DA 10-0272

IN THE SUPREME COURT OF THE STATE OF MONTANA

2010 MT 281

JOHNNIE LEE FOSTON,

 Petitioner and Appellant,

 v.

STATE OF MONTANA,

 Respondent and Appellee.

APPEAL FROM: District Court of the Fourth Judicial District,

In and For the County of Missoula, Cause No. DV 10-525

Honorable Robert L. Deschamps, III, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Johnnie Lee Foston (self-represented), Shelby, Montana

For Appellee:

Steve Bullock, Montana Attorney General; Mark W. Mattioli, Assistant 

Attorney General, Helena, Montana

Fred R. Van Valkenburg, Missoula County Attorney; Andrew W. Paul, 

Deputy County Attorney, Missoula, Montana

Submitted on Briefs: December 8, 2010

 Decided: December 28, 2010

Filed:

__________________________________________

Clerk

December 28 2010
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Justice Brian Morris delivered the Opinion of the Court.

¶1 Appellant Johnnie Lee Foston (Foston) appeals from an order of the Fourth Judicial 

District Court, Missoula County, denying his petition for postconviction relief. We affirm.

¶2 We review the following issue on appeal:

¶3 Whether Foston’s trial counsel’s failure to object to the State’s introduction of 

warrantless electronic surveillance of Foston constituted ineffective assistance of counsel 

that entitles Foston to postconviction relief.

FACTUAL AND PROCEDURAL HISTORY

¶4 The State of Montana (State) charged Foston with three counts of felony distribution 

of dangerous drugs. The State’s case relied on information gathered by law enforcement 

officers who had monitored extensively Foston’s activities. Detective Scott Newell of the 

Missoula County Sheriff’s Department (Detective Newell) arranged a confidential informant 

(CI) to make controlled drug purchases from Foston. Law enforcement officers observed 

interactions between Foston and the CI on multiple occasions. Some of the interactions 

between Foston and the CI took place in motel rooms in which the officers had installed 

video and audio monitoring devices that allowed them to hear and to see what occurred in 

the motel room. The officers also had observed drug trafficking activity without any video 

or audio surveillance. 

¶5 The State did not present the CI’s testimony or any recorded surveillance at trial. 

Detective Newell did testify, however, that the activity that he had observed through the 

video and audio monitoring was consistent with “his understanding of a drug deal.” Foston 
3

objected to that statement. The court allowed the testimony as Detective Newell’s present 

sense impression under M. R. Evid. 803(1). The State never attempted to introduce the 

audio and video recordings at trial. 

¶6 The State presented evidence beyond the electronic surveillance to make its case 

against Foston. Officers observed Foston entering and leaving a motel room where the CI 

had been waiting to purchase drugs from Foston. Officers gave the CI marked bills to 

purchase the drugs. The CI gave the officers drugs that she had purchased from Foston with 

the marked bills. Officers followed Foston’s car after one arranged buy and searched a 

residence where Foston had travelled. The search revealed drugs, excessive amounts of 

cash, and a semiautomatic handgun. Serial numbers on the cash found at the residence 

matched serial numbers on the cash that officers had given to the CI to purchase drugs from 

Foston. The owner of the residence testified that drugs and the majority of the $8,900 in 

cash found at the residence belonged to Foston. The owner of the residence also testified 

that he knew that some of the cash was likely drug money. 

¶7 A jury convicted Foston of two counts of felony distribution of dangerous drugs in 

violation of § 45-9-101, MCA. Foston appealed. See State v. Foston, 2009 MT 191, 351 

Mont. 85, 209 P.3d 262. Foston asked the Court to reverse his conviction based on our 

subsequent decision in State v. Goetz, 2008 MT 296, 345 Mont. 421, 191 P.3d 489. We held 

in Goetz that warrantless electronic monitoring and recording of face to face conversations 

between informants and defendants in the defendants’ home, in the absence of an exception 

to the warrant requirement, violated Montana Constitution Article II, Sections 10 and 11. 
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Foston, ¶ 11; Goetz, ¶ 54. 

¶8 We did not decide Goetz until after Foston’s trial had finished. The Court refused to 

apply Goetz retroactively to Foston’s case, in part, because Foston’s counsel had not 

objected at trial to the electronic surveillance on warrant grounds. Foston, ¶ 12. The Court 

also concluded that the District Court should not have relied on M. R. Evid. 803(1) to allow 

Detective Newell’s testimony regarding the electronic surveillance. Foston, ¶ 17. The Court 

deemed Detective Newell’s statement harmless, however, in light of other independent 

evidence presented at trial. Foston, ¶ 19. 

