State v. Peavler

No. 81-316

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

1981

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