NO. 92-593
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
STATE OF MONTANA,
Plaintiff and Respondent,
v.
GERALD THOHAS DAVIDSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Robert W. Holmstrom, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Arnold A. Berger, Berger Law Firm,
Billings, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Elizabeth L. Griffing, Assistant Attorney
General, Helena, Montana
Dennis Paxinos, Yellowstone County Attorney,
Billings, Montana
Submitted on Briefs: August 4, 1994
Decided: September 14, 1994
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
Defendant Gerald Davidson was charged by information filed in
the District Court of the Thirteenth Judicial District in
Yellowstone County with deliberate homicide in violation of
§ 45-5-102, MCA. During pretrial proceedings, Davidson filed a
notice of intent to rely on the defense of mental disease or
defect. Therefore, pursuant to 5 46-15-323, MCA, the District
Court ordered Davidson to provide the State with copies of reports
from those witnesses who would be called in support of that
defense. Davidson refused to exchange the reports and was
precluded by order of the District Court from offering evidence of
mental disease or defect. Following a trial by jury, Davidson was
convicted of deliberate homicide. He appeals the District Court's
order excluding evidence of mental disease or defect. We affirm
the District Court.
The issue on appeal is:
Do Montana's reciprocal discovery statutes, specifically,
§ 46-15-323, -328, and -329, MCA (1991), violate the Fifth, Sixth,
and Fourteenth Amendments of the Federal Constitution and
Article 11, Section 25, of the Montana Constitution?
FACTUAL BACKGROUND
Defendant Gerald Davidson was involved in a sometimes
turbulent relationship with Pamela Moberly, a 20-year-old Billings
woman. Following an argument, and Pamela's attempt to leave the
relationship, he strangled Pamela and shot her at least two times
in the head.
On September 11, 1990, the State filed its information
charging Davidson with deliberate homicide.
On October 12, 1990, Davidson moved for a psychiatric
evaluation. The District Court granted the motion on October 26,
1990, and an examination was ordered by Dr. Donald Harr. Dr. Harr
was directed to submit a report to the District Court in
triplicate, including the elements set forth in 5 46-14-203, MCA
(1989). After several delays, Dr. Harr filed his report with the
District Court on January 23, 1991.
Davidson was iater examined by three additional psychiatrists
or psychologists. On October 15, 1991, Davidson gave notice under
5 46-14-201, MCA (1989) (now 5 46-15-323(3) in relevant part), of
his intention to rely on mental disease or defect as a defense.
The notice did not specify the names and addresses of the persons
he intended to call as witnesses at the trial to support his
defense as required by 5 46-14-201 MCA (1989) (now 5 46-15-323(4)
in relevant part). On October 24, 1991, the State moved for
disclosure of the names, addresses, and any statements or reports
that are required to be disclosed under 5 46-15-323, MCA (1991).
At an omnibus hearing on October 25, 1991, defense counsel
advised the District Court that he would not provide the
information requested by the State's motion. Defense counsel
stated that he believed disclosing the documents, written reports,
and medical examiners' statements could not be done without
disclosing privileged or incriminating information. Recognizing
Davidson's concern that some of the information contained in the
witness reports may be privileged or incriminating, the District
Court ordered Davidson to avail himself of provisions in
5 46-15-328, MCA, regarding any information that was
non-discoverable because of privilege or otherwise. The District
court alerted counsel to the fact that 5 46-15-328, MCA, provides
for protective orders and for excising any information that may
incriminate the defendant, or is cloaked with a privilege.
Davidson still refused to submit the reports. After this issue was
submitted on briefs, the District Court ordered Davidson to turn
the reports over to the State.
After failing to comply with the District Court's order,
Davidson sought a writ of supervisory control from this Court.
Davidson's petition argued that the District Court's disclosure
order violated the due process clause of the Fourteenth Amendment
to the United States Constitution. On January 7, 1992, this Court
upheld the District Court's order, with a slight modification that
limited the order to persons who would be called as witnesses at
trial. Davidson still refused to comply with the discovery order.
On March 13, 1992, the State moved in limine to preclude
evidence at trial from Davidson in support of the defense of mental
disease or defect. On April 3, 1992, at oral argument regarding
the State's motion in limine, defense counsel advised the District
Court that it should grant the State's motion. Counsel stated that
he felt the statutes requiring disclosure were unconstitutional,
and therefore, would not provide the requested information.
Davidson was personally advised by the District Court that his
counsel's actions would deprive him of a possible defense at trial.
Davidson conferred with his attorney and agreed that he understood
that non-disclosure would eliminate his right to rely on mental
disease or defect as a defense at trial. Accordingly, on April 7,
1992, the District Court granted the State's motion in limine and
precluded Davidson from offering evidence in support of the defense
of mental disease or defect.
Davidson was ultimately tried by a jury and convicted of
deliberate homicide. On September 16, 1992, Davidson filed his
notice of appeal.
DISCUSSION
Do Montana's reciprocal discovery statutes, specifically
5 5 46-15-323, -328, and -329, MCA (1991), violate the Fifth, Sixth
and Fourteenth Amendments of the Federal Constitution and
Article 11, Section 25, of the Montana Constitution?
When we consider whether a statute is constitutional, there is
a strong presumption in favor of the statute's validity. The party
challenging a statute's constitutionality has the burden of proving
it unconstitutional. State ex rel. Dreher v. Fuller (1993), 257 Mont. 445,
448, 849 P.2d 1045, 1047. In determining whether the District
Court properly imposed sanctions by precluding Davidson from
producing evidence of mental disease or defect, this Court
considers whether the District Court clearly abused its discretion.
The statutory scheme provides that the district court *mayt1
disallow testimony, hence it is a matter left to the district
court's discretion. Absent a clear abuse of discretion, the
5
district court's decision must be upheld. State v Waters (1987), 228
.
Mont. 490, 495, 743 P.2d 617, 621.
We note at the outset that Davidson raised nearly the exact
same issues in his initial petition for writ of supervisory control
that he now raises on appeal. This Court, on January 7, 1992,
accepted supervisory control and, with slight modification, upheld
the District Court's disclosure order. Thus, the issue was
substantively decided and Davidson could be precluded from
relitigating this issue. See State v. Zimmeman (1977), 175 Mont. 179,
185, 573 P.2d 174, 177-78. However, since our prior decision was
issued in summary fashion, we now further discuss the issues raised
by Davidson's appeal.
Davidson asserts that §§ 46-15-323( 3 ) , (4), and ( 6 ) , and -329,
MCA (1991), violate the Fifth, Sixth, and Fourteenth Amendments of
the United States Constitution, and Article 11, Section 25, of the
Montana Constitution. The challenged portions of 46-15-323, MCA
(1991), state:
(3) Within 10 days after receiving a report of the
defendant's mental condition from a psychiatrist or
psychologist or at a later time as the court may for good
cause permit, the defendant shall provide the prosecutor
with a written notice of the defendant's intention to
introduce evidence at trial of the defense that due to a
mental disease or defect, the defendant did not have a
particular state of mind that is an essential element of
the offense charged.
(4) The notice must specify for each defense the
names and addresses of the persons, other than the
defendant, whom the defendant may call as witnesses in
support of the defense, together with all written reports
or statements made by them concerning the results of
physical examinations, scientific tests, experiments, or
comparisons, except that the defendant need not include
a privileged report or statement unless he intends to use
the privileged report or statement, or the witness who
made it, at trial.
....
(6) Within lo days after the omnibus hearing in
district court or at a later time as the court may for
good cause permit, the defendant shall make available to
the prosecutor fortesting, examination, or reproduction:
(a) the names, addresses, and statements of all
persons, other than the defendant, whom the defendant may
call as witnesses in the defense case-in-chief, together
with their statements;
(b) the names and addresses of experts whom the
defendant may call at trial, together with the results of
their physical examinations, scientific tests,
experiments, or comparisons, including all written
reports and statements made by these experts in
connection with the particular case: and
(cj all papers, documents, photographs, and other
tangible objects that the defendant may use at trial.
Davidson did provide notice of his intent to introduce
evidence of mental disease or defect as required by subsection (3),
but did not comply with subsection (4) which requires a defendant
to provide the names and addresses of the witnesses and their
written reports or statements. Since he did not comply with the
discovery requirements, the District Court imposed sanctions under
5 46-15-329, MCA (1991). That section states that a district
court may impose any sanction it finds just under the
circumstances: among the options listed are precluding a party from
calling a witness, offering evidence, or raising a defense that is
not disclosed. Because Davidson did not provide the requisite
items, the District Court granted the State's motion in limine
which precluded him from offering evidence of mental disease or
defect at trial.
This Court previously affirmed Montana's reciprocal
discovery provisions against attack on the same constitutional
grounds in State ex rel. Carkulis v. Dktrict Courl (1987), 229 Mont. 265, 746
P.2d 604, appealdismissed, Carkulisv. Montana (1988)' 487 U.S. 1201, 108
S. Ct. 2839, 101 L. Ed. 2d 877. We likewise upheld Montana's
discovery statutes in subsequent cases. See State v. Miller (1988), 231
Mont. 497, 757 P.2d 1275 (prohibiting defendant from offering
testimony of a private investigator for impeachment because
defendant failed to disclose the private investigator's report);
State v. Kills on Top (1990), 241 Mont. 378, 787 P.2d 336 (holding that
defendant could not claim error in part because he did not request
the district court to review the witness reports in question which
would allow the district court to review the statements and excise
incriminating information).
In Carkulis. the defendant refused to disclose materials he was
ordered to disclose. The district court held that based on his
refusal to provide discovery, the evidence sought could not be
introduced at trial. The defendant filed a petition for writ of
supervisory control with this Court. Carkulis claimed that the
reciprocal discovery statutes violated his rights against
self-incrimination based on the Fifth Amendment, Article 11,
Section 25, of the Montana Constitution, and due process rights
guaranteed by the Fourteenth Amendment. We concluded, relying in
part on Stateexrel. Sikora v. District Coun (1969), 154 Mont. 241, 462 P.2d
897, that not all evidence obtained from a defendant is privileged
under the Fifth Amendment.
In Sikora, this Court discussed the constitutionality of
5 95-1803(d), RCM (1947), which was repealed but substantially
.
incorporated into 5 46-15-323, MCA (1991) Sikora dealt specifically
with the prior discovery statutes in cases involving the defenses
of insanity, self-defense, and alibi. We reasoned that giving
notice of a defense does not incriminate a defendant because the
Constitution does not protect a defendant from consequences of
claiming a defense. Nor does the Constitution assure a defendant
the right to defend in a manner that denies the State a chance to
examine the truthfulness of a defendant's position. Sikora, 462 P.2d
at 899. The purpose of reciprocal discovery provisions is to
provide notice and prevent surprise. Sikora, 462 P.2d at 899.
Citing previous cases, we recognized that a criminal trial is not
considered a game of concealment, but rather a search for the
truth. Sikora, 462 P.2d at 901.
The previous discovery statute, as discussed in Sikora, 462 P.2d
at 902, did not infringe upon the privilege against self-
incrimination because it "in no manner compels a defendant to give
evidence other than that which he will voluntarily and without
compulsion give at trial.It A defendant's privilege is not abridged
if the defendant chooses to remain silent or not call any witnesses
regarding his or her sanity.
In Carkulis, we also relied on Williarnsv. Florida (1970), 399 U . S .
78, 90 S. Ct. 1893, 26 L. Ed. 2d 446, which upheld a Florida
statute requiring the defense to disclose an alibi witness to the
state before trial. The Court in w i l h n s based its decision on the
theory of ptaccelerated
disclosure." It reasoned that because at
the trial the defendant would have to reveal his alibi and
witnesses; accelerating disclosure does not affect constitutional
rights against self-incrimination. William, 399 U.S. at 85 (stating
that the Fifth Amendment does not grant a defendant a
constitutional right to wait until after the prosecutiontscase in
chief before announcing the nature of his defense). Partly because
without disclosure the prosecution may suffer from surprise, and
partly because Montana's discovery statutes provide protections for
defendants, such as protective orders found in 5 46-15-328, MCA,
the Carkulis Court held that a defendant must provide the State a
list of all witnesses he intends to call at trial. Carkufis, 746
P.2d at 609.
Discussing the issue of whether or not a defendant must
surrender copies of statements obtained by the defendant, and
statements of witnesses the defendant would call at trial, we
acknowledged in Carkulis that two states had refused to allow
pretrial disclosure of witness lists or statements. Carkulis, 746
P.2d at 610 (citing Scott v State (Alaska 1974), 5 1 9 P.2d 774; In re
.
Misetter (Cal. 1985), 698 P.2d 637.)
Davidson reasserts arguments relying on those cases. However,
both of those cases were based on state constitutional law, not
united States Supreme Court decisions. Thus, Alaska and California
decided to interpret their constitutions more broadly than the U.S.
Supreme Court had construed the Fifth Amendment in William. In
those cases, the courts disallowed pretrial exchange of witness
lists and witness statements because they felt it was testimonial
and stated such information may tend to be incriminating in some
cases. Carkulis, 746 P.2d at 610. However, as we did not find
defendant's reliance on those cases persuasive in Carkulis, we do not
find Davidson's reliance persuasive here. In fact, Misener, is no
longer the law in California. See lzazaga v. Superior Court (Cal. 1991),
815 P.2d 304 (upholding the prosecution's motion to compel formal
discovery in a rape and kidnapping case and recognizing
California's discovery provisions as a two-way street).
In Carkulis, we noted that our analysis applied equally to
pretrial disclosure of prospective expert witnesses. We were
careful then, and we reiterate now, that district courts should
exercise caution because examinations by experts require the
defendant to communicate freely and candidly. As a result, an
expert's notes or reports may contain possibly incriminating
information to which the State is not entitled. Carkulis, 746 P.2d
at 611 (citing Mnlloy v. Hogan (l964), 378 U.S. 1, 84 S. Ct. 1489, 12
L. Ed. 2d. 653. In Carkuli~, 746 P.2d at 611, we were particularly
careful to mention that psychologists' and psychiatrists' reports
may contain incriminating statements, which should, after incamera
inspection, be excised from the material produced.
We reiterate the importance of Montana's protective order
provisions in 5 46-15-328, MCA. We do not hold that a criminal
defendant is required to disclose an incriminating statement. In
this case, however, Davidson was specifically advised of his right
to avail himself of the statute's protective provisions and
declined. Instead, he refused to provide any information.
Davidson personally agreed with this procedure after his
counsel decided to challenge the constitutionality of Montana's
statutes, despite counsel's knowledge of the Carkulis decision.
Because Davidson did not attempt to utilize the protective order
provisions, his claims must fail. See Kills on Top, 7 8 7 P.2d at 344
(stating that because defendant did not request a protective order,
and the district court record did not contain evidence of
prejudice, that defendant's argument was merely academic).
Davidson also relies on Smith v. McCormick (9th Cir. 1990)~914
F.2d 1153. In that case, the defendant requested the court to
reconsider his previous guilty plea where he requested the death
sentence, and requested a psychiatric evaluation. The court
granted the evaluation on the condition that the results be
provided to the court. At issue in Smith were questions of an
indigent defendant's due process rights, and whether they were
violated because psychiatric assistance was conditioned upon
disclosure. The court's discussion focused on whether or not the
defendant was entitled to a competent psychologist or psychiatrist
who could conduct appropriate exams and assist in preparing the
defense without being required to disclose his or her opinion to
the State or the court. It did not involve discovery rules which
relate to witnesses a defendant intends to call at trial.
We are not here confronted with the same issue. First, Smith
did not involve a challenge based on Fifth Amendment rights.
Second, Smith did not involve a challenge to Montana's statutes that
require disclosure of a psychiatric report after notice of mental
disease or defect. Third, nothing here prevented Davidson from
being examined by psychiatrists of his choice. In fact, the court
appointed Dr. Harr to examine Davidson at his first request.
Furthermore, Davidson was examined by several other psychiatrists
and psychologists. Thus, Davidson was entitled to a neutral and
independent psychiatrist to assist and evaluate whether or not the
mental disease or defect claim was advisable.
Montana's reciprocal discovery provisions allow a defendant to
be examined by as many psychiatrists as a defendant desires to
prepare a defense. He or she must only disclose statements of
those that are to be called as witnesses at trial. Defendants are
allowed to communicate freely with a psychiatric expert and need
disclose nothing unless the expert is to be called as a witness.
See United Slates v Alvarez
. (3d Cir. 1975), 519 F.2d 1036, 1046.
Furthermore, even in Smith, 914 F.2d at 1160 (citing United States v.
Noblts (1975), 422 U.S. 225, 240, 95 S. Ct. 2160, 2171, 45
L. Ed. 2d. 141, 154-55, n. 15), the court recognized that the
attorney-client privilege extends only to the "point of testimonial
use of that comm~nication.~~ hold that the discovery provisions
We
found at g 46-15-323, MCA, do n ~ violate the Fifth and Fourteenth
t
Amendment's of the United States Constitution, or Article 11,
Section 25, of the Montana Constitution.
Davidson also argues that his Sixth Amendment rights were
violated. Davidson fails to specify which of his Sixth Amendment
rights, nonetheless, Sixth Amendment arguments were also litigated
and decided in Carkulis. The United States Supreme Court has
recognized in Nobles, 422 U.S. at 240-41, that the Sixth Amendment
does not grant the right to assert half truths and is subject to
legitimate demands of the adversarial system. Citing Nobles, in
Carkulis we agreed that the Sixth Amendment does not confer the right
to give testimony free from the demands of the adversarial system.
Carkulis, 746 P.2d at 616. We also conclude that the discovery
provisions found at § 46-15-323, MCA, do not violate the Sixth
Amendment of the United States Constitution.
Davidson next challenges the constitutionality of 5 46-15-329,
MCA, which allows a district court to impose sanctions on a
defendant who fails to comply with discovery requirements. Again,
Carkulis is dispositive.
Once it is determined, as we have determined here,
that reciprocal pretrial disclosures subject to
constitutional or statutory limitations are permissible,
it goes hand in hand with that determination to say that
the District Court may exercise its judicial discretion
in enforcing such permissible disclosures.
Carkulis, 746 P.2d at 616. Likewise, in later opinions we recognized
that 1 46-15-329, MCA, is consistent with the goal of reciprocal
discovery to "enhance the search for truth." See Waters, 743 P.2d at
620. As mentioned above, this Court defers to the district court's
discretion regarding the imposition of sanctions. Waters, 743 P.2d
at 621; State v Van Voast (lggl), 247 Mont. 194, 202, 805 P.2d 1380,
.
1385,
In this case, Davidson repeatedly refused to comply with
orders by the District Court and from this Court requiring him to
comply with the discovery provisions. Therefore, we conclude that
in an effort to enforce the reciprocal discovery statutes, the
District Court did not abuse its discretion by excluding evidence
of mental disease or defect.
Accordingly, we affirm the District Court and hold that
Montana's reciprocal discovery statutes for criminal proceedings,
specifically S S 46-15-323(3), (4), and (ti), and -329, MCA, do not
violate the Federal or Montana Constitutions.
We concur:
September 14, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
Arnold A. Berger
Berger Law Firm, P.C.
P.O. Box 1914
Billings, MT 59103
Dennis Paxinos, County Attorney
Shelley Briney , Deputy
P.O. Box 35025
Billings, MT 59107
Hon. Joseph P. Mazurek, Attorney General
Elizabeth L. Griffing, Assistant
Justice Bldg.
Helena, MT 59620
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA