Found Deceased CO - Suzanne Morphew, 49, Chaffee County, 10 May 2020 #61 *ARREST*

[MsBetsy]

That isn’t how the hearsay rule works though. It is about SM’s statement and not whether Mm directly heard it. SM is not available for cross examination. As I mentioned in an earlier post however, if SM’s statement was regarding a “present sense impression” (ie, Barry is looking at me angrily, or I’m scared etc) this may be an exception to the hearsay rule. I could be wrong of course but I’m a lawyer by trade, although admittedly a civil attorney so no experience in the criminal world. But evidence rules are pretty uniform in terms of hearsay etc.

But apparently the conversation consisted of text messages so how can it be considered hearsay? If Suzanne's text messages are clear and direct then I would think that eliminates the need to cross examine. Imo

 

[CGray123]

But apparently the conversation consisted of text messages so how can it be considered hearsay? If Suzanne's text messages are clear and direct then I would think that eliminates the need to cross examine. Imo

It doesn't matter if the statement is written or oral. If the person who made it is unavailable and it's offered for the truth of the statement (e.g. "I am scared of BM, I think he's angry enough to harm me.") it's hearsay. It may be admitted under one of the exceptions, but it's hearsay.

I'm not an attorney so I can get my thoughts tangled up in the statutes, rules, and precedents. Here's an online resource I found helpful to keep me focused when thinking about the Hearsay Rule.

Hearsay Evidence

Created by FindLaw's team of legal writers and editors | Last updated February 12, 2019

The rule against hearsay is deceptively simple, but it is full of exceptions. At its core, the rule against using hearsay evidence is to prevent out-of-court, second hand statements from being used as evidence at trial given their potential unreliability.

Hearsay Defined

Hearsay is defined as an out-of-court statement, made in court, to prove the truth of the matter asserted. These out-of-court statements do not have to be spoken words, but they can also constitute documents or even body language. The rule against hearsay was designed to prevent gossip from being offered to convict someone.

Exceptions to the Rule Against Hearsay Evidence

Hearsay evidence is not admissible in court unless a statue or rule provides otherwise. Therefore, even if a statement is really hearsay, it may still be admissible if an exception applies. The Federal Rules of Evidence (FRE) contains nearly thirty of these exceptions to providing hearsay evidence.

Generally, state law follows the rules of evidence as provided in the Federal Rules of Evidence, but not in all cases. The states can and do vary as to the exceptions that they recognize.

Most Common Hearsay Exceptions

There are twenty-three exceptions in the federal rules that allow for out-of-court statements to be admitted as evidence even if the person made them is available to appear in court. However, only a handful of these are regularly used. The three most popularly used exceptions are:

Present Sense Impression. A hearsay statement may be allowed if it describes or explains an event or condition and was made during the event or immediately after it.

Excited Utterance. Closely related to the present sense impression is the hearsay exception for an excited utterance. The requirements for this exception to apply is that there must have been a startling event and the declarant made the statement while under the excitement or stress of the event.

Then-Existing Mental, Emotional, or Physical Condition. A statement that is not offered for the truth of the statement, but rather to show the state of mind, emotion or physical condition can be an exception to the rule against hearsay evidence. For instance, testimony that there was a heated argument can be offered to show anger and not for what was said.
Other Exceptions to Rule Against Hearsay Evidence

In addition to the three most common exceptions for hearsay, there are several other statements that generally will be accepted as admissible evidence. These fall into three categories:

Medical: Statements that are made to a medical provider for the purpose of diagnosis or treatment.

Reputation: Statements about the reputation of the person, their family, or land boundaries.
Documents: These documents typically include business records and government records, but can include learned treatises, family records, and church records.

Hearsay Exceptions if the Declarant is Unavailable to Testify in Court

There are exceptions to the rule against the admissibility of hearsay evidence that apply only when the declarant is unavailable. A declarant is considered unavailable in situations such as when:

The court recognizes that by law the declarant is not required to testify;
The declarant refuses to testify;
The declarant does not remember;
The declarant is either dead or has a physical or mental illness the prevents testimony; or
The declarant is absent from the trial and has not been located.

