                                    No. 8 3 - 7 2 ( B )
                      IN THE SUPREME COURT OF THE STATE OF MONTANA

                                            1984



THE STATE OF MONTANA,

                     Plaintiff and Respondent,
    -vs-
DAVID ALAN LAPIER,

                     Defendant and Appellant.




APPEAL FROM:         District Court of the Eighth Judicial District,
                     In and for the County of Cascade,
                     The Honorable Joel G. Roth, Judge presiding.

COUNSEL OF RECORD:
         For Appellant:
                     Marcia Birkenbuel, Great Falls, Montana

         For Respondent:
                     Hon. Mike Greely, Attorney General, Helena, Montana
                     J. Fred Bourdeau, County Attorney, Great Falls,
                     Montana



                                    Submitted on Briefs:             November 2 3 ,   1983
                                                          Decided:   February 2, 1984



Filed:     i- EB   2 -. i984




                                    Clerk
Mr. Justice John C. Sheehy delivered              the Opinion of the
Court.

      The    defendant, David Alan        LaPier, appeals      from his
conviction of attempt to commit burglary in the District
Court of the Eighth Judicial District, Cascade County.                 We
affirm his conviction.
        In the early morning hours of May 9, 1982, Richard Pike,
a former deputy sheriff, heard "banging" noises coming from
the rear of the Anderson Office Machines building located
directly across the alley from his home.             He looked out one
of   his    bedroom   windows   and    saw what     appeared   to be    a
flashlight at the rear door of the Anderson Office Machines
building and some shadowy figures of individuals.              Pike then
called the Great Falls Police Department and notified them
that a break-in was in progress.
      Deputy Sheriff Richard W. Donovan arrived at the alley
behind     Anderson   Office    Machines    about    5   minutes   after
receiving the dispatch and noticed three individuals walking
toward him down the alley.            Donovan got out of his vehicle
and ordered the three men to halt.          Two of the men ran across
the a1.l.e~ into an adjacent yard.            The third man, later
identified as the defendant, David Alan LaPier, stopped and
was placed into custody by the deputy.            The deputy searched
L,aPier and discovered a small flashlight in his pocket.
     While LaPier was being placed            into custody, another
deputy sheriff, James H. Bruckner, searched the area north of
Anderson Office Machines where the two men had last been
seen.      He found one of the suspects, George Owens, hiding in
one of the yards nearby.        The other suspect, Dale Gladue, was
found crouching near a wood pile a.n.dwas detained by Pike.
Both Owens and GLadue were taken into custody and charged
with attempted burglary.
     During a follow-up investigation of the Anderson Office
Machines    incident, an officer of the Great Falls Police
Department obtained a tire iron that had been found in the
alley     behind   Anderson       Office    Machines    near    where       the
defendants were first seen by deputy Donovan.                  It was found
that the tire iron matched the pry marks on the back door of
the Anderson Office Fachines buil-ding. The officer also took
photographs of the footprints found on the floor and on the
doormat    near    the   door.      He     testified   that    one   of     the
footprints positively matched the sole pattern of the shoe
worn by Owens, and that the other prints appeared to be vade
by shoes with the same sole pattern as those worn by Gladue.
     The defendant, LaPier, pled "not guilty" to the charge
of attempted burglary and trial was held on November 16 and
17, 1982.      After the state rested its case, counsel for
LaPier moved       the   court    for permission       to   introduce the
testimony of Daniel L. Loomis, a detective for the Great
Falls Police Department.            On the night of May             9, 1982,

Detective Loomis had interviewed a possible witness to the
attempted    break-in     at     Anderson    Office    Machines.          Deane
Malone, a Canadian citizen, told Detective Loomis that he had
been sitting in his car at the gas station directly next door
to the Anderson Office Machines building, when he saw three
individuals walk around the corner of the alley to the back
of   the    building.          According     to   Malone,     one    of    the
individuals, whom he later identified as Owens, ran upstairs
to the back of the building, while the other two went around
to the side of a van which was parked in the alley.                   Malone
stated     that because    of his position         in relation to the
building, he could not see Owens after he ran up the stairs,
but that through thk windows of the van he could see the
other two individuals moving back and forth.                 It did not
appear     to    him    that   the   two   individuals were    carrying
anything.
     While admitting that Detective Loomis' testimony as to
his interview with Malone would constitute hearsay, La.Pier' s
counsel. argued that the testimony should be admitted und.er
Rule 804 (b)(5) of the Montana Rul-es of Evidence.           The court,
however,    found      insufficient circumstantial      guaranties   of
trustworthiness as required by Rule 804 (b)(5) and denied the
admission of the testimony.          The defense then rested without
producing any evidence.
     The jury returned a verdict of guilty and Lapier was
given a three year suspended sentence, with six months to be
served in the county jail.
     The sole issue on appeal is whether the District Court
erred in ruling that Detective Loomis' testimony was not
admissible under Rule 804(b) (5), Mont.R.Evid.
     Rule       804 (b)(5), Montana    Rules of   Evidence provides:
     "(b)   Hearsay exceptions.   The following are not
     excl.uded by the hearsay rule if the declarant is
     unava.ilableas a witness: l1

     " (5)    Other exceptions.      A statement not
     specifically covered by any of the foregoing
     exceptions but having comparable circumstantial
     guarantees of trustworthiness."

     The state contends that Detective 1,oomis' testimony as

to his interview with Mal-one fails to meet the requirement of
Rule 804 (b)(5) that such testimony possess             "circumstantiaI
guarantees       of    trustworthiness"    comparable   to   the   other
enumerated exceptions in Rule 804 (b)(5)          .     Therefore, the
"trustworthiness" requirement of               Rule    804(b) (5) must       he

explored.                   C




     Rule    804 (b)( 5 )       of the Montana      Rules of Evidence is
significantly different from its federal counterpart.                        In
addition to the          requirement of       equivalent circumstantial
guaranties of trustworthiness, the federal rule requires that
(A) the statement is offered as evidence of a material fact;
(B) it is more probative on the point for which it was
offered than any other evidence; and (C) the general purposes
of the rules and the interests of justice will be served by
its admission.
     When the Montana Supreme Court Commission on Evidence
was formulating the Montana Rules of Evidence, it determined
that the residual exception should allow room for growth and
development of the l.aw of evidence in the area of hearsay and
that the additional conditions imposed by the federal rule
were too restrictive and contrary to the purpose of the
provision.     Therefore, the conditions imposed by the federal
rule were omitted from Montana's version of the residual
exception.      Because of this omission, an analysis of the
applicability       of      Rule     804 (b)(5)      centers       on   whether
"comparable circumstantial guarantees                 of   trustworthiness"
exist.
     The     Commissioners         suggest   that     "the     circumstantial
guarantees     of    trustworthiness         found    in     the    Commission
Comments to each of the other exceptions in Rule 804 (h)(5)
are to be applied with this exception in finding 'comparable
guarantees of trustworthiness.'"             See the Commission Comments
following Rule 804 (b)(5) and Rule 803 (24) M0nt.R.Evi.d.
     In regard to the first exception enumerated in Rule
804(b), former testimony, the Commission states that the
circumstantial guaranties of trustworthiness can be found in
the conditions under which this type of hearsay statement is
made; that is, the witness is under oath and subiect to
cross-examination.            The   circumstantial   guaranty    of
trustworthiness found in the second exception, statements
made under belief of impendina death, are the requirements
that the statement be made under a sense of impending death
and that it concern the cause of death.       The third exception,
statements against interest, have as their circumstantial
guaranties of trustworthiness the fact that persons generally
do not make statements against their interest unless those
statements are true.          The fourth exception, statements of
personal or family history, also have as their circumstantial
guaranty of trustworthiness a propensity for the truth.         The
Commission found that the guaranty arises "when the topic is
such that the facts are likely to have been inquired about
and that persons having personal knowl-edge have disclosed
facts which have thus been discussed in the community; and
thus the community's conclusion, if any has been formed, is
likely to be       a   trustworthy one."     Citing 5 Wigmore -
                                                              on
Evidence, 5 1580 at 4 4 4 .
     The District Court found that the only factor which
could be considered a guaranty of trustworthiness in the
circumstances surrounding Malone's         statements to Detective
Loomis is the fact that Malone was apparently a disinterested
observer to the incidents which occurred on May 9, 1982.
However, upon      examining the circumstan.tia1 guaranties of
trustworthiness upon which the other exceptions are based,
the District Court concluded that Malone's disinterest alone
would not satisfy the requirements of trustworthi-ness under
Rule 804 (b)(5).
    We agree.    We 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.
    The judgment of the District Court is affirmed.


                                             ~i.
                                             /        Justice
                                                             MLL~
                                             i
  We Concur:
