NO. 93-054

IN THE SUPREME COURT OF THE STATE OF MONTANA

1993

STATE OF MONTANA,

Plaintiff and Respondent,

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ROBERT WAYNE EVANS,

Defendant and Appellant.

NOV16 1993

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

Filed:

Submitted on Briefs: September 23, 1993

Decided;;, November 16, 1993 .,,a:
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 ShopN-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,

written

you may submit that question to me in

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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