Speaker 1 (00:00):
(Silence).
Bayliff (06:57):
All rise. The court [inaudible 00:06:57], Judge Tony F. Graf, Jr., presiding.
Judge Tony F. Graf, Jr. (07:05):
Please be seated. Good morning. Court is now in session. Calling case 251-403-576, State of Utah versus Tyler James Robinson.
(08:13)
Counsel, can you enter your appearances please?
Chad Grunander (08:17):
Chad Grunander, Ryan McBride, David Sterk, good morning, of the state. Mr. Jeff Gray, the county attorney. Chris Ballard are also present.
Judge Tony F. Graf, Jr. (08:26):
Good morning.
Kathy Nestor (08:27):
Good morning, Your Honor. Kathy Nestor, Michael Burt, Richard Novak, and Stacy Visser here on behalf of Mr. Robinson, who's seated to my right.
Judge Tony F. Graf, Jr. (08:35):
Good morning. Mr. Robinson, good morning.
(08:39)
For the record, the court also recognizes the presence of Ms. Erica Kirk. Ms. Kirk, good morning.
(08:48)
First, with respect to courtroom protocol to maintain security and decorum, any individual who exits the courtroom during proceedings will not be permitted to reenter until the recess.
(09:02)
All counsel are expected to take reasonable measures to safeguard confidential communication. Such measures may include the use of screen protections on electronic devices and care to avoid the inadvertent capture of privileged or private discussions by recording equipment or by those present in the courtroom.
(09:21)
In addition, the microphones at your tables have been turned off. Again, an attempt to try to minimize the possibility of any of the communications being captured. I ask that if you are speaking that you come to the lectern and that microphone will be live and so that's the best way that we can hear you and it is captured on the record.
(09:45)
All right. Second, the court will address the camera operator and the court knows there is no still photographer for today's proceedings pursuant to the court's ruling from last week.
(09:56)
To our camera operator, would you please approach the lectern?
(09:59)
[inaudible 00:10:10] My microphone. There we go. Now it's back on. Could you state your name for the record?
John Wilson (10:16):
John Wilson, KSL News.
Judge Tony F. Graf, Jr. (10:18):
Mr. Wilson, what duties will you perform today?
John Wilson (10:23):
Shooting the proceeding according to the decorum order.
Judge Tony F. Graf, Jr. (10:26):
All right. And have you had a chance to fully review the court's standing decorum order?
John Wilson (10:32):
I have, sir.
Judge Tony F. Graf, Jr. (10:32):
All right. And you understand all the requirements set forth in that order as it applies to your activities today?
John Wilson (10:38):
Yes, sir.
Judge Tony F. Graf, Jr. (10:39):
Do you require additional time to review the order or to adjust the equipment to ensure compliance?
John Wilson (10:45):
No, sir.
Judge Tony F. Graf, Jr. (10:47):
Do you anticipate any difficulty complying with the order or with any of the court's instructions?
John Wilson (10:54):
No, sir.
Judge Tony F. Graf, Jr. (10:54):
All right. Well, thank you, Mr. Wilson. I appreciate you being here. Next, turning to the amended motion to allow the use of portable electronic devices filed by the news media and their counsel. The court appreciates the arguments presented in the motion and recognizes the importance of the press in the criminal justice system. Having considered the motions before the court, the request to permit representatives of the news media to use portable electronic devices during the preliminary hearing is respectfully denied.
(11:33)
The request to permit counsel for the news media to use portable electronic devices during the preliminary hearing is granted. As officers of the court, counsel shall be held to the same standards applicable to the council for the parties and comply with the court's standing decorum order.
(11:50)
I wish to turn to the matter before us today, the upcoming preliminary hearing, and the court is mindful of the safety and wellbeing of all parties, counsel, witnesses, court staff, and members of the public who are present.
(12:05)
The court is also mindful of the duty to protect and uphold the constitutional rights of both Mr. Robinson and Ms. Kirk. To serve those important interests, the court reminds all persons who will be in attendance that the portable electronic devices will not be permitted in the courtroom or on the fourth floor.
(12:23)
In addition, each person who is in attendance will be afforded the dignity and respect due to them and pursuant to the standing decorum order, all spectators shall be quiet, civil, and orderly.
(12:37)
Spectators shall not engage in any distracting, disruptive, provocative, disrespectful, uncivil, or threatening behavior of any kind.
(12:46)
Spectators shall not make any audible comments of any kind, shall not shake or nod their heads, shall not otherwise make any gestures during the hearing.
(12:56)
And the court recognizes that this hearing may invoke emotion from everyone and that the court understands the human nature of that, but also it's important that this courtroom is orderly.
(13:15)
A spectator shall not wear, display any pins, buttons, signs, clothing, or photographs expressing support for or against any person related to this case or the status of this case as a capital offense.
(13:29)
Turning to counsel.
(13:33)
Before we begin, I want to acknowledge that over these past 10 months, I've had a chance to observe each of you and I find that you are all competent, prepared, and that you care deeply about this case.
(13:47)
I ask you to continue to conduct yourselves in accordance with the rules governing professional conduct, civility, and ethics. I also ask that you remain mindful of the constitutional rights of all parties and in every engagement that you treat each person you engage with with the dignity and respect they are inherently due, as they are human beings.
(14:10)
I want to turn also to objections, the format that I wish to follow if objections are made.
(14:20)
When an objection is made, all parties shall pause so that the objection may be heard. Speaking objections are not permitted. If any party believes that an extended argument is necessary, particularly on sensitive matters, that party may request to approach the bench and all parties will approach the bench.
(14:42)
Both sides will be afforded an opportunity to be heard for or against the objection after which I will issue a ruling either sustaining or overruling the objection. Once the ruling has been made, direct or cross-examination may resume.
(14:59)
I anticipate that we will begin each morning at 9:00 AM with the exception of Wednesday and we will begin at 1:00 PM. We will take a 15-minute morning break and a 15-minute afternoon break. If there is a situation that necessitates a break, please approach the bench and we can address that.
(15:21)
We will recess for lunch at noon for one hour each day with the exception of Wednesday and court will resume at 1:00 PM and continue until 5:00 PM each day. Does either party need the benefit of the record?
Kathy Nestor (15:41):
No, Your Honor.
Judge Tony F. Graf, Jr. (15:42):
Thank you, Ms. Nestor.
Chad Grunander (15:43):
No, no, Judge. Thank you.
Judge Tony F. Graf, Jr. (15:46):
Thank you, Mr. Grunander.
(15:46)
Do either party wish to invoke the exclusionary rule?
Kathy Nestor (15:49):
Defense invokes, Your Honor.
Judge Tony F. Graf, Jr. (15:51):
All right. Defense has invoked the exclusionary rule. I ask that all witnesses, if present, be excused from the courtroom and ask that each party monitor the courtroom to ensure your witnesses aren't present as I'm not familiar with who they are.
(16:06)
Of course, victim representative is excluded from that rule as is the case manager pursuant to the rules.
Bayliff (16:14):
[inaudible 00:16:22]
Judge Tony F. Graf, Jr. (16:23):
Okay. And I anticipate that from here on out that they're just going to come to the lectern.
Bayliff (16:31):
No, they can't be heard.
Judge Tony F. Graf, Jr. (16:32):
Okay. So just for the benefit of the record to the questions, yes or no questions. Well, the parties have entered their appearances and they're all present and neither party wanted the benefit of the record. Ms. Nestor invoked the exclusionary rule, and Mr. Grunander, if you'd like to approach the lectern as the microphones at the tables are not activated.
Chad Grunander (17:01):
Thank you, Judge. Yeah, we anticipated that the defense would invoke the exclusionary rule. We consulted with defense for just a couple of minutes prior to the start of this hearing. We essentially have two case agents, Your Honor. David Hull and Brian Davis, both from the state of Utah. The defense has consented that both of them can be present. So one is seated at my table. The front table, this is Brian Davis, Agent Davis, and Agent Hull is seated on the bench just on the other side of the bar. He will be present for this hearing as well. Both of these agents will be testifying as part of the hearing.
Judge Tony F. Graf, Jr. (17:41):
Thank you. Ms. Nestor, your microphone's dead if you want to come forward and it sounds like you've stipulated, but just for the benefit of the record.
Kathy Nestor (17:50):
We have stipulated, Your Honor, for purposes of this hearing only.
Judge Tony F. Graf, Jr. (17:53):
Thank you. All right. So agents Davis and Hull are permitted to remain in the courtroom during the duration of the preliminary hearing.
(18:04)
Any other business that we need to address before we turn to the business of witnesses? Mr. Novak.
Richard Novak (18:16):
Thank you, Your Honor. Richard Novak for Mr. Robinson.
(18:19)
Your Honor, the court had issued an order, maybe it was early last week, asking the parties to meet and confer about the question of whether exhibits will be published, and we did, and we can either deal with this as a general matter or we can deal with it on an exhibit by exhibit basis, but I just want to make sure that we didn't lose track of that issue.
(18:52)
The court had earlier entered an order granting, in part, the defense motion to exclude, I'm just going to say technology in the courtroom because it's a shorthand for video cameras and photography and microphones because the parties had earlier stipulated that none of the exhibits would be available, from the preliminary hearing, would be available for inspection or copying. I understand that publishing the exhibits in the courtroom may technically be different than that, but whenever the court is ready to deal with that issue, we just want to make sure that we do so.
Judge Tony F. Graf, Jr. (19:34):
[inaudible 00:19:38]
Richard Novak (19:37):
Before it's too late.
Judge Tony F. Graf, Jr. (19:40):
That's always the right time to do it.
Richard Novak (19:41):
Okay. Thank you.
Judge Tony F. Graf, Jr. (19:43):
Turning to the state, and in defense, do we anticipate this being a long argument or is it something that we can handle that there are some stipulations that we can address right now and then the remainder we can address on an exhibit by exhibit basis. Mr. Grunander.
Chad Grunander (20:04):
Judge, I don't know that we have any stipulations, but with that said, it is correct, Mr. Novak's correct, we did meet and consult on this issue. I wanted to give the court just a brief roadmap, but part of that was exhibits seven, eight, and nine, that we propose introducing will be graphic in nature. And those were the exhibits I was referring to at the last hearing where we would like to take a short break before they were published if they are published, whether it be by way of video and/or audio.
(20:40)
Judge, I don't see any TVs or monitors here in the courtroom today with respect to publishing something that would go beyond counsel table and Your Honor's bench. So I don't know how much this is of an issue this is going to be anyway, at least with respect to pictures or video.
Judge Tony F. Graf, Jr. (21:00):
Thank you. And that's a great point. And the court's thought about this issue in regards to publication of exhibits. Obviously, the court will entertain all motions before any, but after considering it, here's the two points that I wish to address.
(21:19)
In regards to the exhibits, there is benefit to publication of certain exhibits, but I also do not, and this is going to the camera operator, do not want them to be displayed on TV. I believe it is important that the parties know that the exhibits are being viewed by the judge in real time and in open court.
(21:44)
However, what I will do is have the monitor placed against that wall to reduce the possibility of it being broadcast. And so on the exhibits that the court grants to be published in court and not, going to Mr. Novak's point, not to be given copies to, and the court is trying to be mindful that if it's shown on TV, that's essentially giving a copy to.
(22:12)
And so the court is taking Mr. Novak's point in consideration. And so, the anticipation is, and I know I'm catching staff a little bit off guard, is placing that television right behind Jeff, our bailiff to minimize the accidental capture by the camera and allowing it to be displayed. I recognize that that is not the ideal spot for viewing, but I'm also trying to balance the rights and important considerations that defense has made.
(22:44)
And again, this will be on an exhibit by exhibit basis on what is published or what is not. But for the exhibits that the court rules can be published in open court, that is going to be the location of the monitor, and again, the court spent a bit of time weighing what should be done, where the monitor should be placed to accomplish the purposes of publication at the same time protecting, especially as it may relate to sensitive material, if the court deems that to be publishable in the courtroom.
(23:22)
Any questions that I can address from either side or clarification needed or thoughts that you wish to share?
John Wilson (23:29):
No, I think I understand completely.
Judge Tony F. Graf, Jr. (23:33):
All right. Thank you. All right. And Mr. Gernander, as it relates to that, are we anticipating the possibility of that coming up very soon in regards to publishing potentially exhibits?
Chad Grunander (23:50):
Not real soon, but today certainly I would anticipate, Judge. For the course information, we anticipate presenting four witnesses. They're all law enforcement witnesses, Officer Chris Bagley. He's now with Spanish Fork Police Department. He was with Utah Valley University Police Department. He'll be the first witness.
(24:10)
The second witness will be Agent David Hull and those exhibits seven, eight, nine, we anticipate coming in through him.
(24:19)
The third witness will be Agent Brian Davis again with the State of Utah, a case agent who's here presently. And lastly, Sergeant Jennifer Faumuina, also of the Utah Department of Public Safety. And we do anticipate admitting between 40 and 50 exhibits.
Judge Tony F. Graf, Jr. (24:39):
Thank you. All right. Mr. Grunander, I apologize, you walked away before I got my question out. If we anticipate taking a break around 10:30, do you anticipate any potential exhibits for publication being requested prior to 10:30?
Chad Grunander (24:57):
I do, Judge.
Judge Tony F. Graf, Jr. (24:57):
Okay.
Chad Grunander (24:58):
I do. I think the first several exhibits should be published.
Judge Tony F. Graf, Jr. (25:03):
All right. Well, let's do this. I want our preliminary hearing to move smoothly and with the least amount of delays as possible. So let's take a brief break to allow the placement of that monitor a brief test to make sure it's working and then we can be seamless in moving forward.
Chad Grunander (25:20):
One quick question, Judge, for counsel's benefit. Are the monitors at the tables going to be turned on?
Judge Tony F. Graf, Jr. (25:27):
The monitors are, and that's why I wanted to give that instruction early on for each party to monitor their monitor because if the camera is doing a wide sweep picture of the courtroom, I can't prevent the accidental capture. Obviously, the decorum order anticipates not focusing in to the point that is focused on your monitors, but I ask all the parties to be mindful, especially as it relates to the sensitive material that may be published or may not, but please just take a look at that and be mindful of that, but I will leave it to you.
(26:06)
So I believe it's important that all parties see what is before the court. So if you have objections, it's right there. You can say, "Okay, I see what the court's seeing. I have objection or not," or just to confer with your client. I just want to make sure that there is no misunderstanding of what's being presented to allow all parties the benefit of the record and it is clear what is being presented to the court for consideration as evidence.
(26:34)
Thank you.
Chad Grunander (26:34):
And we do have one exhibit that will be in physical form and so we will be using the easel I think that's just over by the jury box.
Judge Tony F. Graf, Jr. (26:43):
All right. Thank you, Mr. Grunander. Before we break, I do wish to remind the parties that this is a preliminary hearing. It is a probable cause standard and if you could keep that in mind as you're presenting your evidence, this is not intended to chill what you present, but keep in mind that the standard is probable cause and that is what the court as a magistrate will be looking to.
(27:09)
All right, with that, how much time do we need for the placement of the monitor?
Bayliff (27:13):
[inaudible 00:27:16].
Judge Tony F. Graf, Jr. (27:15):
All right. Well, let's break for six minutes. Well, let's actually, let's make it easy on ourselves. Let's just come back at 9:35 and we'll resume court at that time.
(27:26)
Thank you.
Bayliff (27:27):
All rise.
Speaker 1 (27:27):
(Silence).
Judge Tony F. Graf, Jr. (42:20):
Please be seated. Court is back in session, noting the presence of counsel and the parties to the state. Are you ready to proceed?
Chad Grunander (42:33):
Yes, we are, Judge. But prior to calling our first witness, I would like Mr. McBride to make a brief report on discovery updates and then just inform the court that the state has provided copies of all exhibits for today's proceedings to the defense in advance of this hearing.
Judge Tony F. Graf, Jr. (42:49):
All right. Mr. McBride.
Ryan McBride (42:54):
Yes, Your Honor. My report at the last hearing is the latest report. As of June 18th, we had provided approximately 100% of the material in our possession. Over the last week, we have received additional materials from SBI due to preparation for this hearing. Those materials have not yet been provided, but they will be as soon as this hearing is complete.
Judge Tony F. Graf, Jr. (43:13):
Thank you. Defense, require the benefit of the record?
Kathy Nestor (43:17):
No, Your Honor.
Judge Tony F. Graf, Jr. (43:18):
Thank you, Ms. Nester. In case the mic didn't pick that up, she declined. All right. Turning to the state, you may call your first witness.
Chad Grunander (43:27):
Your Honor, the state calls Officer Chris Bagley.
Judge Tony F. Graf, Jr. (43:32):
Officer Bagley, if you'd like to come forward. Looks like he's being brought into the courtroom.
(43:49)
All right. Officer Bagley, if you wouldn't mind coming forward past the lectern and being sworn in.
Kathy Nestor (44:10):
You do solemnly swear that the testimony you shall give in the case now pending before the court will be the truth, the whole truth, and nothing but the truth so help you God?
Richard Novak (44:17):
Yes.
Judge Tony F. Graf, Jr. (44:19):
All right. Officer Bagley, if you wouldn't mind having a seat at the witness table. And after you're situated, to your left is a bottle of water. And if you wouldn't mind bringing the microphone toward you to ensure that it picks up your voice.
Richard Novak (44:38):
Yeah. Can you hear that?
Judge Tony F. Graf, Jr. (44:40):
I can. Thank you. Mr. Grunander, your witness.
Chad Grunander (44:42):
Thank you, Your Honor. Good morning, sir.
Richard Novak (44:45):
Good morning.
Chad Grunander (44:46):
Will you please state your name for the record and spell your last name?
Richard Novak (44:50):
Christopher Bagley. Last name spelling B-A-G-L-E-Y.
Chad Grunander (44:54):
And how are you employed?
Richard Novak (44:56):
I'm employed with the Spanish Fork Police Department as a police officer.
Chad Grunander (44:59):
As a police officer.
Richard Novak (45:00):
Yeah.
Chad Grunander (45:00):
What is your position or your rank there?
Richard Novak (45:02):
Just a senior officer.
Chad Grunander (45:03):
Senior officer. Okay. How long have you been with the Spanish Fork Police Department?
Richard Novak (45:08):
About five months.
Chad Grunander (45:09):
Five months. How long have you been a police officer?
Richard Novak (45:14):
26 years.
Chad Grunander (45:15):
Okay. Will you briefly describe, for the court's benefit, your training, what you did to become a police officer?
Richard Novak (45:23):
I did the Utah POST Academy, which is about 600 hours of training for basic things to become a police officer, report writing, arrest control, stuff to that effect.
Chad Grunander (45:34):
When you say POST Academy, is POST an acronym?
Richard Novak (45:37):
It is.
Chad Grunander (45:37):
What does that stand for?
Richard Novak (45:39):
Peace Officer Standard Training.
Chad Grunander (45:40):
Okay. Were you certified through POST?
Richard Novak (45:45):
I was.
Chad Grunander (45:46):
Okay. And what did that certification require?
Richard Novak (45:49):
Going through that POST and graduating all the academy, all the credits that you could get up with the hours, and then physical fitness, stuff to that effect, and then graduating from that to earn the certificate.
Chad Grunander (46:01):
Was there also testing involved?
Richard Novak (46:03):
There was.
Chad Grunander (46:04):
At the academy?
Richard Novak (46:04):
Yes.
Chad Grunander (46:05):
Okay. Were you employed in September of 2025?
Richard Novak (46:10):
I was.
Chad Grunander (46:11):
And where were you employed then?
Richard Novak (46:12):
Utah Valley Police Department.
Chad Grunander (46:14):
And how long did you work for the Utah Valley University Police Department?
Richard Novak (46:20):
Five years.
Chad Grunander (46:21):
Five years. Okay. And do you recall what your position or your rank was there?
Richard Novak (46:28):
A senior officer there.
Chad Grunander (46:28):
Senior officer. Okay. Describe, if you would, just your general duties as a police officer at Utah Valley University.
Richard Novak (46:38):
There, at Utah Valley University, we'd patrol the campus, we'd walk around, we'd patrol, we would do investigations if there was crimes to that effect. We'd make sure that students or staff, if they needed something, we'd be there for them. So basic police, kind of like a school resource officer, community-oriented policing.
Chad Grunander (46:54):
Okay. Was this a full-time position?
Richard Novak (46:56):
It was.
Chad Grunander (46:56):
Okay. Did you work in law enforcement prior to UVU?
Richard Novak (47:01):
I did.
Chad Grunander (47:02):
And where did you work?
Richard Novak (47:03):
I worked at Utah Valley, or sorry, Utah County Sheriff's Office for 13 years. Before that, I worked with Springville City Police Department for six years and also with the Salt Lake County Sheriff's Office for a year.
Chad Grunander (47:17):
What were your positions with those departments?
Richard Novak (47:21):
Varies. I did K-9, I did SWAT, I did motors. Senior officer, FTO officer, detectives.
Chad Grunander (47:32):
Okay. While you were at Utah Valley University, did you have access to the video surveillance system on campus?
Richard Novak (47:39):
Yes, I did.
Chad Grunander (47:42):
And how so?
Richard Novak (47:44):
It was at our desktop where our police station is. We have desks. And on our desktops, we'd have access to it there. Or we'd go into dispatch, and they'd have a wall full of camera systems that we could look at.
Chad Grunander (47:56):
How familiar did you become with that system?
Richard Novak (47:59):
Very familiar.
Chad Grunander (48:00):
Can you describe how you became very familiar?
Richard Novak (48:04):
Like I said, it was one of our daily routines that we'd go in there. If we were looking for somebody or tracking something back, we'd go in. We'd go back to that timeframe. We could trace somebody, track somebody through campus. I'd also turn around, make some maps so it was easier for dispatch or somebody to click on an area in this campuses, where the buildings were, and be able to click a little bit easier and get a faster response. So made some maps and stuff like that.
Chad Grunander (48:28):
And how often did you use this system?
Richard Novak (48:30):
Every day.
Chad Grunander (48:32):
Okay. Did you become familiar with the campus at Utah Valley University-
Richard Novak (48:37):
Yes, sir.
Chad Grunander (48:38):
... when you were working there?
Richard Novak (48:39):
Yes.
Chad Grunander (48:40):
And explain how you became familiar with it.
Richard Novak (48:43):
Like I said, we'd walk around. I would train other officers. We'd make sure that we knew all the ins and outs, the back doors. We'd make sure we knew where every classroom was, where every entrance and exit was. We'd secure the building. We'd patrol the neighborhoods. We'd patrol around campus. And then we also have offsite campuses that we drive to and make sure that they're secure also.
Chad Grunander (49:04):
Okay. You mentioned that you patrol the neighborhoods?
Richard Novak (49:06):
Yes.
Chad Grunander (49:07):
Surrounding campus?
Richard Novak (49:08):
Yes.
Chad Grunander (49:09):
What about the neighborhood to the north and east of campus?
Richard Novak (49:12):
Yes.
Chad Grunander (49:13):
Okay. What was your purpose for patrolling those neighborhoods as an officer for UVU?
Richard Novak (49:19):
One, it was right next to UVU, so we patrolled it. Sometimes people would run up in that area or be walking up that way. We'd have stolen bikes, stuff like that, so we'd go in the areas, look for stuff. Also, with Orem Police Department, we'd go back up them quite a bit for other calls, and a lot of it would be in the area.
Chad Grunander (49:35):
Okay. So back up just a little bit. So Utah Valley University is located in what city?
Richard Novak (49:39):
Orem, Utah.
Chad Grunander (49:40):
Orem, Utah. Okay. How familiar did you become with the buildings on campus?
Richard Novak (49:47):
Very familiar.
Chad Grunander (49:48):
And the walkways?
Richard Novak (49:50):
Very familiar.
Chad Grunander (49:51):
You mentioned the entrances and exits to the buildings?
Richard Novak (49:54):
Yes.
Chad Grunander (49:54):
What about parking structures?
Richard Novak (49:56):
Yes.
Chad Grunander (49:57):
Same answer for that?
Richard Novak (49:59):
Yes.
Chad Grunander (49:59):
Okay. Are you familiar with the courtyard or the outdoor amphitheater on campus?
Richard Novak (50:07):
I am.
Chad Grunander (50:08):
And generally speaking, where is that located on campus?
Richard Novak (50:12):
It's more of the central. It's an outdoor area centered by a bunch of buildings around it. So it's in the center of campus, pretty much.
Chad Grunander (50:20):
Okay. Can you describe what it looks like, this courtyard, this amphitheater?
Richard Novak (50:26):
It's kind of like an amphitheater look. So you got some grass and a couple steps that go up. You got some cement on top with some bushes and flowers. You've got places where people can sit and eat. They come out and study and relax on the grass. And there's a waterfall with a little pond that comes down into a stream.
Chad Grunander (50:44):
Okay. Are you familiar with the surroundings, the buildings around the amphitheater?
Richard Novak (50:52):
Yes, I am.
Chad Grunander (50:53):
Okay. In relationship to this amphitheater, this courtyard, where is the Hall of Flags located?
Richard Novak (51:00):
It would be directly west of the courtyard.
Chad Grunander (51:03):
Okay. Is it part of the courtyard, or is it just off of the courtyard?
Richard Novak (51:08):
It's kind of the courtyard. It butts up right against the courtyard, so it'd be the west side of the courtyard.
Chad Grunander (51:13):
Okay. So to the west of the courtyard.
Richard Novak (51:14):
Yes.
Chad Grunander (51:16):
Is there a walkway across the Hall of Flags?
Richard Novak (51:18):
There is.
Chad Grunander (51:18):
Okay. And what-
Richard Novak (51:19):
An inside one and an outside one.
Chad Grunander (51:20):
Okay. So what is the Hall of Flags then?
Richard Novak (51:22):
The Hall of Flags is kind of like a bridge between two buildings, that all the flags throughout the world are represented in there with some chairs where people sit down and relax with windows so you can see through all the way to the Utah Lake.
Chad Grunander (51:34):
Okay. What are those two buildings that are connected by this Hall of Flags?
Richard Novak (51:38):
The Fugal Building over to the science building area.
Chad Grunander (51:43):
Okay. So you mentioned the Fugal Building.
Richard Novak (51:45):
Yes.
Chad Grunander (51:45):
Where's the Fugal Building located in relationship to this courtyard?
Richard Novak (51:50):
It's to the south of the courtyard.
Chad Grunander (51:53):
Okay. Does it run up against the courtyard?
Richard Novak (51:57):
It does.
Chad Grunander (51:57):
The building? Okay. What about the Woodbury Business Building? Where's that in relationship to the courtyard?
Richard Novak (52:03):
It's kind of southeast. And it runs up right against the courtyard also.
Chad Grunander (52:06):
Okay. And in relationship to the Fugal Building, where's that Sorensen? Or excuse me. That business building, the Woodbury Business Building?
Richard Novak (52:11):
Woodbury Business is right directly east of the Fugal.
Chad Grunander (52:20):
Okay. What about the Sorensen Center? Where is that located with respect to this courtyard?
Richard Novak (52:25):
The Sorensen Center is going to be kind of like a northeast of the courtyard.
Chad Grunander (52:32):
Okay. Does it, again, run up against this courtyard?
Richard Novak (52:35):
Yes, it does.
Chad Grunander (52:36):
Okay. And where is it in relationship to the business building?
Richard Novak (52:40):
Woodbury Business Building is just directly south of the Sorensen.
Chad Grunander (52:43):
Directly south. Okay. The Losee Center, are you familiar with that building?
Richard Novak (52:48):
I am.
Chad Grunander (52:49):
And where is it located on campus?
Richard Novak (52:51):
Directly east of the courtyard, amphitheater area.
Chad Grunander (52:55):
Okay. Does it run up to the courtyard, the Losee Center?
Richard Novak (53:00):
No, not really.
Chad Grunander (53:02):
Okay. So-
Richard Novak (53:02):
It doesn't run right up against it. So the Sorensen building is kind of like right between those two.
Chad Grunander (53:07):
Okay. In relationship to the Sorensen building, what direction is the Losee building?
Richard Novak (53:12):
East.
Chad Grunander (53:12):
East. Okay. Are you familiar with the LDS Institute building on campus?
Richard Novak (53:18):
Yes, I am.
Chad Grunander (53:19):
And where is that located?
Richard Novak (53:21):
That is going to be located north of the Losee building and just kind of like northeast of the courtyard.
Chad Grunander (53:31):
Okay. And is there a parking structure next to this Institute building?
Richard Novak (53:38):
Yeah. There is.
Chad Grunander (53:38):
And where is that?
Richard Novak (53:40):
That is going to be ... So you mentioned the Institute building. It's going to be north of the Losee Center. There's a parking structure that has several levels of parking. It's going to be directly west of the Institute building. And then they also have a parking structure, not parking structure, parking lot to the north of that across the road.
Chad Grunander (54:00):
Okay. With respect to the parking structure, can you describe, for the court, how one would enter this parking structure driving and even walking? How do you enter and exit that structure?
Richard Novak (54:13):
So on the north end of the parking structure is Campus Drive. You can drive in and exit onto level one, so that's the ground level. That's where you'd enter if you were driving in or exiting back out on campus. Then goes up to level two. And on level two, a exit, it's what's called Heat Plant Road. In between the Institute building and the garage is a little road. And there's an exit right there that can drive out. You can also, if you were to park in there, you could walk out right there at that exit only where I was talking about on that southeast side. You can walk out there. Or on the north end of that garage, there are some stairs that go up all the levels and it goes down to the bottom level and across the street through a tunnel to the LDS Institute building. And then when you pop up on level two, you can walk over to the Institute building.
Chad Grunander (55:00):
Okay. Can you describe how long of a walk it would take from that parking structure to get to the courtyard on campus, approximately?
Richard Novak (55:09):
A couple of minutes because when you go to that far southeast exit, you can walk directly almost to the courtyard. You can also walk along the south end of the LDS Institute building up towards the Losee building.
Chad Grunander (55:21):
Okay. Officer, I'm going to turn your attention to State's Exhibit Number 1. It should come up on your monitor there. Let me know when you can see that.
Richard Novak (55:37):
I can see it.
Judge Tony F. Graf, Jr. (55:37):
And just for staff, let's go ahead and not publish it until it's admitted into evidence. So we're going to take it off the monitors. But for the witness, he should be able to see the exhibit.
Speaker 2 (55:50):
[inaudible 00:55:54].
Judge Tony F. Graf, Jr. (55:57):
That's fine. So table monitors, witness, but not the main monitor. Thank you. All right. Mr. Grunander. Thank you.
Chad Grunander (56:05):
Thank you, Judge. Do you see that Plaintiff's Exhibit Number 1, Officer?
Richard Novak (56:08):
I do.
Chad Grunander (56:09):
And do you recognize that exhibit?
Richard Novak (56:12):
Yes, I do.
Chad Grunander (56:12):
And what is that?
Richard Novak (56:14):
This is an area of the buildings plus the courtyard in the middle of all the grassy area. So this is an area of the campus at Utah Valley University.
Chad Grunander (56:22):
Is it a photograph?
Richard Novak (56:23):
Yes, sir.
Chad Grunander (56:24):
Okay. Are you familiar then with what's depicted in this photograph?
Richard Novak (56:28):
Yes, I am.
Chad Grunander (56:30):
Does it fairly and accurately portray this area of campus?
Richard Novak (56:35):
Yes, it does.
Chad Grunander (56:36):
Okay. Can you tell the court what direction the camera is facing when this photograph was taken?
Richard Novak (56:43):
It's kind of facing north and a little to the east.
Chad Grunander (56:45):
Okay. Does it depict a number of the buildings that we've talked about today?
Richard Novak (56:51):
Yes, it does.
Chad Grunander (56:53):
For example, the Hall of Flags. Does it show the Hall of Flags?
Richard Novak (56:56):
Yes, it does.
Chad Grunander (56:57):
The walkway of it, of the Hall of Flags? What about the Sorensen Center? Does it show that?
Richard Novak (57:03):
Yes, it does.
Chad Grunander (57:04):
The Woodbury Business Building?
Richard Novak (57:06):
Yes, it does.
Chad Grunander (57:07):
The Fugal Building?
Richard Novak (57:08):
Yes.
Chad Grunander (57:10):
What about the Losee Center? Can you see that from this photograph?
Richard Novak (57:14):
Yes.
Chad Grunander (57:15):
Is this photograph a fair and accurate depiction of this area of UVU campus on September 10th, 2025?
Richard Novak (57:21):
Yes.
Chad Grunander (57:22):
Your Honor, the state offers State's Exhibit 1.
Kathy Nestor (57:25):
Your Honor, we would object to failure to lay a foundation for ... Oh. I'm sorry. [inaudible 00:57:30].
Judge Tony F. Graf, Jr. (57:30):
It is a little bit tricky because that microphone ...
Kathy Nestor (57:33):
Sorry about that.
Judge Tony F. Graf, Jr. (57:34):
Ms. Nester.
Kathy Nestor (57:35):
Your Honor, we would object to inability to authenticate. There's not been a foundation laid that this officer took this photo, can verify when it was taken or by whom it was taken. So we would object.
Judge Tony F. Graf, Jr. (57:47):
Mr. Grunander.
Chad Grunander (57:49):
Would you like us to argue now or approach the bench?
Judge Tony F. Graf, Jr. (57:52):
Well, as it relates to this, I'll hear argument.
Chad Grunander (57:54):
Okay. Judge, first of all, it's very clear, well-established law that the person who took the photograph is not required to be present to lay the foundation for it. What's required for foundation is that the witness has knowledge of what's depicted in the photograph and can testify to its accuracy. And that's exactly what this officer has done. We laid an ample amount of foundation about this area of campus. He's confirmed that it depicts this area of campus that was previously described. He confirmed the buildings that he can see there. He also confirmed that it was an accurate depiction on September 10th, 2025.
Judge Tony F. Graf, Jr. (58:35):
Thank you. Any further argument, Ms. Nester?
Kathy Nestor (58:37):
Your Honor-
Judge Tony F. Graf, Jr. (58:40):
And, Mr. Grunander, if-
Kathy Nestor (58:42):
We did file a standing objection at the very beginning of the hearing. I would just refer to our standing objection as well. I know this is not a ... There's no written testimony in this, but just out of an abundance of caution, I want to also refer to our standing objection.
Judge Tony F. Graf, Jr. (58:58):
Thank you, Ms. Nester. All right. Having considered the arguments, I find I'm going to overrule the objection and admit Exhibit 1. This witness has firsthand knowledge of the location as well as the building locations. That foundation has been laid. He also stated it was a fair and accurate representation of what's being depicted here. And for those reasons, the defense objection is overruled. State's Exhibit 1 is admitted into evidence and may be published to the courtroom.
Chad Grunander (59:32):
Okay. So the state would move to publish that to the courtroom.
Judge Tony F. Graf, Jr. (59:37):
It is so granted.
Chad Grunander (59:43):
Officer Bagley, are you able to see the monitor that's here in the court that's pointed towards the gallery?
Richard Novak (59:51):
Yes.
Chad Grunander (59:54):
From where you're seated, are you comfortable in describing where the courtyard is on that photograph, on that exhibit?
Richard Novak (01:00:00):
Yes.
Chad Grunander (01:00:00):
And for the record, where is that located?
Richard Novak (01:00:03):
So all the grass, it looks like a triangle. The amphitheater look, that is going to be the courtyard amphitheater area. It's got the tent in it. The white tent that's at the bottom on the far left of the picture, that would be the courtyard area that is surrounded by buildings. More of the grass area.
Chad Grunander (01:00:21):
I'm going to approach the ... well, I'm just going to ... When you look at this exhibit, to the left of the photograph, there's a walkway there. What is that walkway?
Richard Novak (01:00:31):
So the red brick walkway that's going north to the top of the picture on the far left is going to be the Hall of Flags, the outside top of it.
Chad Grunander (01:00:38):
Okay. On the bottom of this photograph, there's a white-roofed building. It's the largest building, at least as far as what's depicted on this exhibit.
Richard Novak (01:00:48):
Yes.
Chad Grunander (01:00:49):
What building is that?
Richard Novak (01:00:55):
That would be the Fugal Building.
Chad Grunander (01:00:56):
Okay. And just to the right of that, so that would be to the east of the Fugal Building, what building is that?
Richard Novak (01:00:59):
The other red brick pathway area, that is the Woodbury Business Building.
Chad Grunander (01:01:03):
Okay. And if I were to walk north, so left on this photograph with respect to that red brick walkway area, there's another building, sort of triangular in shape, the rooftop. What building is that?
Richard Novak (01:01:18):
With that white rooftop, that would be the Sorensen building.
Chad Grunander (01:01:21):
That's the Sorensen building. And what about the Losee building? You've described that. Where's that located on this photograph?
Richard Novak (01:01:27):
If you go to that triangle white roof, if you go directly to the right, so the right side of the picture, that is going to be the Losee building. It's got several levels.
Chad Grunander (01:01:36):
Is it to the right and up a little bit as well?
Richard Novak (01:01:38):
Yes.
Chad Grunander (01:01:39):
Okay. And that would be east on this photograph; is that correct?
Richard Novak (01:01:42):
And it's got the gravel rooftop.
Chad Grunander (01:01:44):
Gravel rooftop. Okay. I referred you to the LDS Institute building. Are you able to see that in this photograph?
Richard Novak (01:01:52):
Yes, you are.
Chad Grunander (01:01:53):
And where is that located?
Richard Novak (01:01:54):
That's going to just be directly north of the Losee building. It's going to be that other white-roofed building on the far top of the picture.
Chad Grunander (01:02:02):
Okay. Thank you, Officer. We can take that down, Your Honor, as far as the publication. Officer Bagley, I'm going to take you back to the date of September 10th, 2025. Do you recall that day generally?
Richard Novak (01:02:17):
I do.
Chad Grunander (01:02:18):
Were you working that day?
Richard Novak (01:02:20):
Yes, I was.
Chad Grunander (01:02:21):
At UVU?
Richard Novak (01:02:21):
I was. Yes.
Chad Grunander (01:02:22):
Okay. Do you remember what time your shift started, approximately?
Richard Novak (01:02:29):
Yes. It approximately started about 11 o'clock in the morning.
Chad Grunander (01:02:31):
11 o'clock in the morning?
Richard Novak (01:02:32):
Yes.
Chad Grunander (01:02:32):
Okay. Did you receive a specific assignment shortly after coming onto duty?
Richard Novak (01:02:38):
Yes, I did.
Chad Grunander (01:02:39):
And what was that assignment?
Richard Novak (01:02:41):
It was to secure the top of the Hall of Flags on the south end. So we had people that were gathering on top of that that were looking down on top of the tent, so we wanted to secure that area. So I was put up on top of the Hall of Flags on the south end.
Chad Grunander (01:02:54):
Okay. My apologies, Your Honor. Could we have Exhibit 1 published again?
Judge Tony F. Graf, Jr. (01:02:59):
Let's go ahead and republish State's Exhibit 1. Thank you.
Chad Grunander (01:03:05):
You mentioned that you were securing the south end of the walkway on top of the Hall of Flags?
Richard Novak (01:03:09):
Yes.
Chad Grunander (01:03:10):
And so where do we find that in this exhibit, Officer?
Richard Novak (01:03:13):
So if you can see the tent, the white tent, there's that rooftop where the red brick is. I was on top of that. And there's some ... Actually, it looks like yellow crime scene tape. That was some of our barrier that we put up so people wouldn't go above that and walk. So I was sitting right by those flower pots, plants that were by the Fugal on the south end.
Chad Grunander (01:03:33):
So is the south end on the bottom of this photograph?
Richard Novak (01:03:36):
Yes.
Chad Grunander (01:03:36):
Where that walkway kind of begins from the bottom?
Richard Novak (01:03:39):
Yes.
Chad Grunander (01:03:40):
And you've referred to a tent. Is that the white object we see inside the courtyard?
Richard Novak (01:03:46):
Yeah. That square white object with the tent.
Chad Grunander (01:03:49):
Okay. Thank you. So you were securing that area?
Richard Novak (01:03:52):
Yes.
Chad Grunander (01:03:59):
Did you have the opportunity that morning, you mentioned you checked on about 11 o'clock-
Richard Novak (01:04:03):
Yes.
Chad Grunander (01:04:04):
... that morning and later to walk around campus that day?
Richard Novak (01:04:09):
Yes.
Chad Grunander (01:04:11):
Did you walk along the Hall of Flags that day?
Richard Novak (01:04:13):
I did.
Chad Grunander (01:04:14):
That walkway?
Richard Novak (01:04:15):
Yes.
Chad Grunander (01:04:16):
Did you visit the courtyard that day as well?
Richard Novak (01:04:18):
Down below, yes, on the south. I was down there.
Chad Grunander (01:04:20):
Okay. Let's see. Officer, I'm going to turn your attention to State's Exhibit Number 2. And that should come up on your monitor there. Let me know when you see that, if you would.
Kathy Nestor (01:04:49):
Your Honor, if we could maybe not have it on the lectern screen. We're getting reports that the documents shown on the lectern screen are being live-screamed. Live-streamed. So maybe if we could just not show that one until it's admitted.
Judge Tony F. Graf, Jr. (01:05:07):
Mr. Grunander.
Chad Grunander (01:05:09):
I'll submit it to the court, Judge. I've got copies of these for myself that I can refer to as I'm asking questions.
Judge Tony F. Graf, Jr. (01:05:17):
All right. Well, I'll go ahead and grant the request by Ms. Nester. We'll go ahead and [inaudible 01:05:22].
Speaker 3 (01:05:22):
[inaudible 01:05:22].
Speaker 2 (01:05:22):
Just turn it off.
Judge Tony F. Graf, Jr. (01:05:24):
Just ... There should be a power button to turn it off.
Chad Grunander (01:05:27):
Not sure where that's at.
Jeff (01:05:33):
Did you try here?
Judge Tony F. Graf, Jr. (01:05:34):
Thank you, Jeff.
Chad Grunander (01:05:43):
Go ahead.
Jeff (01:05:43):
[inaudible 01:05:44]. Sorry.
Chad Grunander (01:05:43):
Okay. You're good.
Judge Tony F. Graf, Jr. (01:05:45):
And if at any point, Mr. Grunander, you do need to use the monitor, let's revisit that. And obviously, Ms. Nester, you can renew your objection if needs be, but for now, the monitor's turned off. Let's go ahead and proceed.
Chad Grunander (01:05:57):
Thank you. Officer, do you see State's Exhibit Number 2 on your monitor?
Richard Novak (01:06:02):
Yes, I do.
Chad Grunander (01:06:02):
And do you recognize that?
Richard Novak (01:06:04):
I do.
Chad Grunander (01:06:05):
And what is that?
Richard Novak (01:06:07):
This is a picture from the east side, looking west, of the campus.
Chad Grunander (01:06:12):
Okay. Are you familiar with what's depicted in this photograph?
Richard Novak (01:06:18):
Yes, I am.
Chad Grunander (01:06:18):
Okay. And does it show, for example, the Losee Center that we've talked about?
Richard Novak (01:06:25):
Yes, it does.
Chad Grunander (01:06:27):
Does it depict the Woodbury Business Building that we've talked about?
Richard Novak (01:06:32):
Yes.
Chad Grunander (01:06:33):
What about the Fugal Building?
Richard Novak (01:06:35):
Yes.
Chad Grunander (01:06:36):
Does it show the Sorensen Center?
Richard Novak (01:06:37):
Yes.
Chad Grunander (01:06:38):
And also the Hall of Flags?
Richard Novak (01:06:40):
Yes.
Chad Grunander (01:06:41):
In this particular exhibit, can you also see the courtyard?
Richard Novak (01:06:45):
I can. A partial of it.
Chad Grunander (01:06:46):
A partial of it. Okay. Does it fairly and accurately depict this area of campus of UVU on September 10th, 2025?
Richard Novak (01:06:58):
Yes.
Chad Grunander (01:06:58):
Okay. Your Honor, the state offers State's Exhibit Number 2.
Kathy Nestor (01:07:03):
Your Honor, we renew our standing objection. We also argue that a foundation hasn't been laid in terms of the time this was taken or who took it and at what point in time this was created and how. So I don't think he has any personal knowledge of that. And we'd object.
Judge Tony F. Graf, Jr. (01:07:20):
Mr. Grunander.
Chad Grunander (01:07:20):
Same arguments, Judge. He has testified that he's familiar with it. He has personal familiarity with it. He's testified that it's fair and accurate as of the day of September 10th, 2025. And that's what was asked of him.
Judge Tony F. Graf, Jr. (01:07:34):
All right. I will go ahead and overrule the objection by Defense, noting that the witness has laid ... Well, he has expressed that this is a fair and accurate representation of what it purports to be and he's familiar with it. He was there on the day, on September 10th. And because that foundation has been laid, State's Exhibit 2 is admitted and may be published.
Chad Grunander (01:08:00):
Thank you, Judge. State move to publish Exhibit 2.
Chad Grunander (01:08:00):
Thank you, Judge. State moves to publish Exhibit 2.
Judge Tony F. Graf, Jr. (01:08:04):
All right.
Chad Grunander (01:08:06):
Officer, I'm going to direct your attention to this exhibit on the monitor facing the gallery of the court today. Can you describe, there's a large building in the middle of that photograph slightly above the middle, but what building are we looking at there?
Richard Novak (01:08:25):
You're looking at the rooftop of the Losee building. It's got two different grays, like a lighter gray and a darker gray.
Chad Grunander (01:08:31):
Are you familiar with that rooftop then?
Richard Novak (01:08:33):
Yes, I am.
Chad Grunander (01:08:34):
And what's it made of?
Richard Novak (01:08:35):
It's made of gravel.
Chad Grunander (01:08:36):
Gravel? Okay. You mentioned two different grades or did you say grays?
Richard Novak (01:08:41):
Grays.
Chad Grunander (01:08:42):
Grays? Okay. All right. Now you described that you could see the courtyard, but it wasn't easily visible in this photograph. Where is the courtyard located on the state's exhibit number two?
Richard Novak (01:08:55):
You've got the white roof that's going to be in the middle, just to the top of the building where the Losee is, I described there's a white roof there. That's the Sorenson building. And it's just below that you can see some grass and that's where the courtyard is. It's just to the left of that white roof.
Chad Grunander (01:09:10):
Your Honor, I'm going to ask if the witness could actually come down from the stand and point out where the courtyard is located in this exhibit for the court's benefit.
Judge Tony F. Graf, Jr. (01:09:20):
All right. Do we have a second microphone so it picks up his voice? Okay. Ms. Nester, thank you for allowing us. Officer, you may step down, approach the monitor, and I would ask that you speak into the microphone when responding to a question.
Richard Novak (01:09:43):
Okay. Can you hear me?
Judge Tony F. Graf, Jr. (01:09:45):
I can. Thank you.
Chad Grunander (01:09:47):
Officer, for our benefit, would you describe again where the Losee Center is in this photograph?
Richard Novak (01:09:51):
The Losee Center is going to be this one with the gray roofs. It's got two different colors of gray.
Chad Grunander (01:09:55):
Two different colors of gray? Okay. I'm blind. I can't see those two different colors from here, but can you describe where the court... Looks like we went blank.
Richard Novak (01:10:09):
There we go.
Chad Grunander (01:10:10):
Can you point to where the courtyard is located on that exhibit?
Richard Novak (01:10:13):
The courtyard's going to be here where this grass is in this area right here.
Chad Grunander (01:10:17):
Okay. And what about the Fugal building?
Richard Novak (01:10:19):
The Fugal building is going to be this building right here.
Chad Grunander (01:10:23):
And the Woodbury Business building then?
Richard Novak (01:10:25):
Woodbury is going to be this one right here with this red brick path.
Chad Grunander (01:10:28):
And the Sorenson Center?
Richard Novak (01:10:29):
Sorenson Center is going to be this white roofed one that's right here.
Chad Grunander (01:10:32):
Okay. Now on this exhibit, can you see the LDS Institute building and the parking structure that we've talked about?
Richard Novak (01:10:38):
No, not really. You've got the backside of the Institute building, which is right here, and the parking structure's over there. So you can't see the next-
Judge Tony F. Graf, Jr. (01:10:44):
Mr. Grunander, let me stop you just for the benefit of the record because the record is picking up the audio. When you're pointing it to, and I know it may be a little bit laborious to do this, but as you're identifying, indicate the general location on it, the left side, right side, middle, upper, lower, just so the record knows to some degree where you're pointing. In that way, because the video isn't being captured. So if you would do that, it just creates a more complete record. Thank you.
Chad Grunander (01:11:10):
Understood. That's fair. Thank you, Judge. So again, let's point to the courtyard and if you'll describe as best you can where that is located on the photograph.
Richard Novak (01:11:22):
On this photograph, the courtyard is going to be this grass area that's going to be towards the top of the picture. The baseball field's behind it. It's closer to the surrounded buildings. There's some grass in there. That would be the courtyard area.
Chad Grunander (01:11:34):
Okay. We've talked about the Hall of Flags and the walkway above that hall. Where is that located on this photograph?
Richard Novak (01:11:40):
The Hall of Flags is going to be right by the courtyard, just to the west of it there's a red brick towards the top of the picture. There's a red brick pathway that goes from the Fugal building, which is on the left of the picture, towards the right of the picture, which is a science building area.
Chad Grunander (01:11:52):
Okay. And then the Sorenson Center, is that the building in the middle with a large white roof?
Richard Novak (01:11:59):
Yeah, it's going to be towards the upper part of the picture, middle of it. It's going to be a white roof. That would be the Sorenson Center.
Chad Grunander (01:12:07):
And just to the north and east of the courtyard?
Richard Novak (01:12:09):
Yes. North and east.
Chad Grunander (01:12:10):
Okay. And then finally, if you would describe the Losee building, the location of that on this exhibit.
Richard Novak (01:12:16):
The Losee building could be pretty much in the middle on the right side. Middle to the right. It's going to have two different colors of gray, a darker gray and a lighter gray. There's a red pathway and that will be the Losee Center.
Chad Grunander (01:12:28):
Okay. You mentioned, Officer, that there were different stories on the Losee building. How many stories does the Losee building have?
Richard Novak (01:12:36):
There's four.
Chad Grunander (01:12:37):
Four stories? Okay. You mentioned that you were familiar with the rooftop. Do you know how to gain access to the rooftop of the Losee building?
Richard Novak (01:12:45):
Yes. There's actually an outside stairway right here that comes up. It's going to be just to the south of the Losee building there's a red pathway right directly in the middle of the picture. Off to the south of that on the left side of the picture is an outdoor stairway.
Chad Grunander (01:13:01):
Is that open to the public?
Richard Novak (01:13:02):
It is.
Chad Grunander (01:13:03):
And how would someone access the roof from that stairway?
Richard Novak (01:13:08):
If they came up, that would put some right here on this pathway that goes between the Losee Center and down towards the computer science building there's a red pathway. There's actually a little handrail, like a little guardrail, probably about a couple feet high that somebody could jump over.
Chad Grunander (01:13:24):
Is that area restricted? Is it off limits?
Richard Novak (01:13:27):
Yes, it is. There's a natural barrier with the guardrail. And from there on, there's no path. It's gravel roof, so it's not paved like everything else.
Chad Grunander (01:13:36):
But someone could hop over that railway?
Richard Novak (01:13:38):
Yes.
Chad Grunander (01:13:39):
Okay. Thank you, Officer. You can take your seat again.
Richard Novak (01:13:42):
Thank you.
Chad Grunander (01:13:59):
Officer Bagley, I'm now going to refer you to your attention to State's Exhibit number 3. That's going to come up on your monitor as well. Let me know when you see that.
Richard Novak (01:14:18):
Yes, I do see it.
Chad Grunander (01:14:19):
Okay. And do you recognize that?
Richard Novak (01:14:22):
I do.
Chad Grunander (01:14:24):
And what is that?
Richard Novak (01:14:25):
This is a drone picture of the campus, more of the courtyard looking eastward.
Chad Grunander (01:14:32):
Okay. I've asked you about several buildings on campus. I'm going to ask you about those same buildings, whether they're depicted in this exhibit. Okay? Do you see where the Hall of Flags is located?
Richard Novak (01:14:43):
Yes, I do. It's down towards the bottom. It's a red brick pathway. It would be the Hall of Flags.
Chad Grunander (01:14:47):
Okay. What about the Fugal building?
Richard Novak (01:14:48):
The Fugal building's going to be to the right of the picture. It's going to be a white roof building off to the right directly south of the courtyard.
Chad Grunander (01:14:55):
And the Woodbury Business building? Where's that at?
Richard Novak (01:14:58):
Woodbury is going to be another red path that's going to be just to the east of the Fugal building. It's got a gray roof and some red path that's...
Chad Grunander (01:15:05):
The Sorenson Center?
Richard Novak (01:15:06):
The Sorenson Center's going to be on the left of the picture. It's going to have a white roof, different levels, and that would be the Sorenson Center.
Chad Grunander (01:15:14):
Okay. The Losee Center, where's that located in relationship to the Sorenson Center that you've described?
Richard Novak (01:15:21):
Of the Sorenson Center? It's going to be just directly east of the Sorenson Center towards the top of the picture. You can see the two different colors of gray, the gravel that's on the roof.
Chad Grunander (01:15:30):
Okay. And can you see the courtyard in this photograph?
Richard Novak (01:15:34):
Yes, you can.
Chad Grunander (01:15:39):
Okay. Is this picture a fair and accurate depiction of this area of Utah Valley University's campus on September 10th, 2025?
Richard Novak (01:15:48):
Yes.
Chad Grunander (01:15:51):
State offers Exhibit 3, Your Honor.
Kathy Nestor (01:15:52):
Your Honor, we renew the standing objection. We also object again that this individual can't identify when the picture was made or how it was made or by whom.
Judge Tony F. Graf, Jr. (01:16:06):
Mr. Grunander.
Chad Grunander (01:16:10):
Same response, Judge. And just for the record, I would also point the court to State v. Purcell, which is a Supreme Court case here in the State of Utah, 1985, which essentially stands for the proposition that if a competent witness with personal knowledge of the facts represented in a photograph can testify that that photograph accurately represents those facts, the exhibit's admissible.
(01:16:38)
He's also spoke about the date being September 10th, 2025. The showing that's required here, it's essentially a prima facie showing. We're not required to show proof beyond a reasonable doubt, for example, that it was accurate that day or even a preponderance of the evidence. But we'll submit it on that, Judge.
Judge Tony F. Graf, Jr. (01:16:55):
All right. I'm just taking a brief glance at the case you cited.
Chad Grunander (01:17:02):
I can give the citation, Your Honor.
Judge Tony F. Graf, Jr. (01:17:05):
If you have that, I'd appreciate that.
Chad Grunander (01:17:06):
It's 711 Pacific 2nd 243. And I'm looking at page number 245.
Judge Tony F. Graf, Jr. (01:17:27):
All right. The court finds that the witness is familiar with the scene. He testified that it is a fair and accurate representation of what State's Exhibit 3 purports to be. And the court finds that necessary foundation has been laid and overrules the objection. State's Exhibit 3 is admitted and may be published.
Chad Grunander (01:18:00):
State would move to publish State's Exhibit 3.
Judge Tony F. Graf, Jr. (01:18:02):
All right.
Chad Grunander (01:18:11):
May I approach the witness, Your Honor?
Judge Tony F. Graf, Jr. (01:18:13):
You may.
Chad Grunander (01:18:20):
Officer, if you would come down into the well of the court, I'm going to ask you a few questions about this Exhibit 3 as well.
Richard Novak (01:18:27):
Okay.
Chad Grunander (01:18:31):
Can you point out where the Hall of Flags is located and describe that for the record?
Richard Novak (01:18:35):
The Hall of Flags is going to be down here on the bottom of the picture. It's going to have a red brick pathway with some flowers along the top of it.
Chad Grunander (01:18:41):
You mentioned that you were securing an area of that walkway?
Richard Novak (01:18:47):
Yes.
Chad Grunander (01:18:47):
Where were you stationed?
Richard Novak (01:18:48):
I was down here by the end of the flower pots, which is down here on the south side towards the Fugal building on the far right of the picture.
Chad Grunander (01:18:54):
Okay. In relationship to where you were stationed, where is the Fugal building then?
Richard Novak (01:19:00):
The Fugal building is just to the right of me. So it would be on the south end of me.
Chad Grunander (01:19:06):
Okay. And so it's on the right side of the photograph there?
Richard Novak (01:19:09):
Far right side of the photograph, yes.
Chad Grunander (01:19:10):
What about the business building?
Richard Novak (01:19:12):
The business building is just going to be in the middle of the picture on the far right. It's going to have some red brick pathways. It's going to be multi-level and that would be the Woodbury building.
Chad Grunander (01:19:21):
Okay. The Sorenson Center, where is that located on the photograph?
Richard Novak (01:19:26):
The Sorenson Center's going to be middle to far left of the picture. It's going to have a white roof on top of it, multi-level.
Chad Grunander (01:19:32):
Okay. And the Losee Center, where is that located?
Richard Novak (01:19:35):
The Losee Center's going to be towards the top of the picture, kind of off-centered a little bit, but it's going to have the four or five floors that are sitting right there.
Chad Grunander (01:19:46):
Okay. Can you describe those stories, what we're looking at? Where do you find one, two, three, four, and possibly five?
Richard Novak (01:19:56):
This is ground level where the courtyard is. As you go over towards the Losee building inside, there's an elevator, that'd be ground one, level one. Level two would be the second one where these red ATVs are sitting on the grass right there in the middle of the picture. If you go up from that, that would be the third level. And your fourth level, which is the actual top level of the building is that very top one with the windows that you can see.
Chad Grunander (01:20:22):
Okay. Is there an atrium on the top of that?
Richard Novak (01:20:24):
There is an atrium. It's actually, it's got a little sphere on the top of it. It looks like a little square right on top of the Losee building. That would be an atrium.
Chad Grunander (01:20:32):
Now you mentioned two shades of gray on the rooftop of the Losee building?
Richard Novak (01:20:36):
Yes.
Chad Grunander (01:20:36):
Can you see that on this exhibit?
Richard Novak (01:20:38):
I can. Where the atrium is a lighter gray gravel. And on the west side, because I'm looking east, on the west side, there's two ventilations for the Losee building, two vents on top of that. It's in the darker gray gravel.
Chad Grunander (01:20:55):
You mentioned you're familiar with the rooftop of the Losee Center, correct?
Richard Novak (01:21:00):
Yes.
Chad Grunander (01:21:00):
When someone is standing on the Losee Center, can they see down into the courtyard?
Richard Novak (01:21:04):
Yes, they can.
Chad Grunander (01:21:05):
And where is the courtyard located from the rooftop?
Richard Novak (01:21:08):
That's going to be in the center of the picture with the grass and the atrium style steps.
Chad Grunander (01:21:12):
Would that be west of the Losee Center then?
Richard Novak (01:21:15):
Yes, it would be directly west of the Losee Center.
Chad Grunander (01:21:17):
Okay. Now in a couple of the other exhibits, we saw a tent that was down set up in the courtyard. Can you see that tent set up in the courtyard in this photograph?
Richard Novak (01:21:27):
You cannot. In this picture, you can't. It would be where I explained where the Hall of Flags is. It's directly underneath the Hall of Flags, just on the grass right there.
Chad Grunander (01:21:36):
Okay. Is there a clear line of sight between the tent and the top of the Losee Center? The rooftop?
Richard Novak (01:21:43):
Yes, there is.
Chad Grunander (01:21:44):
Okay. Is some of it obstructed?
Richard Novak (01:21:46):
Yes.
Chad Grunander (01:21:47):
Obstructed by what?
Richard Novak (01:21:48):
The Sorenson building that's right here, this white roof this kind of obstructs a little bit of the view of the courtyard.
Chad Grunander (01:21:56):
Where would you have to be standing or perhaps lying down on the Losee Center to see into the courtyard where that tent was?
Richard Novak (01:22:02):
On the far south side of the Losee building, you could have a line of sight towards the courtyard.
Chad Grunander (01:22:08):
That's the top roof?
Richard Novak (01:22:09):
The top roof, yes.
Chad Grunander (01:22:10):
With a darker shade of gray?
Richard Novak (01:22:11):
Yes.
Chad Grunander (01:22:13):
Okay. Thank you, Officer. I am going to refer the witness now to State's Exhibit number 35. And Officer Bagley, when you see that, go ahead and let me know. Do you recognize what that is, Officer?
Richard Novak (01:22:54):
I don't have it yet.
Chad Grunander (01:23:03):
We don't have this in electronic form?
Speaker 4 (01:23:06):
We do.
Chad Grunander (01:23:07):
We do? Okay. Well, I'll refer you to the exhibit that's to your left and behind you. Do you see that?
Richard Novak (01:23:18):
I do.
Chad Grunander (01:23:19):
It's marked as State's Exhibit 35 with a yellow sticker. Is that correct?
Richard Novak (01:23:24):
Yes, I can see that on top left of the photo.
Chad Grunander (01:23:27):
Well, for the record, if we can publish that on the witness's screen.
Judge Tony F. Graf, Jr. (01:23:34):
Thank you, Mr. Grunander. I was just going to mention that we shouldn't display it until it's been admitted in.
Chad Grunander (01:23:50):
Do you see State's Exhibit 35 in your monitor?
Richard Novak (01:23:52):
Yes, I do.
Chad Grunander (01:23:53):
Okay. Do you recognize that?
Richard Novak (01:23:56):
Yes, I do.
Chad Grunander (01:23:57):
And what is that?
Richard Novak (01:23:58):
This is an aerial view of the campus and the northeast area, just north of the campus neighborhoods of Utah Valley University in Orem.
Chad Grunander (01:24:06):
Okay. And how can you personally tell that this is a photograph of the campus and the neighborhood to the northeast of campus?
Richard Novak (01:24:20):
I can tell because I recognize all the buildings, the roads that are around it, the streets, the roundabouts, the neighborhood to the north or towards the top of the picture also.
Chad Grunander (01:24:32):
Now I've asked you about several buildings and landmarks on campus. Are you able to see the courtyard on this exhibit?
Richard Novak (01:24:40):
Yes, you are.
Chad Grunander (01:24:42):
And just for the record, can you describe where this is located on the exhibit?
Richard Novak (01:24:47):
Right in the center towards the bottom, there's a white triangle roof that's white. That would be the Sorenson building. It's the patch of grass that's just directly south towards the bottom of that on the picture. It's centered, but more towards the bottom, right in the middle.
Chad Grunander (01:25:05):
On this exhibit, are you able to see the Fugal building?
Richard Novak (01:25:08):
Yes, I am.
Chad Grunander (01:25:09):
And in relationship to this courtyard, where is that located?
Richard Novak (01:25:12):
That's going to be south of the courtyard with the white roof.
Chad Grunander (01:25:16):
What about the Woodbury Business Building?
Richard Novak (01:25:19):
Woodbury Business Building is going to be to the east and it's going to have a red brick path top.
Chad Grunander (01:25:26):
Okay. Can you see the Hall of Flags on this?
Richard Novak (01:25:32):
Yes, you can.
Chad Grunander (01:25:34):
And where is that located in relationship to the courtyard again?
Richard Novak (01:25:37):
It's strictly west of the courtyard.
Chad Grunander (01:25:40):
And the Losee Center. Can you see the Losee Center?
Richard Novak (01:25:43):
Yes, you can see the Losee Center.
Chad Grunander (01:25:44):
Where's that at?
Richard Novak (01:25:45):
It's going to be northeast of the courtyard. With the two patches of gray that's almost in the center of the picture, just to the slight right of the center.
Chad Grunander (01:25:55):
Okay. I've asked you previously about the LDS Institute building. Can you see that on this exhibit?
Richard Novak (01:26:01):
Yes, you can.
Chad Grunander (01:26:02):
And where's that located in relationship to the Losee Center?
Richard Novak (01:26:05):
It's directly north of the Losee Center. It's got a white roof and it's almost directly in the center of the photo.
Chad Grunander (01:26:10):
Okay. And we've talked about a parking structure that's nearby the Institute building. Do you see that?
Richard Novak (01:26:17):
Yes. It's just to the west or left side of the picture of the Institute building.
Chad Grunander (01:26:21):
Okay. Is this a fair and accurate depiction of Utah Valley University's campus and the surrounding neighborhood to the north and east on September 10th, 2025?
Richard Novak (01:26:38):
Yes.
Chad Grunander (01:26:38):
The State offers State's Exhibit 35.
Kathy Nestor (01:26:43):
Your Honor, renew the standing objection and object on the grounds that there's no indication on this photograph of when it was taken in terms of relation to the actual incident at issue here.
Judge Tony F. Graf, Jr. (01:26:55):
Thank you, Ms. Nester. Mr. Grunander.
Chad Grunander (01:26:58):
Same response, Judge, but I would just add one more case for the court's benefit. This is State v. Wager or Wager, W-A-G-E-R. This is a Utah Court of Appeals case from 2016. The citation is 372 Pacific 3rd 91. And the significance of this case, Your Honor, at issue there was a photograph of the defendant there who was smoking methamphetamine allegedly in his bathroom. The witness that was testifying that laying the foundation at trial was not present when the photograph was taken, could not tell the date on which it was taken, but he had been in the bathroom before, was familiar with the defendant's bathroom and familiar with the defendant. He testified to that personal knowledge and the court found that was sufficient foundation. So, that case, in addition to the other case, the Purcell case and my previous arguments and I'll submit it to the court.
Judge Tony F. Graf, Jr. (01:27:59):
Ms. Nester, anything else you wish to add?
Kathy Nestor (01:28:02):
No, Your Honor.
Judge Tony F. Graf, Jr. (01:28:02):
All right. Given the testimony of the witness who's testified he's familiar with this location, he went in detail describing the various neighborhoods and location. He mentioned the roundabout and identified the buildings in State's Exhibit 35. And it was noted that it is a fair and accurate representation of this campus as of September 10th, 2025, the court is going to overrule the objection and State's Exhibit 35 is admitted into evidence and may be published.
Chad Grunander (01:28:40):
Thank you, Judge. The State moves to publish it. And if granted, may I approach the exhibit?
Judge Tony F. Graf, Jr. (01:28:46):
You may.
Chad Grunander (01:29:06):
Officer, I've asked you about a number of the buildings located on campus. I'm just going to ask you a couple of questions about those to help orient the court to what the judge is looking at and then ask you about some of the streets in the neighborhood. Okay?
Richard Novak (01:29:19):
Okay.
Chad Grunander (01:29:20):
For the court's benefit, can you point out where the LDS Institute building is?
Richard Novak (01:29:25):
Yes, I can.
Chad Grunander (01:29:27):
And I'm going to approach the witness again if you could describe where it's at on that Exhibit 35.
Richard Novak (01:29:32):
Okay. Can you hear me?
Chad Grunander (01:29:40):
Yes.
Richard Novak (01:29:41):
Okay. So you want the LDS Institute building is what you're asking?
Chad Grunander (01:29:43):
Yes, please.
Richard Novak (01:29:44):
That is this white roof right here is the Institute building.
Chad Grunander (01:29:48):
Is that in basically the center of the exhibit?
Richard Novak (01:29:51):
It's almost exactly in the center of the exhibit.
Chad Grunander (01:29:54):
Okay. And where is the Losee Center located on that?
Richard Novak (01:29:58):
If you were to go down towards the bottom of the photo, there's two different grays of gravel on this roof. This would be the Losee building right here.
Chad Grunander (01:30:05):
Below the Institute building and to the right slightly?
Richard Novak (01:30:08):
Slightly to the right.
Chad Grunander (01:30:09):
Can you point out for the court's benefit where the courtyard is?
Richard Novak (01:30:13):
The courtyard is going to be to the west or left side of the picture there's some grass in between two buildings that have white roofs. There'd be a grass area right there with some steps. That is going to be the courtyard area. And that's going to be down towards the center bottom of the photo.
Chad Grunander (01:30:29):
That's to the left and down?
Richard Novak (01:30:31):
Yes.
Chad Grunander (01:30:31):
Okay. You mentioned the parking structure. Where's the parking structure next to the Institute building?
Richard Novak (01:30:38):
Institute building is right here in the center with the white roof. The parking structure is going to be just to the left of the Institute or west side. There's a road in between it called the Heat Plant Road, which is the road that goes between those two.
Chad Grunander (01:30:50):
And can you point out for the court's benefit how one would enter that or exit that parking structure by way of vehicle or walking?
Richard Novak (01:31:00):
By entering, you can enter and exit right here on the north side of the parking structure. There's an entrance and exit right here that's into level one.
Chad Grunander (01:31:09):
For a vehicle?
Richard Novak (01:31:09):
For vehicles.
Chad Grunander (01:31:10):
And I guess someone could walk in there as well?
Richard Novak (01:31:13):
Yes. If they were to park into this LDS Institute parking lot over here on the north side of that, there's a tunnel that goes underneath the road that still comes out into the parking structure itself. And then they can exit out here on the second level onto Heat Plant Road, which is that road between the LDS Institute building and the parking structure is Heat Plant. They can exit there and go back towards Campus Drive. So you could walk out either up here on the northeast side of the parking structure and cross over to the LDS Institute. Or you can come out here to the southeast side and you can exit there and walk down to the courtyard or behind the LDS Institute building towards the Losee Center.
Chad Grunander (01:31:55):
Okay, thank you. You mentioned Campus Drive. Where's Campus Drive located on that?
Richard Novak (01:32:00):
Campus Drive starts right up here towards the top left of the picture. It's almost like a T. It's the curbed road that comes all the way down in front of the Institute building and the parking structure. And it goes all the way around campus, comes back down to the bottom of the picture where the roundabout is and that would be Campus Drive.
Chad Grunander (01:32:17):
Okay. Are you familiar with where 800 South is in Orem?
Richard Novak (01:32:21):
Yes.
Chad Grunander (01:32:22):
Is that depicted on this exhibit?
Richard Novak (01:32:24):
It is.
Chad Grunander (01:32:25):
Where's that at?
Richard Novak (01:32:25):
It's at the top of this photo. It's going to be the long straight road. That's right here at the top of the photo.
Chad Grunander (01:32:30):
Okay. What about 850 South? Are you familiar with that street?
Richard Novak (01:32:35):
I am. 850 South is going to be towards the right of the photo, top right of it. There's going to be a street that goes east to west. It looks like a horseshoe kind of. It's going to be the road that goes east to west in the middle of that horseshoe would be 850.
Chad Grunander (01:32:50):
Okay. 850 is parallel to 800 South?
Richard Novak (01:32:54):
Yes.
Chad Grunander (01:32:55):
And just below on this photograph?
Richard Novak (01:32:57):
Yes.
Chad Grunander (01:32:57):
Okay. Are you familiar with 600 West?
Richard Novak (01:33:00):
I am.
Chad Grunander (01:33:01):
And where's that street in relationship to 850 South?
Richard Novak (01:33:05):
That would be on the far right side of the horseshoe. Towards the right side of the picture and it's going to be the right side of that horseshoe.
Chad Grunander (01:33:12):
And that runs north and south?
Richard Novak (01:33:14):
North and south.
Chad Grunander (01:33:15):
Okay. What about 720 West? Are you familiar with that street?
Richard Novak (01:33:19):
Yes, I am.
Chad Grunander (01:33:19):
And where's that at?
Richard Novak (01:33:20):
That's going to be to the left side of the horseshoe. That runs north and south and it comes down towards the bottom.
Chad Grunander (01:33:27):
Okay. And finally, 925 South.
Richard Novak (01:33:30):
925 South-
Chad Grunander (01:33:30):
Is that depicted?
Richard Novak (01:33:32):
... it's going to be on the bottom of the horseshoe that connects those other two Wests.
Chad Grunander (01:33:37):
Okay. So just in summary, will you describe the horseshoe and what streets make up that horseshoe?
Richard Novak (01:33:45):
The horseshoe comes up off of 800 South and directly south of that you'll have 850 South, which is going to be running east to west. On the left side is 725 West of the horseshoe. And it comes down into 925 South, which wraps back around to 600 West on the far right side of the horseshoe on the right side of the picture.
Chad Grunander (01:34:07):
Okay. Thank you, Officer. You can be seated. Okay. I'm going to take you back to September 10th, 2025. You mentioned you were on campus. You had a particular assignment.
Richard Novak (01:34:27):
Yes.
Judge Tony F. Graf, Jr. (01:34:28):
Mr. Grunander, I'm sorry. We're just going to pull down the exhibits.
Chad Grunander (01:34:32):
Okay.
Judge Tony F. Graf, Jr. (01:34:33):
Thank you. You may continue.
Chad Grunander (01:34:34):
Would you like me to take this exhibit down, Judge?
Judge Tony F. Graf, Jr. (01:34:37):
Are you referring to it in your line of questioning right now?
Chad Grunander (01:34:39):
Not right now, I'm not.
Judge Tony F. Graf, Jr. (01:34:41):
Okay. Let's go ahead and take it down.
Chad Grunander (01:35:01):
You were securing the Hall of Flags walkway, correct?
Richard Novak (01:35:04):
Yes.
Chad Grunander (01:35:04):
On the south end?
Richard Novak (01:35:05):
Yes.
Chad Grunander (01:35:09):
What was happening that morning, that day at campus at UVU?
Richard Novak (01:35:15):
I came in to do a shift for a special event where we had a guest speaker come in and was going to talk to the students and people around the neighborhood.
Chad Grunander (01:35:24):
Do you know who the guest speaker was?
Richard Novak (01:35:25):
I do.
Chad Grunander (01:35:26):
And who was that?
Richard Novak (01:35:27):
It was Charlie Kirk.
Chad Grunander (01:35:29):
Did you see Mr. Kirk that day?
Richard Novak (01:35:30):
I did.
Chad Grunander (01:35:31):
When did you first see him?
Richard Novak (01:35:32):
When he arrived on campus, just behind the west side of the Hall of Flags, I saw him pull up.
Chad Grunander (01:35:42):
And can someone access the courtyard through that area?
Richard Novak (01:35:46):
Yes, they can.
Chad Grunander (01:35:46):
How so?
Richard Novak (01:35:48):
Where he pulled up underneath the Hall of Flags is a opening to where you could drive a car underneath. There's access right there. You could walk or drive underneath the Hall of Flags.
Chad Grunander (01:35:59):
And you saw him arrive?
Richard Novak (01:36:00):
Yes.
Chad Grunander (01:36:01):
Okay. Describe what you were seeing. What did you observe?
Richard Novak (01:36:09):
On that day, I observed Charlie going back, doing some meet and greet with some people, getting some photos taken. He then came underneath the Hall of Flags and went to his tent. And he was there answering questions and talking to individuals that would ask him questions.
Chad Grunander (01:36:27):
The tent you're referring to, is that the tent that we see when it was set up in the courtyard?
Richard Novak (01:36:32):
Yeah, that white square tent.
Chad Grunander (01:36:33):
The white top?
Richard Novak (01:36:34):
Yes, he was under that.
Chad Grunander (01:36:36):
Fast forward to about 12:20 or so, so a little bit after noon, the noon hour. What happened? What did you see and what did you hear?
Richard Novak (01:36:46):
I heard an individual talking to Charlie and I happened to glance over the edge of the railing about that time. I could see the right side of Charlie's shoulder. Not his whole body because he was underneath the tent, so I could only see probably the right side of his body. He was answering a question, a kid asked him a question, and then I heard a shot fired.
Chad Grunander (01:37:07):
Do you know what time that was?
Richard Novak (01:37:09):
Yes.
Chad Grunander (01:37:10):
What time was that?
Richard Novak (01:37:11):
12:23.
Chad Grunander (01:37:13):
What did you see?
Richard Novak (01:37:15):
At that moment, I saw him lean to the left so I-
Chad Grunander (01:37:19):
When you say him-
Richard Novak (01:37:20):
Charlie.
Chad Grunander (01:37:20):
Charlie?
Richard Novak (01:37:21):
Charlie Kirk. I saw him go to the left because I could no longer see the right side of his body. He went further underneath the tent to the north side of the tent, so left.
Chad Grunander (01:37:30):
Okay. Can you describe the reaction of others that were there?
Richard Novak (01:37:35):
Yeah. Then everybody started getting up and starting to run in more of a chaos kind of situation.
Chad Grunander (01:37:44):
Before you continue, can you describe a little bit, so you mentioned Mr. Kirk was answering questions, talking to individuals.
Richard Novak (01:37:51):
Yes.
Chad Grunander (01:37:52):
Were there others present?
Richard Novak (01:37:53):
Yes.
Chad Grunander (01:37:54):
Any idea about approximately how many? How would you describe it in your terms?
Richard Novak (01:37:58):
In my terms, I'd say when I was up there looking down, I'd say there was several thousand people because you had it on the grass that was jam packed. In the amphitheater sitting on the grass you had people standing on the back up along the cement. You had people that were on the second level, the Sorenson and over by the Woodbury Building there's another level there where a lot of people were standing and watching. So it was pretty packed, several thousand people.
Chad Grunander (01:38:22):
You mentioned you heard something. What did you hear again?
Richard Novak (01:38:25):
I heard a gunshot.
Chad Grunander (01:38:26):
Okay. And you described Mr. Kirk's reaction. Was that simultaneous to hearing the gunshot?
Richard Novak (01:38:34):
Yes, it was.
Chad Grunander (01:38:35):
When he fell to the left?
Richard Novak (01:38:36):
Yes.
Chad Grunander (01:38:37):
Did you see the reaction from the crowd?
Richard Novak (01:38:39):
Yes.
Chad Grunander (01:38:40):
What was that?
Richard Novak (01:38:41):
Everybody got up. A lot of people were screaming, standing up and starting to run in all different directions away from the center of the tent.
Chad Grunander (01:38:49):
Okay. You're a police officer helping to secure the area, correct?
Richard Novak (01:38:53):
Yes.
Chad Grunander (01:38:54):
What did you do?
Richard Novak (01:38:55):
At that moment, I recognized it as gunfire. I left my post, which was right there on the south end of the Hall of Flags. I proceeded to between right where the Fugal and the Hall of Flags meet there's some outside stairs that I was starting to run down. As I was trying to get down to the bottom of the stairs, people were running up, people were laying down on the steps. I'm trying to jump over people to get to the bottom of the stairs so I can help stop an individual that's probably shooting.
Chad Grunander (01:39:24):
What happened next?
Richard Novak (01:39:26):
By the time I got to the bottom of the stairs, I was informed on the radio that we had a shooter in custody. I thought at that moment I was like, "Oh, that was kind of fast." Obviously it was close range probably because we had an individual in custody. Another officer came on and said we had an individual in custody. I decided to, since the threat is gone, now I can assess for anybody that's injured and start looking for any medical needs that's needed at that moment.
(01:39:52)
I started canvassing the area. As I canvassed the area, I was looking for anybody that was injured. I saw a kid on the ground that was on about the second or third tier in the grass next to a wheelchair and he was almost convulsing. I thought he'd maybe been shot. Talked to the dad as I was running over there. He said that he was just having a seizure, that he was fine. He was not injured. And then at that moment I observed that there was no other injuries that I could see at that moment.
Chad Grunander (01:40:19):
Okay. Was your attention drawn to anything else at that time?
Richard Novak (01:40:24):
Yeah. After we got some people cleared away a little bit, I thought I needed to start preserving the scene because we had a crime scene. And with some of my experience and training to that effect of I decided now we need to contain the scene and help preserve as much evidence as we can. So I started pushing people off the grass out of the courtyard area because I knew that's where the crime scene was. As soon as we started pushing those guys out, my chief, Chief Long, that was right next to me, I looked down and saw an empty pistol holder that was sitting just on top of the grass. And at that moment, things had died down just a split second. I realized that the shot I heard was more of a rifle shot and not a pistol shot.
Chad Grunander (01:41:07):
And what causes you to say that?
Richard Novak (01:41:11):
Just from being around firearms through all my trainings, the difference is a handgun is more of a short bang pop sound. With a rifle, you have more of a longer violent bang or crackle sound. It's more of a violent kind of sound. It's longer. That's why I recognized it.
Chad Grunander (01:41:32):
Okay. Does rifle sound louder typically?
Richard Novak (01:41:35):
Yes.
Chad Grunander (01:41:40):
Okay. Going back to when you heard this gunshot, could you tell where it came from as far as direction?
Richard Novak (01:41:48):
Yes. I knew it came from the east of me.
Chad Grunander (01:41:50):
From the east of you? You see this realization comes to your mind. What did you do next?
Richard Novak (01:41:58):
At that moment when I saw the holster, the empty holster, I turned to my chief and I said, "That was a-
Richard Novak (01:42:00):
... the empty holster. I turned to my chief and I said, "That was a rifle shot." And he said, "I agree." And I looked up at that moment; right in the line of sight, I could see the Losee building had a direct line of sight. So, I proceeded to go look at that and see what was going on up there.
Chad Grunander (01:42:16):
Okay. Can you just briefly describe your route to the Losee Center?
Richard Novak (01:42:21):
So, from the courtyard, you can go into the Sorenson Center, and like I said earlier, there was, on level one, there's some elevators or there's stairs. I ran up four flights of stairs, I got to the fourth level of the Losee building, and proceeded to the south of the Losee building. There's some stairs, which is that breezeway between the computer science building and the Losee building, there's some stairs that go up to the top of that. And then so I went to the top of that.
Chad Grunander (01:42:49):
Is that the stairway that you previously described on-
Richard Novak (01:42:52):
Yes, on the outside of the Losee building.
Chad Grunander (01:42:55):
Okay. And it's a public stairway?
Richard Novak (01:42:56):
Yeah.
Chad Grunander (01:42:57):
Okay. Did you make it to the rooftop?
Richard Novak (01:43:00):
I did.
Chad Grunander (01:43:01):
Do you know about what time you got there?
Richard Novak (01:43:05):
I got up there 12:44.
Chad Grunander (01:43:08):
Okay. What did you do when you got on top?
Richard Novak (01:43:12):
When I got on top, I hopped over the guardrail. I noticed that there was an object which was sitting right about 10 or 15 feet in from the other side of the guardrail in the gravel that looked out of place to me.
Chad Grunander (01:43:26):
And in relationship to where you hopped over the guardrail, what direction was that object?
Richard Novak (01:43:32):
To the west of the guardrail.
Chad Grunander (01:43:34):
Okay. And did you recognize the object?
Richard Novak (01:43:38):
I did.
Chad Grunander (01:43:38):
And what was it?
Richard Novak (01:43:39):
It was a red and black screwdriver.
Chad Grunander (01:43:41):
Okay. Did you touch that object?
Richard Novak (01:43:44):
I did not.
Chad Grunander (01:43:45):
Okay. I am going to refer the witness, on your screen, Officer Bagley, to State's Exhibit 3.1. Let me know when you see that.
Richard Novak (01:44:05):
Yes, I see it.
Chad Grunander (01:44:07):
Do you recognize what that is?
Richard Novak (01:44:08):
I do.
Chad Grunander (01:44:09):
And what is that?
Richard Novak (01:44:10):
That's a picture of the screwdriver that I saw that day on top of the rooftop of the Losee building.
Chad Grunander (01:44:14):
Okay. And that's how it appeared on the roof that day?
Richard Novak (01:44:18):
Yes.
Chad Grunander (01:44:19):
Is that a fair and accurate portrayal of the screwdriver you observed and found that day?
Richard Novak (01:44:24):
Yes.
Chad Grunander (01:44:25):
Your Honor, the State offers State's Exhibit 3.1.
Judge Tony F. Graf, Jr. (01:44:28):
Ms. Nester?
Kathy Nestor (01:44:30):
Your Honor, we renew... Excuse me. We renew our standing objection, and object on the grounds that there's no foundation laid as to when the photo was taken or by whom. Thank you.
Chad Grunander (01:44:42):
Same response, Judge. My previous arguments.
Judge Tony F. Graf, Jr. (01:44:45):
And did you state that this was a fair and accurate representation as of September 10th, 2024?
Chad Grunander (01:44:51):
I had said that day. I'll ask it again-
Judge Tony F. Graf, Jr. (01:44:53):
All right.
Chad Grunander (01:44:54):
... to the officer. Officer Bagley, you saw this screwdriver you were describing on September 10th, 2025. Is that correct?
Richard Novak (01:45:01):
Yes.
Chad Grunander (01:45:02):
Is State's Exhibit 3.1 a fair and accurate depiction of that screwdriver that day, September 10th, 2025?
Richard Novak (01:45:10):
Yes.
Judge Tony F. Graf, Jr. (01:45:11):
All right.
Chad Grunander (01:45:12):
State moves to admit.
Judge Tony F. Graf, Jr. (01:45:14):
I will go ahead and admit State's Exhibit 3.1 is admitted based off the firsthand-
Speaker 5 (01:45:19):
[inaudible 01:45:20].
Judge Tony F. Graf, Jr. (01:45:20):
... knowledge of what this image purports to be, and is a fair and accurate representation as this item on that date of September 10th, 2025, and this exhibit may be published.
Chad Grunander (01:45:38):
Your Honor, before we continue to publish it and ask a few more questions, right now might be a good time to take a break.
Judge Tony F. Graf, Jr. (01:45:45):
All right.
Chad Grunander (01:45:45):
If that's okay with the court.
Judge Tony F. Graf, Jr. (01:45:47):
All right. Let's come back at... So, 10:43. Let's go ahead and come back... Around 10:44. Let's come back at 11 o'clock and then we'll resume direct examination. Court is in a brief recess.
Speaker 6 (01:45:56):
All rise.
Court Attendees (01:49:21):
[inaudible 01:46:00].
(01:49:21)
Thanks, you guys, [inaudible 01:48:21].
Chad Grunander (01:49:27):
Nope.
Judge Tony F. Graf, Jr. (01:49:28):
You want to test it from here?
Chad Grunander (01:49:29):
Yes, sir. It should be up now.
Judge Tony F. Graf, Jr. (01:49:30):
Well, this is turned off right now.
Chad Grunander (01:49:36):
The clerk controls it. I just have to publish and they'll decide what monitors it's going to go on.
Court Attendees (01:49:39):
[inaudible 01:49:40].
Chad Grunander (01:50:23):
Yeah, I still want to set up now.
Court Attendees (01:50:26):
[inaudible 01:50:31].
Chad Grunander (01:50:26):
[inaudible 01:51:02].
Judge Tony F. Graf, Jr. (01:52:00):
I'm actually just going to be here for the rest of the day.
(01:52:00)
[inaudible 01:52:23].
Kathy Nestor (01:52:00):
No worries, it's okay.
Court Attendees (01:52:00):
[inaudible 01:52:35].
Kathy Nestor (01:52:00):
Thank you. [inaudible 01:52:45].
Court Attendees (01:52:00):
[inaudible 01:52:47].
Judge Tony F. Graf, Jr. (01:57:23):
How's that? There you go. Okay.
Court Attendees (01:57:23):
[inaudible 01:53:19].
Judge Tony F. Graf, Jr. (01:57:23):
Yeah. Yeah, you're right.
(01:57:45)
Yeah. You're right.
(01:57:45)
What's that? No luck?
Court Attendees (01:57:45):
[inaudible 01:58:08].
Judge Tony F. Graf, Jr. (01:57:45):
[inaudible 01:58:14].
Court Attendees (01:57:45):
[inaudible 01:58:31].
Chad Grunander (01:58:54):
I just wanted to make sure that-
Court Attendees (01:58:55):
[inaudible 01:58:56].
Chad Grunander (01:58:55):
Yeah. I'm sorry, [inaudible 01:59:16].
Speaker 6 (01:59:16):
All rise, court is back in session.
Judge Tony F. Graf, Jr. (02:08:08):
Please be seated. Court is back in session. Before we get started, I want to clarify on the record that, pursuant to the Utah Constitution Section 1... I'm sorry, Article 1, Section 28, where victims and victims' representatives are entitled to be treated with dignity and respect, that if they choose to leave the courtroom, they can come back whenever they wish. They're not prohibited to coming back solely at the break. So, I just wanted to clarify that, in case there was any question about that.
(02:08:53)
In addition, I want to talk about the exhibits as it relates to their admission and publication of the exhibit. So, whenever there is an objection to an exhibit, I would ask that the attorneys are clear specifically what they're objecting to. There's basically three levels of objections that could be objected to. First, the admittance of the exhibit itself, second is the publication of the exhibit to the gallery, and third is the publication which is electronically captured by the media. So, Counsel, I'll leave it to you in regards to what you object to or what you wish to respond to. If no objection to the publication media capture of the exhibit is specifically raised, the court will presume there's no objection. So, being that the monitor was introduced today by the court, I wanted to offer that guidance to the parties in regards to your objections.
(02:10:04)
With that, let's go ahead and return to the witnesses. I do note for the record that the Counsel is present and all the parties are present, and let's go ahead and proceed. Mr. Grunander.
Chad Grunander (02:10:18):
Thank you, Your Honor. We left off, Officer Bagley, with just having admitted State's Exhibit 3.1. I believe the court also granted our motion to publish 3.1. So, we would ask the court to publish that to the gallery, 3.1.
Judge Tony F. Graf, Jr. (02:10:37):
Ms. Nester, any thoughts?
Kathy Nestor (02:10:38):
No, Your Honor.
Judge Tony F. Graf, Jr. (02:10:39):
All right. We'll go ahead and publish Exhibit 3.1.
(02:10:41)
Looks like it's just taking a second to come up on the screen.
Kathy Nestor (02:11:24):
[inaudible 02:11:32].
Judge Tony F. Graf, Jr. (02:11:34):
Let's go ahead and unplug and re-plug in the monitor to see if that brings it back to life to display. All right, it looks like it's noticing a flicker on my screen here.
Chad Grunander (02:12:22):
Mine's up.
Judge Tony F. Graf, Jr. (02:12:23):
All right.
Kathy Nestor (02:12:24):
[inaudible 02:12:34].
Judge Tony F. Graf, Jr. (02:12:35):
Yes. All right. Mr. Grunander.
Chad Grunander (02:12:43):
Thank you, Judge. Officer Bagley, so you testified that this is the screwdriver as you saw it on September 10th, 2025, correct?
Richard Novak (02:12:50):
Yes.
Chad Grunander (02:12:52):
I'm going to... And this was on top of which roof?
Richard Novak (02:12:56):
Losee building.
Chad Grunander (02:12:57):
And in relationship to the entrance that the stairway and when you hopped over the rail to get there, where was it-
Richard Novak (02:13:03):
It was about 10-
Chad Grunander (02:13:04):
... located?
Richard Novak (02:13:04):
About 10 or 15 feet in.
Chad Grunander (02:13:06):
Okay. If I could, Your Honor, bring up State's Exhibit Number 2 that was previously admitted.
Judge Tony F. Graf, Jr. (02:13:14):
All right.
Chad Grunander (02:13:14):
I would like to have Officer Bagley come down from the witness stand and point on that exhibit approximately where this screwdriver was located and describe it for the record.
Judge Tony F. Graf, Jr. (02:13:27):
All right. You may step down. And if you have a microphone for him as well.
Chad Grunander (02:13:32):
I think there was one up there. Oh, here we go. So, if you can describe where you saw that screwdriver, point to that.
Richard Novak (02:13:47):
Yeah, so this is the Losee building right here, the light gray. Here's the guardrail in the center of the picture with the red brick. Just over that, about 10, 15 feet in, about right there.
Chad Grunander (02:13:57):
About right there? Okay. Now, on this exhibit, Exhibit 3.1, there's an evidence tag, yellow number five. Was that present when you found the screwdriver?
Richard Novak (02:14:06):
No.
Chad Grunander (02:14:07):
Okay. So, that was left there by an evidence tech?
Richard Novak (02:14:10):
Yes.
Chad Grunander (02:14:10):
Okay. Thank you. You can take your seat again.
(02:14:27)
Officer, I'm going to direct your attention to your monitor again, and have you look at State's Exhibit 3.2. And if you'll let me know when you see that.
Richard Novak (02:14:42):
Okay, I see it.
Chad Grunander (02:14:43):
Okay. And can you tell us what that is?
Richard Novak (02:14:47):
Yes, that's a picture of the top of the Losee building, looking west.
Chad Grunander (02:14:51):
Okay. And how do you know that that is in fact the top of Losee Center looking west?
Richard Novak (02:14:56):
I can see the landmarks of several buildings that... The Fugal building's on the top left of it. You've got, on the right, is a white roof, which is the Sorensen building on the right side of the picture. There's also the gravel area on top of the Losee building.
Chad Grunander (02:15:10):
Okay. Can you see the courtyard from this exhibit?
Richard Novak (02:15:15):
Yes, a little bit.
Chad Grunander (02:15:17):
What about the tent that was set up that Mr. Kirk was underneath?
Richard Novak (02:15:20):
Yes.
Chad Grunander (02:15:21):
Okay. What about the Hall of Flags?
Richard Novak (02:15:23):
Yes.
Chad Grunander (02:15:29):
Did you mention that this was facing west? What direction are we looking?
Richard Novak (02:15:32):
We're looking west towards Utah Lake.
Chad Grunander (02:15:34):
Okay. Officer, is this a fair and accurate depiction of what you observed on September 10th, 2025 on top of the Losee building?
Richard Novak (02:15:44):
Yes.
Chad Grunander (02:15:46):
State offers State's Exhibit 3.2, Judge.
Judge Tony F. Graf, Jr. (02:15:50):
Ms. Nester?
Kathy Nestor (02:15:52):
Your Honor, I think that we renew our standing objection. There is an evidence tag here, which begs the question that it's not a fair and accurate representation...
Kathy Nestor (02:16:00):
Which begs the question that it's not a fair and accurate representation of how he saw it. And we also don't have any indication about when this picture was taken or by whom. So we object to its admission.
Judge Tony F. Graf, Jr. (02:16:12):
I see. Thank you. Mr. Grunander.
Chad Grunander (02:16:15):
Officer, one more question, Judge. Officer Bagley, apart from the evidence tag, do you see an evidence tag on that photograph?
Richard Novak (02:16:21):
Yes, I do.
Chad Grunander (02:16:22):
Was that present when you were on top of the Losee Center and observed this?
Richard Novak (02:16:27):
That was not.
Chad Grunander (02:16:28):
Okay. Otherwise, is it fair and accurate?
Richard Novak (02:16:30):
Yes.
Chad Grunander (02:16:31):
State moves to admit.
Judge Tony F. Graf, Jr. (02:16:33):
Anything further?
Kathy Nestor (02:16:34):
No, Your Honor.
Judge Tony F. Graf, Jr. (02:16:34):
All right. Thank you. Given that follow-up question noting that the evidence tag, it appears to be number two on State's Exhibit 3.2 was not present, but otherwise it is a fair and accurate representation as stated by the witness to State's Exhibit 3.2. The court will admit it into evidence and it may be published at the discretion of, or at the request of, counsel.
Chad Grunander (02:17:04):
Your Honor, the state would move to publish it.
Judge Tony F. Graf, Jr. (02:17:06):
All right.
Chad Grunander (02:17:15):
Officer Bagley, will you describe what it is that we're looking at here?
Richard Novak (02:17:21):
Yes. On the top of the photo, you got the mountain range on the back. That's going to be looking west. You also have Utah Lake, which is towards the top of it. As you come down towards the center on the top, you've got a pond, which is the ponds over at Utah Valley University. I've come down from that from where the water meets that red brick part, more towards the center is the Hall of Flags. And just below that, where you can see the grass and the white tent, is where Charlie Kirk was sitting looking west. And we're on top of the Losee building.
Chad Grunander (02:17:52):
And is this depicting a particular corner of the Losee rooftop?
Richard Novak (02:17:56):
Yes, it is.
Chad Grunander (02:17:57):
And this is the top rooftop?
Richard Novak (02:17:59):
Yes.
Chad Grunander (02:18:01):
Is it the same level where we observed the atrium that's to the north?
Richard Novak (02:18:05):
The atrium's up just a little bit higher. So this is the top level of four.
Chad Grunander (02:18:10):
Level four. Okay. And what area of the rooftop are we looking at here?
Richard Novak (02:18:15):
You're looking-
Chad Grunander (02:18:15):
As far as the gravel.
Richard Novak (02:18:17):
Southwest side of the Losee building.
Chad Grunander (02:18:19):
Southwest side. Okay. Is there a line of sight down into the courtyard?
Richard Novak (02:18:25):
Yes, there is.
Chad Grunander (02:18:25):
In that area? Okay. What else do you observe on this exhibit that's significant to you, Officer?
Richard Novak (02:18:33):
There's some disturbance in the gravel and around in the area where the yellow marker is, there was some disturbance that caught my eye there.
Chad Grunander (02:18:42):
Okay. And does this photograph do it justice?
Richard Novak (02:18:49):
No.
Chad Grunander (02:18:50):
And how so?
Richard Novak (02:18:52):
You can't really see the impression I saw the time of when I was up there on that day. I saw a distinct impression in the gravel and this does not show that.
Chad Grunander (02:19:02):
Okay. So you could see more with the naked eye?
Richard Novak (02:19:04):
Yes.
Chad Grunander (02:19:05):
Okay. I'm going to refer the witness to State's Exhibit 4 on your monitor there. And let me know when you can see that.
Richard Novak (02:19:24):
Okay. I can see it.
Chad Grunander (02:19:27):
And do you recognize that exhibit?
Richard Novak (02:19:29):
I do.
Chad Grunander (02:19:30):
And what is that?
Richard Novak (02:19:31):
This is a nighttime view of that same photo. That was just last same view looking west and I can see the disturbance in the gravel.
Chad Grunander (02:19:41):
And what tells you that this is the same photograph as the last one, as Exhibit 3.2?
Richard Novak (02:19:48):
You can see the Hall of Flags that's directly almost the top of the photo. In the middle, you got the Hall of Flags. You can see the tent in the grass area, the direct line of sight with the Sorenson building, and I'm on top of the gravel of the Losee building southwest side.
Chad Grunander (02:20:03):
Is there also an LDS temple that's depicted in that photograph?
Richard Novak (02:20:06):
There is. It's going to be on the top left of the photo. It's lit up.
Chad Grunander (02:20:09):
Okay. Do you know who took this photo?
Richard Novak (02:20:15):
I do.
Chad Grunander (02:20:16):
And who took this photo?
Richard Novak (02:20:17):
Melissa Richards.
Chad Grunander (02:20:19):
And who is Melissa Richards?
Richard Novak (02:20:22):
She's the lead senior forensic for the State of Utah Examiner.
Chad Grunander (02:20:30):
And how do you know that she took this photograph?
Richard Novak (02:20:35):
I spoke to her.
Chad Grunander (02:20:36):
Okay.
Kathy Nestor (02:20:39):
Your Honor, we just renew the objection to hearsay that's in our standing objection.
Judge Tony F. Graf, Jr. (02:20:45):
Thank you. Mr. Grunander, do you want to respond to the objection about hearsay?
Chad Grunander (02:20:50):
Yes, Judge. Under rule 1102, hearsay is admissible to establish the foundation for, or the authenticity of, any exhibit. That's found in 1102 sub B sub 3. I would also point out for the court that under rule 1101, which is the applicability of the rules, in subsection C1, the determination of questions of fact preliminary to admissibility of evidence when it's determined under rule 104, which are preliminary questions, the rules of evidence do not apply. 104 speaks directly to providing lain foundation for an exhibit so even at trial, hearsay is admissible to establish the foundation of an exhibit. I would also just point the court to State v. Griffin. This is a 2016 Utah Supreme Court case. The citation is 384 Pacific Third 186, which stands for hearsay evidence is admissible to establish the foundation of an exhibit even at trial. And we're at a preliminary hearing today, Judge.
Judge Tony F. Graf, Jr. (02:22:05):
All right. Anything further, Ms. Nester, before I issue a ruling?
Kathy Nestor (02:22:12):
No, Your Honor.
Judge Tony F. Graf, Jr. (02:22:12):
All right. I'm going to overrule the objection to hearsay. I note the standing objection by defense. I also note rule 1102 and I also look to Article 1, Section 12 of the Utah Constitution, which states nothing in this constitution shall preclude the use of reliable hearsay evidence as defined by statute or rule, in whole or in part, at any preliminary examination to determine probable cause or at any pretrial proceeding with respect to release of defendant, if appropriate discovery is allowed as defined by statute or rule. For those reasons, I'm going to overrule the objection and, as it relates to reliable hearsay in this instance, you may proceed.
Chad Grunander (02:22:59):
Officer Bagley, did you ask Ms. Richards if this was a fair and accurate depiction of this scene on the Losee building on the night of September 10th, 2025?
Richard Novak (02:23:10):
Yes.
Chad Grunander (02:23:10):
And what did she tell you?
Richard Novak (02:23:11):
She said it was.
Chad Grunander (02:23:13):
Okay. Your Honor, the State offers State's Exhibit 4.
Judge Tony F. Graf, Jr. (02:23:17):
Ms. Nester?
Kathy Nestor (02:23:18):
Just object to relying on what Ms. Richards told him in terms of creating the foundation and refer back to our standing objection.
Chad Grunander (02:23:28):
The state will submit it.
Judge Tony F. Graf, Jr. (02:23:30):
All right. Well, as I look at State's Exhibit 4, and again, I'm just looking at it before me. It said it was a fair and accurate representation. There's a notation. I mean, in previous exhibits, there's a marker, exhibit marker, and I see two, but it also appears to be other artifacts on this image that I haven't heard any testimony about. And so-
Chad Grunander (02:23:54):
I will follow up, Judge.
Judge Tony F. Graf, Jr. (02:23:56):
All right.
Chad Grunander (02:23:57):
Officer Bagley, do you see an evidence tag in that exhibit?
Richard Novak (02:24:01):
Yes, I do. A number two.
Chad Grunander (02:24:02):
A number two and that's yellow and black?
Richard Novak (02:24:04):
Yes.
Chad Grunander (02:24:05):
Do you see other evidence markers that are red in color?
Richard Novak (02:24:09):
Yes. To me, they're orange, but they're triangular shaped.
Chad Grunander (02:24:12):
Okay. Were those markers the evidence tag two, as well as the orange or red markers, present when you observed that scene that day?
Richard Novak (02:24:23):
No.
Chad Grunander (02:24:24):
Okay. Were they present however, when Ms. Richards took this photograph?
Richard Novak (02:24:30):
Yes.
Chad Grunander (02:24:31):
And she indicated to you that that is a fair and accurate representation of what she observed that night?
Richard Novak (02:24:37):
Yes.
Chad Grunander (02:24:37):
State would move to admit Exhibit 4, Judge.
Judge Tony F. Graf, Jr. (02:24:40):
Ms. Nester?
Kathy Nestor (02:24:42):
Objections, Your Honor.
Judge Tony F. Graf, Jr. (02:24:44):
Thank you, Ms. Nester. I'm going to go ahead and overrule the objection, noting that the marker, evidence marker, as well as the red or orange markers, I can't tell which color it is. It was not present originally. And with those included information, State's Exhibit 4 is admitted into evidence and may be published.
Chad Grunander (02:25:07):
Thank you. State would move to publish that.
Judge Tony F. Graf, Jr. (02:25:10):
All right.
Chad Grunander (02:25:14):
And I would ask for the witness to come down to explain the exhibit.
Judge Tony F. Graf, Jr. (02:25:20):
All right. Officer, if you'd like to step down, use the microphone and, as previously noted, describe when you're describing something on the image, where it is located on the image for the benefit of our recording.
Chad Grunander (02:25:37):
So officer, will you describe for the court what it is that you're looking at?
Richard Novak (02:25:40):
So what I'm looking at is I'm on the top of the Losee building, which is where the gravel is on towards the bottom center. I'm looking west towards the tent, which is in the upper center that you got a white tent. You can see the grass down there in the amphitheater. You got the Hall of Flags that's more towards the top center and behind that you've got I-15, but what I'm looking at is in the disturbance of the gravel is what I saw that day.
Chad Grunander (02:26:09):
Okay. And can you describe for the record that disturbance?
Richard Novak (02:26:12):
To me, when I got up there and I could see this disturbance of gravel, to me, it looks like a sniper pad, a person that has been laying in a prone position and you've got markings of elbows, knees, and feet to where somebody was in the line of sight of where Charlie's tent was.
Chad Grunander (02:26:32):
Thank you. And if we could again, if we could publish State's Exhibit number 2. You recognize that, right, Officer?
Richard Novak (02:26:48):
Yes, I do.
Chad Grunander (02:26:48):
Where on the Losee rooftop did you observe this disturbance in the gravel? Can you point to that?
Richard Novak (02:26:55):
If you go to the center of the picture in the darker gray part of it on the left side, so the south side of the Losee building, it would be right in the line of sight of the Charlie Kirk tent that's straight in front of it on the southwest side of the roof.
Chad Grunander (02:27:10):
Thank you. You can take your seat. And finally, I would direct the witness's attention to State's Exhibit number 5 on the monitor. Let me know when that's there.
Richard Novak (02:27:44):
It is.
Chad Grunander (02:27:44):
It is there?
Richard Novak (02:27:46):
Yes.
Chad Grunander (02:27:46):
Do you recognize that exhibit?
Richard Novak (02:27:47):
I do.
Chad Grunander (02:27:48):
And what is that?
Richard Novak (02:27:49):
This is going to be a picture of the side profile of that last photo we looked at, with some red or orange markers and a number two, with also a tape that's there on top of the Losee building.
Chad Grunander (02:28:03):
What was that tape that you said?
Richard Novak (02:28:05):
There's a measuring tape, it looks like.
Chad Grunander (02:28:07):
Okay. Are you able to tell which direction the photograph is, the photographer was facing?
Richard Novak (02:28:12):
Yes.
Chad Grunander (02:28:13):
And what direction is that?
Richard Novak (02:28:14):
It's facing south.
Chad Grunander (02:28:17):
This is a nighttime photograph, correct?
Richard Novak (02:28:19):
Yes.
Chad Grunander (02:28:23):
Do you know who took this picture?
Richard Novak (02:28:25):
I do.
Chad Grunander (02:28:25):
And who took the picture?
Richard Novak (02:28:26):
It was Melissa Richards.
Chad Grunander (02:28:28):
The same individual that you spoke about before?
Richard Novak (02:28:30):
Yes.
Chad Grunander (02:28:31):
Did you ask her whether this is a fair and accurate depiction of what she observed that night?
Richard Novak (02:28:36):
Yes.
Chad Grunander (02:28:37):
What did she say?
Richard Novak (02:28:38):
She said it was.
Chad Grunander (02:28:39):
With respect to what you observed that day, apart from the evidence tag, the yellow tag as well as the orange or red markers, is this a fair and accurate depiction of what you observed?
Richard Novak (02:28:51):
Yes.
Chad Grunander (02:28:52):
What's different about what you observed as far as what's on the photograph, the previous exhibit, compared to this?
Richard Novak (02:29:00):
You can see more of the length of an individual. So you can see that more of there's two elbows, two knee areas, plus also towards the far right of the photo is also a marker where somebody laid a gun down.
Chad Grunander (02:29:14):
Okay.
Richard Novak (02:29:15):
It's like a prone position.
Chad Grunander (02:29:17):
Your Honor, pursuant to rule 1102 as well as other authority that's been cited today, the state offers State's Exhibit 5 into evidence.
Kathy Nestor (02:29:24):
Your Honor, we renew all the same objections we made to Exhibit 4.
Judge Tony F. Graf, Jr. (02:29:28):
Thank you. Given the foundation that has been laid and that the witness has testified that this is a fair and accurate representation of the scene, noting the tape as well as the markers in that, State's Exhibit 5 is admitted into evidence and may be published.
Chad Grunander (02:29:51):
State moves to publish Exhibit 5, Judge.
Judge Tony F. Graf, Jr. (02:29:53):
All right.
Chad Grunander (02:30:11):
Before turning to what you did next on that day, taking you back to the daytime of September 10th, 2025, did you secure the rooftop of the Losee building that day?
Richard Novak (02:30:22):
Yes, I did.
Chad Grunander (02:30:24):
And how did you do that?
Richard Novak (02:30:25):
I put yellow police crime scene tape around the portion so nobody else would disturb that area.
Chad Grunander (02:30:31):
And when you say that area, what areas are you talking about?
Richard Novak (02:30:34):
I'm talking about the roof where it was the southwest side of the roof where I found the disturbed gravel, where it looked like somebody had been proned out in the line of sight of the tent, somewhere there.
Chad Grunander (02:30:46):
Did you secure the area as far as any of the entrance area up onto the rooftop with police tape?
Richard Novak (02:30:52):
Yeah. So then where that natural guardrail is, that was the other barrier where they were advised not to go any further from there, other than police officers.
Chad Grunander (02:31:00):
Okay. If we could go back to State's Exhibit number 2. If we were to zoom in on this photograph, are you able to see the police tape that you put up on the rooftop of the Losee Center, Officer?
Richard Novak (02:31:17):
Yes, you would be able to.
Chad Grunander (02:31:20):
Kimberly, if we can zoom in. Officer, I'm going to have you come down and describe for the court where you put that police tape up to secure that scene, the rooftop area on the southwest corner of the rooftop.
Richard Novak (02:31:55):
So this is the top of the Losee building. You got your two different grays. The southwest is towards the top, center of the picture. You can see some yellow tape that spans from over here on the far right side of the picture by these black pipes, goes around a silver vent, comes back down around to the corner of that silver to keep everybody out of that area where that prone position was at.
Chad Grunander (02:32:20):
Okay. On that photograph, are you able to see where you put the tape up as far as the access way to that roof near the stairway?
Richard Novak (02:32:28):
So it was right here, actually, this natural barrier where you have to climb over the guardrail. So this is the other barrier that I had set up.
Chad Grunander (02:32:35):
And you put police tape on that?
Richard Novak (02:32:36):
Yeah.
Chad Grunander (02:32:37):
Okay. Did you eventually leave that area?
Richard Novak (02:32:41):
I did.
Chad Grunander (02:32:43):
Do you recall about what time you left that area?
Richard Novak (02:32:47):
Oh, I have it in my notes. It would be when I left that area, it was almost one o'clock, about 1:03, 1:01.
Chad Grunander (02:32:55):
Okay. Before leaving, did you leave the scene with anyone?
Richard Novak (02:32:59):
I did not leave the scene. Or did I leave the scene to somebody? Yes.
Chad Grunander (02:33:02):
Just to someone else?
Richard Novak (02:33:03):
Yes.
Chad Grunander (02:33:04):
And who was that?
Richard Novak (02:33:05):
It was a county deputy, a female.
Chad Grunander (02:33:07):
Did you provide instructions to her?
Richard Novak (02:33:08):
I did.
Chad Grunander (02:33:09):
And what were those instructions?
Richard Novak (02:33:10):
I advised her not to let anybody inside the crime scene without being a police officer or an investigator.
Chad Grunander (02:33:16):
Okay. Thank you. You can take your seat again. Officer, upon seeing this disturbance in the gravel, you've described what it looked like to you?
Richard Novak (02:33:36):
Yes.
Chad Grunander (02:33:37):
Someone lying down in a prone position, correct?
Richard Novak (02:33:40):
Yes.
Chad Grunander (02:33:40):
What did you do next?
Richard Novak (02:33:44):
So when I got to the top of the Losee building during that day, I noticed the screwdriver kept going to the edge, found that prone position. At that moment, I realized because it was the direct line of sight, plus the disturbance in the gravel where I could see somebody had laid down in a prone position or a sniper position, and asked dispatch to get on the... Then I realized that we probably didn't have our shooter in custody from that moment. I asked dispatch to get on the camera system and to see if anybody was on top of the Losee building during the time of the incident.
Chad Grunander (02:34:17):
Were you advised of anything?
Richard Novak (02:34:19):
I was. Dispatch came back and advised me that there was a male individual on top of the roof that was there at the time of the shooting.
Chad Grunander (02:34:27):
Did they describe what his movements were?
Richard Novak (02:34:29):
They did. They stated that he ran to the edge, dropped down, crawled, got in a prone position.
Chad Grunander (02:34:35):
I'm going to stop you right there. Ran to the edge. What direction and what edge?
Richard Novak (02:34:40):
Running west and southwest of the Losee building, so ran towards the tent of where Charlie Kirk was so they could get a line of sight. And then the individual stood up after the shooting and ran northeast on the top of the Losee building.
Chad Grunander (02:34:58):
Okay. You mentioned that this individual on the video dropped off off the edge. Did you get that?
Richard Novak (02:35:07):
I haven't mentioned that.
Chad Grunander (02:35:07):
Oh, what else was described to you?
Richard Novak (02:35:11):
Then, well, at that moment, so I knew that there was possibly a shooter on the run.
Kathy Nestor (02:35:16):
Your Honor, can we just have a continuing objection to all the hearsay that's being testified to here?
Chad Grunander (02:35:22):
And Judge, my response to that was I'm not actually offering this for the truth of the matter asserted at this point, simply for the effect on the hear. So I'm not offering what's been described in the video as substantive evidence.
Judge Tony F. Graf, Jr. (02:35:36):
All right. Ms. Nester, as with that clarification, any thoughts?
Kathy Nestor (02:35:42):
I'll just stand on the objection. I don't think... I mean, he's clearly offering it for the truth because he's asking him to describe the route of the individual and it's based on what other people told him. So if he wants to circle back to it after he's put the video in, I mean, we could do that, but right now I still think it's inappropriate hearsay, Your Honor.
Judge Tony F. Graf, Jr. (02:36:01):
All right. Anything further, Mr. Grunander?
Chad Grunander (02:36:03):
I'll submit it to the court.
Judge Tony F. Graf, Jr. (02:36:05):
All right. So as the magistrate, as this is not to a jury, it's to myself as a magistrate. I am not accepting that statement for the truth of the matter asserted simply for what has been stated. So I'm specifically making that finding as I'm receiving this evidence, and I'm not accepting it for the truth of the matter asserted only as represented by Mr. Grunander. And with that, the objection is overruled. Mr. Grunander, you may proceed.
Chad Grunander (02:36:34):
Thank you, Judge. So you mentioned you were provided with information that an individual was running north on the Losee rooftop, correct?
Richard Novak (02:36:43):
Yes.
Chad Grunander (02:36:44):
What else was described to you?
Richard Novak (02:36:46):
At that moment, I actually... I knew I had responding units coming into the scene. I advised other officers that I needed the Losee building secured, searched because I didn't know exactly what way that other than he ran north. That moment I went down to the police department, which is just down the stairwell, and looked at the video myself.
Chad Grunander (02:37:09):
Where is the police department located?
Richard Novak (02:37:11):
It's in the Gunther Trade Building, just directly to the south of the Losee building.
Chad Grunander (02:37:16):
Okay.
Richard Novak (02:37:16):
So where I described those outside stairs, the building to the left of that or south would be the Gunther Trade Building.
Chad Grunander (02:37:23):
Okay. On what level is the police department?
Richard Novak (02:37:26):
It's level three.
Chad Grunander (02:37:27):
Level three. Okay. Upon arriving at the police department, what did you do next then?
Richard Novak (02:37:31):
I then look at the footage to verify for myself exactly what expired on that moment where I could see an individual run to the edge, get up, and then run off and then drop off the northeast side of the building of the Losee building.
Chad Grunander (02:37:46):
Okay. Having viewed that, what did you do next?
Richard Novak (02:37:53):
At that moment, I realized I had a bigger crime scene that I needed to contain and preserve for evidence. At that moment, I went and grabbed some more crime scene tape and I responded to the northeast side of the building and secured an area where I saw impressions of the shoe print inside the grass and also up above on that northeast side of the building. I could see on the cement where something had scuffed there and then dropped down to the shoe imprint and then finished going northeast.
Chad Grunander (02:38:25):
Okay. If I can take the witness back to State's Exhibit 2. You mentioned seeing an individual drop down. Could you come down and point that area out to the court?
Richard Novak (02:38:43):
Yes. This is the Losee building again on the top right center of the photo. Southwest side is where the individual was laying down prone and the line of sight came behind the-
Chad Grunander (02:39:12):
Atrium?
Richard Novak (02:39:12):
... atrium. Came behind that on the west side of it, came up to the north side of the Losee building on the east, on this white square piece on the far right of the picture. And then he dropped off on the east side of the Losee building into the grass down here below.
Chad Grunander (02:39:28):
So the northeast corner?
Richard Novak (02:39:28):
Yes, northeast corner.
Chad Grunander (02:39:30):
You mentioned you observed something on the grass?
Richard Novak (02:39:32):
I did. I saw a shoe imprint that was embedded pretty deep right there next to where he dropped off.
Chad Grunander (02:39:38):
And this is all footage that you personally observed on the surveillance video?
Richard Novak (02:39:42):
Yes.
Chad Grunander (02:39:42):
Okay. When you got to the scene, describe, in as best detail as you can, what you saw on the grass then.
Richard Novak (02:39:49):
So when I got to the scene, I could see that there was a shoe imprint there. When I looked up onto the cement from the roof, I could see some scratching or rub marks from the top of the roof that was not there. I could see that looked abnormal. I then decided to put crime scene tape around the whole area in case there was more evidence that needed to be preserved.
Chad Grunander (02:40:12):
On that Exhibit number 2, do you see where you placed the crime scene tape?
Richard Novak (02:40:16):
Yes, I do.
Chad Grunander (02:40:17):
And where is that? Can you describe that to the court?
Richard Novak (02:40:19):
It's going to be on the far right in the center of the picture. You can see the yellow tape. I came around trees, came up further out of picture, some more trees. I came down all the way down to the backside of the LDS Institute building, where there's a sidewalk to block everybody out of coming up that way.
Chad Grunander (02:40:35):
Okay. Did you at one point leave the scene?
Richard Novak (02:40:37):
I did.
Chad Grunander (02:40:38):
Did you release the scene to anyone?
Richard Novak (02:40:40):
Yes, I did.
Chad Grunander (02:40:41):
And who was that?
Richard Novak (02:40:42):
There was two Payson police officers that were standing there.
Chad Grunander (02:40:44):
Okay. Were they in uniform?
Richard Novak (02:40:46):
They were.
Chad Grunander (02:40:47):
Did you provide them with any instructions?
Richard Novak (02:40:49):
I advised them not to let anybody inside the crime scene other than law enforcement or investigators.
Chad Grunander (02:40:53):
Okay. You can take your seat again, Officer Bagley. You've talked about the disturbance in the gravel that was observed on the Losee building.
Richard Novak (02:41:17):
Yes.
Chad Grunander (02:41:17):
Did you walk through that disturbance in the gravel?
Richard Novak (02:41:22):
I did not.
Chad Grunander (02:41:23):
Did you otherwise touch it in any way?
Richard Novak (02:41:25):
No.
Chad Grunander (02:41:26):
With respect to the shoe print that you observed on the grass on the northeast lawn area below the Losee building, did you walk through that?
Richard Novak (02:41:37):
I did not.
Chad Grunander (02:41:38):
Did you otherwise disturb that?
Richard Novak (02:41:39):
No.
Chad Grunander (02:41:49):
Officer Bagley, what did you do next?
Richard Novak (02:41:52):
From that moment I then released the scene. I went down to the Fugal building and knew that where the incident command center was at, so I could relay information that I'd found to responding units and people in charge.
Chad Grunander (02:42:05):
If I can have just a moment, Judge.
Judge Tony F. Graf, Jr. (02:42:10):
You may.
Chad Grunander (02:42:15):
State will pass the witness, Judge.
Judge Tony F. Graf, Jr. (02:42:17):
All right. Ms. Nester? And Ms. Nester, before you begin, what time would you like to break for lunch? I don't want to interrupt a line of questioning and so I just want to make sure that we're just taking a look at the clock, and when you feel is a good time to break roughly in that 12:00, 12:10 range.
Kathy Nestor (02:42:51):
I will aim for that, Your Honor. That shouldn't be a problem.
Judge Tony F. Graf, Jr. (02:42:53):
Okay. Thank you. You may proceed.
Kathy Nestor (02:42:56):
May it please the court?
Judge Tony F. Graf, Jr. (02:42:57):
Yes.
Kathy Nestor (02:42:58):
Good afternoon or morning still.
Richard Novak (02:43:00):
Good morning.
Kathy Nestor (02:43:01):
Officer Bagley, my name is Kathy Nester. I'm one of the attorneys representing Mr. Robinson today and I do have some questions for you.
Richard Novak (02:43:07):
Okay.
Kathy Nestor (02:43:08):
So you mentioned that you checked in around 11:00 AM on the day of the shooting, is that right?
Richard Novak (02:43:14):
Yes.
Kathy Nestor (02:43:16):
Did you know in advance there was going to be this event on campus?
Richard Novak (02:43:21):
I did. I signed up for an overtime shift, so yes. For the special event, I signed up for the overtime shift.
Kathy Nestor (02:43:27):
Got it. And so did you attend any type of debrief or briefing or meeting to prepare for the security of this event?
Richard Novak (02:43:36):
I did not because that morning when I got there, we had individuals on top of the Hall of Flags. So when I walked in, I just checked on, was going to get my uniform on. The Chief Long got a text or an email or phone call stating that there was people on top of the Hall of Flags throwing stuff down to the tent. Therefore, he sent the two officers that were on duty down to secure the area. I got dressed and then came back and then went to the Hall of Flags to secure that area.
Kathy Nestor (02:44:04):
So you never attended any kind of, I'll just use the word debrief or meeting to talk about what the officers on scene were going to do that day to keep everybody safe?
Richard Novak (02:44:16):
No, not that morning.
Kathy Nestor (02:44:16):
Do you know if there was such a meeting?
Richard Novak (02:44:18):
I don't know because when I got there, it was starting to... People were throwing stuff down on the tent.
Kathy Nestor (02:44:22):
And do you know how many UVU officers you guys employ normally?
Richard Novak (02:44:31):
Employ, there was 15.
Kathy Nestor (02:44:33):
And do you know how many were assigned to cover that event that day?
Richard Novak (02:44:36):
That were assigned to cover it? There was six of us that were, there was patrol one and then five others that were there with the chief.
Kathy Nestor (02:44:42):
Did you all have an idea there were going to be thousands and thousands of people there or was that a surprise to you?
Richard Novak (02:44:49):
Had an idea.
Kathy Nestor (02:44:50):
And you only had five officers?
Richard Novak (02:44:51):
Six, yes.
Kathy Nestor (02:44:53):
Six. I'm sorry. I'm counting you, I was thinking.
Richard Novak (02:44:56):
Yes.
Kathy Nestor (02:44:57):
And of those six officers, are you all armed? Do you carry weapons?
Richard Novak (02:45:03):
Yes.
Kathy Nestor (02:45:04):
What type of weapons do you carry?
Richard Novak (02:45:06):
Glock pistols.
Kathy Nestor (02:45:07):
Okay. And was there any use on campus of, I think they're called magnetometers, but the machines you walk through at TSA and the airport, where it checks to see if you're carrying anything metal, what we all had to go through to get in the courtroom, were there any machines like that set up or being used on campus that day?
Richard Novak (02:45:30):
No.
Kathy Nestor (02:45:32):
And as far as you know, were there any drones that were flying above campus that day?
Richard Novak (02:45:39):
Not that I know of.
Kathy Nestor (02:45:43):
And did anyone ever talk to you about covering anything near or on top of or in the Losee building? Were you ever assigned that area before the shooting?
Richard Novak (02:45:53):
No.
Kathy Nestor (02:45:54):
Do you know who was?
Richard Novak (02:45:55):
I don't.
Kathy Nestor (02:45:58):
And when you got up to the roof, that afternoon, was anybody around that was law enforcement?
Richard Novak (02:46:05):
No.
Kathy Nestor (02:46:06):
Nobody on the roof?
Richard Novak (02:46:07):
No.
Kathy Nestor (02:46:07):
Nobody on the stairway?
Richard Novak (02:46:09):
Nope.
Kathy Nestor (02:46:10):
Nobody on the walkway?
Richard Novak (02:46:11):
Nope.
Kathy Nestor (02:46:12):
Okay. In the state of Utah, is a campus a gun-free zone? Are students allowed to have guns on campus?
Richard Novak (02:46:25):
It's an open carry state, so yes.
Kathy Nestor (02:46:30):
And did you see anybody that was armed that day other than law enforcement?
Richard Novak (02:46:35):
I did not see.
Kathy Nestor (02:46:45):
Were you aware of whether Mr. Kirk had his own security team present there with him?
Richard Novak (02:46:51):
Yes.
Kathy Nestor (02:46:52):
Did you communicate with any of those people?
Richard Novak (02:46:55):
I saw one of the individuals that was on top of the Hall of Flags right next to me, yes.
Kathy Nestor (02:46:58):
Okay. And that was before the shooting?
Richard Novak (02:47:00):
Yes. And then I saw several down in the crowds and down by him, yes.
Kathy Nestor (02:47:03):
And were you aware of whether that person was armed either?
Richard Novak (02:47:07):
I was aware he was armed.
Kathy Nestor (02:47:08):
Okay. Was there any other law enforcement agency besides Mr. Kirk's private security team and your six officers, including you, that were covering that event that day? In other words, did you have any Provo police or Orem police or anyone that you knew of or federal agencies?
Richard Novak (02:47:28):
I don't know.
Kathy Nestor (02:47:29):
You never saw any that day?
Richard Novak (02:47:31):
No, not until the response came in.
Kathy Nestor (02:47:34):
And you did mention, I think I heard you just a few minutes ago testify you turned over the scene on the roof to a woman who was a deputy sheriff, right?
Richard Novak (02:47:41):
Yes.
Kathy Nestor (02:47:42):
And that you turned over the scene where the individual dropped off to, I believe you said, was it Orem Police?
Richard Novak (02:47:49):
Payson.
Kathy Nestor (02:47:50):
Payson Police. Thank you. Those people weren't there until after the shooting, right? They were part of just a response of everybody in the area?
Richard Novak (02:47:56):
Correct.
Kathy Nestor (02:47:57):
Okay. Did you receive any type of briefing materials, written materials prior to the event that talked about who would be covering what or anything like that?
Richard Novak (02:48:12):
No, not that morning. Like I said, it started getting hectic, so we were trying to get down there to secure the area and push people away from the top of the tent.
Kathy Nestor (02:48:19):
Now, when this event was over, you prepared a report, is that right?
Richard Novak (02:48:26):
I did.
Kathy Nestor (02:48:28):
And in the report it covers a lot of what you testified to with Mr. Grunander, doesn't it?
Richard Novak (02:48:32):
Yes.
Kathy Nestor (02:48:33):
And I think you said you attended what, 600 hours of post training?
Richard Novak (02:48:37):
It's around 600 hours, yes.
Kathy Nestor (02:48:38):
And I'm sure somewhere in that training you were taught the importance of your police report?
Richard Novak (02:48:43):
Yes.
Kathy Nestor (02:48:44):
And how it will be relied on years later to recreate events like it's being done right now. And so you know it's really important to be as accurate as possible in your report?
Richard Novak (02:48:54):
Yep.
Kathy Nestor (02:48:55):
Can we put up Bagley 1? Can we switch it over to the defense table please? Thank you so much and show it only to the witness. This is-
Chad Grunander (02:49:09):
State's Exhibit 1.
Kathy Nestor (02:49:10):
It's his police report. Do you want a copy?
Richard Novak (02:49:22):
All right.
Kathy Nestor (02:49:22):
Do you see that report in front of you?
Richard Novak (02:49:24):
I do.
Kathy Nestor (02:49:25):
And is that the report that you prepared or did you prepare this report?
Richard Novak (02:49:30):
I did a supplement on it. I didn't prepare the report because the incident was a big agency assist, so obviously it says it has all the responding officers to that effect.
Kathy Nestor (02:49:43):
Oh, we need to go to the page. Thank you for pointing that out. Can we please move to page three or five maybe? Let me look and see.
Kathy Nestor (02:50:09):
All right. Now let me ask the question again. Sorry, we just had the cover sheet up. Is that your report?
Richard Novak (02:50:16):
Yes, this is.
Kathy Nestor (02:50:17):
All right. And did you prepare that?
Richard Novak (02:50:18):
I did.
Kathy Nestor (02:50:20):
When did you prepare this report?
Richard Novak (02:50:22):
It looks like it was done the next day. Either that day or the next day, because I wanted to make sure that I had it done where everything was fresh on my mind.
Kathy Nestor (02:50:33):
And do you have a copy of it in front of you?
Richard Novak (02:50:34):
I do, as a matter of fact.
Kathy Nestor (02:50:35):
May I just step in and just make sure that it's the same one? May I approach, Your Honor?
Judge Tony F. Graf, Jr. (02:50:54):
You may.
Richard Novak (02:50:56):
Nope, you're good.
Kathy Nestor (02:50:57):
We got to ask this now. Did you use AI to help you prepare your report?
Richard Novak (02:51:00):
I did not.
Kathy Nestor (02:51:01):
Okay, good. When you prepared your report, you referenced when you first heard the shot, don't you?
Richard Novak (02:51:09):
Yes.
Kathy Nestor (02:51:10):
And what is the time that you say that you heard the shot?
Richard Novak (02:51:13):
12:23.
Kathy Nestor (02:51:15):
Right. And when you wrote that report, you did not state in your report the direction you heard that shot come from, did you?
Richard Novak (02:51:24):
No, apparently not.
Kathy Nestor (02:51:26):
And take your time and look at the whole report and see if there's anywhere in there where you ever mentioned that it came from the east or to your right.
Richard Novak (02:51:47):
I don't see a direction.
Kathy Nestor (02:51:49):
Okay. And you also, I believe, in your report, you also don't state whether or not ... You don't mention anything about thinking it came from the Losie building or anything like that, right?
Richard Novak (02:52:04):
Later on when I saw the empty holsters, when I ... I think I actually said that in there, where I see the empty holster that I realized the line of sight.
Kathy Nestor (02:52:13):
Okay. So let's talk about that holster for a minute. So you heard the shot and you only heard one shot, correct?
Richard Novak (02:52:21):
Yes.
Kathy Nestor (02:52:23):
And then you came down from the walkway above the tent, right?
Richard Novak (02:52:28):
Yes.
Kathy Nestor (02:52:29):
And you came down to really the grassy area that we've all been looking at, the courtyard?
Richard Novak (02:52:34):
Yes.
Kathy Nestor (02:52:35):
And there was kind of chaos, people running around?
Richard Novak (02:52:38):
Yep.
Kathy Nestor (02:52:38):
Yes? And while you were down there, you saw what you said was an empty holster?
Richard Novak (02:52:45):
Yeah, as I was clearing people out and making sure that the evidence was preserved, about towards the top, after a little bit, I saw an empty holster sitting there.
Kathy Nestor (02:52:54):
And when you say towards the top, can you be specific and tell us where you were?
Richard Novak (02:52:58):
So on the south side in the courtyard there's some tiers of seating where the grass is different levels, and was towards the top, maybe just right before the cement is where everybody's standing. So there's different levels. It's towards the top on the grass.
Kathy Nestor (02:53:13):
And when you saw the holster, can you describe to me what it looked like?
Richard Novak (02:53:17):
An empty concealed holster.
Kathy Nestor (02:53:20):
For what type of weapon?
Richard Novak (02:53:21):
For a pistol.
Kathy Nestor (02:53:21):
Okay. And did it have any markings on it?
Richard Novak (02:53:25):
I didn't even ... No, not that I noticed.
Kathy Nestor (02:53:27):
And what happened to that holster?
Richard Novak (02:53:29):
I have no idea.
Kathy Nestor (02:53:30):
Did you ever take custody of it?
Richard Novak (02:53:32):
Nope.
Kathy Nestor (02:53:33):
Did you ever tell anyone else to take custody of it?
Richard Novak (02:53:36):
Nope.
Kathy Nestor (02:53:37):
You just left it on the grass?
Richard Novak (02:53:39):
I did.
Kathy Nestor (02:53:43):
Was it ever fingerprinted to your knowledge?
Richard Novak (02:53:45):
I have no idea.
Kathy Nestor (02:53:55):
Okay. At some point there were drones in the air, is that right? Did you become aware of that?
Richard Novak (02:54:01):
Yes, I was made aware of that.
Kathy Nestor (02:54:02):
Right. Do you know who put the drones in the air?
Richard Novak (02:54:06):
Sergeant Cam Nelson with the Provo Police Department.
Kathy Nestor (02:54:08):
Right. So it wasn't UVU?
Richard Novak (02:54:09):
No.
Kathy Nestor (02:54:10):
Did you guys even have drone capability? Did you have a drone on campus that you used?
Richard Novak (02:54:15):
No.
Kathy Nestor (02:54:16):
All right. So someone would've had to bring one after the shooting onto campus because you wouldn't have had one there.
Richard Novak (02:54:24):
True.
Kathy Nestor (02:54:32):
All right. You mentioned that as you were coming down into the grassy area from the top above the tent, you come down the hall of flags, you come into the grassy area. You mentioned that you heard, I guess on your radio, that they had a suspect in custody.
Richard Novak (02:54:49):
Yes.
Kathy Nestor (02:54:50):
Right. And so how long do you think between the shot being fired did you hear that?
Richard Novak (02:54:56):
I was in, like I said, trying to get down the stairs, jumping over people, trying not to step on people as people were fighting up. Within 30 seconds maybe.
Kathy Nestor (02:55:05):
All right. So they pretty much instantly had someone in custody?
Richard Novak (02:55:08):
Yes. And that's why I was quite surprised.
Kathy Nestor (02:55:12):
Were you aware of where the person was taken into custody?
Richard Novak (02:55:16):
Right down by where Charlie Kirk was sitting by his tent, somewhere down there.
Kathy Nestor (02:55:19):
So in the courtyard area, the person would've been in the courtyard area at the time of the shooting?
Richard Novak (02:55:25):
Yes.
Kathy Nestor (02:55:26):
Was that person in or near or around the holster in any way?
Richard Novak (02:55:30):
No.
Kathy Nestor (02:55:31):
You don't know?
Richard Novak (02:55:31):
No, he wasn't. Where the holster was was up on the top level up there and it was when the incident happened, when Charlie got shot, within seconds the other officer that was down by him said that he was in custody with the prisoner of the shooter, so it had been within right there.
Kathy Nestor (02:55:51):
At that time, it was your understanding the person they took into custody was close by Mr. Kirk, is that right?
Richard Novak (02:56:00):
Yep.
Kathy Nestor (02:56:00):
But it didn't occur to you that, "Well, that's not where I heard the shot come from. They must have the wrong person. I should talk to somebody."
Richard Novak (02:56:07):
During the chaos moment, no. They said they had a person in custody. I figured those guys saw something I didn't see. They took that person in custody and I thought that was him.
Kathy Nestor (02:56:14):
Okay. I actually, this would be a good stopping place because I'm about to start another section. So maybe we could go five minutes early for lunch.
Judge Tony F. Graf, Jr. (02:56:27):
Absolutely. All right. Thank you.
Kathy Nestor (02:56:30):
Thank you, officer.
Judge Tony F. Graf, Jr. (02:56:31):
We're going to go ahead and break for lunch. We'll come back at one o'clock. I do want to note for the camera operator, if you would just be cognizant and turn off the microphone during breaks and when we break for recess, that would be helpful. Does either party need the benefit of the record before we break for lunch?
Speaker 7 (02:56:52):
Not the state, no.
Judge Tony F. Graf, Jr. (02:56:53):
All right. We are in recess.
Speaker 8 (02:56:54):
All rise.
Speaker 9 (03:24:00):
(silence)
Judge Tony F. Graf, Jr. (04:04:41):
Please be seated. The court is back in session. Noting the presence of counsel. I believe we left off cross-examination.
(04:04:55)
Ms. Nestor, are you ready to proceed?
Kathy Nestor (04:04:57):
Yes. May it please the court?
Judge Tony F. Graf, Jr. (04:04:58):
All right, you may.
Kathy Nestor (04:05:00):
Good afternoon.
Richard Novak (04:05:01):
Good afternoon.
Kathy Nestor (04:05:02):
I do want to circle back before I start my new section on two... I just want to specify two things. First of all, we talked about that you had had no briefing or no materials about security on campus for this particular event. Did you ever have any operational or tactical plan that you were given for that event?
Richard Novak (04:05:26):
For this event, no.
Kathy Nestor (04:05:27):
Okay. And you also mentioned that you've done SWAT in the past?
Richard Novak (04:05:32):
Yes.
Kathy Nestor (04:05:34):
Were you a sniper?
Richard Novak (04:05:35):
I wasn't. I worked well with them, but I was not a sniper.
Kathy Nestor (04:05:37):
Okay. So when you... Okay, just strike that.
(04:05:45)
Also, we talked about the holster that was found. Are you aware if there were any other guns confiscated on the scene that day?
Richard Novak (04:05:52):
I am not.
Kathy Nestor (04:05:55):
You don't know one way or the other?
Richard Novak (04:05:56):
I don't know.
Kathy Nestor (04:06:02):
All right. Now I want to go through with you your timeline. You mentioned that you started at the hall of flags, right? And then you came down. It took you a minute to kind of navigate the stairs with the crowd and the chaos and everything. And then you were in the grassy area of the courtyard for a bit. Is that right?
Richard Novak (04:06:25):
Yeah. So about 30 seconds to get down the stairs and then I went right down to where the tent was.
Kathy Nestor (04:06:29):
And that's where you found the holster?
Richard Novak (04:06:32):
No. The holster was up higher. So I went down by the tent-
Kathy Nestor (04:06:35):
Oh.
Richard Novak (04:06:35):
... so it was lower level. So as I came down towards where Charlie Kirk was shot, I went down towards the tent to assess to see what was going on down there because I didn't know exactly what... I heard the gunshot. Didn't know exactly what was going on. So that was above the tent.
Kathy Nestor (04:06:48):
I'm sorry. I missed that you went down to the tent. So let me ask you about that. So what did you do when you got down to the tent?
Richard Novak (04:06:54):
When I got down to the tent, Charlie was gone. They put him in an SUV and left. At that moment, there was still some people running around, so I decided to preserve the scene as much as I could with trying to escort people out. And that's why I went back in and started pushing people off the grass area to conserve any ammunition or any casings or anything to that effect that would be around. I wanted to make sure people were off and there was as much evidence preserved as possible.
Kathy Nestor (04:07:18):
So just to be clear, by the time you got to the tent, Mr. Kirk had already been removed and taken from the scene. Is that right?
Richard Novak (04:07:25):
Yes.
Kathy Nestor (04:07:26):
Okay. So in your professional opinion, what was the perimeter of the crime scene?
Richard Novak (04:07:35):
What do you mean by the parameter?
Kathy Nestor (04:07:37):
The perimeter, like how far did this crime scene stretch? Where did you want people to move off of?
Richard Novak (04:07:42):
Oh, well, at first I wanted them all off the grass because like I said, I thought we had a suspect in custody, so to me it would be a close encounter. So I was trying to push everybody off the grass in case there was shell casings or to the effect that it got on the grass. So after I pushed him off to that part and getting up to the top where I saw that empty holster, when I saw that empty holster is when things started slowing down for me a little bit, all the chaos and stuff is that's when I realized that it was a rifle shot, not a handgun shot.
Kathy Nestor (04:08:12):
Okay. And that's when you saw the Losee building and it occurred to you, you should go check it out?
Richard Novak (04:08:15):
Yes, it was right in my line of sight.
Kathy Nestor (04:08:16):
And correct me if I'm wrong, but the whole time that this going on, you had an active body camera on your, I guess your collar, is that right?
Richard Novak (04:08:28):
That was right. On my chest.
Kathy Nestor (04:08:28):
Your chest?
Richard Novak (04:08:29):
Yes.
Kathy Nestor (04:08:30):
Okay. And it was on?
Richard Novak (04:08:31):
Yes.
Kathy Nestor (04:08:32):
And it appears to me from reviewing your body camera, that there was another individual who was with you that went to the Losee building who was in civilian clothing, but appeared to have a gun.
Richard Novak (04:08:44):
Yes.
Kathy Nestor (04:08:44):
Who was that?
Richard Novak (04:08:45):
I don't know who he was exactly. He had a badge on and I had somebody with me to back me up as I ran up the stairs to make sure I had somebody with me.
Kathy Nestor (04:08:53):
So you don't know what agency he's from or where he's from?
Richard Novak (04:08:56):
No.
Kathy Nestor (04:08:57):
And it looked like he had a pistol?
Richard Novak (04:08:59):
Yes.
Kathy Nestor (04:08:59):
Is that right?
Richard Novak (04:09:00):
A handgun, yes.
Kathy Nestor (04:09:01):
A handgun?
Richard Novak (04:09:02):
Yeah.
Kathy Nestor (04:09:04):
And so the two of you go to the Losee building?
Richard Novak (04:09:06):
Yes.
Kathy Nestor (04:09:09):
When you reviewed the videotape at the police department later, did you check to see if anyone had been on the Losee building after the shooting after this individual had jumped off that you've already talked about? Was there anybody else on the roof? Did you check and see in that gap of time?
Richard Novak (04:09:27):
In that gap of time, no. So once I put up the barrier, I only walked up to about that point. Then I went down and reviewed the video from that moment on.
Kathy Nestor (04:09:38):
Are you able to say for one way or the other if anyone else had been on that roof in between when the person jumped off the building and when you came on the roof? Are you able to say one way or the other?
Richard Novak (04:09:47):
There was people up there looking for an individual that ran that way because when I first got told the individual ran heading north, we didn't know where the shooter was. So we started climbing up and looking, clearing the building. And it wasn't until I went to the PD and I actually saw him jump off of the building that I knew he was off the building.
Kathy Nestor (04:10:05):
Let me rephrase that because I think I either asked it badly or you misunderstood me, so let me go back again. So from the time that the individual that you spotted on the video jumped off the roof, right, the individual that you though was in the prone position-
Richard Novak (04:10:20):
Okay.
Kathy Nestor (04:10:21):
... between that and when you got on the roof, did you ever check to se if anybody else had been on the roof in that period of time?
Richard Novak (04:10:27):
Yeah, and I didn't see anybody.
Kathy Nestor (04:10:29):
So you did watch-
Richard Novak (04:10:29):
I didn't notice anybody. Yeah.
Kathy Nestor (04:10:33):
Did you look on the video to see that entire... Okay, that's what I'm asking. So you did not review the video to see if there was someone between that individual jumping off and you coming on if anybody had been on or disturbed that scene in any way?
Richard Novak (04:10:46):
No.
Kathy Nestor (04:10:46):
Okay. But once you put the tape up, then we're confident from that point on the scene was preserved, right?
Richard Novak (04:10:55):
Yeah.
Kathy Nestor (04:10:55):
By the way, where did you get that tape?
Richard Novak (04:10:58):
Officers responded on the scene that he was down on the bottom and threw it up to me, so.
Kathy Nestor (04:11:03):
Okay. So you didn't have it on you?
Richard Novak (04:11:05):
No.
Kathy Nestor (04:11:06):
And you didn't leave the scene to go get it?
Richard Novak (04:11:08):
No.
Kathy Nestor (04:11:08):
Someone threw it up?
Richard Novak (04:11:09):
Yes.
Kathy Nestor (04:11:10):
Great. All right. While you were on the roof, did you encounter any spent casings?
Richard Novak (04:11:25):
As a matter of fact, no. That's why when I saw the prone position where a person would be laying down as a sniper, being around guns and snipers all the time, I was looking for a spent shell casing. I couldn't see one. I was looking over the edge, looking all over the place, making sure the gravel wasn't disturbed, and I couldn't find a shell casing at that moment.
Kathy Nestor (04:11:42):
And that would be the reason you would be looking for that was because some types of guns when they shoot eject a casing automatically, right?
Richard Novak (04:11:49):
Yes.
Kathy Nestor (04:11:49):
Some do. Some don't?
Richard Novak (04:11:51):
Yes.
Kathy Nestor (04:11:52):
All right. And then you also didn't find any unshot bullets?
Richard Novak (04:11:57):
No.
Kathy Nestor (04:11:58):
Okay. Are you aware of there being a bullet found on another roof-
Richard Novak (04:12:02):
I'm not aware.
Kathy Nestor (04:12:03):
... in the vicinity? Were you aware of another bullet being found on the scene not on the roof of the Losee building?
Richard Novak (04:12:10):
No.
Kathy Nestor (04:12:10):
All right. Your body cam footage that I reviewed appears to end while you're still on the roof. Do you know why that is?
Richard Novak (04:12:23):
I think the battery went dead. It was just right at that moment.
Kathy Nestor (04:12:25):
Okay. And did you ever turn it back on that day or go get it... I don't know. Would you have to do charge it or stick a new battery in it? I don't even know.
Richard Novak (04:12:35):
Usually dock it, but no, I didn't go back. It was too chaotic running around.
Kathy Nestor (04:12:40):
So that 27 minute and 35 second body cam that starts when you're at the Hall of Flags and ends while you're still on the roof but haven't put the crime tape up yet, that's the only body cam you have that day?
Richard Novak (04:12:54):
Yes.
Kathy Nestor (04:12:55):
All right. You mentioned when you went to the police department, you watched the video where you saw an individual up on the roof, right?
Richard Novak (04:13:08):
Yes.
Kathy Nestor (04:13:09):
And that individual was in the vicinity where you saw the disturbance in the gravel?
Richard Novak (04:13:13):
Yes.
Kathy Nestor (04:13:14):
And when you looked at that video, were you able to identify the individual's face?
Richard Novak (04:13:22):
No.
Kathy Nestor (04:13:22):
Were you able to identify any markings on their clothing?
Richard Novak (04:13:26):
No.
Kathy Nestor (04:13:27):
Were you able to identify their height?
Richard Novak (04:13:30):
No.
Kathy Nestor (04:13:33):
When we looked at the picture of the, I think you called it the sniper perch, so I'm going to use your words, it looked like there was a measuring tape laid out next to it. Were you present when they measured the distance, like how tall that person would've been?
Richard Novak (04:13:49):
I was not.
Kathy Nestor (04:13:51):
So you don't know what that is?
Richard Novak (04:13:51):
I don't.
Kathy Nestor (04:13:56):
Were you able to tell the person's weight from the video that you saw?
Richard Novak (04:13:59):
I can tell he wasn't heavyset.
Kathy Nestor (04:14:02):
Okay.
Richard Novak (04:14:02):
So more of a skinnier person.
Kathy Nestor (04:14:05):
Could you identify what shoes they were wearing?
Richard Novak (04:14:09):
I could not.
Kathy Nestor (04:14:09):
Could you identify anything about a hat or what was on their head?
Richard Novak (04:14:14):
At the moment, no, I couldn't.
Kathy Nestor (04:14:16):
Okay. And did you see a gun in the video?
Richard Novak (04:14:23):
I saw a long black object in the left hand as he was running across the roof.
Kathy Nestor (04:14:31):
And in fact, did you describe that in your report as a bag?
Richard Novak (04:14:35):
I don't know. I have no idea. I don't know why...
Kathy Nestor (04:14:38):
All right. Let's pull that report back up, please. Nevermind. I don't think you mentioned what you saw.
(04:14:59)
So in your report...
(04:15:01)
Let's do pull that back up please, Page 5 on the Bagley 1.
(04:15:05)
So looking at the second page, you're actually going to have to go to Page 6, I think, you talk about what you saw on the video where they jumped off the roof. And again, I'm going to remind you of our conversation we had before about you understand how important these reports are.
Richard Novak (04:15:28):
Yep.
Kathy Nestor (04:15:28):
And do you mention anywhere in this report that you saw a gun?
Richard Novak (04:15:36):
I did not. I just [inaudible 04:15:37] no object.
Kathy Nestor (04:15:36):
Did you mention that you saw that object? Is that on here?
Richard Novak (04:15:41):
Nope.
Kathy Nestor (04:15:42):
Okay. So you left that out. Now, have you looked at that over and over again?
Richard Novak (04:15:47):
Of the video?
Kathy Nestor (04:15:48):
Yeah.
Richard Novak (04:15:49):
No. I've only seen it twice.
Kathy Nestor (04:15:51):
Oh, really?
Richard Novak (04:15:51):
Yep.
Kathy Nestor (04:15:52):
When's the last time you saw it?
Richard Novak (04:15:53):
It's been months.
Kathy Nestor (04:15:54):
Okay. The last time you saw it, were you able to tell what that object was in his hand?
Richard Novak (04:16:00):
Yes. Well, not tell what it is. I can see there's an object in that left hand. Yes.
Kathy Nestor (04:16:04):
And knowing what you know about the case today, do you have an idea about what that object was?
Richard Novak (04:16:09):
It looks like a rifle or something to that effect, a long object.
Kathy Nestor (04:16:16):
It looks like a rifle?
Richard Novak (04:16:17):
Like a long object, like skinny and long. You can see it's almost like it's covered over something.
Kathy Nestor (04:16:23):
So you saw the cover, which was the towel, right?
Richard Novak (04:16:26):
Yes. And the shape of it is long.
Kathy Nestor (04:16:28):
Okay. So you can see a towel, but you can't see an actual gun.
Richard Novak (04:16:33):
I don't know if it was a towel or a blanket. I don't know what it was.
Kathy Nestor (04:16:34):
But you can't see an actual gun in the video?
Richard Novak (04:16:37):
No. Like an object, like a form of a gun, like a long object.
Kathy Nestor (04:16:40):
Okay. All right. At the end of that day, what time did you leave the campus?
Richard Novak (04:16:57):
It was probably like 9 o'clock that night, maybe somewhere around there.
Kathy Nestor (04:17:00):
And did you come back the next morning and work some more?
Richard Novak (04:17:03):
I came back the next morning, yes.
Kathy Nestor (04:17:05):
And you worked all day the next day?
Richard Novak (04:17:07):
On and off.
Kathy Nestor (04:17:09):
When you left at 9:00 PM, did you or anyone else know who the shooter was on that day?
Richard Novak (04:17:16):
No. Not that I know of.
Kathy Nestor (04:17:17):
And when you came back the next morning and worked that afternoon all that day, did you or anybody on that campus know who the shooter was?
Richard Novak (04:17:25):
Not that I know of.
Kathy Nestor (04:17:30):
Okay. So nothing that you found that day or anyone else to your knowledge on campus was able to identify who the shooter was?
Richard Novak (04:17:38):
On that day, no.
Kathy Nestor (04:17:39):
Right.
Richard Novak (04:17:41):
Well, during the time I was there, no, that I knew of.
Kathy Nestor (04:17:44):
Okay. I also want to talk to you about that giant picture that was showed to you. Do you know-
Richard Novak (04:17:49):
Exhibit 35, I think?
Kathy Nestor (04:17:51):
Yes, it's Exhibit 35. Do you know who took that picture, where it came from?
Richard Novak (04:17:56):
I do not.
Kathy Nestor (04:17:57):
Do you know how old it is?
Richard Novak (04:17:59):
I have no idea.
Kathy Nestor (04:17:59):
Okay. And the pictures you were shown, exhibits 1, 2, and 3 that you got up and kind of talked about and showed all the buildings and everything, do you have any knowledge about where those pictures came from or who took them?
Richard Novak (04:18:17):
I guess they were drone footage. Just taken from a drone.
Kathy Nestor (04:18:19):
Do you know who was operating the drone?
Richard Novak (04:18:21):
Sergeant Ken Nielsen from Provo Police Department.
Kathy Nestor (04:18:23):
Provo Police Department. Had you seen those pictures before today?
Richard Novak (04:18:27):
Before today, yes.
Kathy Nestor (04:18:28):
When did you see them?
Richard Novak (04:18:30):
A couple weeks ago.
Kathy Nestor (04:18:32):
And that was just in preparation for testifying?
Richard Novak (04:18:34):
Yes.
Kathy Nestor (04:18:35):
Prior to that, had you ever seen those pictures?
Richard Novak (04:18:37):
No.
Kathy Nestor (04:18:51):
Can I have the court's indulgence for just a moment, Your Honor?
Judge Tony F. Graf, Jr. (04:18:53):
You may, Ms. Nestor.
Kathy Nestor (04:19:14):
Just one moment. One last thing I want to clarify. We heard you testify that Ms. Richards, or I don't know if she's Deputy Richards.
Richard Novak (04:19:22):
She's a state employee for the forensic lab.
Kathy Nestor (04:19:24):
So Ms. Richards?
Richard Novak (04:19:25):
Melissa.
Kathy Nestor (04:19:27):
She is the one who took those nighttime pictures of this stuff on the roof?
Richard Novak (04:19:31):
Yes.
Kathy Nestor (04:19:32):
And you testified that she told you that that was what they looked like that day?
Richard Novak (04:19:37):
Yes.
Kathy Nestor (04:19:37):
When did you meet with her?
Richard Novak (04:19:39):
I talked to her on the phone. It was several weeks ago in preparation for the trial.
Kathy Nestor (04:19:43):
So prior to a couple weeks ago, you never discussed those pictures with her?
Richard Novak (04:19:46):
Yeah, because I'd never seen them.
Kathy Nestor (04:19:48):
Oh, so a couple weeks ago is the first time you saw them?
Richard Novak (04:19:50):
Yeah.
Kathy Nestor (04:19:51):
All right. And did you write any kind of supplement to your report to add onto your report other than what we've gone through today, that one report you wrote? Have you ever written another one?
Richard Novak (04:20:01):
I have not.
Kathy Nestor (04:20:05):
Okay. That's all I have. Thank you, Your Honor. I tender the witness.
Judge Tony F. Graf, Jr. (04:20:06):
Thank you, Ms. Nestor.
(04:20:08)
Mr. Grunander, redirect?
Chad Grunander (04:20:10):
Just one question, I believe, Judge.
Judge Tony F. Graf, Jr. (04:20:12):
All right.
Chad Grunander (04:20:18):
Officer Bagley, if we could pull up State's Exhibit 1.
Judge Tony F. Graf, Jr. (04:20:21):
All right. Let's do that.
Chad Grunander (04:20:29):
You've talked about this handgun holster that you observed?
Richard Novak (04:20:33):
Yes.
Chad Grunander (04:20:34):
On the grass in the courtyard?
Richard Novak (04:20:36):
Yes.
Chad Grunander (04:20:37):
I'm going to ask you if you would approach the monitor when it comes up and point out as best you can where you observed that holster, okay? Oh, here we are. So again, the question is, where was that holstered line when you observed it?
Richard Novak (04:21:27):
So again, this is the picture of the courtyard area facing north. On the south end down here, you got different tiers of grass. On this top tier back here in this area, which is more of the center bottom left of the photo. So it's going to be the waterfalls on the left side, so more towards the top of it. On the south side by the Fugal building, that top tier of grass is about where it was at.
Chad Grunander (04:21:50):
In the middle area of that?
Richard Novak (04:21:52):
Yes.
Chad Grunander (04:21:52):
Neck by the Fugal building. Okay.
Richard Novak (04:21:57):
And that's where I could see straight up where the line of sight was.
Chad Grunander (04:22:01):
Okay. Thank you.
(04:22:03)
Nothing further, Judge.
Judge Tony F. Graf, Jr. (04:22:05):
All right. May this witness be excused?
Kathy Nestor (04:22:07):
Yes, your Honor.
Richard Novak (04:22:08):
Yes.
Judge Tony F. Graf, Jr. (04:22:09):
Thank you. Thank you, Officer.
(04:22:20)
Just for the benefit of those in attendance, you may have noticed that I drank some water. Please, if you have water in what's been previously approved, don't hesitate. You can drink, just don't spill it.
(04:22:32)
And let's go to the State. Ready to proceed with your next witness?
Ryan McBride (04:22:36):
Thank you, Judge. The state calls David Hull.
Judge Tony F. Graf, Jr. (04:22:39):
All right. Would you like to come forward and be sworn in?
Kathy Nestor (04:22:48):
You do solemnly swear that the testimony you shall give in the case now pending before the court will be the truth, the whole truth, and nothing but the truth, so help you God?
David Hull (04:22:54):
I do.
Kathy Nestor (04:22:54):
Okay.
Judge Tony F. Graf, Jr. (04:22:55):
All right. If you'd like to be seated right here in the witness seat. And once you're situated, there's a bottle of water to your left. And if you wouldn't mind, after you're seated, bringing that microphone closer to you so it picks up your voice.
(04:23:15)
All right. Counsel-
Ryan McBride (04:23:17):
Thank you, Judge.
Judge Tony F. Graf, Jr. (04:23:17):
... whenever you're ready.
Ryan McBride (04:23:20):
Good afternoon.
David Hull (04:23:21):
Afternoon.
Ryan McBride (04:23:22):
Would you please state your full name and spell your last?
David Hull (04:23:24):
David Hull, H-U-L-L.
Ryan McBride (04:23:26):
And are you employed?
David Hull (04:23:27):
I am, yes.
Ryan McBride (04:23:28):
Who are you employed by?
David Hull (04:23:30):
I'm employed by the Department of Public Safety.
Ryan McBride (04:23:32):
And how long have you worked for the Department of Public Safety?
David Hull (04:23:34):
I'm in my 12th year.
Ryan McBride (04:23:36):
Are you a peace officer?
David Hull (04:23:38):
I am, yes.
Ryan McBride (04:23:39):
Are you POST certified?
David Hull (04:23:41):
I am, yes.
Ryan McBride (04:23:42):
When did you receive your certification?
David Hull (04:23:45):
2015.
Ryan McBride (04:23:46):
And since that time, has your certification remained intact? In other words, has it lapsed or been taken away or anything like that?
David Hull (04:23:52):
No, it's been continuous.
Ryan McBride (04:23:57):
I think you said you're in your 12th year. You already say that, your 12th year with the DPS. Have you worked for any other law enforcement agency besides the DPS?
David Hull (04:24:06):
No, just the State of Utah.
Ryan McBride (04:24:08):
What is your current assignment with the Department of Public Safety?
David Hull (04:24:11):
I'm currently positioned as an investigative sergeant at Peace Officer Standards and Training.
Ryan McBride (04:24:16):
Was that your assignment in September of 2025?
David Hull (04:24:19):
No, it was not.
Ryan McBride (04:24:20):
What was your assignment then?
David Hull (04:24:22):
I was under the State Bureau of Investigations, Major Crimes Division as an investigator.
Ryan McBride (04:24:28):
Okay. Is SBI an acronym that's commonly used to describe the State Bureau of Investigation?
David Hull (04:24:34):
It is. Yes.
Ryan McBride (04:24:35):
I can refer to it as the SBI and we're all on the same page, right?
David Hull (04:24:37):
Yep.
Ryan McBride (04:24:38):
Okay. How long were you with the SBI?
David Hull (04:24:42):
A little over seven years.
Ryan McBride (04:24:45):
And what exactly did you do? What was your assignment with the SBI?
David Hull (04:24:50):
I spent just under a year in the Alcohol Bureau and the Undercover Unit. And then the remainder of that time was with major crimes.
Ryan McBride (04:24:58):
Major crimes. What did that entail?
David Hull (04:25:01):
Predominantly investigating crimes that are considered to be major in nature. Predominantly violent crime, including homicide, sexual assault, in some cases fraud cases. Kind of covered a whole gambit of things, but predominantly violent crime.
Ryan McBride (04:25:20):
And throughout your career with the DPS, have you done any training related to murder investigations specifically?
David Hull (04:25:28):
Yes, I have.
Ryan McBride (04:25:29):
And could you just briefly describe what that specific training entailed?
David Hull (04:25:33):
I've done internal and external courses around lead homicide investigation, officer-involved critical incidents, child deaths and unexplained deaths in children, aquatic homicide, and then just continuing investigations related to homicide itself.
Ryan McBride (04:25:56):
And throughout your career with DPS, have you either played a role in or led a homicide investigation?
David Hull (04:26:05):
I have, yes.
Ryan McBride (04:26:06):
How many do you think?
David Hull (04:26:10):
Either directly or indirectly, I've probably been involved in approximately 40 or so.
Ryan McBride (04:26:14):
And is that throughout the State of Utah?
David Hull (04:26:16):
Yes, we assist throughout the State of Utah.
Ryan McBride (04:26:21):
Were you working September 10th of 2025?
David Hull (04:26:23):
I was, yes.
Ryan McBride (04:26:25):
And did you work shifts? Did you work a certain shift that day or how does it work at the SBI?
David Hull (04:26:33):
I kind of worked 24/7/365, but predominantly Monday through Thursday, office hours.
Ryan McBride (04:26:39):
Okay. On that date, were you asked to respond to the campus of Utah Valley University?
David Hull (04:26:45):
I was, yeah. I was at the office in Taylorsville and I was asked to respond down to Utah Valley University.
Ryan McBride (04:26:51):
Okay. And what did you understand was going on at UVU that day?
David Hull (04:26:55):
I didn't know much. I had been told that there was some kind of an event and an individual had been shot.
Ryan McBride (04:27:01):
Did you have a name?
David Hull (04:27:03):
Someone had told me that Charlie Kirk had been shot.
Ryan McBride (04:27:07):
At that point in time, were you familiar with Charlie Kirk?
David Hull (04:27:09):
I was not. No.
Ryan McBride (04:27:10):
Okay. So when you found out that there was an event, that it was Charlie Kirk that had been shot, that was while you were still up in Taylorsville at your office?
David Hull (04:27:20):
Yes. We hadn't been asked to respond at that point. Another agent in the office showed me a video of the shooting and I went back to work because we hadn't been asked to respond at that point.
Ryan McBride (04:27:31):
At some point though, were you asked to respond or directed to respond to Utah Valley?
David Hull (04:27:35):
Yes. Yes, we were.
Ryan McBride (04:27:36):
Okay.
David Hull (04:27:36):
We were asked to make our way down to the university to provide any kind of assistance that was needed.
Ryan McBride (04:27:41):
Okay. And do you recall who directed you to come down to Utah Valley?
David Hull (04:27:44):
I believe it was Lieutenant Jensen.
Ryan McBride (04:27:48):
And responding to a scene like this on a report like that, is that something that's done frequently within the SBI?
David Hull (04:28:01):
Yeah. SBI functions as a supplementary investigative division for really anybody in the state who needs it, whether it's a smaller local agency that just needs additional resources. We often respond with the crime lab to help process crime scenes, but it would be normal for us to be called out to assist another agency.
Ryan McBride (04:28:20):
Okay. So we understand correctly, when you were first directed to come down to Utah Valley, you were just coming down to give whatever help you could provide?
David Hull (04:28:29):
Correct.
Ryan McBride (04:28:30):
Okay. That eventually changed?
David Hull (04:28:33):
Yes. Yeah.
Ryan McBride (04:28:33):
Okay. What-
David Hull (04:28:34):
My assumption was we were responding to assist, process a crime scene, essentially.
Ryan McBride (04:28:39):
Prior to September 10th, 2025, how familiar were you with the Utah Valley University campus?
David Hull (04:28:47):
Not very. I think I maybe had been there once before.
Ryan McBride (04:28:51):
How about from September 10th onward? Did you become more familiar with the campus?
David Hull (04:28:55):
Became a lot more familiar with the campus, yes.
Ryan McBride (04:28:57):
And in what way or how?
David Hull (04:29:00):
Both in walking the campus and looking at the incident scene, in viewing surveillance video of the campus and the surrounding areas, and just my general involvement in the investigation. I became a lot more familiar with the buildings, the amphitheater and the surrounding area and the campus itself.
Ryan McBride (04:29:20):
All right. And we'll come back to that here in a moment. Who else responded to UVU from the SBI?
David Hull (04:29:29):
Originally, I thought it was just myself and a couple of others. I remember Sergeant Falmina, Sergeant Bricker, Sergeant Elschultz, Sergeant Clark, Agent Brian Davis, and a number of other agents were arriving or were on scene when I arrived there.
Ryan McBride (04:29:52):
Okay. Do you recall if other law enforcement agencies responded that same day?
David Hull (04:29:56):
Yes. There was a large law enforcement presence, federal entities, I believe the FBI, the DEA, ATF, I think some US Marshals. There was obviously our state presence. And then there was county and city and local agencies on scene also.
Ryan McBride (04:30:15):
So had all these folks responded by the time you got here or had they responded prior to?
David Hull (04:30:20):
Some could have been on scene prior to. Some were arriving while I was arriving. Others arrived later. I know there were several forensic units from various entities, including the state crime lab and other agencies.
Ryan McBride (04:30:33):
Okay. And did you interact with all these different agencies, you personally?
David Hull (04:30:40):
Throughout the course of the following few days, probably the majority of them, yes.
Ryan McBride (04:30:44):
All right. I think you related that originally the SBI was directed to come down just to see if you could help. Is that fair to say?
David Hull (04:30:53):
Yeah, that was all I knew when I left the office, was that go down and see what services... What can you do to help.
Ryan McBride (04:31:00):
And I asked you earlier if that role changed, and I believe you said it did.
David Hull (04:31:03):
Mm-hmm.
Ryan McBride (04:31:04):
So let's talk about that. How did your role change from what you initially came down to do to whatever it evolved into?
David Hull (04:31:11):
Having been on scene for a little while, there were some conversations and discussions that took place. And I was informed by my lieutenant that myself and Agent Davis would be taking lead on the investigation on behalf of the State Bureau of Investigations.
Ryan McBride (04:31:27):
So the SBI was going to be the lead investigative agency?
David Hull (04:31:31):
Correct.
Ryan McBride (04:31:31):
And you were going to be the lead case agent?
David Hull (04:31:33):
Yes, sir.
Ryan McBride (04:31:34):
Along with Agent Brown?
David Hull (04:31:36):
Agent Davis.
Ryan McBride (04:31:36):
Or Agent Davis.
David Hull (04:31:37):
Yep.
Ryan McBride (04:31:42):
Okay. What does it mean to be the lead investigator or the lead case agent?
David Hull (04:31:48):
It depends on the situation, but predominantly you're responsible for kind of directing the investigation, coordinating information that is coming in. Typically, scenes are fairly chaotic initially, so you're trying to process as much information-
David Hull (04:32:00):
... scenes are fairly chaotic initially. So you're trying to process as much information as possible and make as much use of the available resources that you have. Kind of an organizational role would probably be a good way to describe it.
Ryan McBride (04:32:12):
Okay. So you played an active role in organizing?
David Hull (04:32:17):
In coordination with the administrations of all of the agencies that were on scene, yeah. We were trying to coordinate efforts and get to pertinent information as quickly as possible.
Ryan McBride (04:32:27):
Do you recall whether assignments were made at least with the SBI agents that responded with you?
David Hull (04:32:33):
Yeah, we have a core group within major crimes that were assigned specific tasks.
Ryan McBride (04:32:38):
Okay. And did they include the agents that you mentioned just a minute ago?
David Hull (04:32:42):
Yes, I believe so.
Ryan McBride (04:32:43):
So each one of those agents with the SBI were given a specific assignment?
David Hull (04:32:47):
Yes. With the information we had, the agents were assigned to do specific things.
Ryan McBride (04:32:52):
And do you remember specifically what assignments were given to who?
David Hull (04:32:57):
Yeah, Sergeant Falmina was asked to coordinate with the state crime lab and the responding crime scene techs to manage and process any identified crime scenes. Sergeant Mark Bricker was put in touch with UVU's surveillance and operations team to start working through any available footage or information that we had that had been recorded. Sergeant Clark was tasked with the area canvas around the campus area, looking for information or any available information from the immediate area around campus. Sergeant Elle Schultz was working with the SIAC and other administration to try and manage the flow of information that had started to occur.
Ryan McBride (04:33:48):
Okay. You said that initially when you showed up, things were a bit chaotic.
David Hull (04:33:54):
Yes.
Ryan McBride (04:33:54):
Did that have something to do with all the different agencies that had responded?
David Hull (04:33:59):
Yes. And I think initially there was still some uncertainty as to whether we were working with an active shooter or an active crime scene. The campus has spread over a large area, and so getting that deemed to be safe is quite a process and involved a lot of people.
Ryan McBride (04:34:17):
Gotcha. Do you know if the campus was deemed safe eventually?
David Hull (04:34:23):
Eventually my understanding is the campus was locked down and secured, and we were able to start getting people in to start processing crime scenes and doing additional things.
Ryan McBride (04:34:35):
Okay. It sounds like that chaos eventually subsided, you got organized, and assignments were made. What was the first thing that you did as lead investigator?
David Hull (04:34:48):
Well, it kind of became organized chaos, but we did have a plan, and our priority was determining whether we had an ability or a way to be able to identify who had been involved in the shooting.
Ryan McBride (04:34:58):
Okay.
David Hull (04:34:58):
That was our primary focus at that time.
Ryan McBride (04:35:03):
Okay. Did that include collecting information that was becoming available?
David Hull (04:35:07):
Yes. We were getting a large volume of information from the general public, phone tips, people sending videos. Analysts were scrolling through social media and social sites as people were posting information onto the internet. So there was a lot of information coming in, a lot of things that needed to be processed through and worked.
Ryan McBride (04:35:30):
Okay. Were videos coming in?
David Hull (04:35:32):
Yes. Cell phone videos were coming in. If you imagine there's 3000 people at an event and everybody has a cell phone, there was a lot of information that people were willing to share with us.
Ryan McBride (04:35:42):
Right. Do you know whether you or someone else with the SBI collected or received a video from an Amanda Wright?
David Hull (04:35:51):
Yes. Yeah. I know a cell phone video was collected from Amanda Wright.
Ryan McBride (04:35:55):
And do you know...
David Hull (04:35:55):
By Amber Wright.
Ryan McBride (04:35:55):
I'm sorry?
David Hull (04:35:56):
Amber Wright.
Ryan McBride (04:35:57):
Oh, I'm sorry, Amber. Well, you tell me. Amanda or Amber?
David Hull (04:36:02):
Amber.
Ryan McBride (04:36:03):
Okay. I apologize for that wrong first name. Do you know who or how that video was collected?
David Hull (04:36:11):
Yeah, I spoke with Ms. Wright directly on the phone to arrange a time to go and collect that video. Unfortunately, she wasn't available that day, but Agent Davis was able to go meet with her directly and collect the video.
Ryan McBride (04:36:23):
And do you recall what date you actually spoke to Ms. Wright?
David Hull (04:36:28):
If I can refresh my recollection, I specifically...
Ryan McBride (04:36:32):
Sure. Let me ask you this before you do that.
David Hull (04:36:33):
Yes, sir.
Ryan McBride (04:36:33):
So you have in front of you what, your police report?
David Hull (04:36:38):
I have some notes and a timeline from my investigation that was part of discovery.
Ryan McBride (04:36:42):
And referencing that timeline or those notes, will they help you recall the date that you called Ms. Wright?
David Hull (04:36:50):
They will, yes.
Ryan McBride (04:36:51):
Okay. Why don't you go ahead and refer to that? Don't read from it out loud. Just take a minute. Let me know when you've come across that information and once you've refreshed your memory.
Kathy Nestor (04:37:00):
Your Honor, when he's done, may I take a look at the materials as well, please?
Judge Tony F. Graf, Jr. (04:37:04):
You may.
David Hull (04:37:07):
Ms. Wright was contacted on April 7th.
Ryan McBride (04:37:09):
Okay. Did you want...
Kathy Nestor (04:37:12):
Yeah.
Ryan McBride (04:37:13):
All right.
Judge Tony F. Graf, Jr. (04:37:14):
Ms. Nester, if you'd like to come forward.
Kathy Nestor (04:37:15):
May I approach, Your Honor?
David Hull (04:37:21):
That is my times and dates.
Ryan McBride (04:37:22):
Yep.
Judge Tony F. Graf, Jr. (04:38:11):
Mr. Sturgill, when you go back, if you wouldn't mind shifting the lectern to my right.
Ryan McBride (04:38:18):
Your right?
Judge Tony F. Graf, Jr. (04:38:19):
Yes. It just appears when the camera's focused on you; just the way it's positioned, you're in front of the witness, and we just want to make sure that-
Speaker 10 (04:38:30):
It won't go far.
Ryan McBride (04:38:31):
Yeah, it's only going to go that far, Judge. Is that going to be far enough?
Judge Tony F. Graf, Jr. (04:38:33):
I think that is sufficient. All right. Thank you. I appreciate your help with that.
Ryan McBride (04:38:40):
Yeah, I think just start from the... Are we still connected?
Speaker 10 (04:38:41):
We'll see.
Ryan McBride (04:38:41):
Okay.
Judge Tony F. Graf, Jr. (04:38:42):
All right. Let's make sure that Mr. Sturgill is picked up. Okay. All right. You may proceed. Thank you.
David Hull (04:38:49):
And if I can make a correction to that, I think...
Ryan McBride (04:38:53):
Well, let me ask you this first.
Judge Tony F. Graf, Jr. (04:38:54):
So he needs to ask you a question.
David Hull (04:38:56):
Yeah, okay.
Judge Tony F. Graf, Jr. (04:38:56):
So Mr. Sturgill.
Ryan McBride (04:38:58):
So you've had a moment to look at your notes?
David Hull (04:39:00):
Yes, sir.
Ryan McBride (04:39:01):
Did that help you remember the date that you contacted Ms. Wright?
David Hull (04:39:04):
It did, yes.
Ryan McBride (04:39:05):
Okay. Why don't you go ahead and tell us what date you contacted Ms. Wright?
David Hull (04:39:09):
I contacted her, I think it was April 6th specifically, but Agent Davis met with her on April 7th.
Ryan McBride (04:39:16):
Okay. Well, that was going to be my next question. So you actually talked to her on the... Was it on the phone?
David Hull (04:39:20):
It was, yes.
Ryan McBride (04:39:21):
And did you arrange a time for either you or Agent Davis to go get the video from Ms. Wright?
David Hull (04:39:26):
Yes.
Ryan McBride (04:39:27):
Is that how it happened?
David Hull (04:39:27):
Yes.
Ryan McBride (04:39:28):
And then you didn't go; it was Agent Davis that went?
David Hull (04:39:31):
Correct.
Ryan McBride (04:39:31):
Okay. Gotcha. And so what, if anything, has been done with that video in preparation for today?
David Hull (04:39:43):
My understanding is that some edits were made by your office in order to protect some of the participants in the video.
Ryan McBride (04:39:53):
Okay. Let me ask you this. Did you or Agent Davis visit with Ms. Wright again?
David Hull (04:39:59):
Yes, that was in April, and that was where my correction was. The video was originally provided to Agent Mortensen, so I misspoke.
Ryan McBride (04:40:08):
Okay. Let's go back and let's make sure this is very clear.
David Hull (04:40:13):
Sure.
Ryan McBride (04:40:14):
Okay. So someone with the SBI collected a video-
David Hull (04:40:19):
Yes.
Ryan McBride (04:40:19):
... from Amber Wright?
David Hull (04:40:21):
Yes. Agent Mortensen contacted Ms. Wright on October 8th, and a video was provided to him electronically on October 11th.
Ryan McBride (04:40:28):
Okay. And now I'll ask the next question. What, if anything, has been done either by you or another agent with that same video in preparation for today's hearing?
David Hull (04:40:41):
We contacted Ms. Wright to arrange a meeting so that Ms. Wright could review the video and that we could verify firsthand with her that the video was what she had taken on September 10th at the event at UVU.
Ryan McBride (04:40:53):
Okay. And who had that follow-up visit with Ms. Wright?
David Hull (04:40:57):
That was Agent Davis. I was not able to attend.
Ryan McBride (04:41:00):
Okay. And you know that happened because you spoke to Agent Davis?
David Hull (04:41:03):
I spoke to Agent Davis, and he provided me with a written statement that Ms. Wright had completed.
Ryan McBride (04:41:10):
Okay.
David Hull (04:41:10):
An 1102.
Ryan McBride (04:41:10):
Okay. And so you have seen that written statement?
David Hull (04:41:14):
I have, yes.
Ryan McBride (04:41:15):
Okay. And you've read through it?
David Hull (04:41:16):
I have.
Ryan McBride (04:41:19):
Do you recall whether that statement was on a form or a piece of scratch paper? What do you recall?
David Hull (04:41:25):
My recollection is that it was on an official, I believe, a State Bureau 1102 statement, which is a written form that is filled out by a witness that contains the 1102 warning.
Ryan McBride (04:41:37):
And by that, do you mean the advisory that the statement that's written on that piece of paper is going to be used at a preliminary hearing?
David Hull (04:41:43):
Yes.
Ryan McBride (04:41:44):
It includes that advisory?
David Hull (04:41:46):
Yes.
Ryan McBride (04:41:47):
Does it also include a warning that if someone provides a false statement, in this case, Ms. Wright, that it could be punishable by a class A misdemeanor?
David Hull (04:41:55):
It does, yes.
Ryan McBride (04:41:56):
All right. And what do you recall is the essence of that written statement from Ms. Wright? I mean, what does it basically say?
Kathy Nestor (04:42:16):
Object, Your Honor. At this point, we want to assert our standing objection to the constitutionality of allowing in Ms. Wright's statement when she is not here present in court to be cross-examined. We did include those constitutional arguments in our standing objection. Also, this does fall under the type of document that should be safeguarded under Rule 4-202.02(8)(f), as in "Frank," and/or should be classified as protected under subsection (5)( O), as in "orange," because the disclosure could jeopardize the life safety or property of the witness. It's also technically a victim's. I mean, if she's present under the current theory and the information, she's technically could be classified as a victim of the event. So it also should be protected under that. So we would object to it being read in public. It would not be admissible at trial in the current format that it is due to its hearsay nature.
(04:43:34)
We do think it would negatively impact our client's right to a fair trial. And furthermore, I believe the witness herself has requested that, particularly because the video contains images of minor children, which I know the state has made an effort to redact, but nevertheless, the reference to the minors, I think, would still fall under the protection. And so for all those reasons, we would object to that coming out in public and being discussed in the public forum and being published in any way. And we object to it coming in.
Judge Tony F. Graf, Jr. (04:44:09):
All right. And so, if you wouldn't mind, just restating the rule that you're relying upon so I can fully look at your objection.
Kathy Nestor (04:44:19):
It's the UCJA, the Utah... Oh, gosh. Code of Judicial Administration. I just blanked. The Utah Code of Judicial Administration for Rule 4-202.02(8)(f), as in "Frank," and/or (5)(O).
Judge Tony F. Graf, Jr. (04:44:51):
All right. Thank you. I'm just-
Kathy Nestor (04:44:52):
Yes, sir.
Judge Tony F. Graf, Jr. (04:44:53):
... getting there. I want to review this before I hear from Mr. Sturgill. All right. I've reviewed that. Mr. Sturgill.
Ryan McBride (04:45:16):
Well, Judge, let me address, I guess, a couple of things Ms. Nester actually brought up, I think, both the 1102 statement that we intend to produce and sort of referred to the video. So let me address each of those one at a time. With regards to the 1102 statement that was prepared by Ms. Wright, Judge, it was gathered in compliance with the Utah Rules of Evidence 1102, specifically subsection B8. It's a statement that was gathered by an SBI agent. It was prepared with knowledge of the advisory that it was going to be used at the preliminary hearing. And it also included the warning that if a false statement is given, it's going to be a class A misdemeanor.
(04:46:02)
Judge, I don't know what additional foundation you'd like. Well, that's kind of where I was going, Judge, is I was trying to lay a little bit more foundation just to introduce that statement alone. I haven't gotten yet to the video. But with regards to the 1102 statement, it has been collected in compliance with rule 1102. As I stated, B3 or B8. And as we all know, rule 1102 allows reliable hearsay, as does the State Constitution, Article 1, Section 12.
Judge Tony F. Graf, Jr. (04:46:38):
So what exhibit will this be? I want to look at it not for the purposes of has a magistrate taking it into evidence but to see if it comports with rule 1102 as stated, because I haven't seen it.
Ryan McBride (04:46:51):
Sure.
Judge Tony F. Graf, Jr. (04:46:52):
And I haven't done the analysis to see if that objection is...
Ryan McBride (04:46:57):
Judge, it is state's exhibit 6.1.
Kathy Nestor (04:46:58):
And Your Honor, just for the record, we just want to make a record too that it's difficult for the court to make a reliability finding when the individual is not here to be tested and cross-examined. And for those same reasons that we list in our standing objection, we just want to reiterate to the court that we think it really hampers you from making that reliability determination.
Judge Tony F. Graf, Jr. (04:47:32):
Thank you. Anything further, Mr. Sturgill?
Ryan McBride (04:47:36):
Well, just that 1102 doesn't require that, Judge. It doesn't require the witness be here to corroborate the statement that they've already prepared.
Judge Tony F. Graf, Jr. (04:47:45):
All right. All right. I've had a chance to review State's Exhibit 6.1, taking into note what Ms. Nester. UCJA 4-202.02 in referencing the section she did.
Ryan McBride (04:48:11):
And Judge, I don't mean to interrupt, but I had not yet addressed that rule. I would simply just add to that, that judicial rule, it has nothing to do with admissibility. It's simply publishing it. I'm sorry.
Judge Tony F. Graf, Jr. (04:48:23):
Okay. So let me just hear your full argument.
Ryan McBride (04:48:25):
I didn't realize you wanted to hear all of it. I thought you were going to rule on the 1102, but...
Judge Tony F. Graf, Jr. (04:48:29):
Well, I want to focus on the 1102. I want to keep this clean.
Ryan McBride (04:48:32):
Right.
Judge Tony F. Graf, Jr. (04:48:32):
So let's focus on the 1102, and we'll stop there-
Ryan McBride (04:48:34):
Sure.
Judge Tony F. Graf, Jr. (04:48:35):
... and I can make my ruling. And then if there's any objections, I just need to take it one step at a time to be thorough.
Ryan McBride (04:48:40):
Sure.
Judge Tony F. Graf, Jr. (04:48:41):
So I'll hear all your arguments about the 1102 statement. I'll return to Ms. Nester for any final thoughts, and then I'll make my ruling, and then we can move to the next stage.
Ryan McBride (04:48:51):
I appreciate that, Judge. I think I have addressed the 1102 question as far as admissibility under rule 1102. I thought that's what you wanted to rule on first, and then I would address the UCJA 4-202.02. And if you want me to do that now, I can do that. And it's just simply that it has nothing to do with admissibility. It has everything to do with publishing that. And, Judge, I think if you'll look at that written statement, I believe Ms. Wright's personal information for the most part has been redacted. Other than that, beyond that, Judge, I'll leave it up to your discretion.
Judge Tony F. Graf, Jr. (04:49:33):
Well, as it relates to... Well, let me take it one at a time. Let's start with the last statement. What I have in front of me, plaintiff's exhibit 6.1, has her full information here. Address, phone number, social security number.
Ryan McBride (04:49:49):
Okay. Judge, I apologize for that. I thought we'd provided a redacted version of that. Yeah. I think I've clarified what's going on here. I think we provided you with an unredacted version some time ago. The version that we have and are prepared to present today is a redacted version.
Judge Tony F. Graf, Jr. (04:50:21):
Could I have a copy of what you're intending to admit into evidence so I can consider what's before me?
Ryan McBride (04:50:35):
Yeah. Judge, we can bring it up electronically. We don't have a hard copy of that.
Judge Tony F. Graf, Jr. (04:50:40):
All right. I want to make sure that's not coming on screen. It's just coming on my screen to review it. All right. Okay. No, that's fine. It's just from my... I can look it on my screen because I'm trying to evaluate. So if you just want to put it back on my screen. All right. Well, so what I'm doing is I'm looking at this, and just for clarity moving forward, if there is a particular exhibit, I'll ask that you provide it instead of me relying upon here, just so there's no misunderstanding and I can see exactly what is being moved into evidence. I don't want to assume-
Ryan McBride (04:51:25):
Right.
Judge Tony F. Graf, Jr. (04:51:26):
... and I want to do the proper analysis. All right.
Ryan McBride (04:51:28):
And I appreciate that, Judge. And I apologize. I understood that we are presenting redacted copies today and-
Judge Tony F. Graf, Jr. (04:51:33):
Okay.
Ryan McBride (04:51:33):
... I think there's just been a little bit of a glitch. So I apologize for that, Judge.
Judge Tony F. Graf, Jr. (04:51:36):
All right. And Ms. Nester, I just want to make sure that you're looking at this exhibit as opposed to what I was just looking at in regards to your arguments. With this clarification in mind, any update to your argument or anything that you would like the court to consider?
Kathy Nestor (04:51:57):
The only other issue I think that exists with this that I haven't already raised is that there's clearly two different authors in the body of the document. One wrote something on the very top line, and then it looks like Ms. Wright wrote the rest of it. Which we don't have any indication of who wrote that top line and when they filled that in, if it was before or after she signed the document. So I have some concerns about authenticity with respect to that as well. And that's all I have.
Judge Tony F. Graf, Jr. (04:52:31):
All right. And as I'm determining it, it does appear that the writing is different. Did you want to lay additional foundation, Mr. Sturgill, or provide information for the court?
Ryan McBride (04:52:38):
I'd be happy to do that. Do you have in front of you state's exhibit 6.1?
David Hull (04:52:46):
I do, yes.
Ryan McBride (04:52:46):
Okay. You've heard the discussion that just took place. It appears as if there's two different styles of writing on that form.
David Hull (04:52:52):
Yes.
Ryan McBride (04:52:53):
Okay. I imagine that you have the writing that includes the personal information for Ms. Wright. And then directly below that, I think there's a line there that appears to be arguably writing prepared by someone else. Is that in fact accurate that that is a different-
David Hull (04:53:14):
That's correct.
Ryan McBride (04:53:15):
... author of that writing? What do you know about that writing on that first line just below statement of incident?
David Hull (04:53:21):
Because we were asking Ms. Wright to verify a specific video. The file name for that video was written on the statement in her presence. And then that video with that file name was then shown to Ms. Wright to verify that it was in fact the video that she had provided to us.
Ryan McBride (04:53:36):
Okay. And so was it you or SBI Agent Davis that prepared that?
David Hull (04:53:43):
Based on the writing, it appears to be Agent Davis's writing, but it's not my writing.
Ryan McBride (04:53:47):
All right. But that is the routine, or is that kind of how you commonly do this?
David Hull (04:53:53):
In this case, because we were specifically asking them to verify a specific digital file that had a specific digital name, and we didn't want there to be any errors in how that name was presented. We wrote the file name on the document for the individuals.
Ryan McBride (04:54:08):
Okay.
Judge Tony F. Graf, Jr. (04:54:10):
All right. Anything further, Ms. Nester, with that additional information before the court makes its ruling?
Kathy Nestor (04:54:15):
No, Your Honor.
Judge Tony F. Graf, Jr. (04:54:16):
All right. Thank you. Could you leave that on the screen for me, please? I appreciate that. And scroll down to the bottom. I just want to review it one last time. All right. And I believe this is exhibit 6.1. Is that correct, Mr. Sturgill?
Ryan McBride (04:54:37):
It is, Judge. And I would move to admit 6.1.
Judge Tony F. Graf, Jr. (04:54:41):
Thank you. So considering the arguments made by Ms. Nester and Mr. Sturgill, I rely upon rule 1102 as well as the Utah Constitutional Article 1, Section 12. As I previously mentioned, that final paragraph, it states, "Nothing in this constitution shall preclude the use of reliable hearsay as defined by statute or rule in whole or in part at any preliminary examination to determine probable cause or at any pretrial proceeding with respect to release of the defendant if appropriate discovery is allowed as defined by statute or rule." I have examined this, and the clarification was made. The previous version of this would fall afoul of having identifiable personal information of Ms. Wright. And so that was removed. And this one with the redacted portion of the identifiable information, personal information for Ms. Wright, is before me. And based off that, state's exhibit 6.1 with redactions is admitted into evidence and may be published.
Ryan McBride (04:55:53):
Thank you, Judge. Agent Hull, that statement that was prepared by Ms. Wright, what does it state with regards to the video that you showed her that day? Or I guess Agent Davis showed her that day.
David Hull (04:56:09):
It states that she's confirmed that she did review the video and that it was a true reflection of the video that she took on September 10th, 2025.
Ryan McBride (04:56:19):
And does she identify who's in that video in her statement?
David Hull (04:56:24):
Herself and her two young children.
Kathy Nestor (04:56:26):
Your Honor, if we could just have a clarification on the court's ruling. So I understand the court overruled and published, and I accept the ruling, but I thought under the court's previous order that the media was not going to film exhibits, and they are filming the ones that are on that screen. So I guess I just need to clarify that, Your Honor. I'm sorry.
Judge Tony F. Graf, Jr. (04:56:54):
No, and I appreciate the clarification; it's important. What my ruling when we came back from break was if you are objecting specifically to the exhibit and then to the exhibit being published in the courtroom and then the exhibit being published, which can be captured by media. If that's not specifically addressed, I am going to allow it. So I didn't hear a specific objection to that. So I appreciate you bringing that up, but that's how I'm looking at every single objection, just for clarity of the record.
Kathy Nestor (04:57:26):
Thank you, Your Honor. So just to make sure I correct the record, we are objecting to the publication of this under the UCJA rules for the reasons I said, but I respect that you've ruled on that. And in the future, I guess we'll just make particularly clear we're objecting to publication because I do think anything that's getting on that screen is getting filmed.
Judge Tony F. Graf, Jr. (04:57:45):
Okay.
Kathy Nestor (04:57:45):
So thank you, Your Honor.
Judge Tony F. Graf, Jr. (04:57:47):
Thank you, Ms. Nester. And Mr. Sturgill, did you want to respond? I mean, Genie's a little bit out of the bottle on this particular issue, but any record you wish to make?
Ryan McBride (04:57:58):
Judge, we're simply going to seek to admit each one of these exhibits, and then we're going to leave it up to Your Honor's discretion on whether to publish them beyond... Well, to what extent do you want to publish them?
Judge Tony F. Graf, Jr. (04:58:10):
All right. Well, I would prefer argument on this issue from both sides. This is the burden of the state, so I don't want to exceed my lane by just assuming. So I'll leave it to you to make the argument what you're requesting.
Ryan McBride (04:59:01):
Sorry about that.
Judge Tony F. Graf, Jr. (04:59:03):
So before you're moving on, Mr. Sturgill-
Ryan McBride (04:59:05):
Oh, yes.
Judge Tony F. Graf, Jr. (04:59:05):
... as it relates to this, I want to put this to bed and then we can move on. Were you requesting for it to be published on the three... You've moved it into evidence, which I approved. It isn't moved into evidence, but I didn't hear anything in regards to publishing to the courtroom. And then lastly, publishing, which it would be captured by the camera in the back.
Ryan McBride (04:59:32):
Judge, we believe these are public documents. So we would ask that they be published both to the audience and to the public at large.
Judge Tony F. Graf, Jr. (04:59:40):
All right. Well, given that we've gone past the gate on this one.
Ryan McBride (04:59:46):
Yeah.
Judge Tony F. Graf, Jr. (04:59:47):
It's been published.
Ryan McBride (04:59:48):
Right.
Judge Tony F. Graf, Jr. (04:59:48):
But I think we're all on the same page in regards to how objections may be made and how the court is going to consider it so we can move forward. All right. Thank you. Mr. Sturgill.
Ryan McBride (05:00:02):
Thank you. Have you personally watched Ms. Wright's video?
David Hull (05:00:24):
I have, yes.
Ryan McBride (05:00:25):
Okay. And what is depicted in that video?
David Hull (05:00:29):
It's a view of Ms. Wright's position in the crowd of the event on September 10th.
Ryan McBride (05:00:33):
Okay. And absent the written statement from Ms. Wright, can you at least recognize the location that's displayed or depicted in this particular video?
David Hull (05:00:47):
Yes. It's the amphitheater at the Utah Valley University where Mr. Kirk was doing his event.
Ryan McBride (05:00:54):
Okay. On your screen, exhibit six. Do you see anything on your screen yet? Just the very beginning.
David Hull (05:01:12):
It's there now.
Ryan McBride (05:01:13):
It's there now. Do you recognize what's depicted on your screen right now?
David Hull (05:01:18):
I do, yes.
Ryan McBride (05:01:21):
And what is that?
David Hull (05:01:21):
In the background is the hall of flags. And then you have the gazebo under which Mr. Kirk was presenting his event from, and then the crowd between where Ms. Wright was and the stage.
Ryan McBride (05:01:33):
Okay. But do you recognize what this is at the beginning of?
David Hull (05:01:37):
Yes, this is the beginning of Ms. Wright's video.
Ryan McBride (05:01:39):
Okay. Judge, the state would move to admit what's been marked state's exhibit 6.1. Oh, I'm sorry, six. I apologize.
Judge Tony F. Graf, Jr. (05:01:50):
And to what level?
Kathy Nestor (05:01:57):
Your Honor...
Judge Tony F. Graf, Jr. (05:01:57):
Hold on. Hold on, Ms. Nester. I just wanted to get the clarification, and then I'll certainly turn to you. So the levels of admitting into evidence, then the next level is publishing it to the courtroom, and then the next level is publishing it in a way that is captured by the media. What is your full request?
Ryan McBride (05:02:15):
Judge, we'd ask that, first of all, it be admitted that it be published here within the courtroom and then that it also be published to the public at large.
Judge Tony F. Graf, Jr. (05:02:27):
All right. And I'm not quite sure what this particular video is showing. Could you lay a little bit more foundation or proffer that, what this is?
Ryan McBride (05:02:36):
Sure. You've seen this video, Agent Hall?
David Hull (05:02:38):
Correct.
Ryan McBride (05:02:39):
What's depicted in this video?
David Hull (05:02:41):
The crowd and the beginning of Mr. Cook's presentation to the audience in the amphitheater at UVU on September 10th, 2025.
Ryan McBride (05:02:49):
Okay. Does it depict Ms. Wright?
David Hull (05:02:54):
I believe towards the end of the video it scrolls back and Ms. Wright shows the people that she's with at the event and herself. Yes.
Judge Tony F. Graf, Jr. (05:03:04):
All right. So is there any act of alleged violence in this particular...
Ryan McBride (05:03:08):
No, there is not, Judge, but there is not.
Judge Tony F. Graf, Jr. (05:03:11):
Okay. I just needed that clarification. Ms. Nester, I'll turn to you. I just wanted to make sure I understand the full scope of this exhibit and then hear from your objection, if any.
Kathy Nestor (05:03:21):
Your Honor, with respect to admission, we object to its admission on the grounds that it's not properly authenticated as Ms. Wright herself is not present for all the constitutional reasons we raised in our standing objection. We object to that. As far as its publication, we object to its publication. It definitely is something that in its current form without her here would not be admissible in any place other than a preliminary hearing. And we feel like this would really impinge on Mr. Robinson's right to a fair trial. And so we're asking it not be published, and certainly if the court does publish it, that it certainly not be filmed.
Judge Tony F. Graf, Jr. (05:04:07):
Thank you. Mr. Sturgill, any response?
Ryan McBride (05:04:10):
Judge, rule 901 addresses authenticating or identifying evidence to satisfy the requirement of authenticating a document or, I guess, authenticating a piece of evidence. The proponent in this case is the state must produce evidence sufficient to support a finding that the item is what the proponent claims it to be. And then the rule goes on to explain or provide examples of how this rule can be satisfied. And at the very top under subsection B1 is testimony of a witness with knowledge. That goes on to say that testimony that an item is what it is claimed to be satisfies this authentication rule. Judge, you have an 1102 statement prepared by the person who actually caught these images on her camera or on her phone. And so, Judge, I think that alone sufficiently authenticates the document. And then even further than that, you have Agent Hull, who has reviewed the video himself and authenticates it, at least with regards to location.
Judge Tony F. Graf, Jr. (05:05:23):
Thank you. As it relates to admissibility of this exhibit, I believe this is state's exhibit six. Is that...
Ryan McBride (05:05:30):
It is, Judge.
Judge Tony F. Graf, Jr. (05:05:31):
All right.
Kathy Nestor (05:05:32):
Your Honor, I'm sorry to interrupt. Can I add one more thing just for the record?
Judge Tony F. Graf, Jr. (05:05:35):
You may.
Kathy Nestor (05:05:37):
For purposes of publication, question under UCJA 4-202.02(4)(R), as in "Richard," photograph, film, or video of a crime victim are designated as private court records. And I do think that based on what the state has previously referenced...
Kathy Nestor (05:06:00):
Based on what the State has previously referenced, they are perceiving that everyone in the audience is a potential victim, and so we think it shouldn't be published under that rule.
Judge Tony F. Graf, Jr. (05:06:11):
Thank you. Mr. Sturgill, on that final point.
Ryan McBride (05:06:13):
Judge, I appreciate that argument from Ms. Nestor. And we don't necessarily disagree, but to that end, to protect who we believe is victims in this video, I believe their faces have been blurred out.
Judge Tony F. Graf, Jr. (05:06:30):
Oh, I see. Ms. Nestor, have you...
Kathy Nestor (05:06:33):
I think it's only the minor children whose faces are blurred out, not Ms. Wright, if I'm not mistaken, unless it's been subsequently altered.
Ryan McBride (05:06:45):
My recollection is they've all been blurred out.
Judge Tony F. Graf, Jr. (05:06:47):
All right. I need to view this again. So let's just put it on my monitor. Again, I'm just trying to make sure that... In order for make a ruling on this, I need to view it. So let's put it on my monitor. Play it without any sound. Okay. My understanding is the prosecution has control of this exhibit, so what I'm asking is that the sound be turned off, if there is any, and just go ahead and play it, and it's only... Well, it's on all the parties' monitors. Because I want you all to view it, because that can go directly to, as you've mentioned, Ms. Nestor, whether it's possibly admissible. So let's go ahead and play that. All right. Thank you. Based off what I've watched, there was some blurring of faces, but not of all the faces. And so I'm going to rule that it is admissible.
Kathy Nestor (05:08:13):
Sorry, Your Honor. We're clarify something for just a minute.
Judge Tony F. Graf, Jr. (05:08:15):
Sure. I'll wait until all parties are ready to proceed. So anything further? I just want to make sure-
Ryan McBride (05:08:32):
No. Judge, you've had a chance to watch that?
Judge Tony F. Graf, Jr. (05:08:33):
I did. So I'm ruling that it is admissible into evidence. Again, taking into consideration the analysis the court's talked about regards to 1102s, and this particular piece of evidence as it relates to the 1102 statement, 6.1. And I'm going to allow it to admit it into evidence, and... Because the faces of the alleged victims are not all obscured, there are some that are visible, it's not going to be published in court monitor, and obviously not to be filmed by the media. So the court will receive it into evidence. The court will watch it again right now, and then we can continue to proceed.
Ryan McBride (05:09:31):
Very good. Thank you, Judge.
Judge Tony F. Graf, Jr. (05:09:33):
To the State, if you would like to play it again for me, I'm viewing it as it relates to consideration as the magistrate.
Richard Novak (05:09:43):
Your Honor, this sounds like an issue that's going to come up again. I represent the news media, can I be heard on this issue?
Judge Tony F. Graf, Jr. (05:09:53):
Yes.
Richard Novak (05:09:58):
I tried to be quiet, I just wanted to address it now because it's going to keep coming up, it sounds like. The classification rule that Ms. Nestor is citing, and that Your Honor was just reading is not about in-court exhibits. That is classification for records in the court file. So it is a fundamentally different thing when we are in a public proceeding and the State is presenting an exhibit that you are relying on, and the public is being denied the chance to see it. That is a fundamental violation of the right of access. And it's a qualified right, and I recognize that, but that's not the ruling that you just made. You're just ruling based on the code of judicial administration, which doesn't have anything to do with when something is presented in a public proceeding.
(05:10:55)
So while I recognize there are certain things where... I understand that you were going to make an exhibit by exhibit evaluation, based on certain exhibits that may cross the heavy threshold of being so prejudicial that they cannot be shown in public, that is not this. I just wanted to make clear that the things that are in rule 202 are not... When it is presented in open court as an exhibit for you to rely on, the public is entitled to see what you're seeing so that they can understand what your decision-making process is. And this one, it doesn't sound like the... This sounds pretty anodyne to me. It's not even depicting the shooting. I just wanted to clarify that the classification issue about when we're filing things with the court, and we say, "This..." Maybe we file a motion to classify, that's not the decision that you're making today. The decision you're making today is the State is presenting something to you, you're watching it, you're making a decision based on it, and the people in the gallery have the right to see that. Whether you allow EMC of it is a different question.
Judge Tony F. Graf, Jr. (05:12:15):
I see.
Richard Novak (05:12:15):
And we think that the EMC should be allowed too, for reasons that we briefed, but I do think that it at least should be published to the courtroom.
Judge Tony F. Graf, Jr. (05:12:24):
Thank you.
Richard Novak (05:12:24):
Thank you, Your Honor.
Judge Tony F. Graf, Jr. (05:12:25):
To the parties, do you wish to respond?
Ryan McBride (05:12:30):
State is fine. We'll submit it. Well, Judge, I'm sorry.
Judge Tony F. Graf, Jr. (05:12:37):
Well, hold on. Okay. So-
Ryan McBride (05:12:38):
I'm sorry.
Judge Tony F. Graf, Jr. (05:12:39):
We'll go to Ms. Nestor first-
Ryan McBride (05:12:40):
Go ahead.
Judge Tony F. Graf, Jr. (05:12:40):
... and then to the State.
Kathy Nestor (05:12:41):
No, Your Honor. Thank you.
Judge Tony F. Graf, Jr. (05:12:41):
Mr. Sturgill.
Ryan McBride (05:12:44):
The only other additional observation I'd make is, with regards to this video, and this video only, the State doesn't believe that the defense really has standing to make an argument on behalf of the victims in this case.
Judge Tony F. Graf, Jr. (05:12:56):
All right. All right. Based off what's been presented, and in recognizing the argument from the media, I see the differentiation, and how they are differentiating the rule that was cited versus what was presented. So I'm going to go ahead and rule that this may be played in the courtroom, but not be captured on video. So to the camera operator, I just want to make sure that it's going to be playing on that, but I don't want it captured. I appreciate the patience of the parties as we were going through the many layers that need to be addressed on exhibits such as these. So we'll go ahead, and... Once that's ready to be played, let's go ahead and do that.
Video (05:13:41):
There's a lot of people in Utah, I'll tell you that.
(05:13:41)
[inaudible 05:14:08]. Alex.
(05:13:41)
Appreciate everybody. You know how it...
Judge Tony F. Graf, Jr. (05:14:10):
Thank you. And that concludes Exhibit Six.
Ryan McBride (05:14:15):
Correct. Thank you.
Judge Tony F. Graf, Jr. (05:14:16):
Mr. Sturgill, you may continue.
Ryan McBride (05:14:20):
Agent Hull, did you or any other [SBI agent collect additional video?
David Hull (05:14:25):
Yes, there were other videos collected.
Ryan McBride (05:14:26):
Okay. What additional video did you collect?
David Hull (05:14:31):
A cell phone video from Mr. Phillips was collected.
Ryan McBride (05:14:34):
Okay. And do you know who, or how that video was collected?
David Hull (05:14:41):
Yes. Agent Schultz made contact with Mr. Phillips September 29th of 2025, and that video was provided to him. Subsequently in preparation for the proceedings today, myself and Agent Davis met with Mr. Phillips on April 6th, and he completed an 1102, and went through the same process as Ms. Wright. The only difference being, on this occasion, that because he is a minor, his mother witnessed it, and also signed the statement.
Ryan McBride (05:15:13):
Okay. So you personally reviewed Mr. Phillips's video with Mr. Phillips?
David Hull (05:15:19):
Correct.
Ryan McBride (05:15:19):
Okay. And you had him prepare a written statement?
David Hull (05:15:22):
Yes. Correct.
Ryan McBride (05:15:23):
Again, on this written statement, are there two different authors?
David Hull (05:15:30):
Yes. I believe, in this instance, it was myself that wrote the file name on the form.
Ryan McBride (05:15:34):
Okay. What part of the statement did you write?
David Hull (05:15:37):
Just the name of the file that we were asking Mr. Phillips to verify.
Ryan McBride (05:15:40):
Okay. I'm going to have exhibited on your screen what's been marked State's Exhibit 7.1. And this should just be for Agent Hull.
David Hull (05:16:05):
That's on my screen.
Ryan McBride (05:16:06):
Is it on your screen? Do you recognize what that is?
David Hull (05:16:09):
I do. Yes.
Ryan McBride (05:16:10):
What is that?
David Hull (05:16:11):
The State Bureau of Investigation 1102 form completed by Mr. Phillips.
Ryan McBride (05:16:15):
Okay. And did you gather that from Mr. Phillips?
David Hull (05:16:17):
I did, yes.
Ryan McBride (05:16:18):
And again, does this statement include the advisory that is going to be used in lieu of his testimony at prelim?
David Hull (05:16:24):
It does.
Ryan McBride (05:16:24):
And does it also include a warning that if he makes a... Well, the author makes a false statement that it could be punishable by being charged with a class A misdemeanor?
David Hull (05:16:33):
It does, yes.
Ryan McBride (05:16:34):
Okay. Anything about this exhibit look different than the day you collected it?
David Hull (05:16:40):
No.
Ryan McBride (05:16:42):
Judge, the State would seek to admit Exhibit 7.1.
Judge Tony F. Graf, Jr. (05:16:46):
Ms. Nestor?
Kathy Nestor (05:16:48):
Thank you, Your Honor. We would object to the admission on the grounds that this video does in fact show a closeup view of the shooting of Mr. Kirk, and grievous injuries in very stark relief. And because of that, we are particularly concerned about our constitutional claims we have made, and our standing objection in terms of our ability to get a fair trial if this is published. And I think, again, we have the same issue with the court being in a position where you're having to make a reliability determination without the opportunity for this individual to be cross-examined.
(05:17:33)
Also, I do think the fact this is a minor that completed this form does make it protected. He's also potentially a victim under the same theory that has been stated for Ms. Wright and under the UCJA acts for the same reason, the UCJA rules for the same reason, these should be protected private court records, and private means it shouldn't be played to court, and it shouldn't be played to the public through the media. So we would object to its admission. We would object to its publication, and we would object to its filming. Thank you.
Judge Tony F. Graf, Jr. (05:18:17):
Any final response?
Ryan McBride (05:18:19):
Judge, let me address... Well, there's two things here. Let me address first the 1102 statement. Judge, I believe again that this statement was gathered in compliance with Rule 1102 (b)(8). Just double-check. And the agent has explained that although Mr. Phillips is a minor, his mother was present, and that explains, I believe he said the second signature on the form. With regards to publishing it, the 1102 statement that is, Judge, we believe, again... The presumption is this is a public record, and that it should be not only admitted, but published here in court, and also published so that the media can record it. Well, do want to address the 1102, and then I'll move on to the video?
Judge Tony F. Graf, Jr. (05:19:14):
All right. So we're staying focused on the 1102. Any final response, Ms. Nestor?
Kathy Nestor (05:19:19):
No, Your Honor.
Judge Tony F. Graf, Jr. (05:19:21):
All right. Thank you. As it relates to the 1102 statement, and to the State representative who is displaying it, could you scroll down? I can only see the top half of this. All right. And just go to the very bottom so I can look at the totality of it. This is 7.1. All right. Based off what's before me on State's Exhibit 7.1, I find that it is admissible under Rule 1102, and to the Utah Constitution, Article I, Section 12, to that paragraph I have referred to previously, and so it is admitted into evidence. And Mr. Sturgill, remind me, were you requesting for it to be displayed? I'm, again, focusing on 7.1.
Ryan McBride (05:20:19):
Right.
Judge Tony F. Graf, Jr. (05:20:21):
In court-
Ryan McBride (05:20:22):
7.1, Judge, with regards to the video, we believe it's admissible. It's been authenticated properly-
Judge Tony F. Graf, Jr. (05:20:27):
Hold on. Hold on. I'm not talking-
Ryan McBride (05:20:28):
I'm sorry.
Judge Tony F. Graf, Jr. (05:20:28):
... about the video. I'm talking about 7. 1-
Ryan McBride (05:20:30):
Right. Oh.
Judge Tony F. Graf, Jr. (05:20:30):
... publishing it in the courtroom versus publishing it on... To be captured by the media.
Ryan McBride (05:20:36):
Judge, the presumption is, is it is a court record, we believe in its redacted form. We believe it should be published in all three areas.
Judge Tony F. Graf, Jr. (05:20:47):
All right. Ms. Nestor, any final thoughts?
Kathy Nestor (05:20:52):
No, Your Honor.
Judge Tony F. Graf, Jr. (05:20:52):
All right. I'm going to go ahead and grant the publishing of Plaintiff's Exhibit 7.1 in court, and that the media may capture that. Let's go ahead and do so.
Ryan McBride (05:21:11):
Scroll up. Slowly scroll down.
Judge Tony F. Graf, Jr. (05:21:15):
All right. You may proceed.
Ryan McBride (05:21:33):
Judge, did you admit Exhibit 7.1?
Judge Tony F. Graf, Jr. (05:21:38):
It is admitted into evidence, and it was published.
Ryan McBride (05:21:40):
All right. Have you personally watched Mr. Phillips's video?
David Hull (05:21:46):
I have, yes.
Ryan McBride (05:21:47):
Okay. And what does it depict?
David Hull (05:21:52):
It's a graphic video. Mr. Phillips was positioned towards the front of the crowd, and it does depict the moment that Mr. Kirk is shot.
Ryan McBride (05:22:01):
Okay. And independent of the 1102 statement prepared by Mr. Phillips, you watching that video, do you recognize at least the location of this video?
David Hull (05:22:11):
I do. It's consistent with the event that Mr. Kirk was presenting at UVU on September 10th, 2025.
Ryan McBride (05:22:17):
Okay. Judge, at this point, the State would move to admit what's been marked State's Exhibit number Seven. We would simply ask that it be admitted. We would ask, however, that it not be published beyond that-
Judge Tony F. Graf, Jr. (05:22:32):
Ms. Nestor?
Ryan McBride (05:22:33):
... due to the graphic nature, and the sensitive nature of the video.
Judge Tony F. Graf, Jr. (05:22:36):
All right.
Kathy Nestor (05:22:38):
So as to the admission, the same issues that we raised as to the 1102, we would raise as to the difficulty of authenticating when the individual's not here present, and all the same concerns that we raised about the 1102 itself, Your Honor.
Judge Tony F. Graf, Jr. (05:22:56):
Thank you. All right. Considering the-
Kathy Nestor (05:23:02):
I'm sorry, may I add one more? I apologize.
Judge Tony F. Graf, Jr. (05:23:04):
You may.
Kathy Nestor (05:23:04):
And also under Rule 403, we think it's more prejudicial than probative, and we would raise it for that reason as well.
Judge Tony F. Graf, Jr. (05:23:11):
Any final response, Mr. Sturgill?
Ryan McBride (05:23:13):
No, Your Honor.
Judge Tony F. Graf, Jr. (05:23:14):
All right. And this is Exhibit Seven, is that correct?
Ryan McBride (05:23:19):
Seven. Correct. Exhibit Seven, Judge.
Judge Tony F. Graf, Jr. (05:23:21):
All right. I will admit Exhibit Seven into evidence based off the foundation that's laid. The 1102 is tied directly to this, and so for admission purposes, it is admitted. I am not going to authorize publication in the courtroom, or obviously through media, but I will have it played on my screen, and so I view it. And I just want to make sure... And please, Counsel, given the graphic nature of it, please guard your screens, because I believe we all should be viewing this. This is evidence, and I want to make sure that you all are seeing what I see to ensure that that is accurate, and it's a fair representation of the exhibit that you are familiar with.
(05:24:10)
So whatever you need to do, I'll give you a moment. And if you could, just give me a thumbs up if you're ready to proceed. Again, I want to act in a way that is dignified and respecting the rights of all persons. And for those reasons, I just want to make sure we are safeguarding to ensure this is not captured. All right. To defense, ready to proceed?
Kathy Nestor (05:24:37):
Yes, Your Honor.
Judge Tony F. Graf, Jr. (05:24:37):
All right. To the State?
Ryan McBride (05:24:40):
Yes, [inaudible 05:24:41].
Judge Tony F. Graf, Jr. (05:24:40):
All right. Go ahead, and let's play Exhibit Seven. Is there sound?
Ryan McBride (05:24:52):
There is, Judge.
Judge Tony F. Graf, Jr. (05:24:53):
All right. Let's make sure that-
Ryan McBride (05:24:54):
[inaudible 05:24:55].
Judge Tony F. Graf, Jr. (05:24:55):
Thank you. Thank you. That concludes playing of Exhibit Seven. You may proceed.
Ryan McBride (05:25:49):
Thank you, Judge. Agent Hull, any more video that you collected, or... Either you or another agent with the SBI?
David Hull (05:25:56):
Yes, we were able to collect video. TPUSA had a videographer, Visual Impulse, who was taking coverage of the event, and they provided video to us that they had captured on September 10th of 2025.
Ryan McBride (05:26:13):
Okay. And do you know who, or how that video was collected from Visual Impulse?
David Hull (05:26:19):
Yeah. Mr. Farnsworth originally provided, I believe, a flash drive to Lieutenant O'Brien with one of the local agencies, and a short time after that on September 10th, he provided downloadable versions, electronic versions to Agent Mortenson, and an 1102 was collected from him on May 6th of 2026.
Ryan McBride (05:26:42):
So an 1102 was prepared by someone with Visual Impulse?
David Hull (05:26:46):
Yes. Terryl Farnsworth was the individual that prepared it. And in preparation for this, I spoke to him personally regarding that statement.
Ryan McBride (05:26:54):
And do you know what his association is with Visual Impulse?
David Hull (05:26:57):
I believe he's the owner operator, or the director of the company.
Ryan McBride (05:27:03):
And then who collected that 1102 statement from Mr. Farnsworth?
David Hull (05:27:07):
It was Agent Mortenson who collected it.
Ryan McBride (05:27:10):
Okay. And you know that because Agent Mortenson told you, or-
David Hull (05:27:13):
He provided it to me, and then as I mentioned, I subsequently spoke to Terryl Farnsworth personally regarding his statement.
Ryan McBride (05:27:20):
Okay. Have you had a chance to look at Mr. Farnsworth's 1102 statement?
David Hull (05:27:30):
I have, yes.
Ryan McBride (05:27:30):
Okay. And again, does that statement include an advisory that any statement that he provided would be used at preliminary hearing in lieu of his live testimony?
David Hull (05:27:42):
Yes.
Ryan McBride (05:27:43):
Did it also include a warning that a false statement would potentially be punished by a class A misdemeanor?
David Hull (05:27:49):
It did, yes.
Ryan McBride (05:27:49):
Okay. I'm going to have exhibited on your screen what's been marked State's Exhibit 8.1. Let me know when that comes up.
David Hull (05:28:01):
That's come up.
Ryan McBride (05:28:05):
I think it's a single page, is it not?
David Hull (05:28:08):
I believe it is.
Ryan McBride (05:28:10):
Got to the top screen. [inaudible 05:28:14]. Can you see that, Agent Hull?
David Hull (05:28:22):
Yes.
Ryan McBride (05:28:30):
You do recognize that?
David Hull (05:28:32):
I do, yes.
Ryan McBride (05:28:35):
Okay. And again, that is what?
David Hull (05:28:36):
It's the 1102 statement that was provided to me, completed by Mr. Farnsworth from Visual Impulse, who is the videographer for TPUSA for the events that they do.
Ryan McBride (05:28:47):
Okay. Judge, the State would move to admit State's Exhibit 8.1.
Judge Tony F. Graf, Jr. (05:28:51):
Ms. Nestor.
Kathy Nestor (05:28:54):
Thank you, Your Honor. At this point, we renew our objection. This statement is hearsay. We have constitutional concerns for the reasons we raised in our standing objection. We also would like to cross-examine Mr. Farnsworth about whether or not, and to what extent these videos may have been altered in any way. It is clear that clips were being made out of the larger videos, because he sent... Even his own statement says he sent larger videos, and this is just a small portion of them. So obviously someone made clips, and we don't know who, and we don't know how, we don't know what they did. And for those reasons, and the reasons in our standing objection, we would object to the admissibility of it, and as well the...
(05:29:47)
I don't have a redacted version of 8.1, but I assume there is one. There is personal information on this one. Do you have the... Okay, I don't have that one. All right. And we would object to publication just on our concerns for fair trial, the same issues.
Speaker 11 (05:30:05):
[inaudible 05:30:07].
Kathy Nestor (05:30:08):
Yeah. Gotcha.
Speaker 11 (05:30:09):
Quickly.
Kathy Nestor (05:30:10):
Yep. I think so. Thank you. And for all those reasons, we would object to its admissibility, its publication, and its ability to be filmed by the media, Your Honor.
Judge Tony F. Graf, Jr. (05:30:23):
Ms. Nestor, I just wanted to check, did you get a copy of the redacted-
Kathy Nestor (05:30:26):
I was just handed it.
Judge Tony F. Graf, Jr. (05:30:28):
Okay. I just wanted to make sure that-
Kathy Nestor (05:30:29):
Right.
Judge Tony F. Graf, Jr. (05:30:29):
... you had copies, so-
Kathy Nestor (05:30:31):
Thank you, Your Honor.
Judge Tony F. Graf, Jr. (05:30:31):
Okay. Thank you. Mr. Sturgill, would you like to respond?
Ryan McBride (05:30:35):
Sure, Judge. Thank you. With regards to the admissibility of the statement, Judge, I think the foundation has been laid that this statement was collected in compliance with Utah Rule of Evidence 1102, Subsection (b)(8). It constitutes reliable hearsay. It's a statement that's been made by a declarant that's written, and it's under oath... Or not under oath, but pursuant to a notification to the declarant that a false statement made is punishable. I think there's been foundation to support that. In addition, Judge, Article I, Section 12 of the Utah Constitution makes it very clear that the State at preliminary hearing can rely upon reliable hearsay.
Judge Tony F. Graf, Jr. (05:31:16):
All right. Anything further before I make my ruling?
Kathy Nestor (05:31:19):
No, Your Honor.
Judge Tony F. Graf, Jr. (05:31:20):
Thank you. Okay. Applying the same analysis from the previous exhibits as it relates to the written statement under Rule 1102, and also under the Utah Constitution Article I, Section 12 in that last paragraph, I will overrule the objection, and admit State's Exhibit 8.1. Let me hold off on that final phrase. If you could scroll down to the State representative, and just stop right there. Thank you. I just want to make sure I fully review it before I make that ruling. And if you could continue scrolling down. And just go ahead and go ahead and scroll down to the end. I don't believe there's anything else, but I want to make sure. Thank you. So I do rule that... Overrule the objection, and State's Exhibit Seven... I'm sorry. 8.1.
Ryan McBride (05:32:39):
8.1.
Judge Tony F. Graf, Jr. (05:32:41):
Is admitted into evidence, and may be published... Well-
Ryan McBride (05:32:44):
Judge, let me speak with regards to that. With regards to the 1102 statement prepared by Mr. Farnsworth in its redacted form, we believe that the presumption is this is a public record, and that it should be published both here in court and made available to the public by virtue of the camera.
Judge Tony F. Graf, Jr. (05:33:02):
Ms. Nestor.
Kathy Nestor (05:33:06):
I just stand on the objection I made before, Your Honor.
Judge Tony F. Graf, Jr. (05:33:09):
Thank you. All right. Looking at the same analysis, is admissible under Rule 1102 as well as Article I, Section 12 of the Utah Constitution. And being that the person's identifying information is redacted and not viewable, I'm going to overrule the standing objection, and have it published both in court, and may be published by the media. So let's just get it situated. And what I'll have you do to the representative of the State, pause on this screen, and then in 10 seconds, scroll down to the full text portion, and then 10 seconds later, just slowly scroll to the remainder of the document. Thank you. All right, you can continue.
Ryan McBride (05:34:27):
Thank you, Judge.
Judge Tony F. Graf, Jr. (05:34:28):
Well, hold on. She's still-
Ryan McBride (05:34:29):
Oh.
Judge Tony F. Graf, Jr. (05:34:29):
... going through it. She's going to show you the whole document.
Ryan McBride (05:34:31):
Thought you were talking to me.
Judge Tony F. Graf, Jr. (05:34:32):
Well, I should have clarified. Thank you. All right. And that concludes State's Exhibit 8.1, the publication of that document. Mr. Sturgill.
Ryan McBride (05:34:46):
Judge, thank you. I appreciate that. Agent Hull, have you personally... So the video that's referenced in Mr. Farnsworth's 1102 statement, have you watched that Visual Impulse video?
David Hull (05:34:59):
Yes.
Ryan McBride (05:34:59):
And what is depicted in that video?
David Hull (05:35:03):
It's a view from the cameras that Visual Impulse had established at the event actually looking out from the stage into the crowd. It too is graphic in nature, and shows the moment that Mr. Kirk is shot.
Ryan McBride (05:35:19):
Okay. Does it also show Mr. Kirk throwing hats out into the crowd? Do you recall?
David Hull (05:35:25):
If my recollection serves, Mr. Kirk used to do that at the beginning of his events, and I believe the video does show him engaging with the crowd prior to becoming seated on the stage.
Ryan McBride (05:35:35):
Okay. Judge, at this point, the State would seek to admit what's been marked State's Exhibit Eight. With regards to publication, Judge, it's our position that it not be published here in the courtroom, and that it not be published so that the cameras can display it.
Judge Tony F. Graf, Jr. (05:35:53):
Thank you, Mr. Sturgill. Turning to Ms. Nestor.
Kathy Nestor (05:36:00):
Your Honor, we would just renew our objections to authentication for admissibility purposes under 901 for the reason that I mentioned in the 1102, which is someone prepared these clips. We don't know who. We don't have that person here to cross-examine in terms of what, if anything, was edited. And for that reason, we think it can't be authenticated, and we object to its admissibility, and our standing objection for constitutional grounds.
Judge Tony F. Graf, Jr. (05:36:29):
Thank you. Just one moment here.
Ryan McBride (05:36:38):
Judge, would you like me to respond?
Judge Tony F. Graf, Jr. (05:36:39):
Yes, please.
Ryan McBride (05:36:42):
Judge, with regards to authentication, again, the State must produce evidence sufficient to support a finding the item is what the proponent claims it to be. And again, under Subsection (b)(1), it's sufficient to provide testimony from someone that has firsthand knowledge, or observed... Or has firsthand knowledge regarding the authenticity of that video. You heard Agent Hull testify that he spoke to the owner of... And the director of Visual Impulse. Visual Impulse, I believe it was testified too, that they contract with TPUSA to film their events. This particular video the State seeks to introduce as Exhibit Eight was shown to Mr. Farnsworth, and that is the video that Mr. Farnsworth authenticates, and says that this is video that was captured by Visual Impulse cameras. So with regards to authentication, I think the State has sufficiently provided the court with evidence to authenticate it.
Judge Tony F. Graf, Jr. (05:37:44):
And this is State's Exhibit Eight? All right. I'm going to overrule the objection and admit State's Exhibit Eight as it relates to publication citing to Article I, Section 28 (1)(a) that... This is Declaration of Rights of Crime Victims, and it states, "To be treated with fairness, respect, and dignity." And to those two points of respect and dignity, the court is not publishing this in the courtroom, nor is it being published obviously online, but the court will watch it in court. And again, to the parties, if you could protect your screens however you choose to, and then I'll check to see when we're ready, and then we'll have it played. So turning to defense, is more time needed to... Okay. Thank you. Turning to the State, to your screens. All right. They are, and I see a head nod, yes. And let's go ahead and play this video only on the monitors, and if there's sound associated with it, the sound to be played as well. You may proceed.
Judge Tony F. Graf, Jr. (05:40:06):
And that concludes State's Exhibit 8. Mr. Sturgill, you may proceed.
Ryan McBride (05:40:11):
Thank you, Judge. So any additional video that was collected by either you or another member of the SBI?
David Hull (05:40:18):
Yes. The campus itself, UVU, is very well-equipped with cameras throughout and they were willing to work with us to provide video from those cameras. And so that was collected as part of the investigation also.
Ryan McBride (05:40:36):
With regards to the UVU surveillance video, do you know if video was collected from there behind where Mr. Kirk was seated at the time that he was shot?
David Hull (05:40:46):
Yes. I'm aware that under the Hall of Flags there is a, I'll refer to it as a breezeway, but a way for people to move from one side into the amphitheater walking underneath the Hall of Flags. And I know there was a camera situated in that location.
Ryan McBride (05:41:00):
Okay. And do you know with regards to that camera view... Well, let me ask you this. So that particular camera view, there was surveillance that was provided to you or another agent from UVU?
David Hull (05:41:15):
Correct.
Ryan McBride (05:41:15):
Okay. And do you recall who provided that video to you initially and who collected it?
David Hull (05:41:20):
Initially, I don't know specifically for that video, but I know that whole process was overseen by Mr. Olsen who's responsible for that system.
Ryan McBride (05:41:33):
Okay. Do you have a first name for Mr. Olsen?
David Hull (05:41:36):
Kurtis Olsen.
Ryan McBride (05:41:37):
I'm sorry?
David Hull (05:41:37):
Kurtis Olsen.
Ryan McBride (05:41:38):
Okay. And do you know what Mr. Olsen or Kurtis Olsen's position is at UVU?
David Hull (05:41:43):
I believe he's a director.
Ryan McBride (05:41:47):
And is it his job to basically gather and forward any video that's captured by UV scans?
David Hull (05:41:52):
Yeah. He has a long title, but I think it's director of infrastructure, but he is responsible for that system.
Ryan McBride (05:42:00):
Okay. With regards to this particular video, the video from underneath the Hall of Flags, what, if anything, have you done with that video in preparation for today's hearing?
David Hull (05:42:12):
I went specifically to meet Mr. Olsen, have him review the video that we had and again, like with the others, I had him complete an 11:02 statement for us describing his role and verifying the videos. I did that actually on July 2nd of this year.
Ryan McBride (05:42:36):
July 2nd of this year?
David Hull (05:42:37):
Correct.
Ryan McBride (05:42:38):
Okay. Give me just one moment.
David Hull (05:42:46):
Actually, I'm going to correct myself on that if I can refer back to my notes.
Ryan McBride (05:42:49):
Okay. Please, yes. Your notes you have there with you again?
David Hull (05:42:54):
Yes.
Ryan McBride (05:42:55):
And referencing them will help you refresh your memory?
David Hull (05:42:58):
It will, yes.
Ryan McBride (05:42:58):
Okay. So don't read from it out loud. Just look at it and let us know when you've refreshed your memory.
David Hull (05:43:02):
Apologies. July 2nd seemed a little bit too soon. It was June 24th when I met with Mr. Olsen.
Ryan McBride (05:43:08):
Okay. And you personally met with Mr. Olsen?
David Hull (05:43:12):
I did, yes.
Ryan McBride (05:43:13):
Okay. And did you personally review this particular video, or I guess the Hall of Flags video with Mr. Olsen?
David Hull (05:43:20):
Yes.
Ryan McBride (05:43:21):
Okay. And he prepared a written statement?
David Hull (05:43:25):
He did, yes.
Ryan McBride (05:43:26):
And on that statement, was that a bureau provided statement form?
David Hull (05:43:30):
It was, yes.
Ryan McBride (05:43:31):
Okay. And on that statement, do you recall whether it includes an advisory that his written statement would be used in lieu of his live testimony?
David Hull (05:43:41):
It did, yes.
Ryan McBride (05:43:41):
Did it also include a warning that if he provided a false statement on that form that he could be punished with a Class A misdemeanor?
David Hull (05:43:49):
It did, yes.
Ryan McBride (05:43:49):
Okay. Where's 12.3?
Speaker 12 (05:43:49):
[inaudible 05:44:15]
Ryan McBride (05:44:23):
[inaudible 05:44:21] Is there something displayed on your screen right now?
David Hull (05:44:26):
There is, yes. It says, "Exhibit 12.3."
Ryan McBride (05:44:28):
Yeah. It should be what's been marked as State's Exhibit 12.3. Do you recognize what that is?
David Hull (05:44:33):
Yes. It's a State Bureau of Investigation's 1102 statement completed by Mr. Olsen.
Ryan McBride (05:44:38):
Right. Does it appear to be in the same condition as when you collected it?
David Hull (05:44:42):
It does, yes.
Ryan McBride (05:44:43):
As the state would seek to admit what's been marked State's Exhibit 12.3.
Judge Tony F. Graf, Jr. (05:44:52):
Ms. Nester?
Kathy Nestor (05:44:56):
Thank you, Your Honor. We would again renew our concern about hearsay and our constitutional concerns about that raised in our standing objection. Also, the concern is that the individual basically states they verified the recordings but doesn't say how, doesn't say whether they viewed it, doesn't say whether someone else viewed it and told them, whether someone else viewed it and told someone else who told someone else who told them. There's just no explanation and we don't think it's sufficient to meet your reliability analysis and we object to admission and we also object to publication. This is for all the same reasons, Your Honor.
Judge Tony F. Graf, Jr. (05:45:38):
To the state.
Ryan McBride (05:45:39):
Judge, again, the state's position is that this written statement was collected in compliance with Rule 1102, subsection B8. It is a statement collected with both the advisory and the admonition. From what we've heard from Sergeant Hull, this individual, Kurtis Olsen, is the person that's his job basically to handle this type of information and turn it over to law enforcement.
Judge Tony F. Graf, Jr. (05:46:10):
All right. I'll have if the state representative can scroll through so I can review it in its entirety and just stop when the majority of that handwritten statement's visible. Thank you. Let me review that. And if you could scroll down to the bottom of the page. Thank you. All right. Under the same analysis for 1102 under Rule 1102, as well as Article 1, Section 28 of the Utah Constitution... I'm sorry, that's the wrong one. Under Article 1, Section 12-
Ryan McBride (05:47:12):
12.
Judge Tony F. Graf, Jr. (05:47:13):
... of the Utah Constitution, that final paragraph, the court overrules the objection and admits State's Exhibit 12.3 as it relates to publication. Mr. Sturgill?
Ryan McBride (05:47:25):
Judge, with regards to publication and this particular exhibit, it's the state's position that the presumption is that it's a public record and we would ask that it be published both here in the courtroom and that the cameras be allowed to capture it and publish it as well.
Judge Tony F. Graf, Jr. (05:47:40):
All right. Ms. Nester?
Kathy Nestor (05:47:42):
Nothing additional, Your Honor.
Judge Tony F. Graf, Jr. (05:47:44):
All right. I note the standing objection from defense and given the court's previous analysis for other 1102s, the court is going to publish it both in the courtroom and so it can be captured by the media. What we'll do is the same thing. We'll start at the top, pause for 10 seconds and go to this middle section and we'll pause about 20 seconds because it is more dense and then we'll scroll down to the very bottom for about 10 seconds and then that will conclude that. So it's now on screen and let's go from there. All right. You can scroll down. Okay. If you'd like to scroll to the very bottom. Thank you. That concludes publication of this exhibit. Mr. Sturgill.
Ryan McBride (05:49:13):
Thank you, sir. Well, in Mr. Olsen's 1102 statement, he references more than one video, does he not?
David Hull (05:49:28):
He does, yes.
Ryan McBride (05:49:29):
Okay. So with regards to the Hall of Flags video, have you seen that particular video?
David Hull (05:49:38):
I have, yes.
Ryan McBride (05:49:39):
Okay. And that video, what does it depict?
David Hull (05:49:43):
It's a view kind of looking what would be east under the breezeway towards the back of the stage where Mr. Kirk was situated. It shows some movement behind the stage area and I believe through the gaps you can see some of the crowd in the amphitheater.
Ryan McBride (05:50:03):
I think I've neglected to do this twice before, so I'm going to do it right this time. Would you please bring up Exhibit 9 without pushing play? Tell me when you see something on your screen.
David Hull (05:50:17):
It's on my screen.
Ryan McBride (05:50:18):
Okay. Do you recognize what's depicted in that still image?
David Hull (05:50:21):
I do, yes.
Ryan McBride (05:50:22):
What is that?
David Hull (05:50:23):
It's the area underneath the Hall of Flags that I refer to as the breezeway.
Ryan McBride (05:50:27):
Okay. And is this the beginning of the video that Mr-
David Hull (05:50:31):
It is, yes.
Ryan McBride (05:50:32):
Okay. That Mr. Olsen provided you?
David Hull (05:50:36):
Yes, yes.
Ryan McBride (05:50:37):
Judge, the state would seek... Well, the state asks or seeks to admit Exhibit 9. With regards to publication, this is another video that due to its sensitive... the nature and the graphic nature of the video, we'd ask that it not be published here in the courtroom, nor published in any way that the media camera could capture it. And following your reasoning, Judge, out of deference to the victims and the victim's rights, to have this type of information protected.
Judge Tony F. Graf, Jr. (05:51:11):
Ms. Nester?
Kathy Nestor (05:51:14):
Thank you, Your Honor. We would object on our standing objection grounds, constitutional issues in terms of the concern about Mr. Robinson's right to a fair trial. We agree it should not be published. We object to its admissibility.
Judge Tony F. Graf, Jr. (05:51:28):
Thank you. Based off my analysis that I apply independently to this exhibit, but it tracks with the previous exhibits, I find that it is admissible and I will admit it into evidence. This is state's Exhibit, I believe, 9. Mr. Sturgill?
Ryan McBride (05:51:47):
Play it.
Judge Tony F. Graf, Jr. (05:51:48):
No, hold on.
Ryan McBride (05:51:48):
Oh, I'm sorry.
Judge Tony F. Graf, Jr. (05:51:48):
This is State's Exhibit 9?
Ryan McBride (05:51:50):
Right. Correct.
Judge Tony F. Graf, Jr. (05:51:51):
All right. As it relates to publication in the courtroom or by the media, again, citing to the Utah Constitution Article 1, Section 281A, it states, "To be treated with fairness, respect, and dignity and to be free from harassment and abuse throughout the criminal justice process." I find that this does apply and in respect to respect and dignity and the human experience, I am going to not publish it in the courtroom nor will it be broadcast, but the court will watch it in open court. And I note it is about... How long is this video?
David Hull (05:52:37):
It's three minutes, Your Honor.
Ryan McBride (05:52:37):
Three minute. Three minutes. Just over three minutes, Judge.
Judge Tony F. Graf, Jr. (05:52:41):
All right. Again, to the parties, if you could just indicate if your screen is obscure. Thank you, Ms. Nester. And to the state, are your screens secure so they're not viewable? All right. Thank you. Seeing Mr. McBride nod his head, we can go ahead to the state representative, go ahead and play state's Exhibit 9. And if there's sound, if you could activate sound. I'm not sure if there is.
Ryan McBride (05:53:10):
[inaudible 05:53:14]
Judge Tony F. Graf, Jr. (05:53:14):
All right. All right. Let's go ahead and replay it. Just wanted to clarify there is no audio, so let's go ahead and restart it. Thank you.
(05:53:23)
State's Exhibit 9 has concluded. Mr. Sturgill?
Ryan McBride (05:56:37):
Thank you, Judge. I'm going to ask you just a few questions with respect to the very... Well, that video and the very end of that video, which is State's Exhibit number nine. Throughout that video, you can see banner. And do you recall seeing a banner that's hanging basically in the middle of that video?
David Hull (05:57:00):
Yeah, I believe that's the rear of the gazebo.
Ryan McBride (05:57:02):
Okay. The rear of the gazebo?
David Hull (05:57:04):
Yep.
Ryan McBride (05:57:04):
And what gazebo are you talking about?
David Hull (05:57:08):
It's like a pop-up tent that Mr. Kirk was sat underneath while he was addressing the crowd.
Ryan McBride (05:57:13):
Okay. So just really quick, just to be clear, where in relation to that banner that you see depicted in Exhibit 9 is Mr. Kirk?
David Hull (05:57:23):
Approximately dead center. He's on a stage, so he's slightly raised in relation to the bottom of that banner and then he's seated in the middle of the stage, so approximately in the center.
Ryan McBride (05:57:35):
And if you know, what's the distance between the banner and then where Mr. Kirk is seated in front of that banner, if I'm understanding you correctly?
David Hull (05:57:45):
I don't know specifically. If I had to estimate, I would say three to five feet.
Ryan McBride (05:57:48):
Okay. So close to that banner?
David Hull (05:57:50):
Yes.
Ryan McBride (05:57:51):
Okay. I also believe towards the end of that exhibit... Well, let me ask you this. If you know, what happened to Mr. Kirk immediately after he was shot?
David Hull (05:58:03):
My recollection is that Mr. Kirk's detail, his own security team removed him from the scene whilst administering first aid and they conducted what would be called a hasty transport to Timpanogos Hospital.
Ryan McBride (05:58:20):
Okay. Before you go any further, that Mr. Kirk being picked up by his own security, is that portrayed in the video in Exhibit 9? I'm sorry?
David Hull (05:58:29):
It's kind of on the left side, the back of the pop-up tent and then you can see Mr. Kirk being carried down the left side of the video under that breezeway.
Ryan McBride (05:58:39):
Okay. And then you said that there was a quick transport. Is that the language you used?
David Hull (05:58:46):
A hasty transport.
Ryan McBride (05:58:47):
A hasty Transport. What does that mean?
David Hull (05:58:49):
Just they were trying to get him to medical as quickly as possible. So I believe he was thrown into one of the team's vehicles and then transported to the hospital as opposed to waiting for an ambulance.
Ryan McBride (05:58:59):
And I think you already stated, but let's just be clear. Do you know which hospital he was transported to?
David Hull (05:59:04):
I believe it's referred to as Timpanogos Regional.
Ryan McBride (05:59:07):
Okay. And do you know if he was treated there at the hospital?
David Hull (05:59:10):
He was, yes.
Ryan McBride (05:59:13):
Okay. Do you know whether or not he was pronounced dead there at the Timpanogos Hospital?
David Hull (05:59:17):
He was, yes.
Ryan McBride (05:59:18):
Okay. And how do you know that?
David Hull (05:59:20):
The medical examiner had an investigator that responded to the scene and I spoke with him and he informed me that he was at the hospital when Mr. Kirk was pronounced deceased.
Ryan McBride (05:59:29):
Okay. And the medical investigator that you spoke to, do you know the name of that person?
David Hull (05:59:37):
Bullock, I believe, Officer Bullock, but if I can refresh my recollection specifically.
Ryan McBride (05:59:41):
If it'll help, if you have it in your notes, it will help you refresh your memory, go ahead and look at that. Again, don't read from it out loud.
David Hull (05:59:47):
It is Officer Bullock, yes.
Ryan McBride (05:59:48):
Okay. And he is a peace officer?
David Hull (05:59:51):
He functions as a law enforcement officer and he works also for the medical examiner as a death investigator.
Ryan McBride (05:59:58):
Okay. Do you know whether Mr. Kirk was autopsied by the Utah Medical Examiner's Office?
David Hull (06:00:04):
Yes. An autopsy was conducted by the Medical Examiner's Office.
Ryan McBride (06:00:08):
Do you know when and by whom?
David Hull (06:00:10):
Yes. It was late into the evening of September 10th or it may even have gone through into the morning of September 11th.
Ryan McBride (06:00:18):
Okay. And do you who did that autopsy?
David Hull (06:00:19):
I'm going to refresh my recollection because of the pronunciation, if you don't mind.
Ryan McBride (06:00:23):
If it'll help you refresh your memory, that'd be great. Again, don't read it out loud, look at it, let me know when you've done that and then we'll go from there.
David Hull (06:00:30):
Dr. Guajardo, I believe is how it's pronounced.
Ryan McBride (06:00:34):
You want to spell that last name?
David Hull (06:00:35):
Yes. G-U-A-J-A-R-D-O.
Kathy Nestor (06:00:38):
Your Honor, if this is not personal knowledge, we object to the hearsay if someone told him all of this. I don't believe this individual was present at the autopsy, so we object to any testimony about the autopsy or what he was told about it.
Judge Tony F. Graf, Jr. (06:00:51):
Mr. Sturgill?
Ryan McBride (06:00:52):
Well, Judge, if I could, I'll just simply lay foundation for the report itself and I think this is all information that's included on the report.
Judge Tony F. Graf, Jr. (06:01:00):
All right. So as it hasn't been moved into evidence just yet, I'm not making a ruling.
Ryan McBride (06:01:06):
I appreciate that.
Judge Tony F. Graf, Jr. (06:01:06):
If you wish to lay more foundation, that's certainly your choice.
Ryan McBride (06:01:10):
So you are aware that the Medical Examiner's Office did conduct an autopsy?
David Hull (06:01:13):
I am, yes.
Ryan McBride (06:01:14):
Okay. And did you receive a report from the Medical Examiner's Office?
David Hull (06:01:19):
I did, yes.
Ryan McBride (06:01:21):
Okay. Detailing the autopsy that was performed?
David Hull (06:01:27):
Yes. Prior to receiving the report, myself and Agent Davis visited with the doctor.
Ryan McBride (06:01:33):
Okay. You visited personally with the doctor that conducted the autopsy?
David Hull (06:01:35):
That's correct.
Ryan McBride (06:01:36):
Okay. And then subsequent to that, and did you discuss the autopsy with the doctor at that point in time when you were meeting with him personally?
David Hull (06:01:43):
Yes. Agent Davis and I had a fairly in-depth conversation, yes.
Ryan McBride (06:01:47):
And where did that conversation take place?
David Hull (06:01:49):
At the Medical Examiner's Office.
Ryan McBride (06:01:51):
Okay and do you recall the date and time that that personal visit took place?
David Hull (06:01:56):
I don't recall.
Ryan McBride (06:01:57):
Okay. Was it within-
David Hull (06:01:59):
It was soon after, within a few days of the incident.
Ryan McBride (06:02:02):
The autopsy?
David Hull (06:02:03):
Yes.
Ryan McBride (06:02:04):
Okay. And subsequent to that visit, did you receive a report from that doctor that you visited with?
David Hull (06:02:12):
We did, yes.
Ryan McBride (06:02:13):
Okay. And that's the Dr. Guajardo that you're struggling to pronounce his name, is that fair to say?
David Hull (06:02:20):
Yeah, I apologize, but yes, that's who it is.
Ryan McBride (06:02:23):
Okay. And the report that was sent to you, do you recall when you received that report?
David Hull (06:02:28):
I don't recall the specific date.
Ryan McBride (06:02:30):
Okay. Have you reviewed that report?
David Hull (06:02:33):
Yes.
Ryan McBride (06:02:39):
Again, you stated earlier that this is not the first murder investigation that you've worked.
David Hull (06:02:43):
Correct.
Ryan McBride (06:02:44):
Okay. I take it this is not the first medical examiner's report you've received?
David Hull (06:02:49):
Correct.
Ryan McBride (06:02:50):
Okay. Do the reports typically look the same?
David Hull (06:02:55):
Yes. They're in a standard format that the medical examiner uses.
Ryan McBride (06:02:59):
Okay. And this report that you received-
David Hull (06:03:00):
Yes.
Ryan McBride (06:03:01):
... from who you believe was the doctor you spoke to-
David Hull (06:03:03):
Yes.
Ryan McBride (06:03:04):
... that conducted the medical exam. Was there anything peculiar about that particular report that stood out to you?
David Hull (06:03:11):
No, it appeared to be a standard form as used by the medical examiner when they send us reports.
Ryan McBride (06:03:16):
Okay. On your monitor, Exhibit 11, I'm going to have displayed what's been marked State's Exhibit Number 11, Judge, for identification.
Judge Tony F. Graf, Jr. (06:03:30):
Right.
Ryan McBride (06:03:30):
And I believe there's nine pages. So let me know when you see that on your screen.
David Hull (06:03:36):
It's on the screen.
Ryan McBride (06:03:38):
All right. What I'd like you to do is just look at this as it scrolls down through the nine pages and wait until we get to the very end. And if you need us to pause or stop or slow down, let us know. I want you to be able to look at all nine pages. Did you look at that?
David Hull (06:04:43):
Yes, sir.
Ryan McBride (06:04:44):
Okay. Do you recognize what that is?
David Hull (06:04:47):
Yes.
Ryan McBride (06:04:48):
What is that?
David Hull (06:04:49):
That's the medical examiner's report of examination for Mr. Kirk.
Ryan McBride (06:04:55):
Yeah and you don't recall exactly when you received that?
David Hull (06:04:59):
I don't unfortunately remember the specific date when I received it.
Ryan McBride (06:05:02):
Do you remember how you received it?
David Hull (06:05:04):
Then provided to us electronically.
Ryan McBride (06:05:06):
Okay. Via email?
David Hull (06:05:09):
Sometimes via email, also on disc, compact disc.
Ryan McBride (06:05:12):
Okay. And does there appear to be anything in the exhibit before you, has that report changed at all or does it accurately depict what you received initially from the doctor?
David Hull (06:05:28):
It accurately depicts it.
Ryan McBride (06:05:31):
Judge, the state would seek to admit Exhibit 11.
Judge Tony F. Graf, Jr. (06:05:35):
Ms. Nester?
Kathy Nestor (06:05:36):
Your Honor, this is an expert report without the expert being present, being offered by an individual who's not an expert in this field. If they're presenting him as an expert in this field based on the limited questions about his experience and seeing previous medical exam records, I'd like to voir dire him on his qualifications to opine about it. This is hearsay. It's highly technical. It should be presented only through an expert. It could never come in trial in any other way. We submit that it is hearsay and to the extent they're going to ask this individual about any opinions about it, that would be improper. He's not qualified to do that. And furthermore, we just think that this is clearly falling under our constitutional concerns about the absence of our ability to be effective to cross-examine to question the... We can't even question the expert's experience or CV or anything that we would normally do to determine if this should even be accepted or considered by the court.
(06:06:42)
And so we strenuously object to its admission and for all those reasons to its publication as well. There's some really personal things in there that should never be published that deal with Mr. Kirk's medical condition history is the condition of his body, it shouldn't be published, Your Honor.
Judge Tony F. Graf, Jr. (06:07:06):
Thank you. To the state?
Ryan McBride (06:07:08):
Judge, this is clearly reliable hearsay admissible under Rule 1102 of the Utah Rules of Evidence. I would direct you specifically to Subsection B5, "For purposes of," and I'm quoting the rule, "For purposes of criminal preliminary examinations only. Reliable hearsay includes..." Subsection 5 specifically states, "Medical and autopsy reports and records." Again, that is supported by Article 1, Section 12 of the Utah Constitution, which states that reliable hearsay can be relied upon at preliminary examination in whole or in part.
Judge Tony F. Graf, Jr. (06:07:48):
And to the second part it's in regards to publication?
Ryan McBride (06:07:50):
As far as the publication, Judge, we agree with Ms. Nester. This is a document that does contain very sensitive information and information that Mr. Kirk's family would appreciate it not being published. And so although we seek to admit it, we'd ask that it not be published here in the courtroom or that it be published in any fashion or way that the public could see it by virtue of a camera.
Judge Tony F. Graf, Jr. (06:08:17):
Ms. Nester?
Kathy Nestor (06:08:18):
Your Honor, I just want to point out that even though 1102 has a provision about exams, I mean, the court still has the overarching mission under 1102 to make this reliability finding, right? And it's just completely in a vacuum being offered by someone who's a police officer. So again, we would just argue that you're just not... It's hampering you for making the analysis you need to make to admit it and we object to it.
Judge Tony F. Graf, Jr. (06:08:44):
All right. Anything further from the parties?
Ryan McBride (06:08:48):
No, Your Honor.
Kathy Nestor (06:08:50):
No, sir.
Judge Tony F. Graf, Jr. (06:08:50):
Sir. All right. So again, relying upon the analysis on Utah Constitution Article 1, Section 12 as it relates to reliable hearsay and then turning to Utah Rules of Evidence Rule 1102, B5 specifically notes medical and autopsy reports and records. The court is going to overrule the objection and admit State's Exhibit, I believe it's 11.
Ryan McBride (06:09:23):
11, yes, sir.
Judge Tony F. Graf, Jr. (06:09:27):
Citing to Utah Constitution Article 1, Section 28, dignity portion, respect and dignity, it will not be published either in the courtroom or viewable on media by the camera for the reasons previously stated as it relates to the video and so the court will receive it and it is admitted into evidence and that concludes that portion. Mr. Sturgill, is this a good point to stop to take our 15-minute afternoon break?
Ryan McBride (06:10:03):
I think it'd be a great idea, Judge. I just got one last question if I could.
Judge Tony F. Graf, Jr. (06:10:07):
Always. You may.
Ryan McBride (06:10:08):
With respect to the medical examiner's report. Agent Hull, in that report does the doctor relate cause and manner of death?
David Hull (06:10:19):
He does, yes.
Ryan McBride (06:10:20):
Okay. And in that report, what is the stated cause of death?
David Hull (06:10:24):
It was stated as a murder.
Ryan McBride (06:10:26):
And manner of death?
David Hull (06:10:29):
It was a gunshot wound to the neck.
Ryan McBride (06:10:34):
Okay. Give me one second.
Kathy Nestor (06:10:34):
Your Honor, I object. It's not stated as a murder. I believe it's stated as a homicide, which is an important distinction.
Ryan McBride (06:10:41):
Judge, I'll go back and correct that.
Judge Tony F. Graf, Jr. (06:10:43):
All right. So I'm going to sustain... Well, first of all, let me look at the report. I need to see that section. I need to be able to draw my own conclusion. So okay, I see. Ms. Nester, are you referring to page one of this report?
Kathy Nestor (06:10:58):
I'm sorry, Your Honor. Could you repeat that? I apologize.
Judge Tony F. Graf, Jr. (06:11:01):
As it relates to your objection for the misstatements, are you looking at page one of the report?
Kathy Nestor (06:11:11):
Yes.
Judge Tony F. Graf, Jr. (06:11:12):
All right.
Kathy Nestor (06:11:12):
And Your Honor, I also need to make an objection on the Best Evidence Rule too. Thank you.
Judge Tony F. Graf, Jr. (06:11:18):
All right. So I'm going to sustain the objection as it relates to the manner of death. It does not say, "Murder," but in regards to the Best Evidence Rule, again, under 1102 and the Utah Constitution that it permits reliable hearsay, State's Exhibit 11 is admitted. Mr. Sturgill?
Ryan McBride (06:11:43):
Agent Hull, I'm going to ask you to look at the first page of Exhibit 11. You see that?
David Hull (06:11:51):
Yes. Yes.
Ryan McBride (06:11:52):
Okay. So let me ask you again and you can look at it and would you mind relating what the doctor reports as the manner of death?
David Hull (06:12:01):
Yes. I misspoke. It does say, "Homicide."
Ryan McBride (06:12:04):
And then the immediate cause of death.
David Hull (06:12:06):
A gunshot wound of the neck.
Ryan McBride (06:12:09):
Nothing further, Judge. Well, at this moment, I think it'd be a great idea that we take a 15-minute break.
Judge Tony F. Graf, Jr. (06:12:14):
Right. And we'll go ahead and go on break. We'll come back at 3:25 and resume with this witness at that time. Court is in a brief recess.
Judge Tony F. Graf, Jr. (06:29:03):
Please be seated. Court is back in session, I'm noting the presence of counsel as well as all the parties. I believe we were continuing with the direct examination of Mr. Hull by Mr. Sturgill. Mr. Sturgill, you may proceed.
Ryan McBride (06:29:25):
Thank you, Judge. So Agent Hull, in addition to what you've already described, what, if anything else, did you do on the 10th of September 2025?
David Hull (06:29:36):
Our primary focus was to identify the individual who'd been seen on the roof with the preliminary footage. And so there was a big effort to review as much of the video that we had available to us from both the public, but predominantly from Utah Valley University, in an effort to follow that individual both forward and backwards from the time of the shooting.
Ryan McBride (06:30:04):
Okay. So if I understood you correctly, priority was to identify the shooter?
David Hull (06:30:10):
Yes.
Ryan McBride (06:30:10):
And to that end, you started reviewing even more UVU video than you've already described?
David Hull (06:30:15):
Correct, yes.
Ryan McBride (06:30:22):
Okay. What, if anything else, either did you do or happened initially that helped you identify who that shooter was?
David Hull (06:30:33):
So there was hundreds of hours of video that was reviewed, but the predominant focus, again, was on tracking the individual from the roof either after the shooting had occurred or trying to trace the steps of the individual prior to the shooting. And we were able to do that through a combined effort of individuals, and the focus was having people reviewing video identify people who could fit the original description of the individual that jumped off the roof.
Ryan McBride (06:31:10):
Okay. So at this point, approximately how many hours of UVU video do you think you personally had seen or watched?
David Hull (06:31:19):
Myself, maybe 10 or 20 hours of video, being called in to look at different camera angles and different views of individuals. But there was a large team of people reviewing video.
Ryan McBride (06:31:35):
Okay. Reviewing video?
David Hull (06:31:37):
Yeah, from UVU.
Ryan McBride (06:31:39):
Were some of them SBI agents?
David Hull (06:31:41):
Yes, correct.
Ryan McBride (06:31:42):
And combined, how much video do you think you watched that first day, on the 10th?
David Hull (06:31:47):
It would be in the tens or hundreds of hours of video was reviewed.
Ryan McBride (06:31:53):
Okay. Did anything else come along that helped you identify who that shooter might be?
David Hull (06:31:59):
Yeah. Eventually, on the evening of the 11th, we received word from Washington County that an individual in that area had reached out to law enforcement and was wanting to turn themselves in for the incident at UVU.
Ryan McBride (06:32:18):
Okay. And at that point in time, did you receive a name from Washington County?
David Hull (06:32:23):
Yes, we did.
Ryan McBride (06:32:24):
And what was that name?
David Hull (06:32:25):
Tyler Robinson.
Ryan McBride (06:32:28):
What, if anything, did you do with that information, the name Tyler Robinson?
David Hull (06:32:32):
That information was given to our SIAC or our State Information and Analysis Group. And they put together what would be called a workup. So they would look at driver's license records, DMV records to determine addresses, obtain pictures of individuals, and then any associated vehicles or things like that.
Ryan McBride (06:32:53):
So was that done with Mr. Robinson?
David Hull (06:32:55):
It was, yes.
Ryan McBride (06:32:56):
Driver's license record was pulled?
David Hull (06:32:58):
Yes.
Ryan McBride (06:32:58):
Did that include, if you remember, or do you know, did that include a photograph of Mr. Robinson?
David Hull (06:33:03):
It did include a photograph of Mr. Robinson, yes.
Ryan McBride (06:33:05):
How about an address and date of birth?
David Hull (06:33:07):
There was an address and a date of birth, and I believe a DMV record with an associated vehicle.
Ryan McBride (06:33:13):
All right. So that DMV record did include a vehicle that was associated with Mr. Robinson?
David Hull (06:33:18):
Correct.
Ryan McBride (06:33:19):
Okay. Do you remember what the make and model of the vehicle was that was tied to Mr. Robinson?
David Hull (06:33:27):
The Dodge Challenger.
Ryan McBride (06:33:30):
Anything else beyond that, that you remember?
David Hull (06:33:32):
It was silver in color, and I believe there were two registered owners of the vehicle.
Ryan McBride (06:33:37):
Okay. And who were the registered owners?
David Hull (06:33:39):
Mr. Robinson and then his mother.
Ryan McBride (06:33:42):
Do you recall whether or not a date of birth was included in that driver's license information that you got initially?
David Hull (06:33:48):
Yeah, I believe the actual driver's license record was shared, so it would've included a date of birth.
Ryan McBride (06:33:53):
All right. Well, with Tyler Robinson's personal information, were you able to expand your search at all?
David Hull (06:34:06):
Yes. Once we knew a vehicle that we were looking for and we had an actual image of the individual, then we were able to use that video footage to try and track that specific individual.
Ryan McBride (06:34:21):
Okay. And I'm sorry, let me clarify. So when I said expand your search, I'm referencing the UVU surveillance video.
David Hull (06:34:30):
Yes, we were able to.
Ryan McBride (06:34:31):
Okay. And were you able to identify in that expanded search, or did you believe you located that Challenger?
David Hull (06:34:42):
We did, yes.
Ryan McBride (06:34:43):
Okay. Were you able to determine at what time or times Mr. Robinson visited the UVU campus on September 10th?
David Hull (06:34:55):
Yeah. We were able to establish that Mr. Robinson had been on campus approximately four times throughout the day, twice before the shooting, the time of the shooting, and then after the shooting later in the evening into the early hours of the 11th.
(06:35:27)
Correct.
Ryan McBride (06:35:28):
Okay. Did you do the same thing with that vehicle?
David Hull (06:35:31):
We did, yes.
Ryan McBride (06:35:32):
Okay. Tracked it forward and backward?
David Hull (06:35:35):
Yes. Using the UVU footage and additional information that was obtained, yes.
Ryan McBride (06:35:42):
And I believe you said that in total, Mr. Robinson visited the UVU campus four times that day.
David Hull (06:35:48):
Yes, that's correct.
Ryan McBride (06:35:49):
And let's just be clear, that's all based on UVU surveillance video. Is that fair to say?
David Hull (06:35:55):
That is correct, yes.
Ryan McBride (06:35:56):
Okay. Have you reviewed what's been marked State's Exhibit 12.1 for identification?
David Hull (06:36:06):
I have, yes.
Ryan McBride (06:36:06):
Okay. And before we go there, of the video that you have personally watched, does the video include the 10th and the 11th, or just the 10th?
David Hull (06:36:21):
The video I've seen includes the 10th and then a very small portion, I think about 0:30, of the 11th.
Ryan McBride (06:36:29):
Okay. And I think you said initially you watched about 20 hours of video?
David Hull (06:36:32):
Yes.
Ryan McBride (06:36:33):
Since that time, have you watched additional video?
David Hull (06:36:35):
Yes.
Ryan McBride (06:36:36):
UVU surveillance video?
David Hull (06:36:38):
Yes.
Ryan McBride (06:36:38):
Okay. And who provided the UVU surveillance video to you?
David Hull (06:36:44):
It was part of the collection of videos that was provided by Mr. Olsen and his team that we already discussed previously.
Ryan McBride (06:36:51):
Okay. Of all the hours of video that you've watched, do you have an idea of how many hours include Mr. Robinson or his vehicle?
David Hull (06:37:08):
Just with UVU or-
Ryan McBride (06:37:09):
Just with UVU. I'm sorry.
David Hull (06:37:11):
Just with UVU would probably be about 16 hours.
Ryan McBride (06:37:19):
And let's be clear, this is someone you believe to be Tyler Robinson?
David Hull (06:37:23):
Correct.
Ryan McBride (06:37:25):
Okay. And this person that you've identified as Tyler Robinson, that you've been investigating and that you've viewed in the numerous hours of video from UVU, would you recognize that person if he were in the courtroom today?
David Hull (06:37:38):
Yes.
Ryan McBride (06:37:39):
Is he in the courtroom today?
David Hull (06:37:40):
He is, yes.
Ryan McBride (06:37:40):
Would you point him out and describe something that he's wearing?
Kathy Nestor (06:37:44):
Your Honor, we object to unduly suggestive in-court identification for constitutional grounds.
Judge Tony F. Graf, Jr. (06:37:57):
Do you wish to specify an unduly constitutional... I'm trying to understand your objection, so I want to make sure I fully understand-
Kathy Nestor (06:38:04):
Your Honor, I think there's some... And I'll defer to Mr. Burt if he wants to jump in, but I believe there's a long line of case law that says, and you ask someone to identify the defendant when they're the only person sitting at the table with defense counsel, that that's unduly suggestive and taints any future, or past, well, definitely future identification. So we object to that happening in this fashion at this time.
Judge Tony F. Graf, Jr. (06:38:35):
Mr. Sturgill.
Ryan McBride (06:38:37):
Judge, Agent Hull has testified that he has watched numerous hours of video of... Well, take a step back. He has looked at personal identifying information of an individual by the name of Tyler Robinson. He's looked at the driver's license record, and he's also looked at the DMV records and has been able to determine what car that person drives. He's also looked at surveillance video that he believes depicts this Tyler Robinson. And I've simply asked him if that person that he has seen, both in driver's license photos and the surveillance video, if that person is here in the courtroom today. I don't know that that's unduly prejudicial or suggestive. It's the routine. I don't know of any other way to do it other than the way I just did it, Judge.
Judge Tony F. Graf, Jr. (06:39:30):
Well, I wanted to verify the format of the question. I remember it in my mind, but to Ms. Nester, was that an accurate portrayal of the question that was asked?
Kathy Nestor (06:39:40):
Yes.
Judge Tony F. Graf, Jr. (06:39:41):
Okay. Mr. Sturgill, anything further before I issue my ruling?
Ryan McBride (06:39:46):
No. Other than, Judge, I believe it's worth noting that Mr. Robinson is in plain clothes. Well, he's... Yeah, he's in plain clothes-
Judge Tony F. Graf, Jr. (06:40:55):
Counsel, please approach the bench. All right. Based off what's been presented in court, I'm not finding that particular question, as previously posed as suggestive. I find, for the purposes of this hearing only, that in-court identification by Agent Hull of Mr. Robinson has been made. Again, this only relates to the preliminary hearing, and you may proceed.
Ryan McBride (06:41:22):
Thank you, Judge. Agent Hull, have you reviewed what's been marked State's Exhibit 12.1 for identification?
David Hull (06:41:29):
I have, yes.
Ryan McBride (06:41:31):
And where did you review that video?
David Hull (06:41:33):
It was provided to me. I reviewed it on my computer in my office.
Ryan McBride (06:41:40):
Okay. And is that the first time that you've seen this particular video footage?
David Hull (06:41:46):
This particular version of the footage, yes.
Ryan McBride (06:41:48):
Okay. So this particular version the first time, but have you seen the video that comprises, I guess, Exhibit 12.1?
David Hull (06:42:01):
I have seen the original videos, if that's your question. Yes.
Ryan McBride (06:42:06):
So what is State's Exhibit 12.1? How would you describe it?
David Hull (06:42:10):
I would describe it as a compilation of the video that we obtained from Utah Valley University during the course of the investigation that depicts the movements of the individual I believe to be Mr. Robinson moving around the campus on September 10th, 2025 into the morning of September 11th, 2025.
Ryan McBride (06:42:31):
Did you prepare this video compilation?
David Hull (06:42:34):
I did not.
Ryan McBride (06:42:35):
Okay. Do you know who did?
David Hull (06:42:37):
Yes. Utah County Attorney's Office. I believe Ms. Derfler is the one that produced the video.
Ryan McBride (06:42:41):
Okay. Do you know Ms. Derfler's first name?
David Hull (06:42:43):
Kimberlie.
Ryan McBride (06:42:44):
Okay. What, if anything, did you do to authenticate the video in this compilation?
David Hull (06:42:51):
I reviewed the video to make sure that it was a reflection of what I understood the original videos to show.
Ryan McBride (06:42:58):
Okay. What, if anything else, did you do?
David Hull (06:43:05):
I reviewed it. I know that there was some zooms and some changes to the footage.
Ryan McBride (06:43:11):
Okay. Did you meet with Mr. Olsen with regards to this particular video?
David Hull (06:43:16):
Yes. This video was also part of that original meeting with Mr. Olsen for the prior exhibit. Yes.
Ryan McBride (06:43:21):
Okay. So at the same time you sat down with Mr. Olsen and discussed the prior exhibit. And let's just be clear which exhibit that is. So I believe the... Well, the 1102 statement that you gathered from him is Exhibit 12.3, correct?
David Hull (06:43:42):
Yes.
Ryan McBride (06:43:43):
Okay. So at the same time that you gathered that 12.3, or that written statement that is State's Exhibit 12.3, you talked to him about this specific exhibit as well?
David Hull (06:43:54):
Yes. Mr. Olsen was shown this exhibit.
Ryan McBride (06:43:56):
Okay. And did he include that in that 1102 statement?
David Hull (06:44:00):
Yeah, I believe he specifically referenced the exhibit by name stating that it was a true reflection of the footage from the campus. Okay.
Ryan McBride (06:44:16):
And let's just go back to what you were stating earlier. To you, it appears to be a compilation of videos that you've already seen.
David Hull (06:44:24):
Correct.
Ryan McBride (06:44:25):
That you received as a mass dump, I guess, for lack of a better term, if you view video. Is that fair to say?
David Hull (06:44:30):
Yes.
Ryan McBride (06:44:31):
Okay. And the Exhibit 12.1, does it appear to be the same as the raw video that you've seen previously?
David Hull (06:44:45):
It does, yes.
Ryan McBride (06:44:46):
Okay. Are there some minor... Are there any additions or anything different about this particular exhibit?
David Hull (06:44:53):
There are some portions of the video where a zoom is initiated, which wasn't a function of the cameras. I believe some specific individuals have been blurred from the footage, and I believe there are some red circles to show poignant information or individuals within the footage itself.
Ryan McBride (06:45:09):
Okay. So other than the red circles, the blur, and the zoom, does it appear to accurately depict what you've seen in the raw video footage?
David Hull (06:45:18):
I believe so, yes.
Ryan McBride (06:45:19):
Okay. On your screen, I'm going to have displayed an image. Let me know when you see it.
David Hull (06:45:51):
The image is there now. It's gone again.
Ryan McBride (06:45:57):
Is it there?
David Hull (06:45:59):
We're back. Yeah.
Ryan McBride (06:46:00):
Okay. We're back. So do you recognize what this is?
David Hull (06:46:03):
Yeah, this is the first frame of the video compilation that we just referenced.
Ryan McBride (06:46:08):
Okay. And again, this video portrays what you believe is Mr. Robinson visiting campus that day?
David Hull (06:46:15):
Correct.
Ryan McBride (06:46:16):
Okay. And is it throughout the day?
David Hull (06:46:18):
It is, yes.
Ryan McBride (06:46:18):
And then I believe you said into the early morning hours to the 11th, is that right?
David Hull (06:46:22):
Correct.
Ryan McBride (06:46:22):
Okay. Judge, the State would move to admit what's been marked State's Exhibit 12.1.
Judge Tony F. Graf, Jr. (06:46:40):
Ms. Nester?
Kathy Nestor (06:46:43):
Your Honor, we have objections to its admissibility. This is a compilation video that was put together from a bunch of different sources by the County Attorney's Office. This individual did not create this compilation, cannot testify to the accuracy of the actual materials that it was taken from. And furthermore, Mr. Olsen himself is just referred to by Agent Hull. He specifically says people have altered these recordings. They've zoomed in when the actual recording isn't zoomed. They've added little circles to people they want you to pay attention to. They've blurred people's faces out. So, I mean, it's been clearly altered. I mean, they admit it's been altered, so we have real concern about authenticity of it. Furthermore, this particular video should be protected, and so that deals with the admissibility factor. As far as the publication factor of it, the video should be classified as protected under UCJA 4-202.0-
Kathy Nestor (06:48:00):
Go to 4-202.02 subsection five, J as in jelly bean, and then little i and little double ii. Because this is going to interfere with the defense's ongoing investigation with Mr. Tyler's ability, I mean with Mr. Robinson's ability to get a fair trial. This is basically putting together photos that are clear with photos that aren't clear, putting them all together in such a format that it makes the case that it's all one person.
(06:48:37)
It would be extremely prejudicial for people that may ultimately serve on this jury to watch this video before this case goes to trial. We don't believe a proper foundation's been laid which would make it admissible at this point. So the fact that it would be shown to the public would be extremely damaging to the ability to put on a defense at trial. And so we object to its publication both in the courtroom and to the media, Your Honor.
Judge Tony F. Graf, Jr. (06:49:06):
Mr. Sturgill.
Ryan McBride (06:49:07):
Judge, Ms. Nester is correct. This is a compilation of a series of videos. The videos, as Sgt. Hull has testified to is a compilation of raw videos that he has received from Utah Valley University. And he has not only seen this video, but he has seen all the raw footage. And by his estimation, or according to his testimony, these are all videos that are accurate, and they depict what the raw footage depicts, other than those minor additions.
(06:49:45)
Judge, if you refer to Mr. Olson's written statement, it's plaintiff's exhibit 12.3. He, too, has reviewed this video, and he has also identified this video as being accurate with the exception of those additions. In his words, it's the zooms and the red highlights. They weren't part of the original recording, according to Mr. Olson. But other than that, as he states, the same as Agent Hull, these videos are accurate, and they were captured by UVU surveillance video.
Judge Tony F. Graf, Jr. (06:50:26):
Do you have a version of this video that does not have alterations, such as zooming or circling? My concern is that the 1102 says what it says about the videos. These were the videos.
Ryan McBride (06:50:42):
Right.
Judge Tony F. Graf, Jr. (06:50:43):
But then it was altered. And typically an exhibit which has been altered, and if it wasn't done by the person who supplied the 1102, that can become problematic. And so do you have a version of this exhibit that does not have the zooming in or the circling? Again, I don't know all the alterations that were made, but that seems to fall outside the 1102, because you don't have a person testifying 1102 saying, "I made the alterations."
(06:51:13)
And so that's the concern of what Ms. Nester was talking about as it relates to the state's evidence. I have that concern about those alterations. Again, I don't know when they were made, what they were made, how much was done to manipulate the video. And I say manipulate to, not saying it in a nefarious way, but I don't know what the scope of that is, and how much it deviates from what was the original form.
Ryan McBride (06:51:44):
Well, Judge, to answer your first question, do we have a version of this particular video that has not been altered? We don't, not right now, not today. I guess there's a ... Well, there's a couple of things I'd simply like to point out, Judge, and that is that we have two witnesses who have watched the raw footage.
(06:52:04)
And Agent Holt here today on the stand, and Mr. Olson in the form of his written statement, they have both said that this video, with the exception of these alterations, accurately depicts the video that was captured by UVU surveillance video. Judge, I will proffer that those changes made to the video were not done by either. I know who that person is. We could actually call that person as a witness if that would cure that, and we're prepared to do that if necessary. But Judge, I think that our burden is to simply authenticate what this is.
(06:52:45)
And it is a video that, with only a few exceptions, alterations that really don't change the substance of the video or the content of the video. They're accurate. They depict what the cameras captured on September 10th and the 11th. And we have two people who have seen that raw footage, and they've explained that's the only difference between what we have originally, in the original videos, and what you're seeing here today. And the additions, I will submit, Judge, were only added to make it easier to view.
Judge Tony F. Graf, Jr. (06:53:20):
All right. Anything further from the parties?
Kathy Nestor (06:53:23):
No, Your Honor.
Ryan McBride (06:53:26):
All right. I'm sustaining the objection. Typically, when exhibits are admitted to the court, it is without alteration. If a party circles an exhibit, a photograph, that's not the original format. And I do not have the person who made the alteration, an 1102 to substantiate that.
(06:53:46)
And what I have is the original video, and Mr. Olson saying, "This is the video, minus the alterations." And we have Agent Hull saying, "This is the video and there are alterations," but I'm missing a link. And it may be minor. But in this type of case, I want to be thorough, and I want to make sure that what is minor is still important. And for those reasons, I'm going to sustain the
objection, and leave it to the parties on how you wish to handle the video. In the future, I don't want to provide guidance either way. But as it stands today, this exhibit, State's Exhibit ...
(06:54:23)
12.3-
Judge Tony F. Graf, Jr. (06:54:25):
12.1-
Ryan McBride (06:54:26):
... or 12.1-
Judge Tony F. Graf, Jr. (06:54:26):
... is not admitted.
Ryan McBride (06:54:27):
Okay. Judge, could I have just one moment?
Judge Tony F. Graf, Jr. (06:54:29):
You may.
Ryan McBride (06:55:48):
Agent Hull, you testified that there were four visits to campus that day.
David Hull (06:55:51):
Correct, yes.
Ryan McBride (06:55:52):
And the first three visits, based on what you have observed, it's your opinion that those videos were captured by UVU surveillance video. Is that correct?
David Hull (06:56:04):
That is correct, yes.
Ryan McBride (06:56:06):
The fourth visit, well, the fourth visit too was captured by UVU surveillance video. Is that correct?
David Hull (06:56:18):
Correct.
Ryan McBride (06:56:21):
Was there any other video that was collected, either on the 10th or the 11th, that you believe might be important or relevant to today's hearing?
David Hull (06:56:35):
There was a large amount of video that-
Ryan McBride (06:56:38):
I'm going to be a little bit more specific. Other than UVU surveillance video, was there any other video that you collected and subsequently gathered an 1102 statement for?
David Hull (06:56:56):
Yes. We collected Ring doorbell footage from the surrounding neighborhoods.
Ryan McBride (06:56:59):
Okay. Let me ask you this. Did that include video from a residence located at 680 W 925 S Orem?
David Hull (06:57:20):
Yes. That's in the Horseshoe area. Yep.
Ryan McBride (06:57:23):
Okay. That's in Orem?
David Hull (06:57:26):
Correct.
Ryan McBride (06:57:27):
And close to campus?
David Hull (06:57:28):
It is, yes.
Ryan McBride (06:57:29):
Okay. And what can you tell us about that video?
David Hull (06:57:31):
It was a Ring doorbell video that was provided, that showed a vehicle consistent with the one we had identified as belonging to Mr. Robinson parking in front of the residence across the street.
Ryan McBride (06:57:46):
Okay. And what can you tell us about the timing of that parked vehicle?
David Hull (06:57:54):
If I recall, that vehicle parked approximately 038 hours on the morning of the 11th.
Ryan McBride (06:58:02):
Okay. So 038 hours, what time is that to regular people?
David Hull (06:58:09):
Just after midnight.
Ryan McBride (06:58:10):
At 12:38 AM?
David Hull (06:58:12):
In the morning, yes.
Ryan McBride (06:58:12):
Okay. So how did this video come to your attention that you're talking about, this doorbell or whatever?
David Hull (06:58:22):
This footage was obtained as part of the canvas of the area that was conducted as part of the investigation.
Ryan McBride (06:58:29):
Were you able to identify the owners of that residence?
David Hull (06:58:33):
Yes.
Ryan McBride (06:58:34):
Where that video was collected from?
David Hull (06:58:35):
Correct.
Ryan McBride (06:58:36):
Okay. And do you know who it was collected from, and by whom?
David Hull (06:58:39):
It was Mr. and Mrs. Noble. I believe Agent Davis collected the video directly from them.
Ryan McBride (06:58:46):
Okay. And do you know what date it was collected?
David Hull (06:58:52):
If I can refresh from my notes.
Ryan McBride (06:58:53):
If referring to your notes will refresh your memory, go ahead and look at that. Don't read it out loud.
David Hull (06:59:12):
I don't have the specific date, but I do know that myself and Agent Davis returned to the address, as we had done with previous videos, and had the owners of the video verify that it was from their system. And we did have them complete an 1102 statement, which would be dated.
Ryan McBride (06:59:30):
Okay. So let's talk about this. What does this video look like?
David Hull (06:59:39):
It's a nighttime view looking from the front porch of the residence across the street.
Ryan McBride (06:59:44):
Okay. And what about that video? Why was this particular video significant to you? Why do you think it was related to this case?
David Hull (06:59:53):
We know from the UVU footage that the person we believe to be Mr. Robinson had an interaction with law enforcement. And a short period after that, the vehicle comes to that house, and some additional evidence that was collected from cell phone data and things indicated that Mr. Robinson was in the area, and we were able to locate the footage of his vehicle on that Ring doorbell camera.
Ryan McBride (07:00:22):
Or at least what you believe is his vehicle?
David Hull (07:00:24):
Yeah. The vehicle we believe to belong to Mr. Robinson, yes.
Ryan McBride (07:00:27):
And is there something about this particular video, and this, I guess, vehicle that was captured that leads you to believe that it was Mr. Robinson's vehicle?
David Hull (07:00:36):
Yeah. The vehicle has very distinct wheels. I won't say that they're wholly unique, but in terms of the video footage that we were reviewing, the wheels on the vehicle are fairly unique and stand out on the video footage.
Ryan McBride (07:00:51):
Okay. So again, this is video that you received early on in the investigation?
David Hull (07:00:59):
Yes.
Ryan McBride (07:00:59):
And then in preparation for the preliminary hearing, you went back out and you met with someone about this video?
David Hull (07:01:05):
Correct.
Ryan McBride (07:01:05):
Who specifically did you meet with about this video?
David Hull (07:01:08):
Met with Mrs. Noble.
Ryan McBride (07:01:09):
And what did you do with Ms. Noble?
David Hull (07:01:12):
We did what we had done before. We had a specific file that we wanted, or files that we wanted her to verify. The footage itself is broken into, I believe, 10-second segments. So we had specific files that we had her view and confirm that they were actually from her system. Those were written on the 1102, as they have been before.
Ryan McBride (07:01:35):
And who wrote those file names on this particular statement?
David Hull (07:01:38):
I believe it would be my handwriting on the 1102.
Ryan McBride (07:01:40):
All right. What did you do next?
David Hull (07:01:43):
We had her view the videos, and then complete a statement verifying the authenticity of those videos on the 1102.
Ryan McBride (07:01:50):
Okay. Was this also prepared on a State Bureau form?
David Hull (07:01:54):
I believe this was on a State Bureau Investigations form, yes.
Ryan McBride (07:01:57):
And in this particular form, on which Ms. Noble provided her statement, does it have the advisory that it would be used in lieu of her testimony here today?
David Hull (07:02:05):
It does, yes.
Ryan McBride (07:02:06):
Does it also contain a warning that if she gave a false statement, it's punishable by a Class A misdemeanor?
David Hull (07:02:12):
Correct.
Ryan McBride (07:02:13):
Okay. I'm going to have displayed on your monitor what's been marked state's exhibit number 13 for identification. Let me know when you see that, would you?
David Hull (07:02:28):
I can see that.
Ryan McBride (07:02:29):
Okay. And I'm going to have my assistant scroll through that slowly. Okay. Do you recognize that?
David Hull (07:02:54):
I do, yes.
Ryan McBride (07:02:54):
What is that?
David Hull (07:02:56):
The 1102 that myself and Agent Davis collected from Ms. Noble.
Ryan McBride (07:03:01):
And does it appear to be in the same condition as when you collected it?
David Hull (07:03:05):
It does, yes.
Ryan McBride (07:03:06):
This is a copy, right?
David Hull (07:03:08):
Yes.
Ryan McBride (07:03:11):
Okay. And the personal identifying information appears to be redacted. Is that right?
David Hull (07:03:18):
It has been redacted, yes.
Ryan McBride (07:03:20):
Okay. It wasn't redacted when you collected it, right?
David Hull (07:03:23):
No, no the original form was not redacted.
Ryan McBride (07:03:25):
So other than the redactions, it appears to be in the same condition as it was when you collected it?
David Hull (07:03:29):
That is correct.
Ryan McBride (07:03:30):
State would move to admit Exhibit 13.
Judge Tony F. Graf, Jr. (07:03:32):
Ms. Nester?
Kathy Nestor (07:03:36):
Your Honor, we renew our concern about unconstitutional hearsay being admitted. We also have the same concerns about the fact that Agent Hull amended this himself, and there's no foundation as to when he filled that in, if it was before or after she signed it. And due to all those reasons, we object to its admission and object to its publication as well.
Judge Tony F. Graf, Jr. (07:04:04):
Mr. Sturgill?
Ryan McBride (07:04:06):
Judge, again, it was collected in compliance with Rule 1102 of the Utah Rules of Evidence, specifically subsection (b)(8). It's in writing. It's on a form. It includes both the advisory and the warning, and it was collected by Agent Hull. It's also collected in compliance and being introduced as reliable hearsay, which is lawful to do here in Utah under the state constitution. Article one, section 12.
Judge Tony F. Graf, Jr. (07:04:40):
Do you wish to lay more foundation about when the statement was written, whether it was before it was signed or not?
Ryan McBride (07:04:45):
I can do that, Judge. I appreciate that. Yes. Agent Hull, do you recall when you collected this written statement from Ms. Noble?
David Hull (07:04:53):
Yes, it was in April.
Ryan McBride (07:04:54):
In April. Do you know what day?
David Hull (07:04:55):
April 6th, I believe.
Ryan McBride (07:04:57):
Okay. And you collected it. Did you go to her home? I think, is that what you said?
David Hull (07:05:02):
Yes. Myself and Agent Davis went to the residence.
Ryan McBride (07:05:04):
Okay. And did you sit there while she prepared it?
David Hull (07:05:06):
I did, yes.
Ryan McBride (07:05:07):
And did you witness her sign it?
David Hull (07:05:09):
I did, yes.
Ryan McBride (07:05:09):
Okay. At this point, I'd move to admit exhibit 13.
Judge Tony F. Graf, Jr. (07:05:16):
All right. And to the state representative, could you scroll down? Okay. All right. Pursuant to the Utah Rule of Evidence 1102 and article one, section 28 ... I'm sorry, article one, section 12, which allows for reliable hearsay, I'm going to move it into ... It's going to be admitted into evidence over the objection of defense.
(07:05:50)
I note in particular that it states that, "I confirmed that the above files were taken from our Nest doorbell videos and are accurate." And right before that statement is the notations that were allegedly made by Agent Hull. And so for those reasons, the court finds proper foundation has been laid, and that this exhibit in its entirety is admitted into evidence.
(07:06:24)
As it relates to publication, I will authorize publication in the courtroom and by the media if they so wish to capture it in that form. Again, following the same format, I have it on that first portion of the screen for about 10 seconds, and then scroll down to the written portion for about 15 seconds, and then scroll to the very bottom to ensure that the full exhibit has been displayed. All right. That concludes the publication of state's exhibit 13.
Ryan McBride (07:07:21):
Thank you, Judge. The video that you took with you that day when you visited with Noble, or Ms. Noble, had you previously ... Well, you've stated that the videos that you showed the Nobles were actually more than one video.
David Hull (07:07:45):
Correct.
Ryan McBride (07:07:45):
Okay. And I believe you said they were like 10-second clips.
David Hull (07:07:48):
If I recall correctly, yes.
Ryan McBride (07:07:49):
Short clips. And you showed Ms. Noble all of those videos that are identified in that statement?
David Hull (07:07:59):
The one shown on the statement was shown to Ms. Noble, yes.
Ryan McBride (07:08:07):
Have you had a chance to review what's been marked state's exhibit number 12.2?
David Hull (07:08:13):
Yes.
Ryan McBride (07:08:14):
And when did you have a chance to review that exhibit?
David Hull (07:08:18):
I believe that was reviewed last week, I believe. With yourself.
Ryan McBride (07:08:26):
And does that video, is it a single video that you watched?
David Hull (07:08:31):
No, I believe it's four separate short videos.
Ryan McBride (07:08:34):
And I understand that, but as far as 12.2 is concerned, what does that exhibit consist of?
David Hull (07:08:43):
It shows the vehicle believed to be driven by Mr. Robinson arriving in front of the residence, an individual exiting the vehicle and moving away from it, followed by an individual returning to the vehicle and unlocking it. And then it shows the vehicle a short time later starting and leaving the area.
Ryan McBride (07:09:04):
And those are the videos that you showed Ms. Noble?
David Hull (07:09:06):
Yes.
Ryan McBride (07:09:07):
12. ... What I have displayed on your monitor, what's been marked state's exhibit 12.2 for identification. Let me know as soon as you see ... Should be a still image.
David Hull (07:09:28):
It's there.
Ryan McBride (07:09:29):
Do you recognize what's depicted there?
David Hull (07:09:32):
Yeah, this is the view looking, what would essentially be west, across the street from the Nobles residence.
Ryan McBride (07:09:40):
Okay. At 12:38 AM, I guess, or 038?
David Hull (07:09:44):
Yes.
Ryan McBride (07:09:45):
Okay. And what is depicted in this ... I think you've already described that. So Judge, I would move to admit exhibit 12.2.
Judge Tony F. Graf, Jr. (07:10:02):
Ms. Nester?
Kathy Nestor (07:10:08):
Your Honor, we renew our objection to allowing in the evidence without the sponsoring witness. I do have some concerns, because I'm not totally sure if this is a compilation, or if this is just one of the one, two, three, four, five, at least six videos they took from the Nobles. So if we could have that clarification, I think that that concerns me about authenticity, that I don't understand if this is just a portion, or if this is the whole thing, or is this all of them or none of them? And for those reasons, we object to the admission and to publication.
Judge Tony F. Graf, Jr. (07:10:45):
Thank you. Mr. Sturgill?
Ryan McBride (07:10:48):
That's a good point. And I'll ask additional questions before I re-seek to admit it. Agent Hull, this particular video, you've described taking several videos to Ms. Noble and having her review them.
David Hull (07:10:57):
Yes.
Ryan McBride (07:10:58):
Okay. This particular exhibit, 12.2, have you watched it in its entirety?
David Hull (07:11:02):
Yes.
Ryan McBride (07:11:03):
Does it consist of either some or all of those videos that you showed Ms. Noble?
David Hull (07:11:09):
It does, yes.
Ryan McBride (07:11:10):
Okay. And is it a single video? Is it a compilation, that is to say? Or is it four different videos?
David Hull (07:11:18):
It would-
Ryan McBride (07:11:18):
Or a number of different videos?
David Hull (07:11:20):
... be a number of short videos sequenced.
Ryan McBride (07:11:22):
Okay. A number of short videos in sequence?
David Hull (07:11:26):
I believe that's how this one plays, yes.
Ryan McBride (07:11:29):
Okay. Judge, again, I seek to admit it.
Judge Tony F. Graf, Jr. (07:11:35):
Anything further from the parties?
Kathy Nestor (07:11:38):
No, your Honor.
Judge Tony F. Graf, Jr. (07:11:39):
All right. Given my previous rulings on exhibits, I apply the same analysis and find that state's exhibit 12.2, I believe, is admitted over the objection, and may be published in the courtroom and by the media if so chosen.
Ryan McBride (07:12:03):
Okay. So before we play this video, again, what is it that leads you to believe that this is Mr. Robinson's vehicle?
David Hull (07:12:15):
The shape of the vehicle can be clearly seen as it pulls up, and the distinctive wheels on the vehicle also.
Ryan McBride (07:12:23):
Well, let's go ahead and play it.
Judge Tony F. Graf, Jr. (07:12:26):
Is there any sound associated with this?
Ryan McBride (07:12:29):
There is, Judge, but it's night sounds. It's crickets chirping, and-
Judge Tony F. Graf, Jr. (07:12:34):
Okay. I just wanted-
Ryan McBride (07:12:35):
There is-
Judge Tony F. Graf, Jr. (07:12:35):
... to see if there was ... I just wanted to see if there was sound or not.
Ryan McBride (07:12:39):
Okay.
Judge Tony F. Graf, Jr. (07:12:39):
All right. You may play the video.
Ryan McBride (07:13:55):
So on the first part of that video, what do you see?
David Hull (07:13:58):
The vehicle we believe to be driven by Mr. Robinson pulling up and parking in front of the ... across the street, but in front of the residence.
Ryan McBride (07:14:04):
Okay. And then in the next video, what do you believe is displayed in that video?
David Hull (07:14:10):
There's an individual who gets out of the vehicle. You can hear the door close, and then that individual moves away from the front of the vehicle. There's actually two reflective panels on a dumpster, and you can see the individual pass those reflective panels.
Ryan McBride (07:14:28):
And the last of those series of videos?
David Hull (07:14:32):
The second to last one, the individual comes back across those reflective panels to the vehicle, unlocks the vehicle, and gets into it. And then in the last video, the vehicle is started and the individual drives away.
Ryan McBride (07:15:04):
Just one moment, Judge.
Judge Tony F. Graf, Jr. (07:15:05):
Yes.
Ryan McBride (07:15:45):
Judge, could we approach?
Judge Tony F. Graf, Jr. (07:15:47):
You may.
(07:15:47)
Ladies and gentlemen, we're going to take a 10-minute break for the attorneys to confer and come back at, well, roughly 4:30. So court is in recess.
Bailiff (07:19:21):
All rise.
Judge Tony F. Graf, Jr. (07:37:54):
Please be seated. Court is back in session. We ended with the parties, the attorneys discussing how would we like to proceed?
Ryan McBride (07:38:17):
Judge, I think I just have a couple of questions for Sergeant Hull. To finish out the day, I think we're in agreement that once we've sorted out these few questions, we're all in agreement that we want to break for the day. Is that right, Ms. Nester?
Kathy Nestor (07:38:34):
Me, you.
Ryan McBride (07:38:38):
Well, sure.
Judge Tony F. Graf, Jr. (07:38:42):
You may proceed with your questions and we'll take it from there.
Ryan McBride (07:38:44):
All right. Agent Hull, I asked you earlier after you had testified about all the video that you've watched and video that you believe depicts Mr. Robinson from the UV surveillance and that combined with the driver's license and the DMV records. Whether or not you believe that that person that you have seen in the video and on the driver's license record is in the courtroom today and I believe your answer was yes.
David Hull (07:39:14):
Yes, that's correct.
Ryan McBride (07:39:15):
And then I asked you if you wouldn't mind pointing him out and describing something that he's wearing. And I don't believe that I allowed you to do that.
David Hull (07:39:26):
Okay.
Ryan McBride (07:39:27):
Would you do that right now?
Kathy Nestor (07:39:28):
Your Honor, just for the record, we would impose an objection based on the 14th Amendment for due process due to an unduly suggestive in court ID. Also, we believe there's a lack of foundation establishing his ability to interpret the surveillance video. And based on that, we would object.
Judge Tony F. Graf, Jr. (07:39:49):
All right. Well, to the state, do you wish to be heard on what was just stated?
Ryan McBride (07:39:54):
Well, Judge, I think we had this discussion and I think you ruled on that specific objection. And then after you ruled, I just neglected to come back and follow through with the question and the answer. That's my recollection of the bench meeting.
Judge Tony F. Graf, Jr. (07:40:08):
I believe I stated for the purposes of this hearing that identification by Agent Hull of Mr. Robinson was made. I could be wrong, but-
Ryan McBride (07:40:18):
Well, and I just wanted to clarify that, Judge, because there was some question about whether that in fact did happen. And so, if that's your recollection of what happened and if you're willing to put on the record that Agent Hull has identified the defendant, I think we're done.
Judge Tony F. Graf, Jr. (07:40:34):
Does the defense want to be heard?
David Hull (07:40:43):
Just a moment, Your Honor.
Judge Tony F. Graf, Jr. (07:40:44):
Of course.
David Hull (07:40:48):
No, Your Honor.
Judge Tony F. Graf, Jr. (07:40:50):
Well, for the benefit of the record and for thoroughness, if you wish to re-ask that question, you certainly... Well, we can see what happens.
Ryan McBride (07:41:03):
If I could, Judge, I'd like to. Would you please point him out and identify something that he is wearing?
David Hull (07:41:10):
Yeah, I believe that Mr. Robinson is between Ms. Nester and other counsel wearing a gray suit, a jacket with a dark tie and a light colored shirt.
Ryan McBride (07:41:19):
Judge, I would ask that the record reflect that Agent Hull has identified the defendant.
David Hull (07:41:37):
I mean, I made my objection already.
Judge Tony F. Graf, Jr. (07:41:39):
Okay. I just wanted to check.
David Hull (07:41:40):
No, thank you, Your Honor.
Judge Tony F. Graf, Jr. (07:41:42):
All right. For the purposes of this hearing, I find that Agent Hull has identified Mr. Robinson. Again, this is only for the preliminary hearing. You may proceed.
Ryan McBride (07:41:52):
Judge, I think for today with Agent Hull, we're done for today. We'd ask that at this point we take a break until tomorrow.
Judge Tony F. Graf, Jr. (07:42:05):
All right. So, are you saying that you're going to recall agent... Well, we're going to resume with Mr. Hull tomorrow morning?
Ryan McBride (07:42:11):
Tomorrow morning and I was going to explain this, but let me explain why. Judge, our intent is to prepare an original version of the video that has been in dispute today without the circles, without the blur and without the zooming in. And our intent is to introduce that tomorrow as a different exhibit and we just can't prepare that in the next hour or so. So, we're going to need this evening to prepare that exhibit and we'd like to return with that. Judge, what I would also suggest... Well, I guess let me get your take on that, Judge.
Judge Tony F. Graf, Jr. (07:42:51):
All right. Does the defense wish to be heard about ending for the day? We have about 19 minutes until 5:00. What is the defense-
David Hull (07:43:00):
Your Honor, we're happy to accommodate the state on that.
Judge Tony F. Graf, Jr. (07:43:03):
All right. So, for today, Agent Hull, you may step down and we'll resume with your testimony tomorrow morning. Anything further, Mr. Sturgill?
Ryan McBride (07:43:13):
Well, Judge, just one other thing and it's a suggestion.
Kathy Nestor (07:43:18):
Agent Hull, can you wait just one second? I'm sorry. Go ahead.
Ryan McBride (07:43:21):
I'm sure Ms. Nester may have a position with regards to this, but Judge, we would invite you to review the exhibit that we've been talking about today. It is 12.1. We suggest that you look at it between today and tomorrow because our intent is to seek to admit the version where it doesn't have the circle or the blur or the zoom in. And if that is admitted, we do intend to introduce that exhibit 12.1 as well. And I think it would be helpful if you saw that in advance and you could compare that to the version that doesn't have the circle, the blur and the zooming in. I would ask that you do that.
(07:44:13)
I don't know if Ms. Nester has a different opinion about that, but I think it would be helpful in determining whether or not that particular exhibit 12.1 is admissible.
Judge Tony F. Graf, Jr. (07:44:25):
Ms. Nester.
Kathy Nestor (07:44:31):
I don't have anything to add to that. I defer to what the court prefers to do on that. I do have another matter before Agent Hull is released that I do want to address with the court, but I don't have any concern if the court wants to look at it in advance. It's kind of a little bit of a long video. I think it's just about five minutes maybe. It's not very long. So, if you want to wait until tomorrow, it's not going to slow the matter down very much, but it's up to the court on that.
Judge Tony F. Graf, Jr. (07:45:00):
All right. I appreciate the parties. What I'm going to do is I'm going to wait until it's properly before me and a motion has been made for either of the videos and then I'm happy to entertain the motion to review both of them or however the parties... I don't want to issue a pre-ruling, so I'll wait till it's properly before me and I can take it from there. Being that it's about five minutes, I'm not too concerned about how much time is needed. I also want to be thorough. So, I'll wait till it's brought before me and we can address it from there and turning to Ms. Nester as it relates to your request.
Kathy Nestor (07:45:41):
Thank you, Your Honor. Your Honor, I recognize that Agent Hull is the case agent and is working with the state in preparing for this, but he is still on the stand and I would ask that he be instructed that he can't discuss his testimony. Even though he's the case agent, I don't think it's proper for him to discuss his testimony while he's excused for the night.
Judge Tony F. Graf, Jr. (07:46:04):
Mr. Sturgill.
Ryan McBride (07:46:05):
It's not a problem, Judge.
Judge Tony F. Graf, Jr. (07:46:07):
All right. So, agent, from this moment on until we come back in court, you're instructed not to discuss your testimony with anyone as you are still on the stand for all intents and purposes. And if the state recalls you this tomorrow morning, then we'll proceed. Okay?
David Hull (07:46:25):
Okay, Your Honor.
Judge Tony F. Graf, Jr. (07:46:26):
All right. May this witness be excused?
Kathy Nestor (07:46:27):
For now, Your Honor.
Judge Tony F. Graf, Jr. (07:46:30):
For today. All right. Thank you, Agent Hull. Anything further from the parties or do either party need the benefit of the record before we adjourn?
Kathy Nestor (07:46:39):
No, Your Honor.
Ryan McBride (07:46:40):
Not from the state, Judge.
Judge Tony F. Graf, Jr. (07:46:41):
All right. Noting neither party wishes the benefit of the record, court is in recess until 9:00 AM tomorrow morning.
Speaker 13 (07:46:52):
All rise.
