No. 94-210
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
APPEAL FROM: District Court of the Twelfth Judicial District,
In and for the County of Hill,
The Honorable Thomas M. McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Thomas J. Sheehy, Attorney at Law, Big Sandy,
Montana
Lawrence A. LaFountain, Attorney at Law, Great
Falls, Montana
For Respondent:
Honorable Joseph P. Mazurek, Attorney General; John
P. Connor, Jr., and Michael S. Wellenstein,
Assistant Attorneys General, Helena, Montana
Dave Rice, Hill County Attorney, Havre, Montana
Submitted on Briefs: July 28, 1995
Decided: August 24, 1995
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
A jury in the District Court for the Twelfth Judicial
District, Hill County, found Jose Delos Santos, II, guilty of
felony theft and two counts of deliberate homicide. Santos
appeals. We affirm.
The issues are:
1. Did the District Court err in finding Santos competent to
stand trial?
2. Did the court err by admitting expert testimony elicited
by the prosecution in violation of 5 46-14-213(2), MCA?
3. Did the court err in refusing to allow the defense to play
at trial certain videotapes of Santos?
4. Was Santos deprived of a constitutional right to an
insanity defense by the court's refusal to give three jury instruc-
tions offered by the defense?
On the morning of March 4, 1993, the bodies of Walter and
Thelma Gebhardt were found in their home just west of Havre,
Montana. They had each been hit repeatedly in the head with a
blunt object while they slept. They were sixty-one and sixty-seven
years old, respectively. A bloodstained claw hammer was found in
their living room, and their 1984 El Camino was missing.
Several adult children of the Gebhardts had visited their
parents the night before they were killed. Based upon their state-
ments, local law enforcement authorities began looking for Jose
Delos Santos, II.
2
Santos had been staying at the Gebhardts' home for several
weeks. He had arrived in Havre by freight train, inadequately
dressed for the winter weather, and knocked on the Gebhardts' door.
Although he was a complete stranger to them, the Gebhardts took him
into their home. Santos was not at the Gebhardts' home when their
bodies were found, although he had been there the night before.
On March 5, 1994, Santos was apprehended outside Virgelle,
Montana, in the Gebhardts' El Camino. While he was being booked at
the Chouteau County Jail, Santos said that he had changed the
license plates on the El Camino and that he had killed the
Gebhardts.
Santos subsequently gave a statement describing the murders in
detail. He told the officers that he killed Walter Gebhardt
because Walter had put him on the spot by asking him to show a
picture of his girlfriend to visiting Gebhardt family members. He
explained that he killed Walter by hitting him in the head with the
claw hammer, and that he then killed Thelma by striking her with
the hammer and choking her. He described burning documents which
identified the owner of the El Camino and a pair of Walter's pants
in the Gebhardts' living room fireplace "to destroy the evidence."
He described switching the rear license plate on the El Camino with
one from another vehicle before leaving the Gebhardts' home after
the murders. He took with him his high school equivalency certifi-
cate, his birth certificate, food, clothing, and a letter from his
girlfriend.
Prior to trial, Santos moved to be declared incompetent to
stand trial. For purposes of that motion, he was examined by a
psychiatrist on behalf of the State and a psychologist on behalf of
the defense. After hearing the testimony of both experts and
reviewing the written report prepared by the State's psychiatrist,
the court denied the motion.
The case was transferred to Cascade County for trial on a
defense motion for change of venue. After a week-long trial at
which the central issue was Santos's mental state, a jury found him
guilty on all charges. Santos appeals.
Issue 1
Did the District Court err in finding Santos competent to
stand trial?
The standard for a district court's decision on whether a
criminal defendant is fit to proceed to trial is set forth at 5 46-
14-103, MCA:
A person who, as a result of mental disease or defect, is
unable to understand the proceedings against the person
or to assist in the person's own defense may not be
tried, convicted, or sentenced for the commission of an
offense so long as the incapacity endures.
The trial court must determine "whether [the defendant] has suffi-
cient present ability to consult with his lawyer with a reasonable
degree of rational understanding--and whether he has a rational as
well as factual understanding of the proceedings against him."
State v. Austad (1982), 197 Mont. 70, 78, 641 P.2d 1373, 1378,
citing Dusky v. United States (1960), 362 U.S. 402, 402, 80 S.Ct.
