Foston v. State
2010 MT 281
Mont.2010Background
- Foston was charged with three counts of felony distribution of dangerous drugs in Montana.
- Evidence at trial included surveillance from motel rooms with video and audio monitoring by police, via CI purchases.
- The State did not introduce the CI’s testimony or recordings at trial; Detective Newell testified about surveillance observations.
- The State’s case relied on other physical evidence: purchases with marked money, recovered drugs, cash, and a handgun; cash matched serial numbers.
- Goetz (decided after trial) held warrantless electronic monitoring in a home violated Montana constitutional rights; district court relied on 803(1) testimony previously.
- Foston challenged trial counsel’s failure to object to warrantless surveillance in a postconviction petition; court denied relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was counsel ineffective for failing to object to warrantless surveillance? | Foston asserts failure to object was deficient. | State argues objections would have failed given then-existing law. | No ineffective assistance; objection would not likely have succeeded. |
| Could Goetz be used retroactively to invalidate trial evidence? | Goetz supports suppression if applied retroactively. | Goetz not retroactive to trial; no objection timely. | Goetz not applied retroactively to this trial. |
| Would an objection based on constitutional grounds have been sustained? | Objection grounded in constitutional rights would be proper. | Court would not have likely sustained given existing precedent then. | Court unlikely to have sustained the objection. |
| Did Strickland’s prejudice prong require showing actual likelihood of different result? | Prejudice shown if objection would have excluded key evidence. | Independent evidence supported conviction; prejudice not shown. | Prejudice not demonstrated; no postconviction relief. |
Key Cases Cited
- State v. Goetz, 2009 MT 296 (Mont. 2009) (Goetz held warrantless electronic monitoring violated state constitution)
- Strickland v. Washington, 466 U.S. 668 (U.S. Supreme Court, 1984) (ineffective assistance standard: deficient performance and prejudice)
- Ford v. State, 2005 MT 151 (Mont. 2005) (timeliness and standards for ineffective assistance claims)
- Jenkins, 2001 MT 79 (Mont. 2001) (governs defendant's burden and trial objections in ineffective-assistance analysis)
- Kills on Top v. State, 273 Mont. 32 (Mont. 1995) (standard for evaluating trial counsel’s performance)
- Hans v. State, 283 Mont. 379 (Mont. 1997) (no reliance on future decisions to assess trial conduct)
- Whitlow v. State, 2008 MT 140 (Mont. 2008) (postconviction review standards and de novo review of mixed questions of law and fact)
- Belanus v. State, 2010 MT 204 (Mont. 2010) (limits on new arguments raised on appeal in postconviction)