NO. 81-411
IN THE SUPREME COURT OF THE STATE OF MONTANA
1982
STATE OF MONTANA,
Plaintiff and Respondent,
VS.
JESSE D. STEPHENS,
Defendant and Appellant.
Appeal from: District Court of the Fourth Judicial District,
In and for the County of Missoula
Honorable Douglas Harkin, Judge presiding.
Counsel of Record:
For Appellant:
Hirst, Dostal & Withrow, Missoula, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Robert L. Deschamps 111, County Attorney, Missoula,
Montana
Submitted on briefs: March 5, 1982
Decided :
y r - .,
Filed: iklpnl
3 1982
Mr. Justice Fred J. Weber delivered the Opinion of the
Court.
Defendant Jesse D. Stephans (Stephans) appeals from a
conviction of robbery following a trial before a jury in the
Fourth Judicial District, Missoula County. He presents the
following issues for review:
(1) Whether the testimony of Forrest Bex (Bex) should
have been allowed in evidence over the objection as to his
competency as a witness.
(2) Whether the sentence imposed, which is twice as
long as that recommended by the presentence report, is
valid.
We affirm.
On the evening of February 2, 1980, Carla E. Rasmussen
(Rasmussen) was the only clerk in a Circle K store in East
Missoula, Montana. About 9:45 P.M. two men came into the
store -- one red-head and the other partially bald. They
bought a dollar's worth of gas and a cold pack of beer, then
left. A few minutes later the partially bald man returned.
His hand was in his pocket pointed like a gun and he asked
for her money. Rasmussen believed that he had a gun and was
very frightened. She placed the bills from both tills into
a bag and gave the bag to the man. He then made her lie
down flat on the floor.
After a few minutes, Rasmussen called the police and
gave them a statement, including a description of the men.
From a photograph lineup, she picked out Bex as the red-
head and Stephans as the partially bald man.
I.
Whether the testimony of Bex should have been allowed
in evidence over the objection as to his competency as a
witness.
During the trial the prosecution called Bex to testify.
The defense attorney requested an examination of the witness
regarding his competency to testify. An in camera examination
was held where both attorneys questioned Bex in the presence
of the judge. During the examination, it was revealed that
in 1974 Bex had been charged with arson which resulted in
his being evaluated at Warm Springs State Hospital. Bex did
not stand trial as the District Court found him unfit at
that time to proceed because he was unable to assist in his
own defense and to understand the proceedings against him.
The judge in the present case had before him the 1976
evaluations which provided, in part:
"2. The following diagnoses were given to
him:
"A. Adjustment reaction of adolescence
"B. Inadequate personality
"C. Episodic excessive drinking
"D. Borderline mental retardation
"E. Non-psychotic OBS with other physical
condition [organic brain syndrome]
"3. The medical staff of the hospital found
that Mr. Bex is suffering from a mental disease
or defect and in our opinion, his capacity to
understand the proceedings against him and to
assist in his own defense is impaired.
"4. It is also the opinion of the medical
staff of the hospital that Mr. Bex's ability
to appreciate the criminality of his conduct
or to conform his conduct to the requirements
of the law at the time of the criminal conduct
charged was impaired."
The Warm Springs State Hospital evaluations went on to
conclude:
"Mr. Bex seems ready to be returned to your
custody for disposition and we recommend that
he have some amount of supervision, and follow-
up psychiatric care, if allowed to live in the
community again. He seems very much improved;
has accepted rules and regulations well, with-
out difficulties."
During the in camera examination held in the present case,
Bex testified as to his past and to his ability and intention
to tell the truth. At the end of the examination, the judge
found that the witness was "capable of expressing himself
concerning the matter so as to be understood by the judge
and jury" and that he was "capable of understanding the duty
of the witness to tell the truth under Rule 601." When the
trial resumed, the judge instructed the jury, prior to the
direct examination of Bex, as follows:
"The law requires that I determine whether or
not a witness is capable of expressing himself
so as to be understood by the judge and the
jury. I have determined that this witness is
capable of expressing himself in such a manner.
"It also requires that I determine whether or
not he is capable of understanding his duty
as a witness to tell the truth. I find that he
is capable of making that understanding.
"The weight to be given his testimony is solely
within the discretion of the jury."
Bex then testified before the jury.
The Montana Rules of Evidence, Rule 601, states:
"(a) General rule competency. Every person
is competent to be a witness except as other-
wise provided in these rules.
"(b) Disqualification of witnesses. A person
is disqualified to be a witness if the court
finds that (1) the witness is incapable of
expressing himself concerning the matter so
as to be understood by the judge and jury
either directly or through interpretation by
one who can understand him or (2) the witness
is incapable of understanding the duty of a
witness to tell the truth."
The rules of evidence were enacted on July 1, 1977.
Prior to that the Montana statute provided that those of
unsound mind could not be witnesses. Section 93-701-3(1),
R.C.M. 1947. Even with that statute this Court held that
"there is no presumption that a witness is incompetent and
the burden is on the party asserting incompetency to prove
it." State v. Coleman (1978), 177 Mont. 1, 27, 579 P.2d
732, 748. The enacting of the rules in 1977 did not create
any presumptions. The defendant is required to prove incompetency
and it is the function of the trial judge to determine the
competency of the witness to testify. Coleman, 177 Mont. at
27, 579 P.2d at 748. The Defendant did not submit any
additional evidence of incompetency beyond the 1975 and 1976
Warm Springs State Hospital evaluations. While these
reports show 1976 diagnoses of mental disorders, the reports
also indicate that he was very much improved. In and of
themselves, these reports are not sufficient to require a
conclusion that the witness was incompetent, incapable of
expressing himself concerning the matter, or incapable of
understanding the duty to tell the truth. After considering
such reports and after watching Bex answer questions, the
District Court concluded that Bex was capable of expressing
himself in a manner so as to be understood and was capable
of understanding the duty of a witness to tell the truth.
The record discloses facts upon which the District Court
could properly reach such a conclusion.
"It is within the discretion of the trial judge to
determine competency and his findings will not be overturned
absent an abuse of discretion." State v. Camitsch (1981),
Mont. , 626 P.2d 1250, 1256, 38 St.Rep. 563, 569;
State v. Shambo (1958), 133 Mont. 305, 309, 322 P.2d 657,
659.
We find no abuse of discretion in allowing the testimony
of Bex.
11.
Whether the sentence imposed, which is twice as long as
that recommended by the presentence report, is valid.
The sentence hearing was held April 30, 1981. At that
time, the court had before it a presentence report prepared
by the Department of Institutions, which recommended that
Stephans be sentenced to fifteen years at the Montana State
Prison and designated a dangerous offender for parole purposes.
The trial judge sentenced Stephans to thirty years at
Montana State Prison and designated him as a dangerous
offender for parole purposes.
Upon imposing the sentence, the judge gave reasons for
the sentence:
"I also find that although the amount taken
by the Defendant in the robbery was only
about twenty-eight dollars, the Defendant
caused the store clerk to be extremely ter-
rified and fearful for her life. The Defen-
dant continues to show no remorse for his
actions and belittles the seriousness of his
crime and its effect upon the victim.
"The court concludes that the imprisonment
of the Defendant will serve to protect the
public from any additional crimes being con-
victed [sic] by the Defendant. Imprisonment
of the Defendant should be of sufficient
length to act as a sufficient deterrent of
the Defendant not to commit an additional
crime. Rehabilitation of the Defendant
while on probation has no chance of success.
The Defendant presents a danger to the public
and should be designated as a dangerous of-
fender for the purpose of parole eligibility."
(Transcript of April 30, 1981 at 20-21.)
The judge's findings of fact and conclusions of law contained
a detailed basis for the sentence, including that Stephans
had previous convictions of three felonies, three misdemeanors,
and three parole violations, and show that the judge was
aware of the contents of the presentence report. When asked
by the defendant's attorney to state reasons why the presentence
report's recommendation of fifteen years was not followed,
the judge replied:
"I had an opportunity to observe this Defen-
dant during the entire trial. I heard his
testimony in court. I watched him during
the trial. I continued to observe him today.
By his own admissions, he does not acknowl-
edge the seriousness of the offense. He con-
tinued to think that he should be allowed
another chance. He has had chance after
chance after chance. I do not want him in
this community because he poses a danger to
the people of this district, and I will not
allow him to remain here." (Tr. of April 30
at 21-22. )
The defendant has the right to have his sentence reviewed
for equity , disparity, or considerations of justice by the
Sentence Review Board. He has the right to appeal his
sentence to the Montana Supreme Court to determine its
legality. State ex rel. Greely v. District Court of the
Fourth Judicial District (1979), 180 Mont. 317, 327, 590
P.2d 1104, 1110. Stephans contends that although the judge
gave reasons for his sentence, he did not explain its disparity
with the recommendation in the presentence report, and
therefore, the sentence is not legal.
Section 46-18-111, MCA, provides that in the event the
court requests a presentence report, the report is to be
considered by the court. The section reads:
"Presentence investigation. No defendant con-
victed of a crime which may result in commit-
ment for 1 year or more in the state prison
shall be sentenced or otherwise disposed of
before a written report of investigation by
a probation officer is presented to and con-
sidered by the court unless the court deems
such report unnecessary. The court may, in
its discretion, order a presentence investi-
gation for a defendant convicted of any
lesser crime or offense."
There is no requirement that the sentencing judge adopt the
recommendation of the presentence report or that he state
reasons for any discrepancy between the recommended sentence
and the one actually imposed. The sentencing judge must
only specify reasons why the sentence was imposed. State v.
Stumpf (1980), Mont. , 609 P . 2 d 298, 37 St.Rep.
673; Cavanaugh v. Crist (1980), Mont. , 615 P.2d
890, 37 St.Rep. 1461. The District Court met this require-
ment.
There is no basis for the sentence to be considered
illegal. The District Court's judgment is affirmed.
We Concur:
Chief Justice