State v. Mayes

No. 90-509
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992

STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
MALCOLM E. MAYES,
dnu 2 8 19923
Defendant and Appellant.
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APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas A. Olson, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Michael J. Lilly, Berg, Lilly, Andriolo, Tollefsen,
and Schraudner, Bozeman, Montana.
For Respondent:
Marc Racicot, Attorney General, Helena, Montana;
Deanne L. Sandholm, Assistant Attorney General,
Helena, Montana; Mike Salvagni, County Attorney,
Bozeman, Montana; Jennifer Bordy, Deputy County
Attorney, Bozeman, Montana.

Submitted on Briefs: August 15, 1991
Decided: January 28, 1992
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.

Malcolm E. Mayes appeals from a jury verdict finding him
guilty of incest, a felony, in violation of 5 45-5-507, MCA. The
District Court of the Eighteenth Judicial District, Gallatin
County, sentenced Mayes to a term of twenty (20) years with ten
(10) years suspended. We reverse and remand for new trial.
The issues are:.

1) Did the District Court err in admitting hearsay evidence
of the children's statements to social worker Joyce Panzer and
criminal analyst Lisa Berens?

2) Did the District Court err in admitting posed photographs
of the alleged victims?

3) Did the ~istrictCourt err in granting the Staters motion
in limine and prohibiting the defendant from cross-examining Leah
Lippert about allegations made against her husband for child
molestation?

4) Did the District Court err in allowing the jury to listen
to the tape recordings of the entire testimony of witnesses Joyce
Panzer and Lisa Berens?
5) Did the District Court err in denying Mayes' motion to
suppress evidence of his admission of inappropriately touching his
daughter approximately one year earlier while living in the State
of washington?
Defendant, Malcolm Mayes, was married. He had three children,
including Crystal and Janie who are the complaining witnesses in
this case. In December 1989, Crystal was 5 years of age and ~ a n i e
was 3. In June of 1989, Mayesr wife suffered a nervous breakdown
and as a result she was hospitalized in a mental hospital in the
State of Washington. Despite the fact that he quit his job to
remain home with his children, Mayes testified he found it nearly
impossible to provide his children with adequate care. He
therefore decided in December to leave Washington and to return to
his home state of New York, where he had family who could help
raise his children.
While traveling to New York, Mayes stopped in Bozeman, Montana
to spend the night at the Alpine Motel. Originally he only planned
to stay in Bozeman one night. However, his car froze up during a
period of extremely cold weather and he was required to stay an
extra night while a mechanic worked on its engine.
While he was staying at the Alpine Motel, a maid named Leah
Lippert came to Mayes' room to ask him to turn his water on so that
the pipes would not freeze. According to her testimony, she did
not believe that the room was occupied that night and consequently

she opened the door without knocking. Ms. Lippert testified that
when she entered the room, she saw Mayes laying naked on top of a
little girl, also naked. She testified that he was forcing himself
between her legs. She testified that there was a cloth over the
child's mouth. She further testified that Mayes rolled on to his

side and yelled at her to "get the hell outu. At that time she
noticed that Mayes had an erection.
 Ms. Lippert testified that she immediately closed the door and
left. After witnessing this scene, Ms. Lippert continued with her
duties and went to the other rooms to tell the guests to turn their
water on. When she completed her rounds she returned to the office
and according to her testimony, told her boss, Carolyn Anderson,
about what she had seen. She testified that her boss told her not
to get involved and that Ms. Anderson threatened to fire her if she
called the police. Ms. Lippert testified that she told a friend
about what happened and the friend called the police.
Carolyn Anderson denied that Leah Lippert told her about the
incident and was vehement in her denial that she threatened to fire
her. Ms. ~ippertwas fired shortly after her boss was served with
a subpoena. However, Carolyn Anderson testified that this was not
the reason she fired Ms. Lippert.
The next day, after obtaining his car from the mechanic, Mayes
and his children continued their journey. Meanwhile, back in
Bozeman, the police received an anonymous phone call from a person
who reported the incident of sexual abuse.
Leah Lippert testified that after Mayes left she was cleaning
his room and found used condoms and "white sticky stuff on the
pillowcases~. She testified that Carolyn Anderson washed the
pillowcases and that she threw the condoms away herself because she
"didn't know whether they were important or notf1for evidence in
the case because she had "never turned anybody in like thisM and
had "never been in court before".
 Mayes was stopped by police in Kadoka, South Dakota at 9:30
a.m. on December 13, 1989. He was taken to the sheriff's
department where he was interviewed about the alleged incident. He
completely denied that the event occurred. He was in custody for
several hours. He voluntarily submitted to a lie detector test.

