dtl_montanamomcodyweb_170519-nbcnews-fp-360-200Dateline NBC, March 21,  featured a story on the murder of Kalispell native Nicole Waller.

Investigators believe Johnston, a native of Fairview, killed Waller and put her body in a barrel. Then, according to his cellphone records, he lied about his whereabouts on the day Waller went missing and turned off his phone for three hours to prevent law enforcement from tracking him.

A witness testified during Johnston’s trial that during that time he helped Johnston move Waller’s car, and others said Johnston asked them to make fake social media posts from Waller’s account to make it look like she was still alive.

Prosecutors said the last time anyone heard from Waller was when she contacted her family on Valentine’s Day 2013 saying she was breaking up with Johnston and returning to Kalispell.

Waller’s body was never found

 

June 11 2015 ]

9-10-15-waller-charges-cody-johnston-web

Cody Johnston, 36, was found guilty of deliberate homicide and tampering with evidence at trial. The trial was anticipated to last eight days, but a verdict was pronounced after just three days of testimony.

Jurors determined that Johnston had killed Nicole Waller, 31, during a visit she made to see him at his home near Sidney. Prosecutors believe the murder occurred on Valentine’s Day.

Waller’s body has never been found.

“It’s extremely difficult, it’s a small victory,” said Waller’s sister Carmen Keibler.. “we still don’t have Nicky, we cant give her a funeral. All we have is to know that he got convicted. A lot of mixed emotions today. I’m heartbroken because this is a man my family knew, a person that has a wife and kids. It’s destroyed a lot of lives, not only for my family but also his family.”

[June 2015 Nicole Waller still missing unlike Sherry Arnold]

]two years since anyone has seen or heard from Nicole Waller; the mother of three mysteriously vanished on February 14th, 2013 while driving from Fairview to Kalispell, Montana.

Nicole Waller

Nicole Waller

Nicole Waller

Name: WALLER, NICOLE YVONNE
Aliases: WILLIS, NICOLE YVONNE
Gender: FEMALE
Date of Birth: 05/22/1981
Race: WHITE
Hair Color: BROWN
Eye Color: HAZEL
Height: 5′ 0”
Weight: 165 LBS.

Incident Information
Date of Last Contact: 02/14/2013
Age Now: 33 YEARS
Other Reported Dates of Birth:
Investigating Agency: FLATHEAD COUNTY SHERIFF,(406) 758-5610

[February 12 2014
On Valentine’s Day 2013, 32-year-old Nicole Waller packed her car in Fairview – on the Montana-North Dakota border – and headed home to see her three young children in Kalispell.

She never made it back to them.

Waller’s 1999 Ford Expedition was found the same day on the side of U.S. Highway 2 near Poplar – only about an hour’s drive from where she started her journey.

Inside the car, officers found her children’s guinea pigs – still caged – and her clothes and other belongings.

But there was no sign of Waller.

Agent Mark Hilyard with the Montana Department of Justice’s Division of Criminal Investigation said foul play is suspected in the disappearance of Nicole Waller,

[March 23 2013]

FBI finds Sherry Arnold body in Williston, 50 miles from her home

FBI finds Sherry Arnold body in Williston, 50 miles from her home

The remains of Ms Arnold, a high school maths teacher who disappeared in Sidney, Montana during a morning run more than two months ago, were buried outside Williston, North Dakota.
The recovery effort started on Tuesday in western North Dakota about 50 miles from Sidney, and the body was found by the FBI early on Wednesday.
The location of the body across the state line from where the alleged kidnapping occurred means there could be federal charges against the two suspects in the case, Michael Keith Spell, 22, and Lester Van Waters Jr., 47, both of Parachute, Colorado.
[March 22] By the early morning hours of March 21, 2012, special agents had recovered the physical remains of a female. While a positive identification has not been made at this time, it is believed the remains are those of Sherry Arnold of Sidney, Montana. Further efforts to verify the identity of the remains are currently underway by law enforcement. After a positive identification is made, a news release will be issued. Due to the ongoing investigation, no further details about the case can be released at this time.

Ms. Arnold went missing Saturday, January 7, 2012 at approximately 6:30 a.m. while on her morning run in Sidney, Montana.
FBI

One of the alleged murderers

One of the alleged murderers

Lester Van Waters Jr., 50, was sentenced to 80 years in prison on Monday for his role in Sherry Arnold’s murder.

