Archive | Confrontation clause

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State v. Awbery

State v. Awbery, 2016 MT 48 (March 1, 2016) (McGrath, C.J.; Cotter, J., concurring) (7-0, aff’d)

Issue: (1) Whether the district court properly excluded evidence that some of the victims had suffered prior sexual abuse by others; (2) whether Awbery is entitled to a new trial based on prosecutorial misconduct; and (3) whether Awbery is entitled to a new trial based on the cumulative effect of several alleged errors.

Short Answer: (1) Yes; (2) no; and (3) no.


Facts: The state charged Awbery with two counts of incest against his daughter, AA, when she was 12 or younger; sexual assault and sexual intercourse without consent against AA’s half-sister, JG, when she was 16 or younger; sexual intercourse without consent again IA when she was 12 or younger; and sexual assault against NH when she was 16 or younger.…

State v. Colburn

State v. Colburn, 2016 MT 41 (Feb. 23, 2016) (McGrath, C.J.; McKinnon, J., concurring) (7-0, rev’d & remanded)

Issue: (1) Whether the district court erred in disqualifying Colburn’s expert witness from testifying at trial; and (2) whether the district court erred in its application of the Rape Shield law to exclude evidence Colburn offered at trial.

Short Answer: (1) Yes; and (2) yes.

Reversed and remanded for a new trial

Facts: The state charged Colburn with two counts of incest involving his daughter, CC, one count of sexual intercourse without consent and two counts of sexual assault involving a neighbor girl, RW, all felonies. Both girls were 11 years old at the time of the offenses. RW testified at trial that Colburn touched her private parts manually and with his penis.…

State v. Northcutt

State v. Northcutt, 2015 MT 267 (Sept. 8, 2015) (Baker, J.; McKinnon, J., concurring) (7-0, aff’d)

Issue: Whether the district court violated Northcutt’s right to be present and right to a public trial by asking the jury about the status of its deliberations without the defendant and the public present.

Short Answer: No.


Facts: The state charged Northcutt with three counts of assaulting a peace officer and one count of aggravated animal cruelty. On the third day of trial, the jury began deliberating around 4:30 p.m. At around 5:30 p.m., the jury sent a note to the court asking to see one of the demonstrative exhibits, which the court and the parties agreed to supply. The jury sent a second note around 7:30 p.m.…

City of Missoula v. Duane

City of Missoula v. Duane, 2015 MT 232 (Aug. 11, 2015) (Cotter, J.; McGrath, C.J. concurring) (5-0, aff’d)

Issue: (1) Whether allowing Dr. Sjolin to testify against Duane via Skype offended Duane’s rights under the Confrontation Clause; and (2) whether the district court erred in concluding M.R. Evid. 611(e) does not apply to criminal cases.

Short Answer: (1) No; and (2) yes, but it was a harmless error.


Facts: Duane and two others were charged with misdemeanor cruelty to animals after police responded to a report of a dead puppy, found filthy conditions and no water, and a necropsy revealed the puppy died of blunt force trauma.

Before trial, the city requested that Dr. Sjolin, the veterinarian who performed the necropsy, be allowed to testify via Skype, or that her supervisor be allowed to testify to Sjolin’s report, as Sjolin had moved to California.…

State v. Schwarzmeier

State v. Schwarzmeier, 2015 MT 98 (April 7, 2015) (McGrath, C.J.) (5-0, aff’d)

Issue: Whether admission of a crime lab report showing defendant’s blood alcohol content at .193% violated the Confrontation Clause.

Short Answer: No.


Facts: Schwarzmeier crashed his motorcycle in July 2013. Trooper Fetterhoff responded, and Schwarzmeier was transported to the hospital, where Fetterhoff performed nystagmus tests, which indicated a high level of intoxication. Schwarzmeier consented to a blood draw, which was sent to the crime lab and showed a BAC of .193.

Schwarzmeier entered a not guilty plea and moved in limine to exclude any reports from the crime lab on the grounds that the state did not provide written notice of its intention to offer the report into evidence as required by M.R.…