Homicide victim described shooting, ID’d photo of suspect before he died; will judge allow those statements at trial?
In the day after being shot twice outside a Eudora bar, friends and family of Bo Hopson — and Hopson himself — thought he was going to pull through.
After surgery on bullet wounds to his chest and arm, Hopson told loved ones at the hospital that he was mainly worried about his arm injury hurting his ability to work and pursue one of his favorite pastimes, playing video games.
Hopson also described the attack, and pointed out the man who allegedly shot him in a photo that a friend showed him, that friend testified.
The next day, the police investigation became a murder case — when Hopson died, from complications during another medical procedure.
Now, with Hopson an “unavailable witness,” a Douglas County District Court judge is weighing whether to allow things he said before he died to be used at trial against the man suspected of killing him.
On Friday, during a motions hearing in the murder case, prosecutor Amy McGowan argued that hearsay statements via the friend should be allowed. Appointed defense attorneys Dakota Loomis and Joshua Seiden argued that they shouldn’t. Judge Peggy Kittel took the matter under advisement.
The shooting that killed Hopson, 32, of Eudora, happened shortly after 1 a.m. June 24, 2017, outside D-Dubs Bar and Grill, 10 W. Ninth St. in Eudora. The injured Hopson was taken to the University of Kansas hospital, where he died on June 25.
Danny W. Queen, 36, of Eudora, is charged with one count of first-degree murder in Hopson’s death and two counts of attempted first-degree murder for allegedly pointing his gun at two other men and pulling the trigger, though the gun reportedly misfired.
Here is what Hopson’s friend Summer Mayberry told the court Friday:
She got a phone call about 2 a.m. that Hopson, whom she described as her “best friend,” had been shot. She drove straight to the hospital but, unable to see Hopson because he was in surgery, went home.
That evening, after Hopson’s second surgery, she returned to the hospital and talked with him one-on-one.
She said they talked about his pain and concerns about his arm being disabled. She showed him messages on her phone from all the people who were asking how he was doing and wishing him well.
They also talked about the incident.
“I asked him if he had known the guy that shot him, and he said, ‘No,'” Mayberry said.
Another friend had sent Mayberry a photo of Queen, a casual photo she believed was from social media. She showed the photo to Hopson and asked if the man pictured was the shooter.
“Bo stated that that was him,” Mayberry said.
Hopson, who had been working security at D-Dubs that night, told Mayberry that “a guy” at the bar was making vulgar comments to the bartender and another woman inside, and had been asked to leave. On the way out, he got into a fight with a couple male patrons. The man ended up sitting on a trailer parked outside the bar.
Hopson told her he went outside to smoke and asked the man if he needed a ride and wanted him to call someone.
“Bo told me that the guy was just laying there with a blank face,” Mayberry said. “… the next thing he knew, the guy had a gun and said, ‘What do you think about this?’ and shot him.”
Mayberry said Hopson was on pain medication and briefly dozed off a couple times during her visit, but he was lucid.
“He was fully coherent and his normal self,” Mayberry said.
When she left, she told him she’d be back to visit again the next day. Hopson told her, “OK, I’ll see you tomorrow.”
However, it turned out that was the last time she talked to Hopson.
Under the law, Hopson’s statements weren’t dying declarations, attorneys said, because Hopson didn’t know his death was imminent.
Rather, the state argued the statements should be allowed under other exceptions to a rule that usually bars hearsay at trial.
McGowan said Hopson’s conversation with his friend was just that — a natural conversation with a friend as opposed to a “testimonial” interrogation for purposes of prosecution. McGowan further argued that Hopson’s recollections were clear and made in good faith.
Defense attorneys argued that Mayberry’s questions about what happened and who did it mirrored what law enforcement would ask in a formal interview.
Defense attorneys said Hopson was on enough pain medications that he may not have been of clear mind. Also, they argued, Hopson — who ended up the victim of a crime at a bar where he was working security — may have had incentive to distort his description of the events.
“The defense has no option to cross-examine Mr. Hopson,” Loomis said.
A Eudora police officer also interviewed Hopson at the hospital.
However, McGowan said, the state is not requesting that Hopson’s statements to the officer be allowed at trial because they were clearly testimonial, taken formally with an expectation they’d be used in prosecution.
If it is allowed at trial, Mayberry’s retelling of what Hopson said may not be pivotal.
At Queen’s preliminary hearing, multiple other eyewitnesses to the shooting identified him in the courtroom as the shooter, and police said the entire incident was captured on video camera. Mayberry’s information was consistent with that previous testimony.
Kittel did not specify a date she would rule on whether to admit Mayberry’s testimony.
Based on the day’s hearing, Kittel said she was “leaning” toward admitting the statements but that she needed to review arguments and relevant case law before ruling.
Queen remains jailed on $1 million bond. His jury trial is scheduled to begin April 2.