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Jeffrey Hardman was found guilty by a jury of deliberate homicide and tampering with the evidence. The district court sentenced Hardman to 110 years in prison with no parole eligibility for thirty years. Hardman appealed his conviction and sought a new trial, arguing (1) the district court made numerous erroneous evidentiary rulings amounting to cumulative error and requiring reversal, and (2) under the due process clause, the court's one-sided evidentiary rulings prevented him from effectively rebutting the State's case and presenting a defense, violating his right to a fair trial. The Supreme Court affirmed, holding (1) the district court properly exercised its discretion in all but one of its evidentiary rulings, and therefore, cumulative error did not warrant reversal of Hardman's conviction; and (2) since the holding on the first issue controlled, the constitutional argument was not considered.Receive FREE Daily Opinion Summaries by Email
May 1 2012
IN THE SUPREME COURT OF THE STATE OF MONTANA
2012 MT 70A
STATE OF MONTANA,
Plaintiff and Appellee,
JEFFREY L. HARDMAN,
Defendant and Appellant.
District Court of the Twenty-Second Judicial District,
In and For the County of Stillwater, Cause No. DC 09-34
Honorable Blair Jones, Presiding Judge
COUNSEL OF RECORD:
Joslyn Hunt, Chief Appellate Defender; Koan Mercer, Assistant Appellate
Defender; Helena, Montana
Steve Bullock, Montana Attorney General; Micheal S. Wellenstein,
Assistant Attorney General; Helena, Montana
John Petak III, Stillwater County Attorney; Columbus, Montana
Submitted on Briefs: February 8, 2012
Decided: April 2, 2012
Amended: May 1, 2012
Justice Beth Baker delivered the Opinion of the Court.
Jeffrey L. Hardman was found guilty by a jury in the Twenty-Second Judicial
District Court of deliberate homicide and tampering with evidence. The court sentenced
Hardman to 110 years in prison with no parole eligibility for thirty years. Hardman
appeals his conviction and seeks a new trial. On appeal, we consider the following
Whether the District Court made numerous erroneous evidentiary rulings
amounting to cumulative error and requiring reversal.
PROCEDURAL AND FACTUAL BACKGROUND
At approximately 4:40 p.m. on October 15, 2009, near Molt, Montana, Hardman
shot and killed his neighbor, Michael Blattie, on Blattie’s front porch. The two had been
at odds over a $35 loan that Hardman had made to Blattie. Hardman lent Blattie the
money to repair Blattie’s tractor, so that Hardman could then use the tractor to cut weeds
around their adjoining properties. Several weeks passed and Blattie did not repair the
tractor. Hardman phoned Blattie regarding the money and the tractor, but did not receive
On the day of Blattie’s death, Hardman left a threatening message on Blattie’s cell
Later in the afternoon, Hardman had a heated telephone conversation with
Blattie. Hardman then placed a handgun in the back side waist of his pants and went to
Blattie’s home. Hardman testified that as he stepped onto Blattie’s porch, Blattie “came
flying out of his house, slamming the screen door up against the wall and yelling.”
According to Hardman, a struggle ensued between the two men, with Blattie hitting
Hardman in the face. Hardman pulled out the gun, allegedly hoping that Blattie would
back away upon seeing the weapon. Blattie then reached for the gun and, in the resulting
struggle, fanned the hammer.
The gun went off, shooting Blattie in the abdomen.
Hardman testified that he did not intend to shoot Blattie. There were no other witnesses
to the incident. Blattie was found dead on his porch a short time later, having bled to
death. After leaving the scene, Hardman buried the gun in a nearby field.
At trial, the State alleged that Hardman intentionally killed Blattie because he was
angry with him regarding the unpaid debt.
Hardman maintained the shooting was
accidental or, at worst, negligent. He claimed he armed himself only because he feared
Blattie would attack him when confronted about the debt and he was too physically
infirm to fight back.
Hardman initially lied to investigators about his involvement, and attempted
suicide by overdosing on medication. Hardman finally met with a local pastor, Robert
Griggs, and confessed to his role in the shooting. He later contacted the authorities and
was charged both with deliberate homicide and with evidence tampering for burying the
murder weapon, which was never recovered.
