No. 83-410
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
JERRY T. KORELL,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Ravalli,
The Honorable Robert M. Holter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Robinson, Doyle & Bell; John C. Doyle argued,
Hamilton, Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
Kimberly A. Kradolfer argued, Asst. Atty. General
Robert B. Brown, County Attorney, Hamilton, Montana
Larry Johnson argued, Deputy County Atty., Hamilton
Submitted: October 2, 1984
Decided: November 16, 1984
Filed:
FQV1 1984
Clerk
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
Jerry Rorell appeals the judgment of the Ravalli County
District Court finding him guilty of attempted deliberate
homicide and aggravated assault. Korell was sentenced to
concurrent sentences of thirty-five and fifteen years at the
Montana State Prison. Korell's defense at trial was that he
lacked the requisite criminal mental state by reason of his
insanity. On appeal his primary contention is that the
Montana statutory scheme deprived him of a constitutional
right to raise insanity as an independent defense.
Jerry Korell is a Viet Nam veteran who had several
.
disturbing experiences during his tour of duty. The exact
nature of the trauma was never fully documented. Friends and
family agree that he was a different person when he returned
from the service. Between Korell's honorable discharge in
1970 and the present events, he was twice admitted to VA
hospitals for psychological problems and treated with
anti-psychotic drugs. In 1 9 7 6 he was jailed briefly in
Boise, Idaho, for harassing and threatening the late Senator
Frank Church.
The basic nature of Korell's problems was that he would
periodically slip into paranoid pheses during which he had
trouble re1 ating to male authority figures. His mental
health varied dramatically. In the poorer times his family
entertained thoughts about having him civilly committed. His
VA hospital.izations were voluntary and neither of the stays
were of such length that he was fully evaluated or treated..
In 1 9 8 0 Korell entered a community college program for
echocardiology in Spokane, Washington. Echocardiology is the
skill associated with recording and interpreting sonograms of
the heart for diagnostic purposes. In March 1982 he was sent
to Missoula to serve a clinical externship at St. Patrick's
Hospital. Korell's supervisor at the hospital was Greg
Lockwood, the eventual victim of this crime.
Korell's relationship with Lockwood deteriorated for a
variety of work-related reasons. Foremost was Korell ' s
belief that he was worked excessively by Lockwood. At this
time Korell was subjected to what expert testimony labeled
psychological stressors: a divorce by his wife, financial
problems and the pressures of graduation requirements.
In April 1982 Korell wrote a letter to the hospital
administrator complaining about his supervisor, Lockwood.
Korell was transferred to an externship in Spoka.ne, and
Lockwood was placed on probation. Both men retained. very
bitter feelings about the incident. Lockwood stated to
friends he would see to it that Korell was never hired any-
where in echocardiology. Korell may have learned of
Llockwood'sstatements.
Korell's actions in the next two months indicate a
great deal of confusion. He set fire to a laundromat because
he lost nine quarters in a machine and was tired of being
ripped off. He set fire to a former home of his wife because
she had bad feelings about it.
Released on bail from these incidents, he returned to
Missoula in June 1982. Psychiatric testimony introduced at
trial indicates that Korell felt he had to kill Lockwood
before Lockwood. killed him. He removed a handgun from a
friend's home, had another acquaintance purchase ammunition,
and on the evening of June 25, 1982, drove to the Lockwood
home in the Eagle Watch area of the Bitterroot Valley.
Shirley Lockwood, Grecr's wife, saw the unfamiliar vehicle
approach the house. Greg Lockwood was lying on the 1-iving
room floor at the time watching television. Korel.1 entered
the house through a side door and began firing. Although
wounded, Greg Lockwood managed to engage the defendant in a
struggle. A shot was fired in the direction of Lockwood's
wife. Korell grabbed a kitchen knife and both men were
further injured before Lockwood was able to subdue Korell.
Korell was charged with attempted deliberate homicide
and aggravated assault. The defendant gave notice of his
intent to rely on a mental disease or defect to prove that he
did not have the particular state of mind which is an essen-
tial element of the offense charged. Prior to trial he
sought a writ of supervisory control declaring that he had a
right to rely on the defense that he was suffering from a
mental disease or defect at the time he committed the acts
charged. The writ was denied by this Court on December 20,
1-982, and the case proceeded to trial.
Several psychologists and psychiatrists testified on
Korell's mental condition. The defense sought to establish
by its expert witnesses and numerous character witnesses that
Korell was a disturbed man who was psychotic at the time the
crimes were committed. It was argued that his acti-ons when
he entered the Lockwood home were not voluntary acts. The
St-ate produced its own expert witnesses who testified on
Korell ' s mental condition. Four doctors testified in all-,
two for the prosecution and two for the defense. Three of
the four stated Korell had the capacity to act knowingly or
purposely, the requisite mental state for the offenses, when
he entered the Lockwood home.
Without giving prior notice, the State produced. Cedric
Hames a.s a rebuttal witness who testified that he purchased
ammunition for the defendant several days before the shoot-
ing. A motion for mistrial was made by the defense. The
court denied the motion but offered the defense a continu-
ance. The offer was refused by defendant's counsel.
In keeping with Montana's current law on mental disease
or defect, the jury was instructed that they could consider
mental disease or defect only insofar as it negated the
defendant ' s requisite state of mind. The jury returned
guilty verdicts for the attempted deliberate homicide and
aggravated assault.
On appeal the defendant presents the following issues:
1. Is there a constitutional right to raise insanity
as an independent defense to criminal charges?
2. Was the State's rebuttal testimony of Cedric Hames
properly admitted?
3. Was the jury properly instructed on the issue of
voluntariness?
4. Did the District Court fail t.o consider defendant's
mental condition at sentencing?
5. Did the District Court act within its discretion in
awarding fees to defendant's court-appointed attorney?
I. CONSTITUTIONAL CHALLENGE
A. Background
In 1.979 the Forty-Sixth Session of the Montana Legisla-
ture enacted House Bill 877. This Bill abolished use of the
traditional. insanity defense in Montana and substituted
alternative procedures for considering a criminal defendant's
mental condition. Evidence of m e n t a l d i s e a s e o r d e f e c t i.s
now considered at three phases of a criminal proceeding.
Before t r i a l , e v i d e n c e may be p r e s e n t e d t o show t h a t
the defendant is not fit to proceed to trial. Section
46-14-221, MCA. Anyone who is unable to understand the
p r o c e e d i n g s a g a i n s t him o r a s s i s t i n h i s d e f e n s e may n o t be
prosecuted. S e c t i o n 46-14-103, MCA.
During t r i a l - , e v i d e n c e of m e n t a l d i s e a s e o r d e f e c t i s
a d m i s s i b l e when r e l e v a n t t o p r o v e t h a t , a t t h e t i m e of t h e
o f f e n s e c h a r g e d , t h e d e f e n d a n t d i d n o t have t h e s t a t e of mind
that is an element of the crime charged, e.q., that the
defendant did not act purposely or knowingly. Section
46-14-102, MCA. The S t a t e r e t a i n s t h e burden of p r o v i n g e a c h
e l e m e n t o f t h e o f f e n s e beyond a r e a s o n a b l e d o u b t . Defendant
may, of course, p r e s e n t evidence t o c o n t r a d i c t t h e S t a t e ' s
proof that he committed the offense and that he had the
r e q u i s i t e s t a t e o f mind a t t h a t t i m e .
Whenever t h e j u r y f i n d s t h a t t h e S t a t e has failed. t o
prove beyond a r e a s o n a b l e d o u b t t h a t t h e d e f e n d a n t had t h e
r e q u i s i t e s t a t e of mind a t t h e t i m e he committed t h e o f f e n s e ,
i t i s i n s t r u c t e d t o r e t u r n a s p e c i a l v e r d i c t of n o t g u i l t y
" f o r t h e r e a s o n t h a t . due t o a m e n t a l d i s e a s e o r d e f e c t h e
c o u l d n o t have a p a r t i c u l a r s t a t e o f mind t h a t i s a n e s s e n -
tial element of the offense charged. . . ." Section
46-14-201 ( 2 ) , MCA.
F i n a l l y a t t h e d i s p o s i t i o n a l s t a g e following t h e t r i a l
and c o n v i c t i o n , t h e s e n t e n c i n g judge must c o n s i d e r any r e l e -
vant evidence presented at the trial, plus any a d d i t i o n a l
evidence presented a t the sentencing hearing, t o determine
whether t h e d e f e n d a n t was a b l e 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 a c t s o r t o conform h i s c o n d u c t t o t h e Law a t t h e t i m e
he committed the offense for which he was convicted. Section
46-14-311, MCA.
The sentencing judge's consideration of the evidence is
not the same as that of the jury. The jury determines wheth-
er the defendant committed the offense with the requisite
state of mind, e.g., whether he acted purposely or knowingly.
The sentencing judge determines whether, at the time the
defendant committed the offense, he was able to appreciate
its criminality or conform his conduct to the law.
If the court concludes the defendant was not sufferina
from a mental disease or defect that rendered him unable to
appreciate the criminality of his conduct or to conform his
conduct to the requirements of law, normal criminal sentenc-
ing procedures are invoked. Section 46-14-312(1), MCA.
Whenever the sentencing court finds the defendant was
suffering from 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, mandatory
minimum sentences are waived. The defendant is committed to
the custody of the director of institutions and placed in an
appropriate institution for custody, care and treatment not
to exceed the maximum possible sentence. Section
46-14--312(2), MCA. As a practical matter, this means the
defendant may be placed in the Warm Springs State Hospital-
under the alternative sentencing procedures. The institu-
tionalized defendant may later petition the District Court
for release from the hospital upon a showing that the indi-
vidual has been cured of the mental disease or defect. If
the petition is granted, the court must transfer the defen-
dant to the state prison or place the defendant under alter-
native confinement or supervision. The length of this
I f . >
confinement or supervision must equal the original sentence.
Section 46-14-312 (3), MCA.
In summary, while Montana has abolished the traditional
use of insanity as a defense, alternative procedures have
been enacted to deal with insane individuals who commit
criminal acts.
Much has been written concerning criminal responsibili-
ty and jnsanity. Professor Norval Morris commented that
"[rlivers of ink, mountains of printer's lead, forests of
paper have been expended on this issue. . . ." Morris,
Psychiatry - - Dangerous Criminal, 41 S.Ca1.L.R.
and the 514, 516
(1968). Yet there is a paucity of judicial opinions constru-
ing the constitutional parameters of the traditional insanity
defense or the various reform proposals. This case is the
first direct constitutional challenge to Montana's abolition
of the affirmative insanity defense and adoption of alterna-
tive procedures in its place.
Four opinions of this Court have addressed the
post-1979 law on mental disease or defect: State v. Mercer
(PJont. 1981.), 625 P.2d 44, 38 St.Rep. 312; State v. Doney
(Mont. 1981), 636 P.2d 1377, 38 St.Rep. 1707; State v.
Zampich (Mont. 1983), 667 P.2d 955, 40 St.Rep. 1235; and
State v. Watson (Mont. 1984), 686 P.2d 879, 41 St.Rep. 1452.
In Plercer, supra, we affirmed the aggravated assault
conviction of a man found guilty of attacking a school teach-
er. The defendant, Bryan Mercer, suffered episodic mental
illness. While broad questions concerning the mental disease
defense were raised, we did not reach these issues. Mercer
argued that sentencing to prison a man suffering from severe
mental illness violates the constitutional ban against cruel
and unusual punishment. We found no authority holding that
i-mprisonment rather tha.n medical treatment of a person who
claims to be insane, but has not been adjudicated insane,
constitutes cruel and unusual punishment. We held that the
jury verdict convicting the defendant was supported by sub-
sta.ntia1 evidence and that the defendant had failed to show
any statutory or constitutional violation by the sentencing
judge .
Following Mercer, this Court heard the appeal of anoth-
er aggravated assault conviction in Doney, supra. The defen-
dant Doney stabbed the night clerk of a Havre hotel and
relied on expert testimony during trial to show he was inca-
pable of forming the requisite mental sta.te of purposely or
knowingly. On appeal he argued that the State was required
to overcome his "preponderance of evidence" by proving his
sanity beyond a reasonable doubt, as well as the fact that he
had acted purposely and knowingly. We rejected that notion:
.
". . It is sufficient that the State
prove beyond a reasonable doubt the
existence of the mental state that is an
essential element of each of the offenses
charged. Implicit in the jury's convic-
tion is its conclusion that the defendant
possessed the requisite mental state, and
therefore had the capacity to form that
mental state. The State has met the
requirements of Montana law." 636 P.2d
at 1382.
Our holding in Doney clarified prior language in Mercer,
where the majority had noted:
". .
. Therefore, the jury knew that the
State had the burden of proving beyond a
reasonable doubt that the defendant was
sa.ne and capable of acting purposely or
knowingly at the time of the crime." 625
P.2d at 49.
While some jurisdictions, most notably the federal
courts, have given the prosecution the burden of proving the
defendant's sanity beyond a reasonable doubt, such practice
is not the rule in Montana. Prior to 1979, insanity was
trea.ted as an affirms-tive defense that had to be established
by the accused by a preponderance of the evidence. State v.
Caryl (1975), 168 Mont. 414, 425, 543 P.2d 389, 395. As the
above discussion and our holding in Doney states, it is
sufficient that the State prove beyond a reasonable doubt the
requisite mental state, e.g., purposely or knowingly, that is
an element of the offense charged.
The third decision of this Court to address the 1.979
changes in the law on mental disease or defect was Zampich,
supra. The defendant Zampjch was charged with mitigated
deliberate homicide for a tavern shooting in Carter, Montana.
Zampich's psychologist testified that while the defendant may
have been able to act purposely or knowingly, he may not have
been acting voluntarily. We upheld the conviction on the
ground that a jury instruction was given stating that a
voluntary act is a material element of every offense and that
the instructions read as a whole properly gave the jury
notice of the defendant's theory of the case.
Finally in Watson, supra, the defendant argued. that,
because the primary symptoms of his mental disease were his
repeated criminal or antisocial beha-viorand because the jury
was instructed that mental disease does not include an abnor-
mality manifested only by repeated criminal or other antiso-
cial conduct, the jury was misled to presume that he had the
requisite state of mind at the time he committed the offens-
es. See section 46-14-101, MCA.
Watson had entered two Missoula apartments, stabbed a
sleeping woman thirty-five times and also stabbed a man who
came to her rescue. Both victims survived the attacks. The
defend-ant claimed a demon. spirit. possessed h.is body during
the acts. The jury convicted Watson of attempted deliberate
homicide, aggravated assa.ult and burglary. Tn accordance
with our prior decisions, this Court concluded that the jury
was properly informed of the State's burden of establishing
beyond a reasonable doubt that Watson acted purposely or
knowingly. The conviction was affirmed.
The sentencing judge found that Watson was suffering
from a serious mental. disorder, but also found that Watson
was capable of appreciating the criminality of his conduct or
conforming his conduct to the law but chose not to do so.
See section 46-14-311, MCA. The court designated Watson a
dangerous and persistent felony offender and sentenced him to
300 years imprisonment. Watson contended that his punishment
was cruel and unusual in light of the fact that he suffered
from a mental disorder. Relying on our prior decisions in
Nercer and Doney, we upheld Watson's sentence, which was
within the statutory maximum.
Review of our case law reveal-s that the constitutional-
ity of the legislature's abolition of the affirmative defense
of insanity has not previously been decided. Korell ' s
present challenge is based on the Fourteenth Amendment guar-
antee of due process of law and the Eighth Amendment prohibi-
tion against cruel and unusual punishment.
B. Due Process Considera.tions
1. Fundamental Rights.
The due process clause of the Fourteenth Arnend.ment was
intended in part to protect certain fundamental rights long
recognized under the common law. Powell v. Alabama (1932),
287 u.S. 45, 53 S.Ct. 55, 7 7 L.Ed. 158. Appellant contends
that the insanity defense is so embedded in our legal history
that it should be afforded status as a fundamental right. He
argues that the defense was firmly established as a pa.rt of
the common law long before our federal constitution was
adopted and. is essential to our present system of ordered
liberty.
The United States Supreme Court has never held that
there is a constitutional right to plead an insanity defense.
Moreover, the Court has noted that the significance of the
defense is properly left to the states:
"We cannot cast aside the centuries-1-ong
evolution of the collection of inter-
locking and overlapping concepts which
the common law has utilized to assess the
moral accountability of an individual for
his antisocial deeds. The doctrines of
actus - - -
reus, mens real insanity, mistake,
iustification, and duress have histori-
cal-ly provided the tools for a constantly
shifting adjustment of the tension be-
tween the evolving aims of the criminal-
law and changing rel-igious,moral, philo-
sophical, and medical views of the nature
of man. This process of ad.justment has
a.lways been thought to be the province of
the States." Powell v. Texas (19681, 392
U.S. 514, 535-536, 88 S.Ct. 2145, 2156,
20 L.Ed.2d 1254, 1269.
An examination of the common law in a search for funda-
mental rights can be misleading. When looking at concepts of
insanity and criminal responsibility, one discovers a contin-
uum of changing societal values and views. Commentators and
courts have reached differing conclusions on the role of the
insanity defense in the history of jurisprudence.
The English jurist Stephen observed:
". . . in very ancient times proof of
madness appears not to have entitled a
man to be acquitted, at least in case of
murder, but to a special verdict that he
committed the offense when mad. This
gave him a right to a pardon. The same
course was taken when the defence was
killing by misadventure or in
self-defence." 2 Stephen, A History of
the Criminal. - - ~ngland- 151. (83,
Law of 18)
This early thirteenth century practice of pardoning the
insane was acknowledged in our Watson decision and the his-
torical discussion therein. Pardons were liberally granted
and the practice represented a humane departure from earlier
times of absolute liability for criminal acts.
Development of the - - concept preceded recogni-
mens rea
tion of the insanity defense. The Latin phrase - -
mens rea
literally translates as "evil mind." It has also been inter-
preted as guilty mind, evil intent or criminal intent.
--
Enlightened med-ieval jurists developed the mens rea doctrine:
without criminal intent, there can be no moral blameworthi-
ness, crime or punishment. In the words of Henrici Bracton
(d. 1268) : "For a crime is not committed u.nl.essthe will to
harm be present." This principle has played. a central role
in all subsequent considerations of capacity, insanity, and
moral and legal culpability.
For centuries evidence of mental illness was admitted
to show the accused was incapable of forming criminal intent.
Insanity did not come to be generally recognized as an affir-
mative defense and an independent ground for acquittal until
the nineteenth century. M.orris, The Criminal Responsibility
- - Mentally Ill, 33 Syracuse L. R. 477, 500 (1982);
of the
American Medical Association, The Insanity Defense - Crimi-
in
nal Trials - Limitations - Psychiatric Testimony, Report
and of
of the Roard of Trustees, at 27 (1983). The defense grew out
of the earlier notions of - -
mens rea.
We reject appellant's contention that from the earliest
period of the common law, insanity has been recognized as a
defense. What we recognize is that one who la.cks the
requisite criminal state of mind may not be convicted or
punished.
Three older state court decisions have found state
statutes abolishing the insanity defense to be unconstitu-
tional. State v. Lange (1929), 168 La. 958, 123 So. 639;
Sinclair v. State (19311, 161 Miss. 1.42, 132 So. 581; State
v. Strasburg (1910), 60 Wash. 106, 110 P. 1020. These deci-
sions are distinguishable in that they interpret statutes
that precluded any trial testimony of mental condition,
including that which would cast doubt on the defendant's
state of mind at the time he committed the charged offense.
The Montana statutes in question expressly allow evidence of
mental disease or defect to be introduced to rebut proof of
defendant's state of mind. Section 46-14-102, MCA.
The United States Supreme Court refused in 1952 to
accept the argument that the Due Process Clause required the
use of a particular insanity test or allocation of burden of
proof. Leland v. Oregon (19521, 343 U.S. 790, 72 S.Ct. 1002,
96 L.Ed. 1302. The Oregon statute upheld in Leland required
the defendant to prove insanity beyond a reasonable doubt.
This allocation of proof was found constitutionally sound
because the State retzined the burden to prove the requisite
state of mind and other essential criminal elements. The
State's due process burden of proof was further emphasized in
Ln Re Winship (1970), 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d
368. Winship established that the prosecution must prove
beyond a reasonable doubt every element constituting the
crime charged.
The Montana statutory scheme is consistent with the
dictates of Leland and Winship. The 1979 amendments to the
criminal code do not unconstitutionally shift the State's
burden of proof of the necessary elements of the offense.
The State retains its traditional. burden of proving all
elements beyond a reasonable doubt.
2. The Delusional Defendant
J n addition to asserting that the insanity defense is a
fundamental constitutional right, the appellant contends that
insanity is a broader concept than - -
mens rea. Korell argues
that individuals may be clearly insane yet also be capable of
forming the requisite intent to commit a crime. For example,
an accused may form intent to harm under a completely delu-
sional perception of reality or act without volitional con-
trol. It is defendant's position that the due process of
these defe~dants is compromised hy state law which permits
conviction of delusional defendants and those who act without
voJ itional control.
Addressing the delusional defendant first, we note that
planning, deliberation and a studied intent are often found
in cases where the defendant lacks the capacity to understand
the wrongful.ness of his acts. Fink & Larene, - Defense -
In of
the Insanity Defense, 62 Mich. B. J. 1.99 (1983). Illustra-
tions include the assassin acting under instructions of God,
the mother drowning her demonically-possessed child, and the
man charging up Montana Avenue on a shooting spree believing
he is Teddy Roosevelt on San Juan Hill. Defendant contends
that these people could properly be found guilty by a jury
under current Montana law.
As some commentators have noted, the 1979 amendments to
the law on mental disease or defect may actually have lowered
the hurdle mentally disturbed defendants must clear to be
excul-pated.. In order to be acquitted, the defendant need.
only cast a reasonable doubt in the minds of the jurors that
he had the requisite mental state. See, Bender, After Aboli-
- - Present
tion: The State - - Insanity Defense - Montana,
of the in
45 Mont. L. R. 133, 141 (1984). As a practical matter, the
prosecutor who seeks a conviction of a delusional and! psy-
chotic defendant will be faced with a heavy burden of proof.
Assuming the delusional defendant is found guilty by a
iury, factors of mitigation must be considered hy the sen-
tencing judge in accordance with section 46-14-311, MCA. The
fact that the proven criminal state of mind was formed by a
deranged mind would certainly be considered. In addition, a
defendant can be sentenced to imprisonment only after the
sentencing judge specifically finds that the defendant was
not. sufferi.ng, at the time he committed the offense, from a
mental disease that rendered him unable to appreciate the
criminality of his conduct or to conform his conduct to the
requirements of law. Section 46-14-312(1), MCA.
3. The Volitionally-Impaired Defendant
The test of mental disease or defect that was afforded
defendants prior to 197'9 read as foll.ows:
"A person is not responsible for criminal
conduct if at the time of such conduct as
a result of mental disease or defect he
is unable either to appreciate the crimi-
nality of his conduct or to conform his
conduct to the requirements of the law."
Section 46-14-101, MCA (1978) .
It is the second prong of this standard, the volitional
aspect of mental disease or defect, that appellant claims has
been eliminated. He argues that there are those who lack the
ability to conform their conduct to the law and that
elimination of the involuntariness defense is unconstitu-
tional.
The volitional aspect of mental disease or defect has
not been eliminated from our criminal Law. Consideration of
a defendant's ability to conform his conduct to the law has
been moved from the jury to the sentencing judge. The United
States Supreme Court found in Leland, 343 U.S. at 801, that
the "irresistible impulse" test of insanity wa-s not implicit
in the concept of ordered liberty. Additionally, the minimum
requirements of any criminal offense are still a voluntary
act and companion mental state. Section 45-2-202, MCA,
provides tha.t "[a] material element of ever17 offense is a
voluntary act. . . ."
This Court has not judiciall-y recognized the automatism
defense. Applications of the defense may exist where a
defendant acts during convulsions, sleep, unconsciousness,
hypnosis or seizures. See, People v. Grant (1978), 71 111.2d
551, 377 N.E.2d 4. Our criminal code's provisions requiring
a voluntary act and defining involuntary conduct adequately
provide for such defenses. See sections 45-2-202 and 45-2-
101 (31), MCA.
To the extent that the 1979 criminal code revisions
allegedly eliminated the defense of j-nsanity-induced voli-
tional impairment, we find no abrogation of a constitutional
right.
C. Eighth Amendment Considerations
Appellant next contends that abolition of the affirma-
tive defense of insanity violates the Eighth Amendment's
prohibition of cruel and unusual punishment. In Robinson v.
Ca1ifornj.a (1962), 370 U.S. 660, 82 S.Ct. 1417, 8 L8.Ed.2d
758, the Supreme Court held that punishment for the status
crime of drug addiction violated the Eighth Amendment prohi-
bition. The Court declared that any law which created a
criminal offense of being mentally ill would also constjtute
cruel and unusual punishment. The Court noted that had the
California statute under which Robinson was convicted re-
quired proof of the actual use of narcotics, it would have
been valid. In Powell v. Texas, 392 U.S. at 532, a statute
imposing a f i ~ efor public intoxication was found to not
violate the Eighth Amendment. There the Court reasoned that
although alcoholism might be a disease, the statute was valid
because it punished an act, not the status of being an
alcoholic.
The Montana Crinjnal Code does not permit punishment of
a mentally ill person who has not committed a criminal act.
As such, the statutes avoid the constitutional infirmities
discussed in Robinson v. Cal_ifornia, supra, and Powell v.
Texas, supra.
Prior to sentencing, the court is required to consider
the convicted defendant's mental condition at the time the
offense was committed. This review is mandatory whenever a
claim of mental disease or defect is raised. The plain
language of the statute reads: ". . . the sentencing court
shall consider any relevant evidence. . . ." Section
46-14-311, MCA (emphasis added) . Whenever the sentencing
court finds the defendant suffered from a mental disease or
defect, as described in section 46-14-311, MCA, the defendant
must be placed in an ". . . appropriate institution for
custody, care and treatment. . . ." Section 46-1 4-312 (2),
MCA .
These requirements place a heavy burden on the courts
and the department of institutions. They serve to prevent
imposition of cruel and unusual punishment upon the insane.
Since the jury is properly preoccupied with proof of state of
mind, it is imperative that the sentencing court discharge
its responsibility to independently review the defendant's
mental condition.
It is further argued that subjecting the insane to the
stigma of a criminal conviction violates fundamental princi-
ples of justice. We cannot agree. The legislature has made
a conscious decision to hold individuals who act with a
proven criminal state of mind accountable for their acts,
reqardless of motivation or mental condition. Arguably, this
policy does not further criminal justice goals of deterrence
and prevention in cases where an accused suffers from a
mental disease that renders him incapable of appreciating the
criminality of his conduct. However, the policy does further
goals of protection of society and education. One State
Supreme Court Justice who wrestled with this dil-emma ob-
served: "In a very real sense, the confinement of the insane
is the punishment of the innocent; the release of the insane
is the punishment of society." State v. Stacy (Tenn. L980),
601 S.W.2d 696, 704 (Henry, J., dissenting).
Our legislature has acted to assure that the attendant
stigma of a criminal conviction is mitigated by the sentenc-
ing judge's personal consideration of the defendant's mental
condition and provision for commitment to an appropriate
institution for treatment, as an alternative to a sentence of
imprisonment.
For the foregoing reasons we hold that Vontana's aboli-
tion of the insanity defense neither deprives a defendant of
his Fourteenth Amendment right to due process nor violates
the Eighth Amendment proscription against cruel and unusual
punishment. There is no independent constitutional right to
plead insanity.
11. REBUTTAL TESTIMONY
The evening before the final day of trial, the Ravalli
County Attorney's office received word that Cedric Hames
could testify he purchased ammunition for Korell a couple
days before the shooting. Hames was told to report to the
courthouse the next morning where a subp0en.a would await him.
Hames was the owner of a bar that the defendant fre-
quented in the weeks preceding the shooting. The prosecution
briefly interviewed Hames in the morning and decid-ed to put
him on the stand. Since Korell had twice requested Hames to
buy a.mmunition for him in the days before the shooting,
Hames' testimony would tend to rebut defendant's claim that
he did not act purposely or knowingly.
Hames was put on the stand without any prior notice to
the defendant or the court. Our discovery statutes specifi-
cally provide that the defendant and the court must be given
such notice:
"For the purpose of notice only and. to
prevent surprise, the prosecution shall
furnish to the defendant and file with
the clerk of the court no later than. 5
d.ays before trial or at such later time
as the court may for good cause permit a
list of witnesses the prosecution intends
to call as rebuttal witnesses to the
d.efenses of justifiable use of force,
entrapment, compulsion, alibi, or the
defense that the defendant did not have a
particular state of mind tha.t is an
essential element of the offense
charged. 'I Section 46-15-301 (3) , MCA.
Har@.esl testimony was short and to the point. Defense
counsel did not object to the direct examination of the
witness. However, after counsel learned on cross-examination
that the witness had contacted the prosecution the day be-
fore, defense moved for a mistrial.
Outside the presence of the jury, the court heard
arguments of counsel and interviewed the witness. Convinced
that there was no designed surprise by the prosecution, the
court denied the motion for a mistrial. Defense counsel was
offered a continuance to prepare cross-examination. Defense
refused this offer and chose not to examine the witness
further.
Failure of the county attorney to give the court and
defendant notice of the new rebuttal witness constituted
clear error.
This issue concerning the failure of the prosecution to
give notice of a rebuttal witness arose in State v. Madera
(Mont. 1983), 670 P.2d 552, 40 St-Rep. 1558. In Madera a
witness not previously announced was used by the prosecution
on the last day of trial to rebut an alibi witness. This
Court announced that when unanticipated exigencies arise at
trial the court may waive the time limitations for giving
notice when good cause is shown. Additionally, this Court
said that if surprise is claimed by the other party, the
proper procedure is to ask for a continuance so that prepara-
tion may be made.
While Madera established that the time limitations of
section 46-15-301(3), MCA, may be waived, it did not suggest
that notice may also be waived. There was no reason the
deputy county attorney could not have notified the court and
defendant that Hames had come forward the morning he
testified. Had such notice been given, the court could have
ruled whether there was good cause to waive the time
limitations.
The recognized error in this case does not rise to the
level of reversible error. Defense counsel was given an
opportunity to prepare for cross-examination. The continu-
ance offer was refused. Counsel claims prejudicia.1 surprise
on appeal yet did not avail himself of the opportunity to
alleviate such prejudice at trial.
While the prejudicial surprise of this particular
testimony is found harmless error, future prosecutorial
disregard of these discovery notice provisions will not be
condoned.
111. VOLUNTARY INSTRUCTION
The trial court refused an instruction offered by the
defendant that: "A material element of every crime is a
voluntary act." The court did include four instructions that
specifically mentioned. the requirement of vol-untariness:
" [Instruction No. 171 A person commits
the offense of attempt when with purpose
to commit a specific offense he vo1unta.r-
ily does any act toward the commission of
such offense."
"[Instruction No. 2 4 1 . ..
the State
must prove that each el-ement of the
offense was done purposely or knowingly
and vol-untarily. . . ."
"[Instruction No. 381 ...
You may
consider such evidence because the defen-
d.ant asserts that due to mental disease
or defect he could not have had a partic-
ular state of mind which is an element of
the offense, i. e. , that he did not. pur-
posely or knowingly and voluntarily
commit the acts constituting the offense.
... 11
" [Instruction No. 401 . .
. a person, to
be guilty of any of the offenses charged,
must have committed the act or a.cts
voluntarily, while having, with regard to
each element contained in the 1-aw-defin-
in9 the offenses, one of the mental
states contained in said definition
... I1
The refused imstruction is based on section 45-2-202,
MCA, which states: "A materia,-element of every offense is a
voluntary act. . . ." This code provision expresses the
common law principle previously discussed that every crime
must consist of an act and a criminal intent.
One of defendant's theori-es in this case was that he
did not act voluntarily due to his mental condition. Al-
though this Court permit.ted section 45-2-202, MCA, to be used
for such a theory in Zampich, supra., the statute was not
intended to address psychological impairment. The voluntary
act requirement properl-y reflects physiological considera-
tions; those who act by reflex, while sleepwalking, etc.,
should not be held criminally responsible. See, section
45-2-101(31), MCA; Bender, supra, at 144-145; W. LaFave & A.
Scott, Criminal - S 25, at 179-181 (1972).
Law
Defendant's theory of his case was not prejudiced by
the trial court's refusal to give the instruction. Arguably,
the instruction would not have hurt the prosecution as it
correctly states the law of Montana. However, we sense that
defense counsel was offering the instruction for a context to
which it was not designed. The four instructions set forth
above properly instructed the jury on the requirement of a
voluntary act.
IV. SENTENCING
Four doctors testified before the jury concerning
Korell's mental condition. The State produced Dr. Herman
Walters, Ph.D., a clinical psychologist, and Dr. Verne
Cressey, M.D., a psychiatrist. The defendant called Dr.
William Stratford, M.D., a forensic psychiatrist, and Dr.
Michael Marks, Ph.D., a cl-inical psychologist. Additionally,
a psychiatrist, Dr. Noel Howell, M.D., was retained by the
defense and filed an eva.1-uationwith the court although he
did not testify.
These expert witnesses were allowed to express their
opinions concerning Korell's medical diagnosis, whether he
suffered from mental disease or defect at the time of the
shooti-ng, his capacity to form the requisite intent and his
ability to control his behavior. Additionally, Dr. Stratford
was called to testify at the sentencing hearing on his recom-
mendations for treatment of Korell. All the doctors filed
written eva-Luationswith the court-.
Immediately after announcing sentence, the trial judge
stated:
"I'm going to address myself in regard tc
your mental condition. Let me say that
the jury heard the evidence by all of the
various doctors in regard to your mental
condition. The jury reached their con-
clusion after some twenty-four to twen-
ty-six hours, and in that conclusion they
found that you were responsible and that
you did have the mental state required by
the statute. For me to indulge otherwise
would a.mount to nothing but nullification
of the jury's effort, and I will not do
so. "
This pronouncement flies in the face of the court's
basic duty to independently evaluate the defendant's mental
condition. The trial judge's refusal to act compels this
Court to vacate the defend-ant" sentence and remand for
resentencing.
As Part I of this opinion established, whenever mental
disease or defect is put in issue, the trial jud.ge must
review the defendant's mental condition prior to sentencing.
Deferring to a jury verdict indicates a misunderstanding of
the distinct roles of the jury and court.
The jury has a narrow duty under the statutes: to
consider mental disease or defect insofar as it relates to
criminal state of mind. The fact that a jury has found the
existence of a requisite mental state does not conclusively
establish the defendant's sanity or fitness for penal punish-
ment. That determination must be independently made by the
sentencing judge and the record must reflect the deliberative
process.
If problems of cruel and unusual punishment of the
insane are to be avoided, the sentencing judge must faithful-
ly discharge the review duties of sections 46-14-311 and
46-14-312, MCA. The sentence is vacated.
V. ATTORNEY FEES
As a final matter, defense counsel appeals the order
affixing his attorney fees. The court determined that rea-
sonable fees for Korell's defense were $12,000 and awarded
the appointed attorney this amou~t. Counsel contends that
the amount is unfair in light of the defense presented.
This Court has adopted guidelines to be followed when
awarding a court-appointed attorney compensation. Those
guidelines are set forth in State v. Boyken (J.981), 196 Mont.
122, 637 P.2d 1193, and the District Court order at issue.
That order reflects that the District Court properly consid-
ered the Boyken factors of time expended, nature of the
defense, fees paid for similar services elsewhere, public
funds available, the responsibility of the legal profession,
and n e e d s of t h e a c c u s e d . Ha.ving so r e a c h e d i t s d e c i s i o n , w e
w i l l n o t d i s t u r b t h e t r i a l c o u r t ' s award of f e e s .
W e remand t h i s c a u s e t o t h e D i s t r i c t . C o u r t f o r r e s e n -
tencing c o n s i s t e n t with t h i s opinion.
1
Chief ~ u s t - i c e
W e concur:
Mr. Justice Frank B. Morrison, Jr., concurs in part and
dissents in part.
1 concur with the result reached by majority on all
issues except the admission of certain testimony. This
dissent specifically relates to the admission of rebuttal
testimony received from one Cedric Hames. The majority
opinion finds that the failure to notice this witness and the
subsequent admission of the witness's testimony, constituted
error but was harmless. The basis of the majority's determi-
nation that reception of the evidence constituted harmless
error was that defense counsel was given an opportunity,
through being afforded a continuance, for cross-examination
of the witness. Such opportunity did not cure the error.
The thrust of Hames' testimony was to counter defen-
dant's evidence with respect to ''state of mind." This was
the pivotal issue in the case.
The unquestionable prejudice to defendant in not knowing
of Hames' testimony, was that defendant was denied opportu-
nity to counter the testimony with psychiatric testimony
offered on behalf of defendant. To effectively answer the
State's position that the defendant planned this act defen-
dant must be allowed the opportunity to explain the meaning
of the actions portrayed by Hames. Defendant's psychiatrist
was denied this opportunity because the reality of the proof
was unknown. Defendant was further denied the right to deal
with this damaging evidence either in voir dire or at any
other stage of the trial. I cannot conceive of a majority of
this Court holding that cross-examination of an unnoticed
witness satisfies the legal requirement that defendant be
entitled to know the State's case and be given the opportu-
nity to prepare a defense.
Sometimes I feel we may as well abolish the defendant's
procedural safeguards for we routinely hold that the State's
failure to comply constitutes ha.rmless error. At least we
would all be saved the expense
Justice John C. Sheehy, dissenting:
It js a matter of coincidence that I dictate this
dissent on Sunday, November 11, 1984. This used to be called
Armistice Day, and the television news is full of reports of
a reunion of Viet Narn war veterans in Washington, D.C.
Coincident with their reunion is the dedication of a memorial
statuary to Viet Narn war veterans, the seven-foot tall
representation of three Viet Narn war servicemen who seem to
be peering intently at an earlier Viet Narn war memorial. on
which is inscribed the names of more than 58,000 servicemen
who lost their lives in that war.
It was a war in which nothing was won and much was
lost. A part of that loss, not recognized or admitted by the
authorities at first, was the damaging effect to the
cognitive abilities of some that served in the war. Only
recently has there been positive acceptance that there does
exist in some ex-servicemen a post-Viet Narn war traumatic
syndrome.
Jerry Korell-, the evidence is clear, is a victim of
that syndrome. Before his term of service, he was a mentally
functional citizen. After his return from service, he is
mentally dysfunctional. We can measure our maturity about
how we meet such problems by the fact that Jerry Korell now
will inevitably spend a great part of his life in jail for
his actions arising out of that dysfunction.
Jerry Korell's dysfunction can be traced almost
directly to the Viet Narn war. There are thousands of others
whose mental aberrations have no such djstinct origins. From
genes, from force of environment, from physical trauma, or
from countless other causes, their actions do not meet the
norm. You know them wel-1--the strange, the different, the
weird ones.
Sometimes (not really often it should be said) these
mentally aberrent persons commit a crimi.n.21act. If the
criminal act is the product of mental aberra.tion, and not of
a straight-thinking cognitive direction, it would seem
plausible that society should offer treatment, but if not
treatment, at least not punishment. The State of Montana is
not such a society.
T would hold that Montana's treatment of the insanity
defense is unconstitutional for at least two reasons: One,
it deprives the insane defendant of due process by depriving
him of a trial by jury for each element of the crime for
which he is charged; and two, it invades the insane
defendant's right against self-incrimination.
In this dissent I use the terms "insanity" and "insane"
in their universal sense. They include the broad spectrum of
mental aberration from the maniacal to those deprived of
their reasoning processes by such vague forces as prolonged
melancholia, depression, paranoia and the like. I use the
terms in the sense of those persons who meet the America.n Law
Lnstitute formulation of insanity for criminal pu-rposes:
"A person is not responsible for criminal
conduct if at the time of such conduct as
a result of mental disease or defect he
lacks substantial capacity to appreciate
the criminality of his conduct or to
conform his conduct to the requirements
of the law. I ' Model Penal Code, section
4 . 0 1 ) , proposed official draft (1962).
Before 1979, it was clear in Montana that persons
suffering from a mental disease or defect were not
responsible for their criminal conduct. Former section
95-501, R.C.M. 1947, provided:
"(1) A person is nct responsible for
criminal conduct if at the time of such
conduct as a result of mental disease or
defect he is unable either to appreciate
the criminality of his conduct or to
conform his conduct with the requirements
of law. "
" (2) As used in this chapter, the term
'menta.1 disease of defect' does not
include an abnormality manifested only by
repeated criminal or other antisocial
conduct."
The provisions of former section 95-501, F..C.M. 1947,
reflected the American Law Jnstitute position with respect to
the insanity defense. The language four16 j n subsection (2)
.
of section 95-501, R.C.M. 1947, was a caveat formed by the
A L I to restrict the definition of mental disease or defect.
In 1979, the legislature acted to repeal and eliminate
what was subdivision (1) of section 95-501, R.C.M. 1947.
What remains are only the provisions of present section
46-14-101, MCA, which defines mental disease or defect in the
same manner as subdivision (2) of former section 95-501,
supra.
Thus, the 1.979 legislature removed any statutory direc-
tion that a person is not responsible for criminal conduct if
at the time of the conduct, as a result of mental disease or
defect, he was unable to appreciate the criminality of his
conduct or to conform his conduct to the requirements of law.
The 1979 leqislature went further. While one may not
use the defense of mental disease or defect unless within ten
days of entering plea one files a written notice of a purpose
to rely on such mental disease or defect to prove that one
did not have a particular state of mind which is the
essential element of the offense charged (section 46-14-201,
MCA) , once one has filed such a notice, the court thereupon
appoints a psychiatrist or requests the superintendent of the
Montana State Eospital to designate a qualified psychiatrist
to examine and report upon the mental condition of the defen-
dant. Section 46-14-202, MCA.
Under section 46-14-202(3), in the exa.mination of the
defendant any method may be employed which is accepted by the
medical profession for the examination of those alleged to be
suffering from mental disease or defect. Under section
46-14-212, the psychiatrist is to be permitted to have
reasonable access to the defendant for the purpose of the
examination. Chemical injection, if accepted by the medical
profession, is one of the methods that may be used in such an
examination. There can be no question that, regard-less of
the method of the examination, the insane defendant's right
agai-nst self-incrimination is at once imperiled.
I would not, however, on the grounds of self-incrimina-
tion alone, hold the process unconsti.tutiona1. I recognize
the necessity, in cases where insanity is pleaded as a de-
fense, that the State have equal right to psychiatric
testimony to the same extent that is enjoyed by the
defendant. What is more serious constitutional.ly, however,
is what our statutes provide with respect to the testimony at
trial from the examining psychiatrist.
Section 46-14-213, MCA, provides that when the psychia-
trist who has examined the defendant testifies, his testimony
may include his opinion "a.s to the ability of the defendant
- - have a particular state - - which is an element of the
to - of mind
offense charged." The statute takes away from the psychia-
trist, and from the jury, the previous test of whether the
defendant lacked the capacity to a.ppreciate the criminality
of his conduct or his ability t.o conform his conduct to the
requi-rements of the law. The statute instead places in the
power of the psychiatrist, and takes from the jury, the
determination of whether the defendant - - particular
had the
state - -
of mind which is an element of the offense ch.arged.
Thus is the defendant deprived of his right of trial by jury
as to every element of the crime charged against him. See,
In Re Winship (1970), 397 U.S. 358, 90 S.Ct. 1068, 25 ~.Ed.2d
The elements of the crime of deliberate homicide in
Montana are a voluntary act (section 45-2-202, MCA) , coupled
with either purpose or knowledge (section 45-5-102, MCA).
Thus the jury must be instructed, even where the insanity is
an issue, that if the defendant acted purposely, or with
knowledge, he is guilty of the offense. The jury is then
instructed that a person acts knowingly if, with respect to
the conduct, he is aware of his conduct. Section
45-2-101 (33), MCA.
The jury is also instructed that the defendant acts
purposely if it is his conscious object to engage in that
conduct or to cause that result. Section 45-2-101(58), MCA.
No consideration is given by the jury as to whether the
defendant lacks substantial capacity to appreciate the crimi-
nality of his conduct, or whether he is unable to conform his
conduct to the requirements of the law. If the psychiatrist
has testified that the defendant had the state of mind re-
quired as an element of the crime, that is, in the case of
deliberate homicide, purpose or knowledge, the defendant is
criminally guil-ty. The jury never gets to determine if the
defendant acted by force of mental aberration.
In a case under present Montana law, therefore, when
the defendant relies on insanity to explain the crime of
deliberate homicide, the jury is led to the inevitable
conclusion by managed testimony that he is indeed guilty of
the crime.
Plontana's statutory scheme seeks to ameliorate the
managed conviction of the insane defendant by providing that
at his sentencing, he having been convicted of a criminal
act, the sentencing judge may take into consideration his
insanity! At the sentencing, the judge, and not the jury,
shall for the first time consider whether the defendant was
suffering 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. Section
46-14-311, -312, MCA.
For the reasons foregoing, I would hold the statutory
scheme pertaining to insane defendants in Montana unconstitu-
tional. I do not hold with the majority that there is no
independent constitutional right to plead insanity. I
consider that position the ul-timate insanity. I would hold
that he has an independent constitutional right to trial by
jury of the fact of his ability to commit a crime by mental
aberration.
For like reasons, I do not agree with the majority with
respect to the rebuttal testimony offered by Cedric Hames. T
would hold that reversible error occurred in that instance.
Principally I would so hold because the state learned that
Korell had twice requested Hames to buy ammunition for him in
the days before the shooting from his examination by the
psychiatrists. The State used his psychiatric examination to
help convict him.
I also emphatically disagree with the majority with
respect to the necessity of the voluntary instruction.
Section 45-2-202, MCA, states that "a material element
of every offense is a vol-untary act ... " The majority
opinion seems to limit this statutory provision by determin-
ing that the statute reflects only physiclogical
considerations, stating that those who act by reflex, or
while sleepwalking, should not he held criminally
responsible. That is too narrow an interpretation of
"voluntary." The word has its root in the Latin word for
will, and any interpretation of it should include acts done
through one's will, choice or consent. A jury should be
specifically instructed that a criminal act requires one's
will, choice or consent.
Unfortunately, our criminal code does not define a
"voluntary act." It does define an "involuntary act" to
include reflexes or convulsions, unconscious sleep movements,
hypnosis and such. Section 45-2-101 ( 3 1 ) , MCA. The majority
has changed the definition of an involuntary act t o limit the
.
scope of a voluntary act which, to me, is not the intent of
the criminal code and is improperly restrictive.
I would reverse and remand for a new trial, and direct
the District Court to instruct the jury on the ALI
formulations respecting insanity as applied to criminal acts.
I suggest a retrial on the basis of the ALI
formulations not because I consider those formul.ations the
last word on the subject, but because we do have remaining in
our statutes some recognition of the ALI formulations with
respect to the insanity defense. Under present law the
District Court must look to the ALI formulations to determine
the extent of the sentence to be imposed, section 46-14-311,
MCA . The real problem facing this Court is that the
abolition by the legislature in 1 9 7 9 of mental disease or
defect as an e:rculpatory defense leaves a cavity in our
criminal law that is the obligation of the legislature to
fill. Unless we now recognize the ALI formulations on the
basis that there is 1egisLative recognition of their validity
in the sentencing process, we have no legislative direction
in the statutes for the insanity defense.
It is curious that Montana abolished the insanity
defense in 1979, before the onset of the Hinckley trial.
Hinck?.eyls attack on President Reagan, and the subsequent
acquittal of Hinckley in June 1982, prompted a rash of
enactments and proposal s for enactments with respect to the
insanity defense. The Standing Committee on P.ssociation
Standards for Criminal Justice of the American Bar
Association at the time of the Hinckley verdict had been
considering mental health law and criminal justice issues for
close to a year and a half. The Hinckley verdict triggered
the Committee's consideration of key issues in order to
advise Congress, state legislatures and the public in the
aftermath of the concern arising from the Hinckley verdict.
At least part of the credit must be given to that Standing
Committee for the fact that Congress has refused so far to
abolish the insanity defense.
The Standing Committee on Association Standards has
since promulgated its proposed criminal justice mental health
standards for consideration by the Bar and by legislatures.
T t proposes that the insanity defense be considered as "the
defense of mental nonresponsibility," and further proposes
that such a condition be exculpatory to a criminal charge.
The Committee examined enactments such as Montana's and in
comment had this to say:
"This approach, which would permit evi-
dence of mental condition on the
requisite mental element of the crime but
eliminate mental nonresponsibility as an
independent, exculpatory doctrine, has
been proposed in several hills in Con-
qress, and adopted in Montana, Idaho and
Utah. The ABA has rejected it out of
hand. Such a jarring reversal of hun-
dreds of years of moral and legal history
would constitute an unfortunate and
unwarranted overreaction to the Kinckley
verd-ict .
"Yet the issue of criminal blameworthi-
ness should require a deeper inquiry.
1mplicj.t in this concept is a certain
quality of knowledge and intent, going
beyond a minimal awareness and purpose-
fulness. Otherwise, for example, a
defendant who knowingly and intentionally
kills his son under the psychotic delu-
sion that he is the biblical Abraham and
his son, the biblical Isaac, could be
held criminally responsible. The Mon-
tana, Idaho and Utah enactments, on their
face, would deny a defense to such a
defendant." American Bar Association,
Standing Committee on Association
Standards for Criminal Justice, Report to
the House of Delegates, August, 1984,
Standard 7-6.1, Commentary P. 327.
Thus has Montana's abol-ition of the insanity defense in
1979 been held up for criticism and disrespect by national
authorities and scholars. It behooves our legislature, which
will be meeting in a few months, to reexamine its mental
health laws as they pertain to criminal. justice and to reva.mp
the same. It could do nothing finer than to adopt the
standard of exculpatory definition proposed by the Standing
Committee on Association Standards of the American Bar
Association which follows:
"Standard 7-6.1. The defense of mental
nonresponsiblity [insanity] .
"(a) A person is not responsible for
criminal conduct if, at the time of such
conduct, and as a result of mental dis-
ease or defect, that person was unable to
appreciate the wrongfulness of such
conduct.
" (b) When used as a legal term in this
standard 'mental disease or defect'
refers to:
" (i) impairments of mind, whether endur-
ing or transitory; or, (ii) mental retar-
dation either of which substantially
affected the mental or emotional process-
es of the defendant at the time of t-he
alleged offense. "
There are accompanying standards proposed by the Stand-
ing Committee which the legislature should also adopt, which
would soften the aspects of self-incrimination which I have
described above, and especially a proposed. standard which
would prevent the experts from invading the province of the
jury. Particularly applicable, in my opinion, would be
Standard 7-6.6:
"Standard 7-6.6. Limitation on opinion
testimony concerning mental condition.
"Expert opinion testimony a.s to how the
development, adaptation and functioning
of the defendant1 ment.al processes may
s
have influenced d.efendantl conduct at
s
the time of the offense charged should be
admissible. Opinion testimony, whether
expert or lay, as to whether or not the
defendant was criminally responsible at
the time of the offense charged should
not be admissible. "
It is clear that the Stand.ing Committee, by proposing
Standard 7-6.6, recognized the impropriety of handing to
medical or other persons the ultimate question to be deter-
mined by the jury, whether the defendant is entitled to be
exculpated because of his mental processes at the time of the
crime charged. The Report of the Standing Committee points
out that the issue is jurisprudential, and not medical, and
for that reason we should provide an exception to section 704
of the Montana Rules of Evidence, which allows opinion
testimony on the ultimate question in the ordinary case.
In the meantime, I would reverse the conviction of
Jerry Korell., and return this cause for a trial on his
insanity defense.
Justice Daniel J. Shea, dissenting:
I join in the dissent of Justice Sheehy and I also
will be filing my own dissent setting forth in more detail
my own reasons.