State v. Hagerud

• Decision Date: 17 November 1977
• Docket Number: No. 13760,13760
• Parties: The STATE of Montana, Plaintiff and Appellant, v. Darol D. HAGERUD, Defendant and Respondent.
• Court: Montana Supreme Court

Page 1131

570 P.2d 1131

174 Mont. 361

The STATE of Montana, Plaintiff and Appellant, v. Darol D. HAGERUD, Defendant and Respondent.

No. 13760.

Supreme Court of Montana.

Submitted Sept. 15, 1977.

Decided Nov. 2, 1977.

Rehearing Denied Nov. 17, 1977.

Mike Greely, Atty. Gen., Helena, William A. Douglas, County Atty., argued, Libby, Ian Christopherson, Legal Intern, argued, for plaintiff and appellant.

Morrison & Hedman, Frank Morrison, Sr., argued, Whitefish, for defendant and respondent.

HASWELL, Justice.

Following a nonjury evidentiary hearing, the District Court of Lincoln County entered judgment acquitting defendant of deliberate homicide on the grounds of mental defect excluding responsibility. The state appeals from this judgment, or in the alternative seeks review and reversal by writ of supervisory control.

During the late afternoon, September 13, 1976, at the Frontier Bar in Rexford, Montana, defendant was drinking and playing pool with Wilma Eisenman, Fred Wales and Marilyn Mullin. Defendant, who had been divorced several months earlier, was "involved" with Wilma to the point they were considering marriage. During the pool game Wales made several comments to Wilma about certain things she had done at a party a few years earlier. Defendant, upset by these remarks, stormed into the rest room.

Wales followed defendant into the rest room, carrying a pool cue and laughing about his conversation with Wilma. When defendant and Wales emerged from the rest room, defendant was holding the pool cue in one hand and Wales by the shirt with the other. Defendant shoved Wales into a corner and began striking him with the pool cue and beating him with his fists. At this point Wilma and Marilyn left the bar and Marilyn called the law. After she completed the phone call, Marilyn saw defendant leave the bar.

When Marilyn re-entered the bar, Wales was sprawled across the pool table. Wales said to her: "I can't figure out why Darol did what he did to me." Wales then stood up, staggered around the bar, and collapsed dead. The broken pool cue and a broken beer bottle lay nearby.

An autopsy by a forensic pathologist revealed that, in addition to numerous bruises about Wales' body, Wales had sustained four blows on his upper forehead and the top and back of his head. Two of these blows could have been inflicted by an instrument similar to a pool cue; the other two blows could have been inflicted by an instrument such as a beer bottle. The pathologist concluded that any one or all of these four blows were the direct and proximate cause of Wales' death.

The defendant could not remember what happened in the rest room.

The Lincoln County attorney charged defendant with the crime of deliberate homicide by information filed in the District Court. Defendant timely filed a notice of intent to interpose two defenses: (1) mental incompetence excluding responsibility, and (2) self- defense. The district judge ordered defendant to Warm Springs State Hospital for psychiatric examination.

Dr. William Alexander, the clinical director at Warm Springs State Hospital, made a psychiatric examination and evaluation of defendant and rendered a report to the District Court. Dr. Alexander reported defendant had suffered severe head injuries in an industrial accident in 1966 resulting in organic brain damage. He indicated defendant was suffering from nonpsychotic brain syndrome associated with mild brain trauma and classified defendant as having a passive-aggressive personality, dependent type. Dr. Alexander concluded with an explanation of defendant's present condition in this language:

"Patient is aware of the nature of the charges against him and he is able to assist his lawyer in his own defense. He is aware of the criminality of the alleged charges. He is able to conduct himself according to the requirements of the law, and although he is able to have a particular state of mind which is an element of the offense charged, it seems a certainty that there was never any intention on his part to produce the actual end result of the fight. It is felt that this patient, in many ways, is a victim of circumstances."

In a later deposition, Dr. Alexander further explained his evaluation. He concluded that at the time of commission of the offense defendant was unable to conform his conduct to the requirements of the law because of a combination of his mental defect, his consumption of alcohol prior to the altercation, and his " * * * being in a particular situation at a particular time."

