                                                                                        January 31 2008


                                          DA 06-0052

                      IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2008 MT 27



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

RAUL C. SANCHEZ,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Twentieth Judicial District,
                        In and For the County of Sanders, Cause No. DC 04-39
                        Honorable C.B. McNeil, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Chad Wright and David Avery (argued), Appellate Defender
                        Office, Helena, Montana

                For Appellee:

                        Honorable Mike McGrath, Attorney General; C. Mark Fowler (argued),
                        Assistant Attorney General, Helena, Montana

                        Robert Zimmerman, County Attorney, Thompson Falls, Montana



                                                                     Heard: May 7, 2007
                                                                  Submitted: June 5, 2007
                                                                   Decided: January 31, 2008


Filed:

                        __________________________________________
                                          Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1     Raul C. Sanchez (Sanchez) appeals from his conviction in the Twentieth Judicial

District, Sanders County, of deliberate homicide. We affirm.

¶2     We restate the issues as follows:

¶3     Did the District Court improperly allow Aleasha’s statements to be introduced

over Sanchez’s hearsay objections?

¶4     Did the introduction of Aleasha’s note violate Sanchez’s Sixth Amendment right

to confrontation?

¶5     Did the prosecutor’s closing argument deny Sanchez the right to a fair trial?

¶6     Did the “lesser included offense” language of the mitigated deliberate homicide

instruction impermissibly allow the jury to consider sentencing in reaching its verdict?

                                     BACKGROUND

¶7     Sanchez shot and killed Aleasha Chenowith (Aleasha) outside her home on the

night of July 19, 2004. Later that evening, Sanchez turned himself in to law enforcement

and admitted shooting Aleasha. The State charged Sanchez with deliberate homicide for

Aleasha’s death.

¶8     Before trial, Sanchez moved to exclude a note the State proposed to offer as a trial

exhibit. The note read:

              To whom it concerns:

               On July 8, 04 around 10:30 p [sic] Raul Sanchez Cardines told me if
       I ever was cought [sic] with another man while I was dating him, that he
       would kill me. Raul told me he had friends in Mexico that had medicine
       that would kill me and our doctors wouldn’t know what it was till it was to
       [sic] late and I would be dead.


                                             2
            So if I unexspetly [sic] become sick and on the edge of death, and
      perhaps I die no [sic] you will have some answers.

             Aleasha Chenowith (written and printed signature)

¶9    Sanchez argued that the note should be excluded because it contained inadmissible

multiple hearsay and would also violate his Sixth Amendment right to confrontation. The

District Court denied Sanchez’s motion and ruled that Aleasha’s note was admissible as a

statement under belief of impending death, pursuant to M. R. Evid. 804(b)(2). The

District Court concluded that Sanchez’s statements within the note were admissible as

either a statement against interest, pursuant to M. R. Evid. 804(b)(3), or as a statement

describing Sanchez’s then existing state of mind, pursuant to M. R. Evid. 803(3). The

District Court did not address Sanchez’s Confrontation Clause claim. Sanchez’s jury trial

began on June 13, 2005.

¶10   At trial, Sanchez testified that he and Aleasha had been dating for approximately

four-and-a-half months and that he had contemplated marrying Aleasha.             However,

Sanchez became suspicious that Aleasha was cheating on him with Angel, one of

Sanchez’s co-workers. On July 19, 2004, Sanchez confronted Angel, who confirmed

Sanchez’s suspicions. Sanchez testified that when he later spoke with Aleasha, she

threatened to create problems for him with law enforcement so that Sanchez would

ultimately have his children taken away from him. According to Sanchez, he felt as

though “something got dark in [his] head[,]” and he shot Aleasha several times.

¶11   At trial, the State introduced several statements that Aleasha made to others before

her death. In addition to the note, the State elicited testimony about other instances in



                                            3
which Sanchez purportedly threatened Aleasha. Pamela Ehrlich testified that Aleasha

told her about an argument she had with Sanchez. According to Ehrlich’s testimony,

during the argument Sanchez stated, “Me love you, [Aleasha]. Me not love you that

much. You cross me, I kill you.” The District Court overruled Sanchez’s hearsay

objection. Leann Chenowith, Aleasha’s sister, testified that Aleasha told her that “if

[Aleasha] ever made [Sanchez] mad . . . he had stuff in Mexico that his friend could give

him, and that it would eat her stomach in a matter of days.” This statement was also

admitted over Sanchez’s hearsay objection.

¶12    During closing arguments, the prosecutor argued that the jury could convict

Sanchez of mitigated deliberate homicide only if the jury found that Sanchez’s response

to extreme emotional distress was reasonable, rather than that his explanation for the

extreme emotional distress was reasonable. Defense counsel objected that the prosecutor

was misinterpreting the jury instructions, and the District Court overruled the objection.

¶13    Sanchez objected throughout the proceedings to the mitigated deliberate homicide

jury instruction because the instruction stated that mitigated deliberate homicide was a

“lesser included offense” of deliberate homicide. Sanchez argued that the instruction

allowed the jurors to indirectly consider sentencing factors in their deliberations. The

District Court overruled Sanchez’s objection.

¶14    The jury convicted Sanchez of deliberate homicide, and the District Court

sentenced Sanchez to life without parole in Montana State Prison. Sanchez appeals his

conviction.




                                             4
                               STANDARD OF REVIEW

¶15    We review a district court’s evidentiary rulings for abuse of discretion. State v.

Mizenko, 2006 MT 11, ¶ 8, 330 Mont. 299, ¶ 8, 127 P.3d 458, ¶ 8. A court abuses its

discretion when it acts arbitrarily, without employing conscientious judgment, or exceeds

the bounds of reason, resulting in substantial injustice. State v. Weldele, 2003 MT 117,

¶ 72, 315 Mont. 452, ¶ 72, 69 P.3d 1162, ¶ 72. We review de novo a district court’s

interpretation of the Sixth Amendment. Mizenko, ¶ 8. In criminal cases, we review jury

instructions in their entirety to determine if they fully and fairly presented the applicable

law to the jury. State v. Detonancour, 2001 MT 213, ¶ 57, 306 Mont. 389, ¶ 57, 34 P.3d

487, ¶ 57.

                                      DISCUSSION

¶16    I      Did the District Court improperly allow Aleasha’s statements to be

introduced over Sanchez’s hearsay objections?

¶17    “Hearsay is a statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted” within

the statement.   M. R. Evid. 801(c).      Hearsay is inadmissible “except as otherwise

provided by statute, these rules [of evidence], or other rules applicable in the courts of

this state.” M. R. Evid. 802. Sanchez asserts that the District Court erred when it

admitted, over hearsay objections, Aleasha’s statements to her sister, Aleasha’s

statements to her neighbor, and Aleasha’s note.        According to Sanchez, these three

statements contain double hearsay and thus, to be admissible, must comply with the

multiple-hearsay rule, which requires that all instances of hearsay within a statement


                                             5
conform to a hearsay exception. M. R. Evid. 805. We note at the outset that these three

statements contain only one level of hearsay. Montana Rule of Evidence 801(d)(2)

provides:

       Statements which are not hearsay. A statement is not hearsay if: . . . (2)
       Admission by party-opponent. The statement is offered against a party and
       is (A) the party’s own statement, in either an individual or a representative
       capacity . . . .

(Paragraph breaks omitted.) Thus, the statements attributable to Sanchez are exempt

from the hearsay definition; they are not hearsay.

A. Aleasha’s statement to her sister

¶18    Leann Chenowith testified that Aleasha told her that Sanchez had threatened that

“if [Aleasha] ever made [Sanchez] mad . . . he had stuff in Mexico that his friend could

give him, and that it would eat her stomach in a matter of days.” The District Court

overruled Sanchez’s hearsay objection without stating a specific rationale.        Sanchez

argues that no hearsay exception applies to this statement and that the District Court erred

in admitting the statement.

¶19    We conclude that the District Court correctly overruled Sanchez’s hearsay

objection to Leann Chenowith’s testimony because the statement falls outside the hearsay

definition. Though Aleasha made the statement outside the courtroom, the record reveals

no indication that the State sought to prove that Sanchez actually could obtain poison

from acquaintances in Mexico. The State may have offered the statement to show a

pattern of threats or that Sanchez contemplated killing Aleasha; however, these rationales

are not objectionable on hearsay grounds.        The District Court correctly overruled



                                             6
Sanchez’s hearsay objection because the State did not offer the statement to prove the

truth of the matter asserted, and thus, the statement was not hearsay.

B. Aleasha’s statement to her neighbor

¶20    Pamela Ehrlich testified that Aleasha told her that, during an argument, Sanchez

stated, “[m]e love you, [Aleasha]. Me not love you that much. You cross me, I kill you.”

The District Court again overruled Sanchez’s hearsay objection without stating a specific

rationale. Sanchez argues that no hearsay exception applies to this statement and that the

District Court erred in admitting the statement.        The State apparently combines its

arguments relating to the statements of Aleasha’s neighbor and Aleasha’s sister and

responds that Aleasha’s statements could be admissible as excited utterances, present

sense impressions, or statements made under a belief of impending death. Alternatively,

the State argues that if the District Court erred its error was harmless.

¶21    Our review of the record convinces us that the hearsay exceptions proposed by the

State are inapplicable to this statement.         The “present sense impression” hearsay

exception applies to statements made “while the declarant was perceiving the event or

condition, or immediately thereafter.” M. R. Evid. 803(1). Ehrlich’s testimony reveals

that Aleasha’s statement recounted a threat Sanchez made the prior evening. Thus,

Aleasha’s statement described an event that she “perceived” the prior evening, rather than

a “present sense impression.”      The “excited utterance” hearsay exception applies to

statements “relating to a startling event or condition made while the declarant was under

the stress of excitement caused by the event or condition.” M. R. Evid. 803(2). Ehrlich

testified that Aleasha seemed unconcerned by Sanchez’s threat and that Aleasha


                                              7
remarked, “[Sanchez] was nothing more than a dumb little Mexican. He ain’t got the

balls to do nothing.”    Aleasha’s comments indicate that she lacked the “stress of

excitement” necessary to implicate the excited utterance exception.         Similarly, we

conclude that the “statement under belief of impending death” hearsay exception is

inapplicable because Aleasha’s comments indicate that she did not make the statement

“while believing that [her] death was imminent,” and her statement did not concern “the

cause or circumstance of what [she] believed to be impending death.” M. R. Evid.

804(b)(2).

¶22    Though no exceptions apply to Aleasha’s hearsay statement, we agree with the

State that the District Court committed harmless error because the State presented other

admissible evidence that proved the same facts as the hearsay evidence. We apply the

“cumulative evidence” test to determine whether a district court’s trial error is harmless.

State v. Van Kirk, 2001 MT 184, ¶ 43, 306 Mont. 215, ¶ 43, 32 P.3d 735, ¶ 43. Under the

“cumulative evidence” test, we consider a trial error harmless if the State demonstrates

that the “fact-finder was presented with admissible evidence that proved the same facts as

the tainted evidence and, qualitatively, by comparison, the tainted evidence would not

have contributed to the conviction.” Van Kirk, ¶ 47. In Van Kirk, we abandoned the

“overwhelming evidence” test, which emphasized the quantity of admissible evidence

proving guilt, in favor of the “cumulative evidence” test, which focuses on the qualitative

impact the inadmissible evidence may have on the fact-finder. Van Kirk, ¶ 43.

¶23    Sanchez testified that his suspicions of Aleasha’s infidelity were confirmed on

Monday morning, July 19, 2004, when Angel, a co-worker, admitted sleeping with


                                            8
Aleasha. Sanchez testified that he then arranged for his daughters to sleep at a friend’s

house so that he and Aleasha could talk without his children present. He testified that he

bagged up Aleasha’s clothes and dropped them off at her house. He knocked on the door,

but no one answered, and Sanchez returned to work. Sanchez testified that he recognized

a vehicle outside Aleasha’s house as he drove home from work and that he knew that

Angel was at Aleasha’s house. Sanchez testified that he retrieved his pistol from his

home, went to a store and bought ammunition, and then returned to Aleasha’s house.

Again, no one answered the door, and Sanchez went home. When Aleasha called him

that evening and asked him to come to her house, he returned to Aleasha’s and parked

outside her house, with the gun on the seat next to him. He testified that she came

outside, they argued, and he grabbed his gun and shot her when she threatened to have his

children removed from his care.

¶24   Jason Sheehan, one of Sanchez’s co-workers, testified that Sanchez mentioned

during the lunch break that Sanchez was upset because Aleasha had cheated on him.

Sheehan testified that Sanchez stated that he was going to go to Aleasha’s house, drop off

her clothes, and “maybe slap her around a little bit.” Sheehan also testified that Sanchez

stated that “maybe he would get out his 9 [millimeter pistol] and go shoot her.” At no

point did Sanchez object to Sheehan’s testimony.

¶25   In light of the damaging testimony from Sheehan and Sanchez, we conclude that

the District Court committed harmless error in admitting Aleasha’s hearsay statement.

The testimony of Sanchez and Sheehan presented the jury with cumulative evidence that

proved the same facts as Aleasha’s statement.        Moreover, given the character of


                                            9
Sanchez’s and Sheehan’s in-court testimony, the jury was presented with evidence of

deliberate homicide that qualitatively outweighed any impact that Aleasha’s statement

may have had on the jury. The jury heard from Aleasha’s killer himself, that, after

learning of Aleasha’s infidelity, he made arrangements for the care of his children, he

went to the store and purchased ammunition, he took the loaded gun to Aleasha’s house,

he waited for her to come outside, and he shot her after a brief argument. We conclude

that the qualitative nature of Sanchez’s testimony outweighs any qualitative impact that

Aleasha’s hearsay statement may have had on the jury and that no reasonable possibility

exists that the hearsay statement contributed to the conviction, and thus, any error is

harmless. Van Kirk, ¶ 47.

C. Aleasha’s note

¶26   At trial, the State offered a note written by Aleasha that stated:

             To whom it concerns:

              On July 8, 04 around 10:30 p [sic] Raul Sanchez Cardines told me if
      I ever was cought [sic] with another man while I was dating him, that he
      would kill me. Raul told me he had friends in Mexico that had medicine
      that would kill me and our doctors wouldn’t know what it was till it was to
      [sic] late and I would be dead.

            So if I unexspetly [sic] become sick and on the edge of death, and
      perhaps I die no [sic] you will have some answers.

             Aleasha Chenowith (written and printed signature)

Sanchez objected to the note’s admission on hearsay grounds throughout the pre-trial

proceedings and at trial. The District Court overruled Sanchez’s hearsay objection and

concluded that M. R. Evid. 804(b)(2), the hearsay exception for statements made under



                                            10
belief of impending death, removed Aleasha’s written statements from the hearsay rule.

Sanchez argues that Aleasha’s note does not indicate that she feared imminent death, and

thus, the District Court erred in admitting the note as a dying declaration.

¶27    We agree with Sanchez that the District Court incorrectly relied on the “statement

under belief of impending death” hearsay exception to admit Aleasha’s note.          This

exception applies to statements “made by a declarant while believing that the declarant’s

death was imminent, concerning the cause or circumstance of what the declarant believed

to be impending death.”       M. R. Evid. 804(b)(2).       Aleasha’s statements that “if I

[unexpectedly] become sick” and “perhaps I die” indicate that she viewed her death as

neither certain nor imminent. (Emphases added.)

¶28    However, as with Ehrlich’s testimony, we conclude that the District Court’s ruling

constituted harmless error. As discussed in ¶ 19, the statements relating to Sanchez’s

Mexico connections fall outside the hearsay definition because the State did not offer the

statements to prove that Sanchez actually could obtain poison from sources in Mexico.

Sanchez’s threat that he would kill Aleasha if she committed adultery presents the only

questionable portion of Aleasha’s note.        The threat’s substance essentially mirrors

Sanchez’s “[y]ou cross me, I kill you” statement, and we conclude that this statement’s

admission constitutes harmless error for the same reasons.

¶29    The testimony of Sheehan and Sanchez presented the jury with cumulative

evidence that proved the same facts that Aleasha’s note sought to prove. Further the

qualitative nature of their testimony outweighs any qualitative impact that Aleasha’s

hearsay statement may have had on the jury; we can conceive of no evidence more


                                             11
qualitatively damning than Sanchez’s narration of the day he killed Aleasha. Further,

Sheehan’s account of Sanchez’s lunchtime comment that “maybe he would get out his 9

and go shoot [Aleasha]” confirmed that Sanchez contemplated killing Aleasha shortly

after learning of her transgression. In light of the evidence presented by Sanchez’s and

Sheehan’s testimony, we conclude that no reasonable possibility exists that the statement

in the note contributed to Sanchez’s conviction, and thus, any error is harmless. Van

Kirk, ¶ 47.

¶30     II    Did the introduction of Aleasha’s note violate Sanchez’s Sixth

Amendment right to confrontation?

¶31     Sanchez claims that the District Court violated h i s constitutional right to

confrontation under both the United States and Montana Constitutions when it admitted

Aleasha’s note as evidence. Sanchez argues that the note was “testimonial” hearsay and

thus was inadmissible unless the court found (1) that the declarant was unavailable, and

(2) that there was a prior opportunity for cross-examination. Though Sanchez concedes

Aleasha’s unavailability, he asserts that he had no opportunity to question her about the

note.

¶32     The Sixth Amendment of the United States Constitution, applicable to the States

through the Fourteenth Amendment, guarantees criminal defendants the right to be

confronted with the witnesses against them. The Sixth Amendment’s Confrontation

Clause applies only to testimonial hearsay. Davis v. Washington, ___ U.S. ___, 126 S.

Ct. 2266, 2274-75 (2006). Testimonial hearsay statements are inadmissible unless the

declarant is “unavailable” for trial and the defendant had a prior opportunity for cross-


                                           12
examination. Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374 (2004).

The Supreme Court emphasized in Crawford that the Sixth Amendment mandates that a

testimonial statement’s reliability be tested “in the crucible of cross-examination[,]” not

left to the “vagaries of the rules of evidence . . . .” Crawford, 541 U.S. at 61, 124 S. Ct.

at 1370. Additionally, Montana’s Constitution grants a defendant the right to “meet the

witnesses against him face to face . . . .” Mont. Const. art. II, § 24. This provision

clarifies that full cross-examination is a critical aspect of the confrontation right. State v.

Clark, 1998 MT 221 ¶ 22, 290 Mont. 479, ¶ 22, 964 P.2d 766, ¶ 22.

¶33    Sanchez argues that Aleasha’s note, documenting the date and time of Sanchez’s

alleged statement and the substance of his threat, is testimonial because i t bears

similarities to an affidavit. Additionally, Sanchez equates Aleasha’s note with Lord

Cobham’s infamous letter, discussed by the Supreme Court in Crawford, that implicated

Sir Walter Raleigh for treason. 541 U.S. at 44-45, 124 S. Ct. at 1360. The State argues

that the note is non-testimonial because it reflects “an intent to direct attention (possibly

only medical attention) to the reasons for any suspicious illness.”

¶34    Though the United States Supreme Court has declined to comprehensively define

“testimonial,” it has supplied a consistent starting point:

       [The Confrontation Clause] applies to “witnesses” against the accused—in
       other words, those who “bear testimony.” [1] N. Webster, An American
       Dictionary of the English Language (1828). “Testimony,” in turn, is
       typically “[a] solemn declaration or affirmation made for the purpose of
       establishing or proving some fact.” Ibid. An accuser who makes a formal
       statement to government officers bears testimony in a sense that a person
       who makes a casual remark to an acquaintance does not.




                                              13
Crawford, 541 U.S. at 51, 124 S. Ct. at 1364; see also Davis, ___ U.S. at ___, 126 S. Ct.

at 2274.   Thus, to determine whether a witness bears testimony, the Court finds

significant the statement’s purpose, the statement’s context, and the audience the

statement is intended to reach. In Davis, the Court seemingly retreated from its earlier

pronouncements that “statements taken by police officers in the course of interrogations

are . . . testimonial under even a narrow standard” and that “[w]hatever else the term

[testimonial] covers, it applies at a minimum to . . . police interrogations.” Crawford,

541 U.S. at 52, 68, 124 S. Ct. at 1364, 1374. The Davis Court concluded that whether or

not a statement made to police officers during an interrogation is testimonial hinges on

the interrogation’s primary purpose: if the interrogation’s primary purpose is to “establish

or prove past events potentially relevant to later criminal prosecution[,]” the statement is

testimonial; if the interrogation’s primary purpose is to “enable police assistance to meet

an ongoing emergency[,]” the statement is non-testimonial. Davis, ___ U.S. at ___, 126

S. Ct. at 2273-74. As the Supreme Court’s reasoning in Davis illustrates, the Court finds

no particular inquiry dispositive in determining whether a statement is testimonial.

¶35    In State v. Mizenko, we discussed what constitutes a testimonial statement. In

general, a declarant’s statements are presumed testimonial if they are knowingly made to

a police officer or government agent. Mizenko, ¶ 23. A statement is presumed non-

testimonial, however, if the declarant had “objective reason to believe” that the statement

served only “to avert or mitigate an imminent or immediate danger” and the agent

receiving the statement lacked intent to create evidence. Mizenko, ¶ 23. A statement

made to a non-governmental agent is non-testimonial unless the declarant had “clear


                                            14
reason to believe that the statement would be used in court as substantive evidence

against the defendant . . . .” Mizenko, ¶ 23. Thus, though we declined to formulate a

comprehensive definition of “testimonial,” we recognized that certain presumptions arise

depending on the intended audience and the purpose of the statement.

¶36    In our Mizenko discussion we also found significant a statement’s context, and we

looked to whether a declarant reasonably should expect that the State would use the

declarant’s statements at trial. Mizenko, ¶¶ 17-21. We noted the Supreme Court’s

characterization of “a casual remark to an acquaintance” as non-testimonial, Crawford,

541 U.S. at 51, 124 S. Ct. at 1364, and we explained that the word “‘casual’ . . . modifies

the declarant’s assumption as to what use, if any, the listener might make of the

statement.” Mizenko, ¶ 17. If an objective declarant reasonably would expect the State to

use the declarant’s statements at trial, then, absent an opportunity for confrontation, the

Sixth Amendment bars the admissibility of such statements. Mizenko, ¶ 17. Further, we

recognized that a statement’s characterization as testimonial did not depend on

government involvement in the declarant’s making the statement: “‘Thus, if just before

trial a person shoved a written statement under the courthouse door, asserting that the

accused did in fact commit the crime, that would plainly be testimonial even though no

government official played a role in preparing the statement.’” Mizenko, ¶ 19 (quoting

Richard D. Friedman, The Confrontation Clause Re-Rooted and Transformed, 2004 Cato

Sup. Ct. Rev. 439, 458).

¶37    Aleasha addressed her note “[t]o whom it concerns[.]” Her stated reason for

writing the note was that “if I unexspetly [sic] become sick and on the edge of death, and


                                            15
perhaps I die no [sic] you will have some answers.” The note’s substance indicates that

the note’s purpose was to explain her untimely death or poisoning, not to prevent or

mitigate future harm. Aleasha’s short note named the person she suspected would kill

her and the method he threatened to use.          In essence, Aleasha’s note contained

information that could establish or prove facts to answer questions regarding how, why,

and by whom she had been harmed or killed. The State’s contention that the purpose of

Aleasha’s note may have been to “direct attention (possibly only medical attention) to the

reasons for any suspicious illness[,]” completely ignores the accusatory nature of the note

(as does Justice Rice’s concurrence): in a nine-line note, Aleasha documented the date

and time that Sanchez threatened her, she named Sanchez as her suspected killer, she

described Sanchez’s motive, and she described his threatened method of execution.

Though Aleasha did not address her note specifically to police officers, the note’s

substance and its comprehensive salutation indicate that it reasonably included law

enforcement.

¶38    Moreover, the circumstances surrounding Aleasha’s note indicate that it bears

little similarity to a non-testimonial “casual remark to an acquaintance.” Crawford, 541

U.S. at 51, 124 S. Ct. at 1364. Rather, the circumstances indicate that an objective

declarant would reasonably expect the State to make use of her statement: Aleasha

memorialized Sanchez’s threat by writing it down on a piece of paper from a yellow legal

pad; she used a formal salutation on the note: “[t]o whom it concerns:”; the note asserted

that Sanchez had already committed a crime—threatening Aleasha; the note asserted that

Sanchez contemplated a future crime—killing Aleasha; and she formally ended her note


                                            16
by both printing and signing her name. Additionally, though Aleasha did not “shove a

written statement under the courthouse door,” she did leave the note in a location that an

officer investigating her death could easily find it; the officer testified that he found the

note on Aleasha’s kitchen counter with her bills and correspondence. Mizenko, ¶ 19. We

conclude that Aleasha’s note was testimonial because the purpose of the note was to

explain Aleasha’s untimely death or poisoning, the intended audience reasonably

included law enforcement, and the circumstances surrounding the note indicate that an

objective declarant reasonably should have anticipated that the State would make use of

the statements at trial. Our conclusion that Aleasha’s note was testimonial, however,

does not end our analysis.1



       1
         In his concurrence, Justice Rice relies on State v. Spencer, 2007 MT 245, 339
Mont. 227, 169 P.3d 384, for the proposition that we should consider the “primary
purpose” of Aleasha’s note itself to determine whether the note constitutes a testimonial
statement. The concurrence misreads Spencer.
        In Spencer, we determined that a three-and-a-half-year-old victim’s statements
were non-testimonial after determining that the witnesses testifying about the statements
had heard the statements in their capacities as a foster parent and a counselor, rather than
as state investigators. Spencer, ¶ 23. Because the statements were made to non-
governmental agents, the statements were presumed non-testimonial unless the declarant
had “clear reason to believe” that they would be used against the defendant in court.
Mizenko, ¶ 23. We concluded, however, that the “clear reason to believe” standard was
unworkable when applied to a three-and-a-half-year-old victim and, relying on the United
States Supreme Court’s Davis decision, we looked to the “primary purpose” of the
interaction between the declarant and the witnesses because the circumstances
surrounding the statements bore similarities to an interrogation. Spencer, ¶ 22.
        Here, in contrast to Spencer, the declarant, Aleasha, was a competent adult and the
circumstances bear no similarities to an interrogation. Even if the circumstances were
akin to an interrogation, the proper focus would be on the primary purpose of the
interrogation or interaction, not, as the concurrence suggests, on the primary purpose of
the statement itself. Moreover, though we concluded in Spencer that the declarant’s age
made the Mizenko presumptions unworkable, those presumptions were nonetheless

                                             17
¶39    Though the Supreme Court held in Crawford that the Confrontation Clause

mandates cross-examination to assess a testimonial statement’s reliability, the Court

nonetheless acknowledged that exceptions to the Confrontation Clause exist. Crawford,

541 U.S. at 62, 124 S. Ct. at 1370. The Court cited the forfeiture by wrongdoing doctrine

as one such exception: “the rule of forfeiture by wrongdoing (which we accept)

extinguishes confrontation claims on essentially equitable grounds; it does not purport to

be an alternative means of determining reliability.” Crawford, 541 U.S. at 62, 124 S. Ct.

at 1370. In Davis, the Court again referenced the equitable doctrine, stating that “one

who obtains the absence of a witness by wrongdoing forfeits the constitutional right to

confrontation.” Davis, ___ U.S. at ___, 126 S. Ct. at 2280.

¶40    As this case presents our first opportunity to consider the forfeiture by wrongdoing

doctrine since the Crawford decision, other jurisdictions’ post-Crawford decisions aid

our analysis. To the extent that it applies to an admitted and intentional killing, we find

persuasive the Sixth Circuit’s reasoning in U.S. v. Garcia-Meza, 403 F.3d 364 (6th Cir.

2005). In Garcia-Meza, a jury convicted the defendant of murdering his wife after

hearing testimony from law enforcement officers describing the wife’s hearsay

statements concerning a prior assault. At trial, the defendant admitted killing his wife,

but argued that her murder was not premeditated. Garcia-Meza, 403 F.3d at 367. On

appeal, Garcia-Meza claimed that his right to confrontation was violated when his wife’s

hearsay statements were admitted into evidence. Garcia-Meza, 403 F.3d at 369. The


initially implicated and necessitated the “primary purpose” analysis; no presumptions are
implicated in this case. For these reasons, Spencer is not applicable to the present case.

                                            18
Sixth Circuit disagreed and held that Garcia-Meza had forfeited his right to confrontation

because his wrongdoing caused her unavailability. Garcia-Meza, 403 F.3d at 370 (citing

Crawford, 541 U.S. at 62, 124 S. Ct. at 1370; Reynolds v. U.S., 98 U.S. 145, 158-59, 25

L. Ed. 244, 248 (1879) (“The rule has its foundation in the maxim that no one shall be

permitted to take advantage of his own wrong.”)). The Sixth Circuit noted that no

dispute existed as to whether the defendant killed his wife; the dispute centered, rather,

on whether the defendant acted with premeditation. Thus, the court reasoned, because

the defendant was responsible for the declarant’s unavailability, he forfeited his right to

confrontation. Garcia-Meza, 403 F.3d at 370.

¶41    The Sixth Circuit specifically rejected Garcia-Meza’s argument that the forfeiture

doctrine applies only when the defendant has committed wrongdoing with the intent to

prevent the witness from testifying. Garcia-Meza, 403 F.3d at 370. The court stated that

the Supreme Court’s affirmation of the forfeiture doctrine’s equitable basis “strongly

suggests that the rule’s applicability does not hinge on the wrongdoer’s motive.” Garcia-

Meza, 403 F.3d at 370. The court further reasoned that a defendant would benefit if his

wrongdoing prevented a witness from testifying against him, regardless of whether or not

that was his intent. The Sixth Circuit held that the rule of forfeiture, based on equitable

principles, permits no such result. Garcia-Meza, 403 F.3d at 370-71.

¶42    The Sixth Circuit decided Garcia-Meza in the interim between the United States

Supreme Court’s Crawford and Davis decisions. In Davis, the Supreme Court further

clarified the forfeiture by wrongdoing doctrine.     In response to the contention that

domestic violence cases require more flexibility regarding testimonial evidence, the


                                            19
Court reiterated that the doctrine operates to extinguish “confrontation claims on

essentially equitable grounds.” Davis, ___ U.S. at ___, 126 S. Ct. at 2280 (citations

omitted). The Court noted that domestic violence crimes are particularly prone to victim

intimidation and coercion to prevent the victim from testifying, and it stated that:

       [W]hen defendants seek to undermine the judicial process by procuring or
       coercing silence from witnesses and victims, the Sixth Amendment does
       not require courts to acquiesce. While defendants have no duty to assist the
       State in proving their guilt, they do have the duty to refrain from acting in
       ways that destroy the integrity of the criminal-trial system.

Davis, ___ U.S. at ___, 126 S. Ct. at 2279-80. The Court further stated that Federal Rule

of Evidence 804(b)(6) codifies the forfeiture doctrine. Though primarily dicta, the Davis

discussion of the forfeiture doctrine and the Court’s statement that Rule 804(b)(6)

“codifies” the doctrine has generally been interpreted by lower courts to require a

defendant’s intent to silence a witness by wrongdoing before applying the doctrine. E.g.

Colorado v. Moreno, 160 P.3d 242, 245-46 (Colo. 2007) (collecting cases and noting that

“the clear consensus in non-murder cases is that the doctrine requires a showing of an

intent on the part of the defendant to prevent the declarant from testifying at trial.”).

¶43    Though the Supreme Court’s discussion of the forfeiture doctrine in Davis

seemingly casts doubt on the Sixth Circuit’s reasoning in Garcia-Meza, other

jurisdictions’ post-Davis decisions concur with the Sixth Circuit that, in homicide cases,

the doctrine’s applicability does not depend on whether the defendant intended to silence

a witness. For example, in California v. Giles, a murder case, the California Supreme

Court held that an “intent-to-silence” element is not a prerequisite to the forfeiture

doctrine’s applicability. 152 P.3d 433, 443 (Cal. 2007), cert. granted, ___ U.S. ___,


                                              20
2008 WL 109701 (Jan. 11, 2008). The defendant in Giles admitted killing his girlfriend,

but argued that he acted in self-defense. The California Supreme Court adopted its

appellate court’s reasoning that “[f]orfeiture is a logical extension of the equitable

principle that no person should benefit from his own wrongful acts.” Giles, 152 P.3d at

443. The court further reasoned that, regardless of whether a defendant specifically

intended to prevent a witness from testifying, “[a] defendant whose intentional criminal

act renders a witness unavailable for trial benefits from his crime if he can use the

witness’s unavailability to exclude damaging hearsay statements by the witness that

would otherwise be admissible.” Giles, 152 P.3d at 443.

¶44   The California Supreme Court rejected the defendant’s argument that language

from Davis discussing the forfeiture doctrine—“‘when defendants seek to undermine the

judicial process by procuring or coercing silence from witnesses and victims’”—

supported an intent-to-silence requirement. Giles, 152 P.3d at 443 n. 5 (quoting Davis,

___ U.S. at ___, 126 S. Ct. at 2280). Rather, the court stated that the Supreme Court

simply was describing traditional witness tampering cases in a domestic violence context.

Giles, 152 P.3d at 443 n. 5. The California court considered it more significant that the

Supreme Court reaffirmed the forfeiture doctrine’s equitable nature and clarified that

Crawford did not destroy a court’s ability to protect the integrity of its proceedings.

Giles, 152 P.3d at 443 n. 5. The Giles court concluded that applying the forfeiture

doctrine without an intent-to-silence requirement was proper to protect the integrity of a

court’s proceeding: “courts should be able to further the truth-seeking function of the




                                           21
adversary process when necessary, allowing fact finders access to relevant evidence that

the defendant caused not to be available through live testimony.” Giles, 152 P.3d at 444.

¶45    Even jurisdictions that impose an intent-to-silence requirement on the forfeiture by

wrongdoing doctrine recognize that homicide cases may present an exception.             For

example, in Illinois v. Stechly, the Illinois Supreme Court left open the possibility of a

homicide exception though it determined that the above-quoted language from Davis

“strongly connotes a requirement of intent.” 870 N.E.2d 333, 350-53 (Ill. 2007)

(plurality). The Stechly court declined to apply the forfeiture doctrine to a sexual abuse

case, absent evidence showing that the defendant intended to prevent the witness from

testifying, and noted that outside the context of murder cases, the authorities uniformly

require proof of intent.2 Stechly, 870 N.E.2d at 353 (plurality). The court distinguished

the majority of cases, which hold that intent is irrelevant, as either predating Davis or as

involving the defendant’s murdering the witness.         Stechly, 870 N.E.2d at 351-52

(plurality). The Illinois court further noted that jurisdictions that did not impose an

intent-to-silence requirement in murder cases feasibly were reconcilable with the general

rule requiring intent. Summarizing the reasoning of those cases, the Illinois court stated

that those jurisdictions essentially hold that:

       [T]he prosecution need not prove that the defendant committed murder with
       the intent of procuring the victim’s absence. This is consistent with
       presuming such intent when the wrongdoing at issue is murder. When a

2
 Recent holdings of the California Supreme Court in Giles and the Washington Supreme
Court in Washington v. Mason, 162 P.3d 396 (Wash. 2007) challenge the Stechly
plurality’s claim. Though both the California and Washington cases involved homicide
cases, the courts’ holdings that the applicability of the forfeiture doctrine required no
intent-to-silence were not limited to homicide cases.

                                              22
       defendant commits murder, notwithstanding any protestation that he did not
       specifically intend to procure the victim’s inability to testify at a subsequent
       trial, he will nonetheless be sure that this would be a result of his actions.
       Murder is, in this sense, different from any other wrongdoing in which a
       defendant could engage with respect to a witness—more than a possibility,
       or a substantial likelihood, a defendant knows with absolute certainty that a
       murder victim will not be available to testify.

Stechly, 870 N.E.2d at 352-53 (plurality). Thus, the Illinois court left open the possibility

that the intent to prevent a witness’s testimony could be “presumed” in the murder

context, while otherwise requiring proof of intent.        Stechly, 870 N.E.2d at 352-53

(plurality).

¶46    To the extent that a deliberate criminal act results in the victim’s death, we agree

that the forfeiture by wrongdoing doctrine does not hinge on whether the defendant

specifically intended to silence a witness. The doctrine derives from the maxim that no

person should benefit from the person’s own wrongdoing. Reynolds v. U.S., 98 U.S. at

158-59, 25 L. Ed. at 248; Garcia-Meza, 403 F.3d at 370.             The natural result of a

deliberate killing is always that the victim is unavailable to testify; we agree with the

Giles court that a defendant whose intentional criminal act results in a victim-declarant’s

death benefits from the defendant’s wrongdoing if the defendant can use the death to

exclude the victim-declarant’s otherwise admissible testimony, regardless of whether the

defendant specifically intended to silence the victim-declarant. Giles, 152 P.3d at 443.

Such a result undermines the judicial process and threatens the integrity of court

proceedings, and though courts may not “vitiate constitutional guarantees when they have

the effect of allowing the guilty to go free[,]” nor must they acquiesce in the destruction

of the criminal-trial system’s integrity. Davis, ___ U.S. at ___, 126 S. Ct. at 2280.


                                             23
¶47    The facts of this case are substantially similar to those of Garcia-Meza. Sanchez

fatally shot Aleasha, thereby rendering her unavailable as a witness.          Sanchez was

charged with Aleasha’s homicide, and the State introduced her prior statements. No

dispute exists as to whether Sanchez killed Aleasha—he admitted it to law enforcement

and at trial. We need not determine whether the defendant’s wrongdoing is the same act

for which he was tried because the dispute at trial centered on whether mitigating

circumstances existed, not on whether Sanchez killed Aleasha.            We conclude that

Sanchez forfeited his Sixth Amendment right to confront Aleasha when he killed her.

Moreover, Sanchez cannot claim that his Montana constitutional right to “meet the

witnesses against him face to face” was violated when his admittedly deliberate

wrongdoing prevented such a confrontation. We emphasize the narrow holding on this

issue: when a defendant admittedly and deliberately kills another person, thus procuring

the person’s unavailability as a witness, the defendant forfeits the constitutional rights to

confront the victim at trial.3 Whether the doctrine of forfeiture by wrongdoing applies to

situations in which the defendant disputes the underlying act of “wrongdoing” or to

situations in which the wrongdoing does not result in death are issues not presented or

addressed in this case.



3
 In his special concurrence, Justice Nelson concludes that the Court errs by adopting the
reasoning of the California court in Giles. Lest anyone be confused, there is a difference
between discussing an opinion from a sister state and “adopting” that court’s reasoning.
We do not adopt Giles. Rather, our holding is heavily qualified: the wrongdoing must be
deliberate, it must be criminal, and it must result in the victim/declarant’s death. Despite
the concurrence’s protestations to the contrary, our holding does not amount to a “broad
sweeping statement” as to the applicability of the forfeiture doctrine.

                                             24
¶48      Though the District Court failed to address Sanchez’s Confrontation Clause claim

and based its ruling on hearsay exceptions, we cannot say the District Court reached an

incorrect result. We will uphold a district court’s correct decision, regardless of the

stated rationale. State v. Rensvold, 2006 MT 146, ¶ 34, 332 Mont. 392, ¶ 34, 139 P.3d

154, ¶ 34. We conclude the District Court reached the legally correct result.

¶49      III   Did the prosecutor’s closing argument deny Sanchez the right to a fair

trial?

¶50      Sanchez asserts that the prosecutor engaged in misconduct by repeatedly

misstating the law regarding the elements of mitigated deliberate homicide during closing

arguments and that these misstatements denied Sanchez his right to a fair trial. The State

maintains that Sanchez has waived his right to appeal this issue because he failed to move

the District Court for curative measures, such as a mistrial or a cautionary instruction. As

Sanchez points out, however, his objection was overruled, and he had no reason to

anticipate that the District Court would issue curative measures.       We conclude that

Sanchez’s objection during closing arguments properly preserved this issue for appeal.

Section 46-20-104, MCA.

¶51      If a prosecutor’s improper comments prejudice a defendant’s right to a fair trial,

then the proper remedy is reversal. State v. Stringer, 271 Mont. 367, 381, 897 P.2d 1063,

1072 (1995). Though Sanchez did not move the District Court for a mistrial based on

prosecutorial misconduct, we employ the same two-step analysis we use to review a

denial of such a motion: we determine first whether the prosecutor made improper




                                             25
comments, and, if so, whether the comments prejudiced the defendant’s right to a fair and

impartial trial. State v. Gladue, 1999 MT 1, ¶ 12, 293 Mont. 1, ¶ 12, 972 P.2d 827, ¶ 12.

A. The prosecutor’s comments during closing argument

¶52    Sanchez argues that the prosecutor repeatedly misstated the law regarding

mitigated deliberate homicide during the State’s closing argument and rebuttal.

Specifically, Sanchez points to the prosecutor’s statement that, to convict for mitigated

deliberate homicide, the jury had to find that Sanchez’s response to extreme emotional

distress was reasonable, rather than that a reasonable explanation existed for his

emotional distress. The prosecutor then argued:

       [t]he streets would be littered with corpses if it was reasonable to shoot
       somebody because they cheated on you and made you angry. Based on
       your own lifetime experiences you have seen that. You may have been part
       of it. Did you kill somebody? Did somebody kill you, your friends, other
       people? No. That answers the question. This is not a reasonable response
       for a person under these circumstances.

(Emphasis added.) Sanchez argues that the plain language of the mitigated deliberate

homicide statute indicates that “reasonable” modifies the defendant’s emotional state, not

the defendant’s actions. The statute provides that a person who commits a deliberate

homicide, “but does so under the influence of extreme mental or emotional stress for

which there is reasonable explanation or excuse” has committed mitigated deliberate

homicide. Section 45-5-103(1), MCA. The statute is unambiguous, and we conclude

that the prosecutor misstated the law.

¶53    On appeal, the State argues that the prosecutor’s remarks are “troubling” only

because they are not presented in their proper context. The State then attempts to furnish



                                            26
this context by directing us to two instances when the prosecutor made “accurate”

statements of the law. The first instance the State identifies is an accurate statement of

the law; however, the State has misidentified the speaker: it was Sanchez’s counsel, not

the prosecutor who properly stated the law on mitigated deliberate homicide. The second

instance, though properly attributed to the prosecutor and an accurate statement of the

law, was followed directly by an incorrect explanation:

       The reasonableness of the explanation or excuse must be determined from
       the viewpoint of a reasonable person in the actor’s situation. That is, what
       would a reasonable person do, not what the defendant did. The evidence in
       this case shows you it was not reasonable. And if it’s not reasonable, there
       goes mitigated deliberate homicide.

(Emphasis added.)

¶54    The State maintains that improvising during closing arguments frequently results

in imperfect syntax and less than crystal clear meaning.        The comments at issue,

however, demonstrate a blatant misstatement of the law, not mere inadvertence. The

prosecutor’s improper closing argument went far beyond appropriate ad-libbing and

tested the boundaries of professional ethics. We cannot accept the State’s incongruous

arguments in support of the prosecutor’s statements, and we conclude that the

prosecutor’s statements were improper.

B. Prejudicial effect of improper comments

¶55    Having determined that the prosecutor improperly stated the law, we must next

determine whether the comments prejudiced Sanchez’s right to a fair and impartial trial.

Gladue, ¶ 12. We do not presume that a prosecutor’s improper comments prejudiced a

defendant’s right to a fair and impartial trial; rather, Sanchez must demonstrate, from the


                                             27
record, that the prosecutor’s misstatements prejudiced him. Gladue, ¶ 27. Additionally,

when determining prejudicial effect, we review improper comments in the context of the

entire case. Gladue, ¶ 27.

¶56    Sanchez offers as evidence of prejudicial effect a note from the jury to the District

Court requesting additional instructions. The note reads: “Your Honor, One of our jurors

has requested that you define the term ‘reasonable.’” Sanchez argues that the jury’s note

indicates that the jury was confused by the term “reasonable,” that the prosecutor’s

improper comments caused this confusion, and that Sanchez’s right to a fair trial was thus

prejudiced.

¶57    The jury’s note requested only that the District Court define “reasonable.” The

note did not indicate that the jury was confused as to which term “reasonable” modified.

Moreover, the jury instruction on mitigated deliberate homicide accurately conveyed §

45-5-103, MCA, which unambiguously states that “reasonable” modifies the explanation

for the extreme mental or emotional stress, not the defendant’s act of causing the death of

another human being. The jury additionally was presented with defense counsel’s correct

interpretation of the law and the District Court’s instructions on mitigated deliberate

homicide. The prosecutor also informed the jury that the attorneys’ closing arguments

were not evidence. Before closing arguments the District Court read aloud the jury

instructions and stated that the instructions “constitute[d] the law that [the jury] must

follow in this case.” American jurisprudence depends on a jury’s ability to follow

instructions and juries are presumed to follow the law that courts provide. State v.




                                            28
Turner, 262 Mont. 39, 55, 864 P.2d 235, 245 (1993); Opper v. U.S., 348 U.S. 84, 95, 75

S. Ct. 158, 165 (1954).

¶58    Based on the lack of ambiguity in the mitigated deliberate homicide instruction,

the District Court’s oral and written instructions to the jury, and the presumption that the

jury followed the law, we conclude that Sanchez has failed to demonstrate that the

prosecutor’s improper comments prejudiced his right to a fair and impartial trial.

¶59    IV     Did the “lesser included offense” language of the mitigated deliberate

homicide instruction impermissibly allow the jury to consider sentencing in

reaching its verdict?

¶60    Sanchez claims that the jury instruction defining mitigated deliberate homicide as

a “lesser included offense of Deliberate Homicide” improperly allowed the jury to

consider sentencing in reaching its verdict. Sanchez asserts that this language “probably

pushed the jurors away from fully considering [his] mitigated deliberate homicide

defense.” (Emphasis added.) Sanchez argues that including the word “lesser” in the

instruction may have permitted the jury to surmise that Sanchez would receive a lesser

sentence if the jury convicted him of mitigated deliberate homicide rather than of

deliberate homicide.

¶61    A jury should not consider sentencing in determining a defendant’s guilt or

innocence.    State v. Brodniak, 221 Mont. 212, 226-27, 718 P.2d 322, 332 (1986)

(citations omitted). We recognized in Brodniak that a verdict form containing the terms

misdemeanor and felony could permit a jury indirectly to consider a defendant’s

punishment.    Brodniak, 221 Mont. at 226-27, 718 P.2d at 332.            We review jury


                                            29
instructions in criminal cases in their entirety to determine if they fully and fairly

presented the applicable law to the jury. State v. Detonancour, 2001 MT 213, ¶ 57, 306

Mont. 389, ¶ 57, 34 P.3d 487, ¶ 57.            District courts have broad discretion when

instructing juries, and reversible error occurs only if the jury instructions prejudiced the

defendant’s substantial rights. State v. Strauss, 2003 MT 195, ¶ 47, 317 Mont. 1, ¶ 47, 74

P.3d 1052, ¶ 47.

¶62    The District Court provided the jury a mitigated deliberate homicide instruction

that closely parallels § 45-5-103, MCA, the statute defining mitigated deliberate

homicide.    The jury instruction correctly stated the law.        Additionally, the jury

instructions, taken together, accurately set forth the State’s burden of proof and the

elements that the jury must find to convict Sanchez of mitigated deliberate homicide or

deliberate homicide. To give a jury instruction on mitigated deliberate homicide that

would alleviate Sanchez’s concern would be difficult, if not impossible. If, as Sanchez

argues, use of the word “lesser” invited the jury to indirectly consider punishment, the

same can be said of the word “mitigated”—a term defining the very essence of the

described offense. The jury instructions, when viewed in their entirety, fully and fairly

presented the applicable law to the jury. Moreover, Sanchez’s speculation that the “lesser

included” language probably dissuaded the jury from a mitigated deliberate homicide

verdict cannot overcome the presumption that the jury actually followed the law that the

District Court provided. Turner, 262 Mont. at 55, 864 P.2d at 245. We conclude that the

District Court properly instructed the jury.




                                               30
¶63    Affirmed.


                                                      /S/ W. WILLIAM LEAPHART

We concur:


/S/ BRIAN MORRIS



Justice Jim Rice specially concurs.

¶64    I agree with the Court’s conclusion to affirm the District Court’s judgment on

Issues I-IV. However, I disagree with the Court’s analysis under Issues IB, IC, and II,

and would affirm under alternate reasoning.

                                         Issue I

¶65    The Court determines that Aleasha’s statement to her neighbor (Issue IB) and

Aleasha’s note (Issue IC) are hearsay to which no hearsay exception applies, but that the

District Court’s admission of this evidence constituted “harmless error” for which we

need not reverse. Opinion, ¶ 28. While I agree with the outcome of the Court’s decision,

I write separately to urge the adoption of the forfeiture by wrongdoing exception to the

hearsay rules.

¶66    Forfeiture by wrongdoing, as this Court accepts, is an equitable concept that

prevents an individual from benefiting from his own wrongful actions. Opinion, ¶ 47. In

fact, Montana law generally codifies the equitable principle in § 1-3-208, MCA (2005),

which states that “[n]o one can take advantage of his own wrong.” While the Montana

Rules of Evidence are silent regarding the forfeiture doctrine’s relation to hearsay, the


                                              31
principle has been codified in the Federal Rules of Evidence as Rule 804(b)(6). This rule

provides that: “A statement offered against a party that has engaged or acquiesced in

wrongdoing that was intended to, and did, procure the unavailability of the declarant as a

witness” is not considered hearsay.4

¶67    The United States Supreme Court first applied the doctrine of forfeiture by

wrongdoing in Reynolds v. United States, 98 U.S. 145, 158 (1878):

       The Constitution does not guarantee an accused person against the
       legitimate consequences of his own wrongful acts. . . . [I]f [a defendant]
       voluntarily keeps the witnesses away, he cannot insist on his [Sixth
       Amendment] privilege. If, therefore, when absent by his procurement, their
       evidence is supplied in some lawful way, he is in no condition to assert that
       his constitutional rights have been violated.

The Supreme Court recently affirmed the doctrine’s validity in Crawford v. Washington,

541 U.S. 36, 62, 124 S. Ct. 1354, 1370 (2004) (“the rule of forfeiture by wrongdoing

(which we accept) extinguishes confrontation claims on essentially equitable grounds”).

It has been adopted by numerous state courts as well. After recently considering both the

evidentiary and constitutional aspects of the issue, the Supreme Judicial Court of

Massachusetts noted that “we are aware of no jurisdiction that, after considering the

doctrine, has rejected it.” Commonwealth v. Edwards, 830 N.E.2d 158, 166-67 (Mass.

2005). Even after acknowledging that its state constitution provides broader protections


4
 The dissenting opinion states that the adoption of the forfeiture by wrongdoing exception
within the Federal Rules of Evidence is not “a principled ground” for considering
adoption of the exception for our state rules. Dissent, ¶ 123 n. 5. I confess an inability to
understand why consideration of the approach taken by the federal rules—and indeed, the
approach of many other states who have likewise adopted the exception—on an
evidentiary issue is unprincipled. Nor does adoption of the exception eliminate all
considerations of trustworthiness.

                                             32
than the federal constitution, the Massachusetts Court interpreted its state constitution

“coextensively” with the federal constitution on this issue and recognized the doctrine,

“[g]iven the overwhelming precedential and policy support for its adoption[.]” Edwards,

830 N.E.2d at 168.

¶68    I would apply this principle to the Rules of Evidence as well. However, despite a

previous opportunity to do so, the Court has so far declined. We were presented with

proposed M. R. Evid. 804(b)(6), the forfeiture by wrongdoing exception to M. R. Evid.

802’s bar against admission of hearsay, following a recent rule review process. Support

for the adoption was offered by various members of the Commission on Evidence and by

district court judges, but the Court rejected the rule. I continue to believe that the rule

would serve an appropriate and important purpose in the search for truth which our courts

are intended to conduct. The instant case presents a clear example of how a defendant

may benefit from h i s wrongdoing and why the exception should be adopted.

Accordingly, the Court’s holding, which applies the forfeiture doctrine as an exception to

the Confrontation Clause, should apply with equal force as an exception to the rule

against hearsay, which would admit the evidence at issue here.

                                         Issue II

¶69    The Court concludes that Aleasha’s note was testimonial because “the purpose of

the note was to explain Aleasha’s untimely death or poisoning, the intended audience

reasonably included law enforcement, and the circumstances surrounding the note

indicate that an objective declarant reasonably should have anticipated that the State

would make use of the statements at trial.” Opinion, ¶ 38. I cannot agree with any of


                                            33
these conclusions because the Court has added its own speculation, or has ignored parts

of the note, to reach each one.

¶70    First, the Court states that the “note’s substance indicates that the note’s purpose

was to explain her untimely death or poisoning . . . .” Opinion, ¶ 37. However, the Court

does not adequately consider that the note gave instruction in the event Aleasha

unexpectedly would “become sick and on the edge of death.” In such a sickened state,

Aleasha would benefit by giving her medical providers the “answers” she was providing

in the note. The Court simply pretends these words do not exist. The State’s argument to

this effect is improperly dismissed by the Court.

¶71    Then, the Court concludes that the note was “intended” for law enforcement

because it was left in the kitchen. Opinion, ¶ 38. This conclusion is based upon the

Court’s surmise that law enforcement could more easily find it there. Assigning an

intention by Aleasha to involve law enforcement from this most ordinary of actions is

mere speculation. I submit that the note would have been found by law enforcement in

any room of the house, and its location in the kitchen, without more, added nothing to the

note’s testimonial significance.    Indeed, when the “more” is considered, which is

virtually ignored by the Court, a contrary conclusion appears. The note was handwritten

on a small, single piece of paper and was found in Aleasha’s kitchen among her personal

correspondence and bills. The location of the note in Aleasha’s personal home, among

personal papers, supports the objective conclusion that the note had a personal purpose

and was meant for those who would have been typical visitors to her kitchen. Aleasha

made no effort whatsoever to put her message into the hands of officials, to otherwise


                                            34
take precautions to protect or preserve the message for legal purposes, or to even label or

direct the note to law enforcement.

¶72    While the Court states that it “finds no particular inquiry dispostive in determining

whether a statement is testimonial[,]” Opinion, ¶ 34, the Court’s analysis implies the

question is susceptible to short, simplistic solutions: first, that because the note was more

than a “casual remark,” it must be testimonial, and because the note was discovered by a

police officer, it must have been intended for police to easily find it. Opinion, ¶ 38. This

ignores the further details of the note and the surrounding circumstances.

¶73    When determining if a statement made by an unavailable declarant is testimonial,

two Montana cases guide us: State v. Mizenko and State v. Spencer. In State v. Mizenko,

we offered initial, post-Crawford boundaries of testimonial and non-testimonial

statements for purposes of the Confrontation Clause. 2006 MT 11, 330 Mont. 299, 127

P.3d 458. We concluded that statements are testimonial in at least two situations: (1)

“when a declarant knowingly speaks to a police officer or governmental agent” and (2)

when the declarant had a “clear reason to believe that the statement would be used in

court as substantive evidence against the defendant . . . .” Mizenko, ¶ 23. In contrast, we

explained that a statement is non-testimonial when the declarant has an “objective reason

to believe” that the statement will serve to “avert or mitigate an imminent or immediate

danger . . . .” Mizenko, ¶ 23. We also stated that the “clear reason to believe” standard is

an “objective” standard. Mizenko, ¶ 23 n. 3.

¶74    In State v. Spencer, we elaborated on Mizenko, concluding that where the “clear

reason to believe” standard is “unworkable,” we must review the statement to determine


                                             35
its “primary purpose.” 2007 MT 245, ¶ 22, 339 Mont. 227, ¶ 22, 169 P.3d 384, ¶ 22.

There, we relied on the Supreme Court’s decision in Davis v. Washington, 547 U.S. ___,

126 S. Ct. 2266 (2006). Spencer, ¶¶ 22-23. In Davis, the Supreme Court decided that

when circumstances objectively indicate that the primary purpose of an interrogation is to

enable police to assist in an ongoing emergency, the statements are non-testimonial.

Davis, 547 U.S. at ___, 126 S. Ct. at 2273. If however, the circumstances objectively

signify that an ongoing emergency does not exist, but rather the interrogation’s purpose is

to prove past events that may be relevant in a future prosecution, the statements are

testimonial.   Davis, 547 U.S. at ___, 126 S. Ct. at 2273-74.         Accordingly, when

determining, for Confrontation Clause purposes, whether a statement is testimonial, we

first consider whether it is objectively reasonable that the declarant intended the

statement to be used as evidence against the accused and, second, where there is no clear

reason to believe that the declarant intended the statement to be used as evidence, we

consider the primary purpose of the statement.

¶75    When considering the note in its entirety under these standards, Aleasha may just

as well have intended the note to alert medical providers to the cause of a potential

illness, a non-testimonial purpose, or, indeed, simply have offered an explanation to

others about the reason for her demise. The salutation “[t]o whom it concerns[,]” just as

“reasonably” includes medical or emergency personnel, relatives, and friends, thereby

mitigating the note’s potential testimonial qualities.       The Court ascribes a law

enforcement purpose from this broad salutation because it necessarily includes law

enforcement. Instead, the Court should infer otherwise: because the generic salutation


                                            36
potentially included anyone in the world, i t was not primarily a directive to law

enforcement.

¶76       Even assuming that the Court’s reasoning about Aleasha’s note and the reasoning

of this concurrence offer competing, objectively reasonable interpretations regarding

Aleasha’s intent, it would then be appropriate to consider, as in Davis and Spencer, the

“primary purpose” of the note to determine whether it constitutes testimonial or non-

testimonial evidence. Here the Court limits the application of our holding in Spencer to

only interrogations, Opinion, ¶ 38 n. 1, thereby disregarding the very reason we adopted

the primary purpose test in the first place. We adopted the primary purpose analysis

because the “clear reason to believe” standard was unworkable as applied to the

statement of a three-and-a-half-year-old child. Spencer, ¶ 22. Accordingly, application

of the primary purpose analysis does not turn solely on whether an interrogation is

involved, but considers whether the clear reason to believe standard is unworkable under

the circumstances. However, in an effort to avoid consideration of the primary purpose

of the note, the Court narrowly constricts the kinds of circumstances in which the primary

purpose analysis can be applied—only to interrogations—and deflates our holding in

Spencer. This is an artificial and shortsighted tact which will not serve us well in the

future.     To the contrary, the primary purpose analysis should be applicable to any

statement, including a hand-written note, where it is unclear whether the declarant

intended the statement to be used as evidence. Accordingly, where there are competing

objectively reasonable interpretations of a statement, as here, we should look to the




                                             37
statement’s primary purpose and “based on objective circumstances” determine whether

the statement is testimonial. Spencer, ¶ 22.

¶77    Pursuant to our holding in Spencer, where the primary purpose of the statement is

to assist in future litigation, the statement is deemed testimonial.       Spencer, ¶ 22.

However, where the primary purpose is to mitigate future harm, the statement is non-

testimonial. Spencer, ¶ 22. In analyzing the primary purpose we must consider the

totality of the “objective circumstances.” Spencer, ¶ 22. Unfortunately, the Court’s

opinion considers only a fraction of the note. Looking at the note as a whole, most of the

note discusses the availability of a drug which could possibly cause Aleasha’s sickness or

death. The note’s third sentence states: “So, if I unexspetly [sic] become sick and on the

edge of death, and perhaps I die no [sic] you will have some answers.” The conclusory

word “so” indicates that the note’s purpose is to provide “answers” if Aleasha contracted

a serious illness which could bring about her death. The note indicates the cause of her

potential sickness (a drug from Mexico that doctors may not know about), and also

suggests investigatory leads (Sanchez or his friends) that may be helpful in ascertaining

either the type of drug for medical purposes or assigning criminal responsibility—an

admittedly testimonial aspect of the note. However, looking at the note in its entirety,

and the circumstances surrounding Aleasha’s handling of the note, discussed above, it

served largely to alert family, friends, or medical personnel to the reasons she came down

with a sudden and strange illness. Consequently, the note’s primary purpose was not to

serve as evidence in a criminal prosecution, but to mitigate potential harm.




                                               38
¶78    Thus, I would conclude that there is neither a “reasonably objective” reason to

believe that the note was intended for criminal prosecution purposes, nor circumstances

supporting a conclusion that the note was “primarily” written to support a prosecution.

Accordingly, while I support adoption of the forfeiture by wrongdoing exception for

Confrontation Clause purposes, I believe that the note is non-testimonial and would end

the Confrontation Clause analysis at that point.


                                                      /S/ JIM RICE



Justice John Warner concurs.

¶79    Along with Justice Rice, I concur with the Court’s conclusion to affirm the judgment.

¶80    I am constrained to reserve judgment on the wisdom of incorporating the forfeiture by

wrongdoing hearsay exception into the Rules of Evidence. If such an amendment to the Rules is

again proposed, I will consider arguments both for and against its adoption.

¶81    I must agree with Justice Rice’s analysis concerning the note left by Aleasha. It was not

testimonial for the reasons he states in his concurrence. This is especially true in view of the fact

that the note was not introduced to prove that Sanchez killed Aleasha, but for the sole purpose of

providing relevant evidence concerning whether he did so while acting under the influence of

extreme mental or emotional stress.

                                                      /S/ JOHN WARNER



Justice James C. Nelson, dissenting.




                                                 39
¶82    Although I agree with much of the Court’s analysis under Issue III, I conclude that

the prosecutor’s misstatements of the law during closing arguments and the District

Court’s explicit endorsement of those misstatements prejudiced Sanchez’s rights to due

process and a fair trial under Article II, Sections 17 and 24 of the Montana Constitution.

Accordingly, I conclude that this case should be reversed and remanded for a new trial,

and I dissent from the Court’s contrary decision.

¶83    Given this conclusion, a discussion of Issues I, II, and IV is, arguably,

unnecessary. Nevertheless, given the importance of the Court’s holdings under Issue II, I

write separately to explain my agreement and disagreement with certain points in the

Court’s analysis. As for Issues I and IV, I agree with the Court’s resolution of these two

issues; however, I write separately to express my disagreement with the approach

proposed by Justice Rice’s concurrence for resolving Issue I. I first address Issue III,

followed by Issue II and, lastly, Issue I.

                                             Issue III

¶84    The role of the prosecutor is unique within the criminal justice system. It is not

simply a specialized version of the duty of any attorney not to overstep the bounds of

permissible advocacy. See State ex rel. Fletcher v. District Court, 260 Mont. 410, 415,

859 P.2d 992, 995 (1993). Rather, as the Supreme Court explained long ago:

              The [prosecutor] is the representative not of an ordinary party to a
       controversy, but of a sovereignty whose obligation to govern impartially is
       as compelling as its obligation to govern at all; and whose interest,
       therefore, in a criminal prosecution is not that it shall win a case, but that
       justice shall be done. As such, he is in a peculiar and very definite sense
       the servant of the law, the twofold aim of which is that guilt shall not
       escape or innocence suffer. He may prosecute with earnestness and


                                                40
       vigor—indeed, he should do so. But, while he may strike hard blows, he is
       not at liberty to strike foul ones. It is as much his duty to refrain from
       improper methods calculated to produce a wrongful conviction as it is to
       use every legitimate means to bring about a just one.

Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633 (1935). Accordingly, the

prosecutor is required to “execute the duties of his representative office diligently and

fairly, avoiding even the appearance of impropriety that might reflect poorly on the

state.” Fletcher, 260 Mont. at 415, 859 P.2d at 995 (citation and internal quotation marks

omitted). Though he “must diligently discharge the duty of prosecuting individuals

accused of criminal conduct, the prosecutor may not seek victory at the expense of the

defendant’s constitutional rights.” Fletcher, 260 Mont. at 415, 859 P.2d at 995 (citation

and internal quotation marks omitted). Indeed, the prosecutor “is obligated to respect the

defendant’s right to a fair and impartial trial in compliance with due process of law.”

Fletcher, 260 Mont. at 415, 859 P.2d at 995 (citation and internal quotation marks

omitted). Simply stated, “a prosecutor should seek justice and not simply an indictment

or a conviction.” Fletcher, 260 Mont. at 415, 859 P.2d at 995 (citing Preston v. State,

615 P.2d 594, 601 (Alaska 1980)).

¶85    With these well-settled principles in mind, I agree with the Court’s preliminary

analysis under Issue III. In particular, I agree with the Court that § 45-5-103(1), MCA, is

unambiguous. Opinion, ¶ 52. Section 45-5-103(1), MCA, provides:

              A person commits the offense of mitigated deliberate homicide when
       the person purposely or knowingly causes the death of another human
       being but does so under the influence of extreme mental or emotional stress
       for which there is reasonable explanation or excuse. The reasonableness
       of the explanation or excuse must be determined from the viewpoint of a
       reasonable person in the actor’s situation. [Emphases added.]


                                            41
Under the plain language of this statute, the word “reasonable” modifies the defendant’s

explanation or excuse for his emotional state, not the defendant’s actions. The statute

requires the fact-finder to determine whether the defendant’s explanation or excuse for

his extreme mental or emotional stress is reasonable. There is nothing in the statute that

requires (or even permits) the jury to determine whether the defendant’s response to the

extreme mental or emotional stress was reasonable.

¶86    I also agree with the Court that the prosecutor’s improper closing arguments went

far beyond appropriate ad-libbing and that h i s comments demonstrate a blatant

misstatement of § 45-5-103(1), MCA. Opinion, ¶ 54. Indeed, the prosecutor told the

jurors—not once, but four times, and even after defense counsel had pointed out that the

prosecutor was misstating the law—that they had to determine whether Sanchez’s actions

were reasonable. First, the prosecutor argued during his initial closing:

              The defense counsel will argue that this was a reasonable response
       to extreme emotional distress. You must ask yourself, is it reasonable?
       Was there extreme -- extreme emotional distress? Not just emotional
       distress but extreme emotional distress and was his reaction reasonable.
       You can argue until you’re blue in the face and you cannot make this
       defendant’s actions reasonable under these circumstances.[5] [Emphases
       added.]

Then, during his rebuttal closing, the prosecutor reiterated these misstatements of the law

several more times:



       5
         Not only did the prosecutor misrepresent the law here, he also misrepresented to
the jury what defense counsel would argue. Defense counsel argued the reasonableness
of Sanchez’s explanation or excuse for his claimed extreme mental or emotional stress,
not the reasonableness of Sanchez’s actions under the circumstances.

                                            42
       The Court read you the instructions. The reasonableness of the explanation
       or excuse must be determined from the viewpoint of a reasonable person in
       the actor’s situation. That is, what would a reasonable person do, not what
       the defendant did. The evidence in this case shows you i t was not
       reasonable. And if it’s not reasonable, there goes mitigated deliberate
       homicide.
              ....
              Defense counsel said this is an extremely difficult case. I would
       make no comment on that but I will suggest to you, based on your lifetime
       experiences, was the defendant’s actions reasonable under these
       circumstances? Your lifetime experiences tell you that relationships come
       and go, that people get cheated on in their mind, that they are hurt, that they
       are angry. If i t is reasonable then under those circumstances to kill
       somebody, the streets would be littered with corpses. [Emphases added.]

At this point, defense counsel objected that the prosecutor “is misinterpreting these

instructions over and over again.”      The court responded:      “You may continue with

closing. The objection is overruled.” The prosecutor then stated, yet again:

       The streets would be littered with corpses if it was reasonable to shoot
       somebody because they cheated on you and made you angry. Based on
       your own lifetime experiences you have seen that. You may have been part
       of it. Did you kill somebody? Did somebody kill you, your friends, other
       people? No. That answers the question. This is not a reasonable response
       for a person under these circumstances. [Emphases added.]

¶87    While the Court concludes that these improper statements “tested the boundaries

of professional ethics,” Opinion, ¶ 54, I conclude that the prosecutor crossed those

boundaries. Rule 3.1(a)(1) of the Montana Rules of Professional Conduct provides that

“[a] lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein

. . . without having first determined through diligent investigation that there is a bona fide

basis in law and fact for the position to be advocated” (paragraph break omitted).

Likewise, Rule 3.3(a)(1) prohibits a lawyer from “knowingly . . . mak[ing] a false

statement of . . . law to a tribunal or fail[ing] to correct a false statement of . . . law


                                             43
previously made to the tribunal by the lawyer” (paragraph break omitted). And Rule

4.1(a) prohibits a lawyer from “knowingly . . . mak[ing] a false statement of . . . law to a

third person” (paragraph break omitted).

¶88    Here, there is no legal basis for the version of § 45-5-103(1), MCA, argued by the

prosecutor during closing arguments.       The prosecutor’s statements of the law were

patently false.6 Moreover, as the Court observes, the prosecutor’s comments were not

mere inadvertence. Opinion, ¶ 54. As a matter of fact, if we accept that the prosecutor

followed his duty under Rule 3.1(a)(1) not to advocate a position “without having first

determined through diligent investigation that there is a bona fide basis in law” for that

position, then the inference readily drawn from the record before us is that the prosecutor

knowingly made false statements of law in violation of Rules 3.3(a)(1) and 4.1(a).

¶89    But it is not necessary to draw such an inference. The proposed jury instruction

filed by the prosecutor with respect to the issue of mitigated deliberate homicide

establishes that he was fully aware of the law under § 45-5-103(1), MCA. That proposed

instruction states:

       6
         Although the State makes no attempt to show that the prosecutor correctly stated
the law, the State does argue that the prosecutor’s statements were not improper. The
State suggests that the prosecutor merely improvised, resulting in “syntax left imperfect
and meaning less than crystal clear.” However, I agree with the Court that the State’s
arguments in this regard are incongruous. Opinion, ¶ 54. In fact, the State’s candor to
this Court is questionable in light of its attempt to spin the prosecutor’s misstatements as
nothing more than “ambiguous” remarks, “inartfully spoken” and “not exemplars of
clarity,” but “fair arguments” if not viewed in “distorted isolation.”                These
characterizations are disingenuous at best, given that the prosecutor blatantly
misrepresented the law, not once, but four times in his two closing arguments. The State
legitimately may argue that Sanchez waived his claim of error or was not prejudiced by
the prosecutor’s misstatements; but as to those misstatements, the State has an ethical
duty to candidly concede obvious prosecutorial misconduct.

                                            44
              In order to find the Defendant guilty of the lesser offense of
       mitigated deliberate homicide, the State must prove the following two
       propositions:
          First, that the Defendant caused the death of Aleasha Chenoweth and
          Second, that when the Defendant did so, he acted purposely or
       knowingly;
       Additionally, you must find that at the time the Defendant caused the death
       of Aleasha Chenoweth, he was acting under the influence of extreme mental
       or emotional stress for which there is reasonable explanation or excuse.
       The reasonableness of such explanation or excuse shall be determined from
       the viewpoint of a reasonable person in the Defendant’s situation.
       [Emphasis added.]

The emphasized language is identical to the pertinent language of § 45-5-103(1), MCA.

In other words, the prosecutor correctly recited the language of the statute in his proposed

jury instruction but went to the jury and argued a completely different—and false—

version of the statute.   Given these circumstances, I conclude that the prosecutor’s

improper closing arguments did not merely “test[] the boundaries of professional ethics,”

Opinion, ¶ 54, but instead crossed the boundaries of the Montana Rules of Professional

Conduct and violated the prosecutor’s duties and responsibilities set out in Fletcher.7

¶90    The Court holds that although the prosecutor improperly stated the law to the jury,

Sanchez has not demonstrated that the prosecutor’s misstatements prejudiced his right to

a fair and impartial trial. I disagree. The basic premise underlying the Court’s holding is

that the District Court provided an unambiguous instruction on mitigated deliberate

homicide and the jury followed that instruction. See Opinion, ¶ 58. In this regard, the

       7
          In this regard, I note that in State v. Stewart, 2000 MT 379, 303 Mont. 507, 16
P.3d 391, we chastised this same prosecutor for misrepresenting the State’s burden of
proof during voir dire and closing argument. See Stewart, ¶¶ 35-45. We stated that
although a prosecutor may comment on the burden of proof as it relates to facts presented
in trial, he “may not go outside the record or misrepresent the law as instructed by the
judge.” Stewart, ¶ 40 (emphasis added, citation omitted).

                                            45
Court notes that “juries are presumed to follow the law that courts provide.” Opinion,

¶ 57. This presumption is well-established in American jurisprudence, and I do not

dispute it. However, I do dispute the Court’s assumption that the jury received an

unambiguous instruction on mitigated deliberate homicide.

¶91    Prior to closing arguments, the District Court read Instructions 8 through 19. The

instruction on mitigated deliberate homicide (Instruction 17) accurately conveyed

§ 45-5-103(1), MCA, as follows:

              A person commits the offense of Mitigated Deliberate Homicide
       when the person purposely or knowingly causes the death of another human
       being but does so under the influence of extreme mental or emotional stress
       for which there is reasonable explanation or excuse. The reasonableness of
       the explanation or excuse must be determined from the viewpoint of a
       reasonable person in the actor’s situation.

However, during the prosecutor’s rebuttal closing argument, the following sequence of

events occurred:

              [THE PROSECUTOR:] Defense counsel said this is an extremely
       difficult case. I would make no comment on that but I will suggest to you,
       based on your lifetime experiences, was the defendant’s actions reasonable
       under these circumstances? Your lifetime experiences tell you that
       relationships come and go, that people get cheated on in their mind, that
       they are hurt, that they are angry. If it is reasonable then under those
       circumstances to kill somebody, the streets would be littered with corpses.
              [DEFENSE COUNSEL]: Your Honor, I’m going to have to object
       because he is misinterpreting these instructions over and over again.
              THE COURT: You may continue with closing. The objection is
       overruled.

By overruling defense counsel’s objection that the prosecutor was misinterpreting the

instructions, the District Court effectively endorsed the prosecutor’s statement as to what

the jury had to decide—namely, whether Sanchez’s actions were reasonable. Not content



                                            46
to rest on his laurels, however, the prosecutor then proceeded to repeat this misstatement

of the law:

              [THE PROSECUTOR]: The streets would be littered with corpses if
       it was reasonable to shoot somebody because they cheated on you and
       made you angry. Based on your own lifetime experiences you have seen
       that. You may have been part of it. Did you kill somebody? Did
       somebody kill you, your friends, other people? No. That answers the
       question. This is not a reasonable response for a person under these
       circumstances. This is not extreme emotional distress. Thank you.

Immediately thereafter, the bailiffs were sworn and the jurors began their deliberations.

¶92    It is apparent on this record that the jury received conflicting instructions from the

court on mitigated deliberate homicide. Under Instruction 17, which was given before

closing arguments, the jury was told to decide whether Sanchez, at the time he caused

Aleasha’s death, was under the influence of extreme mental or emotional stress for which

there was reasonable explanation or excuse. But under the version of the law provided by

the prosecutor near the end of his rebuttal closing argument, the jury was told to decide

whether Sanchez’s “actions” themselves were reasonable under the circumstances, i.e.,

whether killing Aleasha was “a reasonable response for [Sanchez] under these

circumstances.”    The District Court explicitly endorsed the prosecutor’s incorrect

articulation of the law when it overruled defense counsel’s objection that the prosecutor

was misinterpreting the instructions.

¶93    A virtually identical situation occurred in State v. Jones, 615 S.W.2d 416 (Mo.

1981), which the Missouri Supreme Court described as follows:

               Three things stand out about the argument in this case: First, the
       prosecutor told the jury [during closing argument] that a “reasonable belief”
       satisfied the requirement of proof beyond a reasonable doubt. . . . Thus, the


                                             47
       prosecutor in this case undertook to define reasonable doubt in wholly
       erroneous terms. Second: The prosecutor’s statement was promptly
       objected to and the objections were overruled, giving the argument the
       imprimatur of the trial court. Third: The prosecutor was not content with a
       passing reference to the subject, but upon the overruling of defense
       objection, proceeded to repeat his erroneous definition of reasonable doubt.

Jones, 615 S.W.2d at 420 (citations omitted). The court reversed the convictions, noting

that while the evidence of guilt was strong, the prosecutor’s misstatements could not be

excused as harmless.

¶94    In the case at hand, the Court reasons that the prosecutor informed the jury that the

attorneys’ closing arguments were not evidence. Opinion, ¶ 57. But the problem here is

not that the prosecutor purported to provide evidence; the problem here is that the

prosecutor purported to state the law of mitigated deliberate homicide and the District

Court gave the prosecutor’s misstatements the imprimatur of the court. The Court also

reasons that the jury was presented with defense counsel’s correct interpretation of the

law.   Opinion, ¶ 57.      But the District Court never endorsed defense counsel’s

interpretation of the law; the court only endorsed the prosecutor’s interpretation of the

law, which was patently false.

¶95    “American jurisprudence depends on a jury’s ability to follow instructions and

juries are presumed to follow the law that courts provide.” Opinion, ¶ 57 (citing State v.

Turner, 262 Mont. 39, 55, 864 P.2d 235, 245 (1993), and Opper v. United States, 348

U.S. 84, 95, 75 S. Ct. 158, 165 (1954)). Accordingly, when the trial court imparts

conflicting versions of the law and thereby inhibits the jury from correctly following the

law, the resulting verdict cannot stand. Indeed, this Court has long recognized that the



                                            48
giving of conflicting jury instructions on a material issue is reversible error. See e.g.

State v. Rolla, 21 Mont. 582, 587, 55 P. 523, 525 (1898); Wells v. Waddell, 59 Mont. 436,

443-44, 196 P. 1000, 1002 (1921); Skelton v. Great Northern Ry. Co., 110 Mont. 257,

261, 100 P.2d 929, 931 (1940); Bohrer v. Clark, 180 Mont. 233, 246, 590 P.2d 117, 124

(1978); Swenson v. Buffalo Bldg. Co., 194 Mont. 141, 151, 635 P.2d 978, 984 (1981). In

Rolla, the Court observed that “when conflicting propositions of law are given upon a

material point, one correct and the other incorrect, the judgment will be reversed. It

cannot be assumed in such case that the jury will follow the correct statement of the law.”

Rolla, 21 Mont. at 587, 55 P. at 525.

¶96    In the case at hand, the jury unquestionably received conflicting statements as to

the law under § 45-5-103(1), MCA: first, the court’s correct instruction that Sanchez’s

explanation or excuse for his extreme mental or emotional stress had to be reasonable,

and second, the prosecutor’s incorrect statement, which received the imprimatur of the

court, that Sanchez’s actions had to be reasonable. Section 45-5-103(1), MCA, carves a

fine line—one that is easily capable of being misunderstood by jurors, particularly when

they receive conflicting statements as to its meaning. Under these circumstances, the

Court’s assumption that the District Court provided an unambiguous instruction on

mitigated deliberate homicide is invalid.

¶97    Before concluding, I note that the Court has imposed on Sanchez a virtually

insurmountable burden to demonstrate that he was prejudiced by the prosecutor’s

misstatements. As the Supreme Court observed in Berger,




                                            49
       the average jury, in a greater or less degree, has confidence that [the
       obligations to govern impartially and to do justice], which so plainly rest
       upon the prosecuting attorney, will be faithfully observed. Consequently,
       improper suggestions, insinuations, and, especially, assertions of personal
       knowledge are apt to carry much weight against the accused when they
       should properly carry none.

Berger, 295 U.S. at 88, 55 S. Ct. at 633. Along these same lines, we observed in State v.

Stringer, 271 Mont. 367, 897 P.2d 1063 (1995), that improper comment by the prosecutor

creates an unacceptable risk that jurors will simply adopt the prosecutor’s views instead

of exercising their own independent judgment. See Stringer, 271 Mont. at 381, 897 P.2d

at 1071. Yet, there is no way that Sanchez can get inside the minds of the jurors in his

case to determine whether this occurred—i.e., whether they rendered their verdict based

on the law as incorrectly stated by the prosecutor and endorsed by the District Court.

Moreover, even if a juror offered insight in this regard, Sanchez is prohibited from using

juror testimony or affidavits to impeach a verdict based upon misapprehension of the law.

See M. R. Evid. 606(b); State v. Kelman, 276 Mont. 253, 262, 915 P.2d 854, 860 (1996).

As it turns out, the District Court’s endorsement of the prosecutor’s incorrect statement of

the law establishes, in my view, that Sanchez was deprived of a fair trial and due process

of law. But one is left to wonder how Sanchez, under the burden imposed by the Court,

otherwise could have demonstrated prejudice as a result of the prosecutor’s

misstatements.

¶98    In this regard, I believe that the Court errs in not weighing the prosecutor’s

misconduct more heavily in the analysis. By refusing to recognize prejudice to Sanchez,

the Court not only affirms the denial of his constitutional rights to due process and a fair



                                            50
trial but also sends the message that there are no adverse consequences to prosecutorial

misconduct of this nature. In my view, if a prosecutor knowingly flaunts the Montana

Rules of Professional Conduct, repeatedly misrepresents the law to the jury, and blatantly

ignores this Court’s admonishment in a prior case not to misstate the law as instructed by

the judge (see ¶ 89 n. 3, supra), these factors should be weighed heavily in determining

whether the defendant was deprived of a fair trial and due process of law.

¶99      That said, the fact that the District Court imparted conflicting versions of

§ 45-5-103(1), MCA, to the jury is itself reversible error. If one accepts the premise that

a jury which is given conflicting propositions of law cannot correctly follow the law, then

the entire foundation of the Court’s resolution of Issue III crumbles, as it should. In light

of the prosecutor’s repeated misstatements of the law and the District Court’s

endorsement of those misstatements, we simply cannot have confidence that the jury was

able to properly consider the lesser included offense of mitigated deliberate homicide.

Cf. State v. Rogers, 2001 MT 165, ¶¶ 14-22, 306 Mont. 130, ¶¶ 14-22, 32 P.3d 724,

¶¶ 14-22 (holding that the defendant was prejudiced because the jury’s ability to consider

the lesser included offense had not been “maximize[d]”). I conclude that Sanchez’s

constitutional rights to a fair trial and to due process of law were clearly violated. I

therefore would reverse and remand this case for a new trial. I dissent from our failure to

do so.

                                          Issue II

¶100 In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), the Supreme

Court announced a categorical bar to the admission of certain hearsay evidence at a


                                             51
criminal trial. Specifically, the Supreme Court held that under the Sixth Amendment to

the United States Constitution, the “testimonial” statement of a witness who is absent

from trial is inadmissible unless the witness is unavailable to testify and the defendant has

had a prior opportunity to cross-examine the witness. See Crawford, 541 U.S. at 53-54,

68, 124 S. Ct. at 1365, 1374. Although the Supreme Court identified three formulations

of what constitutes a testimonial statement, see Crawford, 541 U.S. at 51-52, 124 S. Ct. at

1364, the Supreme Court did not adopt a specific definition, opting instead to define the

term on a case-by-case basis, see e.g. Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266

(2006). However, as this Court notes in ¶¶ 34 and 36 of today’s Opinion, the Supreme

Court has suggested a number of considerations that are pertinent in determining whether

a statement is testimonial—in particular, the statement’s purpose, the statement’s context,

and the audience to whom the statement was made. None of these considerations is

dispositive; rather, they inform the ultimate question of whether the declarant should

have expected, under the circumstances, that the State would use his or her statements at

trial. In other words, would a reasonable person in the position of the declarant have

objectively foreseen or anticipated that h i s or statements might be used in the

investigation or prosecution of a crime? See United States v. Townley, 472 F.3d 1267,

1272 (10th Cir. 2007), cert. denied, ___ U.S. ____, 127 S. Ct. 3069 (2007); United States

v. Cromer, 389 F.3d 662, 675 (6th Cir. 2004).

¶101 I agree with the Court’s explanation of these principles in ¶¶ 34 and 36. I also

agree with the Court’s analysis in ¶¶ 37 and 38 of whether the statements contained in

Aleasha’s note were testimonial. As the Court observes, the nature of the note was


                                             52
accusatory. It identified Aleasha’s killer and the threatened means of execution, and it

stated the exact time and date of Sanchez’s reported threat. It purported to provide “some

answers” regarding a crime that would certainly be prosecuted if sufficient evidence,

such as the note, were available; and in this sense, the note’s obvious purpose was to

speak for Aleasha regarding her unexpected demise should she not be able to speak for

herself, i.e., to provide incriminating testimony that Aleasha could not provide in person.

It was addressed to a broad audience of persons who might be concerned about Aleasha’s

illness or death, and it was placed in a location where law enforcement was likely to find

it. Indeed, the detective who found the note testified that he searched Aleasha’s residence

because he “felt that it was important to go there to look for any notes or written letters,

any diaries, e-mails or just anything that might document some kind of a history,” more

specifically, “[a]ny kind of history of threats [being made to Aleasha].” Not surprisingly,

when he found the note, he immediately recognized its “evidentiary value.”

¶102 The State contends that Aleasha’s note “does not reasonably purport to show an

intent it would be used prosecutorially but only an intent to direct attention (possibly only

medical attention) to the reasons for any suspicious illness.” As the Court observes,

however, this contention completely ignores the accusatory nature of the note. Moreover,

I find it highly implausible that a person who intends to alert medical personnel to the

reasons for a suspicious illness would place such information in a pile of correspondence

and bills where it is not reasonably likely to be discovered by medical personnel in a

timely manner, if at all. In any event, the State’s argument also misapprehends the

pertinent inquiry here, which is not what Aleasha specifically intended but, rather, what


                                             53
an objective declarant reasonably would have expected under the circumstances, Opinion,

¶ 36, i.e., whether Aleasha should have understood (whether she actually did or not) at

the time she wrote the note that there was a significant probability the statements

contained therein would be used prosecutorially. Under the circumstances presented, an

objective declarant in Aleasha’s position would have anticipated that the statements

contained in the note would be used in the investigation and prosecution of Sanchez.

¶103 Accordingly, I agree with the Court’s analysis and conclusion that Aleasha’s note

contained testimonial statements. In addition, I agree with the Court’s conclusion that the

rule of forfeiture by wrongdoing applies in this case. However, I do not agree with the

Court’s explication of this rule.

¶104 In Crawford, the Supreme Court noted that the rule of forfeiture by wrongdoing is

an exception to the Confrontation Clause’s categorical bar against the admission of

testimonial statements.    See Crawford, 541 U.S. at 62, 124 S. Ct. at 1370.           This

exception, the Supreme Court noted, extinguishes confrontation claims on essentially

equitable grounds. See Crawford, 541 U.S. at 62, 124 S. Ct. at 1370; accord Davis v.

Washington, 547 U.S. 813, 126 S. Ct. 2266, 2280 (2006).

¶105 In Davis, the Supreme Court provided further insight into the scope of the

forfeiture-by-wrongdoing exception. Addressing the argument that the nature of the

offense charged in that case—domestic violence—required greater flexibility in the use

of testimonial evidence against the accused, the Supreme Court noted that this particular

type of crime is “notoriously susceptible to intimidation or coercion of the victim to

ensure that she does not testify at trial” and that when this occurs, “the Confrontation


                                            54
Clause gives the criminal a windfall.” Davis, 126 S. Ct. at 2279-80. Notwithstanding,

the Supreme Court held that “[w]e may not, however, vitiate constitutional guarantees

when they have the effect of allowing the guilty to go free.” Davis, 126 S. Ct. at 2280.

¶106 At the same time, however, the Supreme Court noted that the rule of forfeiture by

wrongdoing may extinguish confrontation claims under certain circumstances:

       But when defendants seek to undermine the judicial process by procuring
       or coercing silence from witnesses and victims, the Sixth Amendment does
       not require courts to acquiesce. While defendants have no duty to assist the
       State in proving their guilt, they do have the duty to refrain from acting in
       ways that destroy the integrity of the criminal-trial system. We reiterate
       what we said in Crawford: that the rule of forfeiture by wrongdoing . . .
       extinguishes confrontation claims on essentially equitable grounds. That is,
       one who obtains the absence of a witness by wrongdoing forfeits the
       constitutional right to confrontation.

Davis, 126 S. Ct. at 2280 (ellipsis in original; emphasis, citations, and internal quotation

marks omitted).

¶107 This language—in particular, the Supreme Court’s use of the verb “seek” in

conjunction with “undermin[ing] the judicial process” and “destroy[ing] the integrity of

the criminal-trial system”—as well as the Supreme Court’s refusal to vitiate the right of

confrontation because the charged offense is susceptible to intimidation or coercion of the

victim-declarant indicate that the focus of the forfeiture doctrine is not solely on whether

the defendant may benefit from his own wrongdoing. In other words, not all conduct by

the defendant that happens to result in a witness’s unavailability comes within the

doctrine. Rather, the doctrine is directed specifically at conduct by which the defendant

“seek[s]” or intends “to undermine the judicial process” or “destroy the integrity of the

criminal-trial system” by procuring or coercing silence from witnesses and victims.


                                            55
¶108 This conclusion is substantiated by the Supreme Court’s observation in Davis that

“Federal Rule of Evidence 804(b)(6) . . . codifies the forfeiture doctrine.” Davis, 126

S. Ct. at 2280. Federal Rule 804(b)(6) provides as follows: “The following are not

excluded by the hearsay rule if the declarant is unavailable as a witness: . . . A statement

offered against a party that has engaged or acquiesced in wrongdoing that was intended

to, and did, procure the unavailability of the declarant as a witness” (emphasis added,

paragraph breaks omitted).     Again, according to Davis, this is a codification of the

forfeiture doctrine, Davis, 126 S. Ct. at 2280; and by its own terms, the doctrine requires

an intent to procure the declarant’s unavailability as a witness. Numerous courts have

reached the same conclusion. See State v. Romero, 156 P.3d 694, 702 (N.M. 2007)

(citing cases, and concluding that the majority rule requires proof of an intent to prevent

the declarant from testifying), cert. dismissed, ___ U.S. ___, ___ S. Ct. ___ (Jan 11,

2008); see also People v. Stechly, 870 N.E.2d 333, 348-53 (Ill. 2007) (analyzing the

forfeiture doctrine and Fed. R. Evid. 804(b)(6) and concluding that intent is an element of

the doctrine), rehearing denied (May 29, 2007); People v. Moreno, 160 P.3d 242, 246

(Colo. 2007) (noting that “the clear consensus in non-murder cases is that the doctrine

requires a showing of an intent on the part of the defendant to prevent the declarant from

testifying at trial”), rehearing denied (Jun. 25, 2007); United States v. Gray, 405 F.3d

227, 242 n. 9 (4th Cir. 2005) (“[T]he intent requirement in Rule 804(b)(6) continues to

limit application of the forfeiture-by-wrongdoing exception to those cases in which the

defendant intended, at least in part, to render the declarant unavailable as a witness

against him. Absent such intent, Rule 804(b)(6) has no application.” (citation omitted)).


                                            56
¶109 That said, I recognize that a case such as this—where the defendant has admitted

to deliberately causing the victim’s death through wrongdoing and, thus, causing the

victim’s absence from trial—presents an unusual situation. There is no evidence in the

record that Sanchez sought by this action to undermine the judicial process or to destroy

the integrity of the criminal-trial system. Indeed, there was no “judicial process” to

undermine at the time Sanchez committed the homicide. It would seem, therefore, that

the rule of forfeiture by wrongdoing, as articulated in Davis, is inapplicable. On the other

hand, had Sanchez merely assaulted Aleasha, and had he then caused her absence from

trial by admittedly threatening her, the forfeiture doctrine presumably would have

applied. Thus, we would be rewarding defendants who admittedly killed their victims

through wrongdoing if we did not apply the same rule to them. To avoid this anomaly, I

conclude that where the defendant has admitted to deliberately causing the declarant’s

death through wrongdoing, then the forfeiture-by-wrongdoing exception applies to that

specific declarant’s out-of-court statements.8

¶110 On this basis, I conclude that the admission of Aleasha’s note did not deprive

Sanchez of his right of confrontation. He procured Aleasha’s unavailability by fatally

shooting her, thereby rendering her unavailable as a witness, and he admitted to having

engaged in this wrongdoing deliberately (albeit, with mitigating circumstances).

¶111 The Court reaches the same result; however, in so doing, the Court relies on

principles broad enough to suggest that the forfeiture-by-wrongdoing exception applies


       8
        I would not necessarily apply this rule where there is a justifiable use of force
defense. But since that is not an issue here, I leave that discussion for another day.

                                             57
irrespective of whether the defendant had an intent to procure the declarant’s

unavailability as a witness. It is on this point that I believe the Court errs.

¶112 Throughout the Court’s discussion in ¶¶ 40 through 46, the Court repeatedly refers

to the “equitable basis” of the forfeiture-by-wrongdoing exception and the maxim that

“no person should benefit from the person’s own wrongdoing.” Indeed, this maxim is the

foundation of the Court’s conclusion that Sanchez forfeited his right to confrontation in

this case. See Opinion, ¶¶ 46-47. Yet, while Crawford and Davis refer to the “equitable”

basis of the doctrine, neither opinion states that the doctrine applies broadly to prevent a

defendant from “benefiting” from his own wrongdoing. Moreover, if the forfeiture-by-

wrongdoing exception applied whenever a defendant would otherwise “benefit” from his

own wrongdoing—whether or not that wrongdoing was intended to procure a declarant’s

unavailability as a witness—then the exception most certainly would swallow the rule.

What if the victim-declarant is simply too frightened to face the defendant at trial? Has

the defendant then “benefited” from his wrongdoing and thereby forfeited his right to

confrontation? It would seem so under the broad language used by this Court.

