Appellate court upholds McCowan murder conviction

2014-04-24T09:45:00Z 2014-08-13T13:59:37Z Appellate court upholds McCowan murder convictionBob Kasarda bob.kasarda@nwi.com, (219) 548-4345 nwitimes.com

VALPARAISO | The Indiana Court of Appeals has upheld the conviction and 60-year prison sentence of Dustin McCowan in the 2011 shooting death of his former girlfriend Amanda Bach.

The court rejected claims by 21-year-old McCowan that police and Porter Superior Court Judge Bill Alexa erred in the handling of cell phone evidence, the instructions given to jurors and a threatening telephone message from a member of McCowan's family.

McCowan was sentenced in March 2013 after a jury found him guilty a month earlier of shooting his former girlfriend, 19-year-old Amanda Bach, of Portage, in the throat during the early morning hours of Sept. 16, 2011, after she showed up at the Union Township home he was living in at the time with his father.

McCowan later argued his conviction should be reversed, in part, because Alexa "erred in admitting cell phone records that were allegedly unreliable and obtained in violation of his right to be free from unreasonable search and seizure" contrary to the state constitution, according to appellate court's ruling. He further argued the court erred in admitting "dubious data" contained in those records.

The appellate court ruled McCowan waived his challenge to the admissibility of those records because he failed to properly object.

"Waiver notwithstanding, the trial court properly admitted the records, and found that any dispute about the accuracy of the location estimates were for the jury to resolve," according to the appellate court.

Prosecutors used the cell phone records at trial to challenge McCowan's claim he was at home at the time Bach was believed to have been killed. Cell activity recorded from towers in the Wheeler area place McCowan's phone at several locations around and between where Bach's body and car were found, police claimed.

The court also found that "under the totality of the circumstances and in light of the emergency situation, the police officers did not violate McCowan's constitutional rights ... by conducting a warrantless search of his cell phone records."

The appellate court also rejected a claim that Alexa failed to inform jurors of McCowan's presumption of innocence.

Lastly, the appellate court also tossed out a claim that Alexa erred by not stepping aside after learning about a telephone call with McCowan from the jail that included derogatory and threatening remarks about prosecutors, police and their family members.

The appellate court determined that Alexa made it clear at sentencing he was not considering the call.

"There was nothing about the situation that would cause a reasonable person to doubt the trial court's impartiality," the court said.

McCowan can seek to have the Indiana Supreme Court consider his challenge, as well as file other lower level challenges.

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