447 P.3d 416 (Mont. 2019), DA 16-0473, State v. Laird

• Docket Nº: DA 16-0473
• Citation: 447 P.3d 416, 2019 MT 198
• Opinion Judge: Laurie McKinnon, Justice.
• Party Name: STATE of Montana, Plaintiff and Appellee, v. Brian David LAIRD, Defendant and Appellant.
• Attorney: For Appellant: Nancy G. Schwartz (argued), NG Schwartz Law, PLLC, Billings, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K Plubell (argued), Assistant Attorney General, Helena, Montana, Chad Parker, David Ole Olson, Special Deputy County Attorneys, Helena, Montana, Gerald...
• Judge Panel: MIKE McGRATH, C.J. Justice Ingrid Gustafson, concurring in part and dissenting in part. Justice Dirk M. Sandefur joins in the concurring and dissenting Opinion of Justice Gustafson. DIRK M. SANDEFUR, J. Justice Beth Baker, dissenting. Justices Jim Rice and James Jeremiah Shea join in the dissenti...
• Case Date: August 20, 2019
• Court: Supreme Court of Montana

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447 P.3d 416 (Mont. 2019)

2019 MT 198

STATE of Montana, Plaintiff and Appellee,

v.

Brian David LAIRD, Defendant and Appellant.

No. DA 16-0473

Supreme Court of Montana

August 20, 2019

Argued: May 1, 2019

Submitted: May 7, 2019

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APPEAL FROM: District Court of the Twenty-Second Judicial District, In and For the County of Big Horn, Cause No. DC 14-68, Honorable Michael B. Hayworth, Presiding Judge

For Appellant: Nancy G. Schwartz (argued), NG Schwartz Law, PLLC, Billings, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K Plubell (argued), Assistant Attorney General, Helena, Montana, Chad Parker, David Ole Olson, Special Deputy County Attorneys, Helena, Montana, Gerald Harris, Big Horn County Attorney, Hardin, Montana

OPINION

Laurie McKinnon, Justice.

[¶1] A jury in the Twenty-Second Judicial District Court, Big Horn County, convicted

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Brian David Laird (Laird) of deliberate homicide. The District Court sentenced Laird to incarceration for 100 years with no time suspended. Laird appeals. He raises three issues, which we restate as:

1. Did the fifteen-year preaccusation delay unconstitutionally prejudice Laird?

   2. Did the State present sufficient evidence in its case-in-chief to overcome Laird’s motion to dismiss for insufficient evidence?

   3. Did the District Court abuse its discretion by admitting statements a forensic pathologist made while he performed the autopsy when he was unavailable to testify at trial?

   [¶2] We conclude the fifteen-year preaccusation delay did not unconstitutionally prejudice Laird and determine the State presented sufficient evidence in its case-in-chief to overcome Laird’s motion to dismiss for insufficient evidence. We further conclude, however, that the District Court abused its discretion by admitting the unavailable pathologist’s statements. We therefore reverse this case on issue three and remand the case to the District Court for further proceedings consistent with this Opinion.

   FACTUAL AND PROCEDURAL BACKGROUND

   [¶3] In the early-morning hours of July 31, 1999, Kathryn Laird drowned in the afterbay area of the Yellowtail Dam of the Bighorn Canyon National Recreation Area. The circumstances surrounding Kathryn’s death were suspicious, and a criminal investigation ensued. Fifteen years later, in September 2014, the State charged Kathryn’s husband, Laird, with deliberate homicide for Kathryn’s death. Following a one-week trial, a jury found Laird guilty.

   [¶4] Kathryn grew up in Texas, where she and her siblings spent many hours swimming in their backyard pool. She had extremely poor eyesight and could not see without her glasses or contact lenses. Kathryn met Laird in college and they eventually married in February 1999. Kathryn had a dog, Ralphie, who she adored. In July 1999, the couple lived in a trailer park in Fort Smith, Montana, near the afterbay area of the Yellowtail Dam. A walking trail ran from the trailer park down to the afterbay area. Laird worked as lawyer in Billings and also worked as a fishing guide out of Fort Smith. Kathryn worked multiple jobs in the Fort Smith area. In the mornings, she worked with Greg Heidrich (Heidrich) at Quill Gordon’s, a fly and tackle shop, where she set out a continental breakfast for fishing guests. In the evenings, she worked for Tanya Warren (Warren) at Bighorn River Country Lodge, a fishing lodge, where she provided the guests’ dinner. Kathryn also periodically drove shuttles for fishing guests.

   [¶5] During its case-in-chief, the State questioned numerous witnesses who testified that Kathryn was unhappy in the days leading up to her death and that Laird and Kathryn argued throughout the day on July 30, 1999. A few days before Kathryn died, she spoke with her mother, Mary Lou, on the phone. Kathryn was upset and crying during their conversation. Kathryn also spoke with her brother around that time, and she was distraught and crying during their conversation as well.

   [¶6] In the afternoon on July 30, 1999, Don Lyman (Lyman) saw the Lairds arguing outside of their trailer home. Laird chased Kathryn around the yard, smacked her in the head with a plastic bag filled with cookies, and repeatedly said something along the lines of, "You bitch, you burnt my fucking cookies." Later that day while Kathryn was at work, Warren, Kathryn’s boss at her evening job, observed a second heated conversation between Laird and Kathryn. Warren’s husband eventually asked Laird to leave; Laird complied. Kathryn worked late that night, leaving after 11:00 p.m.

   [¶7] Kathleen and Eric Anderson (the Andersons) spent their weekends recreating on the water around Fort Smith. When they were in town, the Andersons stayed in a camper that was parked on a lot near the Lairds’ trailer and near the walking trail that ran from the afterbay to the trailer park. They overheard the Lairds arguing over the course of several weekends before Kathryn’s death. Kathleen took a shower close to midnight

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   on July 30, 1999, and could clearly hear the couple arguing in raised voices through the vent in the shower ceiling. A male voice stated, "You fucking bitch," over and over again, while a crying female voice repeated, "No, no, no." The argument went on the entire time Kathleen was in the shower, but then suddenly completely stopped. Eric also heard the Lairds arguing that night.

   [¶8] Shortly after the argument ended, the Andersons heard a vehicle start. They looked outside and saw a person slowly driving the Lairds’ white SUV, known by most to be Kathryn’s car, by their camper and out of the neighborhood. Kathleen observed that the driver was a man. Eric assumed the driver was male because the person driving was large. Thankful it would finally be quiet because the man had driven away, the Andersons went to sleep. However, between 45 minutes and an hour later, the Andersons’ daughter’s dog, which was tied up outside, started barking loudly and became very upset. There was an open area between where the dog was tethered and the walking path that led down to the afterbay, and the dog was barking in the open area’s direction. The dog was known to be very aggressive towards males, even male members of the Andersons’ family.

   [¶9] Laird did not testify at trial, but a few years after Kathryn died, Laird applied to practice law in Missouri. The Missouri Board of Law Examiners (Board) questioned Laird about the circumstances surrounding Kathryn’s death. Laird answered the questions under oath and, accordingly, the State read the transcript from that questioning into evidence at trial. When asked whether he and Kathryn verbally argued during their marriage, Laird told the Board that Kathryn was "argumentative during her premenstrual time." Laird classified their disagreements as Kathryn being argumentative with him, not the other way around, and further testified that they never had any physical confrontations.

   [¶10] Laird explained the circumstances surrounding Kathryn’s death, specifically his perception of the events on the night of July 30, 1999, to the Board. He was supposed to go to Billings the next morning to do law work and wanted to get rest before making that trip. Kathryn came home from work later than normal that evening and the two got into a discussion around 11:30 p.m. It was "during her premenstrual period" so "she was very tired and very grouchy." Laird told Kathryn that she should quit her morning job, because the money she made was not worth her having to wake up so early, at 4:30 or 5:00 a.m., and being so tried. Kathryn "wanted to argue" about her morning job and "things in general," but Laird wanted to go to sleep. The two argued for ten or fifteen minutes, Laird "refused to have an argument because it was a small point and it was late at night and [he] had to go to Billings" the next day.

   [¶11] Before the couple moved to Fort Smith, Laird would sleep in his car near the afterbay if he had to guide the next day. To avoid the argument that night, Laird got in his car, drove to that spot near the afterbay, and went to sleep. He awoke to Kathryn knocking on his car window; she was "furious" Laird decided to go sleep in his car. He told her to let him go back to sleep, but she refused, saying that she wanted to fight. They eventually agreed to not fight and to go back to the trailer together. They each drove a car back to the trailer; Laird arrived first and went to bed. Kathryn got to the trailer about twenty minutes later, and was "going all around" the trailer, slamming drawers. Laird told Kathryn to calm down and asked her what the problem was. She was very upset, would not say what was wrong, and kept slamming things around and digging through drawers. She was acting "like a mad woman"; Laird told her to settle down. Kathryn suddenly stormed out of the trailer, telling Laird to "take care of Ralphie." Laird fell asleep; he assumed Kathryn had cooled off and then come home.

   [¶12] The next morning, July 31, 1999, Kathryn did not show up for work at Quill Gordon’s. Heidrich, Kathryn’s co-worker, called the Lairds’ trailer looking for Kathryn. The phone rang, but no one answered it. Heidrich waited a few minutes and called a second time. Laird groggily answered. Heidrich asked if something was wrong with Kathryn, Laird replied, "No, she’s at work," and

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   Heidrich responded that she was not. Heidrich called his girlfriend, asked for her help setting out breakfast, and briefly left work to go pick her up. As he drove back to work around 6:30 or 7:00 a.m., he saw Laird driving away from the...