In a special hearing last week, Judge Martin McGee considered a motion that would have blocked some testimony in the upcoming trial of accused murderer Michael Bryan Freeman.

At the conclusion of the hearing, he ruled on part of the motion.

Freeman’s attorney, Lisa Costner, argued several points surrounding testimony provided by witnesses during Freeman’s May 2014 probable cause hearing.

One of those witnesses was Freeman’s wife, Tracey, who testified she was present in a mobile home off NC 801 South when Michael Foster was allegedly assaulted by her husband April 7, 2014. Foster was injured and died days later.

The Freemans had been married 12 years at the time, and at the hearing, Tracey testified she has a learning disability, calling it “MR.” When asked by Freeman’s former attorney Dan Dolan if that was mental retardation, she said she did not know.

Tracey also testified she did not want to testify but went to court because she was subpoenaed, but also said she was there of her own free will. She clarified during that hearing she told Assistant DA Greg Brown before she received the subpoena that she would testify. She also said she was aware that under marital privilege, she did not have to testify.

Tracey was being treated for cancer at the time of the 2014 hearing and has since died.

Another witness to the incident was Foster’s ex-wife, DyAnn Cole.

Cole testified at the 2014 hearing that although the couple was divorced, they stayed together. She and Foster were both on disability, she said, she for her eyesight and he for clinical depression. At the time, she was a tractor-trailer driver but was out of work awaiting eye surgery. She is also now deceased.

Information Cole provided to police before the hearing and testimony she gave at the hearing differed, Costner argued.

One of the discrepancies was that Cole told police after Freeman kicked over a chair in which Foster was sitting, and walked Foster to the bathroom, she went to the bathroom several times to check on her ex-husband. But during the hearing, she said Freeman prevented her from going to check on Foster and that she had to get away from the Freemans to be able to get to the bathroom to check on Foster.

Costner said Cole also told police she wasn’t able to see well when she looked into the mobile home that night and that she did not see Foster hit his head. During the hearing, she said she did see Foster hit his head on the wall after Freeman kicked the chair over. She also told police Foster injured his head during an earlier Moped wreck.

Costner said discrepancies in the testimony of Tracey and Cole were indicative of their states of mind and should have prompted Dolan to further explore their testimony, to determine their credibility.

“Mr. Freeman was deprived of his rights during that hearing,” she said. “He was denied the opportunity to cross-examine both of these witnesses, and Mr. Dolan was unprepared. Whether these were large or small discrepancies, all discrepancies can impact credibility.”

She also said because the hearing happened so quickly after Freeman’s April 11 arrest, and Freeman was able to meet with his attorney only a few times prior to the hearing, that Freeman was not able to properly prepare for the hearing. Freeman testified last week he didn’t even realize what the hearing was for, that he thought it was to ask for bond. At the end of the hearing, Dolan did ask Judge Carlton Terry to consider bond, but Terry denied it.

Costner argued Tracey should not have been made to testify because of marital privilege. One of the statements she made was when Foster was at the Freeman’s mobile home earlier in the evening, following an altercation between her husband and Foster, her husband commented to her he was going to tie Foster up and take him to another county. Comments like those, between the married couple, should not be heard at the trial, because of marital privilege, Costner said.

“The court should have advised her of her right not to testify and that was never done. Mr. Dolan raised the issue later but it should have been done at the outset. The judge should have given her that advice…it should have come from the bench,” Costner said.

Brown argued when Dolan asked Tracey later in the hearing if she knew she did not have to testify against her husband and she said she did, that “removed all doubt” that she was unaware of her rights.

Also at issue was the health of Freeman during the 2014 hearing.

He testified last week he had degenerative disc disease and had had two neck surgeries. He was prescribed several medications, including Oxycodone, Methadone, and Valium, all of which he had been taking for four or five years and all of which he took four times a day.

Freeman was arrested twice, first for assault inflicting serious injury, after which he made bond, but just a few hours later, was re-arrested and charged with murder. When he was arrested the second time, he said, he took his medication to the jail with him but when he asked for it, was refused. He said he asked every day for his medication but was refused each time and was experiencing withdrawal symptoms including weakness, pain in his joints and digestive issues at the time of the hearing.

He said even after his arrest, he really didn’t know why he was being arrested, that he thought it was just “an allegation.”

Freeman, 46, said, “I was crucified during the hearing. I had to hear all the lies and I didn’t get to say anything.”

McGee ruled testimony from the 2014 hearing is admissible at the Nov. 14 murder trial but said some aspects of the testimony, the communication between the Freemans as a married couple, may not be. He said he would take more time to review those and asked Brown and Costner to work together prior to the trial to determine which statements they will want used.

Two hundred potential jurors will receive summons prior to the trial, which is expected to last at least a week and include testimony from a dozen or more witnesses. McGee encouraged Freeman to take the next six weeks to consider whether or not he will testify and told Brown and Costner they may continue to discuss any possible plea deals.