NO. 93-054
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
STATE OF MONTANA,
Plaintiff and Respondent,
-"- NOV16 1993
ROBERT WAYNE EVANS,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Ravalli,
The Honorable Jack L. Green, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William F. Hooks, Appellate Defender Office, Helena,
Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, Cregg W.
Coughlin, Assistant; George Corn, Ravalli County
Attorney, Hamilton, Montana
Submitted on Briefs: September 23, 1993
Decided;;, November 16, 1993
.,,a:
Filed:
Justice Fred 3. Weber delivered the Opinion of the Court.
Defendant Robert Wayne Evans appeals the verdict from a jury
of the Fourth Judicial District Court (now Twenty First Judicial
District Court), Ravalli County, convicting him of obstructing
justice, a felony. We affirm.
The sole issue for review is whether the District Court abused
its discretion in refusing the jury's request to rehear certain
portions of trial testimony.
Robert Wayne Evans (Evans) was charged with obstructing
justice after he falsely informed police officers that a woman by
the name of Jackie Hager (Hager) was not at his residence. On the
evening of January 14, 1992, Evans and Hager had gone to a Hamilton
bar and had spoken to a man named Claude Mackie at the bar. Claude
Mackie had informed Hager that she was wanted by the police for
writing bad checks and that a warrant had been issued for her
arrest. Evans also learned that Hager was wanted by the police for
writing bad checks.
Hager testified that she told Evans she feared she would be
apprehended by the police. Evans testified that he informed Hager
that he did not want to get involved: nonetheless, Evans and Hager
left the bar together and Evans permitted Hager to spend the night
at his residence.
On January 15, 1992, the following morning, Detective Johnson
of the Hamilton Police Department received information during the
course of his investigation that Hager might be at Evans' home.
Together with Officer Birkeneder, Detective Johnson went to Evans'
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home at approximately 8:30 a.m on January 15, 1992.
Hager testified that when she heard the officers knocking on
Evans' door, she knew immediately that it was the police. Hager
further testified that she ran to Evans' bedroom and asked him to
tell the police that she was not there. When Evans answered the
door, the officers informed him that they were looking for Hager in
connection with some bad checks she had written and asked him to
have Hager come to the door to speak with them.
Evans told the officers that Hager was not there. The
officers repeated their request and Evans again denied that Hager
was in the house. Detective Johnson asked Evans if the officers
could look inside the house; Evans refused this request and told
the officers to get a search warrant. The officers then advised
Evans that he could be charged with obstructing justice if he was
lying to them and asked one more time to have Hager come to the
door. Evans restated that Hager was not there and closed the door.
Detective Johnson and Officer Birkeneder left Evans' residence
and drove a short distance down the road to a place where Detective
Johnson could watch Evans' residence unobserved. officer
Birkeneder then left and Detective Johnson called for assistance;
Police Chief Auch arrived as Evans and another man got into a red
pickup truck and traveled north. Detective Johnson and Police
Chief Auch also traveled north and as they were passing Evans'
residence, they saw someone walking across the railroad tracks to
the west of Evans' residence. Detective Johnson intercepted this
person, who turned out to be Hager wearing a large jacket over
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another jacket with her hair tucked up under a baseball cap.
Detective Johnson arrested Hager and she told him she had been
at Evans' home. Evans returned as the officers were placing Hager
into the police car but continued to drive past his house. The
officers then pursued Evans, stopped him and placed him under
arrest. Evans told the officers that he had lied to them because
he did not want to get involved. Detective Johnson later traced
Hager's footprints in the freshly-fallen snow from the place where
he had intercepted her back to Evans' residence. Other evidence
indicated that Evans' had planned to meet up with Hager at a Shop-
N-Go store and to further assist her in evading the officers.
Did the District Court abuse its discretion in refusing the
jury's request to rehear certain portions of trial testimony?
During deliberations, the jury posed several questions to the
District Court, including the following request:
Could we hear the direct testimony of Officer Johnson
about what he told Evans "that Jackie was wanted" and
Officer Johnson's cross-examination response to the same
question.
The District Court refused this request, relying on State v. Harris
(1991), 247 Mont. 405, 808 P.2d 453.
The decision to grant or refuse a jury's request to replay
testimony is within the sound discretion of the district court.
Section 46-16-503(2), MCA. In exercising its discretion, the
district court should avoid giving undue emphasis to particular
testimony. Harris, 808 P.2d at 459.
Evans claims that the District Court abused its discretion in
refusing the request to rehear portions of Detective Johnson's
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testimony, according to the holding in Harris. In Harris, we held
that the district court abused its discretion by allowing the jury
to rehear the entire testimony of a witness. Evans contends that
the jury's request was for testimony critical to the State's case
and was not a request for the entire testimony of Detective
Johnson; therefore, he argues that the jury's request should have
been granted.
