State v. Scarborough

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No. 98-314

IN THE SUPREME COURT OF THE STATE OF MONTANA

2000 MT 301

302 Mont. 350

14 P.3d 1202

STATE OF MONTANA,

Plaintiff and Respondent,

v.

THOMAS SCARBOROUGH,

Defendant and Appellant.

APPEAL FROM: District Court of the Twentieth Judicial District,

In and for the County of Lake,

The Honorable C. B. McNeil, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Rebecca T. Dupuis, C. Edward Hayes, Attorneys at Law, Polson,

Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General; Cregg W. Coughlin,

Assistant Attorney General; Helena, Montana

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Kim Christopher, Lake County Attorney; Mitchell A. Young,

Deputy Lake County Attorney; Polson, Montana

Submitted on Briefs: November 4, 1999
Decided: December 5, 2000

Filed:

__________________________________________

Clerk

Justice W. William Leaphart delivered the Opinion of the Court.

¶1 Following a jury trial in the Twentieth Judicial District Court, Lake County, Tom
Scarborough was convicted of deliberate homicide, attempted deliberate homicide, and
robbery. Scarborough appeals his conviction, alleging certain statements he made to police
were improperly admitted at trial, the jury was improperly instructed in the law of
mitigated deliberate homicide and a number of other procedural errors. We affirm the
District Court in all respects.

BACKGROUND

¶2 In the early morning of August 27, 1996, Missoula County 911 received an anonymous
call reporting a homicide at a house near St. Ignatius. The caller reported seeing Tom
Scarborough and his sister-in-law Amy Scarborough load the body of David Willis into
the back of a pickup truck. The caller, Ray Morrison (Morrison), indicated that Tom
Scarborough attempted to kill him as well.

¶3 Tom Scarborough (Scarborough) suffers from schizophrenia. The symptoms of this
disease generally include paranoia, auditory hallucinations, susceptibility to suggestion
and an inability to reason and make judgments. Scarborough receives a monthly injection
of the anti-psychotic drug Haldol to control his symptoms. A blood test taken shortly after
his arrest indicated a concentration of Haldol in Scarborough's blood of three nanograms
per milliliter. Experts testified at trial that this level was at the low end of the therapeutic
range.

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¶4 In 1992, Scarborough voluntarily admitted himself for treatment at the Montana State
Hospital. In 1993, Scarborough was readmitted to the Montana State Hospital for
psychiatric evaluation following his arrest on charges of felony robbery and misdemeanor
drug and paraphernalia possession. This arrest lead to a six-year suspended sentence on
the robbery charge. While all of the medical experts who have examined him agree that
Scarborough suffers from schizophrenia, many have suggested that he exaggerates his
symptoms and uses his schizophrenia as an excuse to avoid responsibility for his actions.

¶5 Raymond Morrison, an itinerant salesman, met Scarborough during the summer of
1996 when he sold his brother Rick Scarborough (Rick) and sister-in-law Amy
Scarborough (Amy) a car. In mid-August Morrison picked up a hitchhiker named David
Willis (Willis) outside Butte. They traveled together in Morrison's camper, eventually
stopping at Rick and Amy's house near Trout Creek on or about August 23, 1996.

¶6 Willis and Morrison partied with the Scarboroughs for about three days. During this
time, Amy approached Morrison for a small loan to buy marijuana. When Morrison
agreed, she noticed that he took a large sum of money--approximately $1,500--from a
drawer in his camper. She remarked "That's a lot of money." Amy later testified that
Scarborough and his brother Rick planned to take Morrison and Willis fishing at a "remote
location" where Scarborough was going to kill them for Morrison's money.

¶7 This plan failed when Morrison and Willis decided to forget about the loan and leave.
As they were packing up, however, Scarborough convinced Morrison to take them to St.
Ignatius where he had a house he wanted to clean up in preparation for sale. He had a car
there that he would sell to pay back the loan. Morrison reluctantly agreed to take them
and, to his surprise, the Scarboroughs immediately began making preparations to leave,
despite the fact that it was already late in the evening. Scarborough brought a .22 rifle with
him which he said was to kill cats that were living in the house.

¶8 When they arrived in St. Ignatius, Scarborough and Amy wanted Morrison and Willis
to sleep in the house. Morrison declined because the house was filthy and his camper was
clean and comfortable. Willis said he would sleep outside, as was his usual practice, but
Scarborough urged him sleep in the upstairs bedroom, suggesting that the neighborhood
was dangerous. Morrison went outside and climbed into the cab-over bed in his camper.
When Willis went inside, Morrison could see through the windows of the house that
Scarborough and Amy were directing Willis upstairs. They headed up the stairs with
Willis behind Amy and Scarborough in the rear, carrying the rifle. Morrison saw
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Scarborough bring the rifle up from his waist. As they passed out of view, Morrison heard
a bang which he believed was a gunshot. It was followed by another bang a short while
later.

¶9 Scarborough then came down the stairs and ran towards the camper. He opened the
screen door to the camper and jumped inside, rifle in hand. He placed the rifle on the table,
telling Morrison he had just shot a cat in the cellar. Morrison knew this to be a lie because
he had seen Scarborough come from upstairs. Scarborough then pointed the rifle at
Morrison who slapped the barrel away. The two struggled over he gun. When Morrison
grabbed the barrel he felt Scarborough pull the trigger and heard a click but the gun did
not fire. When Morrison told Scarborough not to point the gun at him Scarborough said he
was "just kidding" and "just messing with him" and that the gun was not loaded.
Scarborough offered to go back in the house and get Morrison a beer. Morrison agreed just
to get Scarborough to leave.

¶10 Morrison wanted to leave but he was concerned about Willis. He quickly loaded his
things and then walked to the front door of the house. He saw the rifle lying on the stove
just inside the door. When he opened the bolt of the rifle an unfired bullet popped out of
the chamber and rolled onto the stove. He could see that the bullet was a dud because of
the firing pin impression on it. The next bullet in the magazine appeared to be jammed in
the rifle. When Scarborough saw Morrison with the gun he ran over, grabbed the gun and
started working the action. Morrison ran back out of the house and, looking back, saw
Scarborough headed up the stairs. Before he reached his truck, Morrison heard another
gunshot.

¶11 As he climbed back into his truck, Amy came outside and asked Morrison where he
was going. He said that Scarborough had tried to kill him and that he was getting out of
there. When he asked her where Willis was, Amy replied that he was asleep. He told her to
wake him and send him out. Amy went inside but Morrison could see that she did not go
upstairs. When she came back outside she said that Willis was watching TV. Morrison
told her he was leaving and drove away but, after a short while, he doubled back, parking
where he could still see the house.

