State v. Abe

• Decision Date: 25 August 1998
• Docket Number: No. 97-307,97-307
• Citation: 290 Mont. 393,965 P.2d 882,1998 MT 206
• Parties: , 1998 MT 206 STATE of Montana, Plaintiff and Respondent, v. Scott Michael ABE, Defendant and Appellant.
• Court: Montana Supreme Court

Page 882

965 P.2d 882

290 Mont. 393, 1998 MT 206

STATE of Montana, Plaintiff and Respondent, v. Scott Michael ABE, Defendant and Appellant.

No. 97-307.

Supreme Court of Montana.

Submitted on Briefs May 7, 1998.

Decided Aug. 25, 1998.

Larry D. Mansch, Public Defender Office; Missoula, for Defendant and Appellant.

Joseph P. Mazurek, Attorney General; Elizabeth Horsman, Assistant Attorney General; Helena; M. Shaun Donovan, Mineral County Attorney; Superior, John P. Connor, County Prosecutor Services Bureau, Helena, for Plaintiff and Respondent.

TRIEWEILER, Justice.

¶1 On February 25, 1996, defendant Scott Michael Abe was charged by information filed in the District Court of the Fourth Judicial District in Mineral County with deliberate homicide in violation of § 45-5-102, MCA. On August 23, 1996, six months after the original information was filed, the court permitted the State to file an amended information which charged Abe with deliberate homicide by accountability. Following a trial by jury, Abe was convicted of deliberate homicide by accountability. He appeals his conviction based on pretrial and evidentiary decisions of the District Court. We affirm the judgment of the District Court.

¶2 The issues on appeal are:

¶3 1. Did the District Court err when it granted the State's motion for leave to file an amended information?

¶4 2. Did the District Court err when it denied Abe's motion for change of venue?

¶5 3. Did the District Court err when it denied Abe's motion to exclude from evidence the Polar Sorel winter boots that were seized from Abe's residence?

FACTUAL BACKGROUND

¶6 On November 28, 1995, Chris Hansen called the Mineral County Sheriff's Department at approximately 9:27 a.m. and reported that he thought his wife, Nanette Hansen, was dying or dead from being kicked by a horse. Chris Hansen and his son, Scott Michael Abe, were present with Nanette in the Hansen barnyard in DeBorgia, Montana, when the first emergency medical personnel arrived at approximately 9:30 a.m. At that time, Nanette was face up, was not breathing, was cold and pale, had no pulse, her lips were purple, and her hair was matted with mud and manure. Nanette had no jacket on, despite the cold, and her pupils were dilated; her eyes were "glazed over," and she appeared to have been dead for some period of time.

¶7 Nanette was transported to the Mineral Community Hospital and officially pronounced dead at approximately 11:45 a.m. by the emergency room physician. Technically however, she was dead on arrival with no signs of life. Based upon his observation and those of emergency medical personnel, the emergency room physician felt Nanette was dead by the time emergency medical personnel arrived in DeBorgia.

¶8 Chris Hansen and Nanette Hansen had been married prior to moving to Montana in 1991, divorced, and remarried in 1994. Chris Hansen was fifty-two years old and Nanette was thirty-four years old at the time of her death. The couple owned twenty acres of land in a rural setting, on which they built a house and a barn. Chris Hansen was diagnosed with multiple sclerosis in 1993 and had difficulties with his vision and balance, and could barely walk. However, witnesses testified he had previously abused Nanette.

¶9 In the past, Chris had raped Nanette at gunpoint, beat her, and, at one point, poured kerosene on her and threatened to light it. Nanette refused to leave Chris because she felt that, due to his disability, he needed her.

¶10 The defendant, Scott Michael Abe, twenty-nine years old at the time of Nanette's death, had recently rejoined his father after twenty-five years with no contact. Abe visited his father on vacation in 1992 and soon thereafter moved in with Chris, Nanette, and Chris's mother in DeBorgia. Abe later lived in a rented trailer two-to-three miles from the Hansen property, within a five-minute drive.

¶11 Abe was open about his dislike of his stepmother. A co-worker of Abe testified that Abe told her that he despised Nanette for interfering with his and his father's relationship. On more than one occasion, Abe referred to Nanette in derogatory and vulgar terms and used profanity and expletives to describe her to others. In relation to Nanette, Abe told one friend that "he couldn't take it anymore," and he had a "nervous breakdown." Abe told a co-worker that he hated Nanette for controlling his father. Abe told the same friend that he was worried that if anything happened to Chris he would not get his share of the twenty acres of land.

¶12 Abe told his closest friend, Jerry Parrick, on at least three occasions, that he had offered to kill Nanette for his father. Abe explained that he would wait until Nanette came home drunk and passed out on the couch, he would hit her with a board that had a horseshoe nailed to it, and then take her down to the barnyard and make it look like a horse accident.

¶13 Mineral County Sheriff Mickey O'Brien, with the assistance of other officers, executed search warrants on December 6, 1995, on the residences and vehicles of both Abe and Chris Hansen. They seized two homemade weapons ("saps") from Abe's car. Later, they received two additional saps made by Abe. One came from Abe's friend, Helen Johnson. Johnson testified at trial that Abe had shown her how to use the sap on a person's temple to incapacitate a person. On December 6, 1995, O'Brien also seized a pair of size eleven Polar Sorel winter boots from Abe's residence, and sent them to the State Crime Lab.

¶14 State Medical Examiner Gary Dale, M.D., performed an autopsy on Nanette on November 29, 1995. Dr. Dale found multiple traumatic injuries on her head, neck, upper front, chest, back, arms, legs, and face. Dr. Dale carefully photographed these bruises and marks, and at trial distinguished them from common artifacts of emergency medical efforts. Dr. Dale testified that the bruises on Nanette's arms and legs were consistent with grip marks. Three of Nanette's injuries were of particular note to Dr. Dale:

¶15 1. A two-inch bruise in her left temple area extending one inch past her ear;

¶16 2. A two-inch bruise, described as a "pattern injury," on her scalp below the previous bruise; and

¶17 3. A bruise with abrasion and laceration, also described as a "pattern injury," on her collarbone.

¶18 According to Dale, none of the injures to Nanette's head were severe enough to have caused her death, and they were inconsistent with injury by a horse. Dr. Dale actually traveled to the crime scene in DeBorgia, but found nothing in the barn area consistent with the "pattern injuries." He felt the "pattern injury" on the back of her head was most likely a footwear print made by a stomp.

¶19 Dr. Dale compared the blunt force weapons ("saps"), made by Abe, to the wound on Nanette's temple area. He testified that any one of the saps, or one like them, could have made a similar injury. All of the bruises were made less than six hours before Nanette's death, with the exception of an abrasion and bruise to the left of her nose and one on her knee.

¶20 Dr. Dale's internal examination revealed the cause of death: asphyxiation by plugging of Nanette's lung airways with mud and mud-like debris. Dr. Dale was not able to ascertain how many people inflicted Nanette's injuries. His opinion was that Nanette was forced face down in the muddy soil and held there until she died. He felt it was possible that the blow to Nanette's temple rendered her unconscious and that she laid in the mud and suffocated. Dr. Dale felt, based upon his findings, that the time of death was most probably about 9:30 a.m., around the time of the call to the sheriff's office.

¶21 Forensic scientist Deborah Hewitt of the State Crime Lab is an expert in fingerprint and other impression evidence. Hewitt examined Dr. Dale's photographs of the "pattern injury" on Nanette's scalp and compared it to the Polar Sorel winter boots seized from Abe's residence. Hewitt testified at trial that the scalp pattern injury was similar in element, size, and tread design to the boots seized from Abe. Like Dr. Dale, Hewitt traveled to the Hansen barnyard crime scene to see if she could find any item to explain the pattern injuries on Nanette's body. She was unsuccessful.

¶22 The Mineral County Attorney charged Abe and Chris Hansen with deliberate homicide in a single criminal information filed on February 26, 1996. After Chris Hansen moved to disqualify Judge Harkin of Department 4, the two cases were severed and Judge McLean of Department No. 1 heard Hansen's case, while Abe's case remained with Judge Harkin. Each case thereafter proceeded with a separate cause number.

¶23 On August 23, 1996, the State filed a motion for leave to amend Abe's information to formally include an alternative charge of deliberate homicide by accountability. On the same date, the District Court granted the State's motion for leave and arraigned Abe on the amended information.

¶24 Abe filed a motion to change venue on August 21, 1996. The District Court denied the motion on September 19, 1996.

¶25 On September 12, 1996, Abe filed a motion to suppress the Polar Sorel winter boots seized at his residence on December 6, 1995. The District Court denied that motion on October 10, 1996.

¶26 On October 24, 1996, a jury convicted Abe of deliberate homicide by accountability. He was sentenced to a term of sixty years in the Montana State Prison and given credit for time served to that date.

ISSUE 1

¶27 Did the District Court err when it granted the State's motion for leave to file an amended information?

¶28 Whether to allow the amendment of an information is left to the discretion of the trial court. See State v. Tropf (1975), 166 Mont. 79, 88, 530 P.2d 1158, 1163. We review discretionary trial court rulings to determine whether there has been an abuse of discretion. See May v. First Nat'l Pawn Brokers, Ltd. (1995), 270 Mont. 132, 134, 890 P.2d 386, 388. In Montana Rail Link v. Byard (1993), 260...