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

[kkdj]

I think the honest conversation SM's sister said they had will be admissible. Her sister can testify that it was SM she was speaking with, the content of the conversation, and the phone records will show that it occurred, when and for how long.

 

[Seattle1]

After requesting a preliminary hearing, the prosecutor must provide evidence to establish probable cause to a judge in the Colorado County Court.

This requires probable cause sufficient that an ordinary person could have a reasonable belief that the defendant may have committed the crime for which they are charged. If the judge finds probable cause, the court will bind over the case for arraignment. If the judge does not find probable cause, the case can be dismissed.

What Happens During a Preliminary Hearing?

A preliminary hearing is held before a judge of the Colorado County Court where the felony complaint has been filed. During the preliminary hearing, the prosecutor has to show probable cause to continue with the legal proceedings against the defendant.

The rules of evidence may be more relaxed at a preliminary hearing.

During the preliminary hearing, the prosecutor may present evidence, including hearsay evidence, which may not be admissible later on at trial.

The prosecutor may also present evidence such as witness or victim testimony. Evidence is viewed in a light favorable to the prosecution.

The defendant and his criminal defense attorney are present at the preliminary hearing. However, the Colorado DA cannot call the defendant to testify.

The defendant may have access to limited discovery evidence before the preliminary hearing, to prepare their case.

The defendant also has the right to cross-examine the witnesses called, and introduce evidence on behalf of the defense.

"Preliminary Hearings" In Colorado Felony Criminal Court Cases

 

[Seattle1]

As amended through Rule Change 2021(6), effective May 3, 2021

Colorado Rule 803 - Hearsay Exceptions: Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

Rule 803 - Hearsay Exceptions: Availability of Declarant Immaterial, Colo. R. Evid. 803 | Casetext Search + Citator

 

[NWLady]

I too have concerns about the length of the arrest affidavit, but when I stop to really think about it, just alone the 8 counts of trying to influence a public servant, I cannot help but think that there may be a good amount of info from these 8 public servants that is included in the AA, as again, this is 8 people you tried to influence, and it didn't work in your favor either huh Barry so at this time your batting average isn't so good now (no pun intended but insert sarcasm) is it, Barry?

When we have heard BM talk, like on phone with Lauren, it certainly IMO sounds as if he's very frustrated/irritated and put out about being questioned regarding Suzanne (your WIFE's) disappearance, and I think it is of utmost importance how he in the very beginning was saying that LE mishandled/inappropriately handled evidence. That's kind of putting the cart before the horse is it not, inmate Morphew! What evidence in particular was you referring to Barry? At this time you had led everyone, including LE into thinking SM went missing while on a bike ride, but this story quickly fell through with LE being able to so quickly find the bike with no Suzanne nearby, so now you realize THAT wasn't a good plan after all (to stage the bike) and now you are pi$$ed off because you have now lost control of how this is going to go NOW and Barry, you don't like somebody else taking control do you, plus now you know that you're in the spotlight and it's not the spotlight that you would like to be or the spotlight you would prefer to be in like in your past, with being a star athlete and all now is it?!

All of this to say, your beautiful wife - Suzanne - may not have mattered or no longer served any purpose in YOUR life, BUT I bet it didn't take too long, did it, for you to realize Suzanne DID make a lot of difference in many peoples' lives, including LE and other people around the world who did not even know her personally but have grown to love her, and of course, was loved by her family and friends too, and is greatly missed by many!

I bet this all came as a big surprise and disappointment to you, didn't it inmate Morphew!? What a shock to your ego this all must have been and it sure has dampened your style and changed your life and your lifestyle 'eh and I am guessing it's not a lifestyle you're enjoying either?!

JMO

 

[DetectiveFoyleWannabe]

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

Whether written or oral, they are out of court statements submitted fir the truth if the matter asserted. And she is not there to be cross examined. This is Evidence 101 stuff. Like I said, an exception may apply if it fits the category (present sense impression, dying declaration etc) but as a matter of law it is hearsay. Just imagine (and this is not the case I am sure) that Barry was innocent and she wrote (Barry is a bad husband and beats me) - the defense would say this was made up and there is not proof of the matter asserted, and the witness’s credibility cannot be challenged on cross examination. Judge would exclude. Absent an exception.

 

[DetectiveFoyleWannabe]

Yes, it must fit one of the exceptions as I noted. Present sense impression. Excited utterance. Dying declaration. Etc. this is consistent with what I said. With hearsay the witness is almost always unavailable. So an exception must apply.

As amended through Rule Change 2021(6), effective May 3, 2021

Colorado Rule 803 - Hearsay Exceptions: Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

Rule 803 - Hearsay Exceptions: Availability of Declarant Immaterial, Colo. R. Evid. 803 | Casetext Search + Citator

 

[SouthAussie]

I too have concerns about the length of the arrest affidavit, but when I stop to really think about it, just alone the 8 counts of trying to influence a public servant, I cannot help but think that there may be a good amount of info from these 8 public servants that is included in the AA, as again, this is 8 people you tried to influence, and it didn't work in your favor either huh Barry so at this time your batting average isn't so good now (no pun intended but insert sarcasm) is it, Barry?

When we have heard BM talk, like on phone with Lauren, it certainly IMO sounds as if he's very frustrated/irritated and put out about being questioned regarding Suzanne (your WIFE's) disappearance, and I think it is of utmost importance how he in the very beginning was saying that LE mishandled/inappropriately handled evidence. That's kind of putting the cart before the horse is it not, inmate Morphew! What evidence Barry? At this time you had led everyone, including LE into thinking SM went missing while on a bike ride, but this story quickly fell through with LE being able to so quickly find the bike, so now you realize THAT wasn't a good plan after all (to stage the bike) and now you are pi$$ed off because you have now lost control of how this is going to go NOW and Barry, you don't like somebody else taking control, plus now you know that you're in the spotlight and it's not the spotlight that you would like to be or the spotlight you would prefer to be in like in your past, with being a star athlete and all now is it?!

All of this to say, your beautiful wife - Suzanne - may not have mattered or no longer served any purpose in YOUR life BUT I bet it didn't take too long, did it, for you to realize Suzanne DID make a lot of difference in many peoples' lives, including LE and other people around the world who did not even know her personally, and course, was loved by her family and friends too.

I bet this all came as a big surprise and disappointment to you, didn't it inmate Morphew!? What a shock to your ego this all must mean and it sure has dampened your style and changed your life and your lifestyle 'eh!?

Really, to me, BM is just like all the rest of the lowlife murderous spouses. Discarding their spouse like rubbish. Wanting all of the marital assets. Stopping their spouse from leaving them in any other way than through death. Somehow thinking they are going to miraculously be the one to get away with it.

Same story, different day.

Robbing their spouse of all of life's joys yet to come. Robbing their friends and family of a treasured person.

 

[Ontario Mom]

Really, to me, BM is just like all the rest of the lowlife murderous spouses. Discarding their spouse like rubbish. Wanting all of the marital assets. Stopping their spouse from leaving them in any other way than through death. Somehow thinking they are going to miraculously be the one to get away with it.

Same story, different day.

Robbing their spouse of all of life's joys yet to come. Robbing their friends and family of a treasured person.

Well said. All of it.

I suppose we can be thankful for the stupidity of the bolded there.
I think that's what trips them up, and where they make mistakes while they're so busy thinking they're smarter than the police who's job it is to catch people exactly like them.

 

[MsBetsy]

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.

Thanks for taking the time to write all that! So all text messages are considered hearsay, but may be allowed under one of the exceptions. I'm guessing there are a lot of incriminating texts in the Affidavit. Imo

 

[Boxer]

This docunent states "no bond" for F1 in CO 11th Judicial District.
Some other districts let judges decide upon the degree of certainty they have of conviction.

BMs attorneys stated that they are working to get him out on bail, so it must be at least possible in the 11th District, unless Eytan and Nielsen are incompetent.

11th JUDICIAL DISTRICT BOND SCHEDULE colorado - Google Search

 

[Error505]

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.

I do remember during the last BM advisement hearing via WebEx, the defense brought up consumptive/destructive testing. Would this be referring to physical/biological evidence possibly?
This link is Scott Reisch, attorney out of Denver (approved source). He listened to the advisement via WebEx, and provided his commentary while the hearing was in progress. The hearing itself was not recorded.
@ 24:15 is when the “testing” is discussed.

MOO

 

[EggSalad]

I think the timing of BM’s trip to DSI to work on his bobcat is fascinating.

-He sees JP but doesn’t ask him to work on the Broomfield wall
-It’s right after he leaves the Salida job site where the bobcat is being used and by MG’s account it was working.
-It’s at a time when he says he is going home to make the wife happy
-Aside from the Broomfield wall on Sunday, it’s not known that BM did anymore work requiring a bobcat, so why change an attachment?
-It could also be the time BM did something mechanical to his bobcat and conveniently excluded that from his FBI questioning.

So was he fixing something that was broken or was he changing attachments for a “job” he needed to do, AKA, bury SM?

Could he have been swapping out identical attachments because one was dirty?

 

[DetectiveFoyleWannabe]

Thanks for taking the time to write all that! So all text messages are considered hearsay, but may be allowed under one of the exceptions. I'm guessing there are a lot of incriminating texts in the Affidavit. Imo

Well basically to authenticate a text you would generally need to have the author testify that they sent it. Kind of like any other writing. Again, subject to exceptions and the like.

 

[Error505]

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.

MOO I need more information on this judge’s past rulings and court decisions before I can come to that conclusion. I think he’s very prepared for this case (he’s well aware it’s a high profile case) and is being cautious to avoid decisions being overturned on appeal if there are convictions in this case, which I have no doubt there will be. I also think he wants a “fair” hearing which is as it should be. He probably made more work for himself bc I anticipate some responses from the 11 or so media who filed motions for AA to be released in the public’s interest. MOO EBM

 

[Megnut]

I think the timing of BM’s trip to DSI to work on his bobcat is fascinating.

-He sees JP but doesn’t ask him to work on the Broomfield wall
-It’s right after he leaves the Salida job site where the bobcat is being used and by MG’s account it was working.
-It’s at a time when he says he is going home to make the wife happy
-Aside from the Broomfield wall on Sunday, it’s not known that BM did anymore work requiring a bobcat, so why change an attachment?
-It could also be the time BM did something mechanical to his bobcat and conveniently excluded that from his FBI questioning.

So was he fixing something that was broken or was he changing attachments for a “job” he needed to do, AKA, bury SM?

Could he have been swapping out identical attachments because one was dirty?

Yup. This is going to be key.

Was it the Bobcat MG had been using?

Was Barry pulling a trailer the morning of 5/9 or did he go home and get it?

JP said it was eating time. 12, 1, 2... so it could've been nearly directly after dropping MG off or there's a small window.... for having been at Puma Pass.

Whose real estate brochures???? Barry's? Or Suzanne's?

What was Barry doing at that shop anyway? Did he have free access whenever he wanted?

If that repair job was Barry's mechanical thing.... what did he TELL LE he'd been doing right then?

He wasn't hiking and biking, that's for sure.

JMO

 

[Momofthreeboys]

This docunent states "no bond" for F1 in CO 11th Judicial District.
Some other districts let judges decide upon the degree of certainty they have of conviction.

BMs attorneys stated that they are working to get him out on bail, so it must be at least possible in the 11th District, unless Eytan and Nielsen are incompetent.

11th JUDICIAL DISTRICT BOND SCHEDULE colorado - Google Search

I would assume that his lawyers are considering a request for bond. They have read the arrest warrant so have that knowledge to guide them as does the judge.

 

[Gigi3]

After requesting a preliminary hearing, the prosecutor must provide evidence to establish probable cause to a judge in the Colorado County Court.

This requires probable cause sufficient that an ordinary person could have a reasonable belief that the defendant may have committed the crime for which they are charged. If the judge finds probable cause, the court will bind over the case for arraignment. If the judge does not find probable cause, the case can be dismissed.

What Happens During a Preliminary Hearing?

A preliminary hearing is held before a judge of the Colorado County Court where the felony complaint has been filed. During the preliminary hearing, the prosecutor has to show probable cause to continue with the legal proceedings against the defendant.

The rules of evidence may be more relaxed at a preliminary hearing.

During the preliminary hearing, the prosecutor may present evidence, including hearsay evidence, which may not be admissible later on at trial.

The prosecutor may also present evidence such as witness or victim testimony. Evidence is viewed in a light favorable to the prosecution.

The defendant and his criminal defense attorney are present at the preliminary hearing. However, the Colorado DA cannot call the defendant to testify.

The defendant may have access to limited discovery evidence before the preliminary hearing, to prepare their case.

The defendant also has the right to cross-examine the witnesses called, and introduce evidence on behalf of the defense.

"Preliminary Hearings" In Colorado Felony Criminal Court Cases

Didn’t they allow text messages in the Kelsie Schelling case as evidence even though she or her phone was never recovered?

 

[clearskies1]

Didn’t they allow text messages in the Kelsie Schelling case as evidence even though she or her phone was never recovered?

Why were they presented in evidence? It is only inadmissible hearsay if it's being offered for the truth of what the person is claiming in the texts. For example, if it's only offered to show that someone was alive and texting then it's not hearsay because it's not being offered for the truth of what the person is asserting in the texts. You have to look at why it's being presented to determine if it's hearsay.

 

[lonetraveler]

I think it should be released, but I can understand why the court doesn’t want it out just yet.

I know I keep referring to the Berreth case, but it was also in Colorado and this looks like it’s following the same pattern.

I’m sure some of the things in the AA will never make it to court, BUT I’m of the belief that the things that do will be damning enough that it won’t matter. Let’s not forget that Barry also tried to influence people in authority. That’s just the beginning, IMO.

BBM: I think that the fact that these 'people in authority' might be identified in the AA, could be the reason that the judge will not release it at this time. JMO

 

[Murphy1950]

With the judge taking into consideration the daughters tells me the defense may be winning him over on the sympathy side.

MOO I need more information on this judge’s past rulings and court decisions before I can come to that conclusion.

RSBM

I can't imagine any scenario/circumstances where the girls won't be called to testify. Since the judge can't advise them directly I think he wants to allow plenty of time for that to sink in and the girls seek out their own council. Honestly it could be the defense and or the prosecutors, both sides, who need to tear into their testimony and try to learn the truth.