After the jury was released for the day Monday in Dharminder Sen's trial in 4th Judicial District Court, Sen's attorney, Tim Cotton of Casper, told the Court that he “objected then, and strenuously objects now” to the playing of the 9-1-1 audio when Linda Ernst was on the witness stand. He then told Judge Fenn that he wanted to file for a mistrial, stating the 9-1-1 tape was prejudicial and played upon the emotions of the jury.
Cotton told Judge Fenn that he could see that several of the women on the jury had been moved to tears. There was no reason, he said, that with Mrs. Ernst being in the courtroom and testifying as to what she saw and what was said, that the 9-1-1 tape needed to be played.
Cotton cited the Hearsay Rule, but Judge Fenn said that the motion was contrary to what both the Wyoming State Supreme Court and the U.S. Supreme Court says regarding hearsay testimony as being probative vs. unfair.
Fenn said that the 9-1-1 audio fit one of the exceptions to the Hearsay Rule, in that it allowed the jury to hear “an excited utterance” -- Linda Ernst's frantically telling the dispatcher that her husband had been shot. Fenn said the audio “fits that precisely.”
Judge Fenn denied the motion for a mistrial, but DID say that the Court is concerned a bit about the State's lack of better foundation of how the 9-1-1 tape came to be.