The prosecution in the case of a 64-year-old Montrose man accused of having sexual intercourse with a 6-year-old child will be allowed to introduce hearsay testimony during the trial, Judge Jaymie Godwin Wilfong ruled Monday.
The case of Edward Slaubaugh - who was indicted on one felony count of first-degree sexual assault, one felony count of sexual abuse by a parent, guardian or custodian and one felony count of first-degree sexual abuse in November 2012- is set to go to trial Aug. 8-9.
Wilfong granted, in part, a dual motion submitted by special prosecuting attorney Ray LaMora III, in which he asked to amend the witness list and present hearsay testimony due to the unexpected death of a key witness, Slaubaugh's ex-wife, Margaret Lower.
LaMora said Lower, who was "an eyewitness to the alleged incident," died earlier this month.
"Margaret, or Maggie, passed away unexpectedly, and her testimony was very important to our case, so I'm asking that three different witnesses be allowed to come in and testify to hearsay statements of the deceased witness," LaMora told Wilfong.
LaMora requested that Trooper J.J. Cornelius with the Elkins detachment of the West Virginia State Police; Allyson Scott, a Child Protective Services employee; and Jessica Slaubaugh, Edward Slaubaugh's daughter-in-law, be permitted to introduce Lower's statements in their testimony.
Typically, hearsay statements are not admissible in court; however, LaMora argued that Lower's statement to Jessica Slaubaugh qualified as permissible hearsay because it was a statement against her interest. Lower allegedly waited approximately 10 days before reporting the incident to the state police, which could have opened her up to charges of child neglect, LaMora said.
"I believe Jessica said, 'If you don't go to the police, I will,'" the prosecuting attorney told Wilfong.
Edward Slaubaugh's attorney, James Hawkins, argued that admitting hearsay would be "a clear violation of the confrontation clause."
"What Mr. LaMora is attempting to do is to drive down the Interstate in the wrong lane going the wrong direction," Hawkins said, noting that he has no opportunity to cross-examine a witness who is deceased.
Heather Weese, the guardian ad litem in the case, reminded the court that Edward Slaubaugh's case had been set to go to trial May 22, but was rescheduled after Wilfong declared a mistrial during jury selection May 21, when the court and attorneys were unable to impanel an impartial jury. Permitting Jessica Slaubaugh's hearsay testimony to be introduced "would promote justice and is in the best interest of the child," Weese stated.
Wilfong ruled that Jessica Slaubaugh - but not Scott or Cornelius - may testify about the statements Lower made to her, since they opened Lower up to criminal liability and were therefore against her self-interest; Lower's statements to Scott and Cornelius were testimonial in nature, however, and can't be admitted because Hawkins had no opportunity to cross-examine Lower prior to her death.
Also on Monday, Wilfong denied a prosecution motion to introduce 404-B evidence, or evidence of prior wrongdoing not contained in the indictment.
The November 2012 indictment accuses Edward Slaubaugh of having sexual intercourse with the alleged victim and forcing the child to engage in a sexual act on Sept. 17, 2011. The child was 4 years old at the time the alleged incidents occurred.
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