## Facts

- Robert Wing was charged with driving under the influence after police responded to an incident involving a vehicle.
- Wing’s defense theory was that Michael Halverson—not Wing—had been driving the vehicle.
- The vehicle belonged to Wing’s mother, Helen Wing.
- There was evidence that Halverson was intoxicated when law enforcement arrived at the scene.
- At trial, Wing called Halverson to testify, but Halverson invoked the Fifth Amendment and refused to answer questions about who was driving.
- Wing then called Helen and sought to elicit testimony that Halverson had told her he was driving her car on the night in question.
- The prosecution objected on hearsay grounds, and the trial court sustained the objection, excluding Halverson’s alleged statement to Helen.
- The trial court did allow Helen to testify that she had given her car keys to Halverson earlier that night.
- Wing also introduced evidence that police found the car keys on the passenger seat, where Halverson had been sitting.
- Wing was convicted and appealed, arguing that Halverson’s out-of-court statement to Helen should have been admitted as a statement against interest.

## Issues

1. Whether the trial court erred by excluding, as hearsay, Halverson’s out-of-court statement to Helen that Halverson was driving, when Halverson was unavailable after invoking the Fifth Amendment and the statement was offered to exculpate Wing under M. R. Evid. 804(b)(3).

## Decision

- The Montana Supreme Court reversed Wing’s conviction and remanded for a new trial.
- Halverson was “unavailable” for purposes of Rule 804 because he invoked his Fifth Amendment privilege against self-incrimination.
- Halverson’s statement that he was driving tended to subject him to criminal liability and qualified as a statement against penal interest under M. R. Evid. 804(b)(3).
- Corroborating circumstances supported admitting the statement, including evidence that Helen gave the keys to Halverson earlier and that the keys were found on the passenger seat where Halverson was sitting.
- Because the excluded statement went to the disputed question of who was driving, the error was not harmless and required a new trial.

## Legal Principles

- A declarant who invokes the Fifth Amendment is unavailable under M. R. Evid. 804(a).
- Under M. R. Evid. 804(b)(3), a statement is admissible if it is so contrary to the declarant’s penal interest that a reasonable person would not have made it unless it were true.
- When a defendant offers a third party’s statement against penal interest to exculpate the defendant, Rule 804(b)(3) requires corroborating circumstances that clearly indicate the statement’s trustworthiness.
- Excluding admissible evidence that directly supports the defense on a disputed element may warrant reversal when the error is not harmless.

## Conclusion

State v. Wing held that when an unavailable witness invokes the Fifth Amendment, the defendant may introduce the witness’s out-of-court admission to the car’s owner that the witness was driving if the admission is against penal interest and supported by corroborating circumstances; excluding such evidence, when it bears on the contested identity of the driver, required reversal and a new trial.


State v. Wing, 285 P.3d 469 (2012)