State v. Van Dyken

No. 88-038

IN THE SUPREME COURT OF THE STATE OF MONTANA
1990

STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
FRED DANIEL VAN DYKEN,
Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable James B. Wheelis, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Margaret L. Borg, Public Defender's Office,
Misscula , Montana; William Boggs, Missoula, Moritana
Fbr Respondent:
Hon. Marc Racicot, Att~rneyGeneral, Helena, I.lontana
Elizabeth S. Baker, Asst. Attorney General, Helena
Robert L. Deschamps, 111, Missoula, Montana

Submitted on Briefs: January 4, 1990
Decided: May 3, 1990
Filed: 'e
Justice John Conway Harrison delivered the Opinion of the Court.

Fred Van Dyken appeals the jury decision convicting him of
deliberate homicide in the death of Officer Allen Kimery. At the
first trial held September 9 through 21, 1985 in Park County,
Montana, the jury was unable to reach a verdict after several hours
of deliberation. Judge Thomas A. Olson declared a mistrial. A
second trial, held June 8 through 26, 1987 in Lewis and Clark
County, resulted in a conviction for deliberate homicide. We

affirm the lower court's decision.
Several issues are presented for review:
1. Is defendant's conviction upon retrial barred by former
j eopardy?

2. Did the District Court err in ruling that the expert
witness for the defense could not testify to the defendant's
version of the crime?
3. Did the District Court properly instruct the jury
regarding consideration of lesser included offenses?
4. Did the District Court properly instruct the jury
regarding the mental state required for conviction of deliberate
homicide?
5. Did the- District Court err in admitting the rebuttal
testimony of the State's expert witness?
On November 3 0, 1984, Josie Morgan, defendant Fred Van Dyken s
ex-mother-in-law, reported to the Great Falls Police Department
that her black and white 1979 Chevrolet Monte Carlo had been
stolen. That same evening Chris and Sandy Tigart, friends of the
2
defendant, reported that a . 3 5 7 Charter Arms revolver, a checkbook
and wallet had been stolen from their Great Falls home. Also that

evening, defendant cashed a number of the Tigartsl checks at
various Great Falls establishments and was seen driving a black and
I

white Monte Carlo. During most of the evening defendant was I
I
accompanied by his friend Mike Masikka and the two spent the night I

drinking in area taverns. At one point the defendant told Masikka
he had a . 3 5 7 pistol in the car trunk and asked of Masikka if he
"knew anybody [he] wanted to waste or anything."

After taking Masikka home early in the morning of December 1,
the defendant drove to Missoula where he telephoned his friend Jeff
Braida. Defendant then returned to Great Falls.
Detective Joseph McGuire of the Great Falls Police Department
called defendant on the morning of December 5 to inform defendant
he was a suspect in the burglary of the Tigart home. Later that
day defendant admitted to Chris Tigart that he had stolen the items
from the Tigart home and would like to return them.
In an attempt to retrieve those items, defendant drove the
black and white Monte Carlo to the Lincoln area where he had
discarded the items on December 1, but failed to find any of the
stolen property. Defendant then continued to Missoula where he
again contacted Jeff Braida. Along with Jeff's bother, Tim Braida,
the three spent the evening of December 5 drinking and playing
pool. During the evening defendant pulled the . 3 5 7 revolver from
under the seat and showed it to the Braida brothers, declaring
while pointing his index finger at the window as if holding the
gun, "If a cop pulls me over, 1'11 just blow them [sic] away."
Defendant drove the Braidas to their parents' home sometime after
2:00 a.m. December 6, and indicated he was going to his little
brother's house.
The Braidas would later testify that they noticed nothing
unusual or abnormal about defendant's behavior that evening and
that he did not appear drunk nor was his driving impaired by
drinking. Other witnesses who saw defendant that night and in the
early morning hours of December 6 would testify similarly.
On December 6, 1984, shortly before 3:00 a.m., the attendant
on duty at the SuperAmerica gas station on Brooks Street in
Missoula, reported to 911 that a man in a black Chevrolet drove
away without paying for gas. The 911 dispatcher broadcast the
reported theft along with the car's license plate number, Montana
2-81609. Soon thereafter Missoula County Deputy Sheriff Allen
Kimery radioed that he had the suspected vehicle in sight,
identified it by license number, and requested the assistance of
a city police officer since the incident had occurred within the
city's jurisdiction.
A few minutes later a resident of the neighborhood that Deputy
Kimery radioed from, called 911 to report that an officer was shot
and lying in the street. Other officers were dispatched to the
scene. Deputy ~ i m e r ywas then transported to a nearby hospital
where he died from a gunshot wound to his chest, the bullet having
been fired from a distance of approximately three feet.
Officers began a city-wide search for the 1979 black and white
Monte Carlo. The vehicle was soon discovered in an alley in
Missoulals lower Rattlesnake area, riddled with bullet holes and
abandoned.
At approximately 4:00 a.m., defendant called the Braidas and
asked if they would give him a ride. On their way to pick up the
defendant, the Braidas stopped at the SuperAmerica station on
Brooks Street for gas. Jeff put gas in the tank while Tim went to
pay for it. Tim, in talking with the gas station attendant,
learned of the gas theft and shooting. When he found out the car
involved had rea at Falls license plates, Tim decided that he and
Jeff would not pick up the defendant. Tim told the SuperAmerica
attendant the defendant's name and where the Braidas were to meet
him. The Braida brothers then returned home.
The SuperAmerica attendant then phoned 911 to relay the
information given by Tim Braida. When the defendant was located
at t.he convenience store indicated by Tim Braida, he was arrested
for carrying a concealed weapon. Defendant was searched and a set
of car keys recovered. The keys fit the ignition and trunk of the
Monte Carlo abandoned in the lower Rattlesnake area. Later,
defendant was charged with deliberate homicide in connection with
the death of Allen Kimery.
Following his arrest defendant was taken to St. Patrick's
Hospital where he was treated by the emergency room physician, Dr.
Warren Guffin, for abrasions and lacerations from bullet fragments
or bullet injury and blood and urine samples were drawn.
Psychologist Herman Walters and psychiatrist William Stratford also
interviewed defendant shortly after his arrest to determine if
defendant was a risk to himself and to observe defendant's general
emotional and cognitive functioning.
Fred Van Dyken took the stand on his own behalf at his second
trial. The defendant testified that he had been drinking and
smoking marijuana on the night of December 5 and morning of
December 6; that he remembered being at his friends8 Tim and Jeff
Braidals home but not how he got there; that he did not remember
being at the SuperAmerica station or driving anywhere in Missoula;
that he remembered being pulled over, the presence of flashing
lights, and someone approaching his car; that he remembered
accelerating his car and that he had his gun and ''threw a bullet
over [his] left shoulder;" that he does remember getting the gun;
that he remembered a lot of loud bullets and that after he drove
away there was a hole in the window. Defendant also testified that
he had no desire, purpose or intent to shoot the officer and that
because he was afraid the officer was still pursuing him after he
drove away, defendant "ditchedI8his car and called his friends the
Braidas.
On cross-examination defendant testified his purpose in
grabbing the gun was to throw a shot over his shoulder and that he
intended t6 shoot the gun. Defendant also admitted that he knew
the person approaching his car was an officer when he saw the
flashing lights. Testimony was also elicited that defendant had
rolled down the driver's window before shooting.
The defense presented evidence intended to show that, because
of the amount of liquor consumed on the night in question,
defendant was unable to form the mental state of "knowingly1'or
llpurposelyll
necessary to a conviction of deliberate homicide. The
defense offered the testimony of its expert witness, Dr. Mandel,
to show defendant was incapable of forming the necessary mental
state. Dr. and el' based his testimony on a three and one-half hour
interview with defendant before the first trial, a one hour
interview with defendant before the second trial and conversations
with defendant's mother, Hope Van Dyken and his ex-mother-in-law,
Josie Morgan and defendant's friend Chris Tigart. In rebuttal of
Dr. Mandel1s testimony, the State called Dr. Walters and Dr.
Stratford, both of whom saw defendant shortly after his arrest.
The State also presented in its case-in-chief, Dr. Guffin, the
emergency room physician who treated defendant immediately after
his arrest on December 6, who testified that there were no physical
manifestations of defendant being under the influence of alcohol
when Dr. Guffin examined him.
Defendant was charged by information with deliberate homicide
arising out of the shooting death of Officer Allen Kimery in the
early morning hours of December 6, 1984. The case was assigned to
District Judge Thomas A. Olson and, following a change of venue,
tried before a Park County jury in September, 1985. When, after
thirteen hours of deliberation, the jury notified Judge Olson it
was unable to reach a unanimous verdict, the judge, over defense
counsells objection, ordered the jury to continue its
deliberations. Following two more hours of deliberation, the jury
was still unable to reach a decision and notified the judge of its
stalemate. Judge Olson then declared a mistrial. Neither counsel
for the defense or the prosecution objected to the procedure, nor

