Still Missing CO - Suzanne Morphew, 49, Chaffee Co, 10 May 2020 *arrest* #98

[O.Incandenza]

^^bbm

To be clear, Spoto test is not limited to domestic violence events.

In my posts, I've specifically omitted the details of the Spoto case in hope that readers would instead acknowledge the resultant Spoto test that trial courts have been using since the Supreme Court Decision of 1990, and reaffirmed with People v Garner, 2009.

In response, IMO, Judge Lama's prohibitive purpose means his admitting prior act DV evidence only by ignoring the 3rd and 4th prongs of the four-part analysis as set forth in People v Spoto (i.e., Spoto test).

Before prior act evidence can be admitted against the defendant in a criminal case, the trial court must first conduct a four-part analysis as set forth in People v. Spoto.

That analysis requires the court to find, based upon the sufficiency of the prior act evidence proffered by the prosecution, that:

(l) the proffered evidence relates to a material fact;

(2) the evidence is logically relevant;

(3) the logical relevance is independent of any intermediate inference prohibited by C.R.E. 404(b), such as an inference that the defendant acted in conformity with his or her bad character; and

(4) the probative value of the evidence substantially outweighs the danger of unfair prejudice to the defendant.

In addition to the Spoto analysis, prior to admission of other crimes evidence, the court must be satisfied by a preponderance of the evidence that the defendant committed the other crime(s).

Colorado Criminal Domestic Violence Law – The Unfairness Of The Admission of Evidence of Character Other Crimes, Wrongs, or Acts – The So Called 404B – Similar Transactions Evidence

Right, and people seem to be referring to Spoto as a random case that he decided to cite. It's the binding precedent that he is required to apply in determining whether evidence of prior bad acts is admissible. You can disagree with his application of the test, but he has to apply that test.

Based on the snippets of quotes we've seen, he seems to be saying that the evidence of prior abuse in this case satisfies factors 1 and 2, but fails factors 3 and 4. But it's almost impossible to know for sure based on the limited reporting we get.

 

[Love Never Fails]

^^bbm

To be clear, Spoto test is not limited to domestic violence events.

In my posts, I've specifically omitted the details of the Spoto case in hope that readers would instead acknowledge the resultant Spoto test that trial courts have been using since the Supreme Court Decision of 1990, and reaffirmed with People v Garner, 2009.

In response, IMO, Judge Lama's prohibitive purpose means his admitting prior act DV evidence only by ignoring the 3rd and 4th prongs of the four-part analysis as set forth in People v Spoto (i.e., Spoto test).

Before prior act evidence can be admitted against the defendant in a criminal case, the trial court must first conduct a four-part analysis as set forth in People v. Spoto.

That analysis requires the court to find, based upon the sufficiency of the prior act evidence proffered by the prosecution, that:

(l) the proffered evidence relates to a material fact;

(2) the evidence is logically relevant;

(3) the logical relevance is independent of any intermediate inference prohibited by C.R.E. 404(b), such as an inference that the defendant acted in conformity with his or her bad character; and

(4) the probative value of the evidence substantially outweighs the danger of unfair prejudice to the defendant.

In addition to the Spoto analysis, prior to admission of other crimes evidence, the court must be satisfied by a preponderance of the evidence that the defendant committed the other crime(s).

Colorado Criminal Domestic Violence Law – The Unfairness Of The Admission of Evidence of Character Other Crimes, Wrongs, or Acts – The So Called 404B – Similar Transactions Evidence

I’m sorry if I didn’t understand or read the legal rulings correctly. Maybe legal language is a bit foreign to me. So the judge could not concur with number 3 because there’s no proof of prior bad character by BM?

And he couldn’t concur with number 4 because he decided it would be unfair prejudice to BM to say he is accused of DV?

Now I’m really lost because it seems DV is prior bad character and if it’s prejudicial I can’t see why.

You don’t have to answer. I’m not making an argument. I’m just lost about the law and the men who decided the case.

 

[Seattle1]

I’m sorry if I didn’t understand or read the legal rulings correctly. Maybe legal language is a bit foreign to me. So the judge could not concur with number 3 because there’s no proof of prior bad character by BM?

And he couldn’t concur with number 4 because he decided it would be unfair prejudice to BM to say he is accused of DV?

Now I’m really lost because it seems DV is prior bad character and if it’s prejudicial I can’t see why.

You don’t have to answer. I’m not making an argument. I’m just lost about the law and the men who decided the case.

No need to apologize. Respectfully, I'd wait until the Prosecution's Motion and Judge Lama's Order are available to the public to make any conclusions here.

I've not seen anything from the court and it's my opinion only that prong 3 of Spoto test could be in question because the state has the burden of proof over BM's self-incriminating statements to Agent Grusing after he was questioned about SO's comments to investigators. For example, it would have been much better if prosecutors had a text by SM detailing that BM clipped her in the nose, the date, and what they were fighting about when it happened. BM alleges this was an accident.

 

[Love Never Fails]

Respectfully, I'd wait until the Prosecution's Motion and Judge Lama's Order are available to the public to make any conclusions here.

I've not seen anything from the court and it's my opinion only that prong 3 of Spoto test could be in question because the state has the burden of proof over BM's self-incriminating statements to Agent Grusing after he was questioned about SO's comments to investigators. For example, it would have been much better if prosecutors had a text by SM detailing that BM clipped her in the nose, the date, and what they were fighting about when it happened.

Thank you. Most victims of DV don’t document things. Sad because she lost her life.

 

[mrjitty]

^^bbm

To be clear, Spoto test is not limited to domestic violence events.

In my posts, I've specifically omitted the details of the Spoto case in hope that readers would instead acknowledge the resultant Spoto test that trial courts have been using since the Supreme Court Decision of 1990, and reaffirmed with People v Garner, 2009.

In response, IMO, Judge Lama's prohibitive purpose means his admitting prior act DV evidence only by ignoring perhaps the 3rd and 4th prongs of the four-part analysis as set forth in People v Spoto (i.e., Spoto test). [Media did not report on the specific details of Judge Lama's 30-minute analysis during the hearing and no documents available to the public].

Before prior act evidence can be admitted against the defendant in a criminal case, the trial court must first conduct a four-part analysis as set forth in People v. Spoto.

That analysis requires the court to find, based upon the sufficiency of the prior act evidence proffered by the prosecution, that:

(l) the proffered evidence relates to a material fact;

(2) the evidence is logically relevant;

(3) the logical relevance is independent of any intermediate inference prohibited by C.R.E. 404(b), such as an inference that the defendant acted in conformity with his or her bad character; and

(4) the probative value of the evidence substantially outweighs the danger of unfair prejudice to the defendant.

In addition to the Spoto analysis, prior to admission of other crimes evidence, the court must be satisfied by a preponderance of the evidence that the defendant committed the other crime(s).

Colorado Criminal Domestic Violence Law – The Unfairness Of The Admission of Evidence of Character Other Crimes, Wrongs, or Acts – The So Called 404B – Similar Transactions Evidence

Thanks for this @Seattle1

3 and 4 would also be my guess.

 

[mrjitty]

Thank you. Most victims of DV don’t document things. Sad because she lost her life.

This is why I suspect I am going to end up disagreeing with the Judge on policy grounds.

 

[mrjitty]

I’m sorry if I didn’t understand or read the legal rulings correctly. Maybe legal language is a bit foreign to me. So the judge could not concur with number 3 because there’s no proof of prior bad character by BM?

And he couldn’t concur with number 4 because he decided it would be unfair prejudice to BM to say he is accused of DV?

Now I’m really lost because it seems DV is prior bad character and if it’s prejudicial I can’t see why.

You don’t have to answer. I’m not making an argument. I’m just lost about the law and the men who decided the case.

In layman's terms ....

Evidence of bad character can be a problem because a jury can end up thinking "oh he's a bad guy so he probably did it"

This isn't allowed.

The Judge wants to see evidence that helps prove specific things. So if instead the victim had confided that the accused said "i'll kill you if you try to leave" that would be a much more specific act that is relevant to proving the case - it goes beyond "the accused is a bad guy"

hope that helps!

 

[Love Never Fails]

In layman's terms ....

Evidence of bad character can be a problem because a jury can end up thinking "oh he's a bad guy so he probably did it"

This isn't allowed.

The Judge wants to see evidence that helps prove specific things. So if instead the victim had confided that the accused said "i'll kill you if you try to leave" that would be a much more specific act that is relevant to proving the case - it goes beyond "the accused is a bad guy"

hope that helps!

Absolutely and thank you.

 

[justtrish]

Thank you. Most victims of DV don’t document things. Sad because she lost her life.

I think in Suzanne's case she may not have realized that what he had been doing all these years was abuse. I think she was realizing it over the last few years. She did document some things in her list of grievances and I am wondering if she had some incriminating things in her journal. If he burned it, then there goes that. She was starting to share with SO. I am sure she felt she couldn't text that info because he often read her phone. She shared it on calls and then they can't be used because SO doesn't have exact days/times. It's a shame that someone trying to protect herself was trying to share what was going on, but now it isn't going to be brought up and THAT is IMO just further abusing her. She is telling a clear story if the evidence is allowed in. Barry saw to it that she didn't speak against him when she was alive and it seems he's going to win this argument to now allow her to speak now as well.

 

[justtrish]

In layman's terms ....

Evidence of bad character can be a problem because a jury can end up thinking "oh he's a bad guy so he probably did it"

This isn't allowed.

The Judge wants to see evidence that helps prove specific things. So if instead the victim had confided that the accused said "i'll kill you if you try to leave" that would be a much more specific act that is relevant to proving the case - it goes beyond "the accused is a bad guy"

hope that helps!

In this case though it seems the evidence that he's a "bad guy" shows that he wasn't going to let her leave him and THAT is key. It isn't just that he is a bad guy or controlling, he threatened to kill himself when she wanted to leave him, her own words showed he drove erratically, would leave the house to punish her.. his behavior was an attempt to get her to back down and do what he wanted. In the days leading up to her disappearance, she didn't back down. I think this is beyond just not trying to show him as a bad guy.. this behavior shows he is capable of harming her and that his behavior that week even was abusive. He then deleted texts. What we have her Suzanne's own feelings about how she felt and now she is gone and he isn't. It does seem very relevant and not just an attempt to make him look bad.

 

[MemPat]

Same here my dear and then I married an abuser. Did I call the cops nope finally I divorced and his new fiancé called the police he held her at gun point for 14hours. But, this man has been abusing women since he was in his 20s and finally, finally justice will happen. Domestic violence victims are so silenced, embarrassed that they allowed it afraid no one will believe them. Afraid they will just tell them to leave and it’s really not that simple, it’s not.

I'm so very sorry and glad you got out. I hope you get to testify at least during his sentencing phase.

Turns out our abuser was a triple bigamist and no telling how many families suffered. If Barry isn't convicted he's bound to continue the terror. Past behavior is a great predictor of future behavior.

 

[mrjitty]

I am curious if the defense submitted the entire vehicle report or just picked what they wanted to share?

That is my thought as well

 

[MemPat]

MemPat, I’m so sorry and agree with you a thousand percent!

There has been so much learned in the last few years about domestic violence and the ways in which it occurs, that no judge should be blind or one sided. There are men of all walks of life who participate in this kind of violence to a degree and they appear to let other men off the hook for it. Suzanne spoke of it in a text, she spoke of fear of being alone with Barry, her daughter encouraged her to get a restraining order, and Barry even admitted to hitting her when he clipped her nose. Then you have emotional abuse from control. It’s all there. Barry didn’t have to beat her daily for the abuse to come through loud and clear.

Judge Murphy recused himself because of knowing SD and her attorney. If justice is not served because we have to wait additional time for a judge who is fair, so be it. I would like to see Judge L recuse himself, because although he can site one case for his decision, he cannot ignore the evidence leading up to the murder. IMO.

I’m not a lawyer, but I am a victim and will stand for the rights of the victim every time.

I am praying there is someone, anyone schooled in the law who will go to bat for Suzanne now so that Justice is served.

You are going to bat for her, LNF, and that's a very good thing! Solidarity!

 

[CGray123]

Right, and people seem to be referring to Spoto as a random case that he decided to cite. It's the binding precedent that he is required to apply in determining whether evidence of prior bad acts is admissible. You can disagree with his application of the test, but he has to apply that test.

Based on the snippets of quotes we've seen, he seems to be saying that the evidence of prior abuse in this case satisfies factors 1 and 2, but fails factors 3 and 4. But it's almost impossible to know for sure based on the limited reporting we get.

With respect, although I agree that the reporting leaves us guessing as to the judge's rationale, it seems clear that he cited the four part Spoto test as the basis for his ruling, and that the rationale for his exclusion of the evidence of BM's prior bad acts on the fourth element of the test - the balance of probative value versus unfair prejudice. Under the required analysis, he can only reach this element if the proffered evidence meets all three of the prior tests, including number 3:

that "the logical relevance (of the proffered evidence) 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."

If I am right about this (and I acknowledge that I may not be right), the judge has found the evidence material, relevant, and independent of the inference of bad character.

His sole basis for excluding the evidence is not mere prejudicial effect: all the prosecution's evidence has such an effect (we hope). It is unfair prejudice that results in the exclusion of evidence, whether under the Spoto test or CRCrimP 403.

"Unfair prejudice" means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one. “Unfair prejudice” may also arise from evidence or testimony that may be persuasive because of its strongly misleading or confusing nature.

So, I still hope the judge will consider admitting SM's texts about BM's physical and emotional coercion, not as evidence of domestic violence or to prove these acts occurred, and not to support expert opinions suggesting BM fits the profile of an abusive husband who would be likely to kill his wife, but rather for the limited purpose of demonstrating SM's state of mind - her fear of BM and strong desire to leave the marriage.

If the evidence were to be admitted for that limited purpose, on BM's request the judge would issue an instruction like this:

D:02 EVIDENCE LIMITED AS TO PURPOSE (CONTEMPORANEOUS)

"The evidence you are about to [hear] [see] [insert a description of the evidence] is being presented for [insert description of purpose(s) for which the evidence is being admitted] only. You may not consider it for any other reason."

I find it difficult to discern from the reporting whether Judge L's decision relates to the proposed expert testimony about DV and the sentence enhancement definition of DV, or whether it relates to the evidence of threats and other coercive behavior by BM, independent of those issues.

However, I remain hopeful that the jury will hear this evidence even though there will be no interpretation or expert opinion from the state's forensic psychologist.

 

[Momofthreeboys]

With respect, although I agree that the reporting leaves us guessing as to the judge's rationale, it seems clear that he cited the four part Spoto test as the basis for his ruling, and that the rationale for his exclusion of the evidence of BM's prior bad acts on the fourth element of the test - the balance of probative value versus unfair prejudice. Under the required analysis, he can only reach this element if the proffered evidence meets all three of the prior tests, including number 3:

that "the logical relevance (of the proffered evidence) 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."

If I am right about this (and I acknowledge that I may not be right), the judge has found the evidence material, relevant, and independent of the inference of bad character.

His sole basis for excluding the evidence is not mere prejudicial effect: all the prosecution's evidence has such an effect (we hope). It is unfair prejudice that results in the exclusion of evidence, whether under the Spoto test or CRCrimP 403.

"Unfair prejudice" means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one. “Unfair prejudice” may also arise from evidence or testimony that may be persuasive because of its strongly misleading or confusing nature.

So, I still hope the judge will consider admitting SM's texts about BM's physical and emotional coercion, not as evidence of domestic violence or to prove these acts occurred, and not to support expert opinions suggesting BM fits the profile of an abusive husband who would be likely to kill his wife, but rather for the limited purpose of demonstrating SM's state of mind - her fear of BM and strong desire to leave the marriage.

If the evidence were to be admitted for that limited purpose, on BM's request the judge would issue an instruction like this:

D:02 EVIDENCE LIMITED AS TO PURPOSE (CONTEMPORANEOUS)

"The evidence you are about to [hear] [see] [insert a description of the evidence] is being presented for [insert description of purpose(s) for which the evidence is being admitted] only. You may not consider it for any other reason."

I find it difficult to discern from the reporting whether Judge L's decision relates to the proposed expert testimony about DV and the sentence enhancement definition of DV, or whether it relates to the evidence of threats and other coercive behavior by BM, independent of those issues.

However, I remain hopeful that the jury will hear this evidence even though there will be no interpretation or expert opinion from the state's forensic psychologist.

That makes total sense and would be an in my opinion an accurate reflection of what LE learned in my opinion. Whether they "need" more evidence suggesting Suzanne's emotional state and feelings about the disintegration of her marriage I don't know. But rationally what you propose makes total sense.

 

[justtrish]

Hard to say. We should have way more data for the 7th and 8th than we do. Instead it's super spotty.

Those days are super important too! We don't know much about them. We know the coffee with Mrs. Ritter was the 6th as well as her text to Barry. Then his texts back that were deleted later. We know a lot about the 9th and 10th, but very little about the 7th and 8th. Well the 8th was referenced as him having unusually high phone activity in the evening also. We know about pizza and her going to his job site. Wasn't the 7th the day she picked up her bike or took it to have the tires changed? Other this that we don't know much about what Barry was doing or what she was doing. Interesting the defense didn't include those days.

 

[Megnut]

Are there any car heads that have any idea what trigger's an Odometer event? They don't seem to trigger at the same time as other vehicle events.

Updated spreadsheet and map with Gear and Odometer Events.
Barry's Truck Events
Barry's Truck Events - Google My Maps

Both on the same page here: http://www.[link removed]/barrys-truck-events/

I color coded the truck events and it's a lot easier to see how much data is missing. Gonna drop a reminder that all of this data came from the Defense.

Hard to say. We should have way more data for the 7th and 8th than we do. Instead it's super spotty.

Hmmmmm. Do those spotty pauses give us any location data for Barry parking his truck and accessing alternate vehicles?

A borrowed truck... a borrowed back hoe... boulder moving....

What was he doing overnight on Friday?

Was he hunting?

What is the date trying to tell us?????

 

[marylamby]

All the Evidence?
@marylamby sbm for focus Seems ^ post is saying in this criminal trial, the prosecution should not have to follow CO. Rules of Evidence* (or not have to follow CRE as this judge interprets and rules on them).

If so, it's a very broad statement. Seems then, this defendant/defense atty should not have to follow CO. Rules of Evidence* (or not have to follow CRE as this judge interprets and rules on them).
Should def./def atty be allowed to "use all their evidence" too?

If no party has to follow CO. R/E, then why bother w those pesky rules at all? Like I said, ^ OP statement "Let the prosecution use ALL of their evidence" is verrry broad.

Or is ^ post disagreeing only w this judge's interp of R/E on admissibility of BM's alleged acts which prosecution wants to offer to prove domestic violence? If so, then I can see basis for OP's disagreement. my2ct
____________________________
* CO Rules of Evidence
https://leg.colorado.gov/sites/default/files/images/olls/crs2018-court-rules.pdf
https://www.hmichaelsteinberg.com/files/the-colorado-rules-of-evidence.pdf

I'm specifically talking to domestic violence. How many spousal murder cases have history of DV, especially when one spouse, particularly the wife, says she's getting a divorce? Maybe it's freaking high time to set a new precedence. Bad prior acts in unrelated crimes are one thing, DV within a marriage is quite another - especially when the wife is murdered by the accused with all of the circumstantial evidence that overwhelmingly points to he and only he.
IMO

 

[marylamby]

With respect, although I agree that the reporting leaves us guessing as to the judge's rationale, it seems clear that he cited the four part Spoto test as the basis for his ruling, and that the rationale for his exclusion of the evidence of BM's prior bad acts on the fourth element of the test - the balance of probative value versus unfair prejudice. Under the required analysis, he can only reach this element if the proffered evidence meets all three of the prior tests, including number 3:

that "the logical relevance (of the proffered evidence) 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."

If I am right about this (and I acknowledge that I may not be right), the judge has found the evidence material, relevant, and independent of the inference of bad character.

His sole basis for excluding the evidence is not mere prejudicial effect: all the prosecution's evidence has such an effect (we hope). It is unfair prejudice that results in the exclusion of evidence, whether under the Spoto test or CRCrimP 403.

"Unfair prejudice" means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one. “Unfair prejudice” may also arise from evidence or testimony that may be persuasive because of its strongly misleading or confusing nature.

So, I still hope the judge will consider admitting SM's texts about BM's physical and emotional coercion, not as evidence of domestic violence or to prove these acts occurred, and not to support expert opinions suggesting BM fits the profile of an abusive husband who would be likely to kill his wife, but rather for the limited purpose of demonstrating SM's state of mind - her fear of BM and strong desire to leave the marriage.

If the evidence were to be admitted for that limited purpose, on BM's request the judge would issue an instruction like this:

D:02 EVIDENCE LIMITED AS TO PURPOSE (CONTEMPORANEOUS)

"The evidence you are about to [hear] [see] [insert a description of the evidence] is being presented for [insert description of purpose(s) for which the evidence is being admitted] only. You may not consider it for any other reason."

I find it difficult to discern from the reporting whether Judge L's decision relates to the proposed expert testimony about DV and the sentence enhancement definition of DV, or whether it relates to the evidence of threats and other coercive behavior by BM, independent of those issues.

However, I remain hopeful that the jury will hear this evidence even though there will be no interpretation or expert opinion from the state's forensic psychologist.

Excellent deduction but will the jury have a chance to hear the evidence for themselves? That is the question.
The defense is not through with their motions. How Suzanne's texts to SO and her sister have been stifled is beyond me. Those were her last words.
I cringe at what else they'll (the defense and the judge) have thrown out but I've prepared myself for even more outrageous rulings.
IMO

 

[marylamby]

I’m not exactly sure how Lama’s rulings will ultimately affect the trial. It seems to me that everything he has ruled on (that we are sure of, since it’s all been via tweet with no actual docs to read), is somewhat as it should be. If Suzanne never called LE, or documented injuries, a juror will have to decide whether or not Suzanne was a victim of DV. We have our opinion, just as jurors will. You have to follow the rules. Suzanne telling SO doesn’t make it a fact, but one could have an opinion based on that. They can hear Barry’s own words about “clipping her nose”, right? IE can hammer home all day that there is no evidence of DV, but there will still be other evidence to review that can lead to a conclusion. Suzanne didn’t disappear herself, so who is responsible? All roads lead to Barry.

Her own daughter, M2, told LE that she needed to get a RO and flee the marriage. That speaks volumes.
She might walk it back if called to the stand because of the control exerted over her but recorded words to LE can't be erased. Just like all of Barry's lies.
IMO