¶12 In the meantime, Scarborough had backed up his pickup to the front door of the house.
From where he was parked, Morrison watched Scarborough and Amy drag Willis' body
from the upstairs bedroom and throw it in the back of the truck. When Scarborough drove
off Morrison turned off his headlights and followed Scarborough's pickup. He could see

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Willis' body in the back of the truck. When Scarborough slowed and stopped near a bridge
over Mission Creek, Morrison sped around him and drove away. He was scared and kept
driving until he reached the Clinton rest area, east of Missoula, where he called 911 and
reported the incident.

¶13 Amy later testified that Scarborough's pickup had run out of gas near the bridge, that
Scarborough dragged Willis' body out of the back of the truck and down along the creek
and that Scarborough concocted a story for the police. He told Amy to tell police that
Morrison committed the murder and that they were outside working on his pickup when
they heard gunshots and saw Morrison run down the stairs and out of the house.

¶14 Following Morrison's 911 call, Lake County Sheriff Joe Geldrich (Sheriff Geldrich)
and Lake County Sheriff's Detective Mike Sargeant (Detective Sargeant) were dispatched
to the scene. They discovered Scarborough's truck on the Mission Creek bridge. It
appeared that someone had thrown dirt on the bed of the truck in an attempt to cover fresh
blood. Following drag marks leading from the truck, they found Willis' body hidden in the
brush a short distance from the creek. An autopsy revealed that Willis had been shot three
times from close range with a .22 caliber rifle. After finding the pickup and Willis' body,
the officers went to the house where Scarborough answered the door and invited them in.

¶15 The officers noticed what appeared to be drops of fresh blood on the floor. Sheriff
Geldrich asked Scarborough for consent to perform a search. He agreed and accompanied
Detective Sargeant to his car to sign a consent form. On the way, Scarborough volunteered
that the shooting had occurred in an upstairs bedroom, that the rifle used in the crime was
in a garment bag in an upstairs closet and that he had removed the victim's body from the
house and disposed of it near the creek. He identified Morrison as the person who shot
Willis. After signing the consent form, Scarborough was left to wait in the police car while
officers discussed how to proceed. Around this time, Sheriff Geldrich informed Detective
Sargeant that Scarborough had a history of mental illness. The officers then decided to
obtain a search warrant for the house and Scarborough's truck.

¶16 While they were waiting for the warrants, Detective Sargeant and Lake County
Sheriff's Officer Alexander advised Scarborough of his Miranda rights and had a second
conversation with him. Scarborough repeated his earlier story that Morrison had killed
Willis. He told Detective Sargeant that, after he and Amy found the body, he picked up the
gun and placed it inside a garment bag in the bedroom closet. He explained that he hid the
gun and the body because he was afraid of getting in trouble. Detective Sargeant decided

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to obtain a taped statement from Scarborough so he and Officer Alexander took him to the
St. Ignatius Police Station.

¶17 The taped interview lasted approximately one hour. Both Detective Sargeant and
Officer Alexander were present during the interview but only Detective Sargeant asked
questions. Officer Alexander informed Scarborough of his Miranda rights which he
waived. Scarborough repeated his earlier story implicating Morrison. Detective Sargeant
asked Scarborough about his schizophrenia and whether he could have shot Willis during
some kind of "blackout." He asked whether it was possible that drugs or alcohol in
combination with his medication could have affected Scarborough's recollection of events.
Scarborough stated that such things were possible for schizophrenics but he continued to
deny that he had shot Willis. Detective Sargeant continued to explore the possibility that
Scarborough's illness could have some effect on his actions or recollection of events but
never elicited any specific admissions. At the conclusion of the interview, Detective
Sargeant placed Scarborough under arrest. Shortly thereafter, he and Officer Alexander
transported Scarborough by car to the Lake County Jail. During the drive, Scarborough
spontaneously stated "I wish I knew why I shot him," and "maybe someday I will know
why I shot him."

¶18 Scarborough was charged with the deliberate homicide of Willis, attempted deliberate
homicide of Morrison and robbery. At trial, Scarborough maintained that he shot Willis
during a schizophrenic episode and either did not have the requisite mental state for
deliberate homicide or had committed the reduced offense of mitigated deliberate
homicide. After a jury trial, Scarborough was convicted on all counts. He raises the
following issues on appeal:

¶19 1. Did the District Court err when it denied Scarborough's motion to suppress
evidence of statements he made to police?

¶20. Did the District Court err when it instructed the jury that it must acquit Scarborough
on the Deliberate Homicide charge before considering the affirmative defense of
Mitigated Deliberate Homicide?

¶21. Did the District Court err when it denied Scarborough's motion to suppress the
psychiatric report of Drs. Van Hassel and Hill?

¶22. Did the District Court improperly comment on the credibility of Scarborough's expert

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witness?

¶23. Did the District Court err when it denied Scarborough's motions for a mistrial
following testimony regarding his previous criminal history?

¶24. Did the District Court err by failing to consider evidence of mental disease or defect
during sentencing as required by § 46-14-311, MCA?

DISCUSSION

¶25 1. Did the District Court err when it denied Scarborough's motion to suppress
evidence of statements he made to police?

¶26 Scarborough made three sets of statements to the police: at the crime scene, at the St.
Ignatius Police Station during a taped interview, and in a patrol car while he was being
transported from the St. Ignatius Police Station to the Lake County Jail. Only during the
last statement did Scarborough indicate that he had committed the murder.

¶27 Scarborough's motion to suppress evidence of "confessions and admissions" covered
the statements made during interrogation at the St. Ignatius Police Station and the
statements made while in transit to Polson. Both parties submitted proposed findings of
fact and conclusions of law. During a two-day hearing, the District Court reviewed the
audio tape of Scarborough's interview and heard testimony from both the officer who
conducted the interview and mental health experts hired by each party. The District Court
then denied Scarborough's motion to suppress.

¶28 Scarborough contends that statements he made to the officers during his interview
were involuntary products of psychological coercion. He argues that, as a result of his
schizophrenia, he was susceptible to suggestion and any inculpatory statements he made
during the interview were "composed" by the interrogating officer. He contends that
statements he made while being transported to the Lake County Jail "came on the heels" of
the interview and were, thus, also involuntary. The State responds that, although
schizophrenics may, in general, be susceptible to suggestion, there was no evidence that
Scarborough's statements to police were coerced. Rather, considering the "totality of the
circumstances," the State contends that there was ample evidence for the District Court to
conclude that Scarborough's statements, both during the interview and afterwards, were
freely made. We agree.

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¶29 A defendant may move to suppress an admission or confession on the ground that it
was given involuntarily. Section 46-13-301(1), MCA. At trial, the prosecution must prove
by a preponderance of the evidence that the confession or admission was voluntary.
Section 46-13-301(2), MCA. On appeal we review a district court's denial of a motion to
suppress to determine whether the court's findings of fact are clearly erroneous and
whether those findings were correctly applied as a matter of law. State v. Hayworth, 1998
MT 158, ¶ 20, 289 Mont. 433, ¶ 20, 964 P.2d 1, ¶ 20.