788, 789, 4 L.Ed.2d 824, 825. This Court's standard of review is
4
whether substantial evidence supports the district court's decision
that the defendant was fit to proceed to trial. State v. Statczar
(1987), 228 Mont. 446, 456, 743 P.Zd 606, 613.
Santos's attack on the District Court's decision is based on
the adequacy of the court's findings rather than on the sufficiency
of the evidence. Under the above standard of appellate review,
however, we must look to the sufficiency of the evidence.
The State's expert witness was Dr. William Stratford, a
forensic psychiatrist. Before offering his opinion that Santos was
competent to stand trial, Dr. Stratford conducted a thorough
examination of Santos and submitted a detailed report on his
competency. His examination included reviewing the sheriff's
reports, a police report, autopsy reports, witness interviews and
statements, Santos's interview with the arresting officers, and
Santos's Seattle police department rap sheet. He also reviewed
Santos's records from the Seattle Mental Health Institute and a
summary of Santos's contacts with a Seattle drop-in center. Dr.
Stratford spoke by phone with Santos's father. In addition, he
conducted interviews with Santos over the course of two days and
administered eighteen different tests to him.
Dr. Stratford reported that Santos was twenty-four years old
and had been living as a "street person" in Seattle before he came
to Montana. Dr. Stratford admitted that, to a lay person, Santos's
record may look bizarre. He stated, however, that the record
revealed no clear-cut history of mental illness.
5
Dr. Stratford stated in his report that Santos has some
intrusive paranoid ideas but that "it is also likely that much of
the time he has learned to bring these issues up for effect knowing
that they do influence health care examiners in general," and "[hle
certainly is not above or incapable of lying about issues such as
this and is motivated to go to a hospital and certainly not to a
prison or jail." At the hearing, Dr. Stratford stated, "I think
it's also important to indicate that I think Mr. Santos is capable
of emphasizing points like that consciously to attempt to impress
someone that he's very disturbed." He reported that Santos had
obtained elevated results on a test he administered to detect
malingering and deception.
Dr. Stratford concluded that Santos suffers from a schizotypal
personality disorder as well as being chemically dependent.
However, Santos did well on a test to determine his competency to
relate to and cooperate with his attorney and to fully understand
the nature and quality of the proceedings against him. Dr.
Stratford concluded his report to the court by stating that he
believed Santos was competent to stand trial.
Santos's expert witness, psychologist Fredrick Wise, did not
submit a written report to the court. His testimony at the
competency hearing conflicted with that of Dr. Stratford in that
Dr. Wise found Santos unresponsive and unable to comprehend what
was going on. He concluded that Santos suffered from schizophrenia
and was not fit to proceed to trial. Santos contends that the
6
court erred in ignoring Dr. Wise's testimony and in not attempting
to reconcile or assess the positions of the two experts.
The testimony of one witness is sufficient to prove a fact.
State v. Radi (1978), 176 Mont. 451, 462, 578 P.2d 1169, 1176.
Additionally, the weight and credibility of witnesses are exclu-
sively the province of the trier of fact. In the event of
conflicting evidence, it is within the province of the trier of
fact to determine which will prevail. State v. Flack (1993), 260
Mont. 181, 189, 860 P.2d 89, 94. In this instance, the trier of
fact was the District Court.
Santos was able to discuss with Dr. Stratford his complete
history, including the homicides. That ability cast doubt on
Santos’s claims that he was not able to converse with his counsel,
cooperate with his counsel, respond to his counsel's questions, or
recall facts. Santos was cooperative with Dr. Stratford, providing
an array of information, including extensive information about the
charged offenses. As the District Court noted at the competency
hearing, there was no reason why Santos's counsel could not also
get the same information.
Dr. Stratford's expert testimony and report clearly supported
a finding that Santos was able to consult with and assist his
counsel and that he had a rational as well as a factual understand-
ing of the proceedings against him. We conclude that the District
Court did not abuse its discretion in finding that Santos was fit
to proceed to trial. We therefore affirm the court's determina-
tion.
7
Santos also asserts that the court should have reassessed its
competency determination because of evidence presented after the
competency hearing. He cites Drape v. Missouri (1975), 420 U.S.
162, 181, 95 S.Ct. 896, 908, 43 L.Ed.2d 103, 119, concerning the
court's continuing obligation to be on guard for changes in a
defendant's competence throughout the trial.
