                                                                                    September 26 2007
                                       DA 06-0065

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                      2007 MT 247N



STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

GARRY D. GOLDEN,

              Defendant and Appellant.


APPEAL FROM:         District Court of the Thirteenth Judicial District,
                     In and for the County of Yellowstone, Cause No. DC 03-0674
                     Honorable Gregory R. Todd, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Jim Wheelis, Chief Appellate Defender; Shannon McDonald
                     Assistant Appellate Defender, Helena, Montana

              For Respondent:

                     Honorable Mike McGrath, Attorney General; Sheri K. Sprigg,
                     Helena, Montana

                     Dennis Paxinos, Yellowstone County Attorney; Ann Marie McKittrick,
                     Deputy County Attorney, Billings, Montana



                                                Submitted on Briefs: May 16, 2007

                                                            Decided: September 26, 2007

Filed:

                     __________________________________________
                                       Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent. It shall be filed as a

public document with the Clerk of the Supreme Court and its case title, Supreme Court cause

number and disposition shall be included in this Court's quarterly list of noncitable cases

published in the Pacific Reporter and Montana Reports.

¶2     Garry D. Golden appeals from the judgment and sentence entered by the Thirteenth

Judicial District Court, Yellowstone County, upon a jury verdict convicting him of the felony

offense of sexual assault. We affirm.

¶3     The issue presented on appeal is whether the District Court erred in allowing multiple

instances of inadmissible hearsay testimony, thereby placing undue weight on the testimony

of one witness which prejudiced the jury.

                                     BACKGROUND

¶4     In August of 2003, the State of Montana charged Golden by information with the

felony offense of sexual assault. The case proceeded to trial in 2004 and, after the jury was

unable to reach a verdict, the District Court declared a mistrial and ultimately set another

trial date for 2005. At the 2005 trial, an eyewitness testified. The defense objected when the

prosecution asked other witnesses to recall statements the eyewitness had made to them

regarding what he saw, and when the prosecution asked a doctor to testify regarding

statements made to her by the alleged victim’s mother. The District Court overruled the

objections.
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¶5     The jury convicted Golden, and the District Court entered judgment and sentence.

Golden appeals.

                                       DISCUSSION

¶6     Did the District Court err in allowing multiple instances of inadmissible hearsay
testimony, thereby placing undue weight on the testimony of one witness which prejudiced
the jury?

¶7     By framing the issue as set forth above, Golden characterizes certain testimony as

inadmissible hearsay, and asserts the admission of the challenged testimony placed undue

weight on the eyewitness’ statements. We address these points in turn.

¶8     Like his statement of the issue, Golden’s opening brief includes the phrase

“inadmissible hearsay.” It does not, however, advance any authorities or analysis regarding

the hearsay testimony asserted to be inadmissible.

¶9     Pursuant to M. R. App. P. 23(a)(4), an appellant’s brief must include an argument—

that is, the party’s contentions with regard to the issue “and the reasons therefor”—and must

cite to supporting authorities. An appellant cannot carry the burden of establishing error on

appeal without meeting these requirements, and it is not this Court’s obligation to conduct

legal research on a party’s behalf or develop an argument supporting the party’s position.

See State v. Hicks, 2006 MT 71, ¶ 22, 331 Mont. 471, ¶ 22, 133 P.3d 206, ¶ 22 (citations

omitted). Golden’s opening brief meets neither requirement.

¶10    In his reply brief, Golden correctly asserts that the rules of evidence—specifically, M.

R. Evid. 802—render hearsay inadmissible except as otherwise provided. He further

asserts—again, correctly—that the rules of evidence are applicable in nearly all state and

                                              3
federal courts in this country and “can be found in the Montana Code.” These statements of

the obvious have no relevance whatsoever to the briefing requirements adopted by this Court

and reflected in the M. R. App. P. The statements also totally miss the point that the

appellant bears the burden of establishing error on appeal. We decline to address the hearsay

matter further.

¶11     Finally, even assuming arguendo that Golden had asserted a stand-alone “undue

weight to the eyewitness’ testimony” argument, the cases he advances do not support his

position. State v. Johnson, 1998 MT 107, ¶¶ 49-53, 288 Mont. 513, ¶¶ 49-53, 958 P.2d

1182, ¶¶ 49-53, State v. Mayes, 251 Mont. 358, 373-74, 825 P.2d 1196, 1206 (1992), and

State v. Harris, 247 Mont. 405, 416-18, 808 P.2d 453, 459-60 (1991) all concern trial courts’

rulings on whether to submit a transcript or recording of a witness’ testimony or statement to

the jury during deliberations. On their face, these cases are readily distinguishable from the

present case involving separate testimonies admitted before submission of the case to the

jury.

¶12     We hold Golden has not established error by the District Court.

¶13     Affirmed.


                                                  /S/ KARLA M. GRAY




We concur:


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/S/ JOHN WARNER
/S/ JIM RICE
/S/ BRIAN MORRIS



Justice James C. Nelson dissents.

¶14    I dissent from the Court’s decision.

¶15    I do not agree that Golden’s appellate briefing is in violation of M. R. App. P.

23(a)(4). The briefing, taken in conjunction with the record, is adequate to reach the merits,

and, in that respect, I would conclude that the trial court erred in allowing multiple instances

of hearsay testimony over objection.

¶16    Once again, the criminal defendant is the one made to suffer for the performance of

counsel and the trial court. Golden is constitutionally entitled to a fair trial. Mont. Const.

art. II, § 24. Since Golden did not get a fair trial, I would give him his constitutional due.

¶17    I would reverse and remand for a new trial. I dissent.



                                                                  /S/ JAMES C. NELSON




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