¶30 A finding of fact is clearly erroneous if it is not supported by substantial evidence, if
the district court misapprehended the effect of the evidence, or if this Court has a definite
or firm conviction that the district court committed a mistake. State v. Loh (1996), 275
Mont. 460, 475, 914 P.2d 592, 601; State v. Hermes (1995), 273 Mont. 446, 449, 904 P.2d
587, 589; State v. Bower (1992), 254 Mont. 1, 7, 833 P.2d 1106, 1110. Substantial
evidence requires "more than a mere scintilla of evidence, but may be less than a
preponderance of the evidence." Gypsy Highview Gathering System, Inc. v. Stokes
(1986), 221 Mont. 11, 15, 716 P.2d 620, 623. Where determination of voluntariness
depends upon the credibility of witnesses, this Court must defer to the district court judge
who is in a superior position to judge the credibility of those witnesses. State v. Beach
(1985), 217 Mont. 132, 151-52, 705 P.2d 94, 106.

¶31 Use of an involuntary confession against a criminal defendant violates the guarantee
against self-incrimination as well as the right to due process of law. State v. Davison
(1980), 188 Mont. 432, 437, 614 P.2d 489, 492. In determining the voluntariness of
confessions, the emphasis is on whether the confession was the product of free choice or
compulsion. Davison, 188 Mont. at 437, 614 P.2d at 492. This inquiry is a factual question
which must take into account the totality of the circumstances. Loh, 275 Mont. at 475, 914
P.2d at 601.

¶32 While considering the totality of the circumstances, courts have consistently focused
on a number of particularly relevant factors. These include the defendant's age and level of
education; the length and method of the interrogation; whether the defendant was advised
of his or her Miranda rights; the defendant's prior experience with the criminal justice
system and police interrogation; the defendant's background and experience; and the
defendant's demeanor, coherence, articulateness, and capacity to make full use of his or
her faculties. Loh, 275 Mont. at 475, 476, 914 P.2d at 601, 602. In addition, a confession
or admission extracted by any sort of threat or violence, by the exertion of any improper

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influence, or by any direct or implied promises, however slight, has the potential for being
involuntary. Loh, 275 Mont. at 476, 914 P.2d at 602 (citing State v. Phelps (1985), 215
Mont. 217, 224, 696 P.2d 447, 451).

¶33 A number of factors support the District Court's finding that Scarborough's statements
during the interview were voluntary. Scarborough does not dispute that he received ample
Miranda warnings and that he waived his Miranda rights prior to making the statements
he seeks to suppress. The presence of timely and complete Miranda warnings supports a
finding of voluntariness. Beach, 217 Mont. at 152, 705 P.2d at 106. At the time of his
arrest, Scarborough was thirty-nine years old. He had completed the 11th grade and later
obtained a GED. A psychiatric evaluation determined that his IQ was in the average range
albeit on the low side of that range. Scarborough also had prior experience with the
criminal justice system and police interrogation. The interview itself lasted less than an
hour, including two short breaks. Officer Alexander was in the room while Detective
Sargeant conducted the interview but he did not speak. The officers did not physically
coerce Scarborough at any time and never used any improperly manipulative or
threatening interrogation techniques. All of these facts support a finding of voluntariness.

¶34 The single fact that raises doubt about the voluntariness of Scarborough's statements
during the interview is his history of mental illness. He contends that, while there was no
physical coercion, his statements were the result of psychological coercion. Furthermore,
he argues that, as a schizophrenic, he was susceptible to suggestion and his "confession"
was not his own but was actually composed by Detective Sargeant.

¶35 As an example of this psychological coercion, Scarborough cites a section of the
interview in which Detective Sargeant asks whether it was possible Scarborough's
schizophrenia could have affected his actions or recollection of events. While admitting
that it was hypothetically possible, Scarborough consistently denies that he shot Willis:

Q: You mentioned that you had been diagnosed as schizophrenic.

A: Yes.

....

Q: Okay. Another possibility now, and please help me with these possibilities. Is it
possible that you could have shot him and not known it?

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A: That's possible.

Q: Okay.

....

A: I don't think I did.

....

Q: Is it quite possible that you just don't recall shooting him.

A: If I did, I don't remember it.

Q: Okay. But you, if you did, you don't know why.

A: True.

Q: Okay. If you shot him, would you say that it would be linked to your
schizophrenia?

A: It would have to be.

Detective Sargeant clearly suggests the possibility that Scarborough might have
committed the homicide under some kind of schizophrenic blackout. The question is
whether this kind of suggestion constitutes "psychological coercion" under the particular
circumstances of this case. We conclude that it does not.

¶36 A confession obtained under psychologically coercive circumstances is not voluntary.
State v. Allies (1979), 186 Mont. 99, 112, 606 P.2d 1043, 1050. In Allies, the defendant, a
schizophrenic and drug addict, was isolated for more than four hours and subjected to
intensive "good cop-bad cop" style interrogation. He was not informed of his Miranda
rights and was denied access to counsel. Moreover, police interrogators consistently lied to
the defendant about the information they had linking him to the crime, denied him food
and medical attention and subjected him to a sodium amytal "truth serum" test without
benefit of the advice of counsel. In what we then described as "subtle" psychological
coercion, officers told the defendant that his problem was not criminal but medical or

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psychiatric and told him that he could get help, possibly at the State Mental Hospital.
Allies, 186 Mont. at 113-14, 606 P.2d at 1050-51. Under these circumstances, we held that
Allies' confession was not voluntary. Allies, 186 Mont. at 115, 606 P.2d at 1052. However,
the hypothetical leading questions asked of Scarborough during the interview, based on
general symptoms of schizophrenia, are a far cry from the psychological coercion we
found in Allies. We conclude that, under the circumstances of this case, this type of
questioning does not constitute psychological coercion.

¶37 Scarborough next argues that his "confession" during the interrogation was
improperly composed by Detective Sargeant. Scarborough cites Blackburn v. Alabama
(1960), 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 in support of his contention that a
confession composed by law enforcement officials is not voluntary. While the Blackburn
Court found that a confession composed by police officers was involuntary, there are
important differences between Blackburn and the case at hand.

¶38 In Blackburn, a deputy actually drafted the confession in narrative form on the basis
of answers to questions asked by the several officers present. The defendant then signed
this statement two days after the fact. Blackburn, 361 U.S. at 204, 80 S.Ct. at 278, 4 L.
Ed.2d at 246. However, the manner in which the confession was composed was only one
factor in the totality of the circumstances the Blackburn Court used to determine that the
confession was not the "product of any meaningful act of volition." Blackburn, 361 U.S. at
211, 80 S.Ct. at 282, 4 L.Ed.2d at 250. The Court also focused on the fact that at least two
psychiatrists testified that the defendant had most probably been insane and incompetent at
the time he confessed. Blackburn, 361 U.S. at 203, 80 S.Ct. at 278, 4 L.Ed.2d at 246.

