No. 13760
IN THE SUPREME COURT OF THE STATE OF MONTANA
THE STATE OF MONTANA,
Plaintiff and Appellant,
DARYL D. HAGERUD,
Defendant and Respondent.
Appeal from: District Court of the Eleventh Judicial District,
Honorable Robert C. Sykes, Judge presiding.
Counsel of Record:
For Appellant:
/n r'kc
Hon. Greely, Attorney General, Helena, Montana
William A. Douglas, County Attorney, argued,
Libby, Montana
Ian Christopherson argued, Libby, Montana
For Respondent :
Morrison & Hedman, Whitefish, Montana
Frank Morrison, Sr. argued, Whitefish, Montana
Submitted: September 15, 1977
Decided :
Filed:
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.
Following a nonjury evidentiary hearing, the District
Court of Lincoln County entered judgment acquitting defendant
of deliberate homicide on the grounds of mental defect exclud-
ing responsibility. The state appeals from this judgment, or
in the alternative seeks review and reversal by writ of super-
visory control.
During the late afternoon, September 13, 1976, at the
Frontier Bar in Rexford, Montana, defendant was drinking and
playing pool with Wilma Eisenman, Fred Wales and Marilyn Mullin.
Defendant, who had been divorced several months earlier, was
"involved" with Wilma to the point they were considering marriage.
During the pool game Wales made several comments to Wilma about
certain things she had done at a party a few years earlier. De-
fendant, upset by these remarks, stormed into the rest room.
Wales followed defendant into the rest room, carrying a
pool cue and laughing about his conversation with Wilma. When
defendant and Wales emerged from the rest room, defendant was
holding the pool cue in one hand and Wales by the shirt with the
other. Defendant shoved Wales into a corner and began striking
him with the pool cue and beating him with his fists. At this
point Wilma and Marilyn left the bar and Marilyn called the law.
After she completed the phone call, Marilyn saw defendant leave
the bar.
When Marilyn re-entered the bar, Wales was sprawled across
the pool table. Wales said to her: "I can't figure out why Daryl
did what he did to me." Wales then stood up, staggered around
the bar, and collapsed dead. The broken pool cue and a broken
beer bottle lay nearby.
An autopsy by a forensic pathologist revealed that, in
addition to numerous bruises about Wales' body, Wales had sustained
four blows on his upper forehead and the top and back of his
head. Two of these blows could have been inflicted by an in-
strument similar to a pool cue; the other two blows could have
been inflicted by an instrument such as a beer bottle. The
pathologist concluded that any one or all of these four blows
were the direct and proximate cause of Wales' death.
The defendant could not remember what happened in the
rest room.
The Lincoln County attorney charged defendant with the
crime of deliberate homicide by information filed in the District
Court. Defendant timely filed a notice of intent to interpose
two defenses: (1) mental incompetence excluding responsibility,
and (2) self-defense. The district judge ordered defendant to
Warm Springs State Hospital for psychiatric examination.
Dr. William Alexander, the clinical director at Warm
Springs State Hospital, made a psychiatric examination and eval-
uation of defendant and rendered a report to the District Court.
Dr. Alexander reported defendant had suffered severe head in-
juries in an industrial accident in 1966 resulting in organic
brain damage. He indicated defendant was suffering from non-
psychotic brain syndrome associated with mild brain trauma and
classified defendant as having a passive-aggressive personality,
dependent type. Dr. Alexander concluded with an explanation
of defendant's present condition in this language:
"Patient is aware of the nature of the charges
against him and he is able to assist his lawyer
in his own defense. He is aware of the criminal-
ity of the alleged charges. He is able to con-
duct himself according to the requirements of the
law, and although he is able to have a particular
state of mind which is an element of the offense
charged, it seems a certainty that there was
never any intention on his part to produce the
actual end result of the fight. It is felt that
this patient, in many ways, is a victim of
circumstances."
In a later deposition, Dr. Alexander further explained
his evaluation. He concluded that at the time of commission
of the offense defendant was unable to conform his conduct to
the requirements of the law because of a combination of his
mental defect, his consumption of alcohol prior to the alter-
cation, and his " * * * being in a particular situation at a
particular time."