After being told that he flunked the test, he confessed that he
inappropriately touched his daughter while in the State of
Washington, approximately one year earlier. He was subsequently
placed under arrest and transported to Bozeman to stand trial.
Mayes' trial began on March 29, 1990. On March 31, 1990, the
jury advised the District Court that it could not reach a unanimous
verdict. As a result, the court declared a mistrial. Mayes'
second trial began on June 25, 1990. At its conclusion, the jury
returned a verdict of guilty. This appeal followed.

Did the District Court err in admitting hearsay evidence of
the children's statements to social worker Joyce Panzer and
criminal analyst Lisa Berens?
Mayes was separated from his children after he was stopped by
South Dakota police. The children were taken by social worker
Joyce Panzer and criminal analyst Lisa Berens. While in their
custody, the children were bathed and were given physical
examinations to check for signs of sexual abuse. These
examinations revealed no physical evidence of sexual trauma. In
addition, the children's clothing was taken as evidence.
Subsequent testing by the Montana State Crime Lab revealed no signs
of semen.
In separate interviews, Panzer and Berens jointly interviewed
both Crystal and Janie. Both interviews included the use of
anatomically correct dolls and pictures in an effort to determine
whether the children had been sexually abused. The interviews with
the children were not audio taped nor were they video taped.
The testimony of Panzer and Berens established that during her
interview, Crystal spontaneously placed male and female
anatomically correct dolls in a position of sexual intercourse and
stated that they were I1doing sex." In response to questioning by
Berens and Panzer, she indicated that her father touched her in the
vaginal area by placing a mark on an anatomically correct drawing.
She also described a penis as being hard rather than soft and
having white stuff coming out of it that shoots up high. She said
it tasted like "pancake surupn. (sic). Both Panzer and Berens
testified that Crystal was hesitant in talking about herself.
However, in response to further questioning, Crystal indicated that
her father had sex with Janie in a motel room where Janie had a
towel over her face.
Janie was interviewed next. The testimony of Panzer and
Berens established that during her interview Janie indicated,
through the use of anatomically correct drawings that her father
touched her in the vaginal area. She described the penis as a
"wee-wee" and said her and her daddy did llexercisesll
together when
they were both naked. Janie also indicated that the penis was hard
rather than soft and Ifstuff came outffof it. The testimony of
Panzer and Berens did not establish when the above described
incidents occurred.
Before trial the State filed a notice of its intention to
introduce child hearsay evidence. Following a hearing the District
Court determined that neither Crystal nor Janie were competent to
testify. Subsequently, it entered an order allowing the State to
introduce hearsay testimony of the children's statements to Joyce
Panzer and Lisa Berens. However, it did not allow Laura Nelson, a
social worker from the State of Washington, to testify because it
found that her interview with the children occurred too long before
the incident in Bozeman. As previously stated, both Panzer and
Berens testified and repeated statements made by the two children
during their interviews in South Dakota.
Rule 804(b) (5), M.R.Evid., provides an exception to the
hearsay rule for statements not specifically covered by any of the
exceptions enumerated in 804 (b)(1) through 804 (b)(4), but having
I1comparable circumstantial guarantees of trustworthiness". Rule
804(b)(5) has been characterized as a Ifcatchallexceptionff the
to
hearsay rule. However, it is distinguished from Rule 803(24),

M.R.Evid., where the availability of the declarant to testify is
immaterial, in that Rule 804(b) (5) comes into play when the
declarant is unavailable to testify. Such is the present case.
We will analyze the admission of this hearsay evidence under
the child hearsay guidelines set forth in State v. J.C.E. (1989),
235 Mont. 264, 273, 767 P.2d 309, 315. In addition we will analyze
the admission under the recent United States Supreme Court case of
Idaho v. Wright (1990), 110 S.Ct. 3139. In Idaho v. Wriqht the
victim in an incest case testified and the United States Supreme
Court held that incriminating statements admissible under an
exception to the hearsay rule were not admissible under the
Confrontation Clause unless the prosecution demonstrates the
unavailability of the declarant, and unless the statement bears
adequate indicia of reliability--a showing of particularized
guarantees of trustworthiness. The Court concluded that such
llparticularizedguarantees of trustworthiness" must be shown from
the totality of the circumstances that include only those
circumstances that surround the making of the statement and that
render the declarant particularly worthy of belief. The Court also
held that the presence of corroborating evidence more appropriately
indicates that any error in admitting the statement might be

