No. 87-338 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsSUSAN 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, 1988 

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 informant'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 investigator, 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 maintenance 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 proceeded 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 defendant 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 contends 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 specifically covered by any of the foregoing exceptions but 

having comparable circumstantial guarantees of 

trustworthiness." 

The State argues that the trustworthiness of the suicide 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 anything wrong. It was all my fault." The State concludes that 

David had no reason to lie when he wrote the note and therefore 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 identical 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) provide 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 newspaper 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 guarantee 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 residual exceptions should allow room for "growth and development" 

of the law of evidence in the area of hearsay. The Commission stated: "The adoption of this exception changes existing Montana law to the extent that it allows the court to 

admit hearsay because an equivalent guarantee of trustworthiness exists even though there is no specific exception allowing 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 admissible. 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 speculation does not rise to a sufficient "guarantee of trustworthiness" 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 significantly 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 admissible. We reverse on this issue and need not address the 

merits of Issues 2 and 3. 
We concur: