No. 14376
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
THE STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
EDWARD LYLE OSTWALD,
Defendant and Appellant.
Appeal from: District Court of the Thirteenth Judicial District,
Honorable C. B. Sande, Judge presiding.
Counsel of Record:
For Appellant:
Robert Stephens, Jr., Billings, Montana
Dave Kinnard argued, Billings, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Richard Larson argued, Assistant Attorney General,
Helena, Montana
Harold Hanser, County Attorney, Billings, Montana
James D. Walen argued, Deputy County Attorney,
Billings, Montana
Submitted: January 30, 1979
Decided: MAR 7 - lgl~l
Filed:
MAR 7 - 1~
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
Defendant appeals from his conviction of the crimes of
burglary and misdemeanor possession of dangerous drugs following
a jury trial in the District Court of Yellowstone County.
In the early morning hours of December 26, 1977, when
the janitor of the Billings Eagles Club reported for work, he
noticed that the club's front door had been pried open. As he
approached the building, he heard what he thought was hammering
inside. He then left and contacted the authorities.
Shortly after 3 : 3 0 a.m., several sheriff's deputies and
city police officers were dispatched to the club and deployed
around the building. An officer and a deputy approached the
front door and glimpsed defendant inside. They called out to
him and he began to flee. Defendant ran out the rear of the
club where he was apprehended by a deputy sheriff stationed there.
Several of the deputies and defendant then returned to the club
where a damaged safe and a variety of hand tools were discovered.
The tools belonged to defendant.
During the course of the arrest, a deputy sheriff asked
defendant what he was doing inside the building. Defendant ans-
wered that he did not know. A subsequent inventory search of de-
fendant uncovered two cigarettes which the officers suspected to
be marijuana. The substance in the cigarettes was later tested
by one of the officers with a "valtox kit" (a selection of chemi-
cal reagents, some of which produce a characteristic color when
combined with marijuana) with positive results. The suspected
substance was never sent to the state crime laboratory for any
further testing.
On December 28, 1977, an information was filed in the
District Court, Yellowstone County, charging defendant with the
crimes of burglary and misdemeanor possession of dangerous drugs.
At his arraignment on January 4, 1978, defendant pled not guilty
to both offenses. Trial by jury was scheduled for April 18, 1978.
On the day of the trial, counsel sought to endorse as an
additional witness a psychologist who had performed a battery of
tests on defendant. The psychologist was to testify that because
of the effects of alcohol on defendant, "the disease of alcoholism
and the actual brain damage he has suffered through the years",
defendant was incapable of acting with a conscious object and
could not have had the requisite mental state that is an element
of the crime of burglary. The State objected to this proposed
testimony on the grounds that it constituted a defense of mental
disease or defect and that written notice pursuant to section 95-
503, R.C.M. 1947, now section 46-14-201 MCA had not been given.
Defendant argued that the testimony of the psychologist would go
only to the defense of intoxication for which written notice is
not required. The State contended that if an accused relies on
a particular alcoholic episode to raise intoxication as a miti-
gating factor then he is not required to give notice; if, however,
he relies on a defense of alcoholism in a generic sense as a mental
disease or defect, as here, then the notice requirement applies.
The court reserved its ruling on the State's motion to exclude
the expert testimony until after all the other defense witnesses
had finished testifying. At that time, the court granted the
motion and excluded the psychologistls testimony.
Three of the arresting officers testified at the trial.
All testified they observed defendant's manner of speech and
ability to carry on a conversation, his coordination and general
condition, and each concluded defendant was not intoxicated at
the time of his arrest. One deputy testified he smelled a faint
odor of alcohol about defendant at the time he was being booked
but he too stated defendant appeared sober, that he was coherent
and his coordination was good.
Defense witnesses who had seen defendant during the
eighteen hour period prior to his arrest testified in general
that defendant was an alcoholic, that he had a history of
irrational behavior when he was intoxicated, and that he was
intoxicated throughout Christmas day, the day before his arrest.
His wife and college age son testified that when defendant left
the family home around 2:30 a.m. the morning of the incident,
he was in an extreme state of intoxication.
Defendant himself testified that he was an alcoholic. He
stated he had been drinking throughout the day prior to his
arrest and could remember nothing from approximately noon of that
day until he was awakened for breakfast in a jail cell the follow-
ing morning.
At the close of trial, defendant offered instruction on
criminal mischief and criminal trespass, arguing that those of-
fenses were lesser included offenses in the crime of burglary and
that the jury must be instructed on them. Those instructions were
refused. Defendant also offered several alternative instructions
on diminished capacity due to intoxication as a mitigating factor.
The court refused defendant's proposed instructions and instead
gave instructions regarding the effect of intoxication on crim-
inal responsibility by quoting the applicable Montana statutes.
On April 20, 1978, the jury returned a verdict of guilty
against defendant on both counts in the information. Defendant
was sentenced to ten years in prison on the burglary charge and
one year in county jail on the possession charge, to be served
concurrently. Defendant's motion for admittance to bail pending
appeal was denied.
Defendant raises three specifications of error in this
appeal :
(1) Error in excluding the testimony of defendant's
expert witness.
(2) Error in the giving and refusing of jury instruc-
tions.
(3) Sufficiency of the evidence to sustain defendant's
conviction of possession of marijuana.
In ruling on the motion to exclude defendant's proferred
expert testimony, the court cited the Revised Commission Comment
to section 95-503, R.C.M. 1947, now section 46-14-201 MCA, which
provides in pertinent part: "If the defendant fails to give
notice of his intent to rely on a defense of lack of specific
intent he does not lose that defense, but he will be limited to
'lay' testimony which generally is not effective for a defense
of mental disease or defect." The text of section 95-503, R.C.M.
1947, now section 46-14-201 MCA, reads:
"(a) Mental disease or defect excluding respon-
sibility is an affirmative defense which the
defendant must establish by a preponderance of
the evidence.
"(b)(l) Evidence of mental disease or defect exclud-
ing responsibility is not admissible unless the
defendant, at the time of entering his plea of
not guilty or within ten (10) days thereafter or
at such later time as the court may, for good
cause, permit, files a written notice of his pur-
pose to rely on such defense.
"(2) The defendant shall give similar notice when
in a trial on the merits, he intends to rely on a
mental disease or defect, to prove that he did not
have a particular state of mind which is an essential
element of the offense charged. Otherwise, except
on good cause shown, he shall not introduce in his
case in chief, expert testimony in support of that
defense.
" (c) When the defendant is acquitted on the ground
of mental disease or defect excluding responsibil-
ity, the verdict and the judgment shall so state."
In addition, there is another separate statute regarding
the notice requirement. Section 95-1803(3)(a), R.C.M. 1947, now
section 46-15-301(2)(a) MCA provides :
"For purpose of notice only and to prevent sur-
prise, the defendant shall furnish to the prosecu-
tion and file with the clerk of the court, at the
time of entering his plea of not guilty or within
10 days thereafter or at such later time as the court
may for good cause permit, a statement of intention
to interpose the defense of mental disease or defect,
self-defense, or alibi."
Defendant argues that he was not required to give notice
because he was proceeding under section 94-2-109, R.C.M. 1947,
now section 45-2-203 MCA, which has no notice requirement. That
statute provides:
"A person who is in an intoxicated or drugged
condition is criminally responsible for conduct
unless such condition is involuntarily produced
and deprives him of his capacity to appreciate
the criminality of his conduct or to conform his
conduct to the requirements of law. An intoxicated
or drugged condition may be taken into consider-
ation in determining the existence of a mental
state which is an element of the offense."
Defendant's purpose in offering the testimony of the
psychologist was to demonstrate that defendant, because of his
history of alcoholism and alcoholic personality, would be more
prone on a given occasion of intoxication to be deprived of the
ability to appreciate the criminality of his conduct than would
a person who had no such attributes. The psychologist could not
have testified to defendant's intoxication at the time of the
commission of the offenses with which he was charged because
the psychologist did not see him at that time. The expert testi-
mony could only have gone to the likelihood that if defendant
had in fact been drinking heavily on the day of the crime, then
the disease of alcoholism from which he suffers would make it
more probable that his intoxication would prevent him from acting
knowingly and purposely within the meaning of the statute defin-
ing the offense of burglary. Section 94-6-204, R.C.M. 1947, now
section 45-6-204 MCA. We hold that the defense raised by this
theory falls within the purview of the statutes requiring notice.
The question of whether the defense of intoxication is
elevated by an offer of expert testimony on a defendant's alco-
holism in general to a defense of mental disease or defect re-
quiring notice is a novel one. (We note at the outset that
intoxication, strictly speaking, is not really a "defense", but
"merely a fact which the jury can consider in determining the
existence of a particular mental state". Commission Comment,
section 94-2-109, R.C.M. 1947, now section 45-2-203 MCA. The
cases and commentaries, however, speak of "the defense of intox-
ication", and we incorporate that term herein with its qualified
meaning under Montana law.) In the only case we have found
specifically addressing the issue of notice of the defense of
intoxication, the court said: "The statute requires notice when
the defense is based on alibi or insanity, and not when intoxi-
cation is used to negate specific intent. This provision would
be applicable to a defense of intoxication only where defendant
claimed insanity due to intoxication." People v. Cummins (1973),
45 Mich.App. 601, 207 N.W.2d 150, 151.
Cummins, supra, was a case in which an assault conviction
was reversed because a defendant who had not given notice was
precluded from raising intoxication as a mitigating factor. That
is not the case here. In this case, numerous defense witnesses
testified both as to defendant's alleged intoxication at the time
of the crime and as to his alcoholism over the years. The testi-
mony excluded, in the words of appellant's brief, would have gone
to "the permanent damage done to defendant by his abuse of alcohol."
We hold that where, as here, thedefense of intoxication shifts
to a defense based on expert testimony as to the long term effects
of alcoholism, then it becomes a defense of mental disease or
defect within the purview of the statutes requiring notice.
Defendant argues that even if the notice requirement applies,
the statutes allow for expert testimony despite noncompliance on
a showing of good cause. Good cause is alleged in defense coun-
sel's confusion over the distinction between intoxication at a
specific time and alcoholism as a mental disease or defect. De-
fendant argues that any possible prejudice to the State which
could have been caused by the unexpected testimony of his expert
witness could easily have been cured by the granting of a con-
tinuance, and that it was therefore an abuse of discretion for
the District Court to grant the State's motion for exclusion.
We note that during oral argument of this appeal, defense
counsel admitted having the information on which the expert was
going to testify for some five weeks prior to trial, but did not
make it available to the State nor endorse the psychologist as a
witness until the day trial started. Further, it appears that
the proferred testimony was of a nature that could not have reason-
ably been evaluated and countered in a short time. Under these
circumstances, we find no abuse of discretion in the trial court's
ruling.
In addition, defendant argues that his Sixth Amendment
right to present a defense was violated by the exclusion of the
expert testimony. Defendant's contentions in this regard are
unclear. He cannot argue that he was precluded from presenting
the defense of intoxication because numerous lay witnesses testi-
fied on that issue. Expert testimony is not required to establish
the defense of intoxication. By raising this Sixth Amendment
claim, defendant apparently is attempting to force the court into
a contradictory position. Nowhere does he claim that he was, in
fact, raising a defense of mental disease or defect. However,
he argues, if we conclude that such is the gist of his theory
and hold that the notice requirement applies, then his Sixth
Amendment rights are violated if we invoke his failure to give
notice to bar him from presenting the defense of mental disease
or defect. We find defendant's contentions to be without merit
for the same reason we held there was no abuse of discretion in
exclusion of the expert testimony; that is, that defendant
attempted to spring this surprise witness on the State at the
last moment rather than following the acknowledged customary
practice in the thirteenth judicial district of making medical
reports available to the State prior to trial. Under the cir-
cumstances present here, we hold that the exclusion of the
expert testimony does not constitute a violation of defendant's
Sixth Amendment rights.
We now turn to the second issue on appeal; the alleged
errors in instructions. Defendant argues that his intoxication
negated the existence of the purpose to commit an offense which
is an element of the crime of burglary, and that therefore he
could only be convicted of mere criminal trespass or criminal
mischief. Defendant cites State v. Bouslaugh (1978), Mont .
, 576 P.2d 261, 262, 35 St.Rep. 319, 321 for the proposition
that " . . . it is a fundamental rule that the court's instruc-
tions should cover every issue or theory having support in the
evidence." Defendant also emphasizes language from Bouslaugh
where we cited State v. Buckley (1976), Mont . , 557 P.2d
283, 33 St.Rep. 1204, to the effect that a defendant is entitled
to instructions on lesser included offenses if any evidence exists
in the record which would permit the jury to rationally find him
guilty of a lesser offense and acquit him of a greater.
We agree with these principles. It is also a fundamental
rule, however, that " . . . where an accused is either guilty of
the offense charged or is entitled to an acquittal . . . an in-
struction on the lower offense is not necessary and is properly
refused." 23A C.J.S. Criminal Law S1288(c). The court may not
be put in error for refusing to instruct on a lesser offense in
such cases. Bouslaugh, supra; State v. Baugh (1977), Mont .
, 571 P.2d 779, 34 St.Rep. 1315; State v. McDonald (19151,
51 Mont. 1, 149 P. 279.
The offense of criminal trespass includes the element
"knowingly". Section 94-6-203, R.C.M. 1947, now section 45-6-
203 MCA. The offense of criminal mischief includes the elements
"knowingly or purposely". Section 94-6-102, R.C.M., now section
45-6-101 MCA. If defendant's intoxication defense had been
believed by the jury, he could not have been convicted of burg-
lary, criminal trespass, or criminal mischief. He was, therefore,
either guilty of the offense charged or entitled to an acquittal.
We find no error.
Defendant also alleges error in the refusal of his offered
instructions on diminished capacity due to intoxication, Defen-
dant offered several alternative instructions, each of which con-
tained language to the effect that where a defendant is charged
with a crime which requires a certain conscious object or mental
state, if evidence of defendant's intoxication raises a reasonable
doubt that he did not have that mental state, he cannot be found
guilty of the crime. The court instead gave instructions in stat-
utory language for definitions of knowingly and purposely, and
in the language of section 94-2-109, R.C.M. 1947, now section 45-2-
203 MCA, concerning the effect of intoxication on criminal respon-
sibility. In addition, the court instructed the jury that where
knowledge and purpose are elements of a crime, a mental disease
or defect or physical condition, from whatever cause, which might
prevent one from knowing or having the purpose essential to the
crime is to be considered.
"In determining the effect of given instructions, all in-
structions must be considered as a whole, and if they fairly tender
the case to the jury, the fact that one or more instructions stand-
ing alone is not as full or as accurate as it might have been is
not reversible error." State v. Reiner (1978), Mont, I
587 P.2d 950, 953-954, 35 St.Rep. 1861, 1864, citing State v.
Caryl (1975), 168 Mont. 414, 543 P.2d 389, and earlier cases.
- 10 -
Having reviewed the instructions given here, we conclude that
in their entirety they properly stated the law and fairly tendered
the case to the jury. This specification of error is without
merit.
The final issue on this appeal goes to the sufficiency
of the evidence to support defendant's conviction for criminal
possession of marijuana. Defendant moved for a directed verdict
of acquittal on that charge on the grounds that the "valtox kit"
test used to identify the suspected substance is not specific
for marijuana and therefore not conclusive. He contends that
because the substance was never sent to the crime lab for positive
identification, the State has not met its burden of proving be-
yond a reasonable doubt that it was in fact marijuana. The State
concedes that the "valtox kit" test is not specific for marijuana
but argues that when the test results are considered together
with the testimony of the officer who performed the test, a prima
facie showing was made that the substance was marijuana. The
officer testified that his identification of the substance was
based not only on the test results, but also on the characteristic
odor of marijuana with which he was familiar from past experience
in possession cases.
We have reviewed many cases involving the burden of prov-
ing beyond a reasonable doubt the identity of a substance alleged
to be marijuana. In only two of those cases do we find language
indicating that absolute chemical identification is required to
meet this burden of proof, and in both cases that language was
dicta only. State v. Nelson (1977), Mont . 560 P.2d 897,
34 St.Rep. 80; State v. Wind (1973), 60 Wis.2d 267, 208 N.W.2d
357. On the other hand, numerous cases hold that marijuana is
not difficult to characterize without chemical analysis and that
testimony of officers who have had experience searching for and
identifying marijuana is sufficient. Cf. Cory v. State (1975),
0kl.Cr. 543 P.2d 565; State v. Maupin (1975), 42 Ohio St.2d 473,
330 N.E.2d 708. A good general discussion of the cases in the
area appears at Annot. 75 ALR3d 717.
In our opinion, it is the far better practice to require
that the suspected substance be identified by a state chemist
to insulate against attacks which might be made on the relia-
bility of the tests used to identify the marijuana. Cf. State
v. Paulson (1975), 167 Mont. 310, 538 P.2d 339. In this case,
however, no such attacks were made. Defense counsel here ob-
jected to introduction of the cigarettes into evidence on the
grounds there was no showing they contained a prohibited sub-
stance, but he did not voir dire on the deputy's qualifications
to identify marijuana or introduce any testimony or evidence to
cast doubt on the efficacy of the valtox kit test. The identity
of the substance went to the jury virtually without contrary
evidence. Where, as here, there is credible evidence before the
jury that the substance is marijuana and they have been properly
instructed on the burden of proof, the defendant cannot complain.
Affirmed.
Chief Justice
We concur:
F Joseph B. Gary, ~i&rict
J gel sitting in place of Mr.
Justice Gene B. Daly.