No. 14938
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
THE STATE OF MONTANA, on the
Relation of RAYMOND L. OLSON,
Relator,
THE DISTRICT COURT OF THE NINETEENTH
JUDICIAL DISTRICT OF THE STATE OF
MONTANA, IN AND FOR THE COUNTY OF
LINCOLN, and HON. ROBERT M. HOLTER,
DISTRICT JUDGE, THEREOF,
Respondents.
ORIGINAL PROCEEDING:
Counsel of Record:
For Relator:
Randono, Lewis & Donovan, Great Falls, Montana
For Respondents:
Hon. Mike Greely, Attorney General, Helena, Montana
William A. Douglas, County Attorney, Libby, Montana
Submitted on briefs: October 1, 1979
Decided: -
2
Filed: EL:;:: .
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Raymond Olson petitions and appeals from an order of
the Lincoln County District Court, setting aside a previous
order which found Olson "not guilty" by reason of insanity
and ordering him committed to the State Hospital.
Olson was charged in 1969 with two counts of rape.
Olson gave timely notice of his intent to rely on the defense
of insanity. The case was submitted to the jury. The jury
returned a guilty verdict upon which two concurrent sentences
of 60 years were entered. The sentences were subsequently
reversed on appeal. State v. Olson (1971), 156 Mont. 339,
480 P.2d 822. Upon remand the trial court held a hearing and.
determined Olson not guilty by reason of insanity and ordered
him committed to the State Hospital on March 18, 1971. The
commitment order hereinafter referred to as the 1971 order,
referred to the 1970 testimony and depositions of Drs. Miguel
F. Gracia and Robert A. Wetzler, qualified psychologists who
had examined Olson.
Olson walked away from the State Hospital in 1972 without
permission. On February 17, 1977, an order was entered for
the issuance of a bench warrant against Olson "for purposes
of determining whether he should be released from custody
of" the State Hospital. Olson was summarily returned to the
State Hospital. From 1972 until 1977 Olson lived in Great
Falls with his wife and family. On September 1, 1977, Olson
assaulted the same woman but the charges were subsequently
dismissed.
Olson petitioned for discharge on December 27, 1977.
He was examined by Drs. Pierce and Gelernter whose reports
were filed with the court at an August 3, 1978 hearing.
Appeal was again taken resulting in reversal of the judgment
and remanded for further hearing. State v. Olson (1979),
Mon t . , 593 P.2d 724, 36 St.Rep. 761.
On May 25, 1979, the State applied - -
ex parte to the
District Court for an order that Olson be examined by Dr.
Wetzler. The application was granted and examination held on
May 30, 1979. Thereafter a hearing was held on June 13,
1979 and the deposition of Dr. Wetzler filed on June 26,
1979. The court by an order entered August 6, 1979 (herein-
after referred to as the 1979 order) set aside the 1971
order on the basis that it "was procured by the Defendant's
fraud upon . . . [the] Court.. . ."
It is from this 1979 order which Olson appeals seeking
reinstatement of the 1971 order and prohibiting the District
Court from any further proceedings relating to it.
Olson sets forth the following issues on appeal, all
of which are conceded by the respondent:
(1) Is this controversy proper for the Montana Supreme
Court to exercise original jurisdiction?
(2) Did the District Court deny the appellant due
process of law by not giving notice or an opportunity to
be heard on the question of setting aside the 1971 order?
(3) Was there sufficient evidence of a fraud for the
District Court to set aside the 1971 acquittal order?
(4) Did the August 6, 1979 order place the appellant
in double jeopardy in violation of the Fifth Amendment to
the United States Constitution and the 1972 Mont. Const.,
Art. 11, 825.
Section 3-2-204(1), MCA, states:
"The supreme court may affirm, reverse, or modify
any judgment or order appealed from and may direct
the proper judgment or order to be entered
or direct a new trial or further proceedings
to be had." (~mphasisadded.)
---
This statute gives to this Court the power to remand a case
to a lower court accompanied by instructions that direct
further action be taken by it in accordance with those in-
structions. This jurisdiction recognizes the principle
that a lower court cannot ignore an appellate court's mandate
in disposing of a case after it has been returned to the
lower court. See In Re Stoian's Estate (1960), 138 Mont. 384,
This Court in Stoian said:
"'On the remand of the cause after appeal, it
is the duty of the lower court to comply with
the mandate of the appellate court and to obey
the directions therein .
. . the trial court
commits error if it fails to follow the directions
of the appellate court.. . . '
"This court also has held that the district
court cannot refuse to carry out its mandate
when a case has been remanded to the district
court for further proceedings. In Montana Lumber
& Mfg. Co. v. Obelisk Mining & C. Co., 16 Mont.
117, 40 P. 145, the district court was reversed
because it refused to follow the mandate laid
down by this court on a former appeal of the same
case. (Montana Lumber & Mfg. Co. v. Obelisk
Mining & C. Co., 15 Mont. 20, 37 P. 897), wherein
the district court had been directed to include
certain property in a decree of foreclosure." In
Re Stoian's Estate, 357 P.2d at 45; Jangula v. United
States Rubber Company (1967), 149 Mont. 241, 244,
425 P.2d 319, 321.
The District Court in the present case was in error for
not following the mandate of this Court as set forth in our
earlier opinion of this year. The specific instructions of
this Court were as follows:
". . . we conclude that this cause must be
remanded for further testimony on the specific
question of whether Olson's antisocial behavior
as illustrated in the incidents involving Karla
White have anv relationship to any mental disease
or defect cur;ently suffered by oison. (Giving
citations.) The point to be determined by the
-
District Court is whether Olson's present 'danger-
ousness', if any, is related to or growing out of
the abnormal mental condition he exhibited in 1970.
"The mere fact that Olson may have a tendency
towards antisocial behavior is not sufficient
to warrant his continued confinement in Warm
Springs. See, Harris v. United States (D.C.
App. 1976), 356 A.2d 630, 632. If Olson does
not suffer from a mental disease or defect which
causes this behavior, there is no reason for
continuing to include him in the exceptional
class of people discussed earlier. Baxstrom v.
Herold (1966), 383 U.S. 107, 114-15, 86 S.Ct.
760, 764-65, 15 L.Ed.2d 620, 625-26. The ordinary
punishments of the criminal justice system are
adequate to handle Olson's future criminal conduct,
in such circumstances.
"We also point out that the District Court is not
limited to either recommit Olson to Warm Springs
or release him unconditionally. Section 95-508
gives the District Court authority to release
conditionally persons committed to the State
Hospital by placing such conditions as it deems
necessary on the release. But see, Application
of Zion (1978), Mont., 585 P.2d 1084, 35 St. Rep.
1475. On remand, the District Court should not
foreclose the possibility of conditional release
as a proper means of balancing Olson's interest
in liberty against society's interest in protection
from potentially dangerous persons. Application
of Zion, 585 P.2d at 1087, 35 St. Rep. at 1478;
Hill v. State, 358 So.2d at 209." (Emphasis added.)
State v. Olson (1979), Mont . , 593 P.2d
at 731-732, 36 St.Rep. at 770-771.
The 1979 revocation order of the District Court was
the
invalid for several reasons, one of which was / usurpation
of one of the primary functions of this Court. The District
Court attempted the exercise of an appellate power and as
such is invalid. By means of its 1979 revocation order it
attempted to vacate an earlier District Court judgment which
had become the law of the case. By so doing the lower court
not only trampled on Olson's rights of notice and hearing
but also exposed him to double jeopardy.
The District Court is now instructed to determine Olson's
dangerousness, if any, and if release is justified then
set suitable conditions for his release consistent with what
we have presently discussed and quoted from our earlier
opinion.
Accordingly, the 1979 order of the District Court is
reversed and the cause remanded for further proceedings.
Justice
We Concur:
Chief Justice
...................................
Justices
Mr. J u s t i c e John Conway H a r r i s o n s p e c i a l l y c o n c u r r i n g :
I a g r e e t h a t t h e t r i a l judge h e r e h a s no a u t h o r i t y t o
s e t a s i d e t h e judgment of a p r e v i o u s t r i a l judge t h a t " p e t i -
t i o n e r was n o t g u i l t y by r e a s o n of i n s a n i t y " and t h e r e b y
commit him t o t h e S t a t e H o s p i t a l f o r t r e a t m e n t . However,
I a g r e e w i t h s t a t e m e n t s made by Judge H o l t e r t h a t a f r a u d
w a s p e r p e t r a t e d , n o t o n l y on t h e c o u r t , b u t on t h e p e o p l e of
Montana. See m d i s s e n t i n S t a t e v . Olson ( 1 9 7 9 ) ,
y Mont .
, 593 P.2d 724, 732, 36 St.Rep. 761, 771.
Our law a l l o w i n g t h e f i n d i n g o f " n o t g u i l t y by r e a s o n
of i n s a n i t y , " when a p p l i e d t o s e x u a l crimes, c r e a t e s a " C a t c h
22" s i t u a t i o n . The p r o f e s s i o n a l t e s t i m o n y t h a t p u t p e t i t i o n e r
i n a p o s i t i o n t o b e n e f i t from such a p l e a now t e l l s t h e c o u r t
t h a t h e n e v e r s h o u l d have been s e n t t o t h e S t a t e H o s p i t a l
b e c a u s e h e c o u l d n o t have been b e n e f i c i a l l y t r e a t e d . As I
u n d e r s t a n d t h e t e s t i m o n y of t h e p s y c h i a t r i s t s , t h e s e t y p e s
of o f f e n d e r s belong, n o t i n t h e S t a t e H o s p i t a l , b u t i n p r i s o n .
T h i s p e t i t i o n e r was c o n v i c t e d of r a p i n g two women i n
L i n c o l n County. The c o n v i c t i o n was s e t a s i d e due t o e r r o r s
made by t h e t r i a l judge i n r e f u s i n g t o a l l o w t h e p r o s e c u t i o n
t o p e r m i t v o i r d i r e e x a m i n a t i o n of p r o s p e c t i v e j u r o r s on
s u b j e c t s r e l a t e d t o t h e i n s a n i t y defense. However, t h e r e
w a s no q u e s t i o n o f h i s g u i l t of t h e c r i m e s c h a r g e d . When
b r o u g h t f o r r e t r i a l , t h e c o u r t , on t h e b a s i s of p s y c h i a t r i c
testimony a t t h e f i r s t t r i a l , allowed t h e entrance of a p l e a
of n o t g u i l t y "by r e a s o n of i n s a n i t y " and s e n t p e t i t i o n e r
t o the S t a t e Hospital. The j u r y a t p e t i t i o n e r ' s f i r s t t r i a l
found t h a t he knew what h e was d o i n g and d i d n o t s u f f e r from
a d e g r e e of m e n t a l d i s e a s e o r d i s o r d e r which p r e v e n t e d h i s
r e s p o n s i b i l i t y f o r committing t h e o f f e n s e c h a r g e d .
Years ago, b e f o r e p s y c h i a t r y r e f i n e d t h e d e g r e e s of
i n s a n i t y , when one went b e r s e r k , r e g a r d l e s s o f t h e d e g r e e
of i n s a n i t y , he was s a i d t o be " c r a z y " ; a word t h a t c o v e r e d
e v e r y a s p e c t of m e n t a l i l l n e s s . W know b e t t e r now.
e Some
w r i t e r s have pronounced t h e change toward t r e a t i n g m e n t a l
d i s e a s e a n e x h i b i t i o n o f such human q u a l i t y a s t h e moral con-
stitution. Rules o f law, a s w e l l a s l e g i s l a t i o n , a r e p r e d i -
c a t e d on p a t t e r n s of human b e h a v i o r . Certainly, they furnish
t h e i d e a l f o r a democratic s o c i e t y t o a s p i r e t o , b u t here t h e
p e t i t i o n e r s was f a r from b e i n g p o s s e s s e d of such a moral con-
stitution. I n a d d i t i o n , t h e t e s t f o r d e t e r m i n i n g h i s compe-
t e n c y d i d n o t e x a c t t o o much. H e c a r e f u l l y p l a n n e d h i s as-
s a u l t s on t h e two women when t h e i r husbands were away a t work
and promptly f l e d t h e s c e n e a f t e r t h e commission o f t h e r a p e s .
I b e l i e v e t h e e v i d e n c e showed him l e g a l l y s a n e . I t i s pos-
s i b l e t h i s i s a c a s e o f d e p r a v i t y r a t h e r t h a n one of i n s a n i t y .
Where t h e d i v i d i n g l i n e i s between them, w e do n o t know. It
may be t h a t t h e law h a s n o t developed t h e p r o p e r t e c h n i q u e ;
b u t , s u c h as we have, no body of men and women i s b e t t e r
q u a l i f i e d t o cope w i t h t h e problem t h a n a c a r e f u l l y s e l e c t e d
jury.
I n view of what t h e p s y c h i a t r i s t s now t e s t i f y , t h i s
t y p e o f o f f e n d e r d o e s n o t s u f f e r from m e n t a l d e f e c t s t r e a t -
able a t t h e S t a t e Hospital. I t now becomes a l e g i s l a t i v e
m a t t e r where such o f f e n d e r s a r e t o be c o n f i n e d and whether
t h e y a r e e n t i t l e d t o t h e u s e of t h e p l e a o f " n o t g u i l t y by
r e a s o n of i n s a n i t y . "