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No. 12618

I N THE SUPREME COURT O THE STATE O M N A A F F OTN

OTN STATE Or' M N A A e x rel, WILL J . KRUTZFELDT, COUNTY ATTORNEY O F OTN CUSTER COUNTY, M N A A AND JAMES J SINCLAIR, h i s S p e c i a l A s s i s t a n t , Relators,

.

THE DISTRICT COURT O THE THIRTEENTH JUDICIAL F F DISTRICT, I N AND FOR THE COUNTY O YELLOIJSTONE, on Change o f Venue from D i s t r i c t Court o f t h e S i x t e e n t h J u d i c i a l D i s t r i c t of t h e S t a t e of Montana, I n and F o r t h e County o f C u s t e r , The Honorable M. James S o r t e , P r e s i d i n g , t h e r e o f , Respondents.

ORIGINAL PROCEEDING: Counsel o f Record: For Relators : James J . S i n c l a i r , S p e c i a l A s s i s t a n t County A t t o r n e y , a r g u e d , B i l l i n g s , Montana W i l l J. K r u t z f e l d t a p p e a r e d , County A t t o r n e y , M i l e s C i t y , Montana F o r Respondents : J o s e p h P. Hennessey a r g u e d , B i l l i n g s , Montana Kenneth Wilson a p p e a r e d , M i l e s C i t y , Montana Amicus C u r i a e Hon. Robert L. Woodahl, A t t o r n e y G e n e r a l , H e l e n a , Montana 3. C. Weingartner, A s s i s t a n t Attorney General, appeared, Helena, Montana Harold F. H a n s e r , County A t t o r n e y , B i l l i n g s , Montana Diane B a r z , Deputy County A t t o r n e y , a r g u e d , B i l l i n g s , Montana

Submitted: Decided : Filed :

October 24, 1973

UbV 12

Mr. Justice Wesley Castles delivered the Opinion of the Court. This is an original proceeding seeking a writ of supervisory control or other appropriate writ and seeking, in effect, a declaratory judgment on a rule of law. Petition is by the State seeking to set aside an order of the district court sitting in Yellowstone County after change of venue from Custer County, the Hon. M. James Sorte presiding. That order declared section 95-503, R.C.M. 1947, unconstitutional; permitted defendant to present the question of mental disease as a defense before the jury; and, declared the rule of law for the defense of mental disease to be that of the American Law lnstitutelsModel Penal Code and foreclosing the so-called ~'~aghten rule as set forth in State v. Noble, 142 Mont. 284, 384 P.2d 504. The issues here arise out of a first degree murder charge against defendant William E. French, Jr., as a result of the killing of Douglas Fleming on March 5, 1973, in Miles City, Montana.

On March 7, 1973, Judge A. B. Martin ordered a psychi-

atric examination pursuant to section 95-505, R.C.M. 1947. Such examination was had.

On March 31, 1973, counsel for de-

fendant sought and received an order for production of autopsy reports, statements, photographs, physical evidence, records, tapes and F.B.I. records concerning the deceased. Bail was

denied defendant after hearing. Bail was also denied defendant by this Court.

On April 28, 1973, counsel for defendant gave notice under
section 95-503, R.C.M. 1947, of the defense of mental disease or defect. On defendant's motion, the district judge ordered defendant transferred from the Yellowstone County jail to the Billings Deaconess Hospital for medical and psychiatric examination. Also, on defendant's motion Judge Martin was disqualified.

Judge M. James Sorte assumed jurisdiction.

A t t h i s point, on June 11, 1973, defendant moved t h e c o u r t t o (1) conduct a hearing without a j u r y under s e c t i o n 95-507 ( a ) ,
R.C.M.

1947, t o determine t h e mental condition of defendant,

and (2) t o determine whether such mental condition was s u f f i c i e n t t o exclude r e s p o n s i b i l i t y f o r the a c t s committed and t h e crime charged. The c o u r t ordered a hearing
II

t o determine t h e mental

c o n d i t i o n of t h e defendant a t t h e t i m e of t h e commission of t h e o f f e n s e charged and h i s mental condition a t t h e present t i m e . "
On J u l y 18, 1973, Judge Sorte made f i n d i n g s of f a c t and

conclusions of law t h a t (1) defendant was f i t t o proceed and a s s i s t i n h i s defense, and (2) defendant's mental condition a t t h e t i m e of t h e offense was n o t a d e f e c t s u f f i c i e n t t o exclude r e s p o n s i b i l i t y and t h a t he had t h e a b i l i t y t o a p p r e c i a t e t h e c r i m i n a l i t y of h i s conduct o r t o conform h i s conduct t o t h e requirements of t h e law.

On August 9, 1973, venue was changed from Custer t o Yellows t o n e County and t h e c a s e was s e t f o r t r i a l on October 9 , 1973.
O September 19, 1973, defendant made a motion which asked n

the court: f o r a r u l i n g t h a t s e c t i o n 95-503, R.C.M. 1947, a s amended i s u n c o n s t i t u t i o n a l f o r t h e reason t h a t s a i d s e c t i o n of t h e Montana Code g i v e s advantage t o t h e S t a t e and provides no r e c i p r o c i t y t o t h e defendant. [Defendant had a l r e a d y given n o t i c e of t h e defense under t h e s t a t u t e on A p r i l 28, 1973, and had t h e a f o r e mentioned hearing leading t o Judge S o r t e ' s order of J u l y 18, 1973. ] "The defendant, having been compelled under t h i s s e c t i o n t o plead h i s defense t o t h e charge affirmat i v e l y , has had h i s c o n s t i t u t i o n a l r i g h t s i r r e v o c a b l y jeopardized and can never have a f a i r t r i a l a s a r e s u l t thereof.
"1t i s f u r t h e r moved t h a t t h e case be dismissed. (Paraphrased m a t e r i a l supplied.)
"

"* * *

On October 1, 1973, Judge Sorte denied t h e motion and s t a t e d
t h a t he f e l t o b l i g a t e d t o follow S t a t e ex r e l . Sikora v. D i s t r i c t Court, 154 Mont. 241, 462 P.2d 897, i n holding t h a t n o t i c e of t h e defense of i n s a n i t y does n o t v i o l a t e t h e C o n s t i t u t i o n s of Montana

o r the United S t a t e s .

On t h a t same day, Judge Sorte ordered t h e S t a t e t o submit t o

defendant t h e names of r e b u t t a l witnesses t o t h e defense of i n sanity.

On October 2 , 1973, t h e S t a t e furnished n o t i c e t h a t

D r . M. F. Gracia was t h e only known r e b u t t a l witness a t t h a t time.

The S t a t e gave t h e names of two o t h e r r e b u t t a l witnesses on October 5, 1973. O October 2, 1973, Judge S o r t e n o t i f i e d a l l counsel of h i s n intentions :

1.

To allow t h e defense t o defend on t h e grounds of i n -

s a n i t y a t t h e t r i a l on t h e m e r i t s , and 2. He would n o t i n s t r u c t on t h e ~ ' N a g h t e nr u l e because

he believed t h a t r u l e had been abolished by t h e new Montana Criminal Procedure Code.
On October 9, 1973, t h e d a t e s e t f o r t r i a l , Judge Sorte

m e t with counsel, dismissed t h e j u r y , and i n proceedings i n
chambers r u l e d , i n a d d i t i o n t o t h e above, t h a t s e c t i o n 95-503,
R.C.M.

1947, was u n c o n s t i t u t i o n a l r e l y i n g on Wardius v. Oregon,

U.S.

,

93 S.Ct.

,

37 L ed 2d 82, 41 L.W.

4804.

The p e t i t i o n f o r a w r i t of supervisory c o n t r o l was i n v i t e d by t h e t r i a l judge. c a t i o n of t h e i s s u e . Both t h e S t a t e and defense seek a c l a r i f i The p e t i t i o n seeks a w r i t d i r e c t i n g t h e

d i s t r i c t c o u r t t o d e c l a r e t h e proceedings of October 9 , 1973, n u l l and void, and t o determine t h a t :

1.
2.

Section 95-503, R.C.M.

1947, i s c o n s t i t u t i o n a l .

The defendant be foreclosed from presenting t h e defense

of mental d i s e a s e o r d e f e c t a t t h e time of t h e a l l e g e d crime t o t h e j u r y , and

3.

The ~ ' N a g h t e nr u l e a s s e t f o r t h i n Noble be declared

t o be t h e r u l e of law i n Montana. The i s s u e concerning t h e c o n s t i t u t i o n a l i t y of s e c t i o n 95-503,
R.C.M.

1947, i s c l e a r l y moot i n t h i s case.

Defendant gave n o t i c e Receiving what

and sought t h e hearing h e r e t o f o r e described.

he considers t o be an adverse d e c i s i o n , he now a t t a c k s t h e cons t i t u t i o n a l i t y of t h e very s t a t u t e of which he sought t o take

advantage. Had he believed his rights were truly jeopardized by the statute, he should have attacked it initially rather than seeking relief under its provisions and then alleging it unconstitutionally deprives him of his rights. Defendant's contention might have merit were he able to show prejudice to his case. However, the essence of his contention is In fact,

that he lacks the reciprocity required by Wardius.

he has received the names of three rebuttal witnesses from the State, pursuant to Judge ~orte'sorder. Here, any favorable decision to defendant could give him no more than he already has, namely, the names of the state's intended rebuttal witnesses. From the foregoing it follows that we must apply the rule that this Cour:: will not decide upon the cons:i:utimality of

legislative enactments unless it is absolutely essential to the disposition of the case. Court , Mont State ex rel. Douglas v. District

.

, 507 P.2d 1055, 30 St.Rep. 354; State ex
Mont

rel. Harnmond v Hager, .

.

9

503 P.2d 52, 29 St.Rep.

945. A decision on the constitutionality of section 95-503, R.C.M. 1947, was and is unnecessary, therefore we hold that portion of Judge Sorte's order of October 9, 1973, declaring section 95-503, R.C.M. 1947, unconstitutional to be null and void. The State next contends defendant is foreclosed from presenting the defense of insanity to the jury at trial. It argues

that Chapter 5, Title 95, R.C.M. 1947, contemplates that a defendant relying on the defense of insanity may either (1) try the issue to the trial judge alone in accordance with section 95-507(a), trial. R.C.M. 1947, or (2) try the issue to the jury at It argues that defendant, R.C.M.

He cannot however do both.

having proceeded to a hearing under section 95-507(a),

1947, is now foreclosed from presenting that defense to the jury. In other words, the state's position is that defendant must choose between the alternatives, and having chosen one, cannot pursue the other. We do not agree.

I n our opinion, i t was t h e l e g i s l a t u r e ' s i n t e n t t o give t h e t r i a l judge t h e power t o commit t h e defendant t o a s t a t e i n s t i t u t i o n without a t r i a l i n e i t h e r of two cases: (1) i f t h e

defendant i s not f i t t o proceed, which s i t u a t i o n i s covered by s e c t i o n 95-506, R.C.M. 1947, o r (2) i f t h e defendant a t t h e

t i m e of t h e criminal conduct charged s u f f e r e d from a mental
d i s e a s e o r d e f e c t which rendered him unable t o a p p r e c i a t e t h e c r i m i n a l i t y of h i s conduct o r t o conform h i s conduct t o t h e requirements of law, which s i t u a t i o n i s covered by s e c t i o n 95507, R.C.M. 1947. Here, we a r e concerned with t h e l a t t e r . 1947,

The Revised Commission Comment t o s e c t i o n 95-507, R.C.M. i n regard t o subdivision ( a ) , s t a t e s i n p a r t : Under subdivision (a) i n c a s e s of extreme mental d i s e a s e o r d e f e c t where t h e exclusion of responsib i l i t y i s c l e a r , t r i a l can be avoided and t h e defendant immediately committed a s i r r e s p o n s i b l e . 11
1I

That comment makes i t c l e a r t h a t i f , i n t h e judge's opinion and a f t e r a hearing i f requested by e i t h e r a t t o r n e y , a defendant was c l e a r l y s u f f e r i n g from mental d i s e a s e a t t h e t i m e of t h e crime then t h e judge can a c q u i t t h e defendant and have him committed t o a s t a t e i n s t i t u t i o n forthwith. The purpose i s plain--

t o avoid a c o s t l y t r i a l where t h e mental d e f e c t i s p l a i n and obvious. Such procedure does not deprive a defendant of t h e Had t h e l e g i s l a t u r e intended 1947, t o

defense of mental d e f e c t a t t r i a l .

t h e hearing contemplated by s e c t i o n 95-507(a), R.C.M.

f o r c l o s e a defendant from h i s r i g h t t o present a defense of mental d e f e c t t o a j u r y , then i t would have c l e a r l y s p e l l e d t h a t out i n t h e s t a t u t e . The S t a t e r e l i e s on S t a t e v. Olson, 156 Mont. 339, 480 P.2d
822.
In Olson, t h e defendant advanced t h e proposition t h a t

s e c t i o n s 95-507 and 95-508, R.C.M.

1947, provided a s t a t u t o r y

procedure f o r b i f u r c a t i o n of t h e i s s u e s of mental d e f e c t and g u i l t o r innocence. That was squarely r e j e c t e d . To suggest t h a t

t h e holding i n Olson supports t h e s t a t e ' s contention t h a t pres e n t a t i o n of t h e i s s u e of mental d e f e c t t o t h e t r i a l judge

pursuant to section 95-507( ) R.C.M. a,

1947, precludes presentation

of that issue to the jury at trial is untenable. To adopt the State's contention would fly in the face of Olson, in that since the issue has been decided by the trial judge and would be foreclosed from presentation to the jury, the trial would be in fact bifurcated.

We find the state's position to be without merit.

Finally, the State asks this Court to reaffirm the M'Naghten rule and the "irresistible impulse" rule as set forth in State v. Noble, 142 Mont. 284, 298, 384 P.2d 504. This we will not do.

In Noble, this Court gave extensive consideration to the problem of defining the standards of criminal irresponsibility. There we stated: "Having reviewed the authorities, both legal and scientific, we are unwilling at this time to abandon the established position of this court having found nothing better that would justify a change. 11 Since Noble, Chapter 5 of Title 95, R.C.M. 1947, was enacted by the legislature. That chapter defines criminal irresponsibility in section 95-501(a), R.C.M. 1947, which provides:

"A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he is unable either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. 1 I That definition is the same as that adopted by the American Law Institute in its Model Penal Code, with one exception. Article 4, Section 4.01, of the Model Penal Code, provides:

"A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of the law. I I
The Montana Legislature in section 95-501(a), R.C.M. 1947, substituted the phrase "is unable" for the phrase "lacks substantial capacity" in the Model Penal Code. While this Court has not abandoned its tests of criminal irresponsibility as set forth in Noble, it is clear the legislature has taken the matter into its own hands. In view of

the nearly identical wording of the two rules, and in view of the Revised Commission Comments to section 95-501(a), 1947, which in pertinent part state: R.C.M.

h his section is intended to expand the application of the existing Montana law to include any psychical abnormalities or subnormalities such as emotional deficiencies that have reached the dimension that they can be termed mental diseases or defects and not otherwise. The section ex ands the application of existing Montana l a w h i s added)
this Court concludes that the MINaghten and "irresistible impulseu rules no longer have application in those terms. The test for criminal irresponsibility is as set forth in section 95-501(a), R.C.M. 1947.

One further matter requires comment here--that is the effect of the substitution of the phrase "is unable" found in Montana's statute for the phrase "lacks substantial capacity" found in the Model Penal Code. The Revised Commission Comments to

section 95-501( ) R.C.M. 1947, suggest a guide: a, "While it recognizes the objective of the more modern tests that lack of understanding and lack of control need not be total in order to excuse, and that the question is one of degree, yet it does not excuse (as does the Model Penal Code rule), for a I substantial impairment' of either of these capacities. Rather in order to excuse, the impairment must be so great that the trier of fact can say that the accused was unable to appreciate the criminality of his conduct, or that he was unable to conform his conduct to the requirements of society. I I Thus it is clear the legislature intended a stricter test for mental incapacity than seems contemplated by the Model Penal Code. We will not set forth any rigid language for trial courts

to use in instructing a jury, but will simply recommend that they adopt an approach based on Chapter 5, Title 95,.R.C.M. 1947, and the Revised Commission Comments thereto. The scope and

extent of the instructions in a given case will necessarily be governed by the particular evidence in the case. For a recent

treatment of a similar problem see State v. Grimm, (W.Vir.1973),

The cause i s remanded t o the d i s t r i c t court for proceedings consistent with t h i s opinion.

Jus ticb"

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Justices.



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