A psychological report by Katherine Gallagher, a psychol-
ogist at Warm Springs State Hospital, accompanied Dr. Alexander's
report. She concluded that defendant suffered from a pressing
deep-smted anxiety, hysterical neurosis and nonpsychotic organic
brain syndrome.
At defense counsel's request, defendant was additionally
examined by psychiatrists Dr. Robert Wetzler and Dr. Sol Levy,
both of Spokane, Washington, and by a Kalispell, Montana psycholo-
gist, Dr. Herman Androes. At the county attorney's request,
defendant was also examined by Dr. Richard Jarvis, a psychiatrist
from Seattle, Washington.
All concurred with Dr. Alexander's diagnosis that on the
day of the altercation defendant suffered from organic brain
syndrome. In addition some of the examiners classified defendant
as a passive-aggressive personality type; others thought he might
have hysterical neurosis.
The defendant's and the state's examiners disagreed con-
cerning the effect of defendant's mental defect on his conduct
at the time of the alleged offense. Drs. Levy and Androes con-
cluded that at the time of the alleged offense, defendant was un-
able to appreciate the criminality of his conduct or to conform his
conduct to the requirements of the law. Dr. Wetzler thought de-
fendant's mental disorder impaired his ability to appreciate the
criminality of his conduct or to conform his conduct to the require-
ments of law. Dr. Jarvis concluded that defendant was not impaired
t o t h e e x t e n t of l e g a l i n s a n i t y , b u t r a t h e r t h a t h e had " i n t a c t "
c r i m i n a l r e s p o n s i b i l i t y a t t h e beginning of t h e a l t e r c a t i o n .
Dr. J a r v i s conceded t h a t d e f e n d a n t may have been c a r r i e d away
by overwhelming emotion i n t h e c o u r s e o f t h e a s s a u l t " g o i n g
b e r s e r k , s o t o speak".
On J a n u a r y 20, 1977, t h e District C o u r t , s i t t i n g w i t h o u t
a j u r y , conducted a p r e t r i a l h e a r i n g on t h e d e f e n s e o f m e n t a l
d e f e c t excluding r e s p o n s i b i l i t y . The r e p o r t s o f a l l examiners
and v a r i o u s d e p o s i t i o n s w e r e a d m i t t e d i n e v i d e n c e . On F e b r u a r y
3 , t h e D i s t r i c t Court e n t e r e d f i n d i n g s of f a c t , conclusions of
l a w , and a judgment o f a c q u i t t a l on t h e grounds o f m e n t a l d e f e c t
excluding r e s p o n s i b i l i t y . Defendant was committed t o W a r m S p r i n g s
S t a t e Hospital. Following d e n i a l o f t h e s t a t e ' s motion t o recon-
s i d e r , t h e s t a t e a p p e a l e d from t h e judgment and a l t e r n a t i v e l y
r e q u e s t e d t h i s C o u r t t o r e v i e w and r e v e r s e t h e D i s t r i c t C o u r t
judgment by s u p e r v i s o r y c o n t r o l i n t h e e v e n t t h i s C o u r t f e l t t h e
s t a t e had no r i g h t o f d i r e c t a p p e a l .
The i s s u e s r a i s e d by t h e p a r t i e s i n t h i s p r o c e e d i n g c a n
be summarized i n t h i s manner:
(1) Does t h e s t a t e have t h e r i g h t o f d i r e c t a p p e a l from
t h e judgment?
( 2 ) Is t h e judgment s u b j e c t t o r e v i e w by t h i s C o u r t by
w r i t of supervisory c o n t r o l ?
( 3 ) I f t h e judgment i s r e v i e w a b l e on t h e m e r i t s , should
i t be a f f i r m e d , m o d i f i e d o r r e v e r s e d ?
The s t a t e c o n t e n d s t h a t i t h a s a s t a t u t o r y r i g h t o f d i r e c t
a p p e a l from t h e judgment under s e c t i o n 9 5 - 2 4 0 3 ( b ) ( l ) , R.C.M. 1947,
granting t h e state t h e r i g h t of appeal " * * * from any c o u r t
o r d e r o r judgment t h e s u b s t a n t i v e e f f e c t o f which r e s u l t s i n * * *
dismissing t h e case". The s t a t e a r g u e s t h a t t h e s u b s t a n t i v e
e f f e c t o f t h e D i s t r i c t C o u r t judgment i s a d i s m i s s a l of t h e c a s e
because the state will not be able to prove an essential element
of the offense--the required mental state.