Hardman did not raise a justifiable use of force defense but claimed the shooting
was accidental. He requested and received a jury instruction on negligent homicide.
There were multiple objections and evidentiary rulings throughout the trial. The jury
found Hardman guilty of one count of deliberate homicide and one count of tampering
with the evidence. He timely appealed.
STANDARD OF REVIEW
We review evidentiary rulings for an abuse of discretion. State v. Derbyshire,
2009 MT 27, ¶ 19, 349 Mont. 114, 201 P.3d 811. “A court abuses its discretion if it acts
arbitrarily without the employment of conscientious judgment or exceeds the bounds of
reason, resulting in substantial injustice.” Derbyshire, ¶ 19. We will not overturn a
district court’s evidentiary determinations absent a showing of abuse of discretion. State
v. Bingman, 2002 MT 350, ¶ 31, 313 Mont. 376, 61 P.3d 153. However, to the extent an
evidentiary ruling is based on interpretation of an evidentiary rule or statute, the review is
de novo. Derbyshire, ¶ 19.
On appeal, Hardman contends the District Court made a series of erroneous
evidentiary rulings, the sum of which necessitates a new trial. He argues further that
under the Due Process Clause of the United States Constitution, the District Court’s
one-sided evidentiary rulings prevented him from effectively rebutting the State’s case
and presenting a defense, violating his right to a fair trial. We conclude the majority of
the court’s contested rulings were not error and therefore their aggregate does not warrant
Since our holding on the first issue controls, we need not reach the
constitutional argument. In his opening brief, Hardman lists six points of error by the
District Court. We address each in turn.
Blattie’s phone call to Hardman moments before the shooting
At 4:34 on the afternoon of the shooting, Hardman called Blattie but he did not
Blattie called Hardman back moments later, and the two had a heated
Hardman sought to introduce the statements Blattie made during the
The court excluded the contents of the conversation on hearsay and
relevancy grounds. The court later clarified its ruling, citing City of Red Lodge v. Nelson,
1999 MT 246, 296 Mont. 190, 989 P.2d 300, for the proposition that “if it’s an accident,
evidence of the victim’s prior conduct is irrelevant.” The court stated that Hardman was
attempting to introduce the telephone conversation as justification for carrying a weapon
with him when he went to Blattie’s home. However, Hardman’s accidental shooting
defense made Hardman’s reason for carrying a weapon irrelevant.
Hardman contends the substance of the conversation and the statements made by
Blattie prompted him to arm himself when approaching Blattie about the debt. He further
argued in chambers he intended to testify that he brought the gun with him, not because
he planned to harm Blattie, but because he feared that Blattie would physically attack him
when confronted about the debt. Hardman contends the conversation was admissible
under the “transaction rule” and that the evidence was not hearsay because it was not
being asserted for its truth but rather to demonstrate the effect the words had on him. The
State argues these exceptions to the hearsay rule are inapplicable and regardless, the
statements are irrelevant.
The record reflects that the District Court excluded the evidence on the ground it
was irrelevant and did not qualify for admission under the transaction rule. Hardman
argues that evidence as to why he armed himself is relevant to the mental state element of
a deliberate homicide charge. He contends evidence that he was scared, and armed
himself only as a deterrent, tends to make it less probable that Hardman’s conscious
object was to kill Blattie, or that he was aware of a high probability that his conduct of
drawing the gun would cause Blattie’s death. Absent evidence of the words exchanged
during the phone conversation, he argues it seems more probable he armed himself with
the intention of shooting Blattie.
“Relevant evidence means evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” M. R. Evid. 401. “All relevant
evidence is admissible . . . Evidence which is not relevant is not admissible.” M. R. Evid.
402. A district court has broad discretion to determine whether or not evidence is
relevant. State v. Matz, 2006 MT 348, ¶ 34, 335 Mont. 201, 150 P.3d 367. Hardman
testified the hammer of the gun was fanned inadvertently during the struggle and he did
not intend to shoot Blattie. The District Court concluded that Blattie’s statements during
the phone call were irrelevant to a defense of accident.
In City of Red Lodge, we considered the appeal of a conviction for partner assault.
The defendant attempted to introduce evidence of the victim’s prior convictions for
assault to show her intent to assault him and to show he had to use reasonable force
against her in his defense. City of Red Lodge, ¶ 7. He initially argued self-defense, but at
trial “emphatically” contended he accidentally struck the victim. City of Red Lodge,
¶¶ 14, 18. The Court noted there was a tenuous basis for the defendant’s claim he relied
on the defense of self-defense at trial. City of Red Lodge, ¶ 18. The Court affirmed the
conviction, holding that even if the defendant asserted self-defense, he had not
established he knew of the victim’s prior convictions at the time he struck her and
therefore evidence of the convictions was irrelevant. City of Red Lodge, ¶¶ 19-20.
Justice Trieweiler, specially concurring, added:
[the defendant’s] contention that he did not intend to strike her is
inconsistent with a defense that he struck her in self-defense. Therefore, in
spite of what he did or didn't know about her prior conduct at the time of
the event which formed the basis for the charges against him, [the victim’s]
prior conduct was irrelevant. For this reason alone, I would affirm the
judgment of the District Court.
City of Red Lodge, ¶ 22 (J. Trieweiler, concurring). The District Court relied on this
language in concluding evidence of Blattie’s statements immediately prior to the shooting
was irrelevant. The District Court allowed Hardman to present evidence that provided
context for Hardman’s mental state at the time of the shooting and served to rebut the
State’s allegations Hardman purposely or knowingly killed Blattie. During his testimony,
Hardman was permitted to describe the conversation as heated and that the subject of the
debt owed was discussed.
Moreover, he testified that he went to Blattie’s home
immediately thereafter to confront him about the money, and that he took a firearm with
him in preparation for the encounter. Pastor Griggs testified that during Hardman’s
confession to him, Hardman told him that Blattie came out yelling and “slammed the
screen door,” and that the yelling was a continuation of the phone call. Hardman testified
Blattie’s eyes were “very dark” and that he got so scared he lost control of his bladder.
This evidence bolstered Hardman’s contentions he brought the gun for security and the
shooting was an accident.
We hold that, in light of the nature of Hardman’s defense, the District Court did
not abuse its broad discretion in excluding the statements as irrelevant. Matz, ¶ 34.
Though Hardman was prohibited from testifying as to the exact words Blattie spoke
during the conversation, he was able to introduce evidence about the nature of the
exchange and why he brought the gun. Thus, Hardman was permitted to describe the
conversation and how it related to the subsequent events in line with his defense. It was
not error for the District Court to exclude the evidence as irrelevant.
Hardman also argues the evidence was admissible under the “transaction rule,”
§ 26-1-103, MCA. Evidence that may be admissible under that rule is still subject to
fact-specific balancing under Rule 403. State v. Detonancour, 2001 MT 213, ¶¶ 29-31,
306 Mont. 389, 34 P.3d 487. The District Court expressed concern over the lack of
trustworthiness of Hardman’s proffered hearsay testimony, since the prosecutor had no
way of cross-examining him on Blattie’s purported statements. It noted that the purpose
of the evidence was to have the jury “infer the defendant relied upon what was said to
him in taking his next steps.” The trial court carefully weighed the probative value of the
evidence against its attenuated relevance. Its exclusion of the evidence was not an abuse
Impeachment of good character evidence
The State called Tab Moen to testify at trial. Moen was a friend of Blattie’s and
discovered Blattie’s body. The State, referring to Blattie, asked, “what kind of guy was
he?” Hardman did not object to the question. Moen responded, “[g]reat guy. I mean, you
know, the little bit I knew him, he was a really good guy.” In cross-examination, defense
counsel asked, “would it change your opinion of Michael Blattie if you knew he was a
meth user?” The State objected before Moen could answer. The court heard the parties’
arguments on the matter in chambers. Defense counsel further sought to cross-examine
Moen on whether his opinion would change if he knew Blattie was on probation for
stolen goods. Moreover, counsel intended to introduce information that Moen and Blattie
used drugs together at Blattie’s home. Counsel for the State objected on all fronts, citing
M. R. Evid. 404 and 405(b). The court sustained the objection, ruling that some of the
character evidence would be admissible if there was a proper foundation laid on a
self-defense theory, but that “404 simply says this kind of evidence with regard to the
victim does not come in unless it meets the criteria set forth in 404.” Moreover, the court
noted allowing this line of questioning “would be more prejudicial than probative as to
whether the defendant committed this homicide.” Hardman argues this ruling was error.
Generally, evidence of a person’s character or a trait of character is inadmissible to
prove action in conformity therewith on a particular occasion.
M. R. Evid. 404.
However, the rule provides an exception pertaining specifically to admissibility of
evidence of the victim’s character in certain cases:
Character of victim. Evidence of a pertinent trait of character of the victim
of the crime offered by an accused, or by the prosecution to rebut the same,
or evidence of a character trait of peacefulness of the victim offered by the
prosecution in a homicide case or in an assault case where the victim is
incapable of testifying to rebut evidence that the victim was the first
M. R. Evid. 404(2). When character evidence is admissible, M. R. Evid. 405 governs the
method of proving character, either as reputation or opinion evidence, or specific
instances of conduct. Character evidence must first be deemed admissible under Rule
404 before Rule 405 applies. State v. Daniels, 2011 MT 278, ¶ 23, 362 Mont. 426, 265
P.3d 623 (“when character evidence is admissible, Rule 405 provides the methods of
Hardman contends that Rule 404 is explicitly limited to prohibiting introduction of
character evidence “for the purpose of proving action in conformity therewith.” In this
instance, he argues, the defense was not offering evidence of Blattie’s character to prove
conformity, but rather to impeach Moen’s testimony that Blattie was a “really good guy.”
Hardman contends that under M. R. Evid. 105, evidence which is inadmissible for one
purpose may be admissible for another.
He argues the evidence should have been
admitted, with a cautionary instruction to the jury that the evidence was only for
impeachment purposes, and not to be considered as actions in conformity with Blattie’s
character. Hardman further argues he should have been permitted to cross-examine
Moen on his drug use with Blattie as a means to show bias and question his credibility.
We have held a defendant must first lay a foundation that he acted in self-defense
before evidence of the victim’s character will be admitted. State v. Logan, 156 Mont. 48,
64-65, 473 P.2d 833, 842 (1970); State v. Cartwright, 200 Mont. 91, 104, 650 P.2d 758,
764-65 (1982). “The determination of the adequacy of the foundation for the admission
of evidence is within the discretion of the trial court.” State v. Weeks, 270 Mont. 63, 75,
891 P.2d 477, 484 (1995).
We stated in Cartwright that, “until such time as the
defendant took the stand and admitted the killing, the issue of self-defense was not joined
at the trial.” Cartwright, 200 Mont. at 104, 650 P.2d at 764-65 (quoting Logan, 156
Mont. at 65, 473 P.2d at 842). Moreover, we recently reiterated that evidence of the
character of a victim is admissible where the “character of the victim relates to
reasonableness of force used by the accused in self defense.” State v. Branham, 2012
MT 1, ¶ 11, 363 Mont. 281, 269 P.3d 891. The interplay between a defense of selfdefense and evidence of the victim’s character is thus critical to the analysis. For a
victim’s character trait to be “pertinent,” it must relate to the defendant’s claim of
self-defense—a claim not raised here. Blattie’s character was not “pertinent” when
offered to challenge the credibility of the State’s witness.
Hardman’s invocation of M. R. Evid. 105 is unavailing. A primary concern for a
court in determining limited admissibility is whether the issue for which the evidence is
offered is actually in controversy. A district court must consider:
whether the party seeking to offer evidence of limited admissibility for a
proper purpose has manipulated the presentation of evidence in order to
manufacture a controversy and permit the party to waft otherwise
inadmissible evidence before the jury... [the purported use of evidence for
impeachment purposes] can sometimes represent a veiled attempt to tempt
the jury to use the evidence for its impermissible purpose.
David P. Leonard, The New Wigmore: Selected Rules of Admissibility 60-64 (rev. ed.,
Aspen Publishers 2002).
Moen’s testimony provided very little information as to
Blattie’s character. Moen primarily was questioned about his visit to Blattie’s home on
the day of the shooting and his discovery of the body. Impeachment of Moen’s lone
statement that Blattie was a “good guy” would have introduced evidence of Blattie’s bad
character, which was not a proper matter for the jury’s consideration. Hardman cannot
use his failure to object to the State’s question as a backdoor to introduce otherwise
inadmissible testimony not at issue in the case.
The District Court determined evidence of Blattie’s character was inadmissible
under Rule 404 absent a claim of self-defense. Thus, impeachment pertaining to Blattie’s
character was likewise inadmissible “until such time as [Hardman] took the stand and
admitted the killing.” Moreover, a district court may exercise its discretion to exclude
otherwise relevant evidence if its probative value is outweighed by a danger of unfair
prejudice. M. R. Evid. 403. In State v. Passmore, 2010 MT 34, ¶¶ 57-60, 355 Mont.
187, 225 P.3d 1229, we considered whether testimony regarding a sexual assault victim’s
prior inconsistent statement on an arguably collateral matter was admissible to challenge
the victim’s credibility.
The defendant sought to introduce witness testimony to
contradict the victim’s testimony denying a statement she allegedly made regarding a
sexual fantasy, but the evidence offered did little to establish that the victim had lied in
her testimony about the defendant’s unlawful sexual acts against her. Passmore, ¶¶ 52,
Although the evidence arguably undermined the witness’s credibility, we
concluded that the admissibility of contradiction evidence ultimately is governed by M.
R. Evid. 401 and 403. Passmore, ¶ 61. We held that the evidence offered by the
defendant had limited probative value and was outweighed by the danger of unfair
prejudice and confusion of the issues.
Passmore, ¶ 63.
The evidence offered by
Hardman likewise carried little probative value when balanced against its potential for
prejudice and confusion of the issues. The District Court acted within its discretion in
excluding the evidence as impermissible under M. R. Evid. 404 and because of a danger
of unfair prejudice under M. R. Evid. 403.
Hardman’s other bases for fearing Blattie
Hardman sought to introduce evidence that he was fearful of Blattie because he
knew from various sources that Blattie could potentially blow up or get very angry if
confronted. The District Court again ruled that unless Hardman admitted killing Blattie
and raised a justifiable use of force defense, evidence regarding his fear of Blattie was
irrelevant. Hardman argues Blattie’s history and Hardman’s fear of him were relevant
because they established his own mental state.
In other words, absent evidence of
Hardman’s fear, evidence that Hardman deliberately took the gun to Blattie’s home
makes it seem more probable that Hardman intentionally shot Blattie. Again, Hardman
contends the evidence was not admitted for the purpose of proving Blattie’s character and
should have been admitted to rebut the State’s contentions that Hardman went over to
Blattie’s house specifically to kill him.
As discussed above, Hardman was permitted to testify on re-direct why he brought
the gun with him. He testified he was afraid Blattie would get angry about the money,
that a physical altercation might arise, and that he is “not a fighter.”
In light of
Hardman’s accident theory, the District Court did not misapply Rule 404 or abuse its
discretion in excluding further evidence of Hardman’s fear of Blattie.
Asked and answered
Jennifer Couch, Hardman’s stepdaughter-in-law, with whom he was residing at the
time of the shooting, was called as a prosecution witness at trial. Couch testified about
weapons in their home, Hardman’s financial difficulties, and how he had come to live
with her and her husband. During a line of questioning about drug use in the home, the
prosecutor asked her whether Hardman possessed a medical marijuana card.
examination went as follows:
Q. Did the defendant have a medical marijuana
MR. SCOTT: I object to this as relevancy, to character evidence. I don’t see
-THE COURT: The question has been asked and answered. You’re going to
have to object a little more quickly. Overruled.
Hardman protests that defense counsel objected immediately after the witness said “yes”
and the only way counsel could have objected more quickly would have been to beat the
witness’s monosyllabic answer. He argues the District Court abused its discretion under
M. R. Evid. 611(a), which mandates a district court “exercise reasonable control over the
mode and order of interrogating witnesses and presenting evidence so as to (1) make the
interrogation and presentation effective for the ascertainment of the truth, (2) avoid
needless consumption of time, and (3) protect witnesses from harassment or undue
embarrassment.” Though Hardman cites the “well-settled practice” of striking improper
testimony and giving a cautionary instruction to the jury, he did not request such a
remedy in this instance.
“The court has a duty to conduct the trial in a speedy and fair manner and has a
great amount of discretion in so doing.” State v. Insua, 2004 MT 14, ¶ 36, 319 Mont.
254, 84 P.3d 11 (quoting State v. Dickens, 198 Mont. 482, 486, 647 P.2d 338, 341
(1982)). We note the District Court handled a similar objection by the State in the same
fashion. When defense counsel cross-examined Pastor Griggs, the following exchange
And on your single-action pistol, you could pretty much fan the
hammer on your weapon as well?
I believe so. I’ve never done it, but I believe it would work that way.
MR. PETAK: Your Honor, it’s calling for speculation. I ask –
THE COURT: It’s been asked and answered.
Our reading of the transcript indicates the court was fair and even-handed in managing
the trial. The District Court did not abuse its discretion in exercising reasonable control
over the proceedings as required by M. R. Evid. 611(a).
Medical opinion testimony
Hardman makes two arguments as to the exclusion of medical opinion testimony
from two doctors. First, following his suicide attempt, Hardman was treated by Dr.
Samuel Paczkowski, an emergency room physician in Billings.
After his initial
admission, Hardman’s care was assigned to a Dr. Blossom, who was not listed as a trial
witness by either party. In his direct testimony, Dr. Paczkowski testified Hardman’s
main complaint upon admission to the ER was “altered mentation.”
cross-examination, defense counsel asked Dr. Paczkowski whether, after reviewing
Dr. Blossom’s subsequent report, he was able “to form an opinion as to what Jeff’s
condition was on that day.” Counsel for the State objected, arguing hearsay and lack of
foundation. The court sustained the objection, stating that defense counsel would need to
establish that Dr. Paczkowski relied upon Dr. Blossom’s report in treating Hardman for
the evidence to be admissible.
On appeal, Hardman argues the defense sought to elicit the testifying doctor’s
opinion as to the seriousness of Hardman’s suicide attempt, not the other doctor’s report.
Hardman contends M. R. Evid. 703 permitted Dr. Paczkowski to opine as an expert based
on a reading of Dr. Blossom’s report. That rule provides:
[t]he data in a particular case upon which an expert bases an opinion or
inference may be those perceived by or made known to the expert at or
before the hearing. If of a type reasonably relied upon by experts in a
particular field in forming opinions or inferences upon the subject, the facts
or data need not be admissible in evidence.
Hardman never established, however, that Dr. Paczkwoski was qualified to provide an
expert opinion on a patient’s suicidal condition as required by M. R. Evid. 702, nor did he
inform the District Court he was seeking such an opinion. Generally, we will not review
an issue that was not properly preserved for appeal because the objecting party never
gave the trial court an opportunity to address and correct perceived errors. State v.
Johnson, 2011 MT 286, ¶ 14, 362 Mont. 473, 265 P.3d 638. M. R. Evid. 703 does not
permit an expert to simply transmit the out-of-court opinion of another without adding
any analysis. Weber v. BNSF Ry. Co., 2011 MT 223, ¶¶ 37-39, 362 Mont. 53, 261 P.3d
984. Dr. Paczkowski did testify Hardman had to be intubated to prevent him from dying,
and the jury was given sufficient information to show the seriousness of Hardman’s
The District Court did not abuse its discretion in excluding
Dr. Paczkowski’s opinion.
Secondly, Hardman sought to corroborate his testimony that Blattie was in a rage
by introducing evidence about Blattie’s autopsy and the presence of methamphetamine in
his blood. During cross-examination by defense counsel, the forensic pathologist who
performed Blattie’s autopsy, Dr. Thomas Bennett, testified that he had sent blood to the
crime lab for testing to see if anything in the blood would help make a determination of
what happened. Defense counsel asked about the results of the blood test and the State
objected on hearsay grounds. The court sustained the objection.
Hardman contends that under M. R. Evid. 703 and 702, the defense could elicit an
opinion from Dr. Bennett about the condition of Blattie’s physiology moments before his
death even if his medical opinion relied in part upon laboratory data. Moreover, he
argues that under M. R. Evid. 705, he was permitted to cross-examine Dr. Bennett
regarding the underlying facts or data which formed the basis of his opinion. Since
Dr. Bennett testified that blood data was “a standard part of [his] autopsy,” Hardman
contends cross-examination on the data was permissible.
Hearsay is evidence of an out-of-court statement offered to prove the truth of the
matter asserted. M. R. Evid. 801. Hardman sought to introduce evidence from the blood
data that Blattie was under the influence of methamphetamine at the time he encountered
Hardman on the porch.
Out-of-court statements to that effect are hearsay and
inadmissible unless an exception applies. M. R. Evid. 803(6) provides the “business
records exception” to the hearsay rule, which permits admissibility of records of regularly
conducted activity, including blood tests. However, the party offering the evidence must
establish two primary foundational facts before the evidence is admissible: “(1) the
records must have been made or transmitted by a person with knowledge at or near the
time of the incident recorded; and (2) the record must have been kept in the course of a
regularly conducted business activity.” State v. Baze, 2011 MT 52, ¶ 18, 359 Mont. 411,
251 P.3d 122 (quoting U.S. v. Ray, 920 F.2d 562, 565 (9th Cir. 1990)). Such a showing
must be made “by the testimony of the custodian or other qualified witness.” M. R. Evid.
Dr. Bennett was not the party who performed the blood test and Hardman does not
argue he was a custodian or otherwise qualified witness who could provide the
foundation for its admission into evidence. Hardman did not call any other witness from
the crime lab to lay the foundation for the blood test. In any event, the jury heard
testimony from Dr. Bennett that Blattie’s condition at death was consistent with
methamphetamine use, which can cause violent outbursts, lending corroboration to
Hardman’s theory of Blattie’s enraged state at the time of their encounter. There was no
error in the District Court’s ruling.
Photo of Hardman holding a gun in California
During Couch’s testimony, she identified Hardman in a photograph where he was
holding a gun at a California shooting range. The court admitted the photograph into
evidence over defense counsel’s relevancy objection. On appeal, Hardman contends the
photograph was irrelevant because the State did not link the weapon in the photograph to
the crime, nor did its admission say anything about what gun Hardman used on
October 15, 2009, or whether he purposely or knowingly killed Blattie.
concedes the photograph was irrelevant because it was remote and the prosecutor failed
to tie the gun in the photograph to the gun used in the shooting. However, it argues the
admission of the photograph was harmless error.
Error is harmless when the State demonstrates there is “no reasonable possibility
that the inadmissible evidence might have contributed to the conviction.” State v. Van
Kirk, 2001 MT 814, ¶ 47, 306 Mont. 215, 32 P.3d 735. Hardman admitted taking a gun
to Blattie’s house, drawing the gun, and, whether accidentally or otherwise, shooting
Defense counsel and Hardman conducted a demonstration of the alleged
accident, with an unloaded gun, during Hardman’s testimony. Hardman also admitted
burying the gun after the incident. Based on the weight of evidence presented at trial, and
Hardman’s own admissions, we cannot conclude there was a reasonable probability that
this lone photograph contributed to the conviction.
The cumulative error doctrine mandates reversal of a conviction where numerous
errors, when taken together, have prejudiced a defendant’s right to a fair trial. State v.
Giddings, 2009 MT 61, ¶ 100, 349 Mont. 347, 208 P.3d 363. Having found no abuse of
discretion in all but one of the District Court’s evidentiary rulings, cumulative error does
not require reversal of Hardman’s conviction. Since we reject Hardman’s argument that
the trial was “starkly one-sided,” we do not further consider his due process claim.
The judgment is affirmed.
/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ JIM RICE
/S/ BRIAN MORRIS