did either counsel request that the jurors be polled.
On December 23, 1985, defendant appeared before Judge Olson
and asked to change his plea to guilty pursuant to a plea agreement
reached with the State. The judge rejected the plea, however,
because the defendant disputed the intent element of the offense.
During the period between trials, both parties filed pretrial
motions in the District Court and petitioned the Supreme Court.
On June 3, 1986, the State filed a petition for supervisory control
with the Supreme Court, seeking rulings on certain of its motions
then before the District Court. This petition was denied. In a
June 4, 1986 order concerning both parties1 pretrial motions, the
District Court denied defendant's motion to dismiss on grounds of

double jeopardy and denied the State's motion to compel an
independent psychiatric evaluation of the defendant designed to

assist in determining the defendant's state of mind at the time of
the shooting.
From this order, the defendant petitioned the Supreme Court
for a writ of supervisory control and the State sought an
interlocutory appeal. The Supreme Court consolidated the two
proceedings and in a November 13, 1986 order found both to be
interlocutory in nature and, therefore, not appealable.
Additionally, the Court held the declaration of a mistrial under
the circumstances did not constitute a bar to a second trial on the
grounds of former jeopardy.
The defendant then moved the Supreme Court for a rehearing on
the double jeopardy issue. In its January 20, 1987 order denying
the rehearing, the Supreme Court set out specific reasons why a
second trial could be had without placing the defendant in double
jeopardy .
After several recusals, Missoula District Judge James Wheelis
assumed jurisdiction of the case, and the second trial was had,
this time in Lewis and Clark County during June, 1987. In pretrial
rulings, the District Court prohibited the defendant's expert
witness, psychiatrist Michael Mandel, from reciting the defendant's
version of the offense or testifying to the credibility of the
defendant ' s statements about the events surrounding Officer
Kimery's death. The defense then opted to place defendant Van
Dyken on the stand.
The District Court also ruled that the testimony of the
State's experts, psychiatrist William Stratford and psychologist
Herman Walters, was restricted to their observations of the
defendant and any unsolicited remarks made by him. The State's
experts were not allowed to testify as to the results of any
questions which they directed to the defendant when they examined
him within the first few days following his arrest, because no
Miranda warnings (Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct.
1602, 16 L.Ed.2d 694) were given prior to their evaluation of the
defendant.
Following a lengthy trial, the jury found the defendant guilty
of deliberate homicide. The defendant was sentenced to life
imprisonment at the Montana State Prison and designated a dangerous
offender. He is ineligible for parole or participation in the
supervised release program.
1
I
It is from this judgment that the defendant appeals.

ISSUE I: Double Jeopardy
Defendant argues that his retrial on the charge of deliberate
homicide violates Federal and State constitutional prohibitions
against double jeopardy. The defendant bases this argument on two
allegations: 1) at the first trial, the District Court declared

a mistrial without first polling the jurors after they announced
they were deadlocked, amounting to a mistrial without manifest
necessity; and 2) the State, because it had the advantage of
assessing the defense at the first trial, was able to significantly
alter its posture.at the second trial.
According to defendant, the jury instruction given concerning
lesser included offenses contributed to the jury deadlock. At both
the first and second trials the jury received the following
instruction on lesser included offenses:
In order to reach a verdict in this case,
it is necessary that you consider the crime of
deliberate homicide first, and that all twelve
of you find the Defendant either guilty or not
guilty of that charge.
In the event you find the Defendant
guilty of deliberate homicide, you need go no
further as you will have reached a verdict.
In the event you find the Defendant not
guilty of deliberate homicide, you must then
 consider the lesser offense of mitigated
deliberate homicide. All twelve of you must
find the Defendant guilty or not guilty of
this charge.
If you find the Defendant guilty of
mitigated deliberate homicide, you have
reached a verdict, and you need proceed no
further.
If you find the Defendant not guilty of
mitigated deliberate homicide, you must then
consider the lesser offense of negligent
homicide. All twelve of you must find the
Defendant guilty or not guilty of this charge.
When yo.u have done so, you have reached a
verdict, and you need proceed no further.
Defendant argues that the District Court should have polled
the jury to determine if, at any time during its deliberations, the
jury had unanimously voted to acquit the defendant of deliberate
homicide and was deadlocked only as to the defendant's guilt on one
of the lesser-included offenses. The defendant contends that if
the jury had in fact acquitted the defendant of deliberate
homicide, a second trial on that charge would amount to double
jeopardy. Defendant further argues that by failing to poll the

jury, the District Court effectively precluded the operation of the
double jeopardy bar. Under such circumstances, the defendant
avers, District ~ u d ~ e
Olson declared a mistrial without manifest
necessity and the defendant was therefore subjected to double
jeopardy on the deliberate homicide charge.
The thrust of defendant's argument is that failure to poll the
jury impliedly acquitted the defendant of deliberate homicide and
the District Court further erred in denying him an evidentiary
hearing on the matter. This is the very issue which the defendant
raised in his 1986 application to this Court for a writ of
supervisory control. In both our November 13, 1986 order
dismissing the application and our January 20, 1987 order denying
the petition for rehearing on the same matter we rejected
defendant Is argument. As such, the doctrines of both res judicata
and law of the case prevents an appellant from raising the issue
on appeal because the issue has been previously resolved by this
Court in this case.
Whether labeled res judicata or law of the case, the effect
is the same.
Prior Montana cases disclose the general
rule that where a decision has been rendered
by the Supreme Court on a particular issue
between the same parties in the same case,
whether that decision is right or wrong, such
decision is binding on the parties and the
courts and cannot be relitigated in a
subsequent appeal. (Citations omitted.)

[A]n exception to this general rule exists
where the case must be remanded to the
District Court for further proceedings because
of reversal on an unrelated issue. In such
case this Court may correct a manifest error
in its former opinion and announce a different
ruling to be applied prospectively to future
proceedings in the case. This exception to
the general rule is recognized in Montana at
least since 1955 when we held that the law of
the case announced in the first appeal, and
which governed the second trial, does not
prevent the appellate court from correcting a
manifest error in its former opinion to apply
to future proceedings where doing so promised
justice without substantial injury to anyone.
(Citations omitted.)
State v. Zimmerman (1977), 175 Mont. 179, 185, 573 P.2d 174, 177-
 Our earlier decision rendered in response to defendant's
earlier application for writ of supervisory control addressing the

issue of failure to poll the jury before declaring a mistrial
remains binding and cannot be relitigated. None of the stated
exceptions apply in this case.
In the second prong of his double jeopardy attack, defendant
contends that the declaration of mistrial was without manifest
necessity and thus, afforded the State an unfair advantage in the
second trial. Defendant asserts that the State used the first
trial as a trial run and was able to strengthen its case in the
second trial. Defendant further argues, as he argued in a pretrial
motion, that the State should be prohibited in the second trial
from presenting "substantial additional categories of evidence not
presented at the first trial or from substantially altering the
posture of the defense case in the State's favor as a result of
events occurring at the first trial." The District Court denied
defendant's motion. Likewise, we reject his argument.
As is often noted the double jeopardy clause of both the
United States and Montana constitutions provide three basic
protections. It protects against (1) a second prosecution for the

same offense after acquittal; (2) a second prosecution for the same
offense after conviction; and (3) multiple punishments for the same
offense. United States v. DiFrancesco (1980), 449 U.S. 117, 129,
101 S.Ct. 426, 433, 66 L.Ed.2d 328, 340. (Emphasis added.)
Defendant would have us believe that double jeopardy
protection against prosecution forthe same offense after acquittal
bars retrial because the jury was not polled, and therefore a
declaration of mistrial without manifest necessity resulted. Thus,
defendant suffered a second prosecution for the same offense after
he was impliedly acquitted.
As discussed above there is no merit to defendant's argument
that he should have been impliedly acquitted of deliberate homicide
because the judge did not inquire into the reasons for the jury
deadlock, thus resulting in a mistrial without manifest necessity.
The mistrial was declared because the jury could not reach a
verdict. A declaration of mistrial under such circumstances is
manifestly necessary. Arnold v. McCarthy (9th Cir. 1978) , 566 F. 2d
1377, 1386; Arizona v. Washington (1978), 434 U.S. 497, 503, 98

We agree that where the State provokes a mistrial with the
intention of subjecting the defendant to the burden of multiple
prosecutions, the double jeopardy clause will prevent a retrial.
United States v. Dinitz (1976), 424 U.S. 600, 611, 96 S.Ct. 1075,

1081, 47 L.Ed.2d 267, 276. In the case at bar, however, the State
in no way provoked the mistrial. Nor did the State request a
mistrial. In addition, when District Court Judge Olson declared
a mistrial, the defendant made no objection. As the United States