Santos refers to a report by Dr. Jack Hornby, a psychiatrist
who prescribed medication for him after the competency hearing.
Santos claims Dr. Hornby stated he felt Santos was not competent to
stand trial. That comment is not found in the copy of Dr. Hornby's
report provided to this Court. In his report, Dr. Hornby specifi-
cally noted that he had "not been asked,to evaluate for competen-
cy. I' Further, Dr. Hornby's report was submitted to the court in
support of a motion to continue the trial date to allow Santos
additional time on his medication, not in connection with a
determination of competency.
At the beginning of trial and at the close of the State's
case, the defense moved to be allowed to have Santos testify in
connection with his competency to proceed. In denying these
motions, the District Court pointed out that, at the competency
hearing several weeks earlier, it had heard a tape-recording of
Santos's interview with Dr. Wise. The court also stated that it
had been observing Santos during trial and that the proposed
testimony would be self-serving. After reviewing the record, we
conclude that no abuse of discretion has been shown in the denial
of the motions to put Santos on the stand.
8
Santos also cites Dr. Wise's trial testimony that he saw
Santos after the medication was prescribed by Dr. Hornby and that
although Santos was calmer and easier to keep on track in conversa-
tion, his thoughts were still very disordered. Dr. Wise gave
examples of statements by Santos which he felt indicated a lack of
the requisite mental state to stand trial. However, after
reviewing the record, we conclude that Dr. Wise did not testify to
any statements markedly different from those which he had previous-
ly reported at the competency hearing.
We conclude that Santos did not present additional evidence
requiring the court to reverse its earlier decision that Santos was
fit to proceed to trial. Accordingly, that claim is denied.
As a final argument under this issue, Santos points out that
Dr. Stratford's written report did not include a specific finding
as to whether Santos was seriously mentally ill, as required under
§ 46-14-206(1)(b), MCA. This argument is raised for the first time
on appeal. As such, we will not consider it. See State v.
Arlington (1994), 265 Mont. 127, 151, 875 P.Zd 307, 321.
Issue 2
Did the court err in admitting expert testimony elicited by
the prosecution in violation of § 46-14-213(Z), MCA?
Section 46-14-213(2), MCA, provides:
When a psychiatrist or licensed clinical psychologist who
has examined the defendant testifies concerning the
defendant's mental condition, the psychiatrist or
licensed clinical psychologist may make a statement as to
the nature of the examination and the medical or psycho-
logical diagnosis of the mental condition of the defen-
dant. The expert may make any explanation reasonably
serving to clarify the expert's examination and diagno-
9
sis, and the expert may be cross-examined as to any
matter bearing on the expert's competency or credibility
or the validity of the expert's examination or medical or
psychological diagnosis. A psychiatrist or licensed
clinical psychologist may not offer an opinion to the
jury on the ultimate issue of whether the defendant did
or did not have a particular state of mind that is an
element of the offense charged.
The mental states which were an element of the offenses charged
against Santos are "knowingly" and "purposely" as defined at § 45-
2-101(33) and (581, MCA. In particular, "purposely" is defined
under the statute and was defined for the jury in Instruction No.
23 as "[a] person acts purposely with respect to a result . if
it is the person's conscious object to engage in that conduct or to
cause that result."
The first testimony challenged by Santos as violative of § 46-
14-213 izj , Ivim, occurred on cross-examination of defense witness
Dr. Wise. The prosecuting attorney asked Dr. Wise if he recalled
Santos's statements that he had taken the victims' vehicle, had
attempted to change the license plate and had driven the vehicle
out of town. He then asked if Dr. Wise believed that Santos was
"aware of where he was" and "aware of what he was doing" when he
engaged in the described behavior. Dr. Wise replied that he
assumed Santos did have such an awareness. The following colloquy
then occurred:
Q. [Mr. Connor, the prosecuting attorney] At least by
the defendant's own words, those acts would certainly
demonstrate a purpose of the defendant to carry out
specific abilities, would they not?
A. [Dr. Wise] I would say that, yes.
10
Q. And they at least demonstrate a conscious objective
on his part to engage in a particular form of conduct, do
they not?
A. Yes.
Q. And that it was his purpose, by his own description,
to cause a particular result; correct?
A. Based on the interview, yes.
Also, in rebuttal testimony, the prosecution asked its own expert,
Dr. Stratford, whether "going out of the house, changing the
license plates on the car and taking the car to another location"
were indications of Santos's capacity to act purposely or knowing-
ly. Dr. Stratford answered that they were.
The State defends this line of questioning as not directly
relating to Santosls mental state during the homicides. However,
in so arguing, the State overlooks the charge of theft of the El
Camino. The elements of that charge were described to the jury in
Instruction No. 20 as "[al person commits the offense of theft if
he purposely or knowingly obtains or exerts unauthorized control
over property of the owner, and has the purpose of depriving the
owner of the property." Clearly, the above testimony relates
directly to whether Santos possessed the requisite mental state of
"knowingly" or "purposely" as to the theft of the El Camino. We
conclude that the above testimony violated the 5 46-14-213 (2), MCA,
prohibition as to the charge of theft of the El Camino.
Under 5 46-20-104(2), MCA, this Court may review any error
which necessarily affects the judgment. However, 'I [nlo cause shall
be reversed by reason of any error committed by the trial court
against the appellant unless the record shows that the error was
11
prejudicial." Section 46-20-701(l), MCA. The trial transcript
before us exceeds 700 pages in length; much of it was conflicting
testimony from Drs. Wise and Stratford. Overall, the evidence
against Santos was overwhelming. On the record before us, we
conclude that the erroneous admission of the above brief questions
and answers constituted harmless error.
Santos also challenges the State's questions to Dr. Stratford,
which again occurred in rebuttal, as set forth below:
Q. [Mr. Connor] Doctor, without giving me specific
instances, were the materials you read, in your profes-
sional opinion, replete with examples of conduct by the
defendant which amounted to conscious deliberate behav-
ior?
A. [Dr. Stratford] Yes, sir.
Q. And which amounted to conscious object to carry out
particular actions?
A. That's correct.
Santos further challenges Dr. Stratford's comments on rebuttal
concerning assessment of a person's ability to act knowingly and
purposely as grounds for reversal.
The basis for these challenges is the 1991 commission comment
to 5 46-14-213(2), MCA. The comment notes that the last sentence
of the subsection was added by the 1991 Montana Legislature, and
states:
[T]he statute contains an additional statement expressly
barring an expert opinion before a jury on the ultimate
issue of the defendant's mental state or mental capacity.
The last portion of this comment, concerning mental capacity, goes
beyond the language of the statute. Where a statute is clear on
its face, a court is not to go beyond the facial language in
interpreting the statute. Section l-Z-101, MCA; Love11 v. State
Comp. Mut. Ins. Fund (1993), 260 Mont. 279, 285, 860 P.2d 95, PP.
We decline to read into § 46-14-213(2), MCA, a prohibition on
testimony by expert witnesses concerning a criminal defendant's
mental capacity. Questions and expert opinions on a criminal
defendant's mental capacity are not prohibited under the above
statute; what the statute prohibits are expert opinions on the
ultimate issue of whether the defendant actually possessed the
requisite mental state at the time the offense was committed.
We believe that this narrow reading of the statute supports
the purpose of expert testimony as an aid to the finder of fact,
based upon the expert's particular knowledge or experience, in
determining the fact at issue. See Rule 702, M.R.Evid. The
Supreme Court of Connecticut faced an analogous issue in State v.
Forrest (Corm. 1990), 578 A.2d 1066. In that case, the issue was
whether a mental health expert may give opinion testimony concern-
ing a criminal defendant's capacity for self-control. Loss of
self-control was an element of the defense of extreme emotional
disturbance, which was a factual question before the jury. In
ruling that the expert could give an opinion on the defendant's
capacity for self-control, the court reasoned as follows:
[Iln construing [the statute] narrowly, we have assumed
that the legislature enacted the statute to accomplish a
reasonable and rational result. A broad construction of
the statute, taken to its extreme, would arguably bar
experts from fully testifying to their diagnoses of a
defendant and to their resulting professional opinions,
from which the jury could infer the defendant's state of
mind at the time of a particular act. Jurors would thus
be left without adequate expert assistance in making an
informed decision upon the ultimate issue of the defen-
13
dant's mental state, the precise issue expressly reserved
to them by [the statute].
Forrest, 578 A.2d at 1070 (citations omitted). The above comments
by the Connecticut Supreme Court are equally applicable to the
question here before us. See also Vitauts M. Gulbis, Annotation,
"Admissibility of expert testimony as to whether accused had
specific intent necessary for conviction," 16 A.L.R.4th 666 (1982).
The objection to questions and testimony on behalf of the
prosecution concerning Santos's capacity to form the requisite
mental states must further be viewed in the context of prior
defense questions. The defense asked its expert Dr. Wise whether
Santos had the capacity to understand his actions, to always know
what he is doing, to remember what he had done, and to act in an
intentionai or a conscious manner. As the State points out, the
defense thereby opened the door to questions about Santos's
capacity to form the requisite mental state.
To recapitulate, we hold that the District Court erred in
allowing expert testimony in violation of § 46-14-213(2), MCA,
concerning Santos's state of mind during the charged offense of
theft of the Gebhardts' El Camino. We conclude, however, that such
error was harmless. As to the convictions of deliberate homicide,
we hold that the court did not err in admitting expert testimony
into evidence.
Issue 3
Did the court err in refusing to allow the defense to play at
trial certain videotapes of Santos?
14
At trial, the defense proposed to play and introduce into
evidence two videotapes of interviews of Santos which were made by
defense counsel shortly after his arrest. The defense offered the
videotapes as evidence of Santos's mental state. The State
objected on hearsay grounds. The defense then offered to have
Santos take the stand for cross-examination. The court refused to
admit the proposed evidence.
Santos argues that because the videotapes were not offered to
prove the truth of the matters asserted therein, they did not fit
the Rule 801(c), M.R.Evid., definition of hearsay--that is, they
were not offered to show that Santos's statements therein were
true, but to show his poor state of mind.
Our standard of review on issues of admissibility of evidence
is whether the district court abused its discretion. State v. Oman
(1985), 218 Mont. 260, 263, 707 P.2d 1117, 1119. The State points
out that, in rejecting the admission of the videotapes, the
District Court noted that there were no safeguards to insure their
integrity and that they were not staged by Santos. The probative
value of the videotapes is suspect considering the circumstances
under which they were made, including that Santos was not under
oath. Their probative value is further limited in that they at
best demonstrate Santos's mental state several days after the
offenses occurred, not at the time of the crimes. Yet further
support for the court's refusal to admit the tapes into evidence is
Santos's failure to comply with the discovery rule requiring
disclosure of the tapes to the prosecution prior to trial. &
15
§ 46-15-323(6), MCA. We conclude that the District Court did not
abuse its discretion by denying admission into evidence of the
videotapes.
Issue 4
Was Santos deprived of a constitutional right to an insanity
defense by the court's refusal to give three jury instructions
offered by the defense?
Santos offered three instructions to the jury which would have
allowed him to rely upon an insanity defense. All three proposed
instructions were refused by the District Court.
Montana law allows consideration of a defendant's mental
disease or defect at three stages of a criminal proceeding. First,
prior to trial the defendant may be examined to determine whether
he is able to understand the proceedings against him or to assist
in his own defense. Section 46-14-103, MCA. Second, a defendant
may introduce evidence of mental disease or defect at trial
whenever it is relevant to prove that he did not have a state of
mind which is an element of the offense charged. Section 46-14-
102, MCA. Third, a defendant who has been convicted of a crime may
claim during sentencing that at the time of the offense he was
suffering from mental disease or defect which rendered him "unable
to appreciate the criminality of [his] behavior or to conform [his1
behavior to the requirements of law." Section 46-14-311, MCA.
Santos exercised all three of these options.
The constitutionality of the above statutory framework has
been repeatedly upheld by this Court. There is no constitutional
16
right to an insanity defense as expressed in the instructions
proposed by Santos. _, State v. Cowan (1993), 260 Mont. 510, 861
See
P.2d 884, cert. denied, 114 s.ct. 1371 (1994); State v. Byers
(1993), 261 Mont. 17, 861 P.2d 860, cert. denied 114 S.Ct. 1380
(1994), reversed on other grounds, State v. Egelhoff (Mont. 1995),
P.2d -, 52 St.Rep. 548. We hold that the District Court
did not err in refusing the three jury instructions offered by
Santos concerning a defense of mental disease or defect.
The judgment of the District Court is affirmed.
We concur:
Justice Terry N. Trieweiler
17
Justice Karla M. Gray, specially concurring.
I concur in the Court's opinion on issues I, 3 and 4. I
specially concur in that opinion on issue 2, because I agree with
the result and much, but not all, of what is said therein.
Specifically, I agree that questions and answers regarding the
defendant's mental caoacitv are permissible. I also agree that
questions and answers which cross the line from capacity to
puroose are impermissible under 5 46-14-213(2), MCA, which
prohibits psychiatrists and clinical psychologists from offering an
opinion on the ultimate issue of whether the defendant did or did
not have the state of mind which is an element of the offense
charged. Thus, where the mental state element necessary to prove
the charge is--as it is in the case before us--"purposely," no
opinion can be given regarding whether the defendant acted with
purpose. Since between three and five questions and answers of
record violate the statutory prohibition against testimony on the
ultimate issue of the defendant's mental state, I agree with the
Court that those answers were erroneously admitted.
I also agree that, under §§ 46-20-104 and 46-20-701, MCA, the
admission of this evidence does not affect the judgment in this
case. The trial transcript before us exceeds 700 pages in length;
much of it is conflicting expert testimony from Drs. Wise and
Stratford. Overall, the evidence against Santos was overwhelming.
Thus, I join in concluding that, on the record before us, the
erroneous admission of between three and five brief responses
18
constitutes harmless error, without regard to whether it goes to
the theft offense or the deliberate homicide charges.
In this latter regard, I disagree with the Court's tying of
the objectionable questions and answers to the vehicle theft,
rather than to the homicides. To this extent, I agree with the
dissent. This distinction is not raised by the State and, indeed,
is superfluous to the Court's analysis of this issue. Applying the
controlling statutes correctly is a straightforward matter here:
impermissible questions and answers were erroneously admitted into
evidence but, given the overall record before us, the error is not
reversible.
With regard to the dissent, I point out that most of the
questions and answers quoted therein relate only to the discussion
of the offense--whether theft or homicide--to which the questions
related. That portion of the dissent does not, and could not
correctly, suggest that all of the quoted questions and answers
violate the statutory prohibition contained in § 46-14-213 (2), MCA,
against an expert opinion on the ultimate issue of whether Santos
acted purposely or knowingly. It is clear from reading the
transcript segment quoted by the dissent that only the last
questions quoted could conceivably violate the statute.
I join the Court in affirming on all issues.
19
Justice W. William Leaphart, dissenting.
I concur in the Court's opinion on issues 1, 3, and 4. I
dissent from the opinion on issue 2.
As heinous as this fact situation is, I am constrained to
honor the dictates of the law as set forth in § 46-14-213 (Z), MCA,
which states in part: "A psychiatrist or licensed clinical
psychologist may not offer an opinion to the jury on the ultimate
issue of whether the defendant did or did not have a particular
state of mind that is an element of the offense charged."
Santos was charged with deliberate homicide and felony theft.
Both offenses require proof that he acted "knowingly" and
"purposely." The legislature has defined "purposely" as follows:
"[a] person acts purposely with respect to a result . . . if it is
the person's conscious object to engage in that conduct or to cause
that result." Section 45-2-101(58), MCA. It is thus clear that
the Montana legislature has specifically stated that a psychiatrist
or psychologist may not offer an opinion as to whether a defendant,
when committing an act, acted knowingly, purposely or had a
conscious object to engage in the conduct in question. There is no
question but that in this case the prosecution elicited precisely
this type of testimony from Dr. Wise with regard to Santos'
striking of Walter Gebhardt with a hammer and using a rope to stop
Thelma Gebhardt from breathing.
The Court quotes two of the questions posed by the prosecutor
to Dr. Wise in which the prosecution very pointedly asked whether
20
certain acts "would demonstrate a purpose of the defendant to carry
out specific abilities" and whether those acts would "demonstrate
a conscious objective on his part to engage in a particular form of
conduct . . . .'I The Court then suggests that these questions
related to Santos' theft of the vehicle rather than the homicides.
The Court then concludes that, although the questions violated §
46-14-213(2), MCA, they were, in light of the overwhelming
evidence, harmless error. However, when the questions are put in
their full context, it is apparent that they related not only to
the theft of the vehicle, but also to the homicides. As can be
seen from the following excerpt of the transcript, Dr. Wise was
asked to recall some very specific factual statements that Santos
had made to Agent Scott in a written statement.
Q Do you recall reading at the end of the
statement, and if you have it available and need to
refresh your recollection, please do so, but I would
recall or direct your attention particularly to pages 33
and 34 of the transcript of the statement that was given
by the defendant to Agent Scott.
A The one I have goes up to 18.
Q Well, you may have -- is it single spaced,
Doctor?
A Maybe you can direct me to that statement.
Q I guess I'm talking about it's on the end,
whether it's on may [sic] page 33 or your page I7 or
whatever, where he makes a statement to agent Scott to
the effect that he decided to take a particular action,
he decided -- he thought about it, he took a oarticular
action by deciding to oet the hammer and bv soins into
Walter Gebhardt's room and hittinq him in the head with
&.
A Yes.
Q And do you recall reading that portion of the
21
tape where he said that he took the rope from the pulley
that was above Thelma Gebhardt's bed and used it to keen
her from breathins earlier?
A I don't remember the pulley, but I remember
reading the rest of it.
Q Do you recall reading the part from that
statement where he stated that he decided to take money
from Mr. Gebhardt's wallet?
A Yes.
Q Do you recall reading from that statement the
portions where he stated that after striking the
Gebhardts in the head, he decided to burn stuff in the
fireplace and he specifically decided to do that to get
rid of evidence?
A Yeah. I don't remember the words "specifically
decided." I do remember that he did that and he said
that, told that in the interview.
Q Do you recall him explaining to deputy, or rather
to Agent Scott that the reason he did that was to get rid
of evidence?
A Yes.
Q And do you recall him describing how he chose to
take the car, to attempt to change the plates on it and
to drive it out of town?
A Yes.
Q So at that point in time, at least, the defendant
was certainly aware of where he was; correct?
A Yes.
Q He was aware of what he was doing; correct?
A I would assume that, yes.
Q And he was aware of who he was doinq it to;
correct?
A Are you talking about after the murder or before?
Q Well, I'm talking about his own statements to the
agent about his conduct.
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A Yeah, I would say just from those statements, I
would refer that, yes.
Q At least by the defendant's own words, those acts
would certainlv demonstrate a ournose of the defendant to
carry out specific abilities, would they not?
A I would say that, yes.
Q And thev at least demonstrate a conscious
objective on his Dart to encaqe in a narticular form of
conduct, do they not?
A Yes.
Q And that it was his purpose, bv his own
description, to cause a particular result: correct?
A Based on the interview, yes. [Emphasis added.]
Before asking Dr. Wise whether Santos' acts demonstrated a
"purpose" and a "conscious objective on his part to engage in a
particular form of conduct," the State prefaced the questions with
certain facts--including the fact that Santos said he decided to
get a hammer, that he went into Walter Gebhardt's room and hit him
in the head with the hammer and that he took a rope and used it to
keep Thelma Gebhardt from breathing. In addition to the questions
already discussed, the State also inquired of Dr. Wise whether
these acts indicated that Santos was "aware of what he was doing"
and was "aware of who he was doing it to." Obviously the
prosecutor's questions related to more than just the theft of the
El Camino vehicle.
It is hard to imagine a more blatant violation of the
statutory prohibition against having a psychologist express an
opinion as to the defendant's state of mind at the time he is
alleged to have committed a homicide. Here, the State was allowed
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to elicit testimony from a psychologist to the effect that Santos
acted purposely and had a conscious objective when he hit Walter
with the hammer and used a rope to prevent Thelma from breathing.
The State obviously felt it necessary to present expert
testimony on the question of the defendant's state of mind.
Although I agree that more general questions as to the defendant's
"capacity" to have a particular state of mind are legitimate, the
questions posed here went well beyond general "capacity" type
questions. They went directly to the ultimate question of whether
the defendant had the requisite state of mind at the time the
offenses were committed. In light of the bizarre and gruesome
behavior of this defendant, I do not see how such an error can be
considered harmless. The clear provisions of 5 46-14-213(2), MCA,
give me no choice but to dissent.
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State v. Delos Santos
Court: Montana Supreme Court
Date filed: 1995-08-24
Citations: 902 P.2d 510, 273 Mont. 125, 52 State Rptr. 865
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