State v. Doney

• Decision Date: 20 October 1981
• Docket Number: No. 81-70,81-70
• Citation: 38 St.Rep. 1707,194 Mont. 22,636 P.2d 1377
• Parties: STATE of Montana, Plaintiff and Respondent, v. Dennis Virgil DONEY, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1377

636 P.2d 1377

194 Mont. 22

STATE of Montana, Plaintiff and Respondent, v. Dennis Virgil DONEY, Defendant and Appellant.

No. 81-70.

Supreme Court of Montana.

Submitted Sept. 18, 1981.

Decided Oct. 20, 1981.

Morrison, Ettien & Barron, Havre, Chris R. Young argued, Havre, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, Sheri K. Sprigg argued, Asst. Atty. Gen., Helena, Ronald W. Smith, County Atty., Havre, David G. Rice argued, Deputy County Atty., Havre, for plaintiff and respondent.

WEBER, Justice.

After trial by jury, defendant was convicted in the Twelfth Judicial District Court, Hill County, of aggravated assault and attempted robbery. He appeals the conviction. We affirm.

The following issues are presented to this Court for review:

1. Whether the District Court erred in denying defendant's motion for a directed verdict of acquittal.

2. Whether the District Court erred in refusing to overturn the jury's verdict of not guilty of attempted deliberate homicide, but guilty of the lesser included offense of aggravated assault and guilty of attempted robbery.

3. Whether the District Court erred in refusing to commit the defendant to the custody of the director of the Department of Institutions.

On February 17, 1980, shortly after midnight, three persons entered the Park Hotel in Havre. One of them, the defendant, wearing a long, dark coat and a dark western hat, became abusive to the night clerk who said there were no rooms. He straddled her chair, repeatedly pushing her down, threatening her and accusing her of hating Indians. The clerk said if he harmed her, the police would catch him. The defendant replied that he could be across the border before the police knew what happened. He then grabbed the night clerk's hand and attempted to remove her ring; when he could not, he took out a pocket knife, threatened to get the ring by cutting off her finger, and pressed the blade against her finger, leaving a white mark. The night clerk finally managed to rise whereupon the defendant seized her by the shoulder and stabbed her once in the abdomen, inflicting a wound that required several days' hospitalization. When an elderly woman approached and ordered the defendant to "Let that girl alone," he turned toward her, and the night clerk fled. She returned with help, but her assailant had fled. The night clerk recalled the defendant had worn a "smirky smile" during the attack, and once, when she glanced at his eyes, they appeared "glassy".

The following afternoon, defendant was arrested in the Great Falls bus depot and returned to Havre, where he was charged with attempted robbery and attempted deliberate homicide. Defendant indicated his intention to rely on the defense that, due to mental disease or defect, and due to his intoxicated and drugged condition, he was incapable of forming the requisite mental state. He was subsequently tested and examined by a psychologist and a psychiatrist.

Trial was held November 20, 1980. Defendant testified that, in the three or four days prior to the incident, in Great Falls, Harlem and Havre, he had had almost no sleep, but had been drinking steadily and injecting "speed". He also claimed to have smoked one "angel dust", or PCP-soaked, cigarette in Harlem the afternoon preceding the incident, while his girlfriend was in Dodson. He claimed to have smoked part of another "angel dust" cigarette in Havre within a few hours before the attack upon the night clerk. Defendant testified that he had no recollection of the attack, or even of being in the Park Hotel. He said he blacked out after leaving a bar and came to some time later, many blocks away.

Defendant's girlfriend and companion at the time of the Park Hotel incident corroborated his testimony to some extent. She recalled the sleepless days and nights, the heavy drinking and the consumption of speed and other drugs. But she did not recall defendant's possessing or mentioning PCP; nor did she recall going to Dodson while defendant remained in Harlem, the afternoon of February 16, 1980. She did recall defendant's being "really mellow" and "not hyped up" immediately prior to his assault upon the night clerk. She also testified that when the clerk told defendant she had no rooms, he assumed it was because he was an Indian and asked her, a white girl, to go in and ask if there were rooms. It was after the clerk told the girl there were no rooms that the assault occurred. Defendant's girlfriend did not hear him threaten the night clerk's life; indeed, the only person who testified that defendant had threatened to kill the night clerk was the night clerk herself.

