State v. Mercer

No. 80-48

I N THE SUPREME COURT OF THE STATE OF M N A A
OTN

1980

T E STATE OF MONTANA,
H

P l a i n t i f f and Respondent,

VS .
BRYAN LANTIS MERCER,

D e f e n d a n t and A p p e l l a n t .

Appeal from: D i s t r i c t Court of t h e Eighteenth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f G a l l a t i n .
H o n o r a b l e W. W. L e s s l e y , J u d g e p r e s i d i n g .

C o u n s e l o f Record:

For Appellant:

McKinley Anderson a r g u e d , Bozeman, Montana

F o r Respondent :

Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
Mark Murphy a r g u e d , A s s i s t a n t A t t o r n e y G e n e r a l , H e l e n a ,
Montana
Donald E. White a r g u e d , County A t t o r n e y , Bozeman, Montana

Submitted: November 1 0 , 1980

Decided: March 4, 1981

Filed:
MAR 4 - 1981
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.

Bryan Lantis Mercer appeals his conviction for aggravated
assault following a jury trial in the Gallatin County
District Court. He was sentenced to 20 years for assault, to
be served consecutively with a previous homicide sentence.
The court classified him as a dangerous offender and ordered
him ineligible for parole. On appeal, defendant raises
several issues relating to the validity of his confession,
his mental state at the time of the offense, and the nature
of his sentence. We affirm.
Kennita Shew, a school teacher from Salt Lake City,
arrived in Bozeman on July 15, 1979, to attend a workshop on
the Montana State University campus. As she was unloading
personal belongings from her car in a university dormitory
parking lot, someone approached her from behind, stabbed her
in the back, laughed aloud, and ran away. Ms. Shew did not
clearly see her assailant. At approximately 9:00 p.m., the
Bozeman City Police Department received word of the assault.
Upon arriving at the campus, the officers learned that Ms.
Shew had suffered a wound in the left side of her back. It
appeared that the wound had been caused by a knife.
Bryan Mercer was convicted by a jury in January 1972,
of second degree murder in Sanders County and sentenced to
50 years in the state prison. Based on favorable reports
from psychologists and prison officials, Mercer was granted
a school furlough to attend Montana State University in
March 1978. In February 1979, he was granted parole status.
On July 18, 1979, Mercer was arrested on a parole
violation warrant for an alleged knife assault on another
woman, Elizabeth O'Connell. Sgt. Ron Cutting of the Gallatin
County Sheriff's Office was assigned to investigate that
case. Cutting and Mercer knew each other previously.
Cutting had participated in the homicide investigation that
led to Mercer's 1972 conviction for the violent murder of
one of the defendant's high school friends.
The investigation of the sheriff's office into the
assault on Ms. O'Connell and the investigation of the Bozeman
police into the attack on Ms. Shew converged on July 18,
1979. Police Sgt. Connor of Bozeman learned that Sgt.
Cutting had scheduled an interview with Mercer. Because of
the similarity of the two incidents under investigation,
Connor requested to be present. At that time, Connor
questioned the defendant about his whereabouts on the day of
the attack on Ms. Shew. Mercer maintained that on the day
he was at the A & W stand where he was employed and then
picked up his wife at Safeway where she worked.
Between July 18 and 29, 1979, Cutting met several times
with defendant. For the most part, their conversations were
informal and off the record. It was primarily Mercer who
initiated these meetings. Apparently because of their past
acquaintance, the defendant was comfortable talking to
Cutting. On July 23, Mercer requested that Cutting keep
him informed regarding the police investigation in the Shew
case. Cutting agreed to do so. On the same day, Cutting
asked the city police how their investigation was going.
Cutting then told Mercer that he was still a suspect and
that the police had been unable to verify his alibi. Shortly
thereafter, Mercer asked whether he would be able to negotiate
directly with someone from the county attorney's office
about possible charges if he were to confess to the crime
and if he would recover the knife for the authorities.
Cutting agreed to contact the county attorney's office.
On July 27, defendant stated to Cutting that he knew he had
a "problem" and asked whether he could get medical help if
he agreed to confess. Cutting told him that was a matter
for the county attorney's office. On July 28, Cutti~ng
contacted Deputy County Attorney Dunbar, who agreed to talk
to the defendant. On July 29, Dunbar, accompanied by Deputy
County Attorney Mike Lilly, interviewed Mercer. With Dunbar
and Lilly as witnesses, Mercer confessed to the stabbing.
Mercer then showed police where he hid the knife with which
he assaulted Ms. Shew.
After defendant Mercer was charged, and after hearing a
motion to suppress the confession, the District Court ruled
that the defendant's confession was voluntary and admissible
at trial. At trial, Dunbar assisted the county attorney in
the trial of defendant. Deputy County Attorney Lilly was a
witness for the prosecution.
Defendant's assignments of error revolve largely around
his confession. He contends that the confession should have
been suppressed because he was not given the Miranda warnings,
because he was not afforded counsel at the time of his
initial questioning by Sgt. Cutting, and because the confession
was involuntary by reason of defendant's mental illness.
The trial record shows that defendant was read the
Miranda warnings on at least two occasions. Both Sgt.
Connor and Sgt. Cutting testified that Cutting read defendant
the Miranda warnings at the time of the officer's first
interrogation of the defendant on July 18. According to the
testimony given by Dunbar at the suppression hearing, and by
Lilly at trial, Dunbar read the Miranda warnings to defendant
on July 29 before the accused made any incriminating state-
ments. Mercer stated that he understood those rights. He
then signed a written waiver.
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 Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602,
16 L.Ed.2d 694, declared inadmissible all incriminating
statements made by persons in custody without prior warning
and waiver of their right to counsel. The right to counsel
and the constitutional right to self-incrimination attach at
such time as the police investigation shifts from a general
investigation of an unsolved crime to focus on the defendant.
State v. Lucero (1968), 151 Mont. 531, 537, 445 P.2d 731, 734.
The State fully concedes that Mercer had a right to
counsel at the time of any in-custody interrogation. The
real inquiry is whether defendant knowingly and voluntarily
waived that right. Miranda, supra, makes clear that the
role of counsel during in-custody interrogation is to effectuate
the right against self-incrimination. The question of
waiver is inextricably interwoven with the question of the
voluntariness of the accused's confession. his is especially
true where, as here, the accused alleged incapacity due to
mental illness. Accordingly, the right to counsel issue and
the voluntariness issue will be discussed together.
The defendant contends that he was so mentally ill as
to preclude a voluntary and knowing waiver of his constitutional
rights and so as to render him incapable of making a voluntary
confession. Further, he alleges that Deputy County Attorney
Dunbar induced the confession by informing defendant both
verbally and in writing that he would do everything possible
to insure that the defendant received medical treatment at
Warm Springs for his mental illness.
Whether a confession should have been suppressed depends
on whether it was voluntary. ,
State v. Lenon (1977) 174
Mont. 264, 570 P.2d 901, 906; Brown v. Illinois (1975), 422
U.S. 590, 604, 95 S.Ct. 2254, 45 L.Ed.2d 416. Whether a
confession was voluntary depends on the "totality of the
circumstances" of the particular case. State v Blakney
.

(1979), Mont. -, 605 P.2d 1093, 1096; State v.
Grimestad (1979), - Mont . , 598 P.2d 198, 202; State
v. Lenon, supra.
The evidence supports the trial court determination
that the defendant's confession was voluntary. There was
expert testimony at trial that the defendant's mental
disorder was purely episodic and that he acted and thought
as a normal person when he was not suffering from an attack
of mental illness. There is no evidence that the defendant
was suffering from such a bout of mental illness at the time
of his confession. The deputy county attorneys who witnessed
the confession testified that Mercer was articulate, calm
and coherent. The evidence tends to show that the defendant
was sane at the time of the confession and therefore, that
he was able to waive both his right to counsel and right
against self-incrimination.
There is no evidence that the deputy county attorneys
downplayed the importance of the Miranda rights, nor that
they employed any psychological pressures or inducements in
order to induce the confession. Nor did they attempt to
convince the defendant that his problem was medical rather
than criminal. It was the defendant who, without prompting,
claimed that he was in need of psychiatric help. It was
defendant who requested to speak to someone from the county
attorney's office and who requested psychiatric help. In
response to defendant's inquiries, Dunbar agreed to recommend
that the defendant be sentenced to a treatment facility only
after informing the defendant that he could not make any
promises as he could not control the District Court's decision.
There is no evidence that Dunbar offered to assist only if
the defendant confessed. In summary, the evidence shows that
the defendant was sane at the time of making his confession,
that Miranda warnings were given to the defendant before the
confession, that the defendant was capable of understanding
the warnings, that the defendant waived his rights to counsel
and against self-incrimination knowingly and voluntarily,
and that he was not improperly induced into confession.
Because of both deputy county attorneys involvement in
the confession process, the defendant next claims that
Deputy County Attorney Lilly was an incompetent trial witness
and he claims that Deputy County Attorney Dunbar should not
have been allowed to aid in the prosecution of the case at
trial.
We do not, however, find any prosecutorial misconduct.
It was the defendant who called both Dunbar and Lilly to
testify at the suppression hearing on August 20, 1979. Both
were endorsed upon the information on the same date following
a formal motion supported by an affidavit and hearing at
which defendant made no objection. Defendant was on notice

that Dunbar would be the chief prosecutor. Dunbar signed
both the information and the motion for leave and affidavit
of probable cause; he also submitted a brief opposing
defendant's consolidated pretrial motions.
There was a separation of the functions of witness and
prosecutor. Lilly, the witness at trial, never performed
any duty as a prosecutor. Dunbar, the prosecutor, never
testified before the jury. Defendant did not object to
Dunbar acting as prosecutor until after Lilly had commenced
testifying--at a time where Dunbar had already served as
prosecutor.
It is well-settled that a prosecutor is competent as
witness even though he is prosecuting the case against the
defendant. People v. Hauschel (Colo.App. 1975), 550 P. 2d
876; State v. Hayes (Mo. 1971), 473 S.W.2d 688, 691; People
v. Stokely (1968), 266 Cal.App.2d 930, 72 Cal.Rptr. 513,
cert.den. 395 U.S. 914; Rules 601(a), M.R.Evid.; See generally,
Annot. "Prosecuting Attorney As a Witness in Criminal Case,"
54 A.L.R.3d 100, 110-114 (1973). However, numerous courts
have disapproved of the practice. See, e.g., People v.
Thomas (1976), 38 Ill.App.3d 685, 348 N.E.2d 282, 284; People
v. Guerro (1975), 47 Cal.App.3d 441, 120 Cal.Rptr. 732; State
v. Hayes (Mo. 1971), 473 S.W.2d 688; State v. Griffith
(1971), 94 Idaho 76, 481 P.2d 34. For a jury might give far
greater weight to the evidence of the prosecuting attorney
than to that of the ordinary witness. See, e.g., Robinson
v. United States (8th Cir. 1928), 32 F.2d 505; see also,
Rule 403, M.R.Evid. The credibility of a prosecutor-witness
is subject to attack on the ground that he represents the
prosecution. People v. Mann (1963), 27 111.2d 135, 188 N.E.2d
665, cert.den. 374 U.S. 855, 83 S.Ct. 1923, 10 L.Ed.2d 1075;
Chessman v. Teets (9th Cir. 1956), 239 F.2d 205, vacated on
other grounds, 354 U.S. 156, 77 S.Ct. 1127, 1 L.Ed.2d 1253;
People v. White (1911), 251 Ill. 67, 95 N.E. 1036. Here,
Lilly did not prosecute the case against the defendant. His