¶39 In Scarborough's case, no officer drafted a statement from Scarborough's answers.
Furthermore, unlike the defendant in Blackburn, Scarborough was competent during the
interview. The State's expert witness testified that Scarborough was competent during the
interview and that the interview was not coercive, punitive or manipulative. Scarborough's
own expert testified that schizophrenia does not necessarily limit a person's capacity to
make a voluntary statement. Dr. Rich, Scarborough's psychiatrist, suggested that the
accuracy of Scarborough's statements might be questionable, especially if his
schizophrenia was being inadequately treated, but he never testified that the interview was
coercive. After listening to the tape of the interview, Dr. Virginia Hill testified that
Scarborough appeared lucid and cooperative.

¶40 Even if Scarborough could have established that the interview was coercive, he had

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not admitted anything inculpatory by the time it had ended. Scarborough continued to
assert the fabricated story that Morrison was the killer. Admission of these statements was
not prejudicial to his defense. Scarborough's defense at trial was that he committed
deliberate homicide during an acute psychotic episode-precisely what he accuses the
officer of suggesting to him during the interview. A cause may not be reversed by reason
of any error committed by the trial court against the convicted person unless the record
shows that the error was prejudicial. Section 46-20-701, MCA.

¶41 We find that there exists substantial credible evidence in the record to support the
District Court's finding that Scarborough's statements to the police during the interrogation
were made voluntarily. The District Court's denial of Scarborough's motion to suppress
these statements was not clearly erroneous. Even if statements made during the interview
were involuntary, Scarborough made no inculpatory admissions and their introduction into
evidence was not prejudicial to his defense.

¶42 Finally, Scarborough implies that his statements following the interrogation that "I
wish I knew why I shot him," and "maybe someday I will know why I shot him" came "on
the heels" of a custodial interrogation and, therefore, were as coerced as his statements
made during the interview, itself. As stated above, we have found that the interview was
not coercive. While these final admissions are clearly inculpatory, the record indicates that
they were made spontaneously and without compulsion. The District Court's denial of
Scarborough's motion to suppress these admissions was not clearly erroneous.

¶43. Did the District Court err when it instructed the jury that it must acquit Scarborough
on the Deliberate Homicide charge before considering the affirmative defense of
Mitigated Deliberate Homicide?

¶44 Scarborough was charged with deliberate homicide and attempted deliberate
homicide. At trial he asserted the affirmative defense of mitigated deliberate homicide and
mitigated attempted deliberate homicide; admitting that he committed the crimes but
contending that he did so under extreme emotional stress for which there is a reasonable
explanation or excuse. Prior to settlement of instructions, the State offered an instruction
that directed the jury that it must first acquit Scarborough of deliberate homicide before
they could consider mitigated deliberate homicide:

The defendant is charged in Count I with Deliberate Homicide. In your deliberations
you should consider the charge of Deliberate Homicide first, and that all twelve (12)

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of you find the defendant either guilty, not guilty by reason of mental disease or
defect, or not guilty of that charge.

In the event you find the defendant guilty of Deliberate Homicide, or not guilty by
reason of mental disease or defect, you need go no further on Count I and shall
proceed to Count II.

In the event you find the defendant not guilty of Deliberate Homicide in Count I,
you must then consider the reduced offense of Mitigated Deliberate Homicide. All
twelve (12) of you must then find the defendant guilty, not guilty by reason of
mental disease or defect, or not guilty of this charge. When you have done so, you
have reached a verdict on Count I and shall then proceed to Count II. The defendant
cannot be convicted of both Deliberate Homicide and Mitigated Deliberate
Homicide.

¶45 This instruction was a modified version of Montana Criminal Jury Instruction No. 1-
011 (1990), which is intended to instruct juries on the relationship between a charged
offense and any lesser included offenses. The jury received a similar instruction for the
attempt charge. Over Scarborough's objection, the District Court adopted these as its
Instructions Nos. 14 and 15.

¶46 On appeal, Scarborough argues that by requiring the jury to reach a verdict on
deliberate homicide before considering mitigated deliberate homicide these instructions
effectively preclude the jury from considering his affirmative defense. The State does not
argue the correctness of the instructions but contends that Scarborough was not prejudiced
by any error because Scarborough offered no evidence to support a finding that he
committed the crimes while under the influence of extreme mental or emotional stress. We
agree with Scarborough that Instruction Nos. 14 and 15 were incorrect statements of the
law. However, we conclude that this error provides an insufficient basis to reverse
Scarborough's conviction for deliberate homicide.

¶47 We review jury instructions in criminal cases to determine whether the instructions, as
a whole, fully and fairly instruct the jury on the applicable law. State v. Patton (1996), 280
Mont. 278, 286, 930 P.2d 635, 639 (citing State v. Brandon (1994), 264 Mont. 231, 237,
870 P.2d 734, 737). However, to constitute reversible error, the district court's ruling on
the jury instructions must prejudicially affect the defendant's substantive rights. State v.
Beavers, 1999 MT 260, ¶ 33, 296 Mont. 340, ¶ 33, 987 P.2d 371, ¶ 33 (citing State v.

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Goulet (1997), 283 Mont. 38, 41, 938 P.2d 1330, 1332; State v. Bradley (1995), 269 Mont.
392, 395, 889 P.2d 1167, 1168).

¶48 A person commits the offense of deliberate homicide when he or she "purposely or
knowingly causes the death of another human being." Section 45-5-102(1), MCA. A
defendant can be convicted of mitigated deliberate homicide when he or she 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 a reasonable explanation or excuse.
Section 45-5-103(2), MCA. As should be clear from this statutory language, a finding that
the defendant satisfied the elements of deliberate homicide is a prerequisite to a
conviction on the mitigated offense.

¶49 The District Court instructed the jury to consider Scarborough's affirmative defense of
mitigated deliberate homicide only after an acquittal on the deliberate homicide charge;
that is, only after finding that Scarborough did not purposely or knowingly cause the death
of another human being. However, there is no logical way the jury could acquit on
deliberate homicide and then consider mitigated deliberate homicide. To do so would
require finding, first, that the defendant did not "purposely or knowingly cause the death
of another human being." and, second, that he did so but only under the influence of
extreme mental or emotional stress.

¶50 Likewise, there is no way, under these instructions, that the jury could convict on
deliberate homicide and then consider mitigated deliberate homicide. In the event that they
found the defendant guilty of deliberate homicide, Instruction 14 required the jury to "go
no further on Count I and proceed to Count II." Under this instruction a finding that
Scarborough purposely and knowingly killed another human being precluded
consideration of the next step; whether the acts were committed under the mitigating
circumstances of extreme mental or emotional stress. In either case, whether the jury
found sufficient evidence to convict on deliberate homicide or not, the instructions
effectively precluded consideration of Scarborough's affirmative defense. As such, they
did not fully and fairly instruct the jury on the applicable law.

¶51 Our task, then, is to consider whether this error prejudicially affected Scarborough's
substantive rights. We conclude that it did not. We find no evidence in the record that
Scarborough met the burden of proof required for his affirmative defense and conclude
that the "acquittal first" instruction could have had no effect on the outcome of the trial.

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¶52 Mitigated deliberate homicide is an affirmative defense. Section 45-5-103(2), MCA
(1995). To establish this defense, the defendant must prove, by a preponderance of the
evidence, that he acted under the influence of extreme mental or emotional stress. Section
45-5-103(2), MCA. A preponderance of the evidence is such evidence that, when weighed
against opposing evidence, establishes the elements of the defense as more probably true
than not. See 2 McCormick on Evidence § 339 (4th ed. 1992).

¶53 Scarborough contends that extensive evidence exists to support his affirmative
defense of mitigation. To support this contention he cites testimony of his psychological
expert, Dr. Rich who, Scarborough asserts, "concluded that 'there is every reason to
believe that [Scarborough's] schizophrenia would have played a very significant role' in
the commission of the offenses." A review of the transcript reveals, however, that Dr. Rich
did not testify that Scarborough committed the acts while under the influence of extreme
mental or emotional stress. Rather, he offered general statements on the impact
schizophrenia has on those who suffer from it. He declined to make any specific
conclusion about the role of Scarborough's schizophrenia in the crimes and never gave a
professional opinion about mental or emotional stress. During a direct examination on
Scarborough's capacity to form the mental state of purposely or knowingly, Dr. Rich
testified to the general effect that schizophrenia has on those who suffer from it:

Q. [Mr. Hayes, Counsel for Scarborough]: And do you believe . . . that
[Scarborough's] schizophrenia may have played a role or influenced his actions?

A. [Dr. Rich]: Well, I know that schizophrenia really interferes in so many things. I
talked earlier about the higher levels of what we call executive functions and
judgment and abstract reasoning. And schizophrenia just plays havoc with an
individual's ability to figure something out and to know what's the right thing to do.

They tend to act impulsively and tend to have difficulty in looking ahead and to
thinking about what are my options and "If I do this, this will happen. And if I do
that, then what will be the outcome of those kinds of things." So, yes, I think that
there is every reason to believe that his schizophrenia would have played a very
significant role somehow. [Emphasis added.]

Scarborough cites the preceding testimony as support for his contention that he murdered
Willis while under the influence of extreme mental or emotional stress. However, Dr.
Rich's next sentence makes clear that his testimony in no way supports this contention:

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[Dr Rich]: Now, the reason for my hesitation was that . . . it just seems to me there
are so many variations on really what might be the truth at this point it's hard for me
to be any more specific than what I just said about it interfering.

¶54 Contrary to Scarborough's assertion on appeal, Dr. Rich never testified to anything
more than the fact that schizophrenics generally suffer from a variety of mental
impairments and that these may have played some, nonspecific, role in Scarborough's
actions. He did not testify that Scarborough suffered from extreme mental or emotional
stress or that he acted under its influence when he murdered Willis or attempted to murder
Morrison.

¶55 In contrast, the State presented substantial evidence that Scarborough's actions were
not committed under the influence of extreme mental or emotional stress. The State's
expert witnesses concluded that Scarborough was not acting under the influence of
psychotic motivation at the time of the murder. Both Amy and Morrison testified that
Scarborough committed the crimes in a planned, calculated and deliberate manner with the
purpose of robbing Morrison. Scarborough's own statements to the police following the
murder, first blaming Morrison and then admitting the murder, lend additional credence to
the State's position.

¶56 The defense of mitigation requires Scarborough to prove by a preponderance of the
evidence that he committed deliberate homicide while actually under the influence of
some extreme mental or emotional stress, not simply that he and other schizophrenics
suffer from emotional problems in general. Scarborough did not meet this standard of
proof. Not only did he fail to present sufficient evidence to overcome the clear and
substantial evidence offered by the State, he provided no evidence to establish the
elements of his affirmative defense as more probably true than not. Therefore, we
conclude that the "acquittal first" instruction could have had no prejudicial effect on the
outcome of the trial. The District Court's ruling on Instruction Nos. 14 and 15, while
incorrect, does not constitute reversible error. We affirm.

¶57 3. Did the District Court err when it denied Scarborough's motion to suppress the
psychiatric report of Drs. Van Hassel and Hill?

¶58 Prior to trial, Scarborough asked the court to order an evaluation of his mental
condition pursuant to § 46-14-202, MCA. The purpose of the exam was to determine
whether, because of mental disease or defect, Scarborough was competent to assist with

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his defense and whether he had the capacity to act purposely or knowingly at the time of
the crime. The District Court granted Scarborough's motion and ordered him transported
to Montana State Hospital in Warm Springs where he was examined by Dr. John Van
Hassel, Staff Psychologist, and Dr. Virginia Hill, Staff Psychiatrist (Van Hassel and Hill).
As part of their examination, Van Hassel and Hill reviewed the State's files on the
Scarborough investigation. Their report to the District Court concluded that Scarborough
was probably not responding to psychotic motivation at the time of the crime, that he had
the capacity to act knowingly and purposely and that he was capable of assisting in his
defense. Copies of the report were filed with the District Court and made available to both
parties.

¶59 In December, 1996, shortly after Van Hassel and Hill filed their report, Scarborough's
counsel moved the District Court for a second mental exam. They based this motion on
their continued "concern regarding the Defendant's fitness to proceed and his capacity to
have the requisite mental state at the time of the alleged offense." The State did not oppose
this motion and a second exam was conducted by Dr. Susan Sachsenmaier.

¶60 In April of 1997, the State requested an evaluation of Scarborough by its own expert,
Dr. William Stratford, pursuant to § 46-14-204, MCA. Scarborough objected, arguing that
the State should be limited to the evaluation conducted by Van Hassel and Hill at the
Montana State Hospital. He reasoned that, because they had access to information
collected by the State during the course of its investigation, Van Hassel and Hill were
acting as the State's expert witnesses. The District Court overruled the objection and
granted the State's motion. In October, 1999, Scarborough renewed his objection to the
State's examination with a "motion to suppress" the testimony of Van Hassel and Hill. The
District Court denied this motion.

¶61 Scarborough contends that the District Court erred when it allowed the State to have
Scarborough examined by its chosen expert and when it denied his motion to suppress the
evaluation made by Van Hassel and Hill. In the first case, he argues that because Van
Hassel and Hill reviewed State files as part of their investigation, the State should have
been forced to adopt their report as its own. By granting the State's motion for an
examination by Dr. Stratford and later admitting the testimony of Van Hassel and Hill,
Scarborough argues that the State was allowed two psychological evaluations to his one.
He contends that this "stacking of the deck" denied him a fair opportunity to present his
mental disease or defect defense. The State responds that Scarborough, in fact, presented
the testimony of two expert witnesses at trial and there was no unfairness. After a careful

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review of the record we conclude that, while there may have been some minor mistakes in
the way evaluations were ordered, there was no unfairness. We affirm.