The defendant asserts that the state has no right of
appeal under common law, the Montana Constitution, or by statute.
He urges that section 95-2403 (b)(1) does not grant the state the
right of appeal in this case because the substantive effect of
the judgment is an acquittal of the defendant rather than a dis-
missal of the case and any statutory right of appeal granted the
state is in derogation of the common law and must be strictly
construed.
The state's right to a direct appeal from the District
Court judgment in this case is governed exclusively by statute.
Such right did not exist at common law. State v. Peck, 83 Mont.
327, 271 P. 707 (1928). The Montana Constitution does not specifi-
cally address the state's right of appeal in a criminal case. The
controlling statute is section 95-2403 which provides in pertinent
part :
"(a) Except as authorized by this code, the
state may not appeal in a criminal case.
"(b) The state may appeal from any court order
or judgment the substantive effect of which
results in:
" (1) dismissing a case * * *" .
Although it is generally agreed that a statute in dero-
gation of the common law must be strictly construed, this rule
of statutory construction cannot be used to defeat the obvious
purpose of the legislature, nor to lessen the scope plainly intend-
ed to be given the statute. 3 Sutherland, Statutory Construction,
Sec. 61.02, p. 46 (4th Ed. 1974). Here the intention of the
legislature is clear from the language of the statute and ex-
trinsic rules of statutory construction may not be employed to
ascertain legislative intent. W. R. Grace Co. v. Dept. of
Revenue, Mont . , 567 P.2d 913, 34 St.Rep. 713 (1977),
and cases cited therein. Here the legislature clearly granted
the state the right of appeal "from any court order or judgment
the substantive effect of which results in * * * dismissing the
case1'.
Nonetheless, the language of the statute grants the
state no right of direct appeal in this case. The substantive
effect of the judgment here is not dismissal of the case. The
substantive effect is acquittal of the defendant. The two terms
are neither mutually inclusive nor synonymous. In a dismissal
of the case, defendant is entirely free from further restrictions
on his liberty or further control by the court; in an acquittal
by reason of mental defect excluding responsibility, defendant
must be committed to the Warm Springs State Hospital and must
remain there until the committing court finds that he may be
discharged or conditionally released without danger to himself
or others. Section 95-508, R.C.M. 1947.
In the alternative, the state seeks to obtain review of
the ~istrictCourt's decision by writ of supervisory control.
Both Montana's 1889 Constitution and 1972 Constitution
vested in the Supreme Court supervisory control over the ~istrict
Courts. The 1889 Constitution provided that this Court " * * *
shall have a general supervisory control over all inferior courts,
under such regulations and limitations as may be prescribed by
law" in addition to its appellate jurisdiction. Art. VIII, Section
2, 1889 Montana Constitution. In 1928 this Court held that the
process of "appeal" is a creature of statute. State v. Peck,
supra. Under the 1972 Montana Constitution, the Supreme Court
" * * * has general supervisory control over all other courts"
in addition to appellate jurisdiction. Art. VII, Section 2(2),
1972 Montana Constitution. his Court is further granted
"original jurisdiction to issue, hear, and determine writs of
habeas corpus and such other writs as may be provided by law".
Art. VII, Section 2(1), 1972 Montana Constitution.
We have previously held that one of the functions of
supervisory control is to enable this Court to control the
course of litigation in the District Courts where these courts
are proceeding within their jurisdiction, but by a mistake of
law, or willful disregard of it, are doing a gross injustice,
and there is no appeal, or the remedy by appeal is inadequate.
State ex rel. Whiteside v. District Court, 24 Iont. 539, 63
P. 395 (1900). Thus where a District Court is acting under a
mistake of law and no direct appeal exists, a review of the
District Court's decision through a writ of supervisory control
may be entertained. See State ex rel. Nelson v. Dist. Ct.,
Mont . , 566 P.2d 1382, 34 St.Rep. 688 (1977).
