December 31 2008
DA 08-0159
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 458N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
CAROL FOSTER-DeBERRY,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. BDC 2007-016
Honorable Julie Macek, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jim Wheelis, Chief Appellate Defender, Helena, Montana
For Appellee:
Hon. Mike McGrath, Montana Attorney General, Tammy Plubell,
Assistant Attorney General, Helena, Montana
Brant S. Light, Cascade County Attorney, Joel Thompson,
Great Falls, Montana
Submitted on Briefs: December 24, 2008
Decided: December 31, 2008
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court and its case title, Supreme Court cause number, and disposition shall be included in
this Court’s quarterly list of noncitable cases published in the Pacific Reporter and
Montana Reports.
¶2 The State charged Carol Foster-DeBerry in January 2007 in the Eighth Judicial
District Court, Cascade County, with criminal distribution of dangerous drugs
(methamphetamine), a felony, in violation of § 45-9-101, MCA (2005). The State
initially gave notice that it intended to call Judith Hoffman, a chemist with the Montana
State Crime Lab, as an expert witness at trial. Subsequently, however, the State filed a
Notice of Deposition, indicating the need to take a pretrial deposition of Hoffman
because Hoffman was scheduled to be out of state conducting an audit of another crime
lab on the scheduled trial date. The deposition was taken in January 2008. It was
videotaped, and both Foster-DeBerry and her counsel were present. Over Foster-
DeBerry’s objection, the District Court ruled that the State could play the videotaped
deposition to the jury. The jury ultimately found Foster-DeBerry guilty, and the court
sentenced her in March 2008 to 12 years in prison, with 7 years suspended.
¶3 On appeal, Foster-DeBerry contends that the State failed to meet the requirements
of § 46-15-201(1), MCA, which states, in pertinent part:
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(1) In district or municipal court cases, a deposition may be taken if
it appears that a prospective witness:
(a) is likely to be either unable to attend or otherwise prevented from
attending a trial or hearing;
(b) is likely to be absent from the state at the time of the trial or
hearing; or . . . .
¶4 Focusing on subsection (1)(a), Foster-DeBerry argues that the State did not show
that Hoffman was likely to be either unable to attend or otherwise prevented from
attending the trial. Nor did the State, according to Foster-DeBerry, make a showing that
a substitute auditor could not have been found for Hoffman. Moreover, Foster-DeBerry
argues that Hoffman’s absence was entirely voluntary and, thus, that Hoffman was not
“unable” to attend or “prevented” from attending the trial. Turning to subsection (1)(b),
Foster-DeBerry contends that Hoffmann was not likely to be absent from the state at the
time of trial “except through her own choice to comply with the requests of an
organization that could not compel her presence elsewhere.” Foster-DeBerry then argues
that the allegedly erroneous admission of Hoffman’s deposition testimony was not
harmless because it was the only “scientifically qualified evidence of the suspected
methamphetamine’s chemical identity.” Foster-DeBerry asserts that without Hoffman’s
testimony, there was insufficient evidence to convict her of the charge.
¶5 The State responds that § 46-15-201(1), MCA, did not require the State to show
that no one else could have covered Hoffman’s out-of-state obligation. Further, the State
contends that it is irrelevant whether Hoffman volunteered for this obligation because at
the time she did so, she was not under subpoena. The State asserts that it subpoenaed
Hoffman in a timely fashion, at which point it learned of the conflict and the need to
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preserve her testimony via a deposition. Next, the State argues that Foster-DeBerry had
more than adequate time to prepare for the deposition and that her constitutional right to
confrontation under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), and
State v. Mizenko, 2006 MT 11, 330 Mont. 299, 127 P.3d 458, was not violated as she was
present during the deposition and had the opportunity to confront Hoffman and
participate in the cross-examination. Lastly, the State points out that Foster-DeBerry did
not deny that the material tested by Hoffman was methamphetamine; rather, her defense
was that the drugs in question did not belong to her. Having considered the parties’
arguments, we agree with the State’s position.
¶6 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our 1996 Internal Operating Rules, as amended in 2003, which provides for
memorandum opinions. It is manifest on the face of the briefs and the record before us
that this appeal is without merit because the legal issues are clearly controlled by settled
Montana law which the District Court correctly interpreted.
¶7 Affirmed.
/S/ JAMES C. NELSON
We Concur:
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
/S/ JIM RICE
/S/ BRIAN MORRIS
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