¶9 Foston filed a pro se petition for postconviction relief on the grounds that his trial 

counsel’s failure to object to the warrantless electronic surveillance denied him effective 

assistance of counsel. The District Court concluded that Foston’s counsel had not provided 

ineffective assistance when counsel failed to object to lawful evidence based on settled state 

and federal law. The court denied Foston’s petition. Foston appeals. 

STANDARD OF REVIEW

¶10 We review a district court’s findings of fact for clear error in postconviction relief 

proceedings and its conclusions of law for correctness. Whitlow v. State, 2008 MT 140, ¶ 9, 

343 Mont. 90, 183 P.3d 361. Ineffective assistance of counsel claims present mixed 

questions of law and fact that this Court reviews de novo. Worthan v. State, 2010 MT 98, 

¶ 8, 356 Mont. 206, 232 P.3d 380. We will not review arguments that a petitioner presents 

for the first time on appeal. Ford v. State, 2005 MT 151, ¶ 12, 327 Mont. 378, 114 P.3d 244; 

State v. Belanus, 2010 MT 204, ¶ 17, 357 Mont. 463, 240 P.3d 1021. 
5

DISCUSSION

¶11 Foston raises several new issues on appeal that we decline to address. Ford, ¶ 12,

Belanus, ¶ 17. We focus solely on whether Foston’s counsel rendered ineffective assistance 

of counsel in failing to object at trial to the introduction of warrantless electronic 

surveillance. We apply the two-part test established in Strickland v. Washington, 466 U.S. 

668, 104 S. Ct. 2052 (1984), to determine whether counsel rendered ineffective assistance. 

Worthan, ¶ 10. The defendant must demonstrate that counsel’s representation was deficient, 

and that counsel’s deficiency prejudiced the defense. Id. A petitioner who argues that trial 

counsel’s failure to object rendered counsel ineffective must show that counsel’s trial 

objection would have been proper and that the court likely would have sustained the 

objection. Ford, ¶ 7; State v. Jenkins, 2001 MT 79, ¶ 11, 305 Mont. 95, 23 P.3d 201; Kills 

on Top v. State, 273 Mont. 32, 51, 901 P.2d 1368, 1380 (1993).

¶12 A petitioner for postconviction relief must prove by a preponderance of evidence that 

he or she is entitled to relief. Herman v. State, 2006 MT 7, ¶ 44, 330 Mont. 267, 127 P.3d 

422. The court must determine whether, in light of all the circumstances, the identified acts 

or omissions fell outside the wide range of professionally competent assistance. Strickland,

466 U.S. at 690, 104 S. Ct. at 2066. This Court has recognized that every effort must be 

made “to eliminate the distorting effects of hindsight, to reconstruct the circumstances of 

counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the 

time.” Whitlow, ¶ 15 (citing Strickland, 466 U.S. at 689, 104 S. Ct. at 2065). The petitioner 

cannot rely on subsequently decided case law to render an attorney’s conduct ineffective at 
6

the time of trial. Hans v. State, 283 Mont. 379, 402, 942 P.2d 674, 688 (1997), overruled in 

part on other grounds, Whitlow, ¶ 13. Courts do not require counsel to anticipate future 

decisions. Strickland, 466 U.S. at 690, 104 S. Ct. at 2066.

¶13 Foston must show that his counsel’s objection at trial would have been proper and that 

the trial court likely would have sustained the objection. Ford, ¶ 7; Jenkins, ¶ 11. Foston’s 

counsel could not have made a Goetz objection to the admission or warrantless electronic 

surveillance because Goetz had not yet been decided. Counsel could have objected to the 

electronic surveillance on constitutional grounds. Foston has not established, however, that 

the trial court likely would have sustained the objection. We cannot rely upon future 

decisions to determine whether a trial court would have sustained an earlier objection. Hans, 

283 Mont. at 402, 942 P.2d at 688. 

¶14 Foston’s counsel’s failure to object fell well within the wide range of professionally 

competent assistance when counsel relied on state and federal case law at the time of trial. 

We do not require counsel to convince the district court or this Court to overrule relevant 

precedent in order to avoid rendering ineffective assistance of counsel. Foston has not 

demonstrated that his counsel’s representation was deficient, therefore, we do not need to 

address whether the alleged deficiency prejudiced Foston’s defense. 

¶15 Affirmed.

/S/ BRIAN MORRIS

We Concur:
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/S/ MIKE McGRATH

/S/ MICHAEL E WHEAT

/S/ PATRICIA COTTER

/S/ JAMES C. NELSON