State Of Mont. v. Stout

• Decision Date: 22 June 2010
• Docket Number: No. DA 09-0112.,DA 09-0112.
• Citation: 237 P.3d 37,356 Mont. 468,2010 MT 137
• Parties: STATE of Montana, Plaintiff and Appellee, v. Anne Marie STOUT, Defendant and Appellant.
• Court: Montana Supreme Court

356 Mont. 468

237 P.3d 37

2010 MT 137

STATE of Montana, Plaintiff and Appellee,

v.Anne Marie STOUT, Defendant and Appellant.

No. DA 09-0112.

Supreme Court of Montana.

Submitted on Briefs March 3, 2010.

Decided June 22, 2010.

For Appellant: Joslyn Hunt, Chief Appellate Defender; Koan Mercer, Assistant Appellate Defender, Helena, Montana.

For Appellee: Hon. Steve Bullock, Montana Attorney General; C. Mark Fowler, Assistant Attorney General, Helena, Montana, George H. Corn, Ravalli County Attorney; T. Geoffrey Mahar, William Fulbright, Deputy County Attorneys, Hamilton, Montana.

Chief Justice MIKE McGRATH delivered the Opinion of the Court.

¶ 1 Anne Marie Stout (Stout) appeals from her conviction and life sentence for the crime of deliberate homicide arising from the death of her husband Bill. We affirm the conviction and life sentence.

¶ 2 Stout presents the following issues for review:

¶ 3 Issue One: Whether the District Court properly allowed the expert reports that had been admitted into evidence into the jury room during deliberations.

¶ 4 Issue Two: Whether the District Court properly admitted evidence at trial concerning Stout's attempts to falsely implicate another woman in a campaign to harass and intimidate Stout's husband and family.

¶ 5 Issue Three: Whether the District Court properly admitted opinion testimony from a police officer concerning blood evidence at the scene.

¶ 6 Issue Four: Whether the District Court erred in refusing to suppress evidence seized under the authority of a search warrant from a motorcycle saddlebag.

¶ 7 Issue Five: Whether the District Court had jurisdiction to order that the sentence be modified after conclusion of the appeal to include reimbursement for costs of appellate counsel.

BACKGROUND

¶ 8 Bill and Anne Stout lived in a rural area near Darby, Montana, with their two teenaged sons, one of whom was attending college out of state. Bill died in their home from a single gunshot wound to the head on June 9, 2007, between 10:00 p.m. and midnight. Anne and Bill had been alone in the house that evening until their younger son returned home about midnight. Bill planned to go horseback riding with a friend the next day, and at about 10:00 p.m. talked to the friend by phone about the outing. Stout claimed that she spent the night of June 9 with Bill in their bedroom and that he was not feeling well the next morning. When Bill's friend called the next morning about the ride, Stout told him Bill was ill and was not going to go.

¶ 9 On June 10, Stout and the younger son drove to Missoula for a shopping trip, returning home late in the afternoon. The younger son did not see his father the prior evening, or before leaving for Missoula with Stout the next morning. She and the son arrived home from the shopping trip to find Bill's body in bed. She called 911 about 4:30 p.m.

¶ 10 The murder weapon was a pistol owned by Bill. Ten days before his death he reported to the Ravalli County Sheriff that the pistol, holster and ammunition were missing. Ambulance personnel and officers who responded to the 911 call from Stout confirmed that Bill was dead and that no gun was found in the room with him. Officers applied for and obtained a search warrant. The gun was subsequently located in the saddlebag of Bill's motorcycle in the garage of the house. The holster was found in a laundry hamper under washed but wet clothing, and the ammunition was found on top of Bill's gun safe. Three rounds were missing from the center of the box, so that unless the box was completely opened it appeared upon opening from the end that it was full.

¶ 11 Officers found what appeared to be a laundry washing project that was never finished. Wet laundry, smelling strongly of bleach, was in the hamper but had not been dried. A neighbor whose window faced Bill and Anne's house reported seeing lights on in the bedroom area in the middle of the night, on the night before Anne and the son went to Missoula. The neighbors felt that seeing the light on at that time and location was unusual.

¶ 12 The bullet that killed Bill and the spent shell casing were recovered from the bed where he was found. A spent shell casing from the pistol was found in the yard, and an un-fired round was in the chamber of the pistol, accounting for the three rounds missing from the ammunition box. Expert botanical examination of a plant blossom found in the ammunition box showed it came from a bush in the yard that had first bloomed for the season at least six days after Bill reported the gun missing. Expert analysis showed that the two spent shell casings came from Bill's gun, as did the bullet that killed him.

Stout testified that she did not know anything about the blossom in the ammunition box, but that she assumed that the expert's analysis of it was correct. At the time of the search both Stout and her son told officers that Bill's gun was missing.

¶ 13 The search also revealed a latex glove imbedded with gunshot residue on the outside and Stout's DNA on the inside. The glove was located in the same laundry hamper as the holster and wet laundry, but Stout testified that she did not know how her DNA got inside the glove. She later testified that she often used rubber gloves around the house, which would explain her DNA, but that she still had no idea how gunshot residue got onto a glove with her DNA in it. Stout testified that she had nothing to do with the gun or the holster and did not know how they ended up in the locations where officers found them. Investigating officers recovered no fingerprints from the gun or ammunition. There was no gunshot residue on Bill's hands.

¶ 14 The search also revealed a note in Stout's handwriting in her nightstand that contained apparent instructions on how to fire a pistol like the one used in the crime. She claimed that the note was actually a guide for their college-age son for using the clothes washer. Her computer showed 56 internet searches for such topics as how to kill someone, how to poison someone and get away with it, and how to put a person to sleep. Stout testified that she believed that these were Bill's searches and showed that he planned to commit suicide. Stout was the beneficiary of a $500,000 term life insurance policy that Bill had taken out two years before his death, and was co-owner of their real estate with equity over $500,000.

¶ 15 The investigation also revealed that during a 2005 trip to Arkansas, Bill had a brief affair with a woman he had known years before named Barbara Miller. Bill and Miller continued to communicate after Bill returned to Montana, and he bought a plane ticket for her to fly into Kalispell, Montana, although that trip and meeting never happened. Miller testified that she and Bill had discussed getting married and that she planned to move to Montana when that happened.

¶ 16 Stout later found out about the relationship between Bill and Miller through a phone call from a female person who Stout said she did not recognize. She had a confrontation with Bill over the affair and he agreed to terminate contact with Miller. Shortly thereafter (still in 2005), Bill, Anne, their sons, and a number of their friends began receiving emails or letters postmarked in Arkansas purporting to be from Miller or from Miller's daughter. The communications deprecated Anne Stout, touted the relationship between Bill and Miller and claimed that it was an ongoing affair. They claimed that Miller was pregnant with Bill's child, and claimed that Miller was going to move to Montana to take Anne Stout's place in the family. The communications claimed that Miller was going to bring Bill's baby to Montana. Other communications, including letters postmarked in Arkansas, purported to invite the family and friends to a barbecue in Montana to celebrate the relationship between Bill and Miller. Bill reported the purported Miller harassment to law enforcement in Ravalli County. Stout told a number of people about Bill's relationship with Miller, and it was a source of intense shame and embarrassment for him. These purported communications from Miller continued sporadically until June, 2006. None of the communications ever went to members of Stout's family.

¶ 17 The investigation showed that the email accounts from which the purported Miller messages were sent were created on Stout's work computer, and that some of the emails had been sent from her home computer. Investigators were able to duplicate a Ft. Smith, Arkansas postmark like the ones found on letters purporting to be from Miller by mailing a stamped and addressed letter in a manila envelope from Hamilton, Montana to the postmaster in Ft. Smith, Arkansas. During the search immediately after Bill's death in 2007, officers found two letters with Arkansas postmarks in Anne's car in the garage, one sealed and one un-sealed, like the others that had started appearing in 2005.

¶ 18 Stout's was the only DNA found on the adhesive of an envelope postmarked from Arkansas, purporting to be from Miller and inviting Bill's work partner to the barbecue. The sealed Ft. Smith, Arkansas envelope found in Stout's car during the search contained printed-out emails purporting to be from Miller. Those print-outs contained Stout's fingerprints and palm print. She testified that she did not dispute that her DNA was on the adhesive of the Arkansas envelopes but that she had no idea how it got there. She testified that she could have unknowingly handled the contents of the Arkansas mailings because she sometimes helped Bill with paperwork. During the search after Bill's death, officers found in the Stouts' bedroom a copy of a purported invitation to the barbecue addressed to their sons. Handwriting on the invitation, purportedly from Miller in Arkansas, was identified as Stout's by handwriting analysis, to a high probability.

¶ 19 In addition to the mailings and emailings, there were several acts of petty vandalism such as eggs or feces...