LEE R. KERR

ROSEBUD COUNTY ATTORNEY

ROSEBUD COUNTY COURTHOUSE

P.O. Box 69

Forsyth, Montana 59327

(406) 356-2236

Attorneys for Plaintiff

MONTANA SIXTEENTH JUDICIAL DISTRICT COURT, ROSEBUD COUNTY

STATE OF MONTANA, *

Plaintiff, * Cause No. DC 95-42

* STATE’S RESPONSE TO

DEFENDANT’S MOTION IN LIMINE

-vs- *

JASON FISHER, *

Defendant. *

* * * * * * *

COMES NOW, the State of Montana, by and through its attorney, LEE R. KERR, County Attorney of Rosebud County, Montana, in response to Defendant’s Motion in Limine.

The Defendant’s Motion in Limine filed the day before trial, are not well taken. The omnibus hearing form executed in this matter, dated September 18, 1995, and signed by then attorney Ron Arneson, attorney at law, dictated the following standard terms on the omnibus form, “The defendant’s motions on pre-trial matters and briefs in support thereof are due ten (10) days prior to the hearing.” The state is forced to respond to the Defendant’s Motion in Limine less than 24 hours before trial. The state has had to file its own Motion in Limine regarding the criminal record of the state’s key witness, based on a request and demand for information received last Friday.

In any case, to the extent that any of the defendant’smotions in limine may constitute trial objections, the state will respond to the defendant’s motion in limine.

1. “PRIOR CRIME, WRONGS, ACTS”

The defense is apparently alluding to the incident in which the defendant had his bail revoked and increased to $25,000 that occurred on the Northern Cheyenne Reservation subsequent to his arrest on the present charge. The state has no intention of introducing evidence as to this alleged subsequent crime.

2.“RADIO LOG AS HEARSAY, AND NOT THE BEST EVIDENCE”

It is difficult for the state to respond at this time as to how the radio log will be used and/or how it will come up in trial. There are any number of rules of evidence which may permit the admission of the radio log, depending on the circumstances at the time of its use or offering into evidence. Since the matter and means of utilization of this log at trial is an issue of trial tactics, and may be utilized in a number of different ways, under various rules of evidence, the state does not believe that this is something appropriate for a motion in limine, but will have to be addressed at trial as the issue develops.

3. “WITNESS GARRETT GRAY”

The state has responded by its own motion in limine to prohibit the use of this evidence at trial as indicated in the state’s motion in limine.

4. “ADAM TWO TWO”

Adam Two Two has long been listed as a witness. In fact, the omnibus form indicated that the defense may intend to take a deposition of Adam Two Two. The defense has apparentlyfailed to interview or otherwise take a statement of Adam Two Two, although defense has had an opportunity to do so since September of 1995. Further, the attempt to exclude Adam Two Two by motion prior to trial has been lost by the defense’s failure to file a written motion regarding the same within ten (10) days of trial. In any case, the complaint, from Adam Two Two of being physically assaulted by the defendant, that occurred only minutes before the charged offense, is admissible. This is not other bad acts or 404 (B) evidence, but is part of the entire “corpus delicti” of the charged offense, including matters closely related to the offense, and explanatory of it. The incident that involved Adam Two Two comes within the line of cases permitting testimony and evidence relating to the crime that are so closely related as to constitute part of the corpus delicti, see State vs. Ungaretti, 239 Mont. 314 (1989), and State vs. Gillham, 209 Mont. 169 (1983).

5. “HEARSAY”

The defense wants to prohibit hearsay statements by Jason Fisher, Gaylord Fisher, and Garrett Gray from being admitted. However, hearsay statements are often admissible, under numerous exceptions of the hearsay rule, and under numerous circumstances when in fact they are not hearsay at all, but are statements made by the defendant or witnesses under subpoena and subject to cross examination, making their prior statements not hearsay, see MRE 613 and 801 (d). Thus, this also is more appropriate as a trial objection, and not appropriate for a motion in limine, because of the various contexts in which prior statements of the parties can be brought out, and are admissibleunder various rules of evidence and exceptions there to. As an example, prior inconsistent statements of a witness are not hearsay according to Rule 801 (d)(1)(a) of the Montana Rules of Evidence, and are thus admissible as substantive evidence if the declarant testifies at trial or hearing and is subject to cross examination concerning the statement, and the statement is inconsistent with the declarant’s testimony. See State vs. Stringer, 52 St. Rep. 473 (1995), and are admissible whether or not the defendant has been impeached by either side. See State vs. Anderson 211 Mont. 272 (1984). Thus, the defense’s concern regarding hearsay or alleged hearsay will have to be dealt with at trial.

6. “STATEMENTS BY DEFENDANT”

The defendant has already waived his objection by failing to file a motion prior to the court’s deadline. The defendant did make statements denying the allegation and other statements just shortly after the incident, and these statements are admissible, and will be testified to by Officers under a subpoena.

7. “EVIDENCE REQUIRING EXPERT OPINION”

The state has no intention to use a police office or other unidentified expert to make a scientific determination as to whether or not a firearm has been fired.

DATED this 12th day of February, 1996.

_____________________________

LEE R. KERR

ROSEBUD COUNTY ATTORNEY