State v. Smith

JUSTICE NELSON

concurs.

¶35 I concur in our decision, noting, however, my continuing disagreement with the matter discussed in Issue 2. See State v. McCaslin, 2004 MT 212, ¶ 51, 322 Mont. 350, ¶ 51, 96 P.3d 722, ¶ 51 (Nelson, J., dissenting and concurring). I also agree with Justice Cotter's dissent and concurrence in that same case. See McCaslin, ¶ 52 (Cotter, J., dissenting and concurring). At such point in time as there are two other votes to reconsider this issue, I stand ready to overrule McCaslin and proceed in accordance with our decision in State v. Egelhoff (1995), 272 Mont. 114, 900 P.2d 260, reversed by Montana v. Egelhoff, 518 U.S. 37, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996), but on independent state grounds.

¶36 I concur with that caveat.

JUSTICE COTTER joins in the concurrence of JUSTICE NELSON.