No. 83-72(B) 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsDAVID 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 23, 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.d was 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.ilable as 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) . Theref ore, 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 444. 

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 . MLL~ 

/ Justice 

i 

We Concur: