State v. B. Hillious, 565 P.3d 1218

Background

Defendant Bradley Hillious was convicted of deliberate homicide for the death of his wife; conviction entered Jan. 14, 2022; appeal and post-conviction motion followed.
After conviction, Hillious moved for a new trial (filed Oct. 6, 2023) alleging the Flathead County Clerk violated § 3-15-405, MCA by not certifying jurors who failed to return questionnaires to the sheriff for personal service.
The Clerk’s practice (confirmed in other Flathead proceedings): mail jury notices and questionnaires to a large random draw but remove nonresponders from the pool rather than certify them to the sheriff; sheriff rarely effectuated personal service.
Hillious also challenged admission of out-of-court statements by the victim: a petition for a temporary order of protection (TOP) and certain texts, arguing Confrontation Clause (testimonial hearsay) violations.
The District Court denied the new-trial motion (finding statutory error but not substantial noncompliance) and admitted the TOP and some witness testimony; Supreme Court majority affirmed—statutory violation was technical/harmless and TOP admission harmless error despite being testimonial.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Hillious)	Held
1. Whether clerk’s failure to certify nonresponding jurors to sheriff violated jury-selection statutes sufficiently to require reversal	Substantial compliance existed; clerks’ practical practices do not undermine randomness; any error was technical and harmless	Statutory violation of § 3-15-405 undermined randomness and is per se structural requiring reversal	Court held there was substantial compliance; error was technical/harmless and did not affect randomness; no per se reversal
2. Timeliness / good cause for late new-trial motion	Motion untimely (630 days after verdict); defendant had means to discover and should have objected pretrial; claim forfeited	Learned of clerk practice only after other county orders in 2023; good cause and interest of justice justify late filing	Court held Hillious waived/forfeited pretrial challenge and failed to show good cause; also found no interest-of-justice basis because no prejudicial structural error shown
3. Admission of TOP petition (testimonial hearsay)	TOP admissible (court found nontestimonial below); other admissible evidence corroborated content, so any error harmless	TOP was testimonial affidavit-like evidence; no prior opportunity to cross-examine; admission violated Confrontation Clause and requires reversal	Court found TOP was testimonial and its admission was error, but error was harmless beyond a reasonable doubt given cumulative/corroborating evidence, so conviction stands
4. Admission of victim’s texts to coworker	State: defendant waived specific objection at trial; no preserved error	Defendant: texts were testimonial or otherwise inadmissible; trial court deferred ruling pretrial so preserved	Court held defendant failed to preserve specific objection at trial for appeal; did not reach merits

Key Cases Cited

Taylor v. Louisiana, 419 U.S. 522 (U.S. 1975) (fair-cross-section principle under Sixth Amendment)
Duren v. Missouri, 439 U.S. 357 (U.S. 1979) (three-part test to establish fair-cross-section constitutional violation)
Crawford v. Washington, 541 U.S. 36 (U.S. 2004) (testimonial hearsay inadmissible absent prior cross-examination opportunity)
Davis v. Washington, 547 U.S. 813 (U.S. 2006) (primary-purpose test for emergency nontestimonial statements)
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (U.S. 2009) (forensic certificate held testimonial)
Bullcoming v. New Mexico, 564 U.S. 647 (U.S. 2011) (lab report testimonial; surrogate testimony insufficient)
State v. LaMere, 298 Mont. 358 (Mont. 2000) (Clerk’s phone-only summons was substantial noncompliance; structural error; clarified standard for substantial compliance)
State v. Bearchild, 324 Mont. 435 (Mont. 2004) (distinguishing technical departures subject to harmless-error review from substantial noncompliance)
State v. Porter, 390 Mont. 174 (Mont. 2018) (victim’s statements for medical treatment held nontestimonial under primary-purpose test)