Court Roundup

Montana: High court: Judge erred in allowing cell phone conversation as evidence
HELENA, Mont. (AP) — The state Supreme Court has ruled that a district judge erred when he allowed a cell phone conversation between a criminal defendant and a police informant — which was obtained without a warrant — to be used as evidence in a Hill County assault case.

The Supreme Court last week sent Brian Hayden Allen’s case back to District Court for a new trial, saying the state constitution does not allow the monitoring of private telephone conversations without a warrant. The Independent Record reports that if Allen is retried, Hill County will not be allowed to use the recording.

Allen’s case began on Jan. 27, 2008, when he became increasingly drunk at a Havre bar and called a friend to drive him to a man’s home where he is accused of trying to get drugs or money. Prosecutors said Allen got the man into the back seat of the car and pistol-whipped him into unconsciousness. At some point, prosecutors said, the gun fired through the car’s rear window.

A week later, the friend who drove Allen to the home agreed to work as an undercover informant and to record her phone conversations with Allen. District Judge David Rice denied a request to suppress the recordings.

Allen was convicted on two counts of assault with a weapon and one count of criminal endangerment. He was sentenced in December 2008 as a persistent felony offender to 30 years in prison.

The Supreme Court on Wednesday also said Judge Rice was wrong when he refused to reject a juror despite several statements that showed a pro-prosecution bias, and in a matter of jury instruction.

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