Testimonies made by Dustin McCowan’s neighbor Linda Phillips will be admitted during his upcoming murder trial.

Porter County Superior Court Judge William Alexa ruled Tuesday afternoon to deny the defendant’s motion to prohibit the prosecution from offering Phillip’s statements to authorities as evidence or to discuss it in jury selection and formal arguments.

Phillips said she had heard voices through an open window saying, “Amanda, get up,” “Amanda, you have to get up,” “I can’t believe this is happening,” and “Amanda, honey, you have to get up” sometime after 1 a.m. on Sept. 16, 2011.

McCowan’s defense attorneys John Vouga and Nicholas Barnes argued in their filed motion that Phillips’ testimony was hearsay, which they define as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Since Phillips is not the declarant in the matter, the statements should not be admissible under the Indiana Rules of Evidence, the motion said.

Barnes argued at the Jan. 9 pre-trial conference that since Phillips was not able to identify the voices, tell who “Amanda” is, or provide the context of the matter, the testimony is irrelevant.

But Chief Deputy Prosecuting Attorney Matt Frost said he believes Phillips’ statements are relevant given the time and location she heard the voices. He said the state is not asserting what the facts are and is not trying to prove a material issue.

In his order on Tuesday, Alexa said out-of-court testimony is not barred under hearsay rules when it is offered into evidence as only proof that the statement had been made and not as proof of the matter asserted within.

“The factual allegations (McCowan) claims are present in the commands and utterances contain no specific facts; rather they are general statements with no clear assertions. It appears that the testimony of Ms. Phillips is not offered for the truth of the matter asserted; rather, it is offered to show that the commands and utterances were made. Thus, the testimony is admissible under this examination,” Alexa said.

Next, Alexa examined the questions of if the testimony is relevant to some issue in the case and does the danger of unfair prejudice outweigh the probative value. He researched other cases that deal with the question of relative evidence and cited that evidence in criminal cases is considered relevant if it “tends to prove or disprove a material fact or sheds any light on the guilt or innocence of the accused.”

Alexa said the defense’s assertion that Phillips’ testimony should be excluded because it is not related to material facts is “incorrect” because the state is not offering the testimony for the truth of the matter asserted but “rather, it appears that the testimony is offered to show that the commands and utterances were made.”

Furthermore, Alexa said he sees it as unlikely there is a danger of unfair prejudice because McCowan is not identified as the speaker of the commands “Amanda, get up” as the defense points out.

The trial is set to begin on Monday, Feb. 4 at 1 p.m. in Alexa’s courtroom with jury selection by both the prosecution and the defense. Each will have one-and-a-half to two hours to select up to 65 potential jurors in that afternoon.

Jury selection will continue on Tuesday, Feb. 5 at 9 a.m.

No one will be allowed in the courtroom on those days except the jurors and members of the press.

Both sides will have one hour to give their opening statements.

Daily hours for the trial will be from 9 a.m. to 4:30 p.m. except on Mondays and Fridays when Alexa will conduct his regular court calls in the morning.

McCowan is accused of shooting Amanda Bach to death sometime in the morning of Sept. 16, 2011. Bach’s body was found on Saturday, Sept. 17, in some bushes south of the Canadian National railroad right-of-way near McCowan’s home in Union Township.

McCowan told investigators that Bach had been visiting him and left his home around 1:30 a.m. Friday, Sept. 16. Her abandoned car was discovered with a flat tire at Dean’s General Store on Ind. 130 around 3:23 a.m.

An autopsy determined that Bach had been killed by a single gunshot wound to the throat.

Posted 1/16/2013