Still Missing CO - Suzanne Morphew, 49, Chaffee Co, 10 May 2020 *arrest* #99

[K9Enzo]

Just as Rule 16 - Discovery and Procedure Before Trial outlines the obligations of the prosecution, Part II provides for defense Disclosure to the Prosecution.

Since the prosecution has the burden of proof, it would not make sense for the defense to call their own Telematics expert except as a rebuttal witness and/or to impeach the testimony of the prosecution's expert. Otherwise, the defense would be opening the door to allow the sanction-barred expert for the prosecution (a sanction requested by the defense and the motion granted).

IMO, what's most important to recognize about the case witnesses for both parties is that although Rule 16 provides for the court's discretion to set deadlines for such disclosure, the Rule specifically provides for a statutory deadline as follows:

Part I. Disclosure to the Defense
(a) Prosecutor's Obligations.
[..]

(III) Any reports or statements of experts made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons;
[..]

(3) The prosecuting attorney shall perform all other obligations under subsection (a)(1) as soon as practicable but not later than 35 days before trial.

Part II. Disclosure to Prosecution
(a) The Person of the Accused.
[..]
(c) Nature of Defense.

Subject to constitutional limitations, the defense shall disclose to the prosecution the nature of any defense, other than alibi, which the defense intends to use at trial. In no case shall such disclosure be less than 35 days before trial for a felony trial, or 7 days before trial for a non-felony trial, except for good cause shown. Upon receipt of the information required by this subsection (c), the prosecuting attorney shall notify the defense of any additional witnesses which the prosecution intends to call to rebut such defense within a reasonable time after their identity becomes known.
[..]

Part V. Time Schedules and Discovery Procedures
(a) Mandatory Discovery.

The furnishing of the items discoverable, referred to in Part I (a), (b) and (c) and Part II (b)(1), (c) and (d) herein, is mandatory and no motions for discovery with respect to such items may be filed.

(b) Time Schedule.
(1) In the event the defendant enters a plea of not guilty or not guilty by reason of insanity, or asserts the defense of impaired mental condition, the court shall set a deadline for such disclosure to the prosecuting attorney of those items referred to in Parts II (b) (1) and (c) herein, subject to objections which may be raised by the defense within that period pursuant to Part III (d) of this rule. In no case shall such disclosure be less than 35 days before trial for a felony trial, or 7 days before trial for a non-felony trial, except for good cause shown.

Generally, the furnishing of discoverable items between the parties takes place with little supervision by the Court.

In this case, what we've seen here is not typical: IMO, BM's defense (i.e., E & N) made it known at their very first appearance in this court (days after BM fired his public defenders), that they intended to frustrate the prosecution by alleging Discovery violations whether they were valid or not!

To be clear, there's not been one court appearance where E & N has not alleged the prosecution guilty of discovery violations, complete with a defense motion for sanctions.

MOO

ETA: Prosecutor Lindsey took a lot of heat when he resigned and moved on to Pueblo. Personally, I respect that Lindsey had no desire to participate in a case where both his staff and himself would be buried in motions at every turn-- requiring too many discretionary decisions by the court, and technical wins by the defense. The price of sacrificing justice for SM was just too high.

I appreciate your detailed response- thank you!

My opinion on Lindsey moving on was to get away from this case.

 

[Seattle1]

Why are SMs direct texts not allowed? Its not hearsay, it is what she directly stated.

I am somewhat curious also as that hasn’t been crystal clear for me.

Actually, Judge ruled on this issue as a matter of law (no citation without the Order available to the public).

He ruled the subject text would be prejudicial to the defense because the prosecution could not prove the prior acts described had actually happened, and ruled to exclude by P34 and P34A, eliminating the information from being presented during trial.

IMO, this issue of DV would not have been challenged by the defense had MM2 been willing to give a statement of what she witnessed and when.

(Again, when left to the discretion of the Court, Judge Lama ignores BM's admission to Agent Grusing that he clipped SM in the nose-- just as he ignored BM stating that he shot a deer in April 2020 with a tranquilizer while standing in the breezeway after he first told investigators that he'd not used any deer tranquilizer since leaving Indiana). MOO

2/23/22 Morphew Murder Trial Motions Hearing Continues, Judge Orders Potential Testimony of Domestic Abuse Excluded - by Jan Wondra - Ark Valley Voice

The most prominent court decision in the last, all-day motions hearing on Feb. 10 was the exclusion of evidence provided by Suzanne Morphew’s long-time friend, Sheila Oliver, that the relationship between the Morphews included domestic violence. The prosecution made motions P34 and P34A, to submit it as additional evidence, but provided no dates for the conversations and texts.

