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State v. Forsythe

Supreme Court of Montana

March 14, 2017

STATE OF MONTANA, Plaintiff and Appellee,
JOSEPH D. FORSYTHE, Defendant and Appellant.

          Submitted on Briefs: December 7, 2016

          For Appellant Chad Wright, Chief Appellate Defender, Jennifer Hurley, Assistant Appellate Defender, Helena, Montana

          For Appellee Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana Scott D. Twito, Yellowstone County Attorney, Benjamin Halvorsen, Deputy County Attorney, Billings, Montana

          Michael E Wheat Justice

         ¶1 In November 2013, Joseph Forsythe and his wife, Giana, had a violent physical altercation after which Forsythe was charged with Partner/Family Member Assault (PFMA). While detained and under a "no contact" order, Forsythe sent letters to Giana directing her to provide false testimony regarding the incident. Giana provided the letters to the authorities. Thereafter the State charged Forsythe with felony tampering with a witness. A jury found Forsythe guilty of both tampering and PFMA. Forsythe appeals his sentence and evidentiary rulings issued by the Thirteenth Judicial District Court, Yellowstone County, during and following his trial. We affirm.


         ¶2 We restate the issues on appeal as follows:

         ¶3 Did the District Court err in holding that the letters Forsythe sent to Giana were protected by spousal privilege?

         ¶4 Did the District Court abuse its discretion by allowing a lay witness to testify regarding handwriting samples?

         ¶5 Did the District Court impose an illegal sentence by ordering Forsythe to pay a $20 information technology surcharge?


         ¶6 In November 2013, Joseph Forsythe was charged in the Billings Municipal Court with misdemeanor Partner/Family Member Assault-Second Offense following a violent physical altercation with his wife, Giana, during which she was seriously injured. While confined at the Yellowstone County Detention Facility (YCDF) and under a "no contact" order, Forsythe and Giana wrote letters to one another. Giana received, at a minimum, five letters from Forsythe dated between November 15, 2013, and January 24, 2014. One of these letters unequivocally instructed her to tell the authorities that her injuries were the result of her falling and hitting herself on a cabinet. He further directed her to refuse to testify against him and to claim she had a mental illness that would preclude her from testifying.

         ¶7 Giana gave the letters to the Billings City Attorney's Office. The City Attorney moved to dismiss the Billings Municipal Court case without prejudice and, in February 2014, Forsythe was charged with one count of felony tampering with a witness[1] and one count of misdemeanor PFMA in the Thirteenth Judicial District Court. In May 2014, the State filed notice of its intent to designate Forsythe a persistent felony offender (PFO) on the grounds that less than five years had elapsed between Forsythe's 2014 felony tampering charge and his 2011 release from parole on a charge of felony residential burglary.

         ¶8 In June 2014, Forsythe filed a motion in limine seeking to prevent the letters he sent to Giana from being admitted into evidence in his tampering case. He argued that the letters constituted confidential communication between spouses and were protected by spousal privilege under § 26-1-802, MCA. The State countered that the letters to Giana were not within the scope of spousal privilege because the letters were intended to intimidate and harass Giana into silence.

         ¶9 The court conducted a motion hearing on July 30, 2014, at which law enforcement officer Brad Tucker, who was noticed as a witness on June 23, testified as to his handwriting analysis background and experience and that he had testified at previous unrelated trials as an expert in this field. He also compared letters received by the presiding judge from Forsythe with the letters Giana received and concluded they were all written by the same person. Forsythe objected to Tucker's testimony on foundation grounds and the State's failure to notice Tucker as an expert. The court overruled the objections, noting that Forsythe's handwriting was extremely distinctive and could be effectively compared by the judge, juror, or a lay witness. The court admitted the letters into the record. Following the hearing, the District Court issued its ruling from the bench preliminarily granting Forsythe's motion in limine. The court's subsequent written order informed the State that it would have to rely on "other evidence, other than the testimony of [Giana], to establish the elements of [witness tampering]."

         ¶10 During the pre-trial conference for Forsythe's August 11, 2014 jury trial, the District Court ruled that Giana could testify that she received letters from Forsythe but she could not testify as to the contents of those letters because to do so would violate spousal privilege as it applied to the witness tampering charge. Following Giana's trial testimony, the jury heard the same handwriting analysis testimony from Tucker as the District Court had heard at the July 30 hearing. The testimony was intended to establish that Forsythe had written the letters to Giana in violation of § 45-7-206, MCA, i.e., the tampering statute. The State, however, did not offer him as an expert in this case; consequently, he offered opinion testimony as a lay witness. Forsythe objected to Tucker's authentication testimony arguing that because the State had not noticed Tucker as an expert Tucker's lay witness testimony did not satisfy M. R. Evid. 901(b)(2) (Rule 901). Following Tucker's testimony, the court permitted the State to introduce the letters into evidence in the tampering case. At the time of the admissibility ruling, Forsythe objected solely on the grounds of spousal privilege. The jury found Forsythe guilty of both witness tampering and PFMA.

         ¶11 In January 2015, the District Court issued its Judgment, committing Forsythe to the Montana State Prison for fifteen years with five years suspended for the tampering charge and sentencing him to YCDF for one year for the PFMA. The PFMA sentence was ordered to run concurrently with the tampering sentence. Forsythe received credit for the time served in pre-trial incarceration and was designated a PFO. He was subject to numerous terms and conditions, including completing an anger management program and other behavioral modification programs.

         ¶12 Forsythe filed a timely appeal.


         ¶13 This court reviews a district court's evidentiary decisions for an abuse of discretion. State v. Pingree, 2015 MT 187, ¶ 9, 379 Mont. 521, 352 P.3d 1086. The determination of whether evidence is relevant and admissible is within the sound discretion of the trial judge and will not be overturned absent a showing of abuse of discretion. State v. Levanger, 2015 MT 83, ¶ 7, 378 Mont. 397, 344 P.3d 984.


         ¶14 Did the District Court err in holding that the letters Forsythe sent to Giana were protected by spousal privilege?

         ¶15 Forsythe claims his letters are confidential marital communication and thus protected by the spousal privilege doctrine. The doctrine of spousal privilege originated in English common law and was first recognized by the United States Supreme Court in Stein v. Bowman, 38 U.S. 209, 10 L.Ed. 129 (1839). Most states subsequently codified the privilege and Montana enacted its first spousal privilege law in 1867. State v. Nettleton, 233 Mont. 308, 313, 760 P.2d 733, 736 (1988). The central principle behind the privilege is "to protect the sanctity of the marriage and home." In re Marriage of Sarsfield, 206 Mont. 397, 406, 671 P.2d 595, 600 (1983) (citations omitted). However, we also noted in Sarsfield that the privilege is subject to the maxim that "[w]hen the reason of a rule ceases, so should the rule itself." Section 1-3-201, MCA; Sarsfield, 206 Mont. at 406, 671 P.2d at 600.

         ¶16 While the principle behind the privilege remains, the law codifying it has evolved considerably since 1867 and the privilege is not as far-sweeping as it once was. Exceptions have arisen, one of which provides that threatening communications- whether oral or written-are not privileged or protected and should not be excluded from evidence based upon the spousal privilege. Nettleton, 233 Mont. at 317, 760 P.2d at 739; State v. Edwards, 2011 MT 210, ¶ 19, 361 Mont. 478, 260 P.3d 396.

         ¶17 The applicable spousal privilege statute, § 26-1-802, MCA, provides:

Neither spouse may, without the consent of the other, testify during or after the marriage concerning any communication made by one to the other during their marriage. The privilege is restricted to communications made during the existence of the marriage relationship and does not extend to communications made prior to the marriage or to communications made after the marriage is dissolved. The privilege does not apply to a civil action or proceeding by one spouse against the other or to a criminal action or proceeding for a crime committed by one spouse against the other or against a child of either spouse.

         ¶18 Forsythe asserts that the District Court was correct when it issued its preliminary ruling granting his motion in limine and finding that the letters Giana received while Forsythe was detained at the YCDF were "privileged spousal communications." He continues, however, that the court "erred . . . in how it subsequently applied the privilege statute to testimony and evidence on the tampering charge."

         ¶19 Forsythe contends that the court incorrectly ruled that the letters were not covered by the spousal privilege because they were written communications rather than oral testimony. In other words, the District Court correctly concluded that Giana could not orally testify about the spousal communications but it erred when it admitted the letters through a third-party lay witness "merely because they took a written form." Forsythe further asserts that admitting the testimony of a lay witness unfamiliar with his handwriting to authenticate the letters violated Rule 901.

         ¶20 Lastly, Forsythe maintains that the letters contained no threats to Giana and the State produced no evidence that Giana felt fearful or threatened. Rather, and relying on Nettleton, he claims that the letters were communications (1) "'intended to convey a message from one spouse to the other, ' and (2) the message was 'intended by the communicating spouse to be confidential in that it was conveyed in reliance on the confidence of the marital relationship.'" Nettleton, 233 Mont. at 317, 760 P.2d at 739. As such, they were privileged spousal communications.

         ¶21 The State acknowledges that the District Court's reasoning for admitting the letters was erroneous and that written spousal communications are protected by the privilege. However, the State, also relying on Nettleton, maintains that the court did not err in admitting these letters because the content of the communications was intimidating and intended to influence Giana's participation in the case, and therefore were not protected spousal communications. Nettleton, 233 Mont. at 317, 760 P.2d at 739.

         ¶22 Additionally, the State asserts that the statutory language in § 26-1-802, MCA- "[t]he privilege does not apply to . . . a criminal action or proceeding for a crime committed by one spouse against the other"-should apply to the charge of tampering with a witness when the witness is the spouse. It acknowledges that while tampering with a witness typically is an offense against the public administration, it is also an offense committed against Giana in this case. As such the statute supports a finding that the letters are not protected by the privilege.

         ¶23 Unfortunately, the District Court, in its order granting Forsythe's motion in limine, did not provide a detailed legal rationale for its decision. To the extent, as argued by the parties, that the court drew a distinction between written and oral communications and concluded that written communications are not protected by spousal privilege, this was error.

         ¶24 Having determined that the written letters were subject to protection under the privilege, we next turn to whether the letters contained intimidating and threatening language, and therefore were not communicated "in reliance on the confidence of the marital relationship." Edwards, ΒΆ 19. We acknowledge that many of the letters contain terms of endearment and repeated professions of love and that we observed no overt or direct threats of violence. However, we conclude that, based upon the underlying relationship of the persons involved, direct and overt threats of violence are not always necessary to instill fear, intimidation, or a ...

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