State v. Byers

No. 91-406
IN THE SUPREME COURT OF THE STATE OF MONTANA

THE STATE OF MONTANA,
plaintiff and Respondent,
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v.
BRETT DONALD BYERS,
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6 1993
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Defendant and Appellant.

APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Frank M Davis, and The Honorable
.
Thomas Olson, Judges presiding.

COUNSEL OF RECORD:
For Appellant:
Blewett (argued),
Alexander trZandertr
Hoyt & Blewett, Great Falls, Montana;
Wendy Holton, Helena, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Barbara
Harris, Assistant Attorney General (argued),
Helena, Montana; Mike Salvagni, Gallatin
County Attorney, Bozeman, Montana

Submitted: February 11, 1993
Decided: October 6, 1993
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.

This is an appeal from the final judgment of the District
Court of the Eighteenth Judicial District, Gallatin County, entered
May 1991. Brett Byers was tried and convicted by a Butte-Silver
Bow jury of two counts of deliberate homicide. We affirm the
District Court on all issues.
We consider the following issues on appeal:

1. Does Montana's mental disease or defect statute
unconstitutionally shift the burden of proof on the issue
of mental state from the prosecution to the defense?
2. Does Title 46, Chapter 14 of the MCA violate the
Fifth and Fourteenth Amendment right to due process of
law and the Sixth Amendment right to a trial by jury?
3. Did the District Court err when it allowed the
State's psychiatrist, William Stratford, to testify in
spite of the fact that the State violated the discovery
statutes and the trial judge's omnibus order, when it
failed to disclose Dr. stratford's diagnosis to the
defense until he was in the midst of his testimony?
4. Did the District Court abuse its discretion in
refusing to grant a mistrial when the State's
psychologist, John Van Hassel, testified, in response to
questioning by the County Attorney, to statements made
during the course of his examination of Brett Byers?
5. Did the District Court abuse its discretion when
it allowed the State to present evidence that the length
of the shotgun possessed by Brett Byers was in violation
of federal regulations?
6. Did the District Court err when it denied Brett
Byers1 motion to dismiss the charges of deliberate
homicide in favor of those of mitigated deliberate
homicide?
7. Did the District Court err by instructing the
jury that it could convict Brett Byers if it merely found
that Byers was aware of his conduct or if he had the
conscious object to engage in conduct of a particular
nature?
8. Did the District Court err by instructing the
jury that voluntary intoxication is not a defense to
criminal activity?
9. Did the District Court err by refusing to
include voluntariness in instructions 17 and 181
10. Did the District Court make an improper comment
 on the evidence when it instructed the jury that
consiousness of guilt could be inferred from flight?
11. Did the District Court err when it imposed a
separate, consecutive sentence for weapon use even though
the offense of weapon use was not charged?
12. Did the District Court err when it imposed a
fifteen year sentence for weapon use when the statute
provides for a maximum sentence of ten years?
13. Should Byers1 conviction be reversed?

In the early morning of May 15, 1990, two Montana State
University students, Brian Boeder and James Clevenger, were shot in
a dormitory room on campus. Each student was shot twice and died
before 4 a.m. that morning. Brett Byers, another Montana State
University student, was subsequently arrested and charged with two
counts of deliberate homicide for their deaths.
At arraignment, Byers gave notice he would introduce evidence
of mental disease or defect at trial. The County Attorney
requested Byers be sent to Warm Springs State Hospital for a
psychiatric evaluation, which was done. Subsequently, Byers was
also evaluated for the State by Dr. William Stratford, a
psychiatrist. Byers himself obtained a lengthy evaluation by Dr.
D. J. Plazak, a forensic psychiatrist.
The jury trial was moved from Gallatin County to Butte-Silver
Bow and began January 2, 1991. The trial lasted nine days. At
trial, Byers introduced evidence that he suffered from Borderline
Personality Disorder and was in a derealized state at the time of
the homicides and, therefore, could not have acted knowingly,
purposely or voluntarily. Byers also presented evidence that he
was under extreme emotional and mental stress at the time of the
shootings. The State presented evidence that Byers acted knowingly
and purposely when he shot Boeder and Clevenger.
After receiving instructions, the jury found Byers guilty of
both counts of deliberate homicide. A sentencing hearing was held
and on May 17, 1991, Byers was sentenced to two seventy-five year
terms of incarceration for deliberate homicide and fifteen years
for the use of a weapon--all terms to run consecutively. Byers was
designated a dangerous offender. This appeal followed and oral
argument was granted.

Does Montana's mental disease or defect statute unconstitutionally
shift the burden of proof on the issue of mental state from the
prosecution to the defense?
The statute at issue provides:
Evidence that the defendant suffered from a mental
disease or defect is admissible to prove that the
defendant did or did not have a state of mind that is an
element of the offense.
Section 46-14-102, MCA.
Byers contends that his defense of mental disease or defect is
inextricably intertwined with proof of llknowinglyw llpurposelyl'
or
which are elements of the crime. Byers contends that when such a
defense negates an element of a crime, it becomes necessary for the
prosecution to disprove the defendant's contentions with regards to
that defense. According to Byers, it is unconstitutional to
require a defendant to prove that he did not have the requisite
mental state because of his mental disease or defect. Such a
requirement, argues Byers, shifts the burden of proof from the
State to the defendant.
The State argues that the burden of proof is not shifted to
4
the defense. The State contends that the Montana statute provides
specifically that evidence relevant to the issue of mental disease
or defect is admissible. The State argues that it must still prove
the elements of the crimes beyond a reasonable doubt. Further, the
State argues that Montana's statute does not provide an affirmative
defense of mental disease or defect as Byers contends.
Byers1 assumption that this statute shifts the burden to him
to disprove an element of the crime is not correct. The statute
enables a defendant to present evidence concerning his claim of
mental disease or defect. It does not require the defendant to
prove beyond a reasonable doubt that his disease absolutely negates
the required state of mind.
To require such proof would be to determine that the
presentation of evidence permitted to defendant by S 46-14-102,
MCA, rises to the level of an affirmative defense. Evidence of
mental disease or defect is not an affirmative defense. It is
evidence of a condition that could have prevented the defendant
from having the requisite state of mind. Whether defendant
actually has a mental disease or defect and if so, whether that
disease precludes the required mental state are questions of fact
for the jury. We stated in State v. Watson (1984), 211 Mont. 401,

Read together, the jury instructions properly informed
the jury on the law of mental disease or defect and the
burden on the part of the State to establish the
necessary criminal intent beyond a reasonable doubt.
Whether his mental disease affected the defendant's
ability to act with purpose and knowledge was a question
of fact for the jury. The jury answered that question by
returning guilty verdicts on each count.
Watson, 211 Mont. at 415, 687 P.2d at 886.
It is unconstitutional for the State to be relieved of the
burden of proof of an element of a criminal offense. In re Winship
(1970), 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368. The jury was
properly instructed that the State had the burden to prove that
Byers acted knowingly and purposely beyond a reasonable doubt.
Byers relies on Walker v. Endell (9th Cir. 1987), 850 F.2d
470, for his argument that if a defense negates an element of the
crime, rather than mitigates culpability once guilt is proven, it
is unconstitutional to put the burden of proof on the defendant.
While that is true, Walker distinguishes defenses which necessarily
negate an element of the crime and those that can, but do not
necessarily do so. Walker, 850 F.2d at 472, 473.
In Walker, one of three co-defendants in a double homicide
claimed that once their original burglary plan had gone awry, he
was afraid of his comrades because of their violent propensities.
He argued that he was under duress to go along with the murders for
fear that the other two would shoot him. According to Walker he
could not have had the requisite intent to commit the murders
because of this duress.
On appeal, the court upheld Walker's 89 year conviction for
kidnapping, robbery, burglary, and theft, committed attendant to
the homicides. The appeals court stated that duress did not negate
intent. Walker, 850 F.2d at 473. Duress and intent are not
mutually exclusive terms. Similarly, the existence of a mental
disease or defect in a person does not necessarily preclude such a
person from acting knowingly or purposely. State v. Korell (1984),
213 Mont. 316, 690 P.2d 992. It is up to the jury to determine the
interaction of any mental disease or defect Byers may have and the
required states of mind to commit the act in question.
Byers' reasoning is also faulty in his argument that the
burden "shiftss* him by permitting him to introduce evidence that
to
he did not act knowingly or purposely. When a burden "shifts" it
goes from one party to another, from prosecution to defendant. But
the prosecution here was not relieved of its burden. The jury was
not instructed that Byers had any kind of burden at all. Byers
chose to introduce evidence that he had a mental disease or defect
and such condition prevented him from acting knowingly or
purposely. By making this choice, Byers submitted testimony by a
leading forensic psychiatrist that the homicides could not have
been deliberate. But the trier of fact must weigh the witnesses'
testimony knowing that the State must establish the necessary
mental state beyond a reasonable doubt.
We conclude that the Montana statute is constitutional because
the State is not relieved of its burden to prove all elements of
the crime. We, therefore, hold that Montana's mental disease and
defect statute does not unconstitutionally shift the burden of
proof on the issue of mental state from the prosecution to the
defense.

Does Title 46, Chapter 14 of the MCA violate the Fifth and
Fourteenth Amendment right to due process of law and the Sixth
Amendment right to a trial by jury?
 A. Due Process under the ~ i f t hand Fourteenth Amendments
Byers argues t h a t the question of whether he has a mental
disease or defect impacts more than the issue of whether he had the
requisite mental state. According to Byers, the question is also
whether he had the moral culpability for the particular offense.
Byers argues that because the court refused to instruct the jury on
the traditional insanity defense, his Fifth and Fourteenth
Amendment rights to due process were violated. Byersl contention
is that failure to so instruct contravenes a fundamental legal
principle that criminal sanctions will only be imposed on persons
who act with wrongful intent in the commission of an offense.
The State argues that the current statutory scheme does not
divest Byers of his right to due process under constitutional law.
According to the State, this Court has already addressed the
constitutional arguments put forth by Byers and determined that the
current law is constitutional.
Montana requires the State to prove beyond a reasonable doubt
that the defendant had the requisite state of mind. However, prior
to the 1979 changes to the Criminal Code of this State, insanity
was treated as an affirmative defense that the defendant had to
establish by a preponderance of the evidence. State v. Korell
(1984), 213 Mant. 316, 690 P.2d 992. In contrast, today a
defendant may submit evidence of mental disease or defect without
a requirement that he establish the same by any particular
evidentiary standard.
As described in Korell, the defendant's alleged mental disease
or defect is now evaluated at three different stages of the legal
proceedings. Before trial, the defendant's state of mind is
considered by analyzing whether he is able to understand the
proceedings and to assist counsel in his own defense. Section 46-
14-103, MCA. During trial, the defendant may present evidence that
he suffers from a mental disease or defect and did not have the
requisite mental state. Section 46-14-102, MCA. During
sentencing, the sentencing judge may consider whether at the time
of the commission of the offense the defendant was suffering from
a mental disease or defect that rendered him unable to appreciate
the criminality of his behavior or to conform his behavior to the
requirements of the law. Section 46-14-311, MCA. The sentencing
judge must then determine whether the mental disease or defect is
such that defendant should be confined to a specialized
institution. This third consideration is progressive in that it
not only provides a defendant with a third consideration of his
condition, but does so in a way that both he and the public are
protected.
The due process clause of the Fourteenth Amendment was
intended in part to protect certain fundamental rights long
recognized under the common law. Korell, 213 Mont. at 327, 690
P.2d at 998. Byers argues that the insanity defense is firmly
rooted in the common law and pleading the defense is a fundamental
right protected under our national constitution. We have carefully
considered this argument before and have stated that no
constitutional right to plead insanity exists in the law. Korell,
213 Mont. at 334, 690 P.Zd at 1002. We also note that the united
States Supreme Court has determined that the Due Process Clause
does not require the use of any particular insanity test. Leland
v. Oregon (19521, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302.

While the Montana statutory scheme eliminates insanity as an
affirmative defense, it provides a criminal defendant the
opportunity to present evidence that he has a mental disease or
defect and places no particular burden on defendant in presenting
his evidence. Because it is up to the jury to consider and weigh
the evidence presented to it, the defendant need only cast a
reasonable doubt in the minds of the jurors that he had the
requisite mental state. Korell, 213 Mont. at 331, 690 P.2d 1000.
The creation of such a doubt is far different than having to
shoulder the burden of proof. Under the Montana scheme, the
burden of proof never leaves the State.
In accordance with our holding in Korell, we conclude the
statutory scheme involving evidence of mental disease or defect is
constitutional. We hold that Title 46, Chapter 14 of the MCA, does
not violate the Fifth and Fourteenth Amendment rights of the
defendant.
B. The Sixth Amendment Right to T r i a l by Jury.
Byers argues that under t h e present statutory scheme, w h e n a

defendant enters a plea of not guilty by reason of insanity, he is
deprived of his right to a trial by a jury. Byers argues that the
present state of the law allows the mental disease or defect issue
to be decided solely by the court. In making this argument, Byers
refers to the third step in the statutory procedure which directs
the court to consider the mental disease or defect issue in the
rendering of judgment. While the judge does consider mental
disease or defect in sentencing, the State argues that Montana law
further permits the defendant to provide evidence of mental disease
or defect to the jury. As previously referred to, Korell discusses
the three step approach to the presentation of evidence of mental
disease or defect under the Montana statutes.
Byersl argument that the third step of the presentation of
evidence pursuant to 5 46-14-312, MCA, concerning mental disease or
defect does away with his right to jury trial is clearly incorrect
where he has already received such a trial. The effect of
consideration of mental disease or defect by the judge under the
statute does not nullify the jury verdict. That third step is a
further precaution for the protection of both criminal defendants
and society. s his allows the court to consider defendant's mental
disease or defect as it relates to appropriate
institutionalization.
We hold that 5 46-14-312, MCA, does not violate Byers1 Sixth
Amendment right to a jury trial.
111.

Did the District Court abuse its discretion by allowing Dr.
Stratford to testify after it was established that the State had
failed to disclose his diagnosis pretrial?
Under 5 46-14-205, MCA, the District Court ordered Dr.
Stratford to conduct an examination of Byers to determine whether
he had, at the time the offenses were committed, a particular state
of mind which is an essential element of the offense of deliberate
homicide. Dr. Stratford complied with this order and the State
presented his reports to Byers and to the court. The reports
stated that Dr. Stratford determined that Byers did not have a
mental disease or defect and had acted knowingly and purposely
during the commission of the offenses.
Byers contends that Dr. Stratford's report as furnished to him
did not contain any diagnosis. Byers next contends that the State
violated discovery because it did not provide him with his
diagnosis before trial but tried to introduce it for the first time
at the time of trial. The court did permit Dr. stratford to
testify but did not allow him to testify as to his diagnosis.
Byers contends he was effectively prevented from cross examining
Dr. Stratford for fear of inadvertently bringing up the diagnosis,
and also because cross examination prohibited his right to address
the discovery violation.
The State argues that Dr. Stratford was asked to determine
whether Byers had the requisite mental state of knowingly or
purposely at the time the offenses were committed. The State
further points out that it provided Byers with all Dr. Stratford's
physical examinations, scientific tests, experiments or
comparisons, including all written reports or statements made by
Dr. Stratford in the evaluation. This included Dr. Stratford's
notes from his interview with Byers. The State argues that Byers
could have contacted Dr. Stratford directly at any time regarding
his diagnosis.
 The State admitted that Dr. Stratford had not furnished a
diagnosis of Byers until several days before trial and the State
did not at that time provide Byers a copy of the diagnosis. The
court ruled that the State had violated discovery with regard to
the diagnosis, and that the State could not question Dr. Stratford
as to the diagnosis. The court did warn Byers that if cross
examination opened up the diagnosis issue, then that would be
Byers1 problem. The District Court was correct in concluding the
State breached its duty to disclose Dr. Stratford's diagnosis as
required under 5 46-15-327, MCA:
Continuing duty to disclose. If at any time after a
disclosure has been made any party discovers additional
information or material that would be subject to
disclosure had it been known at the time of disclosure,
the party shall promptly notify all other parties of the
existence of the additional information or material and
make an appropriate disclosure.
As a result of the information furnished, Byers knew that Dr.
Stratford would testify that Byers did not have a mental disease or
defect and had acted knowingly and purposely during the offenses.
Prior to Dr. Stratford's main portion of testimony at trial, Byers
also knew that Dr. Stratford had concluded that Byers did not
suffer from Borderline Personality Disorder.
Despite his foreknowledge of such testimony by Dr. Stratford,
Byers contends he was unable to adequately cross examine Dr.
Stratford because he had not known anything about Dr. Stratford's
diagnosis and had no time to question his own expert on the
technicality of the diagnosis so that a cross examination of Dr.
Stratford would be meaningful. However, the record demonstrates
that the court offered Byers1 counse1.acontinuance to question its
own expert, Dr. Plazak, about Dr. Stratford's diagnosis. The court
told defense counsel to inform it at the end of Dr. Stratfordus
direct examination if he wished this continuance. The record does
not show any request by Byers for such continuance.
Defense counsel claims that any questioning of Dr. Stratford
would have prevented Byers from alleging a discovery violation. In
answer to this contention, we note that Byers did not need to
allege a discovery violation. The court determined that one had
occurred. Second, there is no reason why defense counsel could not
have continued with his planned cross examination, Byers knew that
Dr. Stratford would testify to his evaluation that Byers did not
suffer a mental disease or defect and that he had acted knowingly,
purposely and voluntarily when he committed the offenses. Counsel
for Byers has failed to demonstrate any reason that the absence of
the specific Stratford diagnosis prevented an adequate cross
examination. While w e do approve the District Court's limitation
on the State's testimony because of the failure to disclose the
Stratford diagnosis, we are unable to conclude that there was any
adverse effect upon Byers.
The court prohibited Dr. Stratford from testifying about a
specific diagnosis and allowed Dr. Stratford to testify to that
information already in defense counselushands. The court properly
prohibited a witness from testifying to something that was not
disclosed. Section 46-25-329, MCA. Such prohibition was a
sanction against the State. The District Court has the discretion
to levy sanctions it deems most appropriate for discovery
violations. State v. Van Voast (1991), 247 Mont. 194, 805 P.2d
1380. Because the actual testimony was no different than what was
contemplated and because Byers can point to no damage caused by Dr.
Stratford's testimony, we conclude that the District Court's
sanction was appropriate. Therefore, we hold that the District
Court did not abuse its discretion by allowing Dr. Stratford to
testify after it was established that the State had failed to
disclose his diagnosis before trial.
IV.

Did the District Court err in refusing to grant a mistrial when the
State's psychologist, John Van Hassel, testified, in response to
questioning by the County Attorney, to statements made during the
course of his examination of Brett Byers?
Byers contends that the only issue to be resolved by the jury
is his state of mind. Byers further argues that the State was
permitted to introduce evidence of that state of mind through
testimony of its expert witness reciting comments made by Byers
during an interview. It is Byerst contention that this testimony
was an intrusion into his right of refusal to testify against
himself pursuant to Article 11, Section 25, 1972 Montana
Constitution.
The State argues that Byers' own expert testified to Byers'
thoughts before and after the shootings notwithstanding the court's
directives. As a result of the testimony by Byers' expert, the
State argues that its own testimony was admissible.
The court, after reviewing applicable statutes and case law,
concluded:
15
 THE COURT: This is regarding Section 46-14-401, which
deals with the admissibility of statements made during a
psychiatric examination under the Montana Criminal Code.
Let the record show that I have reviewed the statute and
I have paid particular attention to the case of State v.
Statczar, 44 State Reporter 1668, issued by the Montana
Supreme Court in October of 1987. And the holding is
that statements made by a defendant for purposes of the
psychiatric examination are not admissible in evidence
against a defendant in any criminal proceeding on any
issue other than that of his mental condition. And the
Supreme Court cautions trial courts to refrain from
admitting evidence of the defendant's mental condition
which implies or constitutes an admission of guilt of the
crime charged. So, I guess we are under that rule. S . o
therefore, the State's wsvchiatric witnesses will not be
able to comment on any statements made bv the defendant
which imalv or constitute an admission of the w i l t of
the crime charaed, but mav only a0 into his mental
condition. [Emphasis added.]
The court denied the motion for mistrial on the basis that the
State's expert engaged in proper rebuttal of the defense's expert
witness and because any inappropriate testimony was inadvertent.
A trial court has the discretion to grant a mistrial. State
v. Graves (lggo), 241 Mont. 533, 788 P.2d 311. Where there has
been no abuse of discretion, this Court must not disturb the
district court's decision. Graves, 241 Mont. at 538, 788 P.2d at

The Montana statute pertinent to this issue is:
Admissibility of statements made during examination or
treatment. A statement made for the purposes of
psychiatric examination or treatment provided for in this
chapter by a person subjected to such examination or
treatment is not admissible in evidence against him in
any criminal proceeding, except a sentencing hearing
conducted under 5 46-14-311, on anv issue other than that
of his mental condition. It is admissible on the issue
of his mental condition, whether or not it would
otherwise be considered a privileged communication,
unless it constitutes an admission of guilt of the crime
charged. [Emphasis added.]
Section 46-14-401, MCA (1989) (now, 46-14-217, MCA). In order to
determine whether testimony admitted at trial was in violation of
the above statute and, therefore, prevented Byers a fair trial we
consider the alleged offending testimony.
Byers contends that the offensive question and answer by the
State was n o t inadvertent because the State s p e c i f i c a l l y asked Dr.
Van Hassel about Byersl statements:
Q. What did he tell you about that?
A. I don't recall his exact statements without referring to
my notes. But he did indicate to us that he was aware
that police cars were following him, and that he did
speed up when they turned on their lights, and that when
he arrived at East Helena and found the road blocked off,
that he knew he couldn't get away, and that he knew he
was in a lot of trouble and he did (sic) want to face it,
and, consequently, he crashed his truck.

A. I guess, you know, I could continue beyond that in the
sense of, seemingly he was aware of what was happening at
the time that he was arrested. He appears to have
behaved in an expected fashion in the sense that he was
aware that he was being arrested. I don't know how far
beyond the time of the shootings you want to go, but I
think there's substantial evidence that up to a very
short time before those shootings and a very short time
afterwards, he was fully aware of his behavior and fully
capable of making conscious choices.
Byers contends that these statements imply an admission of
guilt. The State argues that the above testimony was in rebuttal
to Dr. Plazakrs (Eyers1expert) testimony earlier concerning Byers'
post-shooting admonition to the Dormitory Resident Advisor to call
the police. Dr. Plazak stated:
A. [I]t would be very easy to interpret this as
meaning that he knew that, at that point,
something had happened which would require the
presence of the police. Actually, my feeling
 after examining him and evaluating and talking
to him about the incident, which incidently is
very fuzzy in his mind anyway, although he's
not amnesic or any of that, he was asking for
help.
Dr. Plazak was permitted to testify that ByerS had indicated
to him that his recollection of the shootings was hazy. This
testimony indicates Byers' mental state. Dr. Van Hassel was
permitted to testify that up until a short time before and a short
time after, Byers was capable of making conscious choices. We
conclude that under the statute and the judge's orders, the
testimony of both experts was appropriate as admissible statements
regarding Byers' mental condition. We further conclude that Byers
opened the door to this testimony by his initial examination of his
own witness, Dr. Plazak, and therefore cannot object to the
responsive interrogation by the State. We conclude that Byers was
not denied a fair trial because of the above mentioned testimony.
We hold the District Court did not abuse its discretion in
failing to grant a mistrial with regard to the testimony of State's
psychologist, Dr. John Van Hassel. -
v.
Did the District Court abuse its discretion when it allowed the
State to present evidence that the length of the shotgun possessed
by Brett Byers was in violation of federal regulations?
Byers argues that the court erroneously allowed the State to
present evidence that the shotgun used in the shootings had been
altered to an illegal length and had a pistol grip. Byers'
contention is that the State should have provided a Just notice if
it intended to offer evidence concerning an illegal weapon. See
State v. Matt (1990), 245 Mont. 208, 799 P.2d 1085. Byers contends
that in the absence of a Just notice, the court abused its
discretion in allowing the State to present this evidence.
The State argues that the information concerning the illegal
length of the shotgun is not a matter which required a Just notice.
According to the State, the weapon was part of the corpus delicti
of the crime and was relevant to the case. The State contends that
the uniqueness of the gun is a factor in identifying Byers as the
alleged killer.
The District Court allowed the evidence of the illegal length
of the gun, stating:
The basis for my ruling is that there has been testimony
that this weapon did once have a thirty inch barrel.
That when it was given to the defendant it was in proper
condition. And it was used in the crime, and I think the
jury's entitled to know what the status of that weapon is
and it may -- as it may be relevant in this case.
Byers argues that the testimony concerning the length of the gun
was irrelevant because it had been altered to its present unique
state several years before the shootings, not in anticipation of
the shootings.
The barrel of the shotgun, which was found at the scene of the
shootings, was 14 and 9/16" long and had a pistol grip. The
minimum legal length is 18". The gun was subsequently identified
as the murder weapon used to kill Boeder and Clevenger. Thus, any
information that showed the identity of the perpetrator would be
relevant because it linked the defendant with the scene of the
crime and the victims. See State v. Pease (1986), 222 Mont. 455,
724 P.2d 153. This link was established by the unique character of
19
the gun. Part of that unique character was the fact that it had a
short barrel.
We have stated that the State is entitled to present evidence
of other crimes when these matters are inextricably or inseparably
related to the crime. State v. Wolfe (1991), 250 Mont. 400, 821
P.2d 339. Here the State was permitted to introduce evidence of
the act of owning an illegal length shotgun because it was
inextricably related to the crime. The crime was conclusively
proven to have been caused by the sawed-off shotgun left at the
scene.
Byersv argument that no Just notice was given before the State
entered the evidence of the illegal act is not correct. As this
Court stated in State v. Gillham (1983), 206 Mont. 169, 179, 670

Likewise, evidence that Gillham told others of his plan
to kill Nordahl, that he visited the Nordahl home, and
that he followed Nordahl's vehicle intending to harm
Nordahl is admissible under Rilev as part of the corvus
delicti of the crime charged. All of this evidence
provides an explanatory context in which the jury was
entitled to view the actions of Gillham. The State was
entitled to present at trial the entire corDus delicti of
the crime charged, including this evidence of acts
closely related and explanatory of the crime charged.
The District Court did not admit evidence in violation of
the Just procedural requirements.
We conclude that evidence with regard to the shotgun is part
of the cortms delicti of the crime and does not require the giving
of a Just or Modified Just notice. We hold the District Court did
not abuse its discretion in allowing evidence that the length of
the shotgun possessed by the defendant was in violation of federal
regulations.
Did the District Court err when it denied Brett Byers' motion to
dismiss the charges of deliberate homicide in favor of those of
mitigated deliberate homicide?
Byers claims that he asserted the affirmative defense of
extreme mental or emotional stress for which there is reasonable
explanation or excuse, and that such defense reduces deliberate
homicide to mitigated deliberate homicide. Byers contends that the
fact that he was under extreme emotional distress was undisputed at
trial and the court should find as a matter of law that the jury
could only consider mitigated deliberate homicide.
The State argues that the court correctly declined to direct
a verdict. The State contends that a directed verdict may only be
granted when no evidence exists to support a guilty verdict and
such is not the case here. Further, according to the State the
jury was given both the deliberate and mitigated deliberate
homicide instructions. The State points out the jury was not
convinced by Byers' argument because it did not find that defendant
was under extreme mental or emotional distress for which there is
a reasonable explanation or excuse as described in the
instructions. Section 45-5-103, MCA.
First, we note that Byers did not ask for a directed verdict.
He asked the judge to determine as a matter of law that the jury
could only consider mitigated deliberate homicide and not
deliberate homicide. Byers relies on three Montana cases for this
argument concerning his motion: State v. Kamrud (1980), 188 Mont.
100, 611 P.2d 188; State v. Grenfell (1977), 172 Mont. 345, 564
P.2d 171; and State v. Frates (1972), 160 Mont. 431, 503 P.2d 47.
In all three cases the issue involved was entrapment by police. In
Grenfell we established that entrapment could be established as a
matter of law. These three cases are not applicable to charges of
deliberate or mitigated deliberate homicide.
In order for the charge of deliberate homicide to be reduced
to mitigated deliberate homicide, the jury must be convinced by a
preponderance of the evidence that such reduction is warranted, in
accordance with 5 45-5-103, MCA:
Mitigated deliberate homicide. (I) A person commits the
offense of mitigated deliberate homicide when he
purposely or knowingly causes the death of another human
being but does so under the influence of extreme mental
or emotional stress for which there is reasonable
emlanation or excuse. The reasonableness of such
emlanation or excuse shall be determined from the
vi&ipoint of a reasonable person in the actor's
situation.
(2) It is an affirmative defense that the defendant
acted under the influence of extreme mental or emotional
stress for which there was reasonable explanation or
excuse, the reasonableness of which shall be determined
from the viemoint of a reasonable person in the actor's
situation. This defense constitutes a mitigating
circumstance reducing deliberate homicide to mitigated
deliberate homicide and must be proved by the defendant
by a preponderance of the evidence. [Emphasis added.]
The record demonstrates that the testimony of the defendant's
experts and the State's experts were in various aspects
contradictory and inconsistent. As an example, Byers' expert, Dr.
Plazak, testified that Byers was under extreme stress during the
shooting episodes. State's witness, Dr. Van Hassel, testifiedthat
Byers reported to him he felt extreme stress following an accident
with his truck directly before the shootings. Dr. Van Hassel
testified that he believed that Byersl perception of his own state
of mind was that he was under extreme stress. Dr. Stratford, the
second State expert witness, did not specifically conclude that
Byers was under stress. He did mention a series of things over
which Byers was experiencing wproblems.fl It was up to the jury to
determine the weight to be attached to the testimony of the various
witnesses. State v, Bower (1992), 254 Mont. 1, 833 P.2d 1106. We
conclude the determination of the weight to be given to this
testimony was within the exclusive province of the jury as trier of
fact.
We hold that the District Court did not err in denying Byersr
motion to dismiss the charge of deliberate homicide in favor of
mitigated deliberate homicide.

id the District Court err by instructing the jury that it could
convict Byers if it merely found that Brett Byers was aware of his
conduct or if he had the conscious object to engage in conduct of
a particular nature?
Byers argues that the jury was instructed improperly as to the
meanings of llpurposelyl* "knowinglyw with the result that the
or
Staters burden on the mental element of the offense was reduced.
This, according to Byers, warrants a reversal of the jury verdict.
Byers1 contention is that ltpurposelyll be meant as 1) purpose to
can
engage in conduct, or 2) purpose to cause a result. nKnowinglyM is
defined likewise as relatingto either conduct or result--depending
on the definition of the crime involved, asserts Byers. According
to Byers, the crime of deliberate homicide is defined by a result--
the death of a human being. However, Byers contends that the jury
23
was erroneously given a composite of the two alterative meanings of
these two states of mind so that it could convict Byers if it found
that he possessed the requisite mental state only as to his
conduct, not as to the result.
The State argues that the jury was clearly instructed as to
the legal meanings of gtknowingly'tand "purposely.'I Byers
argument, according to the State, is that Byers can be convicted
with the instructions given if he did not have the requisite
intent. However, the State contends that specific intent is no
longer required unless the statute defining the offense requires it
as an element. According to the State, this Court has already
considered Byers' argument and failed to find it persuasive.
The Byers' jury was instructed:
Instruction #11: A person commits the offense of
deliberate homicide if he purposely or knowingly causes
the death of another human being. (Taken from 5 45-5-
102 (1), MCA. )
Instruction #12: A person acts purposely when it is his
conscious object to engage in conduct of that nature or
to cause such a result. (Taken from 5 45-2-101(58), MCA.)
Instruction #13: A person acts knowingly when he is
aware of his conduct or when he is aware that it is
highly probable that a result will be caused by his
conduct. (Taken from § 45-2-101(33), MCA.)
Byers' arguments have been made and considered previously by
this Court in State v. Sigler (1984), 210 Mont. 248, 688 P.2d 749.
In Siqler, the defendant was accused of deliberate homicide after
having hit or kicked a 19-month old child, causing his bowels to
perforate, killing him. The Siqler jury was similarly instructed:
Instruction #12: A person acts purposely with respect to
a result or to conduct described by statute defining an
 offense if it is his conscious object to engage in that
conduct or to cause that result.
Instruction #13: A person acts knowingly with respect to
conduct when he is aware of his conduct. A person acts
knowingly with respect to the result of conduct described
by a statute defining an offense when he is aware that it
is highly probable that such result will be caused by his
conduct.
Instruction # 14 : A person commits the offense of
deliberate homicide if he purposely or knowingly causes
the death of another human being.
Sisler, 210 Mont. at 257-258, 688 P.2d at 749, 754.
The instructions given by the District Court in Byers were
similar to those given in Sisler and were taken from the same
statutes. We determined in Sisler that the court had correctly
instructed the jury. There, as here, the jury was also instructed
that the State had to prove all elements of the crime.
Byers1 argument that the Sisler case should be overruled
because it is not the law is unpersuasive. We have considered his
argument in previous cases and have found instructions like those
given in Bvers to be an adequate statement of the law. Byers'
argument on this point is that the court's interpretation of the
law in Siqler relieves the State of proving that the defendant had
the required intent to cause the death of another human being.
Such intent is no longer required in this state:
tlPurposelylt uknowinglyl~
and have replaced the concepts of
malice and intent known to our former law. . . .In
short, the voluntary act of a person, if not justifiable
. . .
. knowingly, purposely, or negligently done is
criminal homicide if it causes the death of another human
being. . . .Proof of cause is a primary duty of the
State, and a necessary element to be found by the jury
for a proper conviction in a criminal homicide case.
(Emphasis in original.)
Sisler, 210 Mont, at 258, 688 P.2d at 754. And more recently we
have stated:
It is no longer necessary to prove specific intent as an
element of the crime unless the statute defining the
offense requires as an element thereof specific purpose.
. . .As the trial court noted in refusing defendant's
proffered instructions, a defendant can properly be
convicted of deliberate homicide even though he may not
have intended that the death result from the act where he
contemplated the same kind of harm or injury to the
victim. . ..
State v. Van Dyken (1990), 242 Mont. 415, 434, 791 P . 2 d 1350, 1362,
cert. denied, 111 S.Ct. 297.
Contrary to Byersf argument, the Sisler-type instructions have
been considered on numerous occasions by this Court and we have
consistently found them to be an accurate reflection of the law:
Sisler is well-settled law and its holding has been
affirmed often by this Court. See State v. Blalock
(1988),232 Mont. 223, 756 P.2d 454; State v. McKimmie
(1988), 232 Mont. 227, 756 P.2d 1135; State v. Ballenger
(1987), 227 Mont. 308, 738 P.2d 1291; State v. Koepplin
(l984), 213 Mont. 55, 689 P.2d 921. We once again affirm
the Sisler holding and find that the trial court
correctly instructed the jury concerning mental state.
Van Dyken, 242 Mont. at 434, 791 P.2d at 1362.
In Sigler we gave an example of the effect of deletion of
specific intent in the current law:
.... proof beyond a reasonable doubt that a defendant
consciously shot another with a gun where no
circumstances of mitigation, excuse or justification
appear, and the other died from the gunshot, will suffice
to convict the defendant of deliberate homicide, without
proof that death was the intended result by the defendant
... .Our criminal law proscribes purposely doing an act
which causes the death of another; it also proscribes
doing an act with the conscious object of causing the
death of another. In the former, death may not be the
intended result, but if the act which causes the death is
done ~ u m o s e l v , deliberate homicide is committed.
(Emphasis added.)
Sisler, 210 Mont. at 260, 688 P.2d at 755. Such a statement of the
law was taken directly from the law itself. At the time of the
shootings, the definition of vtpurposelyn
was:
lgPurposet*--a
person acts purposely with respect to a
result or to conduct described by a statute defining an
offense if it is his conscious object to emacre in that
conduct or to cause that result.
Section 45-2-301(58), MCA. The statute clearly provides two ways
to act with purpose: 1) consciously engaging in a certain conduct,
or 2) consciously attempting to cause a result. Section 45-5-102,
MCA, provides:

(1) A person commits the offense of deliberate homicide
if:
(a) he purposely or knowingly causes the death of
another human being ...
Section 45-2-201, MCA, describes the causal relation between
conduct and result as follows:
Causal relationship between conduct and result. (1)
Conduct is the cause of a r e s u l t i f :
( a ) without the conduct the result would not have
occurred; and
(b) and additional causal requirements imposed by
the specific statute defining the offense are satisfied.
(2) If purposely or knowingly causing a result is
an element of an offense and the result is not within the
contemplation or purpose of the offender, either element
can nevertheless be established if:
(a) the result differs from that contemplated only
in the respect that a different person or different
property is affected or that the injury or harm caused is
less than contemplated; or (b) the result involves the
same kind of harm or injury as contemplated but the
precise harm or injury was different or occurred in a
different way, unless the actual result is too remote or
accidental to have a bearing on the offender's liability
or on the gravity of the offense. (Emphasis added.)
Because the law specifically indicates an inter-connectedness
between conduct and result in deliberate homicide, this Court has
consistently interpreted the law on its face since Sisler: the
defendant need only have the purpose to engage in a certain
conduct. If that conduct causes death, defendant can be charged
with deliberate homicide.
The deliberate homicide statute does not require only a
wresultvt
as Byers argues. T f defendant engages in any conduct

Mpurposelyuand death is a "resultu,according to the statutes now
in effect in this State, the defendant can be found guilty of
deliberate homicide. Such was the case in Sisler.
We conclude that Byers is in error in contending that the
State had to prove that Byers intended to cause the death of
another human being. We also conclude that the Bversl instructions
are a correct reflection of the current law in this State.
We hold that the District Court did not err by instructing the
jury that it could convict Byers if it merely found that Byers was
aware of his conduct or if he had the conscious object to engage in
conduct of a particular nature.
VIII
Did the District Court err by instructing the jury that voluntary
intoxication is not a defense to criminal activity?
Byers argues that the voluntary intoxication statute is
unconstitutional because its use relieves the State of its burden
of proving the elements of an offense. Byers contends that he
never used intoxication as a defense because there exists no
connection between his use of alcohol and the shootings. Byers
asserts that his conviction must be overturned because of the use
of this instruction by the court.
 The State argues that the court did not err in giving the
intoxication instruction because testimony was presented at trial
which indicated that Byers was intoxicated. Further, according to
the State, the instruction regarding intoxication did not override
the instruction regarding the State's burden of proving the
elements of the crimes.
The jury was instructed:
A person who is in an intoxicated condition is
criminally responsible for his conduct and an intoxicated
condition is not a defense to any offense and may not be
taken into consideration in determining the existence of
a mental state which is an element of the offense unless
the defendant proves that he did not know that it was an
intoxicating substance when he consumed the substance
causing the condition.
Jury instruction #22.
During the State's case, one of Byersf friends in the
dormitory t h e Montana State University campus testified that

Byers had drunk almost an entire bottle of wine on the night of the
shootings and that he was wdrunklqand was llslurringhis words"
shortly before the shootings occurred. The court concluded it was
proper give the instruction. The trial court must
determine which instructions are necessary in a particular case and
should i n s t r u c t the j u r y on every theory having support in t h e

evidence. State v. Goodwin (1991), 249 Mont. 1, 813 P.2d 953.
Byersf argument that the intoxication instruction relieved the
State of the burden of proving beyond a reasonable doubt all of the
elements of the offense is not persuasive. T h e court was very

clear in directing the jury that "[tlhe state of Montana has the
burden of proving the guilt of the defendant beyond a reasonable
doubt. tf (Instruction #2. ) The same instruction told the jury that
l [ ] e defendant is presumed to be innocent of the charge against
lth
him . , . . throughout every stage of the trial and during your
deliberations on the verdict.''
We review jury instructions as a whole; instructions are
deemed to be sufficient if they fully and fairly present applicable
law. State v. Webb (1992), 252 Mont. 248, 828 P.2d 1351. A review
of the instructions as a whole reveals that the court fully
instructed on all theories pertinent to the case and fairly
presented the current state of the law to the jury. We conclude
that the jury instructions were sufficient.
We hold that the District Court did not err by instructing the
jury that voluntary intoxication is not a defense to criminal
activity.
IX
Did the District Court err by refusing to include voluntariness in
instructions 17 and 18?
Byers points out that the court did not include an instruction
on voluntariness with the jury instructions giving the elements of
the crime. Byers argues that because the voluntariness instruction
was separated from the instructions on elements of the crime, the
jury was confused and may not have considered it. According to
Byers, such lack of consideration was prejudicial to his case.
The State contends that the jury was properly instructed.
According to the State, a voluntary act does not refer to
psychological impairment but to a physical act. Because of this,
the State contends that it was proper to separate the voluntary
30
instruction from the instruction stating the elements of the crime.
Instruction #10 stated:
In addition to the particular states of mind which are
essential elements for the offenses charged or included
in this case, the State must m o v e beyond a reasonable
doubt that the Defendant acted voluntarilv. An tfactllhas
its usual and ordinary meaning and includes any bodily
movement. The term Woluntarytlmeans the act is the
product of the effort or determination of the actor,
either conscious or habitual. Acts which are not
voluntary are reflexes, convulsions, bodily movements
during unconsciousness or sleep, or conduct during
hypnosis, or any other bodily movement that otherwise is
not a product of effort or determination either conscious
or habitual. (Emphasis added.)
This instruction clearly puts the burden on the State to prove
voluntariness. Further, the next three instructions immediately
following the above instruction are: 12) deliberate homicide must

