                                                                                            August 14 2012


                                         DA 11-0356

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2012 MT 176



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

ROBERT ARTHUR WING,

              Defendant and Appellant.


APPEAL FROM:          District Court of the Seventeenth Judicial District,
                      In and For the County of Valley, Cause No. DC 10-32
                      Honorable John C. McKeon, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Johnna K. Baffa; Van de Wetering & Baffa, P.C., Missoula, Montana

               For Appellee:

                      Steve Bullock, Montana Attorney General; Mardell Ployhar, Assistant
                      Attorney General, Helena, Montana

                      Nick Murnion, Valley County Attorney, Glasgow, Montana



                                                  Submitted on Briefs: July 11, 2012

                                                              Decided: August 14, 2012


Filed:

                      __________________________________________
                                        Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1     Appellant Robert Arthur Wing appeals from his conviction in the Seventeenth

Judicial District Court, Valley County, of felony driving while under the influence of

alcohol (fourth or subsequent offense) in violation of § 61-8-401, MCA. Wing argued at

trial that he had not been driving on the day of his arrest, and that another man, Michael

Halverson, had been the driver before the vehicle was disabled.           We consider the

following issue dispositive of this appeal:

¶2     Did the District Court abuse its discretion by preventing a defense witness from

testifying, pursuant to M. R. Evid. 804(b)(3), about a statement against interest made by

Halverson?

                   FACTUAL AND PROCEDURAL BACKGROUND

¶3     On October 31, 2010, the Valley County Sheriff’s Department responded to a

report of a disabled vehicle near the intersection of Highway 2 and Vandalia Road,

between Hinsdale and Glasgow, Montana. Upon arrival, the deputy observed Wing exit

from the driver side of a 1998 Chevy Malibu with a flat tire. Halverson was seated in the

front passenger seat of the car, and several beer containers--some empty, and some

unopened--were visible in the back seat.      A registration check revealed that the car was

owned by Wing’s mother, Helen. Both men appeared to be highly intoxicated, and both

were on probation with “no alcohol” restrictions as conditions of their probation.

¶4     The rim of the wheel with the flat tire was damaged, apparently from continued

driving on the flat tire, and the car had sustained a large amount of body damage. Wing


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told the deputy that they had tried to flag down help to the west of the present location,

but gave up and then drove on. The deputy asked Wing if he had just driven as far as he

could with a flat tire, and Wing responded, “Yeah, um yeah, so I could get off the road . .

. .” Wing agreed to other assertions the deputy made, but did not expressly indicate that

he had been driving.

¶5     Wing, who was having difficulty maintaining his balance, explained to the deputy

that he and Halverson had been waiting in the car for about an hour. He also offered that

he had “slammed” three beers during this hour of waiting. He subsequently failed a

series of field sobriety tests and was placed under arrest. He then began repeatedly

protesting that he had not been driving. At this time, Halverson exited the vehicle and

stated that Wing had not been driving.

¶6     Despite having already placed Wing under arrest, the deputy asked for

clarification as to who had been driving. Halverson’s answer is unclear in the deputy’s

video recording, but the deputy’s response to Halverson’s inaudible answer was, “He

wasn’t? Were you?” The deputy directly asked Halverson if he had been driving, but

Halverson declined to answer. The deputy then administered an initial breath test to

Halverson. The test revealed a blood-alcohol content of .228. Halverson was also placed

under arrest--for suspected violation of the conditions of probation.

¶7     At trial in the District Court, the sole issue was whether Wing had been in “actual

physical control” of the vehicle. Halverson was called as a defense witness, but he

invoked his Fifth Amendment right against self-incrimination and refused to testify.

Wing’s mother, Helen, testified that she had loaned her vehicle to Halverson so that he

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could go home and feed his cats, and that Wing had been in the passenger seat when the

duo drove away. Wing’s counsel attempted to elicit testimony regarding a statement by

Halverson to Helen that he was the driver of the car that night.        The District Court

sustained the prosecution’s hearsay objection and disallowed the testimony.

¶8     Wing testified that he had not driven the car that evening. He explained that after

the car had become disabled, Halverson had gotten out to check the trunk for a spare tire.

Wing testified that he entered the driver side of the car to look for Halverson’s cell phone

under the seat, and that while he was doing so, Halverson seated himself in the passenger

seat after failing to locate the spare tire.

¶9     The deputy testified that he retrieved the car keys “between the driver’s side and

passenger side on the floorboards.” Wing contested this issue at trial, alleging that the

police video shows the deputy leaning “only slightly into the passenger side door” to

retrieve the keys. The prosecution’s video index, which had not been disclosed prior to

trial, also contained the heading “found keys on passenger side.” Wing moved to dismiss

on this basis, arguing that the prosecution had withheld material evidence. The District

Court denied the motion.

¶10    Wing was convicted and sentenced to eight years in prison. He now appeals from

his conviction.

                                  STANDARD OF REVIEW

¶11    This Court reviews a district court’s rulings on admissibility of evidence for abuse

of discretion. State v. Jenkins, 2011 MT 287, ¶ 4, 362 Mont. 481, 265 P.3d 643. Where

the rationale for excluding evidence is based on the interpretation of an evidentiary rule

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or statute, our review is de novo. State v. Dist. Ct. of the Eighteenth Jud. Dist., 2010 MT

263, ¶ 31, 358 Mont. 325, 246 P.3d 415.

                                       ANALYSIS

¶12    Wing claims that Halverson admitted to “others out of court, including Helen

Wing, that he, not Robert Wing, had been the driver of the vehicle on the night in

question.” He claims that the District Court erred by excluding testimony regarding

Halverson’s statement to Helen.

¶13    Did the District Court abuse its discretion by preventing a defense witness from

testifying, pursuant to M. R. Evid. 804(b)(3), about a statement against interest made by

Halverson?

¶14    “Hearsay is a statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted.” M. R.

Evid. 801(c). Under the foundational policy of requiring that testimony be given by

witnesses in open court, under oath, and subject to cross-examination, hearsay is not

admissible into evidence. 2 McCormick on Evidence § 245 (Kenneth S. Broun ed., 6th

ed., Thomson/West 2006). There are, of course, exceptions when there are independent

indications of the reliability or trustworthiness of the out-of-court statement. Among

other exceptions to the hearsay rule, M. R. Evid. 804 addresses situations in which the

declarant is unavailable to testify as a witness. The relevant exception in this case is the

“statement against interest.” A statement by an unavailable witness is not excluded from

evidence when it is:



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       [a] statement which was at the time of its making so far contrary to the
       declarant’s pecuniary or proprietary interest, or so far tended to subject the
       declarant to civil or criminal liability, or to render invalid a claim by the
       declarant against another or to make the declarant an object of hatred,
       ridicule, or disgrace, that a reasonable person in the declarant’s position
       would not have made the statement unless the declarant believed it to be
       true. A statement tending to expose the declarant to criminal liability and
       offered to exculpate the accused is not admissible unless corroborating
       circumstances clearly indicate the trustworthiness of the statement.

M. R. Evid. 804(b)(3).

¶15    Accordingly, to be admissible under M. R. Evid. 804(b)(3), Halverson’s alleged

statement against interest must meet three tests: (1) Halverson must be unavailable as a

witness; (2) the statement must so far tend to subject Halverson to civil or criminal

liability that a reasonable person in his position would not have made the statement

unless he believed it to be true; and (3) because it was offered to exculpate Wing, the

statement must be corroborated by circumstances clearly indicating its trustworthiness.

¶16    Admission of hearsay evidence under M. R. Evid. 804 first requires a

determination that the declarant is “unavailable.” State v. Stuit, 277 Mont. 227, 231, 921

P.2d 866, 869 (1996). M. R. Evid. 804(a)(1) provides that a declarant is unavailable as a

witness if exempted from testifying concerning the subject matter of his or her statement

by ruling of the court on the ground of privilege.

¶17    Halverson was called to the witness stand and directly asked whether he was

driving on the night in question. He answered, “I refuse . . . and assert my right under the

Fifth Amendment against self incrimination, and, therefore decline to answer that

question.” He was then excused by the District Court. The State acknowledges that,

once Halverson’s claim of privilege had been sustained, he was “unavailable” within the

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meaning of M. R. Evid. 804(a)(1). Cf. State v. Fina, 273 Mont. 171, 183-184, 902 P.2d

30, 38 (1995). Accordingly, our inquiry turns to whether his statement would tend to

subject him to criminal liability to an extent that a reasonable person would not have

made it unless he believed it was true.

¶18    Wing attempted at trial to introduce testimony from his mother, Helen, regarding

the alleged statement made to her by Halverson, in which Halverson admitted to being

the driver on the night in question:

       DEFENSE COUNSEL: Did you talk to Mr. Halverson about how your car
       got off the highway and on Vandalia road turnoff?

       HELEN: Yeah. He said he had –

       PROSECUTION: Objection, hearsay, Your Honor.

       THE COURT: The objection is sustained as to what Mr. Halverson may
       say. The answer, though, called for is just a yes or no response, so I’ll have
       the question read back to you. [Court reporter read back original question.]

       HELEN: Yes.

       DEFENSE COUNSEL: Did he admit to you that he was the driver?

       PROSECUTION: Objection, hearsay.

       DEFENSE COUNSEL: Statement against interest.

       HELEN: Yes.

       THE COURT: Just a moment. Do not respond. The objection’s sustained.
       If there was any response it must be stricken from the record. I will advise
       the jury that you may not consider that response in your deliberations. Go
       ahead, Mr. Piocos.

       DEFENSE COUNSEL: Did Mr. Halverson tell you that he was driving
       drunk on October 31st, 2010?


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       PROSECUTION: Objection, hearsay.

       THE COURT: Sustained.

       DEFENSE COUNSEL: I have nothing further, your Honor.

Wing argues that the statement he sought to introduce constituted a statement against

interest under M. R. Evid. 804(b)(3), and should not have been excluded.

¶19    The underlying logic in providing a hearsay exception to statements against

interest is that such statements “have as their circumstantial guaranties of trustworthiness

the fact that persons generally do not make statements against their interest unless those

statements are true.” State v. La Pier, 208 Mont. 106, 110, 676 P.2d 210, 212 (1984).

One factor that influences this analysis is whether the statement solidly inculpates the

declarant in an offense. See e.g. United States v. Nazemian, 948 F.2d 522, 530 (9th Cir.

1991). “[T]he very fact that a statement is genuinely self-inculpatory . . . is itself one of

the ‘particularized guarantees of trustworthiness’ that makes a statement admissible under

the Confrontation Clause.” Williamson v. United States, 512 U.S. 594, 605, 114 S. Ct.

2431, 2437 (1994).

¶20    The information collected during the initial roadside investigation was likely

sufficient to establish that Halverson was intoxicated, a violation of his probation.

Accordingly, further evidence that he had been the driver not only tended to subject him

to a revocation, but to additional criminal liability for the DUI and a much higher

potential sentence. It also could possibly lead to civil liability for any damages to the car.

Rather than simply having probative value in a trial against him, Halverson’s alleged

statement is a confession and clearly against his own interest. Taken together with the

                                              8
evidence established at the time of Wing’s arrest, we conclude that Halverson’s alleged

statement likely would not have been made by a reasonable person in his position unless

he believed it to be true.

¶21    This Court has had scant previous opportunity to interpret “corroborat[ed by]

circumstances clearly indicat[ing] . . . the trustworthiness of the statement” within the

meaning of M. R. Evid. 804(b)(3). In La Pier, 208 Mont. at 111, 676 P.2d at 213, we

held that this Court “will ordinarily defer to the discretion of the District Court on matters

of admission of evidence, particularly where the court is determining circumstantial

guaranties of trustworthiness, unless an abuse of discretion is clearly shown.” Because

the District Court provided no justification for its ruling in the present case, we will look

to the record to adduce any corroboration for Halverson’s statement.

¶22    The State cites to State v. Powers, 233 Mont. 54, 57-58, 758 P.2d 761, 762-763

(1988), for the proposition that an uncorroborated hearsay statement is properly excluded

when it is made by one defendant, indicating that the codefendant was not involved in the

offense. The State also points to Halverson initially lying to the deputy about his identity

and his unwillingness to state on the record that he was driving, as indications that he is

untrustworthy and simply trying to obfuscate the issue to help his friend Wing. But a

number of factors corroborate Halverson’s statement: (1) approximately 40 minutes

elapsed between the report to the sheriff’s office of a disabled vehicle and when the

officer arrived on the scene; thus, there was plenty of time for Halverson and Wing to

move around; (2) the statements made by Halverson at the scene, and documented in the

police video, that Wing was not driving; (3) Helen’s testimony that she gave Halverson

                                              9
the keys and he drove the vehicle away from her home; (4) the deputy’s testimony that

the keys were equally available to both men within the car; and (5) the video evidence

that the keys were retrieved from the passenger side of the vehicle, where Halverson had

been seated. Still, the State argues that these pieces of evidence do not “clearly indicate

the trustworthiness of the statement.”

¶23    While the above factors do not conclusively establish the trustworthiness of

Halverson’s statement, they do corroborate the alleged statement. As such, they are

indications of trustworthiness and therefore support a conclusion that, given the

importance to Wing’s case, Helen’s testimony should have been allowed.              Helen’s

testimony was directly pertinent to the critical issue to be decided by the jury: was Wing

driving the vehicle? The State’s arguments certainly call into question the evidentiary

weight of the statement by Halverson, but the weight of the evidence should have been

left to the jury. And because (1) Halverson was unavailable as a witness, (2) his alleged

statement unquestionably could expose him to criminal liability, and (3) the alleged

statement was clearly corroborated by other evidence that indicates trustworthiness, we

conclude the District Court abused its discretion when it sustained the State’s objection.

¶24    While trial courts have the obligation to determine indications of trustworthiness,

those considerations must be made in the context of the entire proceeding and with a

view toward the ultimate issue that must be decided by the jury. Halverson’s alleged

statement against interest should have been admitted pursuant to M. R. Evid. 804(b)(3),

and the jury should have been given the opportunity to weigh all the evidence.



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                                    CONCLUSION


¶25   Based on the foregoing, we reverse the District Court’s judgment and remand for

further proceedings consistent with this Opinion.



                                                /S/ MIKE McGRATH


We concur:


/S/ JAMES C. NELSON
/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS
/S/ JIM RICE




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