Montana's Code of Criminal Procedure provides a pretrial
method for determining a defendant's competency at the time he
allegedly committed the crime charged. Section 95-501 through
509, R.C.M. 1947. Upon defendant's interposing a defense of
mental disease or defect excluding responsibility, or upon its
own motion, the District Court must order a psychiatric exam-
ination of defendant. Section 95-505(1), R.C.M. 1947. Section
95-507 (1), R.C.M. 1947, then provides:
"If the report filed under section 95-505 finds
that the defendant at the time of the criminal
conduct charged suffered from a mental disease
or defect which rendered him unable to appreciate
the criminality of his conduct or to conform his
conduct to the requirements of law, and the court,
after a hearing if a hearing is requested by the
attorney prosecuting or the defendant, is satis-
fied that the mental disease or defect was suf-
ficient to exclude responsibility, the court on
motion of the defendant shall enter judgment of
acquittal on the ground of mental disease or
defect excluding responsibility."
Then,what is the proper standard for measuring the proof
required to satisfy the court "that the mental disease or defect
was sufficient to exclude responsibility?"
The Revised Commission Comment to Section 95-507(1)
states in part:
"Under subdivision (a) [now subdivision (I)] in
cases of extreme mental disease or defect where
exclusion of responsibility is clear, trial can
be avoided and the defendant immediately committed
as irresponsible."
In State ex rel. Krutzfeldt v. Dist. Court, 163 Mont. 164,
170, 515 P.2d 1312 (1973), we said:
"That comment makes it clear that if, in the
judge's opinion and after a hearing if requested
by either attorney, a defendant was c Z e a r Z y suf-
fering from mental disease at the time of the
crime then the judge can acquit the defendant
and have him committed to a state institution
forthwith. The purpose is plain--to avoid a
costly trial where the mental defect is plain
and obvious."
The state contends that the proper standard of proof
was not met in this case because there was conflicting medical
testimony in the record. The state argues that it was the
legislature's intent to allow the District Court to acquit a
defendant by reason of such a mental disease or defect only
when there was absolutely no question or conflict of medical
records, medical opinion or testimony that defendant was in
fact suffering from such a mental disease or defect. While we
do not agree with the state's strict formulation of this standard
of proof, we do agree that the District Court did not apply the
proper standards here.
Section 95-507(1) requires that if the court "is satisfied"
that the mental disease or defect is sufficient to exclude re-
sponsibility, the court must enter a judgment of acquittal by
reason thereof. In satisfying itself of defendant's mental dis-
ease or defect, the court cannot act arbitrarily or capriciously.
Nor does the term "satisfied" indicate that the court's belief
of defendant's mental incompetence may be based upon a mere pre-
ponderance of the evidence. The standard of proof required is
proof such as to leave no room for a difference of opinion
among reasonable minds. McRuffin v. State, 91 Tex.Crim.R.
569, 240 S.W. 309 (1922); Wilcoxin v. Commonwealth, 138 Ky.
846, 129 S.W. 309, (1910).
Our decisions in State ex rel. Main v. Dist. Court,
164 Mont. 501, 525 P.2d 28 (1974) and State ex rel. Nelson v.
District Court, supra, are not to the contrary. In Main the
relator petitioned for a writ of supervisory control when the
District Court refused to acquit him by reason of mental disease
or defect excluding responsibility. Although conflicting
medical opinions existed in the record, this Court held that the
testimony of the state's medical expert did not raise a factual
question. The overwhelming weight of all the testimony was that
relator suffered from such a mental disease or defect as to ex-
clude responsibility.
In Nelson, relator also petitioned for a writ of super-
visory control upon a similar refusal by the District Court.
There relator asserted the defense of temporary insanity in
which the facts surrounding the commission of the offense were
critical to his defense. While Dr. Alexander, the only medical
expert testifying, concluded from the facts Nelson related to
him that Nelson was temporarily insane, we approved the trial
court's ruling that Dr. Alexander's opinion was based upon deter-
minations of disputed facts which were for a jury to determine.
The circumstances surrounding the commission of the offense
in the instant case are as important here as they were in Nelson.