¶113 The Court’s approach of relying on general maxims and principles of equity

contradicts the Supreme Court’s unambiguous statement that “Federal Rule of Evidence

804(b)(6) . . . codifies the forfeiture doctrine,” Davis, 126 S. Ct. at 2280, and the fact that

Fed. R. Evid. 804(b)(6) requires an intent to procure the declarant’s unavailability as a

witness.   The Court seems to dismiss the Supreme Court’s statement in Davis as

“primarily dicta,” Opinion, ¶ 42, and to adopt the California Supreme Court’s broad

reasoning in People v. Giles, 152 P.3d 433 (Cal. 2007), cert. granted, ___ U.S. ___, ___


                                              58
S. Ct. ___ (Jan. 11, 2008), namely, that “ ‘[a] defendant whose intentional criminal act

renders a witness unavailable for trial benefits from his crime if he can use the witness’s

unavailability to exclude damaging hearsay statements by the witness that would

otherwise be admissible,’ ” Opinion, ¶ 43 (quoting Giles, 152 P.3d at 443).           It is

imprudent, however, to so readily dismiss the narrow version of the rule suggested in

Davis in favor of the broad interpretation offered in Giles—particularly since we are

speaking of a constitutional right and since the result of the Court’s broad, sweeping

statements in ¶¶ 40 through 46 to the effect that the doctrine applies to any wrongdoing

by a defendant from which he or she happens to “benefit” will most surely be to render

that constitutional right subject to exception more often than not. In my view, the

defendant’s intent is an element of the forfeiture-by-wrongdoing exception, and the Court

errs to the extent it suggests otherwise.

¶114 In sum, I agree with the Court’s analysis and conclusion that Aleasha’s note

contained testimonial statements. Furthermore, I agree with the Court that the forfeiture-

by-wrongdoing exception applies on the facts of this case. However, I strenuously

disagree with the Court’s suggestion in ¶¶ 40-46 that the exception applies whenever a

person would otherwise benefit from his or her own wrongdoing.

                                            Issue I

¶115 As noted at the outset, I agree with the Court’s resolution of Issue I. However,

because we will, no doubt, confront the matter of adopting the forfeiture-by-wrongdoing

exception to the hearsay rules in some other context, I believe that it is appropriate to

respond briefly to Justice Rice’s arguments on this point (see Concurrence, ¶¶ 65-68).


                                              59
¶116 I respectfully disagree that we should adopt this exception to the hearsay rules,

either by way of our caselaw or by an amendment to the Rules of Evidence. My rationale

is grounded in the nature of hearsay evidence and in the reasons we reject hearsay

evidence as a general rule and admit it, as exceptions to the general rule, only under

narrowly-defined circumstances. Indeed, if the purpose of our courts is to “search for

truth,” Concurrence, ¶ 68, then we ought not to disregard the two elemental principles

underpinning the law of hearsay.

¶117 First, as a general rule, “[h]earsay is not admissible except as otherwise provided

by statute, these rules, or other rules applicable in the courts of this state.” M. R. Evid.

802 (emphasis added). As noted in the Commission Comments to Rule 802, “the rule

that hearsay is inadmissible has been followed in Montana without question since the

early case of Davis v. Blume, 1 Mont. 463, 465 (1872).” This broadly-stated prohibition

reflects the well-settled view that out-of-court statements are presumptively unreliable,

given that the declarant’s perception, memory, and veracity cannot be tested in the

presence of the fact-finder while under oath and subject to cross-examination.           As

explained by the United States Court of Appeals for the Second Circuit:

       The hearsay rule is generally said to exclude out-of-court statements
       offered for the truth of the matter asserted because there are four classes of
       risk peculiar to this kind of evidence: those of (1) insincerity, (2) faulty
       perception, (3) faulty memory and (4) faulty narration, each of which
       decreases the reliability of the inference from the statement made to the
       conclusion for which it is offered. The hearsay rule ordinarily prohibits the
       admission of out-of-court statements by declarants on the theory that cross-
       examination can help test for these four classes of error, thus allowing the
       fact-finder to weigh the evidence properly and to discount any that is too
       unreliable.



                                            60
Schering Corp. v. Pfizer Inc., 189 F.3d 218, 232 (2nd Cir. 1999) (citations omitted); see

also United States v. Shukri, 207 F.3d 412, 417 (7th Cir. 2000) (“Hearsay testimony is

presumptively unreliable under the common law because the opposing party has no

opportunity to cross-examine and test the declarant’s truthfulness under oath before the

factfinder.” (citing 5 John H. Wigmore, Evidence in Trials at Common Law § 1368, at 37,

§ 1420, at 251 (rev. ed. 1974), and McCormick on Evidence § 245, at 728 (Edward W.

Cleary ed., 3d ed., 1984))). The opportunity for the fact-finder to weigh the declarant’s

sincerity, perception, memory, and narration and to discount any testimony that is too

unreliable is lost where that evidence is admitted by way of a third party who simply

repeats the declarant’s statements in court.

¶118 Second—and this principle follows from the first—the exceptions to the general

prohibition against hearsay evidence are grounded in “circumstantial guarantees of

trustworthiness,” M. R. Evid. 804(b)(5), i.e., a consensus that out-of-court statements

made under certain circumstances are sufficiently reliable to allow their admission

notwithstanding the declarant’s absence. See e.g. Commission Comments to M. R. Evid.

803(4) (“The guarantee of trustworthiness [underpinning the statements-for-purposes-of-

medical-diagnosis-or-treatment exception] is provided by the patient’s motivation for

proper diagnosis and treatment.”); Commission Comments to M. R. Evid. 803(6) (“The

guarantee of trustworthiness [underpinning the records-of-regularly-conducted-activity

exception] is provided by the nature of the record and the circumstances of preparation,

enhanced by systematic checking, by regularity and continuity which produce habits of

precision, by actual experience of business in relying upon them, or by a duty to make an


                                               61
accurate record as part of a continuing job or occupation.” (internal quotation marks

omitted)); see also Schering Corp., 189 F.3d at 233 (“[T]he trustworthiness of [the

traditional exceptions to the hearsay rule] is a function of their ability to minimize some

of the four classic hearsay dangers.”).

¶119 In sum, as a general rule, the admission of hearsay evidence is not a reliable and

trustworthy vehicle for finding “truth”; rather, this form of evidence frustrates that search,

which is why Rule 802 exists in the first place. But we admit certain categories of

hearsay testimony where the law has determined, based on historical evidence and

practice, that there are circumstantial guarantees of reliability and trustworthiness built

into these categories of hearsay testimony and that these types of evidence, therefore,

may enhance or further the search for truth.

¶120 The forfeiture-by-wrongdoing exception, however, is not based on any notion of

reliability or trustworthiness. Indeed, the fact that an actor engaged or acquiesced in

wrongdoing that was intended to, and did, procure the unavailability of the declarant as a

witness provides no indication whatsoever as to whether that declarant’s out-of-court

statement is reliable or trustworthy. The statement may be true, or it may be a complete

fabrication. It may be based on accurate information or on a complete misperception of

the events in question. It may be reliable due to one or more of the circumstances that

underlie the other exceptions to the hearsay rule, or it may have no independent and

inherent indicia of reliability and trustworthiness at all. It might, in the first instance,

enhance the search for truth, or it might, in the second, significantly frustrate or obviate

that search altogether.


                                               62
¶121 For these reasons, I disagree that the forfeiture-by-wrongdoing exception serves a

role in the “search for truth.” Rather, application of the exception results in a conclusive

presumption about the truth of a declarant’s out-of-court statement based solely on the

alleged conduct of the accused. More to the point, in most instances, application of the

exception is about punishing the alleged conduct for which the actor is on trial and of

which he or she is presumed innocent; it has nothing to do with facilitating the search for

truth by admitting presumably reliable out-of-court statements.

¶122 We have always examined evidence objected to on hearsay grounds through the

lens of circumstantial guarantees of trustworthiness, and it seems dangerous to me to

eliminate this perspective for an entire category of statements. Once we discard this

analysis for one category of evidence, why not do it for others? I cannot agree with so

readily tossing out our historical litmus test.

¶123 Thus, irrespective of Federal Rule of Evidence 804(b)(6),9 hearsay statements

offered in Montana courts against a party who engaged or acquiesced in wrongdoing that

       9
          This Court has long refused to march lock-step with federal interpretations of
corresponding constitutional provisions. See e.g. State v. Johnson, 221 Mont. 503, 512-
14, 719 P.2d 1248, 1254-55 (1986); Buckman v. Montana Deaconess Hosp., 224 Mont.
318, 324, 730 P.2d 380, 384 (1986); State v. Bullock, 272 Mont. 361, 383-84, 901 P.2d
61, 75-76 (1995); Ranta v. State, 1998 MT 95, ¶ 25, 288 Mont. 391, ¶ 25, 958 P.2d 670,
¶ 25; Woirhaye v. District Court, 1998 MT 320, ¶ 14, 292 Mont. 185, ¶ 14, 972 P.2d 800,
¶ 14. Montana also does not march lock-step with federal procedural and evidentiary
rules. See e.g. Table C, Montana Rules of Evidence Differing from Federal Rules of
Evidence, Title 26, Chapter 10, MCA (Annotations 2006). Likewise, the mere fact that
the federal government has adopted the forfeiture-by-wrongdoing exception in the
Federal Rules of Evidence is not itself a principled ground for adopting the exception as
part of the Montana Rules of Evidence. Contrary to Justice Rice’s concurrence, this is
not to say that “consideration” of the approaches taken by the federal government and our
sister states is unprincipled. Concurrence, ¶ 66 n. 1. Rather, it is to say that wholesale
adoption of the exception merely because others have done so would be unprincipled.

                                              63
was intended to, and did, procure the unavailability of the declarant as a witness must

continue to be evaluated on a case-by-case basis under existing hearsay law. If the

statement offered is hearsay, then it should not be admitted absent the statement’s falling

under one of those narrow hearsay exceptions that is historically grounded in independent

and inherent indicia of reliability and trustworthiness. The rules of evidence must remain

a neutral medium which facilitate the search for truth; they must not become instruments

of punishment.

                                       Conclusion

¶124 Based on my analysis under Issue III, I conclude that this case should be reversed

and remanded for a new trial. I dissent from the Court’s contrary decision. As to Issue

II, I agree with the Court’s analysis and conclusion that Aleasha’s note contained

testimonial statements, and I agree with the Court that the forfeiture-by-wrongdoing

exception applies to Sanchez’s confrontation claims; however, I reach the latter

conclusion concerning the applicability of the forfeiture-by-wrongdoing exception on a

narrower ground than the rationale underlying the Court’s decision.

                                                 /S/ JAMES C. NELSON
                                                 /S/ PATRICIA COTTER



Chief Justice Karla M. Gray, dissenting.

¶125 I join Justice Nelson’s dissent on Issue III and would reverse and remand for a

new trial on that basis. Like Justice Nelson, it is my view that, if the Court reached the




                                            64
correct result on this issue, there would be no need to address the others. Because various

views on Issues I and II are offered by others, I will do so as well, but only briefly.

¶126 On Issue I, I would not adopt the forfeiture by wrongdoing exception to the

hearsay rules for the reasons expressed by Justice Nelson.            This is a matter best

considered on a case-by-case basis, at least until such time as we have sufficient

experience with the doctrine here in Montana to consider it more knowledgeably.

¶127 On Issue II, I join Justice Rice’s analysis of whether Aleasha’s note is testimonial.

I would conclude it is not testimonial, for the reasons so cogently stated by Justice Rice.

I also believe Aleasha’s lack of fear or concern through the course of events which

occurred in this case—that is, the several threats and going out to Sanchez’s vehicle on

the very day she was killed—buttresses that analysis.

¶128 Moreover, I have grave concerns about the forfeiture by wrongdoing doctrine in

certain cases. In this regard, I agree with Justice Nelson that forfeiture by wrongdoing

should not apply in a deliberate homicide case involving the defense of justifiable use of

force (that is, self-defense).   It also is my view, however, that the doctrine is not

applicable in this case where the defense of mitigated deliberate homicide is asserted.

¶129 I understand full well the notion and maxim that no one should benefit by his or

her wrong. Indeed, that maxim underlies many legal subject areas, including fraudulent

inducement in entering—and tortious interference with—a contract, and most other

situations in which a party comes to a court without clean hands. It may well be that

forfeiture by wrongdoing should apply as well in certain criminal cases, but I would not

apply it here.


                                              65
¶130 A bedrock principle of criminal law in this country is the constitutional right to

confront one’s accusers. Another is the requirement that the prosecution prove its case

beyond a reasonable doubt. Another—perhaps the most—bedrock principle of criminal

law is the presumption of innocence. It is difficult for me to embrace the notion that an

“equitable” basis such as forfeiture by wrongdoing can sweep away one’s constitutional

confrontation rights. Indeed, it strikes me that—in a case such as this where the defense

is to admit that the offense was committed but to offer the defense of mitigation—the

opportunity to reasonably present the defense is effectively trumped by the admission of

evidence that repeatedly highlights the wrongdoing. Thus, while the Court is correct,

¶ 47, that it is the purposeful causing of the death of another which prevents the ability to

exercise the right to confront the deceased, the purposeful death was not committed for

the purpose of avoiding the confrontation. Stated differently, had there been a homicide

for the purpose of preventing the victim from testifying or assisting in a criminal

prosecution, I would agree that forfeiture by wrongdoing properly would apply; other

factual situations might also support application of the doctrine. I cannot join the Court

in applying it here.

¶131 I would reverse and remand for a new trial on prosecutorial misconduct in this

cause number.

                                                  /S/ KARLA M. GRAY




                                             66
