact but rather inquiries and / or commands incapable of being proved true of false. See, Guerra, 169 Idaho at 500, 497 P.3d at 1120 (noting that instructions, commands, requests and inquiries are typically not assertions for purposes of the IRE 801.) 7 Her text states she was " scRwd. " Considering that the " A " is right next to the Caps Lock key and the " E " is right next to the " W " key, it is evident she was likely texting quickly and accidentally mistyped " scared. " 8

described " scaredy cats of the house. " GJ Trans. at 172: 5-8. They were awoken from sleep after a night of drinking with D.M. reporting that she heard noises and saw a masked intruder in their home. None of the other roommates were responding to their calls and texts, further indicating something was amiss. It would be potentially terrifying for anyone, including these young women. To argue that they would have run out of the house or called someone else for help had they really been startled unempathetically ignores these circumstances and the trauma and confusion they were evidently experiencing, which likely offset logical thought. Indeed, the girls ' fear and confusion is evident in their words, with both questioning what was going on, D.M. stating she was " freaked out, " " scared " and " confused " and B.F. attempting to get them together quickly for safety. They were clearly under stress and attempting to make sense of frightening situation.

Additionally, the time period that elapsed between what D.M. saw and her communications with B.F. about the same was a matter of minutes. The text message exchange lasts approximately four minutes, with the messages occurring in rapid succession. This timeline left no time for the reflection or fabrication, which is ultimately what IRE 803 (1) and 803 (2) seek to protect against. Consequently, the Court concludes that the assertive text messages within this four-minute period are likely admissible as present sens