role was confined to that of a witness. We see no impropriety.
A prosecutor need not disqualify himself as a witness where
he does not participate as trial counsel. See, State v.
Martinez (1976), 89 N.M. 729, 557 P.2d 578, 580-81, cert.den.
I
430 U.S. 973.
Ordinarily a prosecutor should withdraw from a case
when he testifies for the prosecution. People e x rel.
Younger v. Superior Court (1978), 86 Cal.App.3d 180, 150
I

Cal.Rptr. 156; State v. King (Iowa 1977), 256 N.W.2d 1. But
that rule of automatic disqualification does not apply when
the defense calls the prosecutor as a witness. People v.
Arabadjis (1978), 93 Misc.2d 826, 403 N.Y.S.2d 674; Galarowicz
v. Ward (1951), 119 Utah 611, 620, 230 P.2d 576, 580; Chessman
v. Teets, supra. Here, it was the defense who called Dunbar
to testify at the suppression hearing. Therefore, the rule
of automatic disqualification does not apply. Otherwise, a
defendant could indiscriminately disqualify any prosecutor
he wished by merely calling him as a witness.
Due to the separate functions that Lilly and Dunbar
performed at trial, we hold that there was no prosecutorial
misconduct. See, Martinez, supra; People v. Hauschel,
supra.
The defendant's final two contentions relate to his
alleged mental illness. First, he claims essentially that
the record contains no substantial evidence that would
justify the jury in finding that he was sane when he attacked
Kennita Shew. Second, he claims that his sentence to the
state prison violates the constitutional ban on cruel and
unusual punishment under the federal and the state constitutions.
The defendant spends several pages of his brief dis-
cussing whether mental disease is still an affirmative
defense in Montana and whether it must be proved by the
State or by the accused. But we need not delve into those
arguments. For it is clear that the court's instructions to
the jury did not prejudice the defendant.
In 1979, the legislature amended section 46-14-101,
MCA, by eliminating the definition of mental disease or
defect, excluding responsibility. Defendant argues, however,
that the question of mental defect was still a pertinent
inquiry for the jury because mental illness can preclude a
defendant from forming the mental state requisite to the
crime charged. At trial, the State and the court agreed that
the legislature intended to allow a jury to consider mental
disease and defect as it related to mental state. There-
fore, the trial court instructed the jury that it could not
convict the defendant if the evidence showed him to be
suffering from a "substantial impairment" rendering him
incapable of recognizing the criminal character of his
conduct.
In line with this instruction, the court instructed the
jury that the mental state of either "purposely" or "know-
ingly" is an element of the offense. The court also fully
informed the jury of the State's burden of proving every
element of the crime beyond a reasonable doubt. The jury
was also instructed that, in determining whether the mental
state requisite to the commission of the offense had been
proved beyond a reasonable doubt, it could consider testimony
regarding the presence and the nature of any mental disease
or defect from which the defendant claimed to be suffering
at the time of the crime. Finally, the trial court in-
structed the jury to read the instructions as a whole.
Therefore, the jury knew that the State had the burden of
proving beyond a reasonable doubt that the defendant was
sane and capable of acting purposely or knowingly at the
time of the crime.
The evidence supports the jury's determination that the
defendant was sane at the time he attacked Ms. Shew. Expert
testimony established that defendant suffers from an untreat-
able mental disorder which prevents him from conforming his
behavior to social norms. But the same expert testimony
claimed that defendant's mental disorder was episodic. When
not under the influence of an "attack" or "seizure", defendant
was normal. The psychiatric testimony did not establish
whether defendant was suffering from an episode of mental
illness at the time of his assault on Ms. Shew.
The State never conceded that defendant had a mental
disease or defect. Although both Dr. Prunty, a psychiatrist,
and Dr. Seitz, a psychologist, testified that the defendant
was afflicted with paranoid schizophrenia, the State intro-
duced evidence that the defendant could have gained knowledge
of psychological testing during his study at MSU, could lie,
and may have been faking the test results. The State also
showed defendant had not sought counseling at the MSU campus.
Further, the State established that defendant's story about
another being taking control of his body, began only when
the investigation of this case began to center on him,
although his mental disease had purportedly been going on
for many years. The prosecution also showed the defendant
had the presence of mind to hide the knife used in the
assault and attempted to construct an alibi wish &a
co-worker, Leila Galinkin. At trial, the defendant testified
at length about events surrounding the attack, showing no
loss of memory. The record supports a conclusion that
substantial evidence supports the jury verdict.
The defendant next contends that sentencing a man
suffering from severe mental illness to prison violates the
constitutional ban against cruel and unusual punishment as
well as section 53-21-101(1), MCA.
Under section 46-14-311, MCA, whenever a defendant is
convicted of an offense and claims that at the time of com-
mission he was suffering from a mental disease or defect
which rendered him incapable of conforming his conduct to
the requirements of law, the sentencing judge is to consider
all relevant evidence of the defendant's mental disorder.
If the judge finds that the defendant did not suffer from
mental illness at the time of the offense, he must sentence
the defendant as he would any other convicted person--
according to the guidelines set forth in Title 46, Chapter
18. Section 46-14-312, MCA. If the sentencing judge finds
-
that the defendant was suffering from a mental disorder at
the time of the crime, he must sentence the defendant to be
committed to Warm Springs. Section 46-14-312, MCA.
In his findings of fact and conclusions of law, the
sentencing judge found that "the defendant was in full
possession of his mental capacity and not suffering from
mental disease or defect which would render him incapable of
appreciating the criminality of his conduct or the ability
to conform his conduct to the requirements of law." The
judge concluded that it was necessary for the protection of
society that the defendant be sentenced to the Montana State
Prison at Deer Lodge for 20 years and that the defendant was
a dangerous offender. Neither judge nor jury found the
defendant insane or in need of psychiatric treatment. The
judge did, however, adopt the conclusions of Drs. Prunty and
Seitz who had conducted an extensive psychological and
psychiatric examination of the defendant. In their opinion,

the defendant was not susceptible to any kind of psychological
or psychiatric treatment and was likely to commit other
violent crimes in the future.
The statutory scheme of Title 46, Chapter 14, dealing
with the mental competency of criminal defendants, does not
prescribe special rules for sentencing a defendant who was
sane at the time of his crime, but who may be insane at
other times. Nevertheless, the defendant's suggestion that
he is to be dealt under the provisions of Title 53, Chapter
21, MCA, dealing with the treatment of the seriously ill, is
misplaced. Title 53, Chapter 21, MCA, deals only with civil
commitment of the mentally ill. The legislature has enacted
separate laws to deal with mental illness in the criminal
context. See generally, Title 46, Chapter 14.
Defendant cites no authority and we find none, holding
that imprisonment rather than medical treatment of a person
such as the defendant who claims to be insane, but has not
been so adjudicated, constitutes cruel and unusual punishment.
The defendant was sentenced and classified as a dangerous
offender based only on his past criminal behavior and his
propensity for antisocial conduct. If, however, the court
had determined that the defendant were mentally deranged but
sentenced him nevertheless to a penal institution without
providing for adequate treatment, the defendant may have had
grounds to argue that the sentence violated constitutional
prohibitions against cruel and unusual punishment. See,
People v. Feagley (1975), 14 Cal.3d 338, 121 Cal.Rptr. 509,

Under the circumstances, the defendant has not shown
any statutory or constitutional violation.
The judgment of the District

We Concur:

Justices
cause was submitted prior to January 5, 1981.
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