State v. Austad

• Citation: 641 P.2d 1373,39 St.Rep. 356,197 Mont. 70
• Decision Date: 25 March 1982
• Docket Number: No. 80-319,80-319
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Gene Andrew AUSTAD, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

Page 1373

641 P.2d 1373

197 Mont. 70

The STATE of Montana, Plaintiff and Respondent, v. Gene Andrew AUSTAD, Defendant and Appellant.

No. 80-319.

Supreme Court of Montana.

Submitted Nov. 30, 1981.

Decided Feb. 25, 1982.

As Modified on Denial of Rehearing March 25, 1982.

Daniel Donovan argued, Public Defender, Great Falls, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, Mary B. Troland argued, Asst. Atty. Gen., Helena, J. Fred Bourdeau, County Atty., Great Falls, for plaintiff and respondent.

WEBER, Justice.

Defendant Gene Austad appeals from a jury verdict in the Eighth Judicial District Court, Cascade County, in which he was found guilty of deliberate homicide, aggravated robbery, sexual intercourse without consent, and aggravated burglary, all felonies. He was sentenced to life plus 120 years in prison and designated a dangerous offender. We affirm the District Court.

Defendant raises the following issues:

1. Whether the trial court erred in ruling that defendant was mentally and physically fit to proceed to trial.

2. Whether the trial court erred in admitting into evidence certain photographs of the victim.

3. Whether the trial court erred in refusing to grant defendant a change of venue.

4. Whether the trial court prejudiced the defendant by making inconsistent rulings on challenges for cause of prospective jurors.

5. Whether the trial court erred in allowing the State to present evidence of defendant's character and his prior felony conviction, ruling that he had "opened the door."

6. Whether the trial court erred in admitting into evidence State's exhibit No. 4 (the vest) and related expert testimony, over objections as to proper identification, foundation and chain of custody.

7. Whether the trial court erred in denying defendant's motion to take the depositions of expert witnesses of the State who lived out of state and refused to be interviewed by the defense over the phone.

8. Whether the trial court erred in giving instruction No. 14, which involved "flight of a person immediately after the commission of a crime."

9. Whether the trial court erred in its treatment of certain defense motions by failing to make rulings, failing to state specific grounds for its rulings, and reversing some of its earlier rulings without notice or without adequate notice.

Defendant raised a number of small issues; we will address those issues in their turn.

Facts and Procedures

At approximately 1:00 o'clock A.M. on April 22, 1978, two members of the Great Falls Police Department stopped a car for speeding. The driver (defendant) and a male passenger (Clifford Elliott) got out of the vehicle at the officers' request. On the pretext of getting his driver's license, defendant got back in the car, and sped off. The officers immediately gave chase, leaving the passenger behind. Defendant was observed throwing papers and various articles of clothing out the car window as he swerved through traffic on Tenth Avenue South, a main thoroughfare in Great Falls. The chase, which proceeded at about 90 M.P.H., ended when defendant lost control and crashed into several cars on the lot of a local car dealer. As a result of the wreck, defendant was comatose for weeks and spent months in the hospital. After his accident, he had and continues to have amnesia, some paralysis and muscle weakness, a speech impairment and other physical disabilities. He can walk with a walker but is usually confined to a bed or a wheelchair. His speech is coherent, but slow and occasionally difficult to understand.

At the time of the wreck, a police officer investigating the accident noticed many papers in the car, and could make out the name "Wald" on some of them. He suspected a burglary, and police were dispatched to the Wald address. There they found a broken window and a door slightly ajar. In the bedroom they found the naked body of 69-year-old Mabel Wald, badly beaten, with a butcher knife in her chest.

Further investigation revealed the following information. Among the items thrown out of defendant's car were bonds made out to Blaine and Mabel Wald and a vest containing glass particles similar to glass particles from the broken-out window of the victim's home, through which the initial entry was apparently made. Among the items inside the car were numerous articles belonging to the victim. Defendant's thumb print was found on a lamp in the victim's bedroom. The lamp was next to the victim's head, and its base was dented. Tire tracks in a nearby alley were similar to those defendant's car would have left. An autopsy on the victim (a widow) indicated recent sexual activity. The defendant, in the course of his job with a moving company, had helped the victim move into her home two days before she was murdered. At the time of the move, the victim had indicated twice in defendant's presence that she herself would move the strongboxes containing her currency.

Clifford Elliott was later apprehended and interrogated. His testimony revealed that at about 8:00 o'clock P.M. the night of the crime, in a Great Falls bar, defendant had offered to pay Elliott $100.00 to go to the home of a woman he had just moved, to steal some items. Elliott refused; when the defendant returned to the bar around midnight wanting to show Elliott something in his car, Elliott accompanied him outside. There defendant showed him a purse, papers and a strongbox in defendant's car.

On April 27, 1978, defendant was charged by information with deliberate homicide, aggravated robbery, sexual intercourse without consent, and aggravated burglary.

Defendant was not served with a copy of the information until September 18, 1978, because the State feared the injuries he had sustained might interfere with defendant's ability to communicate and comprehend. He was arraigned on December 27, 1978, remaining silent, and a not guilty plea to all charges was entered in his behalf.

In February of 1979, defendant was released from the hospital. His bail was reduced, permitting him to be taken to the home of his parents where he would be given the personal care then indicated by his condition.

Defendant moved for change of venue, sequestration of prospective jurors during voir dire examination and during trial, and individual voir dire examination of prospective jurors. Individual voir dire was granted. On August 24, 1979, following a series of psychiatric and medical examinations of defendant to determine his fitness to proceed, the District Court held an in camera hearing to determine defendant's fitness to proceed to trial, his ability to assist and communicate with his counsel, and the extent to which the State's evidence could be reconstructed.

On October 2, 1979, the District Court found the defendant capable of proceeding to trial and set a trial date of November 20, 1979. Because of defendant's condition, trial was to be held for no more than four hours per day.

On November 1, 1979, defendant's motion to close pretrial proceedings was granted. Individual voir dire examination of prospective jurors began on December 3, 1979, closed to the press and public. During voir dire, the District Court granted a motion by the defense that defendant serve as co-counsel. On December 14, 1979, the Great Falls Tribune obtained a writ of supervisory control in this Court, regarding the exclusion of press and public. This Court stayed proceedings until January 18, 1980, when, after oral argument was heard, we vacated the District Court's order excluding press and public from voir dire proceedings. See Great Falls Tribune v. District Court (1980), Mont., 608 P.2d 116, 37 St.Rep. 502.

Jury selection resumed on January 24, 1980, and the evidentiary stage of the trial began on February 19, 1980. The jury returned a verdict of guilty on all counts, March 6, 1980, and on May 2, 1980, the District Court sentenced defendant to a total of life plus 120 years. Defendant appeals.

I.

Defendant argues that the trial court should have found him unfit to stand trial because his amnesia rendered him incapable of assisting in his own defense. He claims he could not reconstruct events which occurred the night of the crime, could not develop a defense of alibi or proof of another person's guilt, and could not testify effectively in his own behalf. Finally, he argues that the trial court erred in not meeting the standards established in Wilson v. United States (D.C.Cir.1968), 391 F.2d 460. According to defendant, the least this Court can do is remand for a Wilson -type post-trial hearing.

In Wilson, the Circuit Court of Appeals set out a number of criteria to be applied before and after trial to determine whether an amnesiac criminal defendant could and did receive a fair trial. Wilson is not a Ninth Circuit decision. Nor have those federal courts dealing with the competence of amnesiac criminal defendants in the decade after Wilson adopted the Wilson standard, relying instead upon the less stringent test established in Dusky v. United States (1960), 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824. For those reasons, we decline to adopt the Wilson standard in Montana, finding the Dusky standard to be sufficient.

In Dusky, the United States Supreme Court stated:

"(The) test must be whether (the defendant) has sufficient 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." Dusky v. United States, 362 U.S. at 402, 80 S.Ct. at 789, 4 L.Ed.2d at 825.

The Dusky standard has been applied in the majority of federal cases in which a criminal defendant claimed amnesia rendered him unfit to stand trial; none of the federal courts, including the Wilson court, has held that amnesia per se constitutes incompetency. See United States v. Mota (5th Cir. 1979), 598 F.2d 995, 998, cert. denied sub nom. Flores v. United States (1980), 444 U.S. 1084, 100 S.Ct. 1042, 62...