Lester Van Waters Jr., 50, was sentenced to 80 years in prison on December 15 for his role in Sherry Arnold’s murder.

December 17, 2014, 11:40 AM: “Mr. Waters you are losing your freedom. Sherry Arnold lost her life,” Judge Simonton said. Based on the plea agreement, Simonton sentenced Lester Waters Jr., one of the two men who pleaded guilty in the homicide of Sherry Arnold, to 100 years in the Montana State Prison with 20 years suspended. Waters, 50, will be eligible for parole in 20 years after pleading guilty to the amended count of accountability to deliberate homicide. Keith Spell, 25, allegedly told authorities that Van Waters killed Arnold, a jailhouse informant testified that “Spell said he choked her out … pushed Sherry’s face into some water and drowned her to make sure she was dead.” Spell later admitted that he was unsure if he or Waters killed Arnold.

The younger man reportedly acted on the older’s directive because Van Waters said “he wanted to have sex,”
The judge noted eastern Montana and western North Dakota were greatly affected by the kidnapping and murder of the Sidney teacher on Jan. 7, 2012. He said the only way that he was open to accepting the binding plea agreement was that attorneys instructed him that the family of Arnold was agreeable. Simonton also ordered Waters to pay $21,448 in restitution to Gary Arnold, Sherry’s husband. Waters’ vehicle will be sold with funds going toward the restitution.
According to pre-sentencing information, Simonton said Waters is about $84,000 in debt due to back child support. Waters has seven children with five different women. read more read Spell

[August 13 2013 Sherry Arnold :Lester Van Waters Jr ( 2 children) pleads guilty]

M. K Spell

M. K Spell

L V Waters

L V Waters

SIDNEY – Lester Van Waters, Jr., the co-defendant in the Sherry Arnold murder case, has entered into a plea agreement with the state.

Waters has been charged with deliberate kidnapping and deliberate homicide in the 2012 death of Arnold.

According to the Richland County Clerk of Courts, Waters will appear before District Judge Richard Simonton on Tuesday afternoon at 2:00 pm.

The plea agreement calls for a 100-year sentence that will spare Waters the death penalty, as long as he agrees to plead guilty and assist the state in the prosecution of Michael Spell.

In addition, 20 years of the 100-year sentence would be suspended, and there would not be any restriction on Waters’ eligibility for parole.

Judge Simonton will make the final ruling Tuesday afternoon as to whether or not he’ll accept the plea agreement.

Click here to read the plea agreement (PDF).

TIMELINE (2012)

January 7th: Sherry Arnold, a 43 year old teacher in Sidney, Montana is reported missing after failing to return from a morning run.

January 7th: A search begins for Arnold which includes 100 people, including 40 members of the Montana National Guard and two planes searching by air.

January 7th: Authorities recover one of Arnold’s jogging shoes in northeast Sidney along Ninth Avenue. A substance which has not been identified by law enforcement was found on the shoe.

January 9th: The Montana Department of Justice issues a Missing Persons Alert for Arnold.

January 10th: The Federal Bureau of Investigation becomes involved in the investigation into Arnold’s disappearance due to proximity to North Dakota and potential of kidnapping.

January 11th: A tip line is set up by investigators for information leading to the whereabouts of Sherry Arnold (406) 433-4027. Also, a “Help Find Sherry Arnold” page on Facebook garners thousands of visits.

January 12th: Formal search efforts are suspended until authorities receive new information.

January 12th: Arnold added to the FBI Missing Persons List.

January 13th: The Sidney School District posts on their website that it had informed students and teachers that Sherry Arnold is dead. The school says they were informed by Arnold’s family.

January 13th: A press conference is held by Sidney police in conjunction with the FBI. Sidney Police Chief Frank DiFonzo said a 47-year-old man is in custody in Williston, North Dakota, and a 22-year-old man had been detained for questioning in Rapid City, South Dakota, both in connection with Arnold’s disappearance.

January 13th: Hundreds pour into the gym at Sidney High School for a memorial vigil.

January 14th: Sidney Police Chief Frank DiFonzo confirms that the two men in custody have been arraigned on charges of aggravated kidnapping and are being held at the Williams County Jail in Williston, North Dakota.

January 15th: The two men held on charges of aggravated kidnapping are identified as 47-year-old Lester Waters Jr. and 22-year-old Michael Spell. Both men are most recently from Parachute, Colorado.

[January 19, 2012]

Waters had several stints in jail in Indian River County and was incarcerated three times by the Florida Department of Corrections: from September 2002 to December 2003; August 2007 to March 2008; and March 2009 to August 2010.

In an application for a public defender filed in Williams County, N.D., Waters listed his home address as Parachute, Colo., where court records also show he had a driver’s license. He listed two children, ages 5 and 15, and said he was not married.
Michael Keith Spell, 22, and 47-year-old Lester Vann Waters are charged in Montana with aggravated kidnapping, a felony charge that carries the death penalty in that state, in connection with the Jan. 7 disappearance of teacher Sherry Arnold of Sidney enter a Williams County courtroom Tuesday, Jan. 17, 2012 for a preliminary extradition hearing in Williston, N.D. Spell’s application for a public defender in the missing teacher case suggests he is married with a 1-year-old son.

Michael Keith Spell

Michael Keith Spell


Accused kidnapper Lester V Waters

Accused Kidnapper


Pastors from Sidney Montana for Sherry Arnold at  gym, recited the Lord's Prayer

Pastors from Sidney Montana for Sherry Arnold at gym, recited the Lord's Prayer


Lester Van Waters Jr., 47, and Michael Keith Spell, 22, both of Parachute, Colorado, have been arraigned in Williams County, North Dakota, on charges of aggravated kidnapping in connection with the disappearance of Sherry Arnold.
SIDNEY, Montana: “It’s just so sudden.”
it is believed that Sherry Arnold may be deceased and that her body has not been recovered.

Law enforcement officials are requesting that North Dakota property owners in Williams County, McKenzie County, Mountrail County, and those in extreme northeastern Montana check shelter belts and vacant farmsteads on their land for disturbed soil.

The surrounding grassy area may also appear to be matted. A shelter belt is a line of trees that protects soil from the wind. Ms. Arnold’s body may be buried in a shelter belt that contains mature or rotted trees. Mrs Arnold, 43, disappeared while on an run along a two-lane, farm-to-market route with mostly local traffic and some tractor-trailers,.a truck route on the edge of the oil boom town in northeast Montana that has about 5,500 residents.
Sidney — a town of about 5,000 only 10 miles from the border with North Dakota — is changing as people pour in from out of town, chasing the money brought by the Bakken oil boom.
He’s seen it before — the last time there was an oil boom in the 1980s.
“We have a lot of activity now at this part of the state,” DiFonzo said. “A lot of out-of-state people are here to work, and locals don’t know them or recognize them.”
The influx has increased crime, and DiFonzo said officers are responding to more bar fights, domestic violence and drunken driving.
“We are just seeing the tip of the iceberg,” he said.
read
The Town of Parachute is a Statutory Town in Garfield County, Colorado, United States. The population was 1,006 at the 2000 census. they had to either charge the two men being questioned (and in custody) or to let them go no later than Sunday night, as it would have completed the 72-hour window allotted them for questioning without bringing charges.

The two men were charged.

Riders from Parachute, Colorado

Riders from Parachute, Colorado

here

Michael Keith Spell and  attorney Alfred Avignone

Michael Keith Spell and attorney Alfred Avignone

defense attorney Lisa Banick

defense attorney Lisa Banick

Michael Spell, 25, was guided by his attorney Al Avignone in submitting a plea agreement to the court. That agreement states Spell accepts the deliberate homicide charge in exchange for the state dropping the attempted kidnapping charge. In the agreement, the prosecution will recommend a 100 year sentence with a chance for parole.
Avignone said in court that the defense would ask the judge to have Spell sentenced to the Montana Department of Health and Human Services rather than prison.

With Spell’s admission, the next stage in the murder case is for both men to be sentenced. Court dates for those hearings have yet to be scheduled.

[October 15

District Court Judge Richard Simonton. 7th Judicial District

District Court Judge Richard Simonton. 7th Judicial District

On October 14, the court denied Michael Keith Spell’s petition to be declared unfit for trial.