Supreme Court has held:
[Tlhe strictest scrutiny is appropriate when
the basis for the mistrial is the
unavailability of critical prosecution
evidence, or when there is reason to believe
that the prosecutor is using the superior
resources of the State to harass or to achieve
a tactical advantage over the accused.
 At the other extreme is the mistrial
premised upon the trial judge's belief that
the jury is unable to reach a verdict, long
considered the classic basis for a proper
mistrial. The argument that a jury's
inability to agree establishes reasonable
doubt as to the defendant's guilt, and
therefore requires acquittal, has been
uniformly rejected in this country. Instead,
without exception, the courts have held that
the trial judge may discharge a genuinely
deadlocked jury and require the defendant to
submit to a second trial. This rule accords
recognition to society's interest in giving
the prosecution one complete opportunity to
convict those who have violated its laws.
(Footnotes omitted. )
Arizona v. Washington, at 508-09, 98 S.Ct. at 832, 54 L.Ed.2d at

The jury had deliberated for approximately fourteen hours and
the foreman indicated to Judge Olson that further deliberations
would most likely not result in a verdict. Under the circumstances
the mistrial was declared for manifest necessity.
The defendant's argument that the State could not use evidence
at the second trial which had not been presented at the first trial
is not compelling. The general rule of law is that where the first
proceeding results in a mistrial, the parties are placed in the
same position as if there had been no trial in the first instance.
Section 46-16-701, MCA; Waite v. Waite (1964), 143 Mont. 248, 389
P.2d 181; 58 Am.Jur.2d New Trial, 5 588 (1989).
Here, neither party gained an unfair advantage over the other
because of the mistrial. Each was able to use the knowledge gained
from having gone through the first trial and alter their positions
accordingly. We hold that the District Court properly denied
defendant's pretrial motion to limit evidence in the second trial
to only that introduced in the first.

ISSUE 11: Defense Expert Testimony
The defendant called Dr. Michael Mandel as an expert witness
at both trials. With the help of Dr. Mandel, a psychiatrist,
defendant sought to establish that he was incapable of forming the
necessary intent to commit deliberate homicide at the time
defendant killed Officer Kimery.
Defendant argues that Rules 803(4), 703, and 705, M.R.Evid.,
support admission of Dr. Mandel1s testimony regarding events
surrounding Officer Kimery's shooting.
Rule 803(4),' M.R.Evid., an exception to the hearsay rule
permits :
Statements made for purposes of medical
diagnosis or treatment and describing medical
history, or past or present symptoms, pain, or
sensations, or the inception or general
character of the case or external source
thereof insofar as reasonably pertinent to
diagnosis or treatment.
Rule 703 deals with the basis of opinion testimony by experts:
The facts in a particular case upon which an
expert bases an opinion or inference may be
those perceived by or made known to him at or
before the hearing. If of a type reasonably
relied upon by experts in a particular field
in forming opinions or inferences upon the
subject, the facts or data need not be
admissible in evidence.
Rule 705 addresses disclosure of facts underlying an expert
opinion:
The expert may testify in terms of
16
 opinion or inference and give his reasons
therefor without prior disclosure of the
underlying facts or data, unless the court
requires otherwise. The expert may in any
event be required to disclose the underlying
facts or data on cross-examination.
The above rules, however, are subject to Rule 403, M.R.Evid.
Evidence, although relevant, may nonetheless be excluded if its
probative value is outweighed by its potential for prejudice. Rule
403, M.R.Evid. Furthermore, this Court has consistently held that
'Ithe question of admissibility of evidence must in every case be
left largely to the sound discretion of the trial court, subject
to review only in case of manifest abuse.It Cech v. State (1979),
184 Mont. 522, 531-32, 604 P.2d 97, 102; Gunderson v. Brewster
(1970), 154 Mont. 405, 466 P.2d 589; Moen v. Peter Kiewit & Sons,
Co. (1982), 201Mont. 425, 655 P.2d 482. This discretion includes
wide latitude in determining the admissibility of expert testimony.
Cash v. Otis Elevator Co. (1984), 210 Mont. 319, 332, 684 P.2d
1041, 1048; Krohmer v. Dahl (1965), 145 Mont. 491, 402 P.2d 979.
We find no abuse in the discretion exercised by the trial
court. Judge Olson rejected defendant's argument that Dr. Mandel,
under Rules 703 and 705, might rely on the description of the
shooting as related by the defendant and disclose this description
even though it might otherwise be inadmissible. At the second
trial the defendant again raised this issue. When defendant
requested a rehearing on the matter, Judge Wheelis agreed with
Judge Olsonts order and opinion of June 4, 1986. In the opinion
Judge Olson noted that to allow Dr. Mandel to repeat defendant
version of the shooting would be to throw out the other rules of

17
evidence and to .ignore the time-honored reasons for excluding
hearsay and unreliable evidence. The opinion continued:
According to Judge Weinstein, it is assumed
for purposes of Rule 703, that the underlying
facts are reliable and trustworthy. Further,
Weinstein notes that the reason for disclosure
is not to prove the underlying facts but to
show what the experts are using for his [sic]
opinion. Weinstein is also of the view that
the reliability question, which must be asked
when using Rule 703, is the same question to
be asked when allowing a medical expert to
repeat a medical history under Rule 803 (4).
See 4 Weinstein's Evidence, 803 (4)(01), at
803-146 to -147.

[ T I he testimony of Fred Van Dyken concerning
the shooting event is not sufficiently
reliable to qualify under the medical
exception to the hearsay rule set forth in
Rule 803 (4).
The District Court then prohibited Dr. Mandel from testifying
defendant's version of the shooting event. Because the defendant's
testimony was not sufficiently reliable to qualify under the Rule
803(4) medical exception, neither was it reliable enough to be used
as the basis for Dr. Mandel1s expert opinion under Rule 703,

The trial court here properly exercised its discretion. Under
Rule 703, Rule 705 or Rule 803(4), Dr. Mandells testimony was
subject to limitations. As our sister court in Utah noted:
A psychiatrist or a psychologist of
course cannot be made a conduit for testifying
in court as to any and all out-of-court
statements made. (Footnote omitted.) As with
admission of evidence of any kind, great
discretion is accorded the trial judge in the
determination of admissibility. The trial
court must, as with any evidence, assess the
 inherent reliability of the testimony, the
relevance of the testimony, and undertake a
balancing test, particularly of prejudice
versus probativeness under Rule 403.
State v. Schreuder (Utah 1986), 726 P.2d 1215, 1225. It is
apparent from the portion of the opinion and order set out above
that the trial court in the present case considered the reliability
and relevancy of the testimony attempted to be conveyed through Dr.
Mandel. We find no abuse of discretion.
Defendant also argues that disallowing Dr. Mandel to testify
regarding defendant's version of the shooting violated defendant's
due process rights to present relevant defensive evidence.
Defendant claims that the trial court's decision denied him his
right against self-incrimination and the opportunity to present a
complete defense.
As previously noted the trial court only curtailed Dr.
Mandel1s testimony regarding the actual shooting event. No
limitations were placed on his testimony concerning defendant's
other statements to him or concerning other information the doctor

relied on as a basis for his expert opinion. Dr. Mandel did, in
fact, testify about the bases of his opinion which included
conversations had with the defendant.
It is error to allow psychiatric witnesses to state their
ultimate conclusion without discussing the bases for such
conclusion. State v. Rhoades (W.Va. 1981), 274 S.E.2d 920, 922;
State v. Wade (N.C. 1979), 251 S.E.2d 407, 409. However, no error
results where, as here, the expert is permitted to testify as to
the bases of his opinion.
 To allow Dr. Mandel's recitation of defendant's statements was
hearsay ruled not within any exception. The defendant has no
constitutional right to have these hearsay statements placed in
evidence. It must be remembered that,
A defendant who chooses to testify waives his
privilege against compulsory self-
incrimination with respect to the testimony he
gives, and that waiver is no less effective or
complete because the defendant may have been
motivated to the witness stand in the first
place only by reason of the strength of the
lawful evidence adduced against him.
Harrison v. United States (1968), 392 U.S. 219, 222, 88 S.Ct. 2008,

Defendant next avers that because the trial court granted the
State's motion in limine regarding the expert testimony, defendant
was compelled to testify. Thus, he argues, his right against self-
incrimination as guaranteed by the Fifth Amendment to the United
States Constitution and Art. 11, Sec. 25 of the Montana
Constitution was violated. These guarantees protect persons from
testifying against themselves. "The key to this rests with
determining if appellant is compelled to testify or merely required
to make tactical decisions regarding the defense of his position.I1
Matter of C.L.R. (1984), 211 Mont. 381, 386, 685 P.2d 926, 929.1