The psychologist, Dr. Stineford, testified that he had examined defendant at four different times and administered six tests designed to determine IQ, brain damage and emotional/psychological patterns and characteristics of the subject. The tests indicated that defendant had a normal IQ and no apparent brain damage, but that he does have a tendency toward depression, hostile acting-out of feelings, and conflict with authority. The results of one test, a sequential-picture-arrangement test, on which defendant's performance was significantly below average (17th percentile), led Dr. Stineford to conclude that defendant has a "specific deficit" in ability to anticipate the consequences of his own behavior. This deficit could result in defendant's inability to have a conscious object to engage in conduct with an understanding of its probable results, particularly in fairly complex situations. Dr. Stineford conceded that his conclusions did not take into account the facts of this case. As a result, Dr. Stineford did not express an opinion as to whether or not the defendant was able to anticipate the consequences of his assault on the hotel clerk. When asked to express an opinion on the effect of drugs upon the actions of the defendant, Dr. Stineford admitted that, because of "the lack of information about the exact drugs, the amount of drugs taken into Mr. Doney's person, without a blood test and a scan to verify that he took any drugs at all, a definite opinion based on scientific evidence, for me, is not possible."

Dr. Earle, a psychiatrist who examined defendant, is familiar with PCP/angel dust. He testified that the drug's clinical use as an anesthetic was discontinued because it sometimes caused sudden, unpredictable episodes of violent and destructive behavior, during which patients could act without a conscious object and without awareness of their conduct. He concluded that defendant's bizarre, violent conduct and his "glassy" eyes were suggestive of angel dust, and that defendant's testimony coupled with his behavior indicated a "reasonable probability" that PCP was involved. Dr. Earle conceded that such behavior could also be related to lack of sleep, the use of alcohol, and an anti-social personality. He admitted that he had no test results and no evidence other than defendant's testimony and behavior to indicate that defendant had taken PCP.

After some negotiation, the jury instructions were accepted without objection by either side.

Defendant moved for a directed verdict of acquittal on the grounds that the "uncontroverted" evidence of defendant's mental defect and drug intoxication at the time the offense was committed showed that defendant was incapable of forming the requisite mental state. The court concluded that there was sufficient disagreement as to defendant's mental state to justify sending the matter to the jury.

Defendant then entered an objection to the verdict forms offered to the jury. The court found that the jury would be adequately instructed and the verdict forms would give them the proper alternatives to consider.

The jury found defendant guilty of attempted robbery and not guilty of attempted deliberate homicide, but guilty of the lesser included offense of aggravated assault.

Subsequently defendant moved for a new trial and alternatively for judgment notwithstanding the verdict. The motions were denied.

Defendant then requested that the court, in considering whether to add to the defendant's sentence under the persistent felony and mandatory minimum sentence statutes, take into account the evidence indicating significant impairment of defendant's mental capacity at the time of the commission of the crime. The defendant also requested that the court commit him because of his mental disease or defect, as provided in sections 46-14-311 and 46-14-312, MCA. The court denied defendant's request that he be committed.

Judgment was entered on December 8, 1980, sentencing defendant to the Montana State Prison for two ten-year terms to be served concurrently. The mandatory minimum sentences for persistent felony offender and offense involving use of a dangerous weapon were suspended and withheld respectively pursuant to the provisions of section 46-18-222(2), MCA, based upon the court's finding that the defendant's mental capacity at the time of the commission of the offense was significantly impaired although not so impaired as to constitute a defense to the prosecution.

Defendant appeals his conviction and his sentence to this Court.

I

The first issue raised by defendant is whether the District Court erred in denying his motion for a directed verdict of acquittal. Defendant relies primarily upon section 46-14-102, MCA, which states:

"Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did or did not have a state of mind which is an element of the offense."

and section 45-2-203, MCA, which states in relevant part:

"... An intoxicated or drugged condition may be taken into consideration in determining the existence of a mental state which is an element of the offense."

Defendant maintains that Dr. Stineford's testimony proved defendant suffered from a mental defect which precluded his forming the requisite mental state and...