be done purposely or knowingly, 13) definition of purposely, 14)
definition of knowingly. There is no real separation here. These
instructions are all individual elements and portrayed as such.
The court restated elements of instructions 12, 13, 14 again
in instructions 17 and 18. These latter two instructions combined
the possibility of mitigated deliberate homicide and evidence of
extreme mental or emotional stress:
Instruction #17: To convict the defendant of the offense
of deliberate homicide, under Count I, the State must
prove the following elements:
1. That the defendant caused the death of James
Allen Clevenger [Instruction #18 was identical but
inserted the name Brian Peter Boeder] , a human being; and
2. That the defendant acted purposely or
knowingly.
The defendant has asserted the affirmative defense of
mitigated deliberate homicide which requires proof by a
preponderance of the evidence that the defendant acted
under the influence of extreme mental or emotional stress
 for which there was a reasonable explanation or excuse.
If you find from your consideration of the evidence
that all of elements number 1 and 2 have been proved
beyond a reasonable doubt, and the defendant has not
proved extreme mental or emotional stress, by a
preponderance of the evidence, then you should find the
defendant guilty of deliberate homicide.
If you find from your consideration of the evidence
that all of elements number 1 and 2 have been proved
beyond a reasonable doubt, and the defendant has proved
extreme mental or emotional stress, by a preponderance of
the evidence, then you should find the defendant guilty
of mitigated deliberate homicide.
If you find from your consideration of the evidence
that either element[s] number 1 or number 2 has not been
proven beyond a reasonable doubt, then you should find
the defendant not guilty.
If you find from your consideration of the evidence
that the defendant did not have the required mental state
of purposely or knowingly described in element number 2,
because of mental disease or defect then you should find
the defendant not guilty by reason of mental disease or
defect.
The court did not include in instructions 17 or 18 any mention of
voluntariness. Neither did anything in these two instructions
negate the instruction already given on voluntariness.
Jury instructions must be read and reviewed as a whole and if
they fairly and fully reflect the law, they will be found
sufficient. Goodwin, 249 Mont. at 13, 813 P.2d at 961. We
conclude that the instructions as given adequately reflect the law
and the placement of the voluntariness instruction is not
prejudicial to defendant.
We hold that the District Court did not err by refusing to
include voluntariness in instructions 17 and 18.
 id the ~istrictCourt make an improper comment on the evidence
when it instructed the jury that consciousness of guilt could be
inferred from flight?
The court instructed the jury:
If you are satisfied that the crime charged in the
information has been committed by someone, then you may
take into consideration any testimony showing, or tending
to show, flight by the defendant. This testimony may be
considered by the jury as a circumstance tending to prove
a consciousness of guilt, but is not sufficient of itself
to Drove w i l t . The weight to be given such circumstance
and significance if any, to be attached to it, are
matters for the jury to determine. (Emphasis added.)
Instruction #21.
Byers argues that many jurisdictions have eliminated a
"flightn instruction. Byersf contention is that the instruction
when given is an improper comment by the court on a single piece of
evidence. It works, according to Byers, to invade the province of
the jury and essentially directs a verdict for the State. Byers
further argues that in a situation as here where the only issue is
mental state, defined as consciousness, a flight i n s t r u c t i o n
essentially tells the jury that defendant was "consciousm1 his
of
guilt if he fled the scene.
The State argues that this Court has upheld the use of the
flight instruction in situations where it is supported by evidence.
According to the State, there is no dispute that Byers fled from
the scene of the crime and on that basis the instruction was
proper.
The evidence introduced at trial is uncontroverted that
Byers left the Montana State University campus in the early morning
hours and drove to East Helena, Montana, where he was apprehended.
Thus, the facts of this case make the flight instruction
appropriate.
Yet, Byers contends that we should once again consider whether
the flight instruction is an appropriate statement of the law. The
instruction was taken from the Montana Criminal Jury Instructions
1-019. It has been used with approval in numerous cases. see
State v. Campbell (1990), 241 Mont. 323, 787 P.2d 329; State v.
Kills on Top (1990), 241 Mont. 378, 787 P.2d 336; State v. Burk
(1988), 234 Mont. 119, 761 P.2d 825; State v. Charlo (1987), 226

Mont. 213, 735 P.2d 278.
The use of the instruction here is no less appropriate than in
the preceding cases. It is important to note here that the jury
was specifically told in this instruction that it was their domain
to weigh any evidence of flight. They were also instructed that
evidence of flight alone was not enough to show guilt. Thus,
Byers' argument that the use of this instruction acted to direct a
verdict where the only issue is his mental state is not correct.
It is the trial court's responsibility to give the jury the legal
tools that it needs to make a decision. We conclude it did that
here. The court's use of the flight instruction under the facts of
this case was an accurate reflection of the present law.
We, therefore, hold that the District Court did not improperly
comment on the evidence when it instructed the jury that
consciousness of guilt could be inferred from flight.
Did the sentencing judge err when he imposed a separate,
consecutive sentence for weapon use even though the offense of
weapon use was not charged?
Byers argues he was charged with two counts of deliberate
homicide, but was given three sentences. Because of the wording of
the weapon enhancement statute, Byers asserts he was denied due

process because he was not charged with this third offense.
The State contends the weapons enhancement statute does not
constitute a separate offense. According to the State, this Court
has already concluded the enhancement statute does not circumvent
due process. The State argues that our Ninth Circuit has also
reached the same conclusion.
Section 46-18-221, MCA, reads:
Additional sentence for offenses committed with a
dangerous weapon. (1) A person who has been found
guilty of any offense and who, while engaged in the
coromission of the offense, knowingly displayed,
brandished, or otherwise used a firearm, destructive
device, as defined in 45-8-332(1), or other dangerous
weapon shall, in addition to the punishment provided for
the commission of such offense, be sentenced to a term of
imprisonment in the state prison of not less than 2 years
or more than 10 years, except as provided in 46-18-222.
(2) A person convicted of a second or subsequent
offense under this section shall, in addition to the
punishment provided for the commission of the present
offense, be sentenced to a term of imprisonment in the
state prison of not less than 4 years or more than 20
years, except as provided in 46-18-222.
Byers1 argument concerning a separate offense was made in
State v. Krantz (l99O), 241 Mont. 501, 788 P.2d 298. There we
stated that the United States Supreme Court has given the states
great latitude in defining the elements of a crime and the factors
mitigating or aggravating sentencing. Krantz, 241 Mant. at 508,
788 P.2d at 302; citing Patterson v. New York (l977), 432 U.S. 197,

Further, we stated in Krantz:
The Montana weapon enhancement statue contains a
number of elements similar to those found in substantive
criminal statutes, but those elements do not make it a
separate crime. The enhancement statute contains a
recidivist provision, requires a mental state of
knowingly, and may require a finding of fact, use of a
weapon, not necessary to establish guilt of the
underlying crime. The recidivist provision carries out
the statute's purpose by limiting the sentencing court's
discretion in imposing increased punishment for repeat
offenders. The mens rea requirement protects the
defendant by imposing on the court an additional and
appropriate finding in determining weapon usage. All
sentencing factors may, and often do, require the court
to consider facts not established during trial. These
elements are as much pertinent and necessary attributes
of traditional sentencing considerations as they are
attributes of substantive crimes.

This Court has repeatedly held that Montana's weapon
enhancement statute does not create a separate crime or
element of a crime. (cites omitted) The Montana
legislature has chosen a scheme which makes dangerous
offender status and use of a weapon sentencing factors.
So long as that scheme remains constitutional, it is not
the province of this Court to transmute these statutory
factors into separate crimes or elements of crimes.
Krantz, 241 Mont. at 511-512, 788 P.2d at 304-305.
Again, we conclude that Byers was afforded due process because
the State clearly had the burden of proof of all elements of the
crime. Further, the legislative decision to make weapon
enhancement a sentencing factor and not a separate offense, does
not violate Byers' due process.
We hold the sentencing judge did not err in imposing a
separate, consecutive sentence for weapon use even though the
offense of weapon use was not charged.

Did the ~istrictCourt improperly impose a 15 year sentence for
weapon use?
Byers argues that Montana should adopt t h e California lfsingle
incident1' rule. According to Byers, it serves no purpose to
sentence a defendant to so many years for each offense when all
offenses were committed at one time. This is so, claims Byers,
because the purpose of weapon enhancement statutes is to discourage
future use of weapons.
The State argues that the Court must consider the language of
the statute and determine that it refers to a single floffenselv
not
a single vtransaction.llThe court sentenced Byers:
For the use of a weapon in the commission of the two
homicides, the herein imposed sentence [75 years per each
count of homicide] is enhanced by an additional aggregate
term of 15 years, to run consecutive to the sentences
imposed in I and 11.
This Court's responsibility involving statutes is to interpret
them as they exist and not to insert terms, or restrictions,
clearly not present. State v. Crane (1990), 240 Mont. 235, 784
P.2d 901. Our enhancement statute states in pertinent part:
A person who has been found guilty of anv offense and
who, while engaged in the commission of the offense,
knowingly displayed, brandished, or otherwise used a
firearm, destructive device, as defined in 45-8-332(1),
or other dangerous weapon shall, in addition to the
punishment provided for the commission of such offense,
be sentenced to a term of imprisonment in the state
prison of not less than 2 years or more than 10 years,
except as provided in 46-18-222. (Emphasis added.)
Section 46-18-221(1), MCA.
The language on the face of this statute clearly indicates an
enhancement for a single offense. Were we to interpret this
statute as California has, we would be inserting a restriction
which is nowhere herein indicated in any way.
We conclude that Montana's weapon enhancement statute dictates
an enhancement of from 2 to 10 years for each offense and in no way
restricts the sentencing considerations to a single period of time.
Byers next argues that the 15 year sentence, stated in the
aggregate, is a general sentence. Such is clearly not the case.
A @'generalw sentence is one which is undivided; in other words, it
is not frspecific*f to each crime or each count.
as The sentencing
judge unequivocally assessed Byers 75 years for each count of
deliberate homicide:

For Brett Donald Byersl conviction for the killing of
James Clevenger, he is hereby sentenced to the Montana
State Prison for a term of 75 years.

For Brett Donald Byersl conviction for the killing of
Brian Boeder, he is hereby sentenced to the Montana State
Prison for a term of 75 years.

Each of the prison terms to run consecutive.
The specific term of 15 years was assessed over and above the
aforementioned specific t e n s of 75 years. Therefore, there is
nothing "generalv concerning Byersf sentence. Byers argues that
the court should have divided the 15-year enhancement between the
two offenses. In this situation where both crimes are the same,
the use of an aggregate sentence within the parameters set out in
§ 46-18-221, MCA, is sufficient.
We hold the ~istrictCourt properly sentenced the appellant
pursuant to the weapon enhancement statute.
XI11

Should Byerso conviction be reversed?
This Court will not set aside a conviction, if after viewing
the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. State v. Matt (1991), 249
Mont. 136, 814 P.2d 52. This Court has carefully considered the
trial transcript. We conclude that any rational trier of fact
could have found the essential elements of the crimes beyond a
reasonable doubt. We hold that Byers1 conviction should not be
reversed.
Affirmed .
~ustice Terry N. Trieweiler specially concurring in part and
dissenting in part.
I concur with the majority's conclusions regarding Issues 1,
4, 5, and 8-11.

I specially concur with those parts of the majority opinion
which relate to Issues 3, 6, and 12. However, although I concur
with the result reached, I do not agree with all that is said in
the majority opinion with regard to these issues.
I dissent from the majority's conclusions as they relate to
Issues 2 and 7.
With regard to Issue 2, I dissent from the majority's
conclusion that Montana's treatment of the insanity defense does
not violate defendant's right to due process. For the reasons
stated in my dissent to the majority's opinion in State v Cowan
.

(Mont. 1993), - P.2d -t - St. Rep. , I conclude that
Montana's abolition of the insanity defense in 1979 violated
defendant's right to due process of law guaranteed under the
Fourteenth Amendment to the United States Constitution, and Article
11, Section 17, of the Montana constitution.
Anyone unfamiliar with Montana's treatment of insane people
who are charged with crimes would believe, based on the majority
opinion, that they are treated more favorably now than before the
statutory changes which were made in 1979. That is not correct.
Based on the Legislature's abolition of the insanity defense
in 1979, and this Court's approval of that change in State v KorelI
.
(l984), 213 Mont. 316, 690 P.2d 992, persons in Montana can be
convicted of serious crimes and sentenced to confinement in the
State Prison, even though at the time of the acts with which they
are charged they were unable to appreciate the criminality of their
conduct or were unable to conform their conduct to the requirements
of the law because of mental illness. In addition to Montana, only
the states of Utah and Idaho allow punishment of the mentally ill,
and no U.S. Supreme Court decision has ever held that such
treatment of the mentally ill satisfies the due process clause of
the Fourteenth Amendment to the United States Constitution.
I conclude that the majority's reliance on Lelandv. Stateof Oregon

(1952), 343 U.S. 790, 72 S. Ct. 1002, 96 L Ed. 1302, is misplaced.
.
While the U.S. Supreme Court did hold in that case that the
defendant was not constitutionally entitled to a specific form of
the insanity defense, it is implicit from that decision that some
form of an insanity defense is required by the due process clause.
In fact, subsequent to this Court's decision in Korell, the

California Supreme Court cited Leland for exactly the opposite

purpose for which it is cited by this Court. In People v. Skinner (Cal.

1985), 704 P.2d 752, the California Supreme Court, while discussing
the due process dimensions of the insanity defense, stated that:
Because mens rea or wrongful intent is a fundamental
aspect of criminal law, the suggestion that a defendant
whose mental illness results in inability to appreciate
that his act is wrongful could be punished by death or
imprisonment raises serious questions of constitutional
dimension under both the due process and cruel and
unusual punishment provisions of the Constitution. In
 Leland v. Oregon (1952), 343 U.S. 790, 72 S.Ct. 1002, 96
L.Ed. 1302, the court upheld an Oregon law placing the
burden of proving insanity beyond a reasonable doubt on
the defendant and affirmed the right of the state to
formulate the applicable test of legal insanity. In so
doing, however, the court measured the law under due
process standards, concluding that the irresistible
impulse extension of traditional insanity test was not
ttaimplicit the concept of ordered liberty. "
in ' (343
U.S. at p. 801, 72 S.Ct. at 1009). The court thus
seemingly accepted the proposition that the insanity
defense, in some formulation, i required by due process.
s
(See also Robinsonv. California (1962), 370 U.S. 660, 666, 82
S.Ct. 1417, 1420, 8 L.Ed.2d 758, suggesting that
punishment for the status of being mentally ill would
constitute cruel andunusual punishment.) Scholars, too,
suggest that abolition of the traditional insanity
defense may be constitutionally impermissible if the
result would be imposition of punishment on a mentally
ill person for acts done without criminal intent. (See
Robitscher & Haynes, In DejGense of the Insanity Defense (1982) 31
.
Emory L J 9 ; Note, The Proposed Federal Insanity DejGense: Should the
.
.
Quality of Mercy Suffer the Sake of Safety ( 1984) 22 Am. Crim. L Rev.
for
49.)
This court suggested a similar view in People v .
Coleman (l942), 20 Cal.2d 399, 407, 126 P.2d 349, where
we observed: "Obviously an insane person accused of crime
would be inhumanely dealt with if his insanity were
considered merely to reduce the degree of his crime or
the punishment therefor."
Skinner, 704 P.2d at 757-58.

Montana's statutory scheme for dealing with mental illness
does exactly what the California Supreme Court suggests would
violate due process and cruel and unusual punishment provisions of
the Constitution. It allows for conviction and punishment of those
who are unable to appreciate the criminality of their conduct, and
it substitutes for the insanity defense the mere option of the
district court to take mental illness into consideration when
deciding the degree of punishment or nature of the defendant's
confinement.
While evidence of mental disease or defect is admissible to
prove that a defendant did not have a state of mind that is an
element of the offense, it is clear that Montana's law does not
take into consideration the defendant's ability to appreciate the
criminality of his conduct or conform his conduct to the law. The
only state of mind that had to be proven to convict the defendant
in this case was that he acted knowingly and purposely at the time
of the illegal conduct with which he is charged. Based on
Montana's definitions of knowingly and purposely, he could act with
both states of mind and still not appreciate the criminality of his
conduct nor be able to conform his conduct to the law.
The majority's conclusion that abolition of the insanity
defense does not violate the due process clauses of the Montana or
Federal Constitutions is based largely on its prior decision in
Korell, and that decision's interpretation of Leland.

The inadequacy of this Court's decision in Korell, and the

inaccuracy of its analysis of Leland is thoroughly set forth by the

dissenting opinion of Justice McDevitt in State v. Sear~y (Idaho 1990) ,

798 P.2d 914. I agree with that analysis, and would follow it in
this case.
The only reported decision outside of Montana which I am
familiar with and which specifically upholds abolition of the
insanity defense is the majority opinion in Searcy. In his
well-documented opinion dissenting from that decision, Justice
McDevitt made several important points.
First, he examined the various tests for due process that have
been set forth over the years. He observed that:
In Palkov. Connecticut, 302 U.S. 319, 324-25, 58 s.c~.
149, 151-52, 82 L.Ed. 288 (1937), Justice Cardozo wrote
that those particulars of the Bill of Rights which must
be held to apply as against the States through the
Fourteenth Amendment Due Process Clause are those which
"have been found to be implicit in the concept of ordered
liberty, .. .I1 such that I1a fair and enlightened system
of justice would be impossible without them."
Searcy, 798 P.2d at 927.

He noted that:
The underlying theme of these various formulations
of "due processt1 a sense of historical precedent upon
is
which American institutions were founded and our
continuing legal traditions. Thus, the proper focus in
evaluating the place of a particular doctrine in the
concept of due process is the pervasiveness of the
doctrine in the history of the common law. A review of
the extensive history of the insanity defense in the law
of England and the United States leads to the conclusion
that due process does require the availability of that
defense to criminal defendants.
Searcy, 798 P.2d at 928.

As noted in Justice McDevittls dissent, the insanity defense
has existed as an excuse to crime from the time of the reign of
Edward I during the 13th Century, and was well established by the
16th Century. Searcy, 798 P.2d at 928-29. He pointed out that as

early as the 18th Century there was recorded case law to the effect
that a man deprived of reason cannot be guilty. The jury was so
instructed in Rexv.Amold, 16 How.St.Tr. 695 (1724). American cases
closely tracked English law from the time that insanity was first
considered as a defense in this Country's courts. InreClark, 1 City

Hall Recorder (N.Y.) 176 (1816), and InreBaU, 2 City Hall Recorder

(N.Y.) 85 (1817).
Then, in 1843, M'Naughten'sCase, 8 Eng.Rep. 718 (H.L. l843), was

decided. That case provided that a person suffering from disease
of the mind, to the extent that they did not know the nature and
quality of their conduct, or did not know that what they were doing
was wrong, could not be guilty of a crime. The MeNaughten rule, in

some form or another, has been followed in virtually every American
jurisdiction until 1979. However, whether following the M'Naughten

rule, or some other variation of the insanity defense, McDevitt
points out that the appropriateness of the defense has rarely been
questioned.
Second, McDevitt pointed out that there were three legislative
attempts to abolish the insanity defense between 1910 and 1931, but
that each of those legislative enactments were overturned by the
state supreme courts where they were attempted. Searcy, 798 P.2d at

932. Referring to this Court's discussion of those decisions in
K r l , Justice McDevitt pointed out that:
oel

The Montana Supreme Court, in its recent decision
upholding the 1979 abolition of the defense in Montana,
effortlessly distinguished those three cases because
If [t]hey interpret statutes that precluded a y trial
n
testimony of mental condition, includingthatwhich would
cast doubt on the defendant's state of mind at the time
he committed the charged offense." KoreU, 213 Mont. at
329, 690 P.2d at 999 (emphasis in original). The KoreU
 court felt that Montana's allowance for psychiatric
evidence going to the issue of mensrea at trial removed
any precedential value from those three prior cases.
However, I believe that two of those cases have greater
applicability to the issues faced in KoreU and by this
Court than the Montana Supreme Court would allow.
Searcy, 798 P.2d at 932.

For the reasons mentioned by the dissent in Seany, I agree.

Finally, the dissenting opinion in Searcy points out that:

Another, albeit less authoritative, test of whether
a particular doctrine is "implicit in the concept of
ordered liberty" other than the history of the legal
concept, is the unanimity with which the doctrine is
adopted among American jurisdictions. With the exception
of the three attempted legislative abolitions of the
insanity defense noted above, and the recent rejections
of the defense in Montana (1979), Idaho (1982), and Utah
(1983), the insanity defense has been universally
accepted in all American jurisdictions throughout this
nation's history.
Searcy, 798 P.2d at 934.

Based upon the foregoing, and based on the inapplicability of
those authorities relied upon by the majority of the Idaho Supreme
Court and the majority of this Court, the dissent in Searcy concluded

that:
I believe it is evident that the defense has an
independent existence of sufficient duration and
significance to entitle it to a place in our American
concept of "ordered liberty."
Searcy, 798 P.2d at 927.

I agree.
I believe as strongly as anyone that innocent people must be
protected from those who are a danger to society, whether their
behavior results from mental disease or simply an antisocial
personality. However, the alternative to imprisoning those whose
behavior results from insanity, over which they have no control, is
not to turn them loose on society. Our law prior to 1979 provided
that when a defendant is acquitted based on the defense of mental
disease or defect, he or she must be committed to the custody of
the superintendent of the Montana State Hospital for so long as he
or she remains a threat to society. Section 95-508, R.C.M. (1947).
That procedural safeguard has been carried forward to our current
statutory scheme, Section 46-14-301, MCA.
I do not mean to infer from this dissent that this defendant
could have satisfied the burden of proof with regard to Montana's
former insanity defense. However, I conclude that because he was
denied the opportunity to have a jury decide whether, due to mental
disease or defect, he was unable to appreciate the criminality of
his conduct or conform his conduct to the requirements of the law,
he was denied due process of law.
I also dissent from the majority's conclusion that the
District Court did not err when it instructed the jury that
defendant could be convicted of deliberate homicide if his conduct
was purposeful and knowing, regardless of whether he intended the
results of his conduct.
The crime of deliberate homicide is defined at 5 45-5-102,
MCA. That statute provides that:

(1) A person commits the offense of deliberate homicide
if:

(a) he purposely or knowingly causes the death of
another human being .... [Emphasis added.]
 The jury was correctly instructed in the District Court's
Instruction No. 11 that "[a] person commits the offense of
deliberate homicide if he purposely or knowingly causes the death
of another human being."
However, the jury was incorrectly instructed by the District
Court in Instruction Nos. 17 and 1 .
8 In Instruction No. 17, the
jury was told that the State could convict the defendant of the
offense of deliberate homicide if it merely proved the following
elements:
1. That the defendant caused the death of James
Allen Clevenger, a human being; and
2. That the defendant acted purposely or
knowingly.
Instruction No. 18 was a mirror reflection of No. 17, except
that it referred to the other victim, Brian Peter Boeder.
In other words, although by statute in Montana, the crime of
deliberate homicide is limited to the knowing or purposeful
causation of someone's death, these instructions, and this Court's
previous decision in Statev. S i g h (1984), 210 Mont. 248, 688 P.2d 749,

allow conviction for deliberate homicide where a defendant acts
knowingly or purposely, even though it was not his purpose to cause
anyone's death and he did not know that death would result from his
conduct. This is an example of judicial activism in the extreme.
I agree with Justice Morrison's dissent to Sigkr wherein he states

that :
By judicial fiat, the law in Montana is that a
defendant who acts with purpose and accidently causes the
 death of another, is guilty of deliberate homicide. In
other words, if one strikes another on the jaw with his
fist, and the one struck falls to the ground striking his
head upon the curbing, and death ensues, the offense is
deliberate homicide.
This case perfectly illustrates the evil inherent in
result-oriented decision making. Defendant Sigler's
conduct may well have resulted in the death of an infant
child. If believed, the State's case leaves little room
for sympathy for Sigler. These inflammatory factual
settings provide the genesis for irrational and
unworkable legal principles.

Based on the facts in this case, correct instructions
regarding the required mental state may not have changed the
outcome. However, this Court's willingness to freely amend the law
in order to accomplish a desired result will have potentially
dangerous consequences in the future. While this may be a popular
approach, I decline to participate.
For these reasons, I dissent to Issues 2 and 7 of the majority
opinion.

Justice William E. Hunt, Sr., joins in the foregoing concurrence
and dissent.
 October 6, 1993

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:

Alexander "Zander" Blewett
HOYT & BLEWETT
501 2nd Ave.
Great Falls, MT 59403

WENDY HOLTON
Attorney at Law
1219 11th Ave.
Helena, MT 59601

HON. MARC RACICOT, Attorney General
Barbara Harris, Assistant
Justice Bldg.
Helena, MT 59620

Mike Salvagni, County Attorney
Gallatin County Attorney's Office
615 South 16th Avenue, Rm 100
Bozeman, MT 59715

ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTQA