are present. The defendant is present as well. >> Sure. >> We just need to not spill it. that one. >> Okay. >> Lots to cover. Uh, Miss Nester, I appreciate the email you sent early this morning. Should we start with the O'Drriscoll interview. >> Okay. >> Does that make sense? >> Yes, sir. >> Okay. So, this is docket 1163, which is the state's motion regarding portions of the O'Driscoll interview as clarified by docket 1555 and Ms. Netor's email of this morning. Let me get there with you. And I left both of those items on my printer. I'll be right back. You can stay seated. Thank you. Uh, phone. Okay. Okay, Ms. Nester with respect to pages 1 to 7 I what's the value in or I guess more accurately under rule 106 how do pages 107 uh qualify explain or place into context the stuff that follows >> um mainly because he gives the reason why the whole interview is happening like what he's doing there and why the interview is happening and um from his perspective and I believe that's important to put the whole interview into context. I don't see there's anything at all objectionable in it and it does provide a context of how this meeting happened. They're not in the police station. They're in her house. She invited him in. she voluntarily met with him. All of that I think matters to context and we're asking that it come in especially because there's nothing in it that's controversial and it there are things I think that are very helpful. >> Mr. Borth, >> your honor, there's a distinction between context to the interview and context to particular statements. And while this provides context to the interview, it provides no context to kind of any of the six individual statements. The interview context uh can be sufficiently drawn out through examination of Jeff O'Driscoll. I mean I'll I'll lay a lot of found some of that foundation before I introduce any any of the statements and then um of course he's subject across on that. The other thing is this is peppered with the defendants's selfserving statements um that the state holds the keys to. >> Okay. So we're going to do this one chunk at a time. Um the standard under rule 106 and it's not discretionary. it's an on or off switch is whether the portions that in this case the defendant wants to add to the designations uh made by the state are necessary to qualify, explain or place into context the portions of the interview transcript that the state seeks to introduce. That's under cases like state versus Cruz Mesa 2003 Utah 33 at paragraph 14 here with respect to pages 1 through 7. I'm persuaded by the state that this context for how the interview occurred will come out through direct and cross-examination of detective O'Drriscoll. These seven pages are not necessary to qualify, explain, or place into context uh any of Corey Richen's statements that follow. Okay? So, we're not going to add 1 through 7. Those will stay redacted. Then we get to pages 29. No, sorry, 15 to 16, right, Ms. Master? >> Yes, sir. >> Okay. This is new as of this morning. Give me just a moment. Is it Did you have a specific line number or the whole pages? >> Just the redactions that are on both pages. We would like unredacted. So it starts at line. >> There are no redactions on those pages. >> Uh I have redactions on lines 10 through 25 on page 15 and lines 1 through 12 on 16 is the copy I was given. Your honor, the no in in negotiating this back in whatever January, um the state conceded to her request to unredact that. The state unredacted it. The the current copies which are before the court and then the link I recirculated this morning show no redactions there. >> Okay, that's mood then. >> Very good. Uh that brings us to pages 29 to 32 want to use those versions this morning. >> Uh so here we have Ms. Richens making references to Eric going to jail and Cody's involvement in that situation. Ms. Nester, why is this necessary to qualify, explain, or place into context Miss Richen's statements in other parts of the transcript? >> Give me just one second, your honor. >> Sure. So, previously they were talking about whether or not Eric was happy, if he was depressed, if he was suicidal. And as a flow, an arc of that conversation, she then goes into the question O'Driscoll asks is, "Okay, anything else regarding his mental health history?" That's line three on page 29. She answers no not really but then she goes into like there wasn't generally you know I mean he had his struggles he was stressed and then she explains how he was stressed so I think it's a or why he was stressed about his relationship with his business partner I do think that completes the answer to the question it completes the entire subject matter of the conversation it's actually evidence that has already come in as far as not no longer being objectionable. This all came in in Cody's testimony. Um so we would ask that it be put back in. >> So I think you have fairly characterized everything through page line page 31 line three. After that though, I think it turns in a different direction that is not relevant or does not qualify, explain or provide context for what you just described. >> I really don't care about the rest of it. Mr. Bworth. Uh, line 29, page 29, line five through page 31, line three. >> So, we will we will unredact that portion. Yeah. >> I I think it's a fair continuation of Cory's explanation regarding things that were stressing, Eric Richens. >> Yes. >> Okay. Very good. So, we're going to unredact uh page 29, line 5 through 31, line 3. The remainder of that redaction stays as is. All right. I think then we go to page 107 to 112. Uh, help me out, Miss uh, Nester. I wasn't quite following defendants's position on this. >> Okay, just one second, Yor. I'm sorry. So this and it's it's getting hard for me to remember what I know from what happened in the courtroom versus what I know from getting ready for trial. So, I apologize. I cannot remember if this came in yet. I think it's going to come in with with Mr. O'Drriscoll, if it hasn't already with Chelsea. But there's conversations in here about texts with Chelsea on the day that Eric passed. And it's a continuation of O'Drriscoll asking about phone records um and him reviewing available phone records. and she goes into what she's reviewed in terms of the calls between her and Chelsea. So, I do think it's all part of one conversation. Um, let's see. And I think to the extent that hasn't come in yet, I think it's going to come in today. Well, I don't disagree with your prediction about what Detective O'Driscoll might testify to. The task I have to engage with here is whether any portion of 107 through 112 line 9 is necessary to qualify, explain, or place into context Miss Richen's other statements in this interview. So, I think it it's a direct continuation of the questioning above it about telephone records and whether she has um available phone records and she discusses these records of calls with Chelsea. So, I do think it's all one conversation. >> Can you point me to specifically? It seems to me that in the preceding pages they're talking about what phones she had access to during what periods of time when those devices were or were not available to her which belong to CE which belong to her. >> If you go back just a little further your honor to page 105 line um 15. Detective O'Driscoll starts with Okay. So, when was the last time before the night of the 3rd that you talked to Chelsea? Do you think it was the second? And she says, "I think it was the second." And he says, "When you guys were talking about the anniversary, do you know for sure if it was the second or third?" Corey goes into, "Well, yeah, cuz actually she sent me all the text messages because they were saying Woody tried to tell Chelsea, which was not true, that Chelsea's the last person I talked to. That's absolutely not true. and that there was some kind of message or something the night of the 3. I don't know, but we've pulled all phone records and Chelsea still has messages on her phone, so none of that is accurate. And then it goes into, do you have those records? They were talking about subpoenas. Do you still have them? And then they start redacting her explanation of how she got these texts and basically that she's looked at them and what they say. So, I think you're cutting out the second half of that conversation, which we to us is misleading, and we'd like it all in. >> Your honor, may I offer a suggestion? >> Yeah. >> The state proposes to redact page 105, line 15, all the way down through 107, line 11. So, redact the entire portion as it relates to Chelsea Barney. Okay, that removes the necessity of what follows. Ms. Richards. Oh, sorry, M. Netor. >> It does, except that I think they'd have to go back further to because they still have up there where Detective O'Driscoll is basically saying it's weird that your conversations with Chelsea's are deleted. So, I mean, they're just picking the part they like and taking out all the rest of it, right? So, they'd have to go back further. If they really want to take out everything about this, it would eliminate my objection, but they'd have to go back to um let's see. Um, so why don't we go up to 105 line three? >> Okay, let me look at that. The state still gets the general question on page 104 into 105. It just doesn't focus on Chelsea. >> That would fix my objection because then it would just take all of it out. >> Well, you're for example, just so the record is clear because we only have an audio record here. >> Sure. We have detective O'Driscoll asking about whether things is it possible the things were deleted on your phone and Ms. Richen saying at 104 line 20. Yeah, that's just not possible. >> Right. Right. And then he gets into Chelsea starting on page 105. So, right. If they would delete from three of 105 all through all of it, then that eliminates my objection because then they're not just putting in half of it and not the other half. But I would withdraw my objection under those circumstances. But if they want half of it in, I want all of it in. >> Well, okay, your honor, I I think we're narrowing in on this, but I don't think we're there yet. Okay. I think the defendant raises Chelsea right in at page 105 line eight. It wasn't detective O'Driscoll. So I think the redactions should begin. >> Oh, I see your point. >> At um >> line 15 >> line right line. She's using recovery of information on Chelsea's phone as an explanation for why she wouldn't bother to delete anything. >> Correct. >> Okay. >> And I think there's a distinction between right right here. I think at line 15 is the tipping point where there is a statement about deletions, >> right? >> And then at line 15 it tips into a discussion about text messages with Chelsea in particular. >> That's fine, your honor, if you want to start at line 15. >> Okay. So we will add the following redactions. We will redact line 105 sorry page 105 line 15 through 107 line 11. And that resolves uh defendants's request to unredact pages 107 through 112 line 9. Scott, I went kind of fast there. Did you get that? >> Yes, your honor. We have someone else listening in. >> Okay. Very good. All right. Anything further on that, Mr. Ble? >> No, sir. >> All right. 15 through 107 line 11. All right. That brings us to page 120. Line 24 to 121 line 8. This is Corey Richens giving Chelsea's phone number to Detective O'Driscoll. I didn't follow the how this relates to a prior statement. >> Um, just one second. I'm sorry. >> So, all the stuff above that is redacted, right? Are you looking at it? >> Yeah. >> Okay. Okay, just a minute. I'm trying to 24 through 91 1218. >> I'm sorry. I'm getting a little bit lost. Just give me let me >> let me look at my notes that I did just one more time. >> So right now we're looking at the 120 >> line 24 through 121 line 8, >> please. >> Okay, I got it. Just one second here. This may not apply anymore now that Chelsea's testified, but let me just make sure. >> We'll withdraw that one, your honor. >> Okay. Then let's go to page 125, lines 6 through 16. I genuinely don't know why defendant wants to unredact this. This we have worked real hard to keep this out. Yeah, we'll withdraw that one. >> All right, then we go to page 133 beginning at line 12 and it goes through 141. Okay, >> my notes reflect that this is a discussion regarding law enforcement officers and Cody Wright uh taking all computers related to CE and maybe some others uh and Cody having access to the garage and office at the Richens home. How does this qualify provide context for Ms. Richen's other statements in the interview. >> Just a minute. I'm trying to find trying to see where their redactions start and end on either side. So, give me one second. Six. 33 4. Um, so is everything after 141 redacted still on the I haven't seen the newest version. Everything after 141 is redacted still. >> No, there's some unredacted portions beginning at page 167. The the this the statement before this redaction that we're discussing in is is the defendant statements as it relates to life insurance. The statement after this redacted portion we're discussing is the defendant statements as it relates to the trust. And there the the the piece that we're redacting relates to collection of CE computers which uh in the state's view under 106 is not context to either the preceding or the subsequent statement >> uh 133 line 12 to 14. >> That looks accurate based on my review. Miss Nester >> I'm just I think most of this has come in now. So, I'm just making sure that there's nothing I'm almost there. One more second. >> Take your time. It was quite a few pages. >> That's all come in, your honor. We don't need it anymore. >> All right. So, defendants's request to add pages 133, line 12 to 141 is withdrawn. Then we fast forward to pages 174 through 184. Here Miss Richens is talking about the party's joint account and the flow of money from CE and her real estate business through various accounts. Right. >> The immediately proceeding statement is regarding the trust. The immediately following colloquy seems to be about life insurance policies. >> Yeah, just a minute. >> So this is 10 pages. >> I also think most of this has come in. If you can give me just a moment, your honor. >> Sure. The line on page 141 didn't change. There was no change in all that else. What's there is no break at 141. The redactions continue until one. There's no change. I think that all came in. Your honor, we'll withdraw that one. >> All right. And then finally, page 213, line 25 through 215, line six. This immediately follows a statement by Ms. Richens regarding um Eric knowing about the heliloc and consulting a divorce attorney and him knowing about that based upon statements made by his family members. I'm not sure, forgive me, I misstated that. It immediately follows a statement by him about knowing about the heliloc and then Ms. Richens talks about how he knew about that was because his family members told him and then he went and consulted with a divorce attorney. >> Right. I do think that's all one conversation, your honor, where he's they're talking about how he um I got to go back a little further. They're trying to say what they're accusing her of and how they changed. Um, I mean, that's all one conversation. I think I I stand on that request. >> Tell me why M. ation just doesn't pivot away from what Eric knew to what his family members were doing to her. There seems to be two different topics here. Well, I think this is all connected to the helock. I mean, Miss Benson testified early on in this case that the heliloc was what precipitated the meeting with the divorce attorney. The divorce attorney has also testified to that, right? >> This is Corey lumping all that together in one conversation with O'Drriscoll. So, I do think this all should come in in context. Um, I just think it's all one it's all connected to the beginning of the conversation where they're saying that he was unhappy about the HELOC and that they he had been meeting with someone about a divorce and that Cory was unaware of that and that she learned about that later from the family. So I think that's all connected. I I would ask that that come back in. >> Mr. Blick, >> your honor, the preceding statement, which is the statement the state seeks to isolate, is the defendant statement regarding what she knew about the heliloc. Um in the redacted portion she then pivots to um divorce attorney discussion the which is in her statement separate and distinct from the heliloc discussion. It has come out in trial that the two are connected. But in this statement um in in the it is a distinct statement through the course of this interview >> uh just in terms of ending that uh Corey Richens. Yeah, I think it it seems that Ms. Richen's sentence that be begins on 213, line 22 doesn't actually end until 214, line two. I It looks like maybe she and Detective O'Driscoll talked over each other in that point. It would seem appropriate to end it there and then redact the rest. So just to unredact 213 line 25 through 214 line three. >> Agreeable. >> Okay. That's the court's ruling this Nester. >> Understood. >> So we're going to unredact page 213 line 25 through 214 line three. Okay. I think that handles the party's positions regarding the transcript of Detective O'Driscoll's interview with Miss Rigggins. Mr. Bworth, anything else on that? >> No, your honor. >> Ms. Nester? >> No, sir. >> Okay. So, that brings us to the jail calls. This was originally filed as docket 1165 by the state. It's further characterized by Docket 1555. Um, we're just going to have to go through these one at a time. Uh, as a matter of mechanics, Mr. Bworth, these will come in through Detective O'Driscoll. >> Yes, your honor. As a matter of mechanics, and I don't know at this point um if we're going to introduce them all through Detective O'Driscoll on direct. In fact, um, trying to recall, there may be only one or two that I can pin down that we may want to address first. Although I I think that if we can, we should resolve the whole set of them today because I can see how it would come up in either redirects or some crosses that would begin could begin as early as today. All right, let's go through them. So, tab. Well, I don't know if you have the same binder. Let's go. 2-69T, your honor. And my main concern is on page eight, lines 6 through 18. >> Sorry, I'm just pulling it up. Which which one are you looking at? Can you give me the number again, sir? >> 2-69T. >> Okay, got it. And what portion are we looking at? Well, the court's concern based upon the content of the unredacted portions that the state seeks to admit is page eight >> lines nine and 10 >> especially. Yeah. Although >> Oh, that's definitely part of it. >> Well, that's Carmen being in jail, right? >> Yeah. She's not in here. Meaning Summit County Jail. What jail is she in? Because she's not here. >> Yeah. >> Oh, well she's not there. >> The only way was Mr. Tricians would know she's not there is because she's there. >> Yeah. >> Right. >> So, yeah, your honor, we can certainly redact line nine and 10 there. We we can even redact 11. I don't >> Yeah, if we can do 9, 10, and 11. Yeah. >> Yeah. >> Okay. Um, Miss Nester, what was defendant's objection to the remainder of this? >> Hold on just a minute, your honor. >> So, Britney, from 2-69t, we're redacting page 8, lines 9 through 11. I think that was my objection to this one. >> Okay. >> Um, let me just make sure I think that was it. I think that was the only problem I had with that one. >> Very good. >> Wait, hold on. >> That's Carmen. >> Okay. >> Yeah, that's it, your honor. That was my objection. >> Very good. Let's go to 2-7 R. There's only three text messages sent from the jail. >> I'm sorry, your honor. Oh, never mind. They redacted it. Okay, I apologize. Please continue. >> 2-71R. These are text messages sent from the jail system. The state seeks to admit three, right? >> Yes, sir. >> It's the ones from May 24 at 9:50. May 24 at 1002 and May 24 at 1003. Correct. Okay. >> So, we have a couple of objections to this one, your honor. It looks like they have made all the redactions that we requested that indicate it's jail related. So, that those have been resolved. Um, however, this is a correspondence between Corey and her brother, and the brother's asking her, "Did Eric ever talk about suicide?" >> Right. >> Um, and she's repeating things that Eric said to her, which would be hearsay. Also, I believe the brother's statements are hearsay. >> Well, all of the non Corey Richen statements are going to be hearsay if they're accepted for the truth of the matter. So that's >> well but they're specifically trying to admit what Eric said for the truth of the matter. >> So that's the concern that I have. She's she it's like double hearsay. I know Cory's statement isn't hearsay, but when she relays what Eric told her, that is hearsay. So that's our objection to this one. Also, we just don't see the relevance. There's no um >> you don't see the relevance of whether Mr. Richens ever spoke about suicide. I don't think any either side is making the allegation that he intentionally killed himself. That's never been said by either side. >> I think the state is seeking to prove affirmatively that he did not. >> So, I think we can put relevance aside. It's certainly relevant. >> Okay. >> Um, Mr. Bworth, talk to me about the hearsay. >> Put the brothers level aside. Um, it's the truth of Eric's statements to Corey as related by Corey. Cory's level categorically not hearsay. It's the Eric Richens level. Let me pose a hypothetical to tease out the legal issue. It'd be one thing if I mean, I guess what we're trying to tease out is whether this is evidence of whether Corey ever heard Eric say it versus whether Eric ever had suicidal ideiations. >> So, I I appreciate that distinction, your honor. She doesn't quote him, right? It's a generic this is my impression of generally >> of my husband, >> right? >> Yeah. >> Well, respectfully, I disagree. He would always say things like, "If anything ever happened to me, blah blah blah." I mean, if they if they want to redact everything after the word not suicide specifically, um, then I my objection apart from the relevance, which I stand by, but um, that would cure the hearsay problem of what he actually said. But she they could leave in her answer not suicide specifically because I don't think that relates to a particular statement. >> It actually refers to the absence of statements. >> I I think the opposite that is what explains her statement not suicide specifically. >> Well then it should then none of it should come in >> right. the the statement is uh Corey Richen's statement is not suicide specifically. The remainder of that particular text message is in a sense 106 completeness because she is explaining her statement. Why don't we just instruct the jury that they can't accept Ronnie or Eric's statements for the truth, but they can affect they can uh accept them for the the effect they had upon Corey Richens and let the whole statement in. >> Correct, your honor. That that's appropriate >> because it's not being offered to show any effect on Corey Richens. It's being offered to get in the fact that Eric made that statement to her. That's the whole reason this is coming in. And I stand by my objection, your honor. >> And just to be clear, you don't want to admit the statement that Eric told her they'd be set for life if he died. >> No. >> Okay. All right. That's like No. >> Yeah. I guess if the statement Eric made isn't true, what relevance does it have, Mr. Bworth? >> It explains Corey Richen's statement, not suicide specifically. It is the effect on Corey Richens to make this to to respond to the question of did Eric ever whatever the question is, hold on. >> Did Eric ever talk about suicide? She says not specifically and then explains herself >> foundation for her statement. It it it shows what Eric's the effect of Eric's statements on her. >> Right. As we tease this out, it seems that to the extent that the effect upon her was relevant, regardless of whether it was true, it was her understanding that she'd be set for life if he died, not whether or not he had suicidal ideiations. Is that fairly stated? >> On the state thinks it's it's both actually. It is the set for life. If he he died, it's certainly that, right? But it's also the suicidal ideiation part because um you know evidence will come in that I I I think evidence is going to come in that she never believed you know she said he would not commit suicide in in in other in other portions of >> and at her level that can come in. Right. >> Sure. But there's a foundation for that. Why do you believe that? I think with respect to this particular text exchange, first of all, I don't understand why we need the third one. Can we work backwards from there? Why do we need her brother saying just curious someone threw out a scenario made me think? That seems to be a throwaway. >> Well, I guess it all depends on whether or not DJ testifies. >> Forgive me. that the um that statement could be used in impeachment of DJ Corey if he were to testify. Is this one of the things that's coming in in uh through the state's uh case and chief or the rebuttal case or through cross my apologies? >> As yet unclear. >> So yes, let me perhaps resolve I think the current. >> Yeah. Um if it comes in in the state's case in chief then I would agree that third statement we could redact. We may have a discussion down the road about unredacting it. >> Understood. Okay. So focusing on the first two, I think the correct result here, let me state it and then let council ask for any clarification is to admit the first two text messages with the following instruction to the jury that they cannot consider um Ronn's statements for the truth of the matter only for the context. effect that they had or the effect they had upon Ms. Richens as the listener. They na they cannot consider uh Ms. Richens relating um what Eric Richens told her for the truth of whether he ever had suicidal ideiations or whether she would actually be set for life if he ever died. but can consider it for the effect that that statement by Eric Richens had upon her on a going forward basis. >> What can we just get a a statement as to what effect that did have on her? Because I don't understand that argument at all. And >> she thought she would be set for life if he died. It provides a motive to kill him. >> Okay. >> Uh Mr. Bworth, any clarification? >> No, your honor. Okay. Any other clarification, Miss Nester? >> No, sir. We just would like a continuing objection to that one. >> I don't know what you mean by that. >> So, I don't have to when they admit it, I won't have to jump up. I just like >> And you don't under rule 103. Have we discussed anything further on that? >> No, sir. >> Okay. Uh Scott, >> yes, your honor. Would you initially redact the message from Ronnie at 524 at 10:03? Just curious. I watched something, etc. >> I think it's from DJ. >> Oh, I'm sorry. You're right. That's from DJ. Um, for now, I can pause for a second if my description was inappropriate. There's other parts that are already >> We're getting it. We're tracking it in the back as well. >> No problem. Sounds good. Okay, moving on. That brings us to 272R. As I understand it, it's 1 2 3 4 5 text messages from 531 2023 at 7:14 to 531 2023 at 7:24. where I'm >> I think the relevant part of this Mr. Bworth is that Ms. Richen saying she hardly knew Hayden Jeffs. Is that the point of this? >> Correct. >> Okay. >> And so do we need anything after the 531 at 7:22 where she says that So, you're referring to the last two of those texts. >> Yeah, >> we can we can redact those. >> Okay. >> Wait, I'm sorry. Which ones? I I missed which ones you're talking about, right? Then >> another one wanting their 15 minutes of fame. Oh, God. Huh? >> I would object to that coming out. I I object to this whole thing coming in, but if it comes in, they should all be in. >> All right. Tell me why you object. I don't understand the relevance of this at all. >> So, we have testimony that's come out that uh Corey Richens had a telephone conversation with Hayden Jeffs regarding the topic of fentinel. Here, she's saying she hardly knew him. It's probitative of their relationship. They don't talk about that at all in here though about any conversation that she had. >> She talks about hardly knowing him. >> I just Your honor, we just stand on a relevant subjection. >> Okay. Anything else? >> No. >> Okay. Uh this is relevant to Ms. Richen's knowledge of or disclaiming knowledge of Hayden Jeffs. And do you want the whole thing, Miss Nester? >> Yes, I do. >> All right. We'll leave it as is, Mr. Bworth. >> Yes, sir. >> Okay. >> All right. Tab 7. Sorry. 273T and 274T and 275T. Uh, Mr. Bledworth, Miss Shervin, I am genuinely confused by these in terms of this transaction and St. George and this other deed and I read him three times. I really don't know what they're talking about. >> Sir, let me um propose this as a way forward. >> Yeah. >> Um to date, nothing has come in where the state would use these. I can see a circumstance where the defendant's mother would testify that the state would use want to use these texts. uh in impeachment >> or the phone conversation. >> Or the phone conversation. >> Okay. >> Um so maybe we can just put a pin in these till if and when that circumstance arises. >> I appreciate that. Any objection, Miss Nester? >> No, your honor. >> Okay. Very good. We will skip 73T, 74T, and 75T for now. Then we go to 2-76T. Uh, with respect to this one, the defendant objects to redacting lines 2 through 8 on page 7. Under rule 106, in the court's view, Lisa making a comment about a corrupt police force is not required to be included under rule 106. But Ms. Richens wondering if Detective O'Driscoll didn't relate part of his conversation with her to the prosecutor. That seems to provide context. >> I don't It wasn't the corrupt police force comment I'm interested in. It's Corey's so I don't have a problem with that staying redacted. >> So I think if we just focus Mr. Bworth on page seven lines 4 through 8 I also, your honor, while he's looking at that, um, I did catch on page seven, line 19 20. I think that's Lisa reading the um information I'm guessing. And that's that's the hearsay. The court's done an in limiting ruling on page uh line 19 and 20 on page seven. That also just that one little part needs to be redacted. His he later told his friend he thought Corey tried to poison him. that's been kept out. >> Well, that part's come in a couple of times. I think it's the sentence sentence before that's the problem >> is because that's part of what the state has to prove, right? >> Actually, both of those >> I I think they've both come in. >> Has the Forgive me. Have we gotten the detail of >> the only thing that's >> eat the sandwich broke out in hives had trouble breathing? >> No. I that detail has come in I think in the context of well in Ali Stakings testimony about what they were joking about. >> Yeah, it certainly ate a sandwich had a reaction. Was she that specific? I I I genuinely can't remember. >> No, >> we can hopefully somebody in the back scrambling right now to to get that portion of the transcript. I I um I also think it it's come in in a text message as well. >> The there's the June text message, right, where Ms. Richens is I forget who the recipient of that text message is. >> Chelsea. >> Chelsea Barney. >> There you go. Uh is talking about they're saying I gave him a sandwich on that day. And >> right, it's correct. Is the defendant saying um I was, you know, I was with him when he ate. I gave him the sandwich for lunch. He didn't break out in hives. He didn't use an EpiPen. >> That's right. Okay. >> The concern I have also is it says he later told his friend, which is Cody or Case, one of those. >> He doesn't say that. And we've already got testimony that there was a conversation in which he told a group of people that she tried to poison him >> jokingly. >> Well, whatever. >> This is referring to telling his friend cuz his friend was not at that conversation. and his friend would be either Cody or H or um Josh. And that's both been that's been suppressed. >> Yeah. I I don't think that we know to draw that connection, but the jury wouldn't. >> I don't think we can risk that, your honor. I mean, there's a reason you made that ruling. We should stand behind your ruling. Um I >> I am standing behind it. Um let's take this one piece at a time. Mr. Bworth, uh line seven. Can we please add in any objection adding back in lines four through eight? >> Sorry, page seven lines. >> Page seven, lines four through eight. >> Yeah, >> no objection to adding that back in. >> Okay, so we will uh remove the redaction in 2-76T of page 7, line 4 through 8. Then, Ms. Nester, what is defendant's request with respect to lines 16 through 20? >> Your honor, all we're asking is at Lisa Darden's statement, which starts at line 16. And then the next question is, when Eric ate the sandwich, he immediately broke out in hives, had trouble breathing. He later told his friend he thought Corey tried to poison him. We're asking to redact that whole comment of Miss Darden. >> Mr. Mr. Blorth, the state's response. >> Your honor, I I think the um just as a some context here, Lisa Darden is reading from I think the uh it's the interrogatories in the civil case. That's why she uses the word question. The um important part from the state's perspective is Corey Richen's um response there. Ridiculous. Right. So the the preceding paragraph is necessary for the effect on the hearer. I think the court can instruct around any um >> uh you know any hearsay problem about considering it for the truth of the matter asserted. >> Okay. Uh, defendants's request to redact lines 16 through 20 of page 7 of 2-76T is respectfully denied because that information that Eric ate his sandwich, that he broke at hives, had trouble breathing, later told his friend non-specifically who that is, that he thought Cory tried to poison him. All of that has already come in through other sources of evidence that will not introduce any new information to the jury if they were to uh fail to follow the court's instruction that they cannot consider the non Corey rich part of these uh conversations for their truth. Your honor, can I just also, while we're just making the record, we would also ask that lines 9 through 13 be redacted on the same grounds. I understand your ruling, but I just want to make a proper that we'd also want redacted. So, they're saying it was on they're saying just a few days later, Valentine's Day, Cory made Eric a sandwich and placed it on the seat of his truck along with a supposed love note. I don't believe that has come in. I I respectfully disagree. I don't think it's ever come in. and he had trouble breathing. Um, and I just want to make a record on that, but I understand your ruling. >> Okay. Uh, let's see. I think that handles 2-76T. Let's go to 2-77T. Defendant objects to redacting the following two sections. line 20 uh page page 21 lines 14 through 25. This just seems to be a self-serving statement by defendant that is not necessary to qualify, provide context for or explain any of the other unredacted statements. Why is this necessary under rule 106? >> Page 21, lines 14 through 25. >> Yeah. Let me check and see when they >> we don't need that. We'll withdraw that. >> Okay. Thank you. And then same exhibit 2-77T. Please go to page 25. lines 2 through 16. I'm not sure why this is rule 106 uh material either. It is almost entirely Ronald Darden's statements with just Ms. Richens making non substantively responsive comments. Why don't you sit at the table here? I'm going to need your help. Yeah. So, for example, what's been done so far? Okay. Okay. I don't need anything above line 14, but line 14 is the beginning of her her sentence that starts on line 17. >> Okay. >> So, we need 14 15. I don't really care about 16. It doesn't I think he's talking over her, but 14 and 15 is the beginning of the sentence. That's that they start with 17. >> And what's the problem with lines 17 through 19? >> What page? >> This is Corey Richen's statement. She's saying her mother was telling her. So it's triple hearsay. It's her mom telling her what her mom read about what other people said. Okay. And then doesn't she go on to talk about that on the p the following pages. Um, and I'm not sure what you're asking me. >> If we don't include lines 17, 18, and 19, we don't know what she's talking about when she says stuff showing that I bought lunch at Mirror Lake. Like I didn't make any [ __ ] sandwiches. >> I don't >> It's context for what she's talking about. >> I don't think Well, I don't think any of it should come in. I mean, it's all talking about a triple hearsay statement and she's addressing it. It's her making comments about what did or didn't happen with respect to the sandwich on Valentine's Day. That's relevant >> responding to what the triple hearsay statement is saying. >> Well, that's fine. But heard the statements made by other people do not come in for the truth. Her statements are admissible as categorically nonhars. >> So, you're going to make an instruction on this one as well? I'm making an instruction on all of them >> that they cannot consider ms the statements that are made by people other than ms rich for the truth of the matter asserted. >> So I'm sorry I did not understand that you were suggesting that you're making one instruction for everything. I don't know how they're introducing these. I don't know how >> I can make an instruction every single time. That's what I'm asking. >> Yeah, happy to. >> Okay, that's Any other objections regarding this? >> Your honor, we don't think any of it should come in. We think it's all hearsay. We object to all of it. >> You're going to have to be more specific. Do you believe that Ms. Richen's statements are hearsay? >> Yes. Because she is incorporating into her statements the hearsay statements that others are making about what happened in order to give her own explanation. So, yes. >> Okay. Uh, any other objections? >> No, sir. >> Uh, defendant's objection is overruled. Ms. Richen's responding to questions posed to her by other hearsay speakers is categorically not hearsay. The court can instruct around the uh possibility that the jury might consider the statements of speakers who are not Ms. Richens accepting their statements for the truth of the matter. Mr. Bledworth, anything further there? >> No, your honor. >> Okay, that handles 277T. All right, let's go to 278T. >> Uh, Mr. Bledworth, take a look at page 11 with me, please. >> So, your honor, maybe I can head some of this, >> please. >> off. So, this along with I think it's 2-90, right? This all goes to recovery of the walk the dog letter which is entangled with a whole lot of Cory Richardson's in jail. I have a proposal. Let me >> Why is recovery of the walk the dog letter going to be an issue that comes in before the jury? I've already ruled on any motions to suppress it. >> I I don't think it has to. >> I'm so sorry. Which number are we looking at right now? Currently, we're looking at 78T and 90D. So at the outset from the state's perspective in introducing the walk the dog letter how it was recovered I don't know that that matters and that but I can envision a scenario where um for example defense um uh the defendant has said that This six-page walk the dog letter, it's been redacted down, but six-page walk the dog letter um was part of a 65page fictional manuscript and the it was recovered from the middle or whatever of that manuscript and um the the context of it the context of the six pages is within the the volume of a book. Um, that is untrue and we could prove that by proving how it was recovered. >> Let's go in order of events though in terms of Jeff O'Drriscoll testifying about the walk the dog letter. >> Here's my >> Go ahead. >> Here's my proposal, >> please. >> Um, I would like to show Jeff O'Driscoll a copy. Is this an accurate depiction of a six-page letter to Lisa Darden written on either September the 12th or 13th, 2023 that investigators recovered on September the 14th, 2023 from a book that was among Corey Richen's personal possessions? >> Any objection, council >> rather than bringing in. So the idea would be he's not going to bring in 278T and >> no just we'll start there and it will inform what we do with 78T and 90D. >> So the way he just explained that answer I don't know what I could object to. >> Well if you object to foundation you're going to create a problem. So I just need to have a what he's proposing is that that question be not uh non-objectionable based on foundation by stipulation of the parties. >> Well, I don't plan to object to that question because I don't want to get into the fact that it was her cell was roused, >> right? >> So I mean I'm certainly not going to open that door. >> Okay. So if it comes in that way, as I understand it, there's no need for the state to use 2-78T or 290D in its case and chief. Is that accurate? >> Correct. >> Okay, Ms. Nester, anything further there? >> No, sir. >> Okay. >> So that's uh Okay, then. Can we go to 2-93T? Uh, I think this is Miss Richens talking about speaking with Miss Bramwell and Heber. >> Just very briefly, your honor, I think they missed redacting the word jail call on the first page. On this one, if we could just make sure they do that >> on page two. >> On page one, the cover page. up at the in the heading. >> Oh, I don't think we're showing any of the the cover pages of any of these, right? >> Um >> I think they have the dates on them, so they may. >> Yeah, we have we we did miss that. We will fix that. >> My apologies. Okay, very good. So, jail call one will be redacted from the caption on page one. Thank you. Um, help me out. What is the probative value of this one, Mr. Bledworth? And is this only one that might come in in rebuttal or is this the case and chief? >> Um, no, your honor, the state withdraws this one. Now that we've resolved the Bramwell issue and she's testified, this is no longer >> Okay. necessary. >> Very good. 2-93T is uh moot. Uh all right. 2-94T. Part of this is regarding the vacation booking statements. Part of this is Corey Richens making statements regarding the vacation booking statements. And part of this is regarding the thing in Hebrew. Candidly, the statements or the the back and forth regarding the quote unquote thing in Hebrew is pretty confusing. The first part I think is more clearly probitative. >> This one also, your honor, they missed jail call page. If we could just redact that. >> Scott, page one of 2-94t in the caption. Please reject uh redact jail call 2 from the caption. There you go. Apex last you guys. your honor. At this point, um, because of the way the evidence came in, the state will withdraw this one as well. I I can envision some corner cases where we might want to revisit it, but for now, let's just set it aside. >> Very good. And then the video 2- 110. We don't need to offer that, right, Mr. Bworth? Sorry, sir. I'm just bringing it up. Oh, no. So, that that went the same way as um 278T and 290T. >> Got it. >> Okay, Miss Nester, I think that resolves the state's uh docket 1165. Anything further on that? >> No, sir. >> Mr. Bworth? >> No, sir. Nothing on that. We um we've recently identified three additional jail calls that we've redacted. We we'll send those to the defense today. Um I don't anticipate introducing them today, but >> okay. >> So we may have additional similar discussions. >> Understood. And then uh let's see. May I ask about the state's motion to admit redacted exhibits 8-57R through 8-63R. That is the state's designation of prior consistent statements by Carmen Lober. May we talk mechanics for just a moment? >> Yes, sir. >> How are these coming in mechanically? >> So, your honor, in questioning uh Jeff O'Driscoll today, I will ask him about conduct of uh the interview of Carmen Lobber. um ask him about the defense's um question. You know, he was present when the defense questioned Carmen Labour about certain statements in context. Do those, you know, are those statements uh you know, fair? No. Um and then uh move to admit the the various 57 through 60 whatever. So, I appreciate that the state has evidence through Jeff O'Driscoll and perhaps others that the arc of the interview, particularly the conduct by law enforcement officers or investigators and Ms. Lobber's responses there too are not the same as suggested by defense's cross of Ms. lobber, >> right? >> But you can elicit that evidence through Mr. O'Drriscoll's Detective O'Driscoll's testimony. And to the extent you need to show that Carmen Lobber testified consistently with her direct versus the suggestions of what she said or what she said on cross. Um, you can certainly do that. Mhm. >> My question is though, it seems like a lot of this is being shown the arc of the investigator's conduct rather than just Carmen Loberers's prior consistent statements. Now, I understand context matters, but do we really need all of it is my question. >> Your honor, the state tried to narrowly tailor the amount of information. I think um >> and to be clear, I recognize that we went from 900 pages down to 100ish. >> Correct. >> I understand that. >> Um I think >> those 100 or so pages narrowly tailored are kind of the minimal amount to show. uh the >> the motive Carmen Loberers's motive um that it it was more certainly there was a self-s serving piece but there was a lot more than a self-serving piece um and that she was not motivated by detectives O'Drriscoll and Maynard um bullying her, >> right? >> Um I think the full expanded 900 pages show that the best. I think the 100 or so we called to show it enough. Do you have these as one kind of video clip that plays from interview to interview or will you provide some signpost for the jury as you introduce them? >> You, your honor, we don't intend to publish them. We intend to make a few points from them through Detective O'Drriscoll's testimony, provide them to the jury, and in argument argue something like um you heard the def the defense cross-examiner. You heard Detective O'Drriscoll's testimony regarding those interviews. You have them before you if you want to or you have these expert excerpts before you if you want to dig through them and and determine for yourself what the what what the evidence proves. >> Okay, I appreciate the efficiency of this. I have a genuine question as to whether I can send these transcripts back into the jury room when I'm not sending other transcripts of other testimony back into the jury room. I have some, >> your honor, it's not testimony. It's it's it's >> evidence. It's an interview. >> I mean, we we'd have to go through the Crawford analysis to figure out if Ms. Lober's statements were testimonial. Now, there's not a Crawford problem because she was on the stand. >> Correct. But whether these qualify as testimony with respect to the concern that providing transcripts of certain testimony would give that certain testimony undue weight when transcripts of other testimony uh are not provided. That I have a genuine question about. So I'm not suggesting that you can't publish. >> Sure. I'm asking whether you have to publish but not admit, >> but she was in custody. She was being questioned by law enforcement officers. I I think there's at least a >> a reasonable question as to whether this would qualify as testimonial in quote unquote. I >> I think two things, your honor. in some measure that's why the state moved to admit the entire shebang. Um but I appreciate the need for efficiency. >> Right. >> The second thought I have is to the extent that the defense wants to further cross-examine Carmen Lobber on these or Detective O'Driscoll or Detective Mayor. They're here. they can re we can all recall them easily. >> I agree. Yeah. No, no, I I agree with all of that. It it really comes back to the issue of whether these transcripts go into the jury room. Publishing, you're right. You have the right to publish them to the extent you want to. Um I am not persuaded sitting here right now that they go into the jury room. So, how do you We don't have to necessarily reach agreement on that piece right now, but I How do you want to proceed with Detective O'Driscoll on recognizing that they may not go into the jury room? >> Your honor, that would alter the state's directive of Detective O'Driscoll because we would end up publishing 100 pages of transcripts. >> You have them as video or audio though, too, right? Well, right now we only have the transcript. We were waiting. Video editing is long and expensive. >> I see. >> And so we were waiting to nail down the transcript to then conform the video. >> Do you have is audio easier? Do you have audio files? >> What did >> M Shack is saying? No, >> it's just it's it's the video files. The audio files. I see. It's it's one. >> I see. So, there's no distinction in terms of editing time between a video and an audio file. >> All right, pause there for a moment. Maybe I'm uh I may be taking on more than I need to. Miss Lewis, what's the defendant's view of this? >> Your honor, I mean, we object to these coming in this way. I I think >> when you say this way, what do you mean >> by publishing any of these transcripts? I think you're correct that the appropriate way to do this would be through direct examination of Detective O'Driscoll. They can certainly ask him questions to try and rehabilitate what Carmen Lober said. >> Can ask him questions about what he said. They can't ask him questions about what she said. That'd be hearsay. >> I understand. But the problem that that as they see it, if I understand it, is they're trying to put forth that she wasn't influenced by law enforcement. So they can ask questions of Detective O'Driscoll about that. But putting these in, I do believe is a Crawford problem. Um, >> well, hold on. We got to be I need you to compartmentalize the objections here. These are being offered as prior consistent statements of Carmen Lobber to rebut a charge of either recent fabrication or undue influence. >> Understood. Um, so any objection under that rule? >> Yes, that should have come in under Carmen. I during cross-examination, it's fully within our right to pick out portions of this interview. >> But you can recall her, right? >> I don't think that's our job to recall the state star witness. They had her on the stand. >> I just asked you a yes or no question. Would you start there for me? Could we recall it? Yes, that is something that could be possibly done. I don't imagine what world a defense would do that, but >> And correct me if I'm wrong. You had the transcripts when you cross-examined her, right? >> Yes. But so did they. And the appropriate way to do it would have been to try and rehabilitate her on redirect, which would have then given me a chance to go into other statements. >> They sought to and I limited their ability to put in the whole 900 pages. That's not how you rehabilitate. You rehabilitate by asking questions. It's not by putting in an entire transcript. >> Well, you can do it, for example, by admitting prior consistent statements. And so, I just need you to stay focused on that rule for a moment. I know I'm interrupting you. >> Yeah, you are. >> I I don't understand how you think they were supposed to admit prior consistent statements >> for testimony. >> That's not a prior consistent statement. The whole reason we have the prior consistent statement rule is because the testimony goes in a different direction or there's a charge of recent fabrication or undue influence. Then you have the prior statement come in as substantive evidence >> only while she's on the stand. They didn't even attempt to question her about um whether or not to pull out these portions to show, oh look at you weren't unduly influenced. Look at you said this, you said this. Is that correct? Is that correct? That's how you would normally see this done. Then I could have cross-examined her. And I I also want to point out that they have taken very small portions of this that leave out the portions of the interview where they she is being influenced by statements of law enforcement. This makes it look like I mean they've cherrypicked what they want. And for example, I want to pull out the May 10th interview. I don't even understand why this would be coming in. All they've pulled out is a conversation between Miss Whistler and Miss Lober that Miss Lober is supposed to testify before the grand jury. That's going to open up a whole door of speculation and what happened. I don't see how that has anything to do with what we're even talking about. And as I go through the transcripts, it's very much just what the state wants the jury to hear. I mean, if we're going to do this, which I think is completely inappropriate, this is a Crawford problem. They should have been brought in through testimony when Carmen Lober was on the stand. So, she could have been cross-examined. They can bring in what they want through still through Detective O'Driscoll because we still have an opportunity to cross-examine him. But to just send back portions of a transcript that we've not been allowed to cross-examine on that point out to the jury just what they want the jury to hear is inappropriate. >> And I apologize, you're you're jumping around a little bit. So, put aside sending transcripts back. I have concerns about that. Um, do you have any law for the proposition that prior consistent statements can only come in through the witness that makes the statement? >> Well, I would point to a case um, let me pull it up again. I had it. Just give me a moment. I can't find it now. One moment, please. >> Yeah. Um, it's 366 P3R867. State of Utah in the interest of JC. >> I'm sorry. I would you give me the site one more time? >> 366 P3R867 and I direct the court to footnote 8. >> Okay. All right. So, I understand your objection there. Tell me why you think it's a Crawford problem. You had the opportunity to cross-examine Ms. Lober. You did cross-examine Ms. Lober. You used part of these uh interviews to cross-examine her to challenge her on whether she just asked the law enforcement officers, investigators just write her statement for her. I don't understand what a lack of confrontation M. Richens has had here >> because they're basically crafting testimony on her behalf. I understand that >> because what is happening here is now they are basically crafting testimony on her behalf. They should have asked her these questions. I haven't had an opportunity to cross-examine her on what they now want to bring in. They should have brought it in through direct and instead, which I get is difficult was difficult with her. You know, she said she didn't remember anything. instead of doing the hard work to try and ask her questions, they just want to put it all in and they want to cherrypick what they wanted her to say, which clearly would have been very difficult to get her to say. So, the easy way is here, we're just going to hand you the transcripts that show you what we wanted Carmen Lober to tell you, but instead here, just read it without putting in the whole story or giving me a chance to go back and cross-examine her. And I think requesting us to recall her is burden shifting. That is not what our job is. That's not what we needed to do. They needed to take care of their witness when their witness was on the stand. I >> And remind me, you objected to the addition of any part of the transcript at the time they offered it. Correct. >> For the same reason they offered it after she was off the stand. >> Had they offered it the 900 pages when she was on the stand, you would have said, "Okay." >> No, I would have said you need to cross-examine her. I mean, redirect her and rehabilitate her testimony. And so how do you see the rule regarding prior consistent statements working? >> They need to get it through her. They could have put on prior consistent statements through her. >> I really don't understand. You're saying that prior consistent statements never come in and you only can ask questions. Please help me understand. >> I don't understand. >> I don't understand. I'm sorry, your honor. I really am not following what you're trying to say. I have never seen this done any other way than through a witness. That's why we have witnesses. If not, why have any witnesses? Let's just hand the jury all the evidence. Let's hand them all the transcripts of >> No. Be fair to how the rule works. Somebody testifies on cross-examination. Defendant makes a charge of recent fabrication and then the profering party has an opportunity to offer prior consistent statements to rebut the charge of recent fabrication. I hear you saying no, they cannot offer the prior statements. They can only ask more questions. >> They can offer them through the witness. They can say is this your statement? And what if she says I don't remember that? Okay, then they can refresh. What if she says, "I don't remember that." Well, then it doesn't come in. >> I Okay. I think that's where maybe you and I differ on the the way the rule works. Do you have any citation for law that says unless the witness remembers these don't come in? Well, off the top of my head, I'd have to spend some time, but I would look at rule 613 of um the Utah rules of evidence that talks about and I well, this talks about prior inconsistent statements, but after given opportunity to explain or deny the statement, an adverse part is given the opportunity to examine the witness about it. We don't know what she would have said. We don't know if she would have said I I mean she may have very well said no I didn't feel influenced at all. You know that's fine. They could have asked her that question. Then I could have cross-examined her or recrossed her to say well what about this? What about this? What about this? Now I'm denied any opportunity to do that by just putting in statements. And I mean I I really don't know what else to say. I do think as I look through the transcripts, they have only picked things that they want in that we don't know that Carmen Lober would have agreed to. But had they wanted to put them in through her at least then I could have questioned her to I mean I could have questioned her. I could have said, you know, so this didn't make you feel pressured. So that didn't make you feel pressured. So they said this, so that made it, you know, so so you felt you were telling I don't I mean, you you see where I'm getting. And I don't have any opportunity to do that in this way. They can ask Detective O'Driscoll questions. We can cross-examine OT Detective O'Driscoll and the jury can make a determination of that. But by cherrypicking statements that they wanted Carmen Lober to testify to but didn't ask her, I I think I think that's error. >> It's not the cherry-picking, it's the rude, right? >> It is. I mean, you cherrypicked statements, too. Everybody cherry pick >> and they could have done it on redirect and they chose not to. >> So, again, it's the root, not the cherry-picking, right? >> Yeah. >> If she were on the stand, the cherry picking would not be a problem. >> They could have cuz then I could have gone back and pulled out other statements. >> I think we're agreeing. >> Okay. All right. All right. I take your argument seriously. Uh, Mr. Bworth, I'm going to have to take a look at this real quick. I understand this to be a threshold issue with respect to Detective O'Driscoll. Is that right? Yes, your honor. >> Okay. Uh, anything further at this moment? >> I think if he lets it, we just say he said it all. That's not the right. I'm pausing. Can we have five minutes? >> Of course. >> Just so I'm clear, we'll take five minutes for you to confer with your team and then you'll tell me whether this is a threshold issue that I need to decide before Detective O'Driscoll takes his. >> Correct. Your honor, it is it is now. That may change. >> Okay, understood. We'll take a fiveminute recess. Thank you. Yeah. discussing Detective O'Driscoll's potential testimony. I made a a comment in passing that uh he cannot relate Ms. Loberers's statements because it would be hearsay. That is overly broad to the extent that the statement by Ms. blobber that Jeff O'Driscoll would seek to relate while testifying qualifies as a prior inconsistent statement under 801D1A or a prior consistent statement under 801D1B. It is categorically not hearsay and he can relate it. By the same token, it can come in through him. Uh, Ms. Lewis, I took a hard look at the case you cited me to 366 P3867 footnote 8. There the Utah Supreme Court related the competing positions by the state and the respondent. Um those competing positions are substantively identical to the competing positions of the state and defendant here regarding how statements under 801D are to come in and the Utah Supreme Court expressly declined to reach the issue. They did not rule that they must come in through the declarant. So as I sit here today, there is no authority for the proposition that prior inconsistent or prior consistent statements can only come in through the declarant witness as long as the declarant witness testified and was subject to cross-examination. Indeed, it is defendant's cross-examination of Ms. Lobber that creates the foundation for admission of prior inconsistent statements based upon Ms. Lobber having not remembered or having forgotten though that's not what the state is seeking to do here and prior consistent statements based upon an express or implied charge that Ms. Lober was acting from a recent improper influence or motive. uh to it pressure applied by among others detective O'Driscoll, the US Attorney's Office, agencies like that. There is not a Crawford problem here. I also have another thought regarding the transcripts going back. If you want to discuss that, >> I will. >> So, maybe we can get the court's thought and then I can incorporate that into the state's position. >> Sure. under Wyatt v. State 2021 UT32. Under paragraph 21, the Utah Supreme Court abregated the common law rule that prevented testimonial transcripts from going back into the jury room based upon a concern of undue influence on the basis that rule 17K of their Utah rules of criminal procedure does not allow for any categorical exceptions to exhibits going back with the jury because the jury may take with them quote all exhibits end quote. quot except those quote that should not in the opinion of the court be in the possession of the jury end quote. Now typically that's guns, knives, poison, explosives. I still have some concern that given the volume of testimony that the jury hears, the only transcripts they would have in the jury room being this 100ish pages of Carmen Lober would attract some unwanted attention on appellet review. But under Wyatt v state 2021 UT32 there's no categorical exclusion of take it from there Mr. Bworth. So your honor it's the state's position I know I'm recapping a little bit of what you just said. It's the state's position that um the court can admit the transcripts through Detective O'Driscoll. donated to Clarent Carman lover. It's the state's position that the there is no Crawford issue in part because of the 801 v1 requirement for opportunity to cross has been satisfied in this instance. It's the state's position that the defense to the extent they want to recall Karman lover is not burden shipping. It's just that it's defense strategic choice. Um and it's the state's position that the transcripts can go back to the jury. Now, having said all of that, um, prophylactically and out of an abundance of caution, the state is trying to through her attorney recall Carmen Loberg, put the transcripts in through her and then publish a 100 pages of transcript. As much as the state thinks that is horribly, horribly inefficient and unnecessary, we've reached out to her attorney. I do not yet have an answer. >> Okay. >> This is a threshold issue for I don't know the midpoint of Jeff O'Driscoll's examination. So I propose our next w next witness is Chris Coachimos to clean up some stuff from yesterday. Uh I propose we next call him. We then begin the state's direct examination of Detective O'Driscoll. That'll probably take us to lunch. I may have a better answer at lunch as to how the state the state will proceed. >> Okay. Uh let me just ask some mechanics questions. Why can't the state just ask Jeff O'Driscoll a bunch of questions about whether certain exchanges with Ms. blobber occurred and to the extent he doesn't remember or can't remember specifically use the transcripts to refresh his trial collection and even show the jury uh publish them at that time but use him as the route and if you want to call him his lobber you're entitled to do so >> your honor that that may be the route anyway and it may just from an efficiency trans point standpoint going through the questioning to ultimately get to refreshing and publishing. It seems to me that that's where it's time. It will be more efficient to just publish the 100 pages. >> Okay. >> Cuz we're that's where we're going to land anyway. >> All right. Uh Ms. Lewis, please proceed. >> I just want to make a record. >> Go ahead. We stand by our objection that allowing prior consistent statements to come in without a sponsoring witness is a violation of both the sixth amendment right of our client six amendment right and Crawford versus Washington. It also violates her right to due process under the Utah state constitution and the federal constitution. She is not receiving a fair trial. And the remedy that we should recall the state star witness absolutely is burden shifting and uh we stand by our objection. If those 100 pages are going to be published, we want all of it published. We want all thousand pages. >> All right. And how do you want that to occur? >> Um >> do you want to just play the interviews with Miss Lober? Sure, we could do that. We could just play them all. They're 7 and 1/2 hours, but that's how we want to do it. >> And tell me why you want to do that. >> Because there are numerous other portions of the interviews where she is being influenced by law enforcement and shows that she's willing to just go along with whatever she they say, just as she stated. I think to pick out particularly, like I said, the May 10th interview, there are a lot of things she says in that interview that are inconsistent with all of her other statements, but the state just wants to publish that she was going to testify before the grand jury, which I don't even understand that. I mean, all that does is cause the jury to speculate and confuse issues. And that's just one example out of what they've pulled out of the transcripts. >> We're back where we started, Mr. Bworth. This is the position the state originally took. Does this change anything? >> Your honor, it's largely the state's initial position. The initial position of the state was then not to publish them, right? It was just to send them back so that the jury could if they wanted to. Um I'm happy to send the whole things back. I um >> Ms. Lewis, speak to that. >> We're not asking. That's only if we are not suggesting that that should happen. Only if we're overruled. We'd rather it all go back. >> Part you got to be a little bit specific. >> We're not suggesting it's not our position that any of this should go back. We're only saying if the court's going to allow some of it to go back then under rule 106, we need it all to go back. >> I forgive me. You you've pivoted again. It's stay stay away from going back. Let's just stay on publishing. So I understand defendants's position to be if any of it's published all of it has to be published. >> Correct. >> Okay. In response to that uh the state as I understand is suggesting in the I'm inferring in the interest of efficiency rather than publishing all of it. just make all of it available to the jury through the recordings and then allow council to make whatever arguments they want to make about you should go back and listen to this part because you'll see this is what was happening. Speak to that for a minute. You could do that by stipulation. >> I'm not going to stipulate to that. >> No. >> So objection stands. >> Let me start again. Imagine that your objection to publishing anything is overruled and that's the world you're living in. How do you want to proceed from there? I >> I mean I think I said that then it should all go back >> or >> again you keep skipping to going back. I want you to talk about publishing for a minute. It's >> showing up on the screen. >> So you my hesitation is just efficiency. Like I said, it's over 7 hours worth of video, but um if that's how the court wants to do it, then yes. >> No, no, no. That's what I'm asking you. So, imagine here, I'll just make a ruling. I have uh considered carefully the authorities cited by um defendant and the state. I've looked at the text of rule 801. Uh, I'm ruling as a matter of law that one, there's no Crawford problem here because Ms. Lober testified in open court under oath, was cross-examined in open court under oath. It is the cross-examination of her regarding the conduct and circumstances in her prior interviews with law enforcement and other agencies that creates uh the circumstances providing the foundation for admission of her prior consistent statements under 801D1B. So the defendants uh further pardon me further the court is not persuaded that the only witness through whom a prior consistent statement may be admitted is the declarant witness that made the statement. The court has not seen any authority for that proposition. So to the extent the defendant objects to any of Ms. laws, prior consistent statements coming in in any way, that objection is overruled. So, Ms. Lewis, take it from there. Some of her prior consistent statements as designated by the state are admissible under rule 801D1B. It's how we're going to provide that information to the jury that I need some uh input on. >> We could just publish. >> We could admit and send back into the jury room. Speak to those two options. Well, my understanding was that under the case you just cited um Wyatt, that you were going to allow the portions to go back to the jury room. Did I misunderstand that? >> Well, I think there's a basis to do so. It gives me the willies, quite frankly, and that's why Mr. Bworth, out of an abundance of caution, is saying prophylactically to prevent any appellet issue there, we would just publish. But if the defendant believes, "Judge, if you do this, the least prejuditial way for us to do it is to send the recordings all 7 and 1/2 hours into the jury room and allow counsel to make arguments about what they show and what the jury should take from them. You could do that by stipulation." >> No, I don't want to do that. I I think that even though it's not efficient, the appropriate way is if any of the interviews are going to be published, they all need to be published. >> Okay. Only published. >> Correct. >> All right. I appreciate your position. Mr. Bworth, take it from there. Your honor, the state um moves to just publish the narrowly tailored versions that um we you know we proposed as whatever it is 8-57 through 63r. Um I think beyond so be I don't think there's a 106 concern beyond that. >> I don't know. We're going to find out but okay. >> Yeah. And as compromise, the state is fine with sending full videos back or some mix of publish the narrow pages and send a full video back. Um, I know, >> but the notion of publishing nearly 10 hours of um, interview is I don't think it's productive. I think it's a waste of the jury's time. >> Okay, Mless, >> we object to it all going back. It's the same problem. The problem arises is the same as Well, let me rephrase that. The jury's been told they're to rely on their memory of witnesses. If the whole thing goes back, they can go over and over and over her statements on the video, which is not what they can do with any other witness. So, if it comes in, it needs to be published and then they have to rely on their memory just like they would with any other testimony. >> I appreciate that position. Why are we publishing all of it rather than just the parts or some parts of what the state has designated? because there are I mean I already made my my issue or raised the issue about the May 10th. >> We we'll get there specifically. Any others? >> Yes. Um I don't I mean I would have to go through I have gone through but to go through right now every specific part but there's a lot that's being left out and a lot what's being left out are the statements where um officers are telling her about what she needs to do in order to not have to go to jail, what kind of deals they're willing to make for her, what she needs to do and say. And that's not included. And yes, some of it she was cross-examined on, but there's a lot more statements like that that she was never cross-examined on. >> Well, that's choices defendant made though. So here, in order for me to include additional material, there has to be some basis. Is it a rule 106 request? >> Yes. But in all fairness, the choice was made because that was all that she was questioned on in direct examination. had there been a redirect back to where I started, then I would have chosen other portions, but I have lost the opportunity to do that. >> You haven't, but that's okay. You can certainly have access to this witness. >> Well, I think we've made our record on that. >> Um, are there rule 106 portions you want to add having reviewed the designations? >> I think we need all of it. I think the jury needs to see exactly what her demeanor is, how she acts with the officers, how the officers treat her. There there are numerous other parts of this transcript that may come in through Detective O'Drriscoll. Um I don't know yet. I mean, I don't know the answer to that fully yet, but there are a lot of other statements by both Detectives O'Driscoll and Detective Maynard that go to show that she was unduly influenced. There's a lot of it. >> I know, but you're not giving me which ones they are. >> It's because I mean all of them. >> Okay. All right. Uh that it's hard to rule on because it can't be all. Uh >> why not? Well, if certainly your position isn't that every single statement made by the law enforcement officers and every single answer is evidence of undue influence. >> It shows an arc. >> That's the state's point, >> right? I know. And now if we're going to do part of it, then we need to show the whole arc. >> That's not how rule 106 works. I need you to be more specific. I don't have specific outlines right now in the thousand pages of transcripts as to what we would want and what we would I mean we want all of it. If you want me to go through all thousand pages again and try and figure that out I mean guess we can find some time to do that but >> okay so Mr. Bledworth, as for today, how does the state uh propose to proceed? So, I propose we call Chris Co. I then'll call Jeff O'Driscoll. We will get to maybe, I don't know, 45 minutes into his argument before this will become an issue. Okay. My sense on timing, your honor, is this doesn't become an issue till a lunch break. I'm not sure what's going to change between now and then though in terms of the issue of whether to play everything or just the parts that the state has designated under rule 801D1B. >> Fair. So, all right. The issue before the court is the state's motion to admit redacted exhibits 8-57R through 8-63R. The state is offering what it views as narrowly narrowly tailored portions of the transcripts of Ms. Lawber's prior interviews with law enforcement investigators and other government agencies as evidence of prior consistent statements by Ms. lobber under 801D1B to rebut an express or implied charge that when she testified in open court in this case, she acted from a recent improper influence or motive in so testifying. In response, defendant does not provide a sufficiently specific argument that the state has overd designated any of these portions beyond what would be permissible under 801D1B. And though defendant makes a rule 106 argument regarding additional portions that would be necessary to provide context for explain um or qualify defendant sorry Ms. lobberers's statements. Their position is that all of it does and that does not provide the court with a sufficient basis to rule one way or another whether other additional uh portions of these prior interviews are required to be included under rule 106 based on the record currently before the court and the procedural posture that brings us to this point. The state's motion to admit redact exhibits 8-57R through 8-63R is granted to the following extent. The state may publish these exhibits and use them with witnesses that are on the stand. Sitting here today, the court is not prepared to rule and does not rule that 8-57R through 8-63R may go into the jury room as admitted exhibits under rule 17K because sitting here at the moment, uh, the court determines that they should not, in the opinion of the court, be in the possession of the jury to make absolutely sure that the jury does not give undue influence to these specific portions of a single witness's testimony as compared to the testimony of all the other witnesses in this case. >> Mr. Bworth, anything further on that? >> No, your honor. >> M Lewis. >> Uh, yes, your honor. If we're we we actually would move for a continuence cuz we need to go through all the thousand pages again and figure out what portions should be let in. If the court's not inclined to let all of it in, then you know we don't have anyone in the cry room doing this for us. So we need time to do that. So we'd ask for a two-day continuance. >> 2 days? >> Yes. >> Your request for a two-day continuence is denied. I don't have a basis to use that much time of the jury when this motion was filed two days ago and I raised it with you yesterday morning. >> Okay. >> Your request for a two-day continuance is denied. Ask for a one day as one day. >> All right. A one day continuence then >> to tomorrow morning. Yes. >> And what is it you're going to do between now and then? >> I guess we're going to go through the whole transcript and find out what we want included under rule 106. >> And you're going to file something so I can read it? >> Yeah. Yeah. >> Mr. blood. >> Your honor, the state objects, not only was did the state file the motion two days ago with the specific portions, this whole issue was teed up last week when Carmen Lobber testified. Um, I don't think there were any surprises in the motion and I think it it pro the state's motion and the redacted versions it filed were probably what everybody expected. All right. In Ms. Lewis, you'd be filing something in writing that had additional either rule 106 inclusions or some identification of where the state has over designated things. Correct? >> Yes. >> And your position would be that additional parts of the transcript should be shown to the jury. Is that right? Yes, >> that is so slow. There's just no way this is going to work. >> There's no way we can edit the video. >> I'm not tracking, your honor. >> Each of these uh transcripts corresponds to a video of an interview. Correct. >> Correct. It would seem that watching and listening to the video is more efficient than reading the transcript. >> Oh, 100%. Y based on the ruling right now, like 2 minutes ago, we have launched um our video editor to create the video now of the narrowly tailored portions. That's how we would publish them. It was is by playing the video. >> Okay. >> All right. One suggestion could be if the state wants to hold off on publishing all of this and see where they get with their testimony of of Detective O'Driscoll and maybe through appropriate direct examination they can get in the portions they feel are important and then maybe none of this would be necessary if that decision could be held off and then if uh at the end of the day they still want to publish the whole thing then we would ask that we not hold court tomorrow so we can do that. >> I think that would be more efficient. >> Maybe. >> Your honor, we're going to want to publish it. Let's Let's just cut to that chase. >> All right, folks. Give me 5 minutes. Actually, just give me till 11. Okay, we're in recess.