Although Hagerud's defense was not one of temporary insanity,
experts for both sides stated that their evaluations of Hagerud's
responsibility were based on the facts immediately surrounding
the commission of the offense as related to them by Hagerud, and
their evaluations could change depending upon what those facts
were. Where, as here, the state contests those facts, and
where they are crucial to establishing defendant's nonresponsi-
bility under section 95-507(1), it is error for the District
Court in this type of summary pretrial procedure to acquit a
defendant by reason of mental disease or defect excluding re-
sponsibility.
Defendant contends that to permit the state to obtain
review of the district court's decision acquitting defendant
by reason of mental disease or defect excluding responsibility
under section 95-507(1) would put defendant in double jeopardy
and violate his constitutional rights. We disagree.
The United States Constitution provides that no person
shall " * * * be subject for the same offense to be twice put in
jeopardy of life or limb * * *". Fifth Amendment, United States
Constitution. The Fifth Amendment's prohibition applies to state
court criminal proceedings through the "due process clause" of
the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 23
L ed 2d 789, 89 S.Ct. 2056 (1969). This Court has previously
recognized that principle. State v. Cool, Mont . , 568 P. 2d
567, 34 St-Rep. 1029 (1977); State v. Cunningham, 166 Mont. 530,
535 P.2d 186 (1975). Additionally, the 1972 Montana Constitution
declares: " * * * No person shall be again put in jeopardy for
the same offense previously tried in any jurisdiction." Montana
Constitution, Art. 11, Section 25.
In order for an accused to be twice put in jeopardy, he
must first be put in jeopardy once. Montana law provides that
jeopardy attaches in a criminal trial when the first witness is
sworn. State v. Cunningham, 166 Mont. 530, 535 P.2d 186 (1975).
The federal rule provides that jeopardy attaches when the jury
is sworn. Downum v. United States, 372 U.S. 734, 10 L ed 2d 100,
83 S.Ct. 1033 (1963). The constitutional validity of Montana's
rule is currently before the United States Supreme Court in the
appeal of Bretz v. Crist, 546 F.2d 1336 (9th Cir. 1976), appeal
filed -- Crist v. Cline, 45 U . S . L . W . 3684 ( U . S . Feb. 18,
sub-nom.
No. 76-1200),
1977,/(this was a habeas corpus proceeding in Federal Court
after relief was denied in state court - - State ex rel.
sub. nom.
Bretz and Cline v. Sheriff, 167 Mont. 363, 539 P.2d 1191 (1975)).
However, under neither the federal rule nor the Montana rule does
jeopardy attach prior to the commencement of the trial of the
accused.
The proceeding in this case was simply a pretrial hearing
to determine whether defendant at the time of the offense charged
was so clearly unable to appreciate the criminality of his conduct
or conform his conduct to the requirements of law that trial would
be useless. Defendant was never once placed in jeopardy because
his trial on the crime charged was never held.
The double jeopardy principle here is similar to that
involved in Serfass v. United States,420 U.S. 377, 43 L ed 2d
265, 95 S.Ct. 1055 (1975), where a Federal Court had dismissed
an indictment by pretrial order. In Serfass petitioner argued
that although formal or technical jeopardy had not yet attached,
the court's ruling was the functional equivalent of an acquittal
on the merits because the dismissal was based on evidentiary facts
outside the indictment which would constitute a defense on the
merits. Petitioner argued that thus constructive attachment of
jeopardy had occurred barring further prosecution. However, the
United States Supreme Court held that although an accused may
raise defenses or objections before trial which are capable of
determination without a trial of the general issue, the accused
had not been placed in jeopardy because he had not been subjected
to the hazards of trial and possible conviction.
In this case defendant was never once placed in jeopardy
because he was never subjected to the possibility of conviction of
the crime charged. As jeopardy has never attached in the first
i n s t a n c e , t h e b a r o f d o u b l e jeopardy must f a i l .
The judgment of t h e D i s t r i c t C o u r t i s v a c a t e d and t h e
c a u s e remanded t o t h e D i s t r i c t Court f o r f u r t h e r p r o c e e d i n g s
i n conformity with t h i s opinion.
Justice
W e concur: