June 21 2011
DA 10-0503
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 148N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
BARON JAMES FOSTER,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DC 09-222
Honorable Ted O. Lympus, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Joseph P. Howard; Attorney at Law, Great Falls, Montana
For Appellee:
Steve Bullock, Montana Attorney General; Tammy K Plubell,
Assistant Attorney General, Helena, Montana
Ed Corrigan, Flathead County Attorney, Kalispell, Montana
Submitted on Briefs: May 18, 2011
Decided: June 21, 2011
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, 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 Baron Foster was convicted of the deliberate homicide of Michelle Miller. During
trial, he sought to introduce evidence that a State witness, Timothy Smith, lied to the
police about having a prior sexual relationship with Miller. The District Court granted
the State’s motion in limine to exclude Foster’s proposed evidence. The District Court
concluded the evidence was inadmissible hearsay and character evidence, and was
irrelevant. The court further concluded that any probative value of Foster’s proposed
evidence was outweighed by the risk of confusion to the jury. Foster appeals from that
order. We affirm.
¶3 On appeal, Foster does not assign error to any of the District Court’s evidentiary
conclusions. Rather, he asserts that “various erroneous evidentiary rulings that prevented
Foster from cross-examining Smith regarding his sexual relationship with Miller,”
deprived Foster of his right to present a defense of third-party guilt.
¶4 Where constitutional rights that directly affect the ascertainment of guilt are
implicated, evidentiary rules should not be arbitrarily or mechanistically applied. State v.
Johnson, 1998 MT 107, ¶ 21, 288 Mont. 513, 958 P.2d 1182. However, Foster provides
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no analysis of how the District Court’s order resulted in an arbitrary application of the
well-established rules of evidence. Rather, Foster contends that his assertion of a third-
party guilt defense should essentially suspend the rules of evidence regarding hearsay,
character evidence, relevancy, and prejudice. This argument is without merit:
[w]hile the Constitution . . . prohibits the exclusion of defense evidence
under rules that serve no legitimate purpose or that are disproportionate to
the ends that they are asserted to promote, well-established rules of
evidence permit trial judges to exclude evidence if its probative value is
outweighed by certain other factors such as unfair prejudice, confusion of
the issues, or potential to mislead the jury.
State v. Glick, 2009 MT 44, ¶ 30, 349 Mont. 277, 203 P.3d 796 (quoting Holmes v. South
Carolina, 547 U.S. 319, 326-27, 126 S. Ct. 1727, 1732 (2006)). Mere assertion of a
defense based on third-party guilt does not permit Foster to circumvent the rules of
evidence.
¶5 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our Internal Operating Rules, which provides for noncitable memorandum opinions. The
issues in this case are ones of judicial discretion, and there clearly was not an abuse of
discretion.
¶6 Affirmed.
/S/ MIKE McGRATH
We concur:
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ JIM RICE
/S/ BRIAN MORRIS
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