“Suzanne Morphew is not going to take the stand. Sheila Oliver, her best friend will,” said Prosecuting Attorney Weiner. He said the evidence provided by Oliver was an offer of proof of the domestic abuse, shared first by “the defendant admitted to them in March, 2021. He admits that physical violence. One time he hit her in the face and drew blood … she was fearful. She was afraid. She told this to Sheila Oliver and she had no motive to lie to Oliver.”

He went on to add, “the defendant portrays this as a Norman Rockwell marriage — he comes back from his alibi in Broomfield and said it was great… but he knew she was slipping away and that was his motive … her text says it …’ it’s over, can we work this out civilly?'”

Defense Attorney Iris Eytan objected, saying “there are no dates, we can’t talk to her, these are ‘alleged incidents.'” She also offered the theory that if Oliver was Morphew’s best friend, “why would she have kept her affair with a high school classmate a secret from her?”

The point was made that by admitting hearsay evidence, the prosecution still hadn’t proven that the prior acts described had actually happened, and they responded that defense was attacking he character of Suzanne Morphew when she wasn’t there to defend herself..

 

[Seattle1]

The Judge ruled that no alleged prior acts of DV are to be allowed at trial if a) there is no date and time of said acts and b) nothing to state what led up to said acts.

So, even the confession of BM saying he clipped her nose will not be allowed.
Also, SO saying that SM told her that BM held her down on a bed once and wouldn’t let her up, and another time shoved her into a closet and put a gun to his head will not be allowed.

I can completely understand why SM would not put anything like that in writing for fear of him seeing it.JMO

Not sure if there are other direct texts from SM to anyone, but I would HOPE that the one to her sister will definitely be allowed when MB testifies.
Page 11 and 12
https://www.courts.state.co.us/userfiles/file/Court_Probation/11th_Judicial_District/Chaffee/cases of interest/21CR78/21cr78 Morphew Redacted Affidavit.pdf

Also there is still the question of whether a forensic nurse who examined the photos of scratches on BM’s arm will be allowed to testify as an expert.

Unfortunately, I don't think SM confided in her sister about BM being abusive until she made the decision to leave.

Up until SM's lengthy text of 5/8/20 to her sister, I think SM was still protecting the perfect family image that BM dictated to all of them. I believe the Court would use the same argument that the text was an allegation by SM that the prosecution can't verify or support as a prior act.

Just as they said about SO, the defense will cite that SM also didn't confide in her sister about her affair. MOO

 

[Cindizzi]

The FNE ( Forensic Nurse Examiner ) that the State wants to call to interpret the photos of BM arm and hands.
( Article from April 2020)

Meet Christine Foote-Lucero, Forensic Program Manager at University of Colorado Hospital - VoyageDenver - Denver

She was unable to attend the March 30 hearing so Judge will hear Defense arguments to exclude her on April 29.

 

[Seattle1]

The FNE ( Forensic Nurse Examiner ) that the State wants to call to interpret the photos of BM arm and hands.
( Article from April 2020)

Meet Christine Foote-Lucero, Forensic Program Manager at University of Colorado Hospital - VoyageDenver - Denver

She was unable to attend the March 30 hearing so Judge will hear Defense arguments to exclude her on April 29.

^^bbm

I don't think the date is correct as jury selection begins on April 28. Perhaps this will happen at the next pre-trial hearing scheduled for April 19?

Judge rebukes prosecutors in Barry Morphew case; trial still set to begin this month

Despite the intense scolding, 11th Judicial District Judge Ramsey Lama ordered that the trial investigating the two-year disappearance of 49-year-old Suzanne Morphew will happen as scheduled. Jury selection begins in Canon City April 28.

 

[Cindizzi]

^^bbm

I don't think the date is correct as jury selection begins on April 28. Perhaps this will happen at the next pre-trial hearing scheduled for April 19?

Judge rebukes prosecutors in Barry Morphew case; trial still set to begin this month

Despite the intense scolding, 11th Judicial District Judge Ramsey Lama ordered that the trial investigating the two-year disappearance of 49-year-old Suzanne Morphew will happen as scheduled. Jury selection begins in Canon City April 28.

That would make sense.
Still seeing a Motions Hearing on the docket for 4/29 though.

Colorado Judicial Branch - Court Docket Search

 

[Boxer]

MO looks like its down to BMs story and contradictory pings and geolocation.

 

[Seattle1]

That would make sense.
Still seeing a Motions Hearing on the docket for 4/29 though.

Colorado Judicial Branch - Court Docket Search

Thanks @Cindizzi.

So if the date is accurate, once again I see another opportunity for Judge Lama to be preoccupied and not give the matter the fair attention the motion deserves.

Me? Missing "I'm no robot" Murphy. JMO

 

[Seattle1]

For clarity, think of trying to force an expert (i.e., specialized knowledge) to opine as an "ordinary person."

In other words, an invitation for defense objection after objection-- all at the expense of the jurors trying to follow along.


Rule 701:

A person may testify as a lay witness only if his or her opinions or inferences do not require any specialized knowledge and could be reached by any ordinary person.

To determine whether an opinion is one "which could be reached by any ordinary person", courts consider whether ordinary citizens can be expected to know or to have certain experiences.

In this case, although the officer had experience with photo arrays that an ordinary person would not, the officer's opinion could have been reached by an ordinary person. People v. Rincon, 140 P.3d 976 (Colo. App. 2005).

Rule 701 - Opinion Testimony by Lay Witnesses, Colo. R. Evid. 701 | Casetext Search + Citator.

 

[Cindizzi]

Thanks @Cindizzi.

So if the date is accurate, once again I see another opportunity for Judge Lama to be preoccupied and not give the matter the fair attention the motion deserves.

Me? Missing "I'm no robot" Murphy. JMO

Crazy, but I think it’s accurate. This article is from February 10 when the trial date changed from May 3 to April 29.
Don’t know when it changed again to April 28.

Barry Morphew case: Judge won't allow mention of alleged domestic violence; trial to begin in April

District Judge Ramsey Lama on Thursday also decided that the trial would begin April 29 rather than May 3.

This tweet from March 30 mentions the April 29 hearing:

https://twitter.com/laurenscharftv/status/1509262201596440583?s=21&t=M5k2GeI2IJ-4c_kKRUWZKQ
One of the expert witnesses the defense wants to strike is a forensic nurse who looked at photos of #BarryMorphew scratches on his arms/hand, but did not meet examine BM in person. That will be determined on April 29.

 

[waldojabba]

I am sure everybody has figured this out but me.
Iirc We talked about BM’s sister tweet attacking Lauren Friday for not being honest in her reporting. She wanted Lauren to release the court order to clear things up.
Lauren was like sure but I have not gotten it from the court yet but as soon as I have it from the court I will release.
Since then the doc was released but not by Lauren and we have not heard a peep on her end which is totally uncharacteristic
We know either she was wrong in her reporting about the handler in her live report or Llama has it wrong in the court order.
So how does this play put ?
Does she ask the court for the transcript?
If she was wrong I imagine she just says so, issues a retraction or something?
What happens in the event the judge got it wrong from the courts notes? How does that play out?

 

[Boxer]

So here is the Defense to do list.

To Do:

Get rid of expert witnesses - check

Suppress evidence- check

Alienate the court from the prosecution and victim- check

Still to do:

Impeach ordinary witnesses on lack of intellect or character

Alienate jury from the prosecution and victim

Although to be fair, the prosecution is helping the defense out with their chores.

 

[tmar]

I don't understand how experts are not allowed to testify as experts. I don't understand what paperwork the prosecution failed submit in time. I don't understand why Barry is out on bail, based on unrelated 3rd party DNA found in the glove compartment of a vehicle not in the crime scene. I don't understand why I can't watch court proceedings. I don't understand why judge Murphy recused himself. I don't understand how Grusing could interview Barry that many times , yet fail to structure the questioning as to leave no doubt to his guilt. I don't understand local police dept handling murder investigations, and botching them many times. I do understand who killed Suzanne Morphew.

MountainDad, I agree with your thoughts.
I am now very worried, this Creep may be found 'Not Guilty', with all the above happenings.
YUK

 

[Momofthreeboys]

The FNE ( Forensic Nurse Examiner ) that the State wants to call to interpret the photos of BM arm and hands.
( Article from April 2020)

Meet Christine Foote-Lucero, Forensic Program Manager at University of Colorado Hospital - VoyageDenver - Denver

She was unable to attend the March 30 hearing so Judge will hear Defense arguments to exclude her on April 29.

Is this the witness that was going to give expert testimony based on photos or a different person?

 

[Cindizzi]

I am sure everybody has figured this out but me.
Iirc We talked about BM’s sister tweet attacking Lauren Friday for not being honest in her reporting. She wanted Lauren to release the court order to clear things up.
Lauren was like sure but I have not gotten it from the court yet but as soon as I have it from the court I will release.
Since then the doc was released but not by Lauren and we have not heard a peep on her end which is totally uncharacteristic
We know either she was wrong in her reporting about the handler in her live report or Llama has it wrong in the court order.
So how does this play put ?
Does she ask the court for the transcript?
If she was wrong I imagine she just says so, issues a retraction or something?
What happens in the event the judge got it wrong from the courts notes? How does that play out?

From what I observed of the tweets, BM sister was not asking LS to post the Judges order. She was continually “ begging “ ( her words) LS to publish a Motion dated April 5.
LS told her that she is waiting for the Court to send her numerous documents and wants to be sure that none are marked as “ suppressed “ before she will release to the public.
Here is the list LS provided that she is waiting on.

https://twitter.com/laurenscharftv/status/1512433023580483586?s=21&t=M5k2GeI2IJ-4c_kKRUWZKQ
You can send the motion to me in my inbox, so I can review it, but I’m still waiting for my request for these documents from the court.

 

[Skigh]

From what I observed of the tweets, BM sister was not asking LS to post the Judges order. She was continually “ begging “ ( her words) LS to publish a Motion dated April 5.
LS told her that she is waiting for the Court to send her numerous documents and wants to be sure that none are marked as “ suppressed “ before she will release to the public.
Here is the list LS provided that she is waiting on.

https://twitter.com/laurenscharftv/status/1512433023580483586?s=21&t=M5k2GeI2IJ-4c_kKRUWZKQ
You can send the motion to me in my inbox, so I can review it, but I’m still waiting for my request for these documents from the court.

Do I take it from this that Barry's sister was hoping she could goad Lauren into posting something that might be surpressed by court?

 

[Traymar]

The Judge ruled that no alleged prior acts of DV are to be allowed at trial if a) there is no date and time of said acts and b) nothing to state what led up to said acts.

RSBM

Wow - as a DV survivor myself, I am appalled at the "b" above. What difference does it make "what led up to" the DV? This sounds suspiciously like the judge thinks it's possible there could be mitigating circumstances. But if it is DV, it is DV.

And anyway, I feel pretty sure I know the answer of what led up to it: she did something that he did not want her to do OR she intimated or said that she was going to do something that he did not want her to do.

MOO

 

[Cindizzi]

Do I take it from this that Barry's sister was hoping she could goad Lauren into posting something that might be surpressed by court?

I wouldn’t say that was her intent. JMO
She said LS did not report everything that was said in Court.
She kept mentioning an April 5th motion, but we can see from LS list there are many with that date.

 

[waldojabba]

From what I observed of the tweets, BM sister was not asking LS to post the Judges order. She was continually “ begging “ ( her words) LS to publish a Motion dated April 5.
LS told her that she is waiting for the Court to send her numerous documents and wants to be sure that none are marked as “ suppressed “ before she will release to the public.
Here is the list LS provided that she is waiting on.

https://twitter.com/laurenscharftv/status/1512433023580483586?s=21&t=M5k2GeI2IJ-4c_kKRUWZKQ
You can send the motion to me in my inbox, so I can review it, but I’m still waiting for my request for these documents from the court.

Thanks @Cindizzi for the clarification. So we are waiting for more documents. I guess my confusion was that this one happened to be released on Friday. So curious to have all the suppression of docs by the defense. If they file them why don’t they want the public to see them? I am still wondering tho in relation to the court order released fri if Judge L happens to be incorrect regarding the dog handler info how does that get dealt with?

 

[abams]

There's really no excuse for blowing discovery and expert witness deadlines, blowing them again after granted extensions, etc. Prosecutor went forward against LE's advisories to bring charges for this case when they did and hence should have been more on the ball moving it forward.

https://twitter.com/laurenscharftv/status/1512509593414381569?s=21&t=KgHtEZXwjDqWQGe2coBKGg

The court will exclude prosecution witnesses as experts:
-Megan Duge
-Andrew DcDermott
-Kevin Hoyland
-James Stevens
-Kenneth Hicks
-Alex Walker
-Andy Rohrich
-Jonathan Grusing
-Ken Harris
-Derek Graham
-Doug Spence
Three additional experts were excluded on other grounds

So that's most--or all--of the important investigator/analyst witnesses excluded as experts?