¶62 The District Court's decision to allow evaluation of the defendant by the State's expert,
pursuant to § 46-14-204, MCA, presents a question of law which we review for
correctness. Carbon Co. v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d
680, 686. We treat the District Court's denial of Scarborough's motion to suppress the
testimony of Drs. Van Hassel and Hill as a ruling on the admissibility of evidence. Our
standard of review for a district court's evidentiary rulings is abuse of discretion. Busta v.
Colombus Hosp. Corp. (1996), 276 Mont. 342, 353, 916 P.2d 122, 128. Absent a showing
of such abuse we will not overturn the district court's decision.

¶63 Once the issue of the defendant's fitness to proceed has been raised by the defense, the
prosecution, or the court itself, the court must designate a qualified individual to examine
and report upon the defendant's mental condition. Section 46-14-202, MCA. The report
must include an opinion as to whether the defendant suffers from a mental disease or
defect and, if so, whether the defendant has the capacity to understand the proceedings
against him and assist in his defense. Sections 46-14-206(1)(a) through (c), MCA. In
addition, when directed by the court, the report may also include an opinion as to the
defendant's capacity to have whatever mental state that is an element of the charged
offense. Section 46-14-206(1)(d), MCA. The State is entitled to a separate examination of
the defendant by its chosen expert but only after the defense either "discloses the report of
the examination to the prosecution or files a notice of the intention to rely on a defense of
mental disease or defect." Section 46-14-204, MCA. The defense must provide this notice
of intent within ten days of receiving the psychological report. Section 46-15-323, MCA.

¶64 The Van Hassel and Hill report was disclosed directly to the prosecution by the
Montana State Hospital. Both parties received copies on or about November 7, 1996.
Scarborough received the first part of his second evaluation, by Dr. Sachsenmaier, on or
about April 30, 1997. Under § 46-14-204, MCA, Scarborough should have provided
notice of his intent to rely on a mental disease or defect defense within ten days of his
receipt of the Sachsenmaier report--approximately May 10, 1997. Scarborough actually
filed his notice on October 3, 1997. Therefore, at the earliest, the State was entitled to an
independent exam on May 10, 1997, the date by which Scarborough should have filed his
intent to rely on a defense of mental disease or defect. As we noted above, the District
Court granted the State's motion for an independent examination on April 30, 1997, before
Scarborough either disclosed Dr. Sachsenmaier's report or filed his notice. We conclude,

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therefore, that the District Court erred when it authorized the State to conduct an
independent evaluation on April 30, 1997. Nonetheless, we hold that Scarborough was not
prejudiced by this error.

¶65 Scarborough's claim of prejudice is based on the premise that the State should have
been required to adopt the Van Hassel and Hill evaluation as its own. Then, counting the
Van Hassel and Hill report as the State's, he rests his claim of unfairness on the State's
opportunity to present two experts to his one. He argues that admitting the Van Hassel and
Hill report, in addition to that of Dr. Stratford, gave the State an unfair advantage during
the confession suppression hearings and at trial. We disagree.

¶66 We can find no basis in law for Scarborough's argument that the State was bound by
the Van Hassel and Hill report. First, this evaluation was requested by Scarborough,
himself. Second, use of State files does not convert the evaluation from one requested by
the defense to one requested by the State. Section 46-14-202(3), MCA, provides "in the
examination, any method may be employed that is accepted by the medical or
psychological profession for the examination of those alleged to be suffering from mental
disease or defect." Scarborough's own medical expert, Dr. Joseph Rich, testified that he
requires all witness statements and police reports in order to perform his evaluations. This
is exactly what the State provided. There is no suggestion in the record, and Scarborough
does not argue, that the State provided only selected information or otherwise attempted to
influence the content of the evaluation. Rather, consistent with its standard procedure in
these cases, the State provided Van Hassel and Hill with its entire file to use as their
professional judgment saw fit. Consequently, we find no justification for attributing the
Van Hassel and Hill report to the State.

¶67 Scarborough's claim of resulting unfairness also lacks merit. Not only does he provide
no legal authority for his position, but the record refutes his factual assertion that the State
had more expert witnesses. Scarborough had two separate evaluations by defense experts;
Dr Sachsenmaier and Dr. Rich. Thus, even attributing the Van Hassel and Hill evaluation
to the State, Scarborough had the benefit of an equal number of pretrial evaluations. Nor
did the State have more expert witnesses at trial. Scarborough called both Dr. Rich and Dr.
Sachsenmaier. The State called Dr. Stratford as its sole expert witness and used the results
of the Van Hassel and Hill report during its cross-examination of Dr Rich.

¶68 We can find no factual or legal basis for Scarborough's claim that he was denied the
opportunity to present his mental disease or defect defense. While there may have been

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some minor errors in the timing of the State's evaluation, we find no prejudice to
Scarborough from that error. In addition, Scarborough has made no showing that the
District Court abused its discretion when it denied his motion to suppress the Van Hassel
and Hill report. Absent that showing, we must affirm the District Court's ruling.

¶69 4. Did the District Court improperly comment on the credibility of Scarborough's
expert witness?

¶70 One of Scarborough's expert witnesses, Dr. Susan Sachsenmaier, testified that
Scarborough had no recollection of events during the night of the murder. To rebut this
testimony, the State questioned her about the detailed and specific account Scarborough
reported to her during his psychological interview. Throughout this cross-examination, Dr.
Sachsenmaier was argumentative with both the court and the prosecutor, avoiding direct
questions and attempting to testify about Scarborough's reported hallucinations. Her
failure to respond prompted an exchange between the prosecutor and the witness to limit
her answers to the questions asked. When the witness continued to be non-responsive, the
District Court admonished Dr. Sachsenmaier to "please answer the question asked of you
and only the question asked of you so we can finish sometime."

¶71 When questioning resumed, the prosecutor continued to ask questions about whether
Scarborough had reported certain specific actions on the night of the murder. Dr.
Sachsenmaier continued to testify with nonresponsive answers about hallucinations. This
led to an exchange between counsel and an objection that the prosecutor was being
argumentative. In overruling this objection, the District Court stated "[i]t is argumentative
but the witness is being most difficult."

¶72 Scarborough contends that the two statements "so we can finish sometime" and "the
witness is being most difficult" were improper comments on the credibility of his main
expert witness and undermined his right to present a defense of mental disease or defect.
He claims that he made no objection to the judge's comments at trial because of the "harsh
tenor of the exchange between Dr. Sachsenmaier and the trial judge, the ineffectiveness of
any curative instruction, and a practical consideration that defense counsel may alienate
the jury . . . by objecting to the trial judge." The State points out that these excuses do not
relieve defense counsel from the obligation to object at trial. The State argues that no
objection was made to these comments at the time and, therefore, the issue has been
waived. We agree.

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¶73 Our review of alleged error is limited by statute and the common law doctrine of plain
error review. This Court may review the verdict or decision and any alleged error objected
to which involves the merits or necessarily affects the judgment. Section 46-20-104(2),
MCA (emphasis added). "Failure to make a timely objection during trial constitutes a
waiver of the objection . . . ." Section 46-20-104(2), MCA. This Court also recognizes a
common law plain error doctrine that, under certain narrow circumstances, permits review
of alleged errors not objected to at trial. State v. Finley (1996), 276 Mont. 126, 132-38,
915 P.2d 208, 212-15.

¶74 The purpose of stating an objection at trial is not merely to allow the district court to
correct itself, if warranted by the circumstances, but to preserve the issue for appellate
review. This Court has made it clear that where a defendant does not object at trial to the
remarks and conduct of the trial judge, the issue will not be considered upon appeal. State
v. Martin (1987), 226 Mont. 463, 467-68, 736 P.2d 477, 480. In Martin, the defense
argued that its failure to object at trial to comments made by the judge was based on the
fear that an objection would have created more prejudice on the part of the jury. We held
that this view does not relieve the obligation of counsel to object at trial. Martin, 226
Mont. at 467-68, 736 P.2d at 480.

¶75 Conceding his failure to make a timely objection, Scarborough asks us to review the
issue under the common law doctrine of plain error. In Finley, we held that this Court
may, at its discretion, review claimed errors that implicate a criminal defendant's
fundamental constitutional rights, even if no contemporaneous objection is made at trial.
We made clear, however, that this exception is only available in exceptional circumstances
and where failure to review the claimed error may result in a manifest miscarriage of
justice, may leave unsettled the question of the fundamental fairness of the trial
proceedings, or may compromise the integrity of the judicial process. Finley, 276 Mont. at
137, 915 P.2d at 215. In determining the applicability of the common law plain error
doctrine, we consider the totality of the circumstances of each case. Finley, 276 Mont. at
134, 915 P.2d at 213.

¶76 We find no basis in the record to apply the common law plain error exception to § 46-
20-104(2), MCA. Even if the statements made by the District Court could be construed as
commentary on Dr. Sachsenmaier's credibility, refusal to address Scarborough's claim will
not result in a manifest miscarriage of justice, leave unsettled the question of the
fundamental fairness of the trial, or compromise the integrity of the judicial process.
Therefore, we decline to review this issue under the common law plain error doctrine.

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Whatever his rationale for doing so, Scarborough failed to preserve the issue for appeal by
making a timely objection to the District Court's comments as required by § 46-20-104(2),
MCA. Consequently, we hold that Scarborough has waived his right to contest this issue
on appeal.

¶77 5. Did the District Court err when it denied Scarborough's motions for a mistrial
following testimony regarding his previous criminal history?

¶78 Prior to trial, Scarborough filed a motion in limine to preclude introduction of prior
crimes evidence. The State acquiesced in this motion stating that it had no intention of
raising the defendant's prior criminal history during its case-in-chief. On the first day of
trial, Morrison, testifying for the State, inadvertently disclosed that Scarborough was on
probation. Counsel for the State had been leading the witness through the events of the
night of the crime when, in response to the State's question: "What did you do then?"
Morrison gave the following answer:

A. [Morrison]: I got in the truck. And then Amy came out the door. And I said - she
came up to the window and she said, "Where are you going?" And I said, "I'm
getting out of here. I think your brother-in-law tried to kill me." And she said, "Oh,
he's on probation and stuff. He's not even suppose to have a gun." I said, "I don't
care." [Emphasis added.]

Scarborough objected and moved for a mistrial, claiming that evidence of his probation
violated the court's order excluding prior crimes testimony and irrevocably tainted the
proceeding. After hearing arguments in chambers, the District Court denied the motion for
mistrial and issued the following curative instruction:

Ladies and gentlemen of the jury, shortly before we recessed yesterday afternoon,
the witness Raymond Carl Morrison testified that Amy Scarborough said that the
defendant was on probation and was not suppose to have guns. You are instructed
that there is no evidence in this case to support such a statement and you are to
disregard it.

¶79 Later, the fact that Scarborough was on probation was put before the jury a second
time. As part of its case-in-chief the State sought to introduce the audio recording of
Scarborough's interrogation at the St. Ignatius Police Station. Without objection by
defense counsel, the tape was admitted and played for the jury. In this recording,

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Scarborough explains that he hid Willis' body to avoid getting into trouble. The tape
contains the following passage:

Q. [Det. Sargeant]: Why did you think you were going to get in trouble?

A. [Scarborough]: I've been in trouble before. I'm on probation. I'm not sure why we
did what we did.

Scarborough again moved for a mistrial, based on violation of the pre-trial order in limine.
The District Court again denied the motion. This time, because the defense had failed to
object and because it was Scarborough's own sworn testimony, the court declined to offer
a curative instruction.

¶80 Scarborough argues on appeal that Amy's statement, testified to by Morrison, that he
was on probation and the introduction of Scarborough's own sworn statement to that effect
during his police interrogation, fatally prejudiced the jury and made a fair trial impossible.
The State responds that Scarborough's motions for a mistrial were properly denied. In the
first instance, Morrison's statement was inadvertent and properly dealt with by the court
through its curative instruction. In the second instance, although aware of the contents of
the taped interview, Scarborough failed to object to its admission into evidence. We
conclude there was no reasonable possibility that testimony of Scarborough's probation
contributed to his conviction and affirm the ruling of the District Court on both motions
for mistrial.

¶81 This Court reviews a grant or denial of a motion for mistrial to determine whether the
district court abused its discretion. Harding v. Deiss, 2000 MT 169, ¶ 19, 3 P.3d 1286,
¶ 19, 57 St.Rep. 696, ¶ 19; State v. Soraich, 1999 MT 87, ¶ 17, 294 Mont. 175, ¶ 17, 979
P.2d 206, ¶ 17; State v. Partin (1997), 287 Mont. 12, 17-19, 951 P.2d 1002, 1004-05. A
district court's determination of whether to grant a motion for a mistrial must be based on
whether the defendant has been denied a fair and impartial trial. Harding, ¶ 19; Partin,
287 Mont. at 16, 17, 951 P.2d at 1004-05. The general rule is that, where there is a
reasonable possibility that inadmissible evidence might have contributed to the conviction,
a mistrial is appropriate. Partin, 287 Mont. at 18, 951 P.2d at 1005-06. In determining
whether a prohibited statement contributed to a conviction, we consider the strength of the
evidence against the defendant, the prejudicial effect of the testimony and whether a
cautionary jury instruction could cure any prejudice. Partin, 287 Mont. at 18, 951 P.2d at
1005-06.

