No. 8 7 - 3 3 8
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
SUSAN KAY BROWN,
Defendant and Appellant.
APPEAL FROM: District Court of the Third Judicial District
In and for the County of Powell,
The Honorable Arnold Olsen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Conde F. Mackay, Public Defender, Anaconda, Montana
For Respondent:
Honorable Mike Greely, Attorney General, Helena, Montana
Kathy Seeley, Assistant Attorney General,
Christopher Miller, County Attorney, Deer Lodge, Montana
Submitted: March 1, 1 9 8 8
Decided: April 7, 1988
Filed:
APR 7 - 1988
Clerk
Mr. Chief Justice J. A. Turnage delivered the opinion of the
Court.
Defendant Brown appeals her bench conviction in the
Third Judicial District, Powell County. She was found guilty
of conspiring to violate 5 45-7-307, MCA, by delivering a
pistol to her husband, David Lee Brown, who was an inmate in
the Montana State Prison. On June 10, 1987, defendant was
sentenced to ten years in the Montana Women's Correctional
Center. We reverse and remand.
The parties raise the following issues for our review:
1. Did the District Court properly admit David Lee
Brown's suicide note into evidence as an exception to hearsay
under Rules 803 (24) and 804 (b)( 5 ) , Mont.R.Evid.?
2. Did the District Court properly admit an infor-
mant's testimony into evidence as an exception to hearsay
under Rule 801 (d)(2)(El , Mont.R.Evid. ?
3. Does sufficient evidence support the conviction?
In early September 1986, David Lee Brown asked a prison
trustee, David Edwards, to help him smuggle a pistol into
Montana State Prison. The trustee informed the prison inves-
tigator, Robert McNally, about the plan. McNally advised
Edwards to go through with the plan but deliver the pistol to
McNally.
According to the plan, Edwards would be on a
lawn-mowing detail outside the prison compound. Defendant
Brown would then drive past Edwards and throw a waterproof
package containing a pistol and a bottle of whisky into the
open field. Edwards would pick up the package, place it
under the cowling of his lawnmower and bring it through the
guard station into the prison compound. Edwards would then
deposit the package in a water barrel near the vehicle main-
tenance area. David Lee Brown worked in the maintenance area
and would retrieve the package at a convenient moment.
The delivery failed. On September 14, 1986, at the
planned time and place, defendant Brown drove her blue
Oldsmobile station wagon past Edwards with the window rolled
down. According to Edwards, as the defendant passed him, she
shook her head "no" and then nodded up and down. She pro-
ceeded to the prison visitors' lot and parked the car. She
then entered the prison and visited David Lee Brown.
Later that same night, David Lee Brown told Edwards
that his wife did not throw the package out because the
nearby guard tower was manned. Prior to September 14, 1986,
the guard tower had been unmanned while it was being rebuilt.
David Lee Brown planned another delivery time and
method for September 17, 1986. The new plan called for
defendant Brown to leave the package under the seat of her
car with the door unlocked. Edwards would go to the prison
visiting room and receive a signal from David Lee Brown
indicating which seat the package was under. Edwards would
then go to the parking lot and remove the package.
The second delivery also failed. On September 17,
1986, Edwards went to the visiting room and observed David
Lee Brown, defendant Brown and her son. David Lee Brown
looked at Edwards and shook his head "no." Edwards then
informed McNally about the signal. McNally advised Edwards
to proceed to the parking lot and check Brown's car. All
four doors of the car were locked. The following day, David
Lee Brown told Edwards that the delivery had been delayed
because defendant Brown might also get some marijuana and
would "bring everything at one time."
The third delivery was set up for September 19, 1986.
On that day Edwards went to the visiting room at the planned
time and observed David Lee Brown, defendant Brown and her
son. David Lee Brown signalled that the package was under
the driver's seat. Edwards proceeded to the parking lot.
Defendant Brown's car was parked in the prearranged place.
The door on the driver's side was unlocked. Edwards found
the package under the driver's seat and removed it.
Edwards then transferred the package to the rear floor
of McNally's car which was parked nearby. Edwards locked the
car and reported to McNally. McNally and the local sheriff
went to McNally's car and retrieved the package. They opened
the package but neglected to check it for fingerprints. The
package contained a bottle of whisky, a loaded .22 caliber
revolver and a dozen extra cartridges. Defendant Brown was
arrested in the prison visiting room.
David Lee Brown was placed in maximum security. On the
morning of September 21, 1986, he was found dead and hanging
by the neck in his cell. He left a suicide note for defen-
dant Brown, stating that he would never see her again and
that he was "sorry for getting you involved with my
troubles. "
Issue 1. Suicide Note
The State admits that the suicide note was not written
in furtherance of the conspiracy. However, the State con-
tends that the note implicates Brown and was admissible as an
exception to hearsay under Rule 804(b)(5), Mont.R.Evid. Rule
804 (b)(5) states: "Other exceptions. A statement not spe-
cifically covered by any of the foregoing exceptions but
having comparable circumstantial guarantees of
trustworthiness."
The State argues that the trustworthiness of the sui-
cide note is supported by David's knowledge of his impending
suicide. In the note, David wrote that he never meant for
defendant Brown "to get hurt." He continued: "It is alright
what ever you told them or signed on me . .. you just did
what I asked you to do for you loved me." The State further
argues that the trustworthiness is supported by David's
attempts to exculpate defendant Brown. David wrote: "Mr.
Weer: Please let my wife go. First time she ever done any-
thing wrong. It was all my fault." The State concludes that
David had no reason to lie when he wrote the note and there-
fore the note is trustworthy.
We review this issue under the guidelines of Rule 102,
Mont.R.Evid., which states: "These rules shall be construed
to secure ... promotion of growth and development of the
law of evidence to the end that the truth may be ascertained
and proceedings justly determined." Any admission of hearsay
must be reconcilable with the policy expressed in Rule 102.
The language and rationale of Rule 804(b) (5) is identi-
cal to its companion, Rule 803(24), Mont.R.Evid. Rule 804
applies when the declarant is unavailable; Rule 803 applies
when the availability of the declarant is immaterial. The
first twenty-three exceptions of Rule 803 and the first five
exceptions of Rule 804 codify common and well-recognized
exceptions to the hearsay rule.
However, the list of exceptions is not closed. The
residual exceptions of Rule 804(b) (5) and Rule 803 (24) pro-
vide for new and unanticipated situations which demonstrate a
trustworthiness within the same spirit of the specifically
stated exceptions. State v. Lapier (Mont. 1984), 676 P.2d
210, 212, 41 St.Rep. 203, 206.
The rationale behind a residual exception was first
expressed in Dallas County v. Commercial Union Assurance Co.
(5th Cir. 1961), 286 F.2d 388. In Dallas, an unsigned news-
paper article written fifty years earlier was admitted as an
exception to hearsay. The article described a fire in the
local courthouse while it was under construction. Although
the article did not fit into any recognized exception, it was
admitted because it was probative of structural weakness in
the courthouse. The article also possessed an adequate guar-
antee of trustworthiness because a newspaper would probably
not falsely report a courthouse fire. Dallas was cited by
the United States Senate when Congress was drafting the
Federal Rules of Evidence.
When the Montana Advisory Commission on the Rules of
Evidence considered Rules 803 and 804, it believed the resid-
ual exceptions should allow room for "growth and development"
of the law of evidence in the area of hearsay. The Commis-
sion stated: "The adoption of this exception changes exist-
ing Montana law to the extent that it allows the court to
admit hearsay because an equivalent guarantee of trustworthi-
ness exists even though there is no specific exception allow-
ing it." Commission Comments on Rule 803 (24), Mont.R.Evid.
The residual exceptions of Rules 803 and 804 are consistent
with the policy expressed in Rule 102.
However, the residual exceptions are not broad licenses
for trial judges to admit hearsay statements that do not fall
within the established exceptions of Rule 803 and 804. The
residual exceptions should be used sparingly, and only in
exceptional circumstances. The trial judge should exercise
no less care, reflection and caution than prior courts did in
establishing the recognized exceptions.
In the instant case, the suicide note was not admissi-
ble. It did not qualify as a recognized exception. Nor was
it a "new and unanticipated situation" requiring "growth and
development" of hearsay law, because suicide notes predate
the rules of evidence by many years.
Furthermore, any hearsay statement logically must tend
to prove the proposition for which it is offered. "Unless
evidence naturally and logically tends to establish a fact in
issue, it is not admissible." Britton v. Farmers Ins. Group
(Mont. 1986) 721 P.2d 303, 315, 43 St.Rep. 641, 654. The
suicide note fails on this point. The note contained no
direct statement implicating Susan Brown. The note does not
mention the pistol, the plan, or the delivery. The most
potentially damaging sentence merely read: "First time she
ever done anything wrong." At most, the note infers some
possible role in the conspiracy. We find that such specula-
tion does not rise to a sufficient "guarantee of trustworthi-
ness" under Rules 803 (24) and 804 (b)(5).
Alternatively, the State contends that the note was
admissible as a statement against interest under Rule
804 (b)(31, Mont.R.Evid. We do not agree. A statement
against interest must expose the declarant to liability.
David Lee Brown hanged himself soon after he wrote the note
and surely was not in fear of criminal prosecution.
The State argues that even if the note was erroneously
admitted, the error was harmless and not prejudicial because
Brown's conviction was supported by other evidence. We find
that the error was not harmless. The note contributed sig-
nificantly to the State's case. The admission of the note
affected the substantial rights of Brown and prejudiced her
defense.
In conclusion, we hold that the note was not admissi-
ble. We reverse on this issue and need not address the
merits of Issues 2 and 3.
We c o n c u r :