If the declarant is deemed to be unavailable, then the following type of evidence can be ruled admissible in court. This includes:

Former testimony;
Statements made under belief of imminent death;
Statements against a person's own interest; and
Statements of personal or family history.

Catchall Exception to the Rule against Hearsay

Finally, the last exception is the so-called "catchall" rule. It provides that evidence of a hearsay statement not included in one of the other exceptions may nevertheless be admitted if it meets these following conditions:

It has sound guarantees of trustworthiness
It is offered to help prove a material fact
It is more probative than other equivalent and reasonably obtainable evidence
Its admission would forward the cause of justice
The other parties have been notified that it will be offered into evidence

Defenses Against Hearsay Evidence

If the court admits hearsay evidence under one the exceptions, then the credibility of the person offering the statement may be attacked. This attack must be supported by admissible evidence, but can be prior inconsistent statement, bias, or some other evidence that would show that the declarant has a reason to lie or not to remember accurately.

 

[Error505]

You are making total sense, @kschultz06082. The problem here is that the “conversation” is in text form rather than a direct oral conversation. The defense will claim that anyone could have written that text and the prosecution will need to prove it was Suzanne who wrote it. MOO

I would think there would be sufficient data from the iCloud or service provider of the device SM was using through subpoenas to show she was beyond doubt the writer of the text, even using syntax SM used during her previous texts. They could probably prove through GPS BM wasn’t in the area when the text was sent from SM’s location. I can certainly see where it would get complicated. MOO

 

[CGray123]

You are making total sense, @kschultz06082. The problem here is that the “conversation” is in text form rather than a direct oral conversation. The defense will claim that anyone could have written that text and the prosecution will need to prove it was Suzanne who wrote it. MOO

You're right on target, @OldCop!

ALL documentary and physical evidence must be authentic, including hearsay statements in writing. In addition, ALL evidence must be RELEVANT and PROBATIVE of the factual conclusions stated in the charging document. Most of these issues are worked out by the parties before trial, but there may be disputes taken to the judge, using what is called a motion in limine. I rarely see these issues fought out at trial.

 

[CGray123]

As to relevance, Colorado Rule of Evidence 401 defines it:

Rule 401 - Definition of "Relevant Evidence"

"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

 

[TIGER0822]

The AA being 130 pages does not give me confidence in the prosecutor. With the judge taking into consideration the daughters tells me the defense may be winning him over on the sympathy side.

 

[Litig8r]

…The talk about the Morphew girls was weird to me. I wonder if the state tried to implicate them somehow or included comments from them that obviously will be sensitive either way…

I thought the same, about the daughters specifically being mentioned. I also wondered about the mention of the one daughter still living in Salida. Is/will she still now that BM is locked up?

Please forgive me if I’m asking about the obvious…I stepped away for awhile and am not up to date whatsoever.



(Quote respectfully snipped by me)

 

[clearskies1]

It doesn't matter if the statement is written or oral. If the person who made it is unavailable and it's offered for the truth of the statement (e.g. "I am scared of BM, I think he's angry enough to harm me.") it's hearsay. It may be admitted under one of the exceptions, but it's hearsay.

I'm not an attorney so I can get my thoughts tangled up in the statutes, rules, and precedents. Here's an online resource I found helpful to keep me focused when thinking about the Hearsay Rule.

Hearsay Evidence

Created by FindLaw's team of legal writers and editors | Last updated February 12, 2019

The rule against hearsay is deceptively simple, but it is full of exceptions. At its core, the rule against using hearsay evidence is to prevent out-of-court, second hand statements from being used as evidence at trial given their potential unreliability.

Hearsay Defined

Hearsay is defined as an out-of-court statement, made in court, to prove the truth of the matter asserted. These out-of-court statements do not have to be spoken words, but they can also constitute documents or even body language. The rule against hearsay was designed to prevent gossip from being offered to convict someone.

Exceptions to the Rule Against Hearsay Evidence

Hearsay evidence is not admissible in court unless a statue or rule provides otherwise. Therefore, even if a statement is really hearsay, it may still be admissible if an exception applies. The Federal Rules of Evidence (FRE) contains nearly thirty of these exceptions to providing hearsay evidence.

Generally, state law follows the rules of evidence as provided in the Federal Rules of Evidence, but not in all cases. The states can and do vary as to the exceptions that they recognize.

Most Common Hearsay Exceptions

There are twenty-three exceptions in the federal rules that allow for out-of-court statements to be admitted as evidence even if the person made them is available to appear in court. However, only a handful of these are regularly used. The three most popularly used exceptions are:

Present Sense Impression. A hearsay statement may be allowed if it describes or explains an event or condition and was made during the event or immediately after it.

Excited Utterance. Closely related to the present sense impression is the hearsay exception for an excited utterance. The requirements for this exception to apply is that there must have been a startling event and the declarant made the statement while under the excitement or stress of the event.

Then-Existing Mental, Emotional, or Physical Condition. A statement that is not offered for the truth of the statement, but rather to show the state of mind, emotion or physical condition can be an exception to the rule against hearsay evidence. For instance, testimony that there was a heated argument can be offered to show anger and not for what was said.
Other Exceptions to Rule Against Hearsay Evidence

In addition to the three most common exceptions for hearsay, there are several other statements that generally will be accepted as admissible evidence. These fall into three categories:

Medical: Statements that are made to a medical provider for the purpose of diagnosis or treatment.

Reputation: Statements about the reputation of the person, their family, or land boundaries.
Documents: These documents typically include business records and government records, but can include learned treatises, family records, and church records.

Hearsay Exceptions if the Declarant is Unavailable to Testify in Court

There are exceptions to the rule against the admissibility of hearsay evidence that apply only when the declarant is unavailable. A declarant is considered unavailable in situations such as when:

The court recognizes that by law the declarant is not required to testify;
The declarant refuses to testify;
The declarant does not remember;
The declarant is either dead or has a physical or mental illness the prevents testimony; or
The declarant is absent from the trial and has not been located.

If the declarant is deemed to be unavailable, then the following type of evidence can be ruled admissible in court. This includes:

Former testimony;
Statements made under belief of imminent death;
Statements against a person's own interest; and
Statements of personal or family history.

Catchall Exception to the Rule against Hearsay

Finally, the last exception is the so-called "catchall" rule. It provides that evidence of a hearsay statement not included in one of the other exceptions may nevertheless be admitted if it meets these following conditions:

It has sound guarantees of trustworthiness
It is offered to help prove a material fact
It is more probative than other equivalent and reasonably obtainable evidence
Its admission would forward the cause of justice
The other parties have been notified that it will be offered into evidence

Defenses Against Hearsay Evidence

If the court admits hearsay evidence under one the exceptions, then the credibility of the person offering the statement may be attacked. This attack must be supported by admissible evidence, but can be prior inconsistent statement, bias, or some other evidence that would show that the declarant has a reason to lie or not to remember accurately.

Yes, whether it was oral or written is irrelevant. Even if the prosecutor can authenticate the text and prove SM wrote/sent it, the defense still doesn't have the ability to cross examine her about the substance of what she said. And if the substance/truth of what SM said is why the prosecutor is trying to get into evidence, then the text is inadmissible hearsay -- unless the prosecutor can show that it falls under one of the stringent hearsay exceptions. This is not unusual in murder cases -- the victim's statements often don't get admitted into evidence because of it.

However, I do recall a major murder trial (in NJ I think) where a key piece of evidence was what the victim (the wife) said on the phone to someone soon before she was killed. The judge let it in to evidence under the "present sense impression" hearsay exception. The husband was convicted and appealed, arguing that the wife's phone statement was inadmissible hearsay. The appellate court upheld the judge's ruling.
JMO.

 

[clearskies1]

The AA being 130 pages does not give me confidence in the prosecutor. With the judge taking into consideration the daughters tells me the defense may be winning him over on the sympathy side.

I agree. I don't think the judge was happy with the prosecutor about that very long affidavit -- it should be streamlined to what is needed to show probable cause. The judge now has to sift through it. JMO.

 

[Cassady]

Arrest warrant stays sealed for Colorado man in wife's death

“While the investigation in this matter has been ongoing for a little over a year now, it consists of numerous witnesses and circumstantial evidence. Thus, witness credibility will be at a premium,” Murphy wrote in his order.

This is the most interesting part of the Order IMO. No mention of physical or direct evidence.

 

[clearskies1]

Arrest warrant stays sealed for Colorado man in wife's death

“While the investigation in this matter has been ongoing for a little over a year now, it consists of numerous witnesses and circumstantial evidence. Thus, witness credibility will be at a premium,” Murphy wrote in his order.

This is the most interesting part of the Order IMO. No mention of physical or direct evidence.

But DNA, fingerprints etc (physical evidence) is circumstantial evidence. No one witnessed the alleged crime -- so it's a circumstantial case.

 

[al66pine]

Pressure or Intimidate?

.... but he still has the ability to communicate with his daughters. They may chose to discuss the information from the affidavit with him or not. At least he won't he able to pressure or intimidate them....

@MsBetsy bbm sbm I understand while in jail BM may not be able to pressure or intimidate dau's by imposing certain consequences now or in near future. But could he threaten consequences in the (somewhat) distant future, either explicitly or subtly?
Say, something to this effect? If you talk w anyone or post online or testify - about certain events or negatively about me,- then after I'm found not guilty, don't count on me for any $, gifts, loans, support, ___, etc.

If there are legit grounds for BM'S eight attempt-to-influence-public-officials (and fwiw, I believe that's likely), why would he hesitate to pressure his own dau's?

Good to know BM's conversations w dau's (and other callers/visitors) are recorded. Remember the vids of Casey Anthony in jail and her convo's w parents? my2ct.

 

[Ontario Mom]

More doesn't mean anything if the content is inadmissible at trial. Plus in most cases an arrest warrant contains just enough to get the judge to sign a warrant. Makes you wonder if they were shaky about getting a warrant signed so they figured more is better regardless. And they got the warrant but it's a trial that counts. Next step the preliminary where presumably the prosecution will tighten up the case. The judge knows what's up. I like the judge so far.

I think I might wonder that if I knew the person who wrote the AA was a rookie (and I might even be a little concerned).

I have no idea who wrote it, but that doesn't sound like the work of a seasoned LE agent, to just stuff the AA full of irrelevant details that are only possibly inadmissable as the document states.

"A significant portion of the information in the Affidavit was not relevant to the Court's finding of probable cause and possibly not admissable at trial under the Colorado Rules of Evidence." https://www.courts.state.co.us/user...21CR78/21CR78 Order Limit Public Redacted.pdf 2nd paragraph on page 3, just before the big, fat redacted section that describes what kind of information that is.

It's frustrating not being able to see it, or know who wrote it, or why it's so dang long. I'm going to predict that some of that "significant porton of info" is possibly some technical explaining how/why particular data trails led to BM's front door.

I mean, 2+2=4. The number 2 by itself is pointless, but if you add 2 more and it equals BM, then you sort of have to lay out the entire equation, right? Sort of a "show your work" scenario that does seem even all the more critical in a "no body" case. Of course, this is all speculation.

 

[Boxer]

The biggest predictor of whether BM walks is whether he is able to get a bond.
We should know that soon.
If CCSO responding units made mistakes early in the investigation, that could be the reason for a ton of make up work (the long AA.)

 

[Barry]

Can the AA be used in deciding for bail? Just curious, realizing that the charges wouldn't normally allow bail.

MOO.

 

[kkdj]

But apparently the conversation consisted of text messages so how can it be considered hearsay? If Suzanne's text messages are clear and direct then I would think that eliminates the need to cross examine. Imo

From my understanding the court needs to have both sides of the texts and that they match, and to know who sent them.
I will say that my husband and I both text from each others phones, have a joint email account and know each others passwords for everything.

 

[Momofthreeboys]

You are making total sense, @kschultz06082. The problem here is that the “conversation” is in text form rather than a direct oral conversation. The defense will claim that anyone could have written that text and the prosecution will need to prove it was Suzanne who wrote it. MOO

Defense might not care about the time because seems to me that they will run on the presumption Suzanne was around on Saturday and Barry was the last one to see her Sunday morning. And if the issue is the content then it remains to be seen what Suzanne was afraid of and then it might be something defense will need to think about.

 

[Cassady]

But DNA, fingerprints etc (physical evidence) is circumstantial evidence. No one witnessed the alleged crime -- so it's a circumstantial case.

Both of those are types of physical evidence that would require expert testimony. If there was mention of these in the AW Affidavit I would think the judge would have made some sort of reference to that as well the circumstantial testimonial evidence that was referenced in the order...IMO.

 

[clearskies1]

Can the AA be used in deciding for bail? Just curious, realizing that the charges wouldn't normally allow bail.

MOO.

I think the judge just looks at the evidence that is presented at the preliminary hearing (scheduled for August). The below seems to be the relevant law: (Note -- apparently this is a "capital case" because the alleged crime occurred before the effective date that capital punished was abolished in Colorado and so capital punishment is theoretically possible):

"In any capital case, the defendant may make a written motion for admission to bail upon the ground that the proof is not evident or that presumption is not great, and the court shall promptly conduct a hearing upon such motion. At such hearing, the burden shall be upon the people to establish that the proof is evident or that the presumption is great. The court may combine in a single hearing the questions as to whether the proof is evident or the presumption great with the determination of the existence of probable cause to believe that the defendant committed the crime charged."​

BBM. Section 16-4-101 - Bailable offenses - definitions, Colo. Rev. Stat. § 16-4-101 | Casetext Search + Citator

 

[Seattle1]

Regardless that the 130-page Application and Affidavit for Arrest Warrant is the longest AA the Chaffee County District Court Judge has ever seen, it's a fact that the document contained sufficient facts to support there was probable cause to arrest Barry Morphew on May 5, 2021.

More specifically, probable cause exists to believe that Barry Morphew has committed the following offenses:

DOMESTIC VIOLENCE
CHARGES: 5

COUNT 1: MURDER IN THE FIRST DEGREE, C.R.S. 18-3-102(1)(a) (F1){01011}

COUNT 2: TAMPERING WITH A DECEASED HUMAN BODY, C.R.S. 18-8-610.5 (F3){26065}

COUNT 3: TAMPERING WITH PHYSICAL EVIDENCE, C.R.S. 18-8-610(1)(a) (F6){26062}

COUNT 4: POSSESSION OF A DANGEROUS WEAPON, C.R.S. 18-12-102(3) (F5){30011}

COUNT 5: ATTEMPT TO INFLUENCE A PUBLIC SERVANT, C.R.S. 18-8-306 (F4){24051}

To be clear, it matters not that the AA contained information that was not relevant to the Court's finding probable cause.

It matters not that the AA contained information that may not be admissable at trial under the Colorado Rules of Evidence.

There is no requirement for an AA to conform to the Colorado Rules of Evidence, period.

BM's Preliminary Hearing is scheduled for August 24, 2021.

At this hearing, the District Attorney will be required to present sufficient
evidence to prove that it is more likely than not that the accused committed the crimes he is charged with committing.

The District Attorney is not required to put on all of their evidence or even the testimony of the victim. The court will allow statements of witnesses to come into evidence through a detective or other police officer. The accused will
not testify.

Any person may waive their right to a preliminary hearing. Waiving the hearing is not unusual and is done to keep open a plea bargain. By waiving a preliminary hearing, the accused does not waive any other of his/her rights.

(Plea bargain - An agreement by the accused, his lawyer, and the District Attorney which may involve a reduction of charges, dismissal of some
charges, or agreement on sentencing).

ETA: add link to charges
https://www.courts.state.co.us/userfiles/file/Court_Probation/11th_Judicial_District/Chaffee/cases of interest/21CR78/21CR78 Morphew Amended Complaint 051821.pdf

https://www.coloradodefenders.us/wp...e-to-the-colorado-criminal-justice-system.pdf