harmless, rather than concluding that the evidence affords a basis
for presuming the declarant to be trustworthy. Idaho v. Wriqht, 110
S.Ct. at 3151.
We will also analyze the admission of the hearsay evidence
under the recent case of State v. Harris (1991), 247 Mont. 405, 808
P.2d 453. We will discuss State v. Harris at various points as we
review State v. J.C.E. as that case was also considered and
discussed in State v. Harris.
 In State v. Harris the majority opinion considered the
conditions under which hearsay testimony by a therapist who was an
expert in treating victims of child sexual abuse may be admitted.
In its discussion of this point, the Court pointed out that a
therapist does not see a child for treatment of sexual abuse unless
there has been a claim of such abuse; that the therapist may be
arguably predisposed to confirm what she has been told; and
concluded that the nature of the relationship between the therapist
and a child client has a negative impact on the trustworthiness of
the hearsay statement. The Court further concluded that the
circumstances in which a therapist hears a child's statement about
sexual abuse are not such that hearsay statements will possess
circumstantial guarantees of trustworthiness. The Court further
pointed out that statements to a therapist are not made
spontaneously and referred to the suggestiveness of questioning and
prior statements. Finally, the Court stated:

In analyzing these factors, we conclude that only in
an extraordinary case will hearsay testimony by a
therapist concerninq the identity of the perpetrator or
the nature of the abuse possess sufficient circumstantial
quarantees of trustworthiness to be admissible into
evidence. We hold that hearsay statements of a child
victim of sexual abuse who does not testify at trial,
will in general, not be admissible under Rule 804(b) ( 5 ) ,
M.R.Evid., through the child's therapist. . . . (emphasis
added) .
Harris, 808 P.2d at 459. The present case is clearly
distinguishable from State v. Harris. Here the children were
interviewed by social worker Joyce Panzer and criminal analyst Lisa
Berens. They were interviewed as a part of a criminal
investigation. Neither Panzer nor Berens had the relationship of
therapist with either of the children.
In State v. ~ a r r i s the psychotherapist had a long term
relationship with the child for purposes of therapy. In the
present case, the social worker and the criminal analyst met with
the children the day after the occurrence. Their relationship with
the children began and ended shortly after the arrest and was
brief. In State v. Harris the psychotherapist knew and treated
Janey and Robby over.a substantial period of time during which the
children opened up and identified the perpetrator. In the present
case the children gave their testimony, including the,
identification of their father as the perpetrator, the very next
day. In State v. Harris only the psychotherapist interviewed the
children. In this case, two witnesses jointly interviewed the
children and their testimony corroborated each other. In contrast
to State v. Harris, in this case the children volunteered their
statements spontaneously with regard to sexual knowledge without
suggestiveness on the part of the interviewers. We initially
conclude that the primary concern of State v. Harris with regard to
testimony by a treating therapist is not present in this case and
the rationale attributable to the treating therapist is not present
with regard to either of the witnesses. While we will discuss
State v. Harris further in connection with our review of State v.
J.C.E., we initially conclude that the primary holding of State v.
Harris does not require the exclusion of the hearsay testimony
under this issue.

Under State v. J.C.E. the trial court must make preliminary
findings concerning the child's availability before hearsay
testimony can be considered under Rule 804(b)(5): (1) the victim

must be unavailable as a witness; (2) the proffered hearsay must be
evidence of a material fact, and must be more probative than any
other evidence available through reasonable means; and (3) the

party intending to offer the hearsay testimony must give advance
notice of that intention. In this case the District Court
determined that the children were not available as witnesses and
the State properly gave notice of intent to introduce the child
hearsay statements through the testimony of the social worker and
criminal analyst. This leaves preliminary finding (2) for
consideration.

The question is whether the proffered hearsay was more
probative than any other evidence available through reasonable
means. The only other evidence available was the testimony of the
maid who testified as to the observation of the defendant in bed
with the child whose face was covered by a towel. Circumstantial
evidence was submitted showing that the hotel room was rented to
the defendant and that he had his three small children with him,
and such evidence might afford a proper basis for a trier of fact
to conclude that the defendant committed the crimes against these
particular complainfng witnesses.
The District Court made thorough and careful analysis of the
offered testimony and made the following findings of fact and
conclusions of law concerning the child hearsay guidelines.
Both victims are unavailable and the evidence is material
and more probative than other evidence in the case. The
court has considered that there is eyewitness testimony
by Leah Lippert who is a maid at the Alpine Lodge and
that she is expected to testify that on December 11, 1989
at 10:00 p.m. she was checking the rooms at the Alpine
Lodge and she entered Room #18 after knocking and
receiving no answer. She believed the room was
unoccupied. When she turned the light on she saw the
defendant naked with an erection lying over the top of
what she thought appeared to be a 5-year old child. The
child was naked, lying on the bed with a towel or white
material over her face. Ms. Lippert will testify that
the little girls legs were apart and that he was down
between them and that she was of the opinion that he was
trying to force himself sexually on the child. The two
other children were observed by Ms. Lippert to be crying
softly on the other bed in the room and she was
immediately ordered out of the room by the defendant.
This is, of course, powerful evidence by a
disinterested person but the court deems that the
testimony of the children is probative as to the actual
acts against the children and therefore finds that the
evidence should be admitted under these threshold
requirements.
The District Court also considered the following Child Guidelines.
Crystal is age 4. Janie is age 3.
Crystal has verbal skills and Janielsverbal skills
are less developed although the witness, Laura Nelson,
was of the opinion that she had proper verbal skills.
Concerning comprehension, all three witnesses
testified that Crystal had proper comprehension skills
but Janielswere said to be in question unless the matter
were put to her in very simple terms.
It is believed by all three witnesses that Crystal
knew the difference between truth and falsehood and she
displayed that on the witness stand. Janie s
understanding of truth and falsehood was less certain,
although she was able to describe certain members of her
family accurately.
There does not appear to be any clear motivation for
the children to lie in this case.
The mental capacity of Crystal is said to be proper
for her age and'the mental capacity of Janie, of course,
 is less developed but she was able to recognize and use
anatomically correct dolls.
Crystal displayed a good memory for her age and
maturity and Janie did not.
We also point out that since the child's face was covered with a
towel, the maid could not specifically identify the child. At most
a trier of fact could conclude from the evidence that the child
could have been one of defendant's three small children who were
with him when he rented the room. Furthermore, Crystal, the five
year old, in her interview described her father having sex with her
sister Janey in a motel room where Janey had a towel over her face.
Crystal had previpusly described Ifdoing sex1' by placing
anatomically correct dolls in a position of sexual intercourse. In
turn Janey had described how she and defendant did I1exercises"
together when they were both naked. We conclude that the hearsay
testimony of the statements by Crystal and Janey was more probative
than the testimony on the part of the maid.
Under State v. J.C.E. the admissibility of evidence is within

the discretion of the trial court. We conclude that the ~istrict
Court did not abuse its discretion in reaching its decision, and
affirm its conclusion that the proffered hearsay evidence was more
probative than any other evidence available through reasonable
means.
Having concluded that the preliminary protections of Rule
804 (b) (5) as required by State v. J.C.E. have been met, we will

consider the child hearsay guidelines enumerated in that case.
These guidelines were considered in groups as follows: (1) the
attributes of the child hearsay declarant; (2) the witnesses

relating the hearsay statement; (3) the statement itself; (4) the
availability of corroboration evidence; and (5) other
considerations. State v. J.C.E., 767 P.2d at 315, 316.
With regard to the attributes of the child hearsay declarants
in this case under (I), the evidence before the District Court
established the children's ages as 5 and 3, and also established
that both children had the ability to communicate verbally and that
each child possessed sufficient memory to retain an independent
recollection of the events. There was no evidence to indicate a
motivation other than telling the truth because of the absence of
any relationship between the children and the social worker and the
criminal analyst. We therefore conclude that the attributes of the
child hearsay declarants do allow the admission of the evidence.
In addition we conclude the foregoing constitute guarantees of
trustworthiness under both Idaho v. Wrisht and State v. Harris.
Under ( 2 ) , the witness relating the hearsay statements, the
first aspect is the witnesses1 relation to the child. Here there
was no existing relationship between the social worker and the
criminal analyst and the two children. This should be
distinguished from State v. Harris where the psychotherapist had a
long term relationship with the child for purposes of therapy and
described how it had been some time before Janey opened up to her
and described what had happened both by use of anatomically correct
dolls and verbal description. In the present case the two people
interviewed the child shortly after the incident took place. In
this case there is nothing in the relationship to suggest that such
relationship might have had an impact on the trustworthiness of the
hearsay statement or that the witnesses might have a motive to
fabricate or distort. The timing of the statement in relation to
the incident at issue is particularly significant here because the
testimony took place on the following day. In addition, two
witnesses here together interviewed each child. The relationship
between the witnesses and the children was brief and the children's
statements were heard very close in time to the occurrence. This
suggests that the children would be much less likely to fabricate
and that the testimony is more trustworthy in the present case.
Again this is distinguishable from the facts in State v. Harris.
In addition we have the testimony of each of the two girls which
corroborated each other.
In State v. Ryan, (Wash. 1984), 691 P.2d 197, 205, the

