Judge signals direction for second homicide trial
ELLSWORTH — The Pierce County District Attorney's Office is moving ahead to retry a Prescott woman acquitted of first-degree homicide, but a judge signaled specific boundaries he said prosecutors may need to abide while trying Rose Marie Kuehni on a lesser homicide charge.
The framework Buffalo-Pepin County Circuit Court Judge James Duvall outlined echoes instructions he gave a jury in August that preceded a mixed-bag verdict for the woman accused of murdering her boyfriend, Douglas Bailey, Nov. 22, 2015, at their home.
The jury acquitted Kuehni — whose attorney presented a self-defense argument — of first-degree homicide, but was hung on a count of second-degree homicide. Jurors convicted Kuehni of hiding a corpse, though Duvall waited to enter that judgment pending the outcome of the second trial.
Since the jury was deadlocked on the lesser homicide charge, prosecutors were allowed to retry Kuehni on that count. Duvall repeated at a hearing Thursday that the prosecution's case should address a critical question: Would a reasonable person in Kuehni's circumstances also conclude that deadly force was necessary?
That, Duvall said, allows for prosecution to have jurors consider things such as why Kuehni did not stay gone after taking their dogs on a walk at the onset of the domestic abuse she said she endured the night of the fatal shooting. Why, Duvall postulated, did Kuehni not call police after the shooting? Why leave Bailey's body in a shed for days before boxing it up and transporting it out of state to be offloaded by another man?
Those things, the judge said, go to the question of Kuehni's mindset at the time that he said could be contrasted with what a reasonable person might also do.
"All that, I think, is reasonable argument for the state," Duvall said, later telling Pierce County Assistant District Attorney Bill Thorie, "I'm thinking we may have to have the same trial, but the argument is different."
Duvall even offered his own theory of what happened — that Kuehni killed Bailey because she believed she needed to at the time, but her belief was not reasonable.
"The reasonableness of her belief is what I'm seeing," the judge said.
Thorie said he would not concede the scope of his defense until formal motions were decided on.
At one point during proceedings, Thorie offered that the tentative parameters Duvall described could "eviscerate" significant portions of prosecution's case.
Duvall said that's not what he's trying to accomplish. He said prosecution can't argue that Kuehni had intent to kill Bailey because the basis for that argument ended when the jury acquitted her of first-degree homicide.
"I'm trying to respect the jury's decision," the judge said.
Duvall made clear that the reasonableness of Kuehni's deadly decision also could apply to testimony offered by defense. The judge told defense attorney Mark Gherty that includes an expert who may again be called to testify on domestic abuse relative to Kuehni's experiences with Bailey.
Duvall said the expert's scope of testimony might need to be more narrow than in the first trial.
The case returns to court Nov. 17. An eight-day jury trial is set to begin Dec. 6.