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Statements Made By Wife Can Be Included in Murder Trial, Judge Rules

October 4, 1988

LOUISVILLE, Ky. (AP) _ Statements made by a man’s wife before the wedding can be admitted as evidence against him in a murder trial, a judge has ruled.

Charles M. Smith is accused of murdering Michael P. Foley at Margaret Lee Cecil’s apartment in Jefferson County on Sept. 22, 1987. Smith, who had dated Cecil, is accused of kicking down the door of the apartment, coming in and shooting Foley.

Ms. Cecil, a witness, later married Smith and is refusing to testify against him. Kentucky law forbids the state from forcing spouses to testify against each other.

But Jefferson Circuit Court Judge Earl O’Bannon ruled last week that when the trial begins Oct. 25, he will allow the prosecution to introduce testimony concerning two phone calls Ms. Cecil made shortly after the killing - her emergency call to police and a call to her sister.

Prosecutor Tom Wine said Monday that he was pleased with the ruling and thinks the prosecution’s case is ″just as strong as if Margaret Cecil Smith was in there testifying.″

Smith’s lawyer, G. Murray Turner, said he was disappointed in the ruling and that he considers the case against his client to be ″extremely weak.″

Testimony from the people who received Cecil’s phone calls would be considered hearsay - one person’s word about what another person said - and as such normally wouldn’t be permitted in a criminal trial.

But O’Bannon ruled that the law does permit hearsay testimony when it involves ″excitable utterances.″

″Excitable utterances,″ or spontaneous statements made by someone who is very excited or upset shortly after a traumatic event, tend to be given credibility, the judge said at an Aug. 4 hearing in the case.

″Listening to that tape (of Cecil’s call to the police) gives the flavor of how excited ... this lady was,″ O’Bannon said. He added later: ″It was high stress going on. ... She was obviously in the room with a dead person.″