State v. Songer (2025 MT 176): Re-affirming the Unavailability Requirement for Remote Testimony and the Necessity of Re-Sentencing When Dependent Convictions Are Vacated

Introduction

In State v. J. Songer, the Supreme Court of Montana examined a multi-faceted appeal arising out of three consolidated criminal matters:

• Drug-related charges (ADC-2022-464),
• Two counts of attempted deliberate homicide and two counts of assault with a weapon (ADC-2022-476), and
• Revocation of previously suspended sentences imposed in 2018 (ADC-2018-88).

Appellant Jory Jerae Songer challenged (1) the admission of a witness’s video deposition, (2) the denial of his motion to suppress evidence found in a backpack, and (3) the refusal to appoint substitute counsel. The decision establishes two key take-aways:

1. A recorded deposition may not be played at trial unless the State first proves the witness is genuinely unavailable for live testimony, in strict adherence to the Confrontation Clause, and
2. Where sentencing decisions relied on convictions that are later reversed, fundamental fairness requires re-sentencing in all interconnected matters.

Summary of the Judgment

The Supreme Court issued a split outcome:

• Issue 1 – Video Testimony: Reversed. The State conceded that it failed to demonstrate witness unavailability; therefore, Songer is entitled to a new trial on the attempted homicide and assault counts.
• Issue 2 – Suppression Motion: Affirmed. The initial stop was supported by particularized suspicion; evidence from the probationary backpack search was admissible.
• Issue 3 – Substitute Counsel: Affirmed. The district court did not abuse its discretion in denying new counsel because the alleged breakdown was caused by Songer’s unilateral refusal to cooperate.
• Sentencing: All three cases were remanded for re-sentencing because the district court relied on convictions subsequently vacated.

Detailed Analysis

A. Precedents Cited and Their Influences

• State v. Norquay (2011): Clarified that recorded testimony is permissible only when the witness is unavailable and the defendant had a prior opportunity for cross-examination. Songer applies and enforces this rule.
• State v. Hart (2009): Articulated the State’s burden to show a “good-faith effort” to secure a witness before resorting to video evidence. The Court found that burden unmet.
• State v. Johnson (2019): Set the modern Montana test for evaluating motions to substitute counsel (conflict, irreconcilable differences, or complete communication breakdown). Relied upon to affirm denial of new counsel.
• State v. Wilson (2018) & State v. Stanley (2024): Reinforced the “particularized suspicion” standard for Terry stops—a principle used to uphold the investigatory stop here.
• Bauer v. State (1999): Held that vacated convictions used at sentencing require resentencing. The Court invokes Bauer to require new sentences in all three dockets.

B. Legal Reasoning

1. Confrontation Clause & Witness Unavailability

The Court accepted the State’s candid concession that it never demonstrated Patience Davis’s actual unavailability. Threats from inmates and a scheduled outpatient program were hypothetical; no subpoena was issued, no scheduling accommodations were explored, and no affidavit of medical or physical inability was provided. This fell short of the “good faith” threshold elaborated in Norquay and Hart. The error was held structural because Davis supplied crucial eyewitness links tying Songer to the shooting.

2. Particularized Suspicion for the Initial Stop

The Court looked at the totality of circumstances test codified in § 46-5-401, MCA. Facts relied upon:

• Prior “call for service” referencing a stolen silver BMW tied to drug activity.
• High-crime hotel parking lot near an interstate.
• Three occupants hunched over, appearing to ingest narcotics, who “froze” when they saw police and immediately exited the vehicle.
• Officer Guerrero’s visual identification of McPhee, a known fugitive.

These articulable observations exceeded the kind of vague “any person” behavior previously condemned in Loberg and Reeves. Once McPhee was approached, further incriminating clues (drug paraphernalia in open view, evasive answers, and Songer’s flight) lawfully expanded the scope of the investigation. The probationary search that produced the backpack’s contents was therefore derivative of a valid stop.

3. Denial of Substitute Counsel

Under Johnson, a defendant must show an actual conflict, irreconcilable conflict, or complete communication breakdown not of his own making. The record showed:

• Defense counsel (Scott) remained willing to meet and had performed significant investigative work.
• Songer refused meetings for strategic reasons; his quarrels concerned trial tactics (e.g., timing, phone evidence, subpoenas).
• No evidence of conflict of interest or ethical impediments for Scott.

Accordingly, the trial court’s refusal to allow a last-minute substitution—made six weeks before trial—was not arbitrary or unreasonable.

4. Sentencing Ramifications

Because the district court expressly relied on the attempted homicide convictions to revoke Songer’s 2018 suspended sentences and to impose the maximum on the drug counts, the subsequent reversal triggers Bauer: all interconnected sentences must be revisited to purge reliance on invalid convictions.

C. Impact of the Decision

• Evidence Law / Criminal Procedure: Prosecutors must make a record proving unavailability before introducing remote testimony. Failure to do so is reversible per se when the witness is material.
• Defense Strategy: Defense counsel now have a strong basis to object—on the spot—if the State has not satisfied Rule 804 criteria. A mere protective order or deposition preservation order is insufficient.
• Trial Management: Courts must document their inquiries into attorney-client breakdowns. The ruling confirms that defendants cannot engineer substitutions simply by stonewalling counsel.
• Sentencing Practice: Judges are cautioned against weighting vacillating or pending charges too heavily; subsequent reversals will mandate wholesale resentencing, increasing administrative burdens.

Complex Concepts Simplified

• Confrontation Clause: A constitutional right allowing defendants to face—and cross-examine—the witnesses against them. Remote or recorded testimony is a limited exception, allowed only if the witness is demonstrably unavailable.
• Particularized Suspicion vs. General Suspicion: “Particularized” means the officer can point to specific, objective facts suggesting this person is committing a crime, not merely behaving in a way any normal person might.
• Terry Stop: A brief, on-the-spot detention that does not require full probable cause, but does require particularized suspicion (named after Terry v. Ohio, 1968).
• Gallagher Hearing: A Montana procedure (from State v. Gallagher, 2001) where a court determines whether a defendant is entitled to new counsel.
• Probationary Search: Individuals on probation often agree to warrantless searches as a condition of release. Such searches remain subject to reasonableness and scope limitations.

Conclusion

State v. Songer reinforces crucial constitutional safeguards while clarifying procedural expectations in Montana courts:

1. Video or deposition testimony cannot replace live testimony without a firm, contemporaneous record of witness unavailability.
2. Law-enforcement observations, when combined with specific intelligence and location-based factors, continue to satisfy the Montana standard for particularized suspicion.
3. Defendants may not unilaterally create “breakdowns” to obtain new counsel, but courts must scrutinize such claims under Johnson.
4. Sentences infected by later-vacated convictions must be revisited to preserve the integrity of judicial outcomes.

Practitioners should treat the case as a dual reminder: adhere strictly to confrontation requirements, and draft sentencing findings that can survive the possible reversal of companion convictions. Future litigants in Montana will undoubtedly cite Songer when contesting remote testimony and when seeking resentencing after partial appellate victories.