State v. Doll

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:

f
For Appellant: :
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
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Mr. 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

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. 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

pius 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, Trudy D o l l , on A p r i l 2 , 1983. H e m a r r i e d Trudy

Doll in 1977. They had two c h i l d r e n . The d e f e n d a n t and

Trudy had been residing in 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. The f o u r became

intimate. Their relationship included incidents of wife

swapping. 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 . She f i l e d f o r a d i v o r c e

i n March. 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. Trudy made arramgements t o

s t a y with Betty. 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 . The a p a r t m e n t

wa.s i n t h e same b u i l d i n g , one f l o o r above t h e a p a r t m e n t i n

which B e t t y l i v e d . 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 arrived in Missoula on Thursday, March 31.
O April
n 2, t h e d e f e n d a n t was a t Trudy's 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 down-

s t a i r s and called the police. She made a c o u p l e o f more

trips upstairs in an effort to open t h e d o o r t o g e t the

children out. 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

dad were dead. 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

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

unconscious. The d e f e n d a n t w a s lying next t o her with a

knife i n h i s chest. 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

behind h e 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 . She s u f f e r e d a t o t a l

of twenty-one s t a b wounds. 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

bone. 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

and arm. 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 s t a b wounds

to the chest and a self-inflicted s t a b wound to the neck

which s e v e r e d t h e c a r o t i d a r t e r y . H e was hospitalized 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 know-

ingly at the time the a c t was committed. Further, both

stated that the defendant was not under the 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 to

S t a t e v. Just ( 1 9 8 0 ) , 184 Mont.+Z22, 6 0 2 P.2d 957, t h a t it
J ~ J
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 previ-
ous 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. She was able to convince him to let the other
people go. 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. Evi-
dence 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, howev-
er, 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) determi-
and
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 caution-
ary 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 (1975), 169 Mont. ,%$, 544
35
P.2d 1212, where we allowed the admission of evidence of
assaults three years earlier. Also see State v. Nicks
(1958), 134 Mont. 341, 332 P.2d 904. 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 v.
Fitzpatrick (1980), 186 Mont. 187, 606 P.2d 1343. The record
reflects careful consideration by the trial court of Rule
404(b), Mont.R.Evid. The trial court methodically adhered to
the 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 admis-
sion 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 deliber-
ate homicide. The Sta.te claims that overwhelming evidence
proved lack of extreme mental or emotional stress, a neces-
sary element of mitigated deliberate homicide. The evidence
included numerous affairs during the marriage, incidents of
wife-swapping and the testimony of Dr. Stratford, a psychia-
trist 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 Constitu-
tion forbids fundamental unfairness in the use of evidence.
Blackburn v. Alabama (1960), 361 U.S. 199, 80 S.Ct. 274, 4
L.Ed.2d 242. 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 trial court's

i n i t i a l order precluding Janice I r v i n e ' s testimony. More-

over, the defendant 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 guaran-

t 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. Workman v. McIntyre C o n s t r u c t i o n Co. (Mont.

1980), 617 P.2d 1281, 37 St.Rep. 1637. 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 as-

s a u l t s committed by t h e d e f e n d a n t . As a result, 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. 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

by t h e S t a t e . 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. 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.

At the noon recess following the testimony of Kim

Aspenlieder, 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

defendant requested that the note be given to Kim

Aspenlieder. He also told 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 offered the letter to impeach Kim

Aspenlieder. The letter evidenced a romantic attachment

between the witness and the defendant. 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 introducing the letter as evidence against a

defendant on the charge f o r which he i s i n custody. In
support of his argument defendant cites State ~ 7 . Sheriff

(Mont. 1 9 8 0 ) , 619 P.2d 181, 37 St.Rep. 1793. In Sheriff, the

defendant challenged the practice within 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. 396,

9 4 S.Ct. 1800, 4 0 L.Ed.2d 224, a l s o Palmigiano v. Travisono

(D.R.I. 1 9 7 0 ) , 317 F.Supp 776, and condemned t h e p r a c t i c e on

b o t h F i r s t Amendment, the right t o freedom o f speech, and

Fourth Amendment grounds. The rule of Sheriff does not

control this case. In the present matter, t h e defendant

voluntarily handed an unsealed note to the deputy. The

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 . The n o t e was n o t p l a c e d

i n U.S. mail. As a 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 . The

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 . 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 and slides of the victim. The

photographs displayed wounds of the face, chest and 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 than probative, citing Rule 403,
M0nt.R.Evid.i 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 sub-
stantially outweighed by the danger of
unfair prejudice, confusion of the is-
sues, or misleading the jury, or by
considerations of undue delay, waste of
time, or needless presentation of cumula-
tive 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. In State v. Austad
(Mont. 1982), 641 P.2d 1373, 39 St.Rep. 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 fifteen
admitted. 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 propor-
tion 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 pathol-
ogist at the autopsy related to the charge against the defen-
dant and were properly admitted as part of the corpus
delicti.
Likewise, the photographs of the crime scene used
during the examination of Deputy Peterson were properly
admitted in evidence. 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 ar-
rived. State v. Woods (Mont. 1983), 662 P.2d 579, 40 St.Rep.
533. 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. The
father merely testified 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 defen-
dant'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 homi-
cide. 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 intelli-
gence. 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 intelli-
gence, 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 charac-
ter evidence. We find the testimony was properly admitted.
The district judge sentenced defendant to life impris-
onment 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: