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: 

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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 - 1985 U' ' 

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Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court 

Douglas Joseph Doll appeals from a conviction of deliberate homicide following a jury trial in the District Court 

of Missoula County. The District Court sentenced him to life 

pius ten years imprisonment without possibility of parole. 

The defendant was designated a dangerous offender. 

The defendant was charged with deliberate homicide of 

his wife, Trudy Doll, on April 2, 1983. He married Trudy 

Doll in 1977. They had two children. The defendant and 

Trudy had been residing in Glendive for several years. 

Prescott Nelson and his wife were friends of the defendant 

and Trudy when they resided in Glendive. The four became 

intimate. Their relationship included incidents of wife 

swapping. In Februarv of 1983, Trudy left the defendant and 

moved to Missoula with the children. She filed for a divorce 

in March. Later that month Trudy learned that the defendant 

wa.s coming to Missoula. Trudy told a friend, Barbara Griess, 

that Doug was coming and she did not want to be alone while 

the defendant was in Missoula. Trudy made arramgements to 

stay with Betty. The defendant made arrangements to stay in 

a friend's apartment while he was in Missoula. The apartment 

wa.s in the same building, one floor above the apartment in 

which Betty lived. At Trudy's request, all of the guns in 

the apartment were taken out and hidden in Betty's apartment. 

The defendant arrived in Missoula on Thursday, March 31. 

On April 2, the defendant was at Trudy's apartment. 

The defendant and Trudy talked for awhile and then she went 

downstairs to a friend's apartment. A short time later, the 

defendant asked Trudy to come upstairs to talk to him a.nd 

they went up together. Betty testified to hearing sounds of 
a struggle. She ran up the stairs and heard Trudy scream. 

Betty tried to get in but the door was locked. She ran downstairs and called the police. She made a couple of more 

trips upstairs in an effort to open the door to get the 

children out. She heard their child state that his mom and 

dad were dead. Betty opened the door and. sent the children 

downstairs. She saw Trudy lying on the floor, bloodied and 

unconscious. The defendant was lying next to her with a 

knife in his chest. She left the apartment, closing the door 

behind her. Officer Morman was the first officer to arrive 

at the scene. He had to force his way into the apartment, 

which apparently had been locked by the defendant after Betty 

left. 

Trudy Doll was dead at the scene. She suffered a total 

of twenty-one stab wounds. There were two wounds to the 

heart and six to the left lung, any one of which would ha.ve 

been fatal. Three ribs were fractured by blows to the chest, 

a.nd in addition a stab wound to the face fractured a facial 

bone. Defensive stab wounds were found on the victim's wrist 

and arm. The defendant had four self-inflicted stab wounds 

to the chest and a self-inflicted stab wound to the neck 

which severed the carotid artery. He was hospitalized for 

thirty days. 

Dr. Herman Walters and Dr. William Statford testifj-ed 

to the defendant's mental capacity. Both concurred that the 

defendant had the capacity to have acted purposely and knowingly at the time the act was committed. Further, both 

stated that the defendant was not under the influence of 

extreme emotional stress. 

Before the trial, the State filed a notice pursuant to 

State v. Just (1980), 184 Mont.+Z22, 602 P.2d 957, that it 

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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 previous 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. Evidence 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, however, 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; - and (4) determination 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 cautionary 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 admission of Janice Irvine's testimony, at best it constitutes 

harmless error. The State's position is that Irvine's testimony could not have contributed to the conviction of deliberate homicide. The Sta.te claims that overwhelming evidence 

proved lack of extreme mental or emotional stress, a necessary element of mitigated deliberate homicide. The evidence 

included numerous affairs during the marriage, incidents of 

wife-swapping and the testimony of Dr. Stratford, a psychiatrist 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 Constitution 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 
defendant was assured that evidence of other crimes would not 

be admitted. The defendant relied on the trial court's 

initial order precluding Janice Irvine's testimony. Moreover, the defendant lost his opportunity to voir dire the 

jury regarding the effect evidence of prior crimes would have 

on their decision. Had the trial court ruled in its pretrial 

order that the testimony of Janice Irvine was admissible, the 

defendant could have prepared in order to lessen the impact 

of such testimony and also voir dired the jury on the effect 

of such evidence. The trial court's ruling may have denied 

the defendant a trial by a fair and impartial jury as guaranteed by Amendment VI of the United States Constitution. The 

purpose of pretrial orders is to prevent surprise and permit 

counsel to prepare their case for trial on the basis of the 

pretrial order. Workman v. McIntyre Construction Co. (Mont. 

1980), 617 P.2d 1281, 37 St.Rep. 1637. The counsel of both 

parties relied on the trial court's order. However, upon the 

persistent urging of the State, the trial court reversed this 

ruling and allowed the State to introduce evidence of assaults committed by the defendant. As a result, the defendant suffered prejudice. 

Defendant contends the court's admission of the letter 

was clear error. Kimberly Aspenlieder was a witness called 

by the State. She testified she met the defendant two or 

three weeks before the homicide and spent a lot of time with 

him. She claimed their relationship was not a romantic one. 

At the noon recess following the testimony of Kim 

Aspenlieder, the defendant handed a note to a deputy. The 

defendant requested that the note be given to Kim 

Aspenlieder. He also told the deputy that he assumed the 

deputy "would have to read it" before delivering the note. 
The deputy read the note and turned it over to the prosecution. The State offered the letter to impeach Kim 

Aspenlieder. The letter evidenced a romantic attachment 

between the witness and the defendant. Defense counsel 

argued the letter was a statement of the defendant of which 

counsel was not given notice and that the letter was highly 

prejudicial and not probative. The trial court admitted the 

letter. 

The defendant also claims it was unlawful for the State 

to seize a letter written by a defendant in custody for the 

purpose of introducing the letter as evidence against a 

defendant on the charge for which he is in custody. In 

support of his argument defendant cites State ~7. Sheriff 

(Mont. 1980), 619 P.2d 181, 37 St.Rep. 1793. In Sheriff, the 

defendant challenged the practice within prisons for jail 

officials to read all incoming and outgoing mail of prisoners. We adopted the rule established by the United States 

Supreme Court in Procunier v. Martinez (1974), 416 U.S. 396, 

94 S.Ct. 1800, 40 L.Ed.2d 224, also Palmigiano v. Travisono 

(D.R.I. 1970), 317 F.Supp 776, and condemned the practice on 

both First Amendment, the right to freedom of speech, and 

Fourth Amendment grounds. The rule of Sheriff does not 

control this case. In the present matter, the defendant 

voluntarily handed an unsealed note to the deputy. The 

contents of the note were visible. The note was not placed 

in U.S. mail. As a result we find no search occurred. The 

letter was properly offered to impeach the witness. We find 

the trial court did not err in admitting the letter. 

The defendant next claims error in the District Court'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 substantially outweighed by the danger of 

unfair prejudice, confusion of the issues, or misleading the jury, or by 

considerations of undue delay, waste of 

time, or needless presentation of cumulative 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 proportion 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 pathologist at the autopsy related to the charge against the defendant 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 arrived. 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 personf s 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 defendant'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 homicide. 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 intelligence. Again the defendant claims such testimony was character 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 intelligence, 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 character evidence. We find the testimony was properly admitted. 

The district judge sentenced defendant to life imprisonment plus ten years under the enhancement statute, to be 

served without eligibility for parole or furlough pursuant to 

section 46-18-202(2), MCA. Defendant contends on appeal that 

the trial court abused its discretion. In view of our reversal 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: