State v. Ayers

Citation68 P.3d 768,2003 MT 114,315 Mont. 395
Decision Date28 April 2003
Docket NumberNo. 01-423.,01-423.
PartiesSTATE of Montana, Plaintiff and Respondent, v. Richard Alan AYERS, Jr., Defendant and Appellant.
CourtUnited States State Supreme Court of Montana

Larry Jent, Williams & Jent, Bozeman, Montana; Kevin S. Brown, Paoli & Brown, Livingston, Montana, for Appellant.

Mike McGrath, Montana Attorney General, Cregg W. Coughlin, Assistant Montana Attorney General, Helena, Montana; Tara DePuy, Park County Attorney, Livingston, Montana, for Respondent.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 On January 12, 2000, Richard Ayers (Ayers) was charged by information in the Sixth Judicial District Court with seven different charges, including deliberate homicide, aggravated burglary, theft, and felony sexual assault. On December 18, 2000, following a week-long jury trial, Ayers was found guilty of six counts, and later pled guilty to the seventh count, which had been severed prior to trial. On February 28, 2001, the District Court sentenced Ayers to life in prison without the possibility of parole on the deliberate homicide count, along with additional time periods for the other six counts. Ayers appeals several evidentiary rulings by the District Court. We affirm.

¶ 2 Ayers presents the following four issues on appeal:

1. Whether the District Court erred in denying Ayers' motion in limine to exclude testimony using the "likelihood ratio" in presenting DNA results;
2. Whether the District Court erred in denying Ayers' motion to disclose the identity of a confidential informant;
3. Whether the District Court erred in denying Ayers' motion to exclude evidence; and

4. Whether the District Court erred in admitting evidence of Ayers' 1990 Wyoming conviction for first degree sexual assault.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 On Tuesday, December 7, 1999, the body of Mary Phyllis Martz (Phyllis) was discovered in her Livingston Village Apartment by the apartment-complex manager. Phyllis had been beaten about the head and neck, sexually assaulted, stabbed once in the back and once in the chest, and her throat had been sliced. At the time of her death, Phyllis was 54 years old, but appeared older than her chronological years. Phyllis smoked unfiltered cigarettes and was described as a "closet drinker," purchasing a bottle of vodka at a local liquor store on nearly a daily basis. According to friends and neighbors, Phyllis was a sociable, friendly person who frequently visited neighbors in the Livingston Village Apartment complex.

¶ 4 Phyllis lived alone in her apartment ever since her husband, Dallas Martz (Dallas), had been incarcerated on September 21, 1999. Apparently, Phyllis would leave her apartment unlocked during the day and would lock it before going to bed. The Martzes owned two cars—a 1978 Chevy Nova and a 1988 red/maroon Ford Taurus, which had mechanical problems that caused it to overheat. According to Dallas, the Taurus was Phyllis's car and she would not allow anyone else to drive it.

¶ 5 On Thursday, December 2, 1999, Phyllis drove one of her neighbors, Marilyn Fournier (Fournier), to the store in her Taurus. Fournier is Ayers' mother and lived in the same apartment complex as Phyllis. Later that same day, Fournier asked Ayers, who was visiting her at her apartment, to go to Phyllis's apartment to retrieve her hair dryer, which according to Fournier, he did.

¶ 6 On Monday evening, December 6, a tenant in the apartment complex reported that the door to Phyllis's apartment was ajar and Phyllis's dog was inside barking. Apparently, the door to Phyllis's apartment was difficult to close due to the poor condition of weather stripping. The complex manager went to Phyllis's apartment, found the door ajar, retrieved the dog and then securely closed the door. The next day, Tuesday, December 7, Phyllis's door was again ajar. When the apartment manager went to investigate, she discovered Phyllis's body and called 911.

¶ 7 Phyllis was found on her back on the living room floor. Her body was covered by either a table cloth or curtain-type material, and her face had been covered with a bath mat. Her shirt was open and her bra had been pushed up, with her left breast partially exposed and her right breast fully exposed. Phyllis had been stabbed in the chest, apparently after her bra and shirt had been removed, as there were no cuts on either piece of clothing. She was also stabbed once in the back, through her shirt. There was an incise wound across Phyllis's throat, which was described as "fairly superficial," and was most likely inflicted after the chest wound. Based on the condition of Phyllis's body and considering the warm temperature in her apartment, the State Medical Examiner, Dr. Gary Dale (Dr. Dale) testified that at a minimum, Phyllis probably died two or three days before her body was discovered.

¶ 8 A small glass vase was positioned across Phyllis's neck just below the incise wound on her throat. Phyllis's pants, underpants, and socks had been removed, apparently in one motion, and her glasses were on the floor with blood smears on the inside of the lenses. A folded paper towel was positioned directly underneath Phyllis's vaginal area; however, one of the investigators, Agent Larry Johnson (Johnson), testified that he did not find any evidence of sexual intercourse at the crime scene.

¶ 9 Two newspapers were discovered on the floor to the left of Phyllis's body—one dated Friday, December 3, 1999, and the other dated Saturday, December 4, 1999. A torn piece of the Saturday newspaper was stuck to Phyllis's left hand with dried blood. Subsequent analysis of the papers revealed two latent palm prints on the Saturday newspaper—both made by Ayers' left hand.

¶ 10 While the crime scene was being processed, an all-points bulletin was issued on Phyllis's Taurus, which was missing from her parking space. At around 9:30 p.m., on Tuesday, December 7, the car was located in an alley, and was later seized pursuant to a search warrant. A search of the vehicle produced no physical evidence, and the car appeared to have been wiped clean. Later on the 7th, police received a phone call from a Livingston resident who suspected Ayers might be involved with Phyllis's death.

¶ 11 According to Ayers' friend, Jake Fox (Fox) and Fox's girlfriend, Teri Kniffin (Kniffin), Ayers drank with them the evening of Friday, December 3, and stayed all night. The next day, Saturday, December 4, Ayers was again at Fox's trailer, when he called for a taxi. A taxi driver dropped Ayers off at the Livingston Village Apartment complex at around 5:00 p.m. According to Fournier, Ayers visited with her for about ninety minutes and then left, supposedly to walk to a nearby gas station.

¶ 12 Ayers was seen later on Saturday evening at a house party given by Aaron Paul (Paul). According to Paul, he and Ayers got into a "reddish" four-door car that Ayers explained he borrowed from a friend who had "passed out" from drinking too much. While Paul was driving the car, it began to overheat. Ayers indicated he had access to another car, and directed Paul to drive to the Livingston Village Apartments, and pull in next to the Martzes' Nova. Ayers went indoors and returned a few minutes later, explaining to Paul he could not find the Nova keys. According to Paul, he and Ayers spent a couple of hours driving around that night, and he described Ayers as acting jumpy and paranoid, but considered that normal for Ayers. That night, Paul observed two throwing knives in the car, which were later determined to fit the description of two knives belonging to Dallas Martz.

¶ 13 On December 7, the day Phyllis's body was discovered, Ayers picked Fox up at Kniffin's apartment at around noon, and the two drove to Bozeman. Ayers was driving the red Taurus, which he referred to as "the boss's car," and while in Bozeman, Ayers told Fox that he hoped the car had not been reported stolen. After the two returned to Livingston, Fox and Ayers wiped the car down with rubbing alcohol (Fox initially denied his involvement with the car but later admitted he helped wipe it down; Fox pled guilty to felony evidence tampering). Phyllis's Taurus was discovered later that evening in an alley near Kniffin's apartment.

¶ 14 Ayers was apprehended on Wednesday, December 8. Police took the two knives into evidence after Ayers' girlfriend turned them over. These knives were later identified as those missing from the Martz residence.

¶ 15 Ayers was charged by information on January 12, 2000, with the following offenses: Count I, deliberate homicide, a felony; Count II, aggravated burglary, a felony; Count III, theft, a felony; Count IV, tampering with evidence, a felony; Count V, failure to register as a sex offender, a felony; Count VI, sexual assault, a felony; and Count VII, obstructing a peace officer, a misdemeanor. Ayers filed a motion to sever Count V, failure to register as a sex offender, which the District Court granted.

¶ 16 At the omnibus hearing on April 3, 2000, the State declared that while a confidential informant was involved, the confidential informant (CI) would not be called to testify. The State relied on the privilege of nondisclosure as to the CI's identity. Also during the omnibus hearing, the State disclosed its intent to introduce evidence of other crimes pursuant to Rule 404, M.R.Evid., and filed its notice of intent on April 10, 2000.

¶ 17 The State sought to present evidence of Ayers' 1990 guilty plea to the offense of first degree sexual assault, a felony, in Wyoming. The information from the Wyoming case indicated that Ayers sexually assaulted an elderly lady and then took her vehicle. The State argued that the nature of the Wyoming crime was similar to what it alleged occurred in this case. On August 28, 2000, the District Court granted the State's motion to introduce evidence of Ayers' prior conviction to prove both motive and identity (which the...

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