A dying woman's statements to police can't be used in court, but similar statements she made to an emergency room doctor and a friend can be presented as evidence.
That's the essence of a ruling Tuesday in the case of Christopher A. Belone, who's charged with murdering his girlfriend, Linda Begay, this summer in a domestic violence beating at Gaslight Village mobile home park, 1900 W. 31st St.
Judge Jack Murphy ruled that the statements Begay made to a friend, Keith Bowers, and to Lawrence Memorial Hospital physician Dr. Ryan Davis can be used in court. She told both men shortly after she was injured that Belone had beaten her with a two-by-four.
Even though those statements are considered "hearsay" under rules of evidence because Begay is not available for cross-examination, Murphy found they fit within an exception for "nontestimonial" hearsay and ordered they could be used.
He wrote the statements "were not made as part of any Court proceedings or police investigations but were made in the normal course of events that followed her severe beating."
But under a 2004 Supreme Court case, Crawford v. Washington, similar statements to police are considered "testimonial" hearsay, and there's a higher standard for allowing them to be used in court.
"The interviews of Ms. Begay by Officers (Micah) Stegall and (Anthony) Brixious and his recording of them clearly are testimonial hearsay as part of a police interrogation : such testimonial hearsay is not admissible because the accused will not have the right to cross-examine Ms. Begay at trial," Murphy wrote.
To get past that legal hurdle, Dist. Atty. Charles Branson's office had to show it was more likely than not that Belone caused Begay to be unavailable as a witness. But Murphy found the state didn't meet that burden during a two-part hearing earlier this month.
Murphy wrote that "the State offered no evidence by way of a witness or physical evidence that would place the defendant at the location of the beating."
A man who may have been in the home at the time of the beating has not yet testified.
"Upon Belone's arrest, no examination or photographs were taken to determine if he had any injuries that might be attributable to the altercation," Murphy wrote. "There has been no physical evidence offered such as fingerprints or blood traces to connect the defendant to the beating. : In this case, there is no evidence presented that establishes that the defendant was even present at the time of the beating."
Branson said his office is awaiting more crime lab results and that he would seek again to have Begay's statements to police admitted when those results arrive.
"We're asking the KBI lab to put a rush on it," Branson said.
Belone was scheduled to have a preliminary hearing Tuesday - in which prosecutors put on a portion of their case for a judge to decide if there's enough evidence for trial - but it was rescheduled for Oct. 13.