Superseded by statute as stated in Matter of Baby Boy Scott
(Mont. 1988), 767 P.2d 298, 45 St.Rep. 2362. The 1985 Legislature
amended 5 41-3-609, MCA, thus superseding that portion of Matter
of C.L.R. which set forth the standard for terminating parental
rights. That part of the opinion dealing with the Fifth Amendment
protection against self-incrimination is unaffected by the later
case of Matter of Baby Boy Scott.
 Here it is clear that defendant's decision to testify was a
tactical decision arrived at by him and his counsel. The trial
court inquired about the decision, saying "1 take it there is no
problem with the decision of the defense to place the defendant on
the stand and, I gather, testify about the substance of the trial."
Defendant or his counsel made no objection or response.
The mere fact that defendant's version of the shooting would
not otherwise have been brought before the jury does not render his
decision compelled. As the United States Supreme Court held, "That
the defendant faces such a dilemma demanding a choice between
complete silence and presenting a defense has never been thought
an invasion of the privilege against self-incrimination." Williams

v. Florida (1970), 399 U.S. 78, 84, 90 S.Ct. 1893, 1897, 26 L.Ed.2d
446, 451.

ISSUE 111: Lesser-Included Offenses
Defendant asserts that the trial court erred in its refusal,
upon request of the defense, to instruct the jury that it could
consider the two lesser included offenses without first unanimously
acquitting the defendant of the principal offense. At the second
trial the defense' proffered two I1failure to agree1' instructions.
Such instruction, the defendant argues, would permit the jury to
consider and deliberate about all possible offenses, i-e., the
charged offenses and all lesser-included offenses, in the event
there is any disagreement over the defendant's guilt as to the
principal offense.
 The trial court, however, gave the "acquittal firstt1
instruction (alternatively labeled I1lesser included offensesl1
instruction) previously set out in the double jeopardy discussion
above. Instructions stating the elements of deliberate homicide,
deliberate mitigated homicide, and negligent homicide were also
given.
The basic rule in this state is that the trial court's
instructions must cover every issue or theory having support in the
evidence. State v. Thornton (1985), 218 Mont. 317, 320, 708 P.2d
273, 276. Also, the court must instruct on lesser included
offenses if any evidence exists in the record which would permit
the jury to rationally convict the defendant of a lesser offense
and to acquit him.of a greater. Thornton, at 317, 708 P.2d at 276
(quoting State v. Ostwald (1979), 180 Mont. 530, 538, 591 P.2d 646,
651). On appeal this Court is charged with reviewing jury
instructions as a whole and if they fairly cover the issues and
tender the case to the jury, they are sufficient. State v. Smith
(1986), 220 Mont. 364, 382, 715 P.2d 1301, 1312.
The defendant admits the giving of an I1acquittal firstn
instruction is not per se erroneous, but argues that where a
defendant requests a Itfailure to agreef1 instruction, giving an
"acquittal first1! instruction is error. This Court has not
previously considered such an argument, but many other courts have,
with a wide variety of results. The United States Supreme Court
has not resolved the conflict.
In a recent case the Court of Appeals of New York addressed
the giving of acquittal first versus failure to agree instructions.
[Alpproval of the "unable to agree1'transition
charge sought by the defendant would have a
deleterious effect on the [State], for whose
benefit the option of the submission of a
lesser included offense was originally created
"to prevent the prosecution from failing where
some element of the crime charged was not made
out1' (People v. Murch, 263 N.Y. 285, 291, 189
N.E. 220). [Footnote omitted.] Under such a
charge, the jury could convict a defendant of
the lesser included offense without actually
having found him not guilty of the greater.
And, regardless of the jury's actual findings
or lack of findings regarding the greater
offense, the defendant would be deemed not
guilty of its commission . . . and a retrial
on the greater offense would be barred under
settled double jeopardy principles. [Citations
omitted. ] . . [Elstablished precedent
suggests that a contrary policy should
prevail: that the [State] should not be
precluded from retrying a defendant on the
greater offense unless a jury actually finds
him innocent of that charge.
People v. Boettcher (N.Y. 1987), 505 N.E.2d 594, 597.
The Boettcher court continued its discussion, noting Federal
case holdings that a defendant is entitled to a failure to agree
instruction upon timely request, but rejected the Federal cases
because,
[tlhey give insufficient weight to the
principle that it is the duty of the jury not
to reach compromise verdicts based on sympathy
for the defendant or to appease holdouts, but
to render a just verdict by applying the facts
it finds to the law it is charged [citation
omitted]. It is no doubt true, as we have
noted in the past, that in jury rooms, as well
as all other deliberative bodies, some strong
members are able to impress their will upon
the weaker [citation omitted] ; but
acknowledgment of the imperfection of human
nature is quite a different thing from the
creation of an environment conducive to such
behavior. For the same reason, we must reject
 the defendant's contention that the [failure
to agree] charge promotes efficient use of
judicial resources by obviating the need for
protracted deliberations when a jury becomes
deadlocked on the top count by providing a
lesser included offense upon which a
compromise can be reached.
Boettcher, 505 N.E.2d at 597-98.

We find the New York court's reasoning compelling. For the
reasons stated above we hold that giving the acquittal first
instruction even in the face of defendant's request for the failure
to agree instruction was not error.

ISSUE IV: Mental State
The District Court ruled in favor of the State regarding the
jury instruction to be given on the definition of llpurposelyll
and
"kn~wingly.~
The following instructions were given:
A criminal homicide is deliberate
homicide if it is committed purposely or
knowingly.
A person acts purposely with respect to
conduct which is an element of the offense or
to a result which is an element of the offense
when he has the conscious object to engage in
that conduct or to cause that result.
A person acts knowingly with respect to
the result of conduct or a circumstance
described by a statute defining an offense
when he is aware that it is highly probable
that the result will be caused by his conduct
or the circumstance. When knowledge of the
existence of a particular fact is an element
of an offense, such knowledge is established
if a person is aware of a high probability of
its existence. Equivalent terms such as
"knowingly1'or ''with knowledget1
have the same
meaning.
Defendant argues that the instruction set out above concerning
the mental state required to convict on a charge of deliberate
homicide was incorrect. Defendant contends that his proposed
instruction, which the trial court ruled an erroneous statement of
the law, should have been given. The proposed instruction would
have required that the jury find the defendant had acted "with the
knowledge he was causing or with the purpose to cause the death."
Defendant's proposed instruction is not the law in Montana.
It is no longer necessary to prove specific intent as an element
of the crime unless the statute defining the offense requires as
an element thereof specific purpose. State v. Starr (1983), 204
Mont. 210, 218, 664 P.2d 893, 897. As the trial court noted in
refusing defendant's proffered instructions, a defendant can
properly be convicted of deliberate homicide even though he may not
have intended that the death result from the act where he
contemplated the same kind of harm or injury to the victim. State
v. Sigler (1984), 210 Mont. 248, 264-66, 688 P.2d 749, 757-58.
Defendant labels the Sisler holding an llanomalyll contends
and
it should be overruled. On the contrary, Sisler is well-settled
law and its holding has been affirmed often by this Court. See
State v. Blalock (1988), 232 Mont. 223, 756 P.2d 454; State v.
McKimmie (1988), 232 Mont. 227, 756 P.2d 1135; State v. Ballenger
(1987), 227 Mont. 308, 738 P.2d 1291; State v. Koepplin (1984), 213
Mont. 55, 689 P.2d 921. We once again affirm the Sisler holding
and find that the trial court correctly instructed the jury
concerning mental state.
 ISSUE V: Rebuttal Testimony of State's
Expert Witness
Finally, defendant contends the trial court abused its
discretion in allowing the State's expert witnesses, psychiatrist
William Stratford and psychologist Herman Walters, to rebut Dr.
Mandells opinion regarding the defendant's mental state. Defendant
premises his objection on the fact no Miranda warnings were given
before Dr. Stratford and Dr. Walters interviewed him within hours
of his arrest on December 6, 1984. Defendant further contends that
any communication between himself and the doctors is protected by
the psychologist-patient privilege provided in 5 26-1-807, MCA.
Preliminary determination as to the qualification of a person
to be a witness rests with the trial court. Rule 104(a),
M.R.Evid., and § 46-16-211, MCA. The trial judge determines the
witness1 competency and the party asserting incompetency has the
burden of proving it. State v. Stephens (1982), 198 Mont. 140,
143, 645 P.2d 387, 389. Unless a specific exception applies, a
witness generally may be disqualified only if he is incapable of
expressing himself or is incapable of understanding the duty to
tell the truth. Rule 601, M.R.Evid. State v. D.B.S. (1985), 216
Mont. 234, 243, 700 P.2d 630, 636.
On appeal, this Court defers to the discretion of the District
Court on the admission of evidence, State v. LaPier (1984), 208
Mont. 106, 111, 676 P.2d 210, 213, and reviews the District Court's
rulings for manifest abuse. State v. Courville (Mont. 1989), 769
P.2d 44, 47, 46 St.Rep. 338, 341.
Upon review of the record as a whole, we find no abuse of
discretion here. We defer to the trial court's discretion and find I
that the rebuttal testimony of Dr. Stratford and Dr. Walters was
properly admitted.

Finding no error in the lower court proceedings, we affirm the
jury verdict below.

We concur:

Chief Justice