Spell’s defense team argued he would be unable to understand the case against him due to his developmental disability.

In a unanimous ruling, the court said intellectually disabled persons frequently know the difference between right and wrong, and are able to understand the proceedings and assist in their own defense.

October 4 Sherry Arnold murder hearing on October 1, written order to follow]
Judge Richard Simonton ruled on some defense motions during a hearing October 1, and he will issue a written order on all of the pending motions regarding evidence in the case within a week

{September 15 Sherry Arnold murder hearing on October 1]
Prosecutors asked a state judge to deny a defense request to suppress the suspect’s alleged confession in the Sherry Arnold murder case. Because Spell is mentally disabled, his attorneys say he was not capable of voluntarily waiving his rights to remain silent and have an attorney present. Spell’s attorneys want his statements — and any evidence obtained as a result — barred from his Nov. 17 trial.
Deputy Richland County Attorney T.R. Halvorson wrote in a court brief that law enforcement video shows Michael Keith Spell made his statements voluntarily.
Spell, of Parachute, Colo., is accused of killing 43-year-old Sidney High School math teacher Sherry Arnold during an attempted abduction in the Bakken oil patch.
He allegedly confessed to his involvement during an interrogation by FBI agents following his arrest six days after Arnold’s 2012 disappearance. District Court Judge Richard Simonton. 7th Judicial District , scheduled an Oct. 1 hearing in Glendive.

[December 8 2013]

 defense attorney Lisa Banick

defense attorney Lisa Banick

In an order vacating trial, District Judge Richard A. Simonton noted that on December 3 he was advised by the Montana State Hospital that it could not complete its evaluation and reports within 30 days. In early November, Simonton ordered Spell be transported to the Montana State Hospital in Warm Springs for an examination to determine if Spell has the ability to understand the proceedings against him and to assist in his own defense, and whether he is suffering from a developmental disability that renders him unable to appreciate the criminality of his behavior or to conform his behavior to the requirements of the law. Spell was taken to Warm Springs on Nov. 13.

The judge ruled that the examination will be extended to the statutory 60 days.

Simonton wrote, “Accordingly, the Court reluctantly vacates the Jan. 6, 2014, trial and the Dec. 20, 2013, hearing. Upon receipt of the information from the Montana State Hospital, a scheduling conference will be held to determine appropriate dates.”

The Dec. 20 hearing was to determine if Spell is fit to stand trial.
[October 29]

Richland County Judge Richard Simonton on September 27 set a Nov. 4 hearing on whether a Colorado man charged with killing an eastern Montana teacher should be declared ineligible for the death penalty..

Defense attorneys for 24-year-old Michael Keith Spell say he suffers from mental disabilities that preclude a death sen-tence under a 2002 U.S. Supreme Court ruling. Prosecutors who have filed notice that they intend to seek the death penalty in the case oppose the defense motion. Spell, of Parachute, Colo., is accused of killing popular high school math teacher Sherry Arnold of Sidney in January 2012. Her body was found weeks later buried in a shallow grave in a rural area near Williston, N.D.

Simonton set a second hearing for Oct. 24 on several other pending matters, including a request by Spell’s attorneys to relocate his Jan. 6 trial due to the widespread publicity the case h
The Richland County Attorney’s office has argued that Spell could receive a fair trial in Sidney.
[July 18]
Michael Keith Spell is ineligible for execution under a 2002 U.S. Supreme Court ruling according to a new motion. In that case justices reversed the death sentence of Daryl Atkins, a Virginia man convicted of murder, on the grounds that executing the “mentally retarded” violated the Constitution’s prohibition against cruel and unusual punishment.
Spell still would face a potential life sentence and a minimum of 10 years in prison if convicted of deliberate homicide. He’s also charged with attempted kidnapping, which carries a maximum sentence of 10 years.

Spellt has been examined by a mental health professional and found to meet the court’s definition of mentally disabled. That includes having an IQ of 75 or lower and being incapable of normal mental functions.

“We’re talking about everyday skills, living skills, ability to drive a car, make change, hold a job and be able to learn skills,” Attorney Alfred Avignone said.

Spell told a judge in an initial court appearance last year that he cannot read. His father has said Spell had less education than a kindergartner.

He had traveled with Lester Van Waters Jr to the oil fields of Montana and North Dakota looking for work. Court documents, however, allege the Arnold abduction came just days after the pair left Colorado and after both suspects had smoked crack cocaine during the journey.

Prosecutors have until Aug. 21 to respond to the motion from Avignone and fellow defense attorney Lisa Banick, which was filed under seal.

[March 24]

Attorney Alfred Avignone, for 23-year-old Michael Keith Spell $400,000 was spent last year on death penalty defense work


Harry Freebourn, the agency’s administrative director, said $400,000 was spent last year on death penalty defense work. The agency is asking the Legislature for a $900,000 appropriation to supplement its current $500,000 budget dedicated to death penalty defense.

Most of that money will be spent on the only pretrial death penalty case in Montana, the kidnapping and murder of Sidney teacher Sherry Arnold.

Richland County prosecutors are seeking a death sentence against Michael Keith Spell and Lester Van Waters Jr., two Colorado men accused of abducting Arnold in January 2012 as she was jogging.

[January 12]
Attorneys for Lester Van Waters Jr. and Michael Keith Spell, suspects in the Sherry Arnold case, filed notices warning of their intent to file multiple motions by April 30.. Pretrial motions on both the defendants’ side and the state are due by the end of April. A response is due by June 30 with a final reply July 31 for Waters. A response is due by July 31 for Spell and final reply Sept. 6. State District Judge Richard Simonton appointed Alfred Avignone, Lisa Banick and Eric Brewer as the public defenders for 23-year-old Michael Keith Spell of Parachute, Colo.

[August 28]

 There are 482 trillion cubic feet of shale gas in the US,

There are 482 trillion cubic feet of shale gas in the US,


  The Roan Plateau, rising 3,500 feet above the Colorado River valley, with the towns of Rifle and Parachute at its feet,


The Roan Plateau, rising 3,500 feet above the Colorado River valley, with the towns of Rifle and Parachute at its feet,

On July 24, a detention officer was assisting Micheal Spell to a room across the hall from his cell for a haircut. While getting his hair cut, an inmate grabbed the attention of the officer who told him he was not allowed to enter the “pod” with Spell unattended. Roughly 15 minutes later, Thomas David Kilbury, 31, Cuba, Mo., and an inmate yelled that something was wrong with another inmate, and they needed immediate help.
The detention officer alerted central control and assessed the situation, sensing a “trap.” Kilbury made a rush and attacked Spell. According to documents, the officer heard Kilbury say, “I got you now,” before landing a punch to Spell’s face as he turned to see what was happening. The officer put himself between Kilbury and Spell to prevent further blows. Additional officers separated the two. Kilbury “cloaking himself as some sort of hero for his actions,” was sentenced to six months in jail with no days suspended
[April 28] An amended complaint filed by Richland County prosecutor Mike Weber on April 27 specified murder charges and said he intends to seek the death penalty against two men accused of kidnapping a Montana teacher whose body was discovered in North Dakota two months after she disappeared. Lester Van Waters Jr., 48, and Michael Keith Spell, 22, both of Parachute, Colorado., are accused of grabbing Sherry Arnold off a street in Sidney, Mont., on Jan. 7 while she was on a pre-dawn run.
On March 19, Waters led FBI agents to where Sherry’s body was located, the new court documents state.

After leading agents out of Williston, Waters directed the agents on to Highway 1804 “until he recognized the area where Sherry Arnold was buried.”

Waters said the burial site was in a shelter belt, and eventually led agents to where her body was buried.

“Waters recognized the burial site and pointed out where the dirt from the hole was deposited,” court records state. “A broken branch was resting over the hole.”

Waters said Arnold had been buried on her side in the fetal position and showed the agents where they had parked the vehicle.

Harry Spell said his son was anxious to prove himself to his parents and girlfriend, with whom he has a 1-year-old son.

Harry Spell said his son was anxious to prove himself to his parents and girlfriend, with whom he has a 1-year-old son.

Judge Richard Simonton, May 13,ruled that Michael Spell, 25, is competent to stand trial.
During a two-day competency hearing in March, Spell’s attorneys had argued that Spell suffers from an intellectual disability and is not competent enough for legal proceedings.
Prosecutors will not ask for the death penalty against defendant Michael Spell for the murder of Sidney teacher Sherry Arnold. The prosecutors filed a “Withdraw of Notice of Intent to Seek Death Penalty” on May 17. In the filing, Richland County Attorney Mike Weber cited the 2002 United States Supreme Court case Atkins v. Virginia. “Intellectually disabled criminals are not subject to the death penalty,” Weber stated. Weber also referred to the competency hearing held in March. During the hearing, three expert witnesses gave testimony. “All three experts, including Dr. Hill whom the state called as a witness at the hearing, opined that the defendant herein is intellectually disabled,” Weber wrote. A scheduling conference took place over the telephone on May 17. According to Richland County Clerk of Court Janice Klempel, a trial date has been scheduled to begin on December 17. The trial is expected to last up to three weeks. Waters has entered a plea deal, and could spend up to 80 years in prison. Prosecutors plan to sentence Waters after the outcome of Spell’s case. Waters has agreed to testify against Spell during his trial.
[March 23]
Michael Spell’s mental capacity will be the subject of a competency hearing March 24 before District Judge Richard Simonton. Spell’s defense team argues in briefs filed March 20 that the 24-year old’s intellectual disability, should remove the death penalty in his case.

Attorneys Al Avignone and Lisa Banick say Spell reads and comprehends at the level of a first grader. Their legal brief describes Spell’s difficulty remembering dates, times and geographical locations.

Thursday’s court filing states that Spell cannot write much beyond printing his name, and he is unable to read and understand the charges against him. Spell’s attorneys also point to a court ordered mental evaluation, that diagnosed their client as disabled.

Spell’s attorneys also point to a Colorado juvenile case against their client in 2007, where charges against Spell were dismissed at the prosecutor’s request due to Spell’s incompetency.

State prosecutors have yet to file their briefs with the court, so it’s unclear what arguments will be made to convince the judge that the death penalty should remain a possible outcome of Spell’s case.

[2013] Spell’s father, Harry, told The Associated Press that his son had travelled with Waters to the oil fields of Montana and North Dakota after Waters guaranteed work paying up to $2,000 a week. Harry Spell said his son was anxious to prove himself to his parents and girlfriend, with whom he has a 1-year-old son.

[February 19]

Lester Waters

Lester Waters


Prosecutors in northeast Montana on Friday filed an affidavit in state court containing the chilling confession of Michael Keith Spell, 22, one of the men charged with kidnapping Sherry Arnold, 43, on Jan. 7.

Spell told police that he and Lester Waters, 47, both of Colorado, were smoking crack cocaine during a trip to Montana to find work when Waters said he was seized by the urge to kidnap and kill a woman, the Sidney Herald newspaper reported.

Waters said the drug “brought the devil out in him,” according to Spell’s confession.

As the two drove through Sidney, Mont., they spotted Arnold running along a road and hatched a plan to abduct her.

The two parked their green Ford Explorer up ahead of Arnold, and when she came past them, Spell jumped her and pulled her into the truck, the document said.

Arnold lost a sneaker in the struggle, which was later found on the route by police.

Once they had Arnold in the vehicle, Waters climbed into the back seat and “choked her out,” Spell confessed.

The math teacher lay “dead inside the vehicle under a blanket,” while the pair drove to North Dakota, where they tossed her clothing in a dumpster before eventually burying her body in a 3-foot grave on an abandoned farm outside of Williston, some 45 miles away.

Spell said he was later wracked with guilt after spotting missing posters with Arnold’s face on them and called his girlfriend in Colorado to confess.

Waters was arrested in Williston on Jan. 12 and Spell was picked up in Rapid City, S.D., the next day.
[February 16]North Dakota District Judge David Nelson made the final verdict to extradite both suspects. Lester Waters Jr. and Michael Spell are set to appear in District Court on February 28th. They are being held in the Richland County Jail on $2.5 million bond.

Once the Richland County Attorney files the proceedings in District Court, more information will be released regarding what led authorities to arrest Waters and Spell.
affidavit

Montana Seventh District Court, Affidavit of Mike Weber

Montana Seventh District Court, Affidavit of Mike Weber