Washington Supreme Court held that whether more than one person
heard the statements, the timing of the declaration and the
relationship between the declarant and the witnesses were key
factors in determining whether the hearsay statements were
reliable. We adopt the theory of State v. Ryan and conclude that
all of the circumstances under the State v. J.C.E. guidelines in
group (2) tend to establish the proper admissibility of the
evidence. We conclude that such circumstances exhibit guarantees
of trustworthiness under the analysis required in Idaho v. Wriqht.
 Under State v. J.C.E. group (3) , the statement itself, the
statements of both children demonstrated in this case sexual
knowledge not normally attributable to a 3 year old and a 5 year
old. This included the use of anatomically correct dolls, the
marking of anatomical drawings, the testimony of both girls as to
the hardness of the penis and the stuff which came out of it,
including the statement that the stuff tasted like syrup. These
statements expressed knowledge not normally attributable to

children of these declarantsl ages. The information was
volunteered spontaneously. The record does not demonstrate the
suggestiveness of any prior statement by the witness which would
influence the same. In addition the statements were made to more
than one person and were near in time to the incident at issue.
gain the statements meet the standards of group (3) - the
statement itself. In addition, the circumstances again exhibit
guarantees of trustworthiness under the Idaho v. Wrisht test.
In State v. J.C.E. next is group (4) - the availability of
corroborative evidence. Here the corroborative evidence on the
part of the maid is both substantial and significant. While that
testimony may have been subjected to a number of questions because
of the contradictory evidence as to its believability, the record
does still contain sufficiently substantial corroborative evidence
to meet this group (4) requirement. We do note that under Idaho v.
Wrisht :
the presence of corroborating evidence more appropriately
indicates that any error in admitting the statement might
 be harmless, rather than that any basis exists for
presuming the declarant to be trustworthy.
Idaho v. Wriqht, 110 S.Ct. at 3150-51.
Because of that statement, the presence of corroborating
evidence is not significant under that case for admission purposes.
On the other hand, at a minimum the testimony does establish a
basis for considering both declarants to be trustworthy.
Under State v. J.C.E. group (5) - other considerations - we do
not find any particular facts which need analysis.
Under State v. J.C.E., the admissibility of the evidence in
question remained in the discretion of the trial court. This Court
will defer to the trial court's discretion unless an abuse of
discretion is clearly shown. Applying the analysis required by
State v. J.C.E. to the testimony of witnesses Panzer and Berens, we
conclude that the District Court did not commit an abuse of
discretion in admitting the hearsay testimony.
considering the requirements of Idaho v. Wright, we conclude
that the evidence did include the required particularized
guarantees of trustworthiness so that it is admissible under that
case as well. We have previously concluded that we distinguished
the testimony by the two witnesses here from the physical therapist
involved in State v. Harris. In reviewing the testimony, we
conclude that the testimony with regard to the identity of the
defendant and the nature of the abuse, possessed sufficient
circumstantial guarantees of trustworthiness to be admissible under
the rule of that case. We therefore conclude that State v. ~ a r r i s
does not require the exclusion of the evidence.
We hold that the District Court did not err in admitting the
hearsay evidence of the children's statements through social worker

Joyce Panzer and criminal analyst Lisa Berens. We therefore affirm
on this issue.
I1

Did the District Court err in admitting posed photographs of
the alleged victims?
The second issue submitted by Mayes concerns the District
Court's decision to admit three pictures taken of Crystal and Janie
after Mayes was arrested. These pictures were taken of the
children at their foster home shortly before they returned to
Washington. Mayes maintains that the photographs were not
relevant to any issue at trial and were highly prejudicial.
Photographs are admissible if they are relevant to describe a
person, place, or thing involved in the case. Fulton v. Chouteau
County Farmerst Co. (1934), 98 Mont. 48, 37 P.2d 1025. However,
otherwise relevant photographs are not admissible if their
probative value is outweighed by prejudice to the defendant. Rule
403, M.R.Evid. It is up to the trial court to determine if the

probative value of the photograph outweighs any prejudicial effect
to the defendant. State v. Henry (1990), 241 Mont. 524, 788 P.2d
316. This Court will not disturb such a decision absent a showing
of abuse of discretion. State v. Austad (1982), 197 Mont. 70, 641
P.2d 1373.
 The State maintains that the photographs were relevant to show
the jury who this case involved. It maintains that the pictures
show no physical injuries and in fact seem to depict two happy,
healthy children. Given the nature of these photographs Mayes
cannot show any prejudice.
We have examined the three photographs and agree that they do
not depict anything out of the ordinary which would normally serve
to arouse a jury's passion. They simply show Crystal and Janie in
normal poses smiling for the camera. Although their relevancy may
be somewhat questionable, we do not agree that their admission was
calculated to arouse the sympathies or prejudice of the jury.
Moreover, when the trial court admitted the photographs the jury
was given a cautionary instruction that the exhibits should not
inflame or otherwise excite their sympathies.
We conclude there was no abuse of discretion in the admission
of the photographs and hold that the District Court did not err in
admitting such photographs. We affirm on this issue.
I11

Did the District Court err in granting the State's motion in
limine and prohibiting the defendant from cross-examining Leah
Lippert about allegations made against her husband for child
molestation?
Shortly after Mayesf first trial, defense counsel was informed
through an anonymous-phone call that Sonny Lippert, the husband of
the State's chief witness, was under investigation for child
molestation. Mayes' counsel, believing this information to be
relevant to Leah Lippert's credibility, sought to obtain the
investigation file that was compiled on these accusations.
Ultimately the file was produced. However, the State filed a
motion in limine requesting the court's order prohibiting the
defense from cross-examining Leah Lippert concerning the
allegations against her husband. After reviewing the records in
camera and hearing oral argument on the matter, the District Court
held that the defense could not use the records unless it could
establish some factual link between the Mayes children and Mr.
Lippert.
Mayes argues that the court's ruling was an abuse of
discretion. He maintains that the information may have been
relevant to Ms. Lippert's motive to falsify. According to Mayes,
a reasonable and logical argument could be made that her testimony
was meant to divert the public's attention away from her husband's
conduct.

Once again, we reemphasize the fact that rulings on
admissibility of evidence are left to the sound discretion of the
trial court. Its ruling on such matters will not be overturned
unless there is an abuse of discretion. State v. Crazy Boy (1988),
232 Mont. 398, 757 P.2d 341. When the District Court ruled on this
matter, it took into account the fact that at the time Mayes'
alleged criminal activity occurred, no investigation had been
instituted against Mr. Lippert. Moreover at the time of trial, no
charges had been filed and Mayes was unable to establish any
connection between Lippert's alleged activity and his own pending
charges. Given these facts, the court determined that the evidence
was irrelevant and immaterial.
We conclude there was no abuse of discretion in this ruling.
The District Court personally viewed the investigative file and
personally viewed Leah Lippert testify at the hearing on the
State's motion in limine. After taking all of these circumstances
into consideration, it decided to disallow this evidence unless the
defense could establish some link between Mayes' children and Mr.
Lippert. This decision was within the proper boundaries of its
discretion and we will not disturb it on appeal. We affirm on this
issue.
IV

Did the District Court err in allowing the jury to listen to
the tape recordings of the entire testimony of witnesses Joyce
Panzer and Lisa Berens?
After the jury -retired to deliberate, it returned a note to
Judge Olson requesting to hear again the testimony of Lisa Berens
and Joyce Panzer. The State did not object. However, defendant
did object as stated below.
I believe the request is overly broad. It is not nearly
specific enough and if the jury were to allow -- were to
be allowed to hear all of their testimony again, it would
be unduly emphasizing that testimony over all of the
other testimony in the trial and would prejudice the
rights of the defendant.
The court allowed the replaying of the testimony because "this
testimony is pointed and crucial and obviously of interest to the
jury. And the court notes that coincidentally the last jury in
this matter also asked for and received the testimony of these two