Evans likens the jury's request to a request for a limited
response which is permitted under the holding in Harris. Evans
claims the request would have garnered the following testimony to
be reheard:
[Prosecutor]: All right. So you got to Mr. Evans' house
and you were walking up to the door, and what happened
then:
[Detective Johnson]: Well, I rang the doorbell probably
a couple times. After a short period of time, Bob Evans
came to the door, and I introduced myself to him, and I
pointed out to him that I was looking for Jackie Hager in
regards to some bad checks that she had written.
[Prosecutor]: What did you tell him about that?
[Detective Johnson]: That's just what I told him. That
I needed to talk to her, and I asked him to have her come
to the door so I could talk to her.
This question was not asked again on cross-examination. The
question on cross-examination was as follows:
[Mr. Shockley]: . . . When you were conversing with Mr.
Evans on the 15th of January, you didn't tell him that
Miss Hager was wanted for a felony, did you?
[Detective Johnson]: No, I didn't.
Evans points out that the State had to prove that at the time
the police came to the front door, Evans knew that Hager was
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"liable to be arrested, 'charged, convicted, or punished for a
public offense." According to Evans, the request by the jury is
specific and critical to that element of proof in that it
demonstrated that Evans did not know Hager was an "offender" about
to be arrested by the police because the officers did not show him
an arrest warrant nor did they specifically state that they were
going to arrest Hager.
Section 45-7-303, MCA, provides in pertinent part:
45-7-303. Obstructing justice. (1) For the purpose of
this section "an offender" means a person who has been or
is liable to be arrested, charged, convicted, or punished
for a public offense.
(2) A person commits the offense of obstructing
justice if, knowing a person is an offender, he
purposely:
(a) harbors or conceals an offender; . . .
The legislative enactment of § 46-16-503(2), MCA, changed the
common law rule that permitted the trial court no discretion to
read a transcript of a witness's testimony or submit testimonial
materials to the jury for unsupervised review during jury
deliberations. Harris, 808 P.2d at 459. The common law rule was
intended to prevent undue emphasis of materials submitted to the
jury over all other evidence in the case and still applies in most
cases. We stated:
The kind of request contemplated by 5 46-16-503(2), MCA,
includes an inquiry concerning a witness's testimony as
to the width of a street, the height of an object,
distance, time or some other limited request, but not the
entire testimony of the witness.
Harris, 808 P.2d at 460.
In Harris, we quoted with approval the comments of the Wyoming
Supreme Court in Chambers v. State (Wyo. 1986), 726 P.2d 1269,
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1276, to emphasize that the common law rule would continue to apply
in most cases. Although the statute now allows the trial court
some discretion in these matters, it still requires the court to
discover the exact nature of the jury's difficulty, isolate the
particular testimony which can solve the difficulty and then weigh
the probative value of the testimony against the danger of undue
emphasis. Harris, 808 P.2d at 460. Subsequently, in State v.
Mayes (1992), 251 Mont. 358, 374, 825 P.2d 1196, 1206, we
emphasized that under the ruling in Harris, the court & avoid
undue emphasis on the testimony of certain witnesses. We concluded
that replaying the entire testimony of two witnesses unduly
emphasized the testimony of the victims "to the exclusion of the
testimony of other witnesses." Waves, 825 P.2d at 1206.
In Harris, we also provided guidance for the district courts
of Montana in dealing with requests from the jury for witness
testimony: we supplied the following response to be used by the
courts in responding to such requests:
It would be error for me to furnish you with a transcript
o f any particular witness for the reason that in
rendering your verdict, you should not give any undue
emphasis to the testimony of any one witness to the
exclusion of all others. Instead, you should consider
all of the evidence as a whole in rendering your verdict.
However, if you have some particular reason or point that
you are trying to resolve that relates to the evidence of
this witness, you may submit that question to me in
written form, and I will give it consideration.
(Emphasis added.)
Harris, 808 P.2d at 460.
The request in this case is not a request which relates to the
evidence of a single witness: instead, it is a request to rehear
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testimony on a critical point of proof for which several witnesses
provided testimony, including Detective Johnson. It is not the
sort of limited request contemplated by § 46-16-503(2), MCA, as it
would tend to emphasize the testimony of one witness where several
other witnesses have testified on that same point. We conclude
that the testimony requested by the jury in this case was testimony
that could have placed undue emphasis on the answers given by
Detective Johnson which related to a critical element of the
State's case.
We hold the District Court did not abuse its discretion when
it refused the jury's request to rehear certain portions of the
trial testimony given by Detective Johnson.
Affirmed.
We Concur:
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