                                          No. 03-563

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2005 MT 87


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

ZANE CARTER,

              Defendant and Appellant.



APPEAL FROM:         District Court of the Eighth Judicial District,
                     In and for the County of Cascade, Cause No. BDC 2002-319
                     The Honorable Julie Macek, Judge presiding.



COUNSEL OF RECORD:

              For Appellant:

                     Carl B. Jensen Jr., Public Defender Office, Great Falls, Montana

              For Respondent:

                     Honorable Mike McGrath, Montana Attorney General, John Paulson,
                     Assistant Attorney General, Helena, Montana; Brant S. Light, Cascade
                     County Attorney, Marty Judnich, Deputy County Attorney, Great Falls,
                     Montana



                                                       Submitted on Briefs: December 8, 2004

                                                                   Decided: April 5, 2005


Filed:



                      __________________________________________
                                            Clerk
Justice James C. Nelson delivered the Opinion of the Court.
1      Zane Carter (Carter) appeals from the judgment entered by the District Court of the Eighth

Judicial District, Cascade County, on a jury verdict finding him guilty of the offense of driving while

under the influence of alcohol (DUI). We affirm.

2      On appeal, we address the following issues:

3      1. Is Carter’s appeal properly before this Court?

4      2. In a criminal trial for DUI, is the Sixth Amendment right to confront witnesses implicated

when the State introduces a certification report for a breath analysis instrument without also

providing the author of the report for cross-examination?

                      FACTUAL AND PROCEDURAL BACKGROUND

5      Carter was driving through Great Falls on May 14, 2002, when he was pulled over by Officer

Michael Reddick of the Montana Highway Patrol. Officer Reddick stopped Carter after seeing him

drive recklessly near a group of pedestrians. When Carter exited his vehicle, Officer Reddick

noticed the odor of alcohol on him. Because Reddick was about to go off duty, he turned the matter

over to Officer Robert Armstrong of the Montana Highway Patrol, who had also observed Carter’s

reckless driving. Armstrong also noticed the smell of alcohol on Carter.

6      Carter was arrested after he failed the field sobriety tests administered by Officer Armstrong.

Carter consented to a breath alcohol test, which was administered with the Intoxilizer 5000. The

test registered a result of .210. Carter was charged with one count of misdemeanor DUI, one count

of misdemeanor failure to carry proof of liability insurance, and one count of misdemeanor driving

with a suspended license. After a jury trial in Cascade County Justice Court on July 23, 2002, Carter

was convicted on all three counts. Carter appealed to the District Court. Subsequently, the charge

of driving with a suspended license was dismissed.

                                                  2
7       At Carter’s District Court jury trial on May 29, 2003, the State introduced three certification

reports in order to demonstrate that the Intoxilizer 5000 was working properly when it was used to

test Carter. First, the State introduced two weekly field certification reports. One was prepared by

Deputy Troy Leasure, of the Cascade County Sheriff’s Department. The other was prepared by

Deputy Kenneth Wienheimer, also of the Cascade County Sheriff’s Department. Then, the State

introduced the yearly certification report prepared by Benny Better of the Montana State Crime Lab.

After testifying that he was the senior operator for the Intoxilizer 5000, Deputy Leasure testified

that each of these reports indicated that the machine had tested within the acceptable range for

certification.

8       Carter objected to the admission of the weekly field certification report prepared by Deputy

Wienheimer, arguing that it was hearsay because Wienheimer was not present to testify. Carter also

objected to the admission of the yearly certification report prepared by the Montana State Crime

Lab, arguing that it was hearsay because the author was not present to testify. Finally, Carter

objected to the admission of the Montana State Crime Lab report on the grounds that the State had

failed to provide the necessary foundation. In support of this objection, Carter argued the State

needed to demonstrate that the author fully understood the inner workings of the Intoxilizer 5000.

The District Court admitted both reports over Carter’s objections.

9       Carter was convicted of misdemeanor DUI and misdemeanor failure to carry proof of

liability insurance. Carter appeals his DUI conviction and requests a new trial on the grounds that

the admission of the weekly and yearly certification reports is a violation of his Sixth Amendment

confrontation right.

                                           DISCUSSION



                                                  3
                                               Issue 1.

10     Is Carter’s appeal properly before this Court?

11     Because Carter asserts a legal theory that was not raised at trial, the threshold issue is

whether this Court should consider the merits of his argument. As noted above, Carter objected to

the admission of two certification reports which the State proffered to demonstrate that the

Intoxilizer 5000 was working properly when it was used to test him. One of these reports was a

weekly field certification prepared by Deputy Wienheimer. The other was a yearly certification

prepared by the Montana State Crime Lab. The District Court admitted both reports over Carter’s

hearsay objections.

12     Carter’s appeal focuses on these same two pieces of evidence, but he no longer stands by his

original hearsay objections. Instead, he now asserts a theory that was not available to him at trial.

Carter’s argument is based on Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, 158

L.Ed.2d 177, which established a new constitutional rule of criminal procedure while Carter’s case

was on direct appeal before us. Carter now argues that admission of the certification reports, when

the authors are not present for cross-examination, is a violation of the Confrontation Clause of the

Sixth Amendment to the United States Constitution pursuant to Crawford. Further, Carter argues

that Crawford should be applied retroactively in his case, pursuant to State v. Whitehorn, 2002 MT

54, 309 Mont. 63, 50 P.3d 121, and that retroactive application mandates a new trial wherein he is

entitled to confront the authors of these certification reports regarding the procedures they used to

maintain the Intoxilizer 5000. In response, the State suggests that we decline review of Carter’s

Sixth Amendment claim because his objections at trial were not based on his right of confrontation.

In supporting this position, the State cites the firmly established rule that a party may not raise new



                                                  4
arguments or change its legal theory on appeal. State v. Heath, 2004 MT 58, ¶ 39, 320 Mont. 211, ¶

39, 89 P.3d 947, ¶ 39.

13     While we generally do not consider arguments first raised on appeal, our precedent clearly

establishes that review of such arguments is proper in certain circumstances. We have stated:

       [T]he general rule is that issues brought before this Court for the first time on appeal

       will not be considered. [Citation omitted.] However, this Court “reserves to itself

       the power to examine constitutional issues that involve broad public concerns to

       avoid future litigation on a point of law.” Even if an issue is raised for the first time

       on appeal this Court can hear the issue “if the alleged . . . error affects the substantial

       rights of a litigant.”

Cottrill v. Cottrill Sodding Serv. (1987), 229 Mont 40, 42, 744 P.2d 895, 896 (quoting Matter of N.B.

(1980), 190 Mont. 319, 323, 620 P.2d 1228, 1231). Due to our commitment to the general rule

against raising new arguments on appeal, we do not often utilize the Cottrill rationale, the plain error

doctrine, or other precedents which allow us to review arguments first raised on appeal. However,

our commitment to that general rule does not negate our overriding obligation to acknowledge and

protect the substantial rights of litigants. This overriding obligation is well reflected in the firmly

established Cottrill exception to the general rule.

14     Other precedent issued from this Court provides further rationale for departing from the

general rule in certain circumstances. In Kudrna v. Comet Corp. (1977), 175 Mont. 29, 572 P.2d

183, we considered an issue that was not raised below, noting that by doing so we did not repudiate

the requirement that timely and specific objections be raised at trial. We observed that “[i]f the court

were limited to the arguments and reasoning of counsel in its decisions of cases, to the exclusion of



                                                   5
its own observations, many cases would lead us far from what we understand to be the true object of

the court.” Kudrna, 175 Mont. at 51, 572 P.2d at 195 (quoting Big Creek Stone Co. v. Seward

(Ind. 1896), 43 N.E. 5, 5). We also stated that “[w]here resort to the record is necessary, the case

will be determined by the record, and in such a case the court will not regard itself as bound down to

the conceptions of counsel on either side as to the nature of the controlling facts.” Kudrna, 175

Mont. at 51, 572 P.2d at 195 (quoting Cleveland, Cinc., Chic. & St. Louis Ry. Co. v. Moore (Ind.

1908), 84 N.E. 540, 540). Hence, it is evident that in the same way which we are not bound to

render decisions based solely on the reasoning offered by appellate counsel, our review is not

necessarily restricted by trial counsel’s failure to preserve a specification of error for appeal.

15     We have previously encountered an appeal similar to the one we face here. In State v. Hardy

(1980), 185 Mont. 130, 604 P.2d 792, the defendant contested for the first time on appeal a jury

instruction given at his trial because that instruction was later declared unconstitutional by the

United States Supreme Court. Hardy, 185 Mont. at 137, 604 P.2d at 797. Because the instruction

was declared unconstitutional while the defendant’s appeal was pending, we reviewed the

defendant’s argument even though it was not raised at trial. Hardy, 185 Mont. at 137-38, 604 P.2d

at 797. Hardy thus provides a basis for considering an argument first raised on appeal where that

argument is based on a new constitutional rule of criminal law established during the appeal. Here,

Carter’s predicament is similar to that of the defendant in Hardy, in that Carter had no opportunity to

make a timely confrontation argument based on Crawford because that case was decided more than

nine months after his trial.

16     Returning to the Cottrill exception, we note that it is well established by its use in recent

years to justify review of constitutional claims not raised at the lower court. In Eastman v. Atlantic



                                                  6
Richfield Co. (1989), 237 Mont. 332, 337, 777 P.2d 862, 865, we invoked the exception to review

two untimely constitutional challenges to the Occupational Disease Act. More recently, in In the

Petition to Transfer Territory, 2000 MT 342, ¶ 11, 303 Mont. 204, ¶ 11, 15 P.3d 447, ¶ 11, we

invoked the exception to consider the constitutionality of a statute giving authority to county

superintendents of schools to grant or deny petitions to transfer territory among school districts.

17     Our review of the record in Carter’s case leads us to conclude that this appeal contains the

elements necessary for invoking the Cottrill exception. The substantial right at issue here is Carter’s

Sixth Amendment right to confront witnesses against him. By reviewing the merits of Carter’s

argument we can avoid future litigation on the issue of whether certification reports for breath

testing instruments represent “testimonial” hearsay which triggers the protections of the Sixth

Amendment’s Confrontation Clause. Finally, broad public concern is implicated by Carter’s

contention that the State is obligated to provide State Crime Lab personnel at DUI trials to testify

regarding the certification reports. As such, we conclude that review of Carter’s argument is proper

pursuant to Cottrill, Kudrna, and Hardy.

18     Finally, we observe that appellate review of Carter’s argument flows logically from the

requirements of retroactivity law. Once a new constitutional rule of criminal procedure is applied to

the defendant in the case announcing the rule, evenhanded justice requires that it be applied

retroactively to all who are similarly situated. State v. Goebel, 2001 MT 155, ¶ 16, 306 Mont. 83, ¶

16, 31 P.3d 340, ¶ 16 (citing Teague v. Lane (1989), 489 U.S. 288, 300, 109 S.Ct. 1060, 1070, 103

L.Ed.2d 334). Thus, we apply new constitutional rules of criminal procedure retroactively to cases

pending on direct review or not yet final on the date of the new ruling. Goebel, ¶¶ 14-17 (citing

Griffith v. Kentucky (1987), 479 U.S. 314, 326-27, 107 S.Ct. 708, 715-16, 93 L.Ed.2d 649). As



                                                  7
noted above, Crawford announced a new constitutional rule of criminal procedure while Carter’s

case was pending on direct review before this Court. Carter argues that Crawford is applicable to

his case and, had it been decided at the time, Crawford would have dictated the use of different

procedures at his trial. If Crawford is in fact applicable here, Carter is entitled to retroactive

application of the new rule established therein. Thus, to determine whether the new rule enunciated

in Crawford should be applied retroactively in this case, we must examine Carter’s argument. The

Cottrill exception allows us to reach the merits of Carter’s claim and determine whether the new rule

of Crawford applies here.

19     In summary, we reiterate our commitment to the general rule against raising new arguments

on appeal. At the same time, however, we are compelled to take into account the unique

circumstances of Carter’s appeal with respect to the recent development in Confrontation Clause

jurisprudence. Strict adherence to the general rule, in spite of Carter’s inability to timely raise the

Crawford argument, is not appropriate here. As we observed in Kudrna, such an approach could

occasionally “lead us far from what we understand to be the true object of the court.” Kudrna, 175

Mont. at 51, 572 P.2d at 195. Ultimately, our decision to review Carter’s argument harmonizes well

with our previous invocations of the Cottrill exception.



                                               Issue 2.

20     In a criminal trial for DUI, is the Sixth Amendment right to confront witnesses implicated
when the State introduces a certification report for a breath analysis instrument without also
providing the author of the report for cross-examination?

21     In determining whether the procedure followed at Carter’s trial complies with the Sixth

Amendment, we address a question of constitutional law. We exercise plenary review of questions



                                                  8
of constitutional law. Pickens v. Shelton-Thompson, 2000 MT 131, ¶ 7, 300 Mont. 16, ¶ 7, 3 P.3d

603, ¶ 7.

22     The Sixth Amendment to the United States Constitution provides that, “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”

This procedural guarantee, the Confrontation Clause, applies to both federal and state prosecutions.

Pointer v. Texas (1965), 380 U.S. 400, 406, 85 S.Ct. 1065, 1069, 13 L.Ed.2d 923. The ultimate goal

of the Confrontation Clause is to ensure the reliability of evidence “by testing in the crucible of

cross-examination.” Crawford, 541 U.S. at 61, 124 S.Ct. at 1370.

23     As noted above, Carter’s argument is based on Crawford, a case that was born out of the

inherent tension between the Confrontation Clause and exceptions to the general evidentiary rule

against admitting hearsay at trials. In Crawford, the Court overruled its prior interpretation of the

Confrontation Clause established in Ohio v. Roberts (1980), 448 U.S. 56, 100 S.Ct. 2531, 65

L.Ed.2d 597. Crawford, 541 U.S. at 68, 124 S.Ct. at 1374. Roberts held that an unavailable

witness’s out-of-court statement may be admitted at trial against a criminal defendant so long as it

has adequate indicia of reliability--i.e., falls within a “firmly rooted hearsay exception” or bears

“particularized guarantees of trustworthiness.” Roberts, 448 U.S. at 66, 100 S.Ct. at 2539. In

rejecting this approach, Crawford observed that reliability is an amorphous concept and stated that

the Roberts framework “is so unpredictable that it fails to provide meaningful protection from core

confrontation violations.” Crawford, 541 U.S. at 63, 124 S.Ct. at 1371.

24     In Crawford, the Court reviewed historical developments underlying the meaning of the

Confrontation Clause and, for the first time, distinguished “testimonial” and “nontestimonial” out-

of-court statements. Crawford, 541 U.S. at 51-52, 124 S.Ct. at 1364. The Court held that



                                                  9
testimonial out-of-court statements are not admissible at trial under the Confrontation Clause, unless

the declarant is unavailable and the defendant had a prior opportunity for cross-examination.

Crawford, 541 U.S. at 68, 124 S.Ct. at 1374.

25      While declining to spell out a comprehensive definition of the term “testimonial,” the Court

held:

        Whatever else the term covers, it applies at a minimum to prior testimony at a
        preliminary hearing, before a grand jury, or at a former trial; and to police
        interrogations. These are the modern practices with closest kinship to the abuses at
        which the Confrontation Clause was directed.

Crawford, 541 U.S. at 68, 124 S.Ct. at 1374. The Court also observed that not all hearsay evidence

implicates the Sixth Amendment’s core concerns. Crawford, 541 U.S. at 51, 124 S.Ct. at 1364.

Consequently, Crawford held that where nontestimonial hearsay is at issue, States are allowed

flexibility in the development of their hearsay law. Crawford, 541 U.S. at 68, 124 S.Ct. at 1374.

26      In the present case, Carter requests a new trial based on Crawford’s new interpretation of the

Confrontation Clause. Specifically, Carter argues that the certification reports admitted at his trial

are properly categorized as testimonial hearsay pursuant to Crawford, and thus, admission of such

reports is a violation of the Confrontation Clause when the authors are not present for

cross-examination. Further, Carter argues that because a constitutional right is at issue in this case,

Crawford should be applied retroactively. Finally, Carter argues that retroactive application of

Crawford requires a new trial wherein he is entitled to confront the authors of the two contested

certification reports regarding the procedures they used to maintain the Intoxilizer 5000.

27      The State contends that the procedure followed at Carter’s trial was in compliance with the

new rule of Crawford. The State’s argument is based on State v. Delaney, 1999 MT 317, 297 Mont.

263, 991 P.2d 461, a DUI case where the State introduced a yearly certification report for the

                                                  10
Intoxilizer 5000 in order to establish foundation for the admission of breath test results. Delaney, ¶

10. The defendant in that case, Robert Delaney, argued that his constitutional right to confront

witnesses was violated when the State introduced the certification report without also presenting the

author of the report for cross-examination. Delaney, ¶ 17. We held that Delaney had not established

a violation of his confrontation right because the annual certification report was not substantive

evidence used to prove the charged DUI offense, but it merely provided the foundation necessary for

the admission of substantive evidence. Delaney, ¶ 18.

28     In Delaney, we distinguished State v. Clark, 1998 MT 221, 290 Mont. 479, 964 P.2d 766,

wherein we held that the hearsay exception in Rule 803(8), M.R.Evid., which allowed admission of

a state crime laboratory report into evidence without the testimony of the compiler of the report, was

unconstitutional because it violated the defendant’s right to confrontation. Clark, ¶ 25. Delaney

relied on Clark in arguing that his confrontation right had been violated. Delaney, ¶ 17. Delaney

contended that at his trial the State had offered the annual certification report as a state crime

laboratory report pursuant to language in Rule 803(6), M.R.Evid., which is identical to the portion of

Rule 803(8) held unconstitutional in Clark, and as a result, his right to confrontation was violated in

the same manner as the defendant’s in that case. Delaney, ¶ 17. In distinguishing Clark, we

explained in Delaney that the evidence offered under the state crime laboratory report hearsay

exception in Clark was a report of the chemical analysis of alleged drugs taken from the defendant

when he was arrested. Delaney, ¶ 18. That chemical analysis was a critical part of the substantive

evidence offered by the prosecution to prove that the defendant had committed the offense of

criminal possession of dangerous drugs. Clark, ¶ 24. Thus, we concluded in Clark that failing to

call the compiler of the chemical analysis report violated the defendant’s right to confront his



                                                  11
accusers. Clark, ¶ 25. More importantly for this case, in Delaney we explained that Clark was

distinguishable from Delaney’s situation because the annual certification report used in Delaney was

not accusatory in the same manner as the chemical analysis in Clark. Delaney, ¶ 18. Finally, we

concluded that because the certification report used in Delaney was not offered or admitted pursuant

to the state crime laboratory hearsay exception, Clark was inapplicable. Delaney, ¶ 19.

29       Our decision in this case turns on the issue of whether the certification reports are properly

categorized as testimonial or nontestimonial evidence. Carter contends that testimonial evidence

includes “statements that were made under circumstances which would lead an objective witness

reasonably to believe that the statement would be available for use at a later trial.” Crawford, 541

U.S. at 52, 124 S.Ct. at 1364. Based on this definition, Carter contends that the certification reports

at issue here are properly categorized as testimonial evidence because they were created for use at

trial.

30       We observe that while Crawford did mention the above definition for testimonial evidence, it

did so only in noting various proposed formulations of the core class of statements with which the

Confrontation Clause is concerned. Crawford, 541 U.S. at 51-52, 124 S.Ct. at 1364. Crawford also

mentioned the following formulations: ex parte in-court testimony or its functional equivalent,

meaning material such as affidavits, custodial examinations, prior testimony that the defendant was

unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be

used prosecutorially; and, extrajudicial statements contained in formalized testimonial materials,

such as affidavits, depositions, prior testimony, or confessions. Crawford, 541 U.S. at 51-52, 124

S.Ct. at 1364. However, Crawford did not adopt any of the above definitions, and declined to




                                                  12
articulate a precise definition for testimonial evidence. Crawford, 541 U.S. at 68, 124 S.Ct. at 1374.



31      Ultimately, Crawford designated only four kinds of statements as testimonial: prior

testimony given at a preliminary hearing, before a grand jury, or at a former trial, and statements

gleaned from police interrogations. Crawford, 541 U.S. at 68, 124 S.Ct. at 1374. Similarly, we will

not attempt to articulate a precise definition of testimonial evidence. We will only determine

whether the evidence at issue here is properly categorized as testimonial or nontestimonial.

32      The State argues that the certification reports used at Carter’s trial are nontestimonial

evidence because they do not fall within the core group of statements which the Confrontation

Clause was meant to address, and thus do not implicate Carter’s right of confrontation. We agree.

As we stated in Delaney, such certification reports are not substantive evidence of a particular

offense, but rather are foundational evidence necessary for the admission of substantive evidence.

Delaney, ¶ 18. In other words, the certification reports are nontestimonial in nature in that they are

foundational, rather than substantive or accusatory.         In the same way that the defendant’s

confrontation right was not implicated in Delaney, Carter’s confrontation right was not implicated

by the use of these certification reports, despite the fact that the authors of the reports were not

present to testify and be confronted.

33      That is not to say, however, that the authors of these certification reports may never be called

to testify in person. If, in a given case, the defendant’s pretrial investigation reveals that the reports

are in error or are otherwise subject to attack, the defendant is always free to subpoena the authors

for purposes of testifying at a hearing on a timely filed motion to suppress evidence or at trial for

impeachment purposes.



                                                   13
34     Crawford established that where nontestimonial hearsay is at issue, the United States

Constitution affords the States flexibility in forming their hearsay law, and such evidence may be

exempted from Confrontation Clause scrutiny. Crawford, 541 U.S. at 68, 124 S.Ct. at 1374. Thus,

we adhere to the rationale of Delaney and hold that the nontestimonial pieces of evidence at issue

here, the weekly and yearly certification reports for the Intoxilizer 5000, do not implicate Carter’s

constitutional right of confrontation. Therefore Carter is not entitled to a new trial.

35     Affirmed.

                                                                            /S/ JAMES C. NELSON


We Concur:


/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
/S/ PATRICIA O. COTTER




                                                 14
Justice W. William Leaphart specially concurring.

36     I concur in the result reached in this case.

37     The functional difference between the hearsay rule and the Confrontation Clause has to do

with the type of out-of-court statements addressed by each. While the hearsay rule is concerned with

all out-of-court statements, “not all hearsay implicates the Sixth Amendment’s core concerns.”

Crawford, 541 U.S. at___, 124 S.Ct. at 1364, 158 L.Ed.2d at 192. In Crawford, the United States

Supreme Court explained that the Confrontation Clause is concerned with “testimonial statements”

made by those who are “witnesses against” the accused, or those who “bear testimony.” Crawford,

541 U.S. at ____, 124 S. Ct. at 1364, 158 L.Ed.2d at 192. In other words, the Confrontation Clause

does not reach “nontestimonial” hearsay.

38     In the present case, we conclude that, since certification reports are non-substantive and non-

testimonial in nature, a more specific Confrontation Clause objection was necessary.

39     I would not, however, necessarily require this degree of specificity under all circumstances.

For example, in a case involving a substantive out-of-court statement against the accused, defense

counsel could make a colorable argument that a hearsay objection to the statement would double as a

Confrontation Clause objection, since, under those circumstances, the hearsay rule is protecting the

same values as the Confrontation Clause– i.e., excluding out-of-court testimonial statements by

those who bear witness against the accused.

                                                      /S/ W. WILLIAM LEAPHART




                                                 15
Chief Justice Karla M. Gray, dissenting.


40     I respectfully dissent from the Court's determination that Carter's appeal is properly before

us. Nor do I agree with the Court that the theory now advanced was not “available” to him at trial. I

would hold the appeal is not properly before us and, on that basis only, affirm the District Court.

41     As the Court properly observes, Carter's counsel asserted hearsay objections to the evidence

at issue during his trial. He has now abandoned those objections and raises a new theory on appeal.

As the Court also properly observes, we generally do not consider arguments first raised on appeal.

We should follow that longstanding general rule here.

42     Instead, the Court first begins by stating Carter's Confrontation Clause argument was not

available at trial, and goes on to note that the argument is based on the U.S. Supreme Court's recent

Crawford decision. It is true that the Crawford decision was not available during Carter's trial. That

does not, however, equate to the argument being unavailable. Confrontation Clause arguments

pursuant to the Sixth Amendment to the United States Constitution have been available since that

Clause became applicable to the states via the Fourteenth Amendment. Equating the unavailability

of a particular court decision to the unavailability of the Sixth Amendment argument simply enables

counsel to neglect consideration of available constitutional challenges until such time as another

lawyer has had the foresight to make such an argument in her or his case, and then piggyback onto

the other lawyer's sound thinking and resulting success. I am not persuaded the Court is wise in

encouraging such conduct by Montana lawyers in representing defendants in criminal cases.

43     Moreover, I am very concerned over how far afield the Court had to search in order to

determine this appeal is properly before us. It cites to a number of "ways out" of the general rule,

such as the "exceptions" in the civil cases of Cottrill, Kudrna, Eastman and Petition to Transfer.



                                                 16
The Court does not clearly point out that those were civil cases--and understandably so, since

different "exceptions" apply in the criminal case arena.

44      Indeed, the two most common "exceptions" to the general rule of no new theories on appeal

in criminal cases are § 46-20-701, MCA, and the common law "plain error" doctrine we apply very

sparingly. See State v. Finley (1996), 276 Mont. 126, 915 P.2d 208, overruled on other grounds by

State v. Gallagher, 2001 MT 39, ¶ 21, 304 Mont. 215, ¶ 21, 19 P.3d 817, ¶ 21. The Court does not

mention these authorities for occasionally allowing a criminal defendant on appeal to raise a new

theory. The reason the Court avoids these approaches, and searches out others, may be that Carter

does not raise these either.

45      In fairness, I note that the Court advances Hardy, a criminal case, as an appeal "similar" to

the one we face here. The Court includes only a few sweeping statements about Hardy in its

opinion. In fact, no basis at all is set forth in Hardy for the decision to "review th[e] alleged error"

raised for the first time on appeal.

46      The only basis on which Carter relies in requesting that he be permitted to raise the

Confrontation Clause issue from Crawford is our decision regarding retroactivity in State v.

Whitehorn, 2002 MT 54, 309 Mont. 63, 50 P.3d 121. Again, the Court does not rest its analysis of

why this appeal is properly before us on that sole case cited by Carter; one can only speculate about

why. Instead, the Court advances Goebel, a case which predated Whitehorn, as support for its

observation that appellate review of Carter's argument "flows logically from" the requirements of

retroactivity. Does the Court mean that retroactivity law requires review of Carter's argument? If

so, the Court should clearly state why that is so. If not, what precise basis is the Court advancing for

its conclusion that we "are compelled" to take into account the "unique" circumstances of the appeal

before us with respect to "the recent development in Confrontation Clause jurisprudence."


                                                  17
47     Perhaps the broadest--and most frightening--statement the Court makes in searching for a

"way out" in the present case is the following:

       [I]t is evident that in the same way which we are not bound to render decisions based
       solely on the reasoning offered by appellate counsel, our review is not necessarily
       restricted by trial counsel's failure to preserve a specification of error for appeal.

No authority is cited for this statement. But a fair reading makes it clear that the Court intends to

recognize no bounds in reaching an issue it wants to reach at any time and in any case. I suspect this

unsupported statement will be quoted in future cases when the Court does not wish to conduct itself

within any applicable parameters.

48     The Court having failed to set forth an adequate basis--from applicable cases--for its decision

that Carter's appeal is presently before us, I dissent from its conclusion in that regard and would not

address the issue raised.

                                                       /S/ KARLA M. GRAY

Justice Jim Rice joins in the foregoing dissenting opinion of Chief Justice Gray.


                                                       /S/ JIM RICE




                                                  18
