The jury in the upcoming murder trial for Dustin McCowan will not hear about McCowan’s criminal history, certain aspects about his character, nor the fact he remained silent when questioned by investigators, but they will be allowed to view Amanda Bach’s autopsy photos.

Those are a few of the motions that Judge William Alexa ruled on Wednesday afternoon during the case’s final pre-trial conference.

Alexa is still undecided on whether to grant defense attorneys Nicholas Barnes and John Vouga’s motion to prohibit use of references to testimony given by McCowan’s neighbor Linda Phillips. The motion was responsible for most of the debate yesterday.

According to the motion, Phillips stated that she heard a voice saying in the early hours of Sept. 16, 2011, “Amanda, honey, you’ve got to get up” and “I can’t believe this is happening.”

Barnes said the statements fall within the definition of hearsay and do not prove anything other someone named Amanda was lying on the ground, unable to get up, and someone was with her. He argued that Phillips did not see anyone and could not identify “Amanda” or whoever was with her. Barnes said the context is unclear and further stated that Phillips never reported hearing a gunshot.

Barnes claimed that the testimony would be “unfairly prejudicial” to his client and does not have the logic to prove a material fact.

“These statements are strikingly similar to an anonymous, unsigned letter,” he said.

But Chief Deputy Prosecuting Attorney Matt Frost said the state does not intend to use the testimony to prove a material issue so it is not asserting what the facts are. He contended Phillips’ statements fall out of the rubrics of hearsay and are relevant based on the time and location.

Alexa said he would not rule on the matter until the middle of next week after he has done some more research on the probative value. “I’m not sure if this is hearsay at all,” he said.

Meanwhile, Alexa did grant the prosecution’s motion that the defense should not make any comments regarding allegations in two other local cases.

Next, the defense team requested that the prosecution refrain from introducing other statements that would be considered character evidence. They said that allegations that McCowan had been a controlling person does not prove intent of murder and that it would be a “gigantic, massive leap” in asking the jury to make that assumption.

Deputy Prosecutor Cheryl Polarek argued that statements as McCowan “hated or disliked Amanda Bach” are absolutely relevant in that they show a motive and intent for murder.

Barnes said he did not believe that McCowan hating or disliking Bach proved intent because it is a common thing for people with a past relationship to dislike each other.

Alexa granted all items in the defense’s request, prohibiting any mention of such statements in the jury selection.

Next, Alexa said he would permit autopsy photos to be shown to the jury during the trial, despite the defense’s concern that the prejudicial impact would be greater than the probative value.

Frost said the prosecution does intend to use photos since they feel it is relevant the body had not been surgically altered. The photos they show will not show anything “too gruesome,” he said.

Alexa said that the defense could still make objections to any photos the prosecution wishes to present before they are presented to the jury.

Lastly, Alexa denied all but one of the requests in the defense’s motion to exclude improper prosecutorial argument and questioning during the trial.

The prosecution will not get to argue that McCowan is a either a “criminal” or “career criminal.”

On Friday, Alexa had granted two other motions submitted by the defense – to transfer witness Timothy Reeves from the Westville Correctional Facility to the Porter County Jail no later than one week prior to the start of the trail, and to compel the Porter County Jail to produce to the entire file on Charles Aaron Wade III.

Alexa said the matter of returning property to the family, including firearms, is still under his advisement and won’t be used in the trial as evidence.

A jury trial is set to begin on Monday, Feb. 4 at 1 p.m. in Alexa’s courtroom. No one will be allowed into the courtroom except the prospective jurors and members of the media.

Barnes and Vouga said they would also like to add two more names to the list of witnesses as it is still an “ongoing process.”

McCowan is accused of shooting 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 1/10/2013