STATE v DOLL
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NO. 84-40 IN THE SUPREME COURT OF THE STATE OF MONTANA 1984 STATE OF MONTANA Plaintiff and Respondent, DOUGLAS JOSEPH DOLL, Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial ~istrict, In and for the County of Missoula The Honorable James B. Wheelis, Judge presiding. COUNSEL OF RECORD: For Appellant: f : John E. Riddiough argued, Missoula, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Pat Schaeffer argued, Ass't Attorney General, Helena, Montana Edward McLean argued.,Deputy County Attorney, Missoula, Montana Submitted: October 30, 1984 Decided: January 3 , 1985 Filed: 1pi.1 :j U ' ' 1985 I / - %!! 4 / 2 - " ,., ..-:'.,' ,;/' . ,,:,y',.\,+L\/..?. > :*- -.,.. , . ; Clerk .- - r l / " ~ J u s t i c e John Conway H a r r i s o n d e l i v e r e d t h e Opinion o f t h e Court Mr. Douglas Joseph D o l l a p p e a l s from a c o n v i c t i o n o f d e l i b e r a t e homicide f o l l o w i n g a j u r y t r i a l i n t h e D i s t r i c t C o u r t of Missoula County. pius The D i s t r i c t C o u r t s e n t e n c e d him t o l i f e t e n y e a r s imprisonment w i t h o u t p o s s i b i l i t y o f parole. The d e f e n d a n t was d e s i g n a t e d a dangerous o f f e n d e r . The d e f e n d a n t was c h a r g e d w i t h d e l i b e r a t e homicide o f h i s wife, Doll in Trudy Trudy D o l l , 1977. had on A p r i l 2 , 1983. H e m a r r i e d Trudy They had two c h i l d r e n . been residing in The d e f e n d a n t and Glendive for several years. P r e s c o t t Nelson and h i s w i f e were f r i e n d s o f t h e d e f e n d a n t and Trudy when t h e y r e s i d e d i n Glendive. intimate. swapping. Their relationship included incidents of wife I n F e b r u a r v o f 1983, Trudy l e f t t h e d e f e n d a n t and moved t o M i s s o u l a w i t h t h e c h i l d r e n . i n March. The f o u r became She f i l e d f o r a d i v o r c e L a t e r t h a t month Trudy l e a r n e d t h a t t h e d e f e n d a n t wa.s coming t o M i s s o u l a . Trudy t o l d a f r i e n d , B a r b a r a G r i e s s , t h a t Doug was coming and s h e d i d n o t want t o be a l o n e w h i l e t h e d e f e n d a n t was i n Missoula. s t a y with Betty. Trudy made arramgements t o The d e f e n d a n t made a r r a n g e m e n t s t o s t a y i n a f r i e n d ' s a p a r t m e n t w h i l e he was i n M i s s o u l a . wa.s i n t h e same b u i l d i n g , which B e t t y l i v e d . The a p a r t m e n t one f l o o r above t h e a p a r t m e n t i n A t Trudy's request, a l l o f t h e guns i n t h e a p a r t m e n t were t a k e n o u t and hidden i n B e t t y ' s a p a r t m e n t . The defendant O April n arrived 2, in Missoula on t h e d e f e n d a n t was Thursday, a t Trudy's March 31. apartment. The d e f e n d a n t and Trudy t a l k e d f o r a w h i l e and t h e n s h e went downstairs t o a f r i e n d ' s apartment. A short t i m e l a t e r , the d e f e n d a n t asked Trudy t o come u p s t a i r s t o t a l k t o him a.nd t h e y went up t o g e t h e r . B e t t y t e s t i f i e d t o h e a r i n g sounds o f a struggle. She r a n up t h e s t a i r s and h e a r d Trudy scream. B e t t y t r i e d t o g e t i n b u t t h e door was l o c k e d . She r a n downs t a i r s and trips called upstairs children out. in the police. an effort She made a c o u p l e o f to open t h e d o o r t o g e t more the She h e a r d t h e i r c h i l d s t a t e t h a t h i s m m and o B e t t y opened t h e d o o r and. s e n t t h e c h i l d r e n dad were dead. downstairs. She saw Trudy l y i n g on t h e f l o o r , b l o o d i e d and The d e f e n d a n t w a s unconscious. knife i n h i s chest. behind h e r . lying next t o her with a She l e f t t h e a p a r t m e n t , c l o s i n g t h e d o o r O f f i c e r Morman was t h e f i r s t o f f i c e r t o a r r i v e a t t h e scene. He had t o f o r c e h i s way i n t o t h e a p a r t m e n t , which a p p a r e n t l y had been l o c k e d by t h e d e f e n d a n t a f t e r B e t t y left. Trudy D o l l was dead a t t h e s c e n e . of twenty-one s t a b wounds. She s u f f e r e d a t o t a l There w e r e two wounds to the h e a r t and s i x t o t h e l e f t l u n g , any one o f which would ha.ve been f a t a l . Three r i b s were f r a c t u r e d by blows t o t h e c h e s t , a.nd i n a d d i t i o n a s t a b wound t o t h e f a c e f r a c t u r e d a f a c i a l D e f e n s i v e s t a b wounds were found on t h e v i c t i m ' s w r i s t bone. and arm. to the The d e f e n d a n t had f o u r s e l f - i n f l i c t e d chest and a self-inflicted which s e v e r e d t h e c a r o t i d a r t e r y . s t a b wound H e was s t a b wounds to the hospitalized neck for t h i r t y days. Dr. Herman W a l t e r s and D r . William S t a t f o r d t e s t i f j - e d t o t h e defendant's mental capacity. Both c o n c u r r e d t h a t t h e d e f e n d a n t had t h e c a p a c i t y t o have a c t e d p u r p o s e l y and knowingly at stated the that time the the a c t was defendant was committed. not under Further, the both i n f l u e n c e of extreme e m o t i o n a l s t r e s s . Before t h e t r i a l , t h e S t a t e f i l e d a n o t i c e pursuant S t a t e v. Just ( 1 9 8 0 ) , 184 Mont.+Z22, 6 0 2 P.2d J ~ J 957, to t h a t it intended to introduce evidence of other crimes committed by the defendant. The court originally ruled in its pretrial opinion that evidence of other crimes more than three years and seven months is too remote in time to be admissible. During the course of the trial, the court reversed its previous ruling and allowed the State to introduce evidence of assaults committed by the defendant on his first wife eight years prior to the homicide. During the noon recess of one of the days of trial, the defendant wrote a note to a witness in the case. The note was handed to a law enforcement officer, who then gave it to the prosecutor. The note was offered by the State to impeach that witness and was repeatedly referred to by the State in its closing argument. The District Court also admitted photographs of the scene of the crime and of the wounds inflicted on the victim. Testimony by the defendant's father as to the defendant's personal background was also allowed. The following issues are raised on appeal: (1) Whether the District Court erred in admitting evidence of an assault by the defendant upon his first wife eight years previous to the offense charged. (2) Whether the District Court erred in allowing State's exhibit 17, a note written in jail by the defendant to be admitted into evidence. (3) Whether the District Court erred in admitting photographs and slides of the victim at the scene of the crime and at the autopsy. (4) Whether the District Court abused its sentencing discretion in ordering that the defendant be ineligible for parole or furlough for the rest of his life. (5) Whether the District Court erred in admitting certain testimony concerning defendant's personal background. Defendant objects to the introduction of "other crimes or act" evidence against him at trial. Specifical-ly, the defendant claims the testimony of Janice Irvine was contrary to Rule 404(b) of the Montana Rules of Evidence. Janice Irvine testified that she was married to the defendant in April of 1972. On March 6, 1975, she informed the defendant of her intention to obtain a divorce. She stated that on March 13, 1975, the defendant entered her apartment with a rifle and threatened to kill her and himself. On March 17, 1975, when she returned to her apartment with two other people to move her belongings, the defendant held her at knife-point. people go. She was able to convince him to let the other When the police and defendant's father arrived, defendant held a knife at her stomach and instructed. her to tell the authorities that everything wa.s all right. During this incident, he stated to her that he was upset about the divorce, that he did not want to be divorced and that if he couldn't have her then no one could. In Montana, the test for admission of evidence of other crimes, wrongs or acts is codified in Rule 404(b), Montana Rules of Evid.ence: "(b) Other crimes, wrongs, acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or a.ccident." Several Montana cases govern the admissibility of other crimes. In State . Stroud (Mont St.Rep. 919, we defined the substantive and procedural guidelines of Rule 404(b), Montana Rules of Evidence: "The four substantive requirements are (1) similarity between the crime charged and the previous crimes, wrongs or acts; (2) nearness in time between the charged crime and the previous crimes, wrongs or acts; (3) tendency to establish a common scheme, plan or system; - (4) determiand nation that the probative value of the evidence is not substantially outweighed by the prejudice to the defendant. Jensen, supra, 153 Mont. at 239, 455 P.2d at 634 and Rule 403, Mont.R.Evid. In addition, three procedural guidelines must be followed: (1) notice to the defendant prior to trial that evidence of other crimes, wrongs or acts will be introduced; (2) an admonition by the judge to the jury when the evidence is introduced that it is admitted solely for one or more of the accepted purposes stated in Rule 404 (b); and 13) a cautionary jury instruction to the same effect, providing in unequivocal terms that the evidence is admitted for the purpose earlier stated and not to try and convict the defendant for prior wrongful conduct. Just, supra, 184 Mont. at 274, 602 P.2d at 963-64." The District Court initially granted the defendant's motion to exclude evidence of defendant's prior assaults. During the course of the trial, however, it reversed its previous ruling and admitted Janice Irvine's testimony. Defendant contends the admission of Janice Irvine's testimony was improper because it involved an incident eight years previous to the homicide. This Court addressed the concept of remoteness in State v. Heine P.2d (1975), 169 Mont. ,%$, 544 35 1212, where we allowed the admission of evidence of assaults three years earlier. Also (1958), 134 Mont. 341, 332 P.2d 904. see State v. Nicks But in State v. Jensen (1969), 153 Mont. 233, 455 P.2d 631, we stated proof of acts committed three years and seven months prior to the crime charged is not so remote that its relevancy is thereby diluted. Whether evidence of prior crimes is too remote is directed to the discretion of the District Court and is a matter that goes to the credibility of the evidence rather than its admissibility, unless the remoteness is so great that the proferred evidence has no value. State Fitzpatrick (1980), 186 Mont. 187, 606 P.2d 1343. v. The record reflects careful consideration by the trial court of Rule 404(b), Mont.R.Evid. the The trial court methodically adhered to substantive and procedural requirements set forth in Stroud. However, the trial court's reversal of its previous ruling three days into the State's case-in-chief was an abuse of discretion. We hold this decision was prejudicial to the defendant and is cause for reversal. The State argues that if error is found in the admission of Janice Irvine's testimony, at best it constitutes harmless error. The State's position is that Irvine's testi- mony could not have contributed to the conviction of deliberate homicide. The Sta.te claims that overwhelming evidence proved lack of extreme mental or emotional stress, a necessary element of mitigated deliberate homicide. The evidence included numerous affairs during the marriage, incidents of wife-swapping and the testimony of Dr. Stratford, a psychiatrist and Dr. Walters, a psychologist, both who testified that the defendant was not acting under the influence of extreme emotional stress at the time of the homicide. The due process clause of the United States Constitution forbids fundamental unfairness in the use of evidence. Blackburn v. Alabama (1960), 361 U.S. L.Ed.2d 242. 199, 80 S.Ct. 274, 4 The prejudice in this case is found in that the d e f e n d a n t was a s s u r e d t h a t e v i d e n c e o f o t h e r c r i m e s would n o t be admitted. The defendant relied on the i n i t i a l order precluding Janice I r v i n e ' s over, the defendant trial court's testimony. More- l o s t h i s opportunity t o v o i r d i r e the j u r y r e g a r d i n g t h e e f f e c t e v i d e n c e o f p r i o r c r i m e s would have on t h e i r d e c i s i o n . Had t h e t r i a l c o u r t r u l e d i n i t s p r e t r i a l o r d e r t h a t t h e t e s t i m o n y o f J a n i c e I r v i n e was a d m i s s i b l e , t h e d e f e n d a n t c o u l d have p r e p a r e d i n o r d e r t o l e s s e n t h e impact of such t e s t i m o n y and a l s o v o i r d i r e d t h e j u r y on t h e e f f e c t of such e v i d e n c e . The t r i a l c o u r t ' s r u l i n g may have d e n i e d t h e d e f e n d a n t a t r i a l by a f a i r and i m p a r t i a l j u r y a s guarant e e d by Amendment V I o f t h e United S t a t e s C o n s t i t u t i o n . The purpose o f p r e t r i a l o r d e r s i s t o p r e v e n t s u r p r i s e and p e r m i t c o u n s e l t o p r e p a r e t h e i r c a s e f o r t r i a l on t h e b a s i s o f t h e p r e t r i a l order. 1980), Workman v. McIntyre C o n s t r u c t i o n Co. 617 P.2d 1281, 37 St.Rep. 1637. (Mont. The c o u n s e l o f b o t h p a r t i e s r e l i e d on t h e t r i a l c o u r t ' s o r d e r . However, upon t h e p e r s i s t e n t urging of t h e S t a t e , t h e t r i a l c o u r t reversed t h i s ruling and allowed t h e S t a t e t o introduce evidence of s a u l t s committed by t h e d e f e n d a n t . As a result, as- t h e defen- dant suffered prejudice. Defendant c o n t e n d s t h e c o u r t ' s a d m i s s i o n o f t h e l e t t e r was clear error. by t h e S t a t e . Kimberly A s p e n l i e d e r was a w i t n e s s c a l l e d She t e s t i f i e d s h e m e t t h e d e f e n d a n t two o r t h r e e weeks b e f o r e t h e homicide and s p e n t a l o t o f t i m e w i t h him. At She c l a i m e d t h e i r r e l a t i o n s h i p was n o t a r o m a n t i c one. the noon Aspenlieder, defendant Aspenlieder. recess of Kim t h e d e f e n d a n t handed a n o t e t o a d e p u t y . The requested following that He also told the the note testimony be given to Kim t h e d e p u t y t h a t he assumed t h e d e p u t y "would have t o r e a d i t " b e f o r e d e l i v e r i n g t h e n o t e . The d e p u t y r e a d t h e n o t e and t u r n e d it o v e r t o t h e p r o s e c u tion. The State Aspenlieder. between offered The witness the letter and the letter evidenced a the to impeach romantic defendant. Kim attachment Defense counsel a r g u e d t h e l e t t e r was a s t a t e m e n t o f t h e d e f e n d a n t o f which c o u n s e l was n o t g i v e n n o t i c e and t h a t t h e l e t t e r was h i g h l y p r e j u d i c i a l and n o t p r o b a t i v e . The t r i a l c o u r t a d m i t t e d t h e letter. The d e f e n d a n t a l s o c l a i m s it was u n l a w f u l f o r t h e S t a t e t o s e i z e a l e t t e r w r i t t e n by a d e f e n d a n t i n c u s t o d y f o r t h e purpose of defendant support introducing on of letter as evidence charge f o r which he i s i n custody. argument defendant cites the his the (Mont. 1 9 8 0 ) , 619 P.2d 181, 37 St.Rep. defendant challenged the State 1793. practice within against ~ 7 . a In Sheriff In Sheriff, the prisons for jail o f f i c i a l s t o r e a d a l l incoming and o u t g o i n g m a i l o f p r i s o n ers. W e a d o p t e d t h e r u l e e s t a b l i s h e d by t h e U n i t e d S t a t e s Supreme C o u r t i n P r o c u n i e r v . M a r t i n e z ( 1 9 7 4 ) , 416 U.S. 9 4 S.Ct. 1800, 4 0 L.Ed.2d 1 9 7 0 ) , 317 F.Supp (D.R.I. b o t h F i r s t Amendment, Fourth Amendment control this voluntarily the right t o handed In an The the mail. As a freedom o f rule of unsealed note to speech, Sheriff present matter, c o n t e n t s o f t h e n o t e were v i s i b l e . i n U.S. Travisono 776, and condemned t h e p r a c t i c e on grounds. case. a l s o Palmigiano v. 224, 396, does and not t h e defendant the deputy. The The n o t e was n o t p l a c e d r e s u l t we f i n d no s e a r c h o c c u r r e d . l e t t e r was p r o p e r l y o f f e r e d t o impeach t h e w i t n e s s . The W find e t h e t r i a l court did not e r r i n admitting t h e letter. The d e f e n d a n t n e x t c l a i m s e r r o r i n t h e D i s t r i c t C o u r t ' s admission of photographs photographs displayed and wounds slides of the of the face, victim. chest and The arms taken at the scene of the crime and autopsy. The defenda.nt objected to these photographs prior to the trial by motion in limine. The defendant argues the use of the photographs inflamed and prejudiced the jury. The prejudicial effect of these photographs was described by defendant as gruesome, grotesque and shocking to the emotions of the jury members. The defendant claims the photographs were cumulative and far more prejudicial M0nt.R.Evid.i than probative, citing Rule 403, State v. Azure (1979), 181 Mont. 47, 591 P.2d 1125; State v. Rollins (1967), 149 Mont. 481, 428 P.2d 462. We do not find error here. Rule 403, M0nt.R.Evi.d. states: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. " The key element of this rule is the discretion of the trial judge in deciding whether otherwise relevant evidence is to be excluded because of the factors listed in the rule, mainly the factor of unfair prejudice. (Mont. 1982), 641 P.2d 1373, 39 St.Rep. In State v. Austad 356, we strongly upheld the longstanding rule in Montana that it is within the discretion of the trial court to allow into evidence duly verified photographs to aid the jury in its fact finding process. Also see State v. Hoffman (Mont. 1982), 639 P.2d 507, 39 St.Rep. 79; Fulton v . Chouteau County Farmer's Co. (1934), 98 Mont. 48, 37 P.2d 1025. The trial court exercised its d.iscretion cautiously. The record shows forty slides were rejected and admitted. fifteen Of the fifteen slides, only six depicted the wounds of the victim. The pathologist testified that the diagrams were not an accurate representation of the proportion of the wounds in relation to the body, and that for exact accuracy the slides were necessary. The slides were used by the pathologist during his testimony. We hold the slides were essential in establishing the cause of death. The present case is directly on point with State v. Riley (Mont. 1982), 649 P.2d 1273, 39 St.Rep. 1431. There, the defendant objected to the admission of photographs of the victim's body. The court found the pictures accurately represented the victim's appearance at the autopsy and were reasonably necessary to depict the multiplicity and the extent of the injuries, how they were caused, and their age. On similar grounds, we hold the pictures taken by the pathologist at the autopsy related to the charge against the defendant and were properly admitted as part of the corpus delicti. Likewise, during the the photographs of examination of Deputy admitted in evidence. the crime scene Peterson were used properly The probative value of the photo of the victim was not outweighed by its allegedly inflammatory na-ture. The photo was admissible because it lent credence to the testimony of Deputy Peterson who testified that the photographs depicted the scene as it appeared when he arrived. 533. State v. Woods (Mont. 1983), 662 P.2d 579, 40 St.Rep. The State, as the prosecutor, had the burden of proving all of the elements of the offense beyond a reasonable doubt. The introduction of the photographs was a permissible means of meeting that burden as to the commission of the crime and the cause of death. This Court is well aware that these photographs depict the brutality and viciousness of the crime. However, we do not believe the photographs would arouse prejudice to a point that probative evidence must be excluded. In this era of modern media where nightly newscasts focus on victims of gang slayings, the starving of impoverished nations and motion pictures infatuate the young with bloodied bodies, we must acknowledge that our system has become immune from the shock of such scenes. We will not demand that a trial be sanitized to the point that important and probative evidence must be excluded. In considering defendant's final issue, we find there was no abuse of discretion by the trial court in admitting the testimony of the defendant's father. The defendant objected to the admission of Joseph Doll's testimony on the ground that this testimony was character evidence which is improper in the State's case-in-chief under Rule 404 (a)(1), M0nt.R.Evi.d. Rule 404(a) (I), Mont.R.Evid., provides: " (a) Character evidence generally. Evidence of a personfs character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except: "(1) Character of accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same." The State contends the testimony was not offered as evidence to prove a character trait of the defendant. father merely testified The about the defendant's childhood, marital history and education level. The record reveals the trial court specifically instructed the State to exclude any discussion regarding the defendant's temper or previous acts of violence or character trait. Following a review of the transcript, we find Joseph Doll's testimony was in no way prejudicial to defendant. The defendant further objected to the admission of testimony by Corrine Nelson and Prescott Nelson. Corrine Nelson's testimony concerned an extra-marital affair she had with defendant previous to the homicide. Prescott Nelson testified to the incidents of wife swapping between them and the defendant's dating of other women during his separation from Trudy. The defendant contends all of this testimony was character evidence. The State advances that evidence of defendant's past intimacies was highly relevant to the defendant's claim that he killed Trudy in the heat of passion upon Learning of her affair with Prescott Nelson. The State argues this evidence clearly negates defendant's claim of mitigation. The testimony of Corrine and Prescott Nelson was properly admitted. Dr. Stratford rendered his expert medical. opinion regarding defendant's state of mind at the time of the homicide. He testified that, in his opinion, the defendant did have the capacity to act purposely and knowingly and was not suffering from a mental disease or defect that would render him incapable of being aware or acting purposely, although he did have some mental defects in terms of deficits of intelligence. Again the defendant claims such testimony was charac- ter evidence. The State submits the defendant's state of mind was an element of the offense charged. The testimony was not offered to reveal the defendant's lack of intelligence, but rather it was a professional opinion concerning the defendant's state of mind at the time of the offense. Moreover, Dr. Stratford was an expert witness. Rule 702, Mont.R.Evid. permits testimony by experts. Dr. Stratford's testimony constituted a professional opinion and not character evidence. We find the testimony was properly admitted. The district judge sentenced defendant to life imprisonment plus ten years under the enhancement statute, to be served without eligibility for parole or furlough pursuant to section 4 6 - 1 8 - 2 0 2 ( 2 ) , MCA. Defendant contends on appeal that the trial court abused its discretion. In view of our rever- sal of the defendant's conviction, this issue need not be considered. For the above reasons, we reverse the defendant's conviction. The defendant is granted a new trial in a manner consistent with this opinion. We concur: Chief Justice Honorable Gordon R. Bennett, District Judge, sitting in place of Mr. Justice L. C. Gulbrandson iqr. Justice John C. Sheehy, specially concurring:
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