On appeal, defendant maintains the replaying of the testimony
was prejudicial and reversible error. The State argues that it was
not prejudicial because the jury heard all of the testimony,
including cross-examination.
Section 46-16-503(2), MCA, provides:
After the jury has retired for deliberation, if there is
any disagreement among the jurors as to the testimony or
if the jurors desire to be informed on any point of law
arising in the cause, they shall notify the officer
appointed to keep them together, who shall then notify
the court. The information requested may be given, in
the discretion of the court, after consultation with the
parties.
The case of State v. Harris was decided after the conviction
the defendant in the present case. In State v. Harris, this
Court held that the District Court committed reversible error when
it allowed the jury to rehear the entire testimony of a child
victim of sexual abuse. This Court held that the reading of the
testimony prejudiced the defendant by placing undue emphasis on the
statement of the alleged victim to the exclusion of the testimony
of other witnesses.
While under 5 46-16-503(2), MCA, the decision to allow a
replaying or restatement of testimony is addressed to the
discretion of the district court, the court should determine what
particular testimony has caused the disagreement among the jurors.
After making that determination, the court shall exercise its
discretion after consultation with the parties, keeping in mind
that the court must avoid undue emphasis upon particular testimony
as condemned in State v. Harris.
In the present trial the District Court allowed the jury to
listen to the tape recordings of the entire testimony of both
witnesses Panzer and Berens. The testimony of those witnesses was
critical to the case of the State. In a manner similar to State v.
Harris, we conclude that the playing of the entire testimony of
both witnesses unduly emphasized the testimony of the alleged
victims to the exclusion of the testimony of other witnesses.
We hold that the District Court abused its discretion in
allowing the jury to listen to the tape recordings of the entire
testimony of Panzer. and Berens. We reverse and remand for new
trial on this issue.
v
Did the District Court err in denying Mayes' motion to
suppress evidence of his admission of inappropriately touching his
daughter approximately one year earlier while living in the State
of Washington?
When Mayes was picked up by the South Dakota police he had
been awake and driving for almost 26 hours. At the time he was
taken into custody he was interviewed by Agent John Walker of the
South Dakota Division of Criminal Investigation. After being read
his Miranda rights,. Mayes agreed to be interviewed without an
attorney present. Portions of the interview follow.
Q. Have you ever had any problems with the law -
ever been looked at for any type of child
abuse or molestations?
A. No, ah, I've been accused of it once before
from my mother-in-law and ah Child Protection
Services checked them out here in Washington.
Q. Where, where at in Washington?
In Tacoma, Washington.
In Tacoma?
Accusations and when Child Protection Services
got done they suggested that I take the kids
and go back to my family and that's why I m '
going.
And your family is where?
They're in New York.
Do you have custody of the children - are they
in your custody by any order or anything?
Not by any court but I m the only one capable
'
of taking care of them.
Is, did you let anybody aware of the fact that
you'd be leaving the State of Washington?
A. My CPS case worker. She helped me get money
and food and stuff for the trip. And my, one
of my sister-in-laws knew I was going.
Q. okay what, when you - can you kind - has any
of the children been hurt?
A. No, not at all.
Q. um there's kind of a problem in in Montana at
the motel that you were staying at.
A. Okay.
Q. There's blood in on the sheets of one of the
beds. What, what can you tell me about that,
 yeah, that's why you're here.
A. I can't tell you, I don't know.
...
Q. Were you aware of any bleeding or any blood in
the bed?
A. No.
Q. Could there have been some that you weren't
aware of?
A. No, I don't think so.
Q. They've got the sheets and stuff.
A. Are they sure it's blood?
Q. Ah they're having it analyzed right now and
there there is sure enough to hold you and be
filing for a warrant.
A. ah I think they'd better check that out closer
first.
Q. What could it be?
A. Ah I don't know, they had all kinds of stuff
in there, chocolate candies but. . .
Q. Well they're they're pretty sure
Agent Walker lied. Agent Walker had no information that there
was blood on the sheets; the sheets were not in police custody; and
in addition there was no blood to be analyzed. Agent Walker pled
with Mayes to tell the truth because he could empathize with Mayes'
situation. Agent Walker told Mayes that his children were being
examined at the hospital and insinuated that the children may not
be healthy. Mayes requested to take a polygraph examination.
After no sleep for at least 26 hours; being arrested; having
his children taken from him; and being interviewed; Mayes was
driven to Pierre, South Dakota to take a polygraph examination
several hours later. Apparently, when asked whether he ever had
sexual contact with his children, the polygraph machine indicated
Mayes was not telling the truth. The polygraph examiner then used
this information in an effort to obtain a confession. For twenty
minutes, Mayes denied having any sexual contact with his children.
However, eventually he stated that he inappropriately touched his
daughter Crystal about a year earlier in Washington. When the
examiner tried to question him further, Mayes invoked his Fifth
Amendment Rights and asked for an attorney. Mayes maintained that
the examiner was attempting to put words in his mouth.
Mayes argues that these circumstances require the suppression
of his admission. He points out that a confession or admission
must be suppressed if it is determined that the admission or
confession was not voluntarily given. ,
3 46-13-301 (1) MCA. An
analysis of the voluntariness of a confession is a factual question
which must take into account the totality the circumstances.
State v. Allies (1979), 186 Mont. 99, 606 P.2d 1043. However, when
a defendant raises the question of voluntariness, the State must
prove by a preponderance of the evidence that the confession or
admission was voluntarily obtained. § 46-13-301(2), MCA.
In State v. Phelps (1985), 215 Mont. 217, 696 P.2d 447, we
stated:
We cannot over emphasize our strong condemnation of
police practic-es . . . wherein a police officer
misinforms a defendant as to other arrestees having given
confessions. . . .
 Similarly, we cannot condone the tactics of this officer
who informed Phelps as to the existence of incriminating
evidence when the evidence was inconclusive.
The combination of the circumstances surrounding Mayes'
confession mandates suppression. By the time Mayes confessed to
the Washington crime he had been awake for more than 30 hours,
questioned continually, separated from his children and lied to
about the evidence against him. We conclude that a preponderance
of the evidence does not support the District Court's conclusion
that Mayes1 confession was voluntary.
We hold that the District Court committed reversible error in
denying Mayes1 motion to suppress evidence of his admission of
inappropriately touching his daughter approximately one year
earlier while living in the State of Washington. We reverse and
remand on this issue.
Affirmed in part. Reversed in part.

We Concur:

Chief Justice

Justices
Justice R. C. McDonough concurring in part and dissenting in part:
I concur in the majority opinion determinations on Issues 1,
2, 3 and 4.

I dissent from the majority on Issue 5. Mayes was competent,
aware of and capable of exercising his rights, which he did a short

time later.

Chief Justice J. A. Turnage concurring in part and dissenting in
part:
I concur in the majority opinion affirming the conviction on
Issues 1, 2 and 3.
I respectfully dissent from the majority of this Court's
decision on Issue 4, and I would affirm the conviction as to that
issue.
As stated in the majority opinion, witnesses Lisa Berens' and
Joyce Panzerts testimony was in the form of tape recordings, and
the jury, after they had retired, requested that they be permitted
to hear the testimony a second time.
 Notwithstanding that this Court in State v. Harris (1991), 2 4 7
Mont . held that the District Court committed
reversible error in that case when the jury was allowed to rehear
the testimony of a child victim, I believe the Court should
reconsider its decision in view of the provisions of 9 46-16-
503(2), MCA:
After the jury has retired for deliberation, if there is
any disaqreement amonq the iurors as to the testimony or
if the jurors desire to be informed on any point of law
arising in the cause, they shall notify the officer
appointed to keep them together, who shall then notify
the court. The information requested may be qiven, in the
discretion of the court, after consultation with the
parties. [Emphasis supplied.]
Although the record does not disclose the precise "disagree-
ment" that prompted the jurors to make their request to rehear the
tape recordings, no other conclusion can be reached other than
there must have been uncertainty and, therefore, a practical
disagreement as to what the testimony stated. Otherwise, they
would have had no reason to make the request. The plain language
of the statute provides that "the information requested may be
given, in the discretion of the court.11
When the court follows the language of the statute, there
certainly cannot be an abuse of discretion.
I further dissent from the Court I s finding of reversible error

in Issue 5. Without approving all of the statements that were made
by the South Dakota law enforcement officer concerning physical
evidence that was not in the possession of the Montana authorities,
I believe that, in view of the other overwhelming evidence against
the defendant, such statements would be harmless error under the
facts of this case.
With reference to the majority Is concern about defendant Is
lack of sleep and his interrogation by the South Dakota authorities
resulting in his admission of sexual contact with one of the
victims occurring in the State of Washington, such circumstances,
again in view of the overwhelming evidence against the defendant,
would be harmless error. Mayes was aware of and capable of
exercising his rights. Subsequent to his admission, he invoked his
Fifth Amendment rights and asked for an attorney.
I believe that law enforcement officers should be extremely
careful about information they provide a defendant and also about
the circumstances surrounding extended interrogation of a suspect.
The facts in this case, however, support the District Court's
refusal to suppress this evidence.
For these reasons, I would affirm the conviction of the
defendant.