State v. Peavler

• Court: Montana Supreme Court
• Decided: September 25, 1981
• Docket: 81-316
• Status: Published

Opinion

No. 81-316

I N THE SUPREME COURT O T E STATE O M N A A F H F OTN

T E STATE O MONTANA, H F

P l a i n t i f f and Respondent,

LEONARD DAVE PEAVLER,

Defendant and A p p e l l a n t .

Appeal from: D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t , I n and f o r t h e County o f Cascade Hon. H. W i l l i a m Coder, J u d g e p r e s i d i n g .

Counsel o f Record:

For A p p e l l a n t :

Mark Bauer, P u b l i c D e f e n d e r , G r e a t F a l l s , Montana

F o r Respondent:

Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana J . F r e d Bourdeau, County A t t o r n e y , Great F a l l s , Montana

-- -

S u b m i t t e d on b r i e f s : September 2 5 , 1981

Decided:

Filed: b!OV 5. 4988 $'

C PY Clerk Mr. J u s t i c e J o h n Conway H a r r i s o n d e l i v e r e d t h e Opinion of tne Court. T h i s i s a n a p p e a l from a c o n v i c t i o n o f b u r g l a r y com-

m i t t e d i n Cascade County. The a p p e l l a n t was t r i e d by a j u r y and s e n t e n c e d t o f i v e y e a r s a s a n o n d a n g e r o u s o f f e n d e r . The s o l e i s s u e i s w h e t h e r t h e D i s t r i c t C o u r t e r r e d i n excluding expert testimony on w h e t h e r appellant's alleged

intoxicated condition deprived him of his capacity to 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 c o n d u c t o r t o conform h i s

c o n d u c t t o t h e r e q u i r e m e n t s o f t h e law. Appellant has a long history of problems with alcohol. He h a s h e l d numerous j o b s u n t i l p a y d a y and t h e n been f i r e d because o f alcohol-related problems. On A p r i l

18, 1980, a p p e l l a n t was at his home i n Helena, Montana, drinking with three friends. H i s w i f e , who was p r e s e n t b u t

not drinking, testified that the four friends consumed nearly a case of beer and were "pretty smashed" when

a p p e l l a n t l e f t f o r Great F a l l s i n mid-afternoon. That evening at approximately 10:OO p.m. a silent b u r g l a r y a l a r m went o f f a t Spencer's S t o r e i n t h e Holiday V i l l a g e s h o p p i n g m a l l and two p o l i c e o f f i c e r s i n t h e a r e a were dispatched to investigate. Upon arrival they found t h a t t h e bottom h a l f o f a s p l i t door l e a d i n g i n t o t h e s t o r e

from the mall was unlocked but closed. The officers proceeded into the store and past a storage area. Subsequently, an individual bolted from t h e s t o r a g e a r e a , o u t t h e d o o r , and i n t o t h e m a l l . The o f f i c e r s c h a s e d and f i n a l l y subdued t h e i n d i v i d u a l . The store owner and his son arrived shortly thereafter. The p o l i c e and owner c h e c k e d t h e s t o r e , f o u n d

no o n e e l s e , and t h e p o l i c e l e f t . A s t h e owner and h i s s o n c h e c k e d t o s e e what was m i s s i n g , they found a money bag,

c u s t o m a r i l y u s e d t h e open t h e s t o r e , was m i s s i n g some $50.

As t h e y were leaving, t h e owner noticed the hands of the

a p p e l l a n t e x t e n d i n g o u t from under a bench in the storage

area. The owner left the storage area and called the

police. The p o l i c e e n t e r e d t h e s t o r e a g a i n and c a l l e d upon

t h e a p p e l l a n t t o come o u t o f hiding. Appellant came o u t

peacefully and smoking a cigarette. Later, some of the

missing money was found in the storage room where the

a p p e l l a n t had h i d d e n .

S p e n c e r and t h e two a r r e s t i n g o f f i c e r s t e s t i f i e d t h a t

t h e a p p e l l a n t emerged f r o m t h e s t o r e v e r y r e l a x e d , h i s e y e s

were normal, and there were no signs of intoxication,

a l t h o u g h t h e o f f i c e r s n o t e d a f a i n t o d o r o f a l c o h o l on h i s

breath.

A p p e l l a n t ' s d e f e n s e was, f i r s t , t h a t h e was a c h r o n i c

a l c o h o l i c , c o u l d n o t c o n t r o l h i s d r i n k i n g , and was t h e r e f o r e

involuntarily intoxicated a t the time of the offense.

Second, b e c a u s e of t h i s i n v o l u n t a r i l y - p r o d u c e d intoxication,

h e was c o m p l e t e l y d e p r i v e d o f h i s c a p a c 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 c o n d uc t o r t o conform h i s a c t i o n s t o t h e

r e q u i r e m e n t s of t h e law. A s p a r t of the defense, appellant

had intended to ask a psychiatrist, Dr. Davis, and a

p s y c h o l o g i s t , Dr. B a t e e n , t h e f o l l o w i n g q u e s t i o n :

" D o c t o r , a s s u m i n g t h a t Dave P e a v l e r w a s i n t o x i c a t e d on A p r i l 1 8 , 1 9 8 0 , a n d , a s you know, was f o u n d i n S p e n c e r I s S t o r e i n H o l i d a y V i l l a g e i n G r e a t F a l l s , d o you h a v e an o p i n i o n on r e a s o n a b l e m e d i c a l / p s y c h o l o g i c a 1 c e r t a i n t y a s t o w h e t h e r o r n o t Dave P e a v l e r ' s i n t o x i c a t e d c o n d i t i o n d e p r i v e d him o f h i s capacity t o appreciate the c r i m i n a l i t y of h i s c o n d u c t o r t o conform h i s c o n d u c t t o t h e requirements of law?"

Appellant contends that his defense was completely destroyed when the court granted the State's motion limiting the testimony of the psychologist and the psychiatrist. The prosecution claims inability to appreciate the criminality of one's conduct or to conform one's conduct to the requirements of the law has not been recognized as a defense in Montana since 1979. The trial court agreed, and excluded that portion, but only that portion, of the psychologist's and psychiatrist's expert testimony. The appellant argued that section 45-2-203, MCA, allows the testimony. Section 45-2-203, MCA, provides: "--- ~--- i b i l i t y-- intoxicated or drugqed Res ons condition. A person who is in an intoxicated or drugged condition is criminally respon- sible for conduct unless such condition is involuntarily produced and depr ives him of his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. An intoxicated or drugged condition may be taken into consi- deration in determining the existence of a mental state which is an element of the offense ." In 1979, the legislature extensively amended the sections involved with the defense of mental disease or defect. House Bill 877 removed these two defenses from sections 46-14-213(2) and 46-14-301, MCA; but, in their efforts they failed for some reason to remove these defenses from the provisions of section 45-2-203, MCA. It is appellant's position that section 45-2-203, MCA, not having been changed in any way by the bill, entitles him to rely on same for his defense. We find the case of State v. Ostwald (1979), 180 Mont. 530, 591 P.2d 646, 36 St.Rep. 442, controlling in this matter. There we held: ". . . We hold that where, as here, the defense of intoxication shifts to a defense based on expert testimony as to the long term effects of alcoholism, then it becomes a defense of mental disease or defect within the purview of the statutes requiring notice . . . " 591 P.2d at 650. While in this case notice was given in the defense, and the narrow question of Ostwald was whether the defendant's expert testimony could be presented in absence of prior notice, the clear holding of that case is much broader. Under Ostwald, once expert testimony is submitted on intoxication, the defense comes within section 46-14-101 et seq., MCA, for all purposes. Ostwald holds that the proffer of expert testimony comes within section 46-14-213, MCA, which specifically limits the testimony that an expert may give. That testimony includes, "his opinions as to the ability of the defendant to have a particular state of mind which is an element of the offense charged." It does not include opinions on the ability to appreciate the criminality or to conform conduct to the requirements of the law. The District Court properly held that after the amendments of 1979, the legislature has done away with those two indicia of criminal reponsibility. The judgment of the District Court is affirmed. W concur: e

ustices

Mr. J i ~ s t i c e a n i e l J. Shea w i l l f i l e a c o n c u r r i n g o p i n i o n . D