11.Out-of-Jury Hearing on Voicemail Evidence
44 linesSUZANNE MAYES: Your Honor, the State would offer these items for evidence at this time.
BOYD YOUNG: Your Honor, we would object to this, voicemails as being hearsay. No objections to the, have these been marked, no objections to the phone records once they are marked and identified.
SUZANNE MAYES: We have a matter of law, Your Honor.
THE COURT: All right. Step in the jury room. We'll have you back out here in a moment. Don't talk about the case.
(Whereupon, the jury is excused from the courtroom.)
THE COURT: All right, Ms. Mayes.
SUZANNE MAYES: Yes, sir, Your Honor. This is not hearsay. It's not an out of Court statement. She's in Court. This testimony includes messages that she left. It's certainly relevant to the Defendant's state of mind that night. She makes repeated calls to him in an attempt to defuse the situation and it can't be more probative to this case.
THE COURT: How is it hearsay? She's right here.
BOYD YOUNG: And she can testify. But the voicemails that she left are out of court statements, they are her own hearsay that she reported to --
THE COURT: They're her own statements that she left on a recording service.
BOYD YOUNG: That they are out -- my understanding, I believe, is that she recorded herself on her phone at the time that she was leaving them, or they're off of his phone --
SUZANNE MAYES: Correct. They're from his phone extraction.
BOYD YOUNG: From his phone extraction. But they're hearsay. They're her hearsay, leaving messages to him. How would that go to his state of mind when it's her message and what she's saying. It's not a conversation with him or anything like that. And there's no exception under hearsay that would allow the State to publish voicemails.
THE COURT: Ms. Mayes.
SUZANNE MAYES: Yes, sir, Your Honor. The voicemail recordings are relevant to establish the relationship between the parties on the day in question, the recording occurs on the night of the murders. She was the last to speak with Nahtahn when he was alive. It's also relevant to the Defendant's state of mind. The Defense has made the Defendant's mental state an issue in this case and the recording corroborates his state of mind, behavior and interaction with the children just prior to the murders. Your Honor, we believe these recordings occurred within an hour of the murders. The original conversation which prompted the voicemail messages occurred at approximately 7:12 p.m. and the children are killed the same night. All of the remaining voicemail messages went with no response. These are among the most relevant items of evidence in this case, Your Honor. It's probative, it is an issue of the underlying circumstances of the case just prior to the murders. It is not hearsay, Your Honor. She has identified the voice recording as a fair and accurate representation of the conversation in its entirety and it's not been altered and it's admissible pursuant to State vs. Aragon and other cases of that nature.
BOYD YOUNG: I'm not familiar with State vs. Aragon, and I'm not objecting under relevance or a probative objection. It is hearsay, none of the State's argument address hearsay or an acceptable hearsay exception other than to say that their assertion that it's not hearsay. To ask Ms. Kyzer what she said, that's fine. But to play voicemails are out of court, they are hearsay.
SUZANNE MAYES: Your Honor, it does not meet the definition of hearsay. The declarant is in Court. It's not offered to prove the truth of the matter asserted. It's the events captured exactly as they would have occurred that night. It's present sense impression as much as anything which would be a hearsay impression.
BOYD YOUNG: Hearsay does not -- just because the declarant is --
THE COURT: If it's hearsay, why not 8033, why is it not her existing state of mind when she made the statement. I mean, is that not applicable here.
BOYD YOUNG: No, sir.
THE COURT: Why not. I mean, you're saying she -- all she's says is it's not hearsay, and you're saying no. So why is it not an exception under 8033 if it is hearsay? Why is that not her declarance, state of mind, emotions, sensation. Why is that not applicable to what Ms. Mayes is offering is that, I believe, is the motion of the situation. At least that's, I don't want to take the words out of her mouth but I thought what she said.
SUZANNE MAYES: Yes, sir.
THE COURT: Something along those -- something along those lines is this was during an altercation, that sort of thing.
SUZANNE MAYES: During the transactions of the night, Your Honor, very similar to a 911 call or something of that nature where a statement is played and it's consistent with testimony or corroborates testimony.
BOYD YOUNG: I thought that they were offering it for his state of mind, and now you're saying it's the declarant's existing state of mind?
SUZANNE MAYES: And that as well. It meets multiple criteria, Your Honor, for being probative and relevant in this case.
THE COURT: I tend to agree with you. Her voicemail, her voicemails to him with him responding to that point showing his state of mind. It's her call and she's excited or emotional or whatever and show her emotional sensation and her state of mind at the time and how --
BOYD YOUNG: Her state of mind would not be relevant.
THE COURT: Why not?
BOYD YOUNG: Because it's not probative of any fact in issue.
SUZANNE MAYES: Your Honor, it absolutely is.
THE COURT: I'll let you in on 8033. I think it's her state of mind and her mental condition, her emotional condition based upon the prior conversations. I'll let you have it.
BOYD YOUNG: Your Honor, in that case it would be a prior consistent statement and we would object under that ground as well. It wouldn't be allowed in unless we tried to argue that it was manufactured.
THE COURT: I understand your argument. I'm going to let the State play it, and you can cross-examine her on it if you like.
BOYD YOUNG: Your Honor, we object to the Court's ruling.
THE COURT: Okay. Do we need a couple of minutes while the jury's out?
SUZANNE MAYES: I'm sorry, Your Honor?
THE COURT: Do we need a couple of minutes while the jury's out?
SUZANNE MAYES: We can.
THE COURT: All right. We'll take a couple of minutes. I need to run to the restroom. So just a few minutes, because they've already been back there.
(Whereupon, a short break was taken.)
THE COURT: Let's bring the jury. (Whereupon, the jury came into open court at approximately 3:25 p.m.)
THE COURT: All right, Ms. Mayes. Still your witness.
SUZANNE MAYES: Yes, sir, Your Honor.