Photos, letters sealed in Bailey homicide case
PIERCE COUNTY CIRCUIT COURT -- Photos of injuries a Prescott woman allegedly suffered at the hands of the man she fatally shot in November and letters she wrote to family about the alleged abuse were ordered sealed by a judge presiding over a homicide case Thursday.
Buffalo-Pepin County Judge James Duvall also ruled on the admissibility of evidence and testimony for the jury trial, scheduled to begin Aug. 8 in Pierce County Circuit Court.
Pierce County prosecutors allege Rose Marie Kuehni, 45, killed her boyfriend Douglas Bailey in November 2015 at their Prescott home. She is charged with first-degree intentional homicide and hiding a corpse.
Defense attorney Mark Gherty described the photos in question as “extremely graphic of injuries she suffered and some are of intimate body parts.”
“I’m trying to be sensitive to the privacy of my client,” Gherty said. “It’s a question of decency.”
Duvall said keeping court records public is usually in the people’s best interest, while balancing the public’s interest in disclosure with the right to a fair trial.
“I am concerned about the effect of pre-trial publicity on getting a fair and impartial jury,” Duvall said before ordering the photos sealed. “Photos have a unique ability to inflame or prejudice and are furnished only to the court to the allow the court to make an informed ruling on pre-trial matters.”
Three letters written by Kuehni in June and July 2012, addressed to her sister, were ordered to be sealed as well.
“They were notes taken at that time because she didn’t know if she was going to survive,” Gherty said.
The three envelopes were labeled “Please don’t read. I’ll explain later.”
He claimed the letters describe personal and private actions which could have a possible prejudicial effect on a potential jury. Duvall agreed.
The state’s motion to introduce other evidence at the trial was addressed, indicating its intent to introduce things that happened after the shooting, such as alleged false statements made by Kuehni during the investigation and efforts to conceal the shooting and body.
According to a criminal complaint, Kuehni placed Bailey’s body in a box that she drove to Illinois, where she met another man who took the box to Kentucky and pushed it off a remote mountain roadway.
“Acts of concealment of evidence of the offense would have probative value as to consciousness of guilt and...the probative value would substantially outweigh any prejudicial effect,” Duvall ruled.
The motion also alleges that Kuehni recorded certain conversations with Bailey, but she did not record every single conversation they had. Recording some but not all might be evidence of pre-planning, prosecutor William Thorie said. Gherty vehemently disputed that claim.
“Instead of a 24-hour communicative stream here we have certain selected statements that were recorded and then referred to by the defendant,” Thorie said. “I think that’s indicative, depends on where this case goes, but it shows some planning.”
Thorie later said the recordings appear edited due to “spots where it sounds like bleeding in of other sounds.” The court will rule on allowing the recordings after the judge listens to them.
This led to Thorie claiming an Apple application was installed on Bailey’s cell phone so Kuehni could track his location.
The judge chose not to address that claim, saying he didn’t want “to get hung up on some side issue.” Thorie said more investigation is needed to figure out if the app finding has any value. It will take experts to determine if Kuehni downloaded the app and used it herself.
A separate 20-page motion also hammered out the handling of records related to McMorris-type evidence and the admissibility of evidence of Bailey’s violent character.
Evidence of a victim’s prior violence is called McMorris evidence, in which, according to the 1973 case McMorris vs. State of Wisconsin, “in trials for homicide or assault in which the issue of self-defense is sufficiently raised, evidence of the turbulent and dangerous character or reputation of the deceased or the victim of the assault is relevant in determining whether the victim or the accused was the aggressor, and as bearing on the reasonableness of the defendant's apprehension of danger at the time of the incident.”
Three hours of debate narrowed down 63 items of what is admissible. The common denominator in the judge’s rulings was the evidence must focus on facts, such as a witness seeing Kuehni’s bruises, not on a witness’s speculation and impressions about those bruises.
“I will allow a certain amount of corroboration, but I will draw a limit,” Duvall said.
The judge ruled to not allow a video Kuehni made in January 2014, describing her life and alleged abuse by Bailey. He said she can give those details through live testimony, if she takes the stand.
“But it provides a snapshot of her state of mind,” Gherty said “It’s the best evidence for this jury.”
Thorie said he hasn’t found any cases where McMorris evidence is allowed from more than a year or two before an incident. Much of the evidence presented occurred as far back as 2009. Gherty also told the court that Kuehni’s life changed completely in June 2012, when Bailey allegedly told her “You do what I say, wear what I say, dance when I say, have sex with me when I say.”
“All this is laying the foundation of her opinion and belief” that she had to protect herself, her son and her family, Gherty said.
A final pre-trial conference is scheduled for 2 p.m. July 15.