State v. Foston, 2009 MT 191, 351 Mont. 85

Summary

The Montana Supreme Court affirmed Johnnie Lee Foston's convictions for two counts of felony distribution of dangerous drugs. The court declined to apply plain-error review to his unpreserved challenge to warrantless electronic surveillance and held that State v. Goetz did not apply. The court concluded that an officer's opinion that the overheard conversations were consistent with a drug deal was admissible under Montana Rule of Evidence 701, or alternatively that any error was harmless.

Holdings

1. The court declined to exercise plain-error review because Foston failed to object to the electronic surveillance on warrant grounds at trial and provided no substantial reason for invoking an exception to the contemporaneous-objection requirement. State v. Goetz therefore did not apply to this case.
2. The District Court erred in relying on the present-sense-impression exception under M. R. Evid. 803(1) to admit Newell's testimony, but an officer may give a nonexpert opinion under M. R. Evid. 701 when it is rationally based on personal perceptions and helpful to the jury. In any event, any error in admitting Newell's statement that the conversations were consistent with a drug deal was harmless beyond a reasonable doubt because it was cumulative of ample independent evidence of the drug transactions.

Questions Presented

1. Whether the Supreme Court should exercise plain-error review over Foston's unpreserved challenge to warrantless electronic monitoring of the drug transactions under State v. Goetz.
2. Whether the District Court improperly admitted Detective Newell's testimony that the overheard conversations were consistent with his understanding of a drug deal, and, if so, whether the error was harmless.

Disposition

affirmed