testimony from police officer concerning statements made by mother about domestic incident between her and child’s father admissible under excited utterance hearsay exception in hearing to adjudicate child as a youth in need of care; Crawford, 541 U.S. 36, not applicable
How later courts described this case
- testimony from police officer concerning statements made by mother about domestic incident between her and child’s father admissible under excited utterance hearsay exception in hearing to adjudicate child as a youth in need of care; Crawford, 541 U.S. 36, not applicable
Written by the judges who cited it.
The opinion
JUSTICE NELSON
concurs.
¶17 I concur in the result of the Court’s Opinion, but not in all that is said.
¶18 As noted at ¶ 11 of the Opinion, R.M.’s objection to Dahle’s testimony was simply that it “[c]all[ed] for hearsay.” The State’s attorney responded that the basis for the admissibility of the testimony *459 was Rule 803(2), M.R.Evid., the excited utterance exception. R.M. did not respond; he failed to set forth the specific basis for his general hearsay objection. State v. Ferguson, 2005 MT 343, ¶ 63 , 330 Mont. 103, ¶ 63 , 126 P.3d 463, ¶ 63 (“[sjpecific objections must be made to portions of testimony deemed inappropriate; broad general objections do not suffice.”) (citations omitted).
¶19 Instead, on appeal, for the first time, R.M. recasts his arguments as ones involving confrontation, citing Crawford v. Washington (2004), 541 U.S. 36 , 124 S.Ct. 1254 , 158 L.Ed.2d 177; Bonamarte v. Bonamarte (1994), 263 Mont. 170 , 866 P.2d 1132 ; Rule 611(e), M.R.Evid.; and State v. Mizenko, 2006 MT 11 , 330 Mont. 299 , 127 P.3d 458 . Moreover, R.M. made no argument in the trial court that Dahl’s statements might not even qualify as excited utterances.
¶20 The excited utterance exception is one of the recognized exceptions to the hearsay rule. Rule 803(2), M.R.Evid. R.M. failed to articulate his objection to the trial court in a fashion that would have preserved any of his present appeal arguments against Dahl’s testimony which was offered on the basis of the exception to the hearsay rule.
¶21 Given the posture in which this case reaches us on appeal from the proceedings below, I would arrive at the same result as the Court, but on the basis of the well-established rule that this Court will not address an issue raised for the first time on appeal, or a party’s change in legal theory. State v. Buck, 2006 MT 81, ¶ 109 , 331 Mont. 517, ¶ 109 , 134 P.3d 53, ¶ 109 (citations omitted). I would not go any further than that, because of the importance of the arguments being raised here for the first time and because of the fundamental nature of the right to parent which is at issue. In re C.R.O., 2002 MT 50, ¶ 10 , 309 Mont. 48, ¶ 10 , 43 P.3d 913, ¶ 10 .
¶22 I concur in the result.