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¶82 In Partin, we held that inadvertent testimony of a defendant's prior arrest was
sufficiently prejudicial to warrant a mistrial. Partin, 287 Mont. at 22, 951 P.2d at 1008.
Partin was convicted of forgery after the State's handwriting expert inadvertently testified
about his prior arrest record. On appeal we reversed, basing our decision on the
"inherently prejudicial" effect of defendant's prior arrests in light of the generally "weak
and conflicting evidence" against Partin. Partin, 287 Mont. at 20, 21, 951 P.2d at 1007.
Where evidence of guilt was more compelling, we have upheld a district court's denial of a
motion for a mistrial following inadvertent introduction of prior crimes evidence. State v.
Ford (1996), 278 Mont. 353, 361, 926 P.2d 245, 249; State v. Walker (1996), 278 Mont.
346, 353, 930 P.2d 60, 64. In both of these cases we held that, in light of the
overwhelming evidence of guilt, general references to the defendants' prior criminal
history did not contribute to their convictions.

¶83 Based on our holdings in Ford and Walker, and in light of the overwhelming evidence
of Scarborough's guilt, we find that there is no reasonable possibility that inadvertent
admission of Scarborough's probation contributed to his conviction. Both Morrison and
Amy testified that Scarborough murdered Willis and attempted to murder Morrison.
Overwhelming physical evidence linked Scarborough to the crimes. Scarborough himself
admitted the killing when he told police "I wish I knew why I shot him." Set against this
evidence, we find that testimony of Scarborough's probation could have had little
prejudicial effect.

¶84 The possibility that Scarborough was prejudiced by testimony of his probation is
further reduced by the nature of his defense. Prior crimes evidence is prejudicial because
of the danger that a jury may determine the defendant's guilt or innocence on the basis of
past acts rather than evidence related to the charged offense. Scarborough's primary
defense was not that he did not commit the acts but, rather, that he did so under the
influence of extreme mental or emotional stress or that he did so but lacked the required
mental state to be found guilty of deliberate homicide and attempt. Under these
circumstances, we find little danger that Scarborough's defense, based not on commission
of the criminal acts but on issues of mental state and mitigating circumstances, could have
been prejudiced by evidence of his probation.

¶85 Based on the record before us, we conclude that there was no reasonable possibility
that references to Scarborough's probation might have contributed to his conviction or so
prejudiced the jury as to deny Scarborough a fair and impartial trial. We hold, therefore,
that the District Court did not abuse its discretion when it denied Scarborough's motions

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for a mistrial.

¶86 In conjunction with the issue of prior crimes evidence, Scarborough argues that the
District Court improperly modified its pretrial order in limine when it allowed the State to
cross-examine Scarborough's expert witness on the criminal acts that prompted
Scarborough's 1993 psychological exam. He cites State v. Doll (1985), 214 Mont. 390,
397, 692 P.2d 473, 476, for the proposition that "the purpose of pretrial orders is to
prevent surprise and permit counsel to prepare their case for trial on the basis of the
pretrial order" and that "modification of a pretrial order regarding the admissibility of
evidence three days into trial constitutes reversible error."

¶87 Scarborough's reliance on Doll is misplaced. First, we find no evidence in the record
that the District Court "modified" its pretrial order in limine. Rather, it allowed the State to
cross-examine Scarborough's witness on information that she relied on to develop her
opinion. Scarborough, himself, opened the door to prior bad acts when his expert witness
based her opinion on the circumstances of Scarborough's 1993 robbery conviction. Doll
addresses a completely different situation; one in which a trial court first excluded other
crimes evidence and then allowed the State to introduce such evidence during its case-in-
chief. Scarborough can hardly claim "surprise" and inability to "prepare his case for trial"
when it was his own witness who opened the door to this evidence. Therefore, we find no
merit in Scarborough's claim that the District Court improperly modified its pretrial order
excluding prior crimes evidence.

¶88 6. Did the District Court err by failing to consider evidence of mental disease or defect
during sentencing as required by § 46-14-311, MCA?

¶89 The District Court sentenced Scarborough to life in prison without parole on both
Counts I and II, deliberate homicide and attempted deliberate homicide. On Count III,
robbery, the District Court sentenced Scarborough to 40 years. Each count carried an
additional ten-year sentence enhancement for use of a weapon and all were to run
consecutively. Scarborough claims that this sentence is improper because the District
Court failed to first consider whether a mental disease or defect rendered him unable to
conform his behavior to the requirements of the law as required by § 46-14-311, MCA,
and thereby failed to apply the proper sentencing guidelines of § 46-14-312(2), MCA.

¶90 This Court reviews a criminal sentence for legality only. State v. Montoya, 1999 MT
180, ¶ 15, 295 Mont. 288, ¶ 15, 983 P.2d 937, ¶ 15. Thus, our review is confined to

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whether the sentence is within the parameters provided by statute.

¶91 Whenever a criminal defendant claims to have suffered from a mental disease or
defect at the time of the offense, the sentencing judge must consider any relevant evidence
presented at trial, along with any additional evidence considered necessary, to determine if
that mental disease or defect "rendered the defendant unable to appreciate the criminality
of [his] behavior or to conform [his] behavior to the requirements of law." Section 46-14-
311, MCA. Upon such a finding, the district court may ignore any minimum sentence
prescribed by law for the offense and must sentence the defendant to the custody of the
Department of Public Health and Human Services for placement in an appropriate
correctional or mental health facility. Section 46-14-312(2), MCA.

¶92 Scarborough claims that, instead of making the independent findings required by § 46-
14-311, MCA, the District Court merely adopted the jury's finding that Scarborough did
not lack the capacity to act purposely or knowingly by reason of mental disease or defect.
He implies that, had it not been for this error, he properly would have been sentenced
under the guidelines of § 46-14-312(2), MCA. We disagree.

¶93 The District Court clearly stated:

With respect to the defendant's request . . . , that the defendant be sentenced
pursuant to 46-14-312 and 46-14-311, that would require a finding by the Court that
the defendant was suffering from a mental disease or defect that rendered the
defendant unable to appreciate the criminality of the defendant's behavior or to
conform the defendant's behavior to the requirements of the law. The Court cannot
so find.

The jury found, and the Court concurs, that the defendant acted knowingly and
purposely. The Court heard conflicting testimony from all three psychiatrists and
psychologists. And the jury was afforded the opportunity of acquitting the defendant
or finding him not guilty by reason of mental disease or defect and did neither. And,
in lieu thereof, found that the defendant acted knowingly or purposely and found
him guilty. The Court sees no reason to interfere with that finding and, in fact,
concurs with those findings.

Scarborough focuses on references to the jury's findings within this passage as indicative
of the District Court's wholesale adoption of those findings for its own. It is clear,

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however, that the District Court, independently considered the issue and, like the jury,
concluded that Scarborough did not suffer from a mental disease or defect. We find that
the District Court complied with the requirements of § 46-14-311, MCA, and conclude,
therefore, that the sentence was not improper.

¶Based on our review of the record and the foregoing analysis we affirm the District
Court's ruling on all issues.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER

/S/ JAMES C. NELSON

/S/ TERRY N. TRIEWEILER

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