Still Missing CO - Suzanne Morphew, 49, Chaffee Co, 10 May 2020 *arrest* #95

[mrjitty]

I went back to the prior thread and found the test applied by the judge to the DV statements

It's the four part test in Spoto

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

In other words, evidence of other crimes, wrongs or acts is inadmissible if the logical relevance of the proffered evidence depends upon an inference that a person who has engaged in such misconduct has a bad character and the further inference that the defendant therefore engaged in the wrongful conduct at issue. E. Imwinkelreid, Uncharged Misconduct Evidence § 2.18 (1984) (hereinafter Imwinkelreid).

Read together, these rules require a four-part analysis to determine whether evidence of prior acts is admissible. First, we must ask whether the proffered evidence relates to a material fact, i.e., a fact "that is of consequence to the determination of the action." CRE 401; Carlson, 712 P.2d at 1021. If it does, we proceed to the second question: is the evidence logically relevant, i.e., does it have "any tendency to make the existence of [the material fact] more probable or less probable than it would be without the evidence?" CRE 401; Carlson, 712 P.2d at 1021. If the evidence is logically relevant, we then must determine whether the logical relevance is independent of the intermediate inference, prohibited by CRE 404(b), that the defendant has a bad character, which would then be employed to suggest the probability that the defendant committed the crime charged because of the likelihood that he acted in conformity with his bad character. See CRE 404(b); Imwinkelreid § 2.18. Finally, if the proffered evidence survives the first three parts of the analysis, we must assess whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. CRE 403; Carlson, 712 P.2d at 1022.
​

ETA: So the statements were excluded on the basis of the rule against propensity evidence - rather than the hearsay nature of the statements.

 

[Seattle1]

Colorado Judicial Branch - Supreme Court - Committees - Model Criminal Jury Instructions Committee

Model Criminal Jury Instructions Committee
Colorado Jury Instructions—Criminal (2020)

CHAPTER D EVIDENTIARY INSTRUCTIONS
Pg 177/3665

Pdf and Word at link

ETA: Copyright rules apply - for reference only.

 

[Momofthreeboys]

Yes that is why I think the motions on admissibility will shape the trial. We have known since the AA was released and subsequently voiced by two different judges and plenty of lawyers out in internet land that not all the theories in the document would be admissible. There is still information on a vehicle and a laptop I believe still unaccounted for. We also have no insight into how much effort was put into the RV Park, who was staying at the Cushman’s leading up to the disappearance and some sightings that were part of the radio interview with FB which may or may not play a role on the defense or prosecution side.

 

[marylamby]

Same.
BM really really really wants those LE officers to know he has sex.

LOL! I thought the same. Hmm, maybe what he really has is ED issues?

 

[waldojabba]

No, I bet Barry Morphew does.

I can understand why you say that @Warick7 but IMO Barry sleeps quite well - I wish I thought otherwise
After the last hearing, posted on these threads, was a tape/video, of when Barry was leaving court walking out to his truck. One of his legal gals had him pulled in close to her outside the courthouse in the dark parking lot.
She was whispering in his ear. The Felon whisperer lol.
Soothing and lulling him into complacency IMO, by convincing him that he is absolutely 100 percent not going to jail.
I also suspect Barry has never ever read the full AA. I think they advised him to leave that all up to them. So I really suspect he is living in a little bubble counting the days until he is free.

I think the Defense has the most to lose here ( excepting BM of course)
They desperately want an acquittal
Not because they care about Barry,but because they are very ambitious and building their brand.
An acquittal for Barryl equals a lot of new business, notoriety and ego satisfaction to them.
Look at us - we did it again, masters of the universe!
And they totally know it’s not a slam dunk, despite what they are whispering in the ear of their client

 

[MassGuy]

Yes that is why I think the motions on admissibility will shape the trial. We have known since the AA was released and subsequently voiced by two different judges and plenty of lawyers out in internet land that not all the theories in the document would be admissible. There is still information on a vehicle and a laptop I believe still unaccounted for. We also have no insight into how much effort was put into the RV Park, who was staying at the Cushman’s leading up to the disappearance and some sightings that were part of the radio interview with FB which may or may not play a role on the defense or prosecution side.

How does any of that matter?

One man came home and his wife's footprint completely ended.

This man was home when her phone powered down that final time.

This man was active in his driveway when he claimed to be sleeping.

This man took a wrong turn, one that put him where the helmet was located.

This man's alibi was that he worked on a wall all day, traveling back and forth from the hotel to that location. He made one visit, dumped trash before and after (the majority before), lied about where he was when he received that phone call, and staged tools at the desk to make it seem like he rushed back from the wall site.

So in order for the trailer park or anything else to matter, all these things would have to mean nothing, and Suzanne would have had to have gone on a bike ride that morning.

A bike ride in a place she had never gone, at an unusual time, without her camelback and sunglasses, and with a phone that she never bothered to turn on - - on Mother's Day, with her daughters returning home, and on the very day her best friend's daughter was getting married.

No evidence can cancel this stuff out.

 

[payitforward3000]

Looking at this from the defense point of view. JL is on the stand. IE asks him how many times in what time period Sm traveled out of state to meet him? 6 time in 18 months (from my recollection in the AA). The defense, She was a stay at home mom. Is the ability to take 6 solo out of State trips sound like some one married to a controlling husband?

I’m assuming BM is portrayed by the DA as a controlling husband who suddenly realizes he is losing control and kills SM, in their theory of what happened. How can 6 non family/non business trips in 18 months to meet her lover, not raise reasonable doubt to a juror about BM being a controlling husband. If a juror thinks the DA is not honest about this, why believe him about the rest of the story?

All the above is IMO.

If he were to benefit from some "alone time" (wink wink) while she were out of town he may have supported her trips. JMO

 

[NothingSurprisesAnymore]

I personally believe that BM let her know he was on his way while monitoring her on his phone via the cameras to see how she would react/respond to that. He wanted to know what she would do if she knew he was on his way home. After he got home....those cameras were shut off, imo.

Though SM had been receiving and responding to texts that afternoon I think by the time BM sent his done headed back text she was focused on or engaged in W/A.
I think Barry was fuming at her not responding. I think he was feeling the brunt of having lost influence over her. There was a shift of power within their relationship and he knew she'd moved on from what he was desperately trying to keep.
JMO
And after thinking about the purpose of his calls I think it was to harass her. To get her off balance lending her susceptible to his bullying.

 

[Boxer]

The defense is mustering up a defense that men are allowed to kill unfaithful wives.
IE will try to use that theme to lessen the impact of evidence.
That and being confusing, mocking witnesses and attempting to discredit experts.

She did a good job talking dumb with "walking through walls"
I Google Earthed BM's path and it made complete sense, it showed the path of a person runnimg around at about 5mph.

DA beware, all trial evidence will need to be visual as well as spoken, with clear and unassailable graphics.

Don't expect something said once or twice during testimony, with a record of it only as a handwritten entry in a jurors notepad to overcome days of IE repeating misleading "sound bitey" things, like "walking through walls."

 

[Scootie98]

The Morphew's faith was a big part of their life and marriage as verified in AA and has been discussed frequently by those following this case.

When I read BMs statement that he told Suzanne when discussing marriage that he is a godly man and marriage is for life, I thought...who talks like that? Specifically calling himself a godly man. Yes, that's something a Christian hopes to become but it is a description that we would not make of ourself but would hope others would describe us as being.

Regarding him holding her accountable to submit to him as his wife he seemed to conveniently neglect his even higher calling to love her as Christ loved the church meaning a willingness to love her to the extent he would give his life for her. Quite the opposite of the act he is accused of commiting.

Seems when he spoke of Christianity he did so using platitudes that suited him.

I hope Barry comes forward with the truth of what happened Saturday May 9th and reveals the location of Suzanne's body. It would be best for all who know and love the Morphew family, including him. I believe it would bring healing that only comes with the truth.

Jmo

Reading the cousin's story....something caught my attention. It was mentioned that Barry asked Suzanne to "share her testimony" with the cousin at the very end of the visit, IIRC. Funny though.....Barry didn't share his testimony.

 

[Seattle1]

A large portion of the content posted here has consisted of speculation about BM's character, many taking off from SM's assessment of him as "narcissistic" and as exhibiting the behaviors we associate with a very selfish and self absorbed man. This is an interesting way to pass the time and may be mildly therapeutic for us, but @Momofthreeboys is right to point out that even if this were admissible in evidence, the evidence to prove BM's character is pretty thin and likely selective.

Just as important, the jury will not hear anything of this kind.

^^bbm

I disagree. This Issue is nowhere as matter of fact as OP presents.

D:12 CHARACTER-PARTICULAR TRAIT

In arriving at your verdict you may consider evidence of the defendant's character in determining whether the defendant would be likely to commit the offense charged.

NOTES ON USE

This instruction is only to be used when evidence has been admitted concerning the particular trait(s) involved in the offense charged. Lutz v. People, 133 Colo. 229, 293 P.2d 646 (1956). While the Supreme Court of Colorado has ruled that the failure to give this instruction is not reversible error, Reigan v. People, 120 Colo. 472, 210 P.2d 991 (1949), the better practice would be to use this instruction when it is appropriate.

https://www.courts.state.co.us/user...ructions/CHAPTER_DEvidentiaryInstructions.pdf

 

[Momofthreeboys]

I can understand why you say that @Warick7 but IMO Barry sleeps quite well - I wish I thought otherwise
After the last hearing, posted on these threads, was a tape/video, of when Barry was leaving court walking out to his truck. One of his legal gals had him pulled in close to her outside the courthouse in the dark parking lot.
She was whispering in his ear. The Felon whisperer lol.
Soothing and lulling him into complacency IMO, by convincing him that he is absolutely 100 percent not going to jail.
I also suspect Barry has never ever read the full AA. I think they advised him to leave that all up to them. So I really suspect he is living in a little bubble counting the days until he is free.

I think the Defense has the most to lose here ( excepting BM of course)
They desperately want an acquittal
Not because they care about Barry,but because they are very ambitious and building their brand.
An acquittal for Barryl equals a lot of new business, notoriety and ego satisfaction to them.
Look at us - we did it again, masters of the universe!
And they totally know it’s not a slam dunk, despite what they are whispering in the ear of their client

I don’t think anyone thinks it is a slam dunk for either side and that is what makes the case interesting. I don’t think I know any attorneys that “don’t care if they win or not” at trial defense or prosecuting attorneys. If they aren’t terribly invested in trial they are busy working out plea deals…both sides.

 

[K9Enzo]

LOL! I thought the same. Hmm, maybe what he really has is ED issues?

I hinted at this at one point in 2020. I envisioned an affair being discovered and a explosive & dangerous argument happening where he was confronted head on with his manhood - “you can’t and don’t please me”. How would BM handle all of that in one dose? I don’t think he’s sex obsessed as in addicted to sex, but his talk especially with investigators leads me back to this perhaps wild theory. He also comes off as a one upper kind of dude in conversations, a constant exaggerator. To tell someone your wife has an orgasm every time you have sex with her is laughable and immediately sounds like a lie (sorry guys). He sounds like a boy, a fool. Imo

<modsnip: discussing religion in general>

 

[NothingSurprisesAnymore]

Reading the cousin's story....something caught my attention. It was mentioned that Barry asked Suzanne to "share her testimony" with the cousin at the very end of the visit, IIRC. Funny though.....Barry didn't share his testimony.

Regarding BM not sharing his testimony I was thinking the same as you but reserved comment.
We've heard accounts of SM giving her testimony but not Barry. A real testimony of conversion is more than just having an understanding of Christian theology and being familiar with its terms. There is a change of life and perspective. The core of a testimony also includes a level of humility as the person realizes where they stand before a holy God and need for redemption. And lastly a testimony requires authenticity because the person giving a testimony cannot lead another to where they haven’t been themselves.
Just my experience and opinion

 

[sk716]

It appears most think Suzanne’s affair was the trigger for Barry killing her. I do believe if he found her texting JL or taking a nude selfie that would have triggered him at that moment.

But what most aren’t talking about is what I believe was the main motive: money. Barry didn’t want to split what they had but I believe evidence might come into play of nefarious financial dealings. Suzanne may have found out. Maybe not. But I believe he planned and premeditated her murder for a long time. If so, I think there will be some surprises at trial.

I don't think the affair was the trigger. The trigger was Suzanne looking at houses. She knew the money from the sale of the IN house was coming, she wasn't backing down.

If you go through what we know of Barry's behavior, he knew she was having an affair by November of 2019. He had been suspicious almost as soon as it started if you factor these events.

September 2018 – Suzanne sends “Howdy stranger” message to Libler
First contact since high school.

Fall 2018 – Libler’s daughter sees messages from Suzanne on his phone.
Libler breaks it off.

Thanksgiving 2018 – Barry obsessive/possessive.
While Suzanne was at the Oliver’s house, she had stepped away from her cell phone to use the restroom, and Barry tried calling her several times within a few minutes, then tried calling Sheila, then tried calling Darin.

Holidays 2018 – Suzanne finds Libler’s LinkedIn Page.
Relationship Rekindled

January 2019 – The Mexico trip where Barry took Suzanne’s phone
Mexico trip mentioned in the grievances list where Barry took Suzanne's phone.

February 11 – 14, 2019 – Suzanne in New Orleans with Libler
Barry admitted to questioning Suzanne about the New Orleans trip, further evidence he suspected the affair.

September 2019 – Barry stalks Suzanne and Shelia Oliver, creeping through woods.
Barry stalked Suzanne and Sheila at the Puma Path house in September 2019.

Holidays 2019 – Suzanne and Libler stop talking on the phone because she is afraid Barry will find out.
They shift to more covert ways to communicate. Barry's second device makes its first appearance.

Late February 2020 – Suzanne in Florida, sees father and Libler.
Suzanne skips out on time with her father to see Libler. Barry goes to Florida.


It's easy to see laid out like this. I'm not certain when he figured out that it was JL, but he was onto the affair pretty quickly. I mock Barry a lot, but he's a lot smarter than anyone gives him credit for. I don't think he cared that someone else was taking on her emotional needs, left him more time to do his own thing. He made attempts to catch them together, though. Barry knew Suzanne used SO as a cover to see JL and wrongly assumed that JL was at Puma Path in September 2019. He showed up unannounced in FL when he figured out she was seeing JL again.

A question that has seen nagging me is, what would have happened if Barry had caught Suzanne with JL?

 

[sk716]

I personally believe that BM let her know he was on his way while monitoring her on his phone via the cameras to see how she would react/respond to that. He wanted to know what she would do if she knew he was on his way home. After he got home....those cameras were shut off, imo.

He took the game cameras down before he went to DSI. The little spy camera is still in play until he leaves the house on the morning off the 10th, though.

 

[Diddian]

He took the game cameras down before he went to DSI. The little spy camera is still in play until he leaves the house on the morning off the 10th, though.

Yes, and LE found the instructions for it in a bathroom drawer.

Perhaps SM extended the invitation to JL to join her via wa, locked the bedroom door, and then headed into the master bath for a shower, unaware BM was there by camera.

 

[CGray123]

Respectfully, Jury instructions in Criminal cases are often argued by the defense and prosecution before being tendered to the jurors. They're not delivered in a vacuum without a basis or understanding of use.

From the link (CIVIL Jury Instructions):

3:4 No Speculation continued.........

Notes on Use

Although the prohibition against surmise, speculation or conjecture is applicable to all issues on which a party may have the burden of proof, it is frequently referred to on issues of damages. The prohibition does not mean, however, that damages must be established with absolute certainty. See Instruction 5:6; Palmer v. Diaz, 214 P.3d 546 (Colo. App 2009) (difficulty in assessing damages does not preclude damages award).

ETA: CRIMINAL Jury Instructions linked downthread.

Thanks! I thought I was in the criminal instructions. However, as you are doubtless aware, the standard instructions for criminal cases also prohibit speculation and require inferences to be based on evidence. RSBM, BBM:

E:03 PRESUMPTION OF INNOCENCE, BURDEN OF PROOF, AND REASONABLE DOUBT

"...

The burden of proof is upon the prosecution to prove to the satisfaction of the jury beyond a reasonable doubt the existence of all of the elements necessary to constitute the crime charged.

Reasonable doubt means a doubt based upon reason and common sense which arises from a fair and rational consideration of all of the evidence, or the lack of evidence, in the case. It is a doubt which is not a vague, speculative or imaginary doubt, but such a doubt as would cause reasonable people to hesitate to act in matters of importance to themselves.

..."

D:11 INFERENCES—GENERAL

A permissible inference allows, but does not require, you to find a fact from proof of another fact or facts, if that conclusion is justified by the evidence as a whole. It is entirely your decision to determine what weight shall be given the evidence.

..".

I am aware that the pattern jury instructions are sometimes modified by the judge after hearing from both parties. But these two would seem to be so fundamental as to require no amendment.

I would be interested to hear about a case in which speculation was allowed!

 

[Scootie98]

Regarding BM not sharing his testimony I was thinking the same as you but reserved comment.
We've heard accounts of SM giving her testimony but not Barry. A real testimony of conversion is more than just having an understanding of Christian theology and being familiar with its terms. There is a change of life and perspective. The core of a testimony also includes a level of humility as the person realizes where they stand before a holy God and need for redemption. And lastly a testimony requires authenticity because the person giving a testimony cannot lead another to where they haven’t been themselves.
Just my experience and opinion

The act of asking another person to share "their testimony" is out of line entirely. It is that person's discretion about when, where and to whom that is in order. Barry didn't even grant Suzanne the humanity or spiritual authority to exercise that act of her own accord. Selfish, and self-serving on every level.

 

[OldCop]

A question that has seen nagging me is, what would have happened if Barry had caught Suzanne with JL?

We would be looking for 2 missing persons?