A psychological report by Katherine Gallagher, a psychologist at Warm Springs State Hospital, accompanied Dr. Alexander's report. She concluded that defendant suffered from a pressing deep-seated anxiety, hysterical neurosis and nonpsychotic organic brain syndrome.

At defense counsel's request, defendant was additionally examined by psychiatrists Dr. Robert Wetzler and Dr. Sol Levy, both of Spokane, Washington, and by a Kalispell, Montana psychologist, Dr. Herman Androes. At the county attorney's request, defendant was also examined by Dr. Richard Jarvis, a psychiatrist from Seattle, Washington.

All concurred with Dr. Alexander's diagnosis that on the day of the altercation defendant suffered from organic brain syndrome. In addition some of the examiners classified defendant as a passive-aggressive personality type; others thought he might have hysterical neurosis.

The defendant's and the state's examiners disagreed concerning the effect of defendant's mental defect on his conduct at the time of the alleged offense. Drs. Levy and Androes concluded that at the time of the alleged offense, defendant was unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Dr. Wetzler thought defendant's mental disorder impaired his ability to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. Dr. Jarvis concluded that defendant was not impaired to the extent of legal insanity, but rather that he had "intact" criminal responsibility at the beginning of the altercation. Dr. Jarvis conceded that defendant may have been carried away by overwhelming emotion in the course of the assault "going berserk, so to speak".

On January 20, 1977, the District Court, sitting without a jury, conducted a pretrial hearing on the defense of mental defect excluding responsibility. The reports of all examiners and various depositions were admitted in evidence. On February 3, the District Court entered findings of fact, conclusions of law, and a judgment of acquittal on the grounds of mental defect excluding responsibility. Defendant was committed to Warm Springs State Hospital. Following denial of the state's motion to reconsider, the state appealed from the judgment and alternatively requested this Court to review and reverse the District Court judgment by supervisory control in the event this Court felt the state had no right of direct appeal.

The issues raised by the parties in this proceeding can be summarized in this manner:

(1) Does the state have the right of direct appeal from the judgment?

(2) Is the judgment subject to review by this Court by writ of supervisory control?

(3) If the judgment is reviewable on the merits, should it be affirmed, modified or reversed?

The state contends that it has a statutory right of direct appeal from the judgment under section 95-2403(b)(1), R.C.M.1947, granting the state the right of appeal " * * * from any court order or judgment the substantive effect of which results in * * * dismissing the case". The state argues that the substantive effect of the District Court judgment is a dismissal of the case because the state will not be able to prove an essential element of the offense the required mental state.

The defendant asserts that the state has no right of appeal under common law, the Montana Constitution, or by statute. He urges that section 95-2403(b)(1) does not grant the state the right of appeal in this case because the substantive effect of the judgment is an acquittal of the defendant rather than a dismissal of the case and any statutory right of appeal granted the state is in derogation of the common law and must be strictly construed.

The state's right to a direct appeal from the District Court judgment in this case is governed exclusively by statute. Such right did not exist at common law. State v. Peck, 83 Mont. 327, 271 P. 707 (1928). The Montana Constitution does not specifically address the state's right of appeal in a criminal case. The controlling statute is section 95-2403 which provides in pertinent part:

"(a) Except as authorized by this code, the state may not appeal in a criminal case.

"(b) The state may appeal from any court order or judgment the substantive effect of which results in:

"(1) dismissing a case * * * ".

Although it is generally agreed that a statute in derogation of the common law must be strictly construed, this rule of statutory construction cannot be used to defeat the obvious purpose of the legislature, nor to lessen the scope plainly intended to be given the statute. 3 Sutherland, Statutory Construction, Sec. 61.02, p. 46 (4th Ed.1974). Here the intention of the legislature is clear from the language of the statute and extrinsic rules of statutory construction may not be employed to ascertain legislative intent. W. R. Grace Co. v. Dept. of Revenue, Mont., 567 P.2d 913, 34 St.Rep. 713 (1977), and cases cited therein. Here the legislature clearly granted the state the right of appeal "from any court order or judgment the substantive effect of which results in * * * dismissing a case".

Nonetheless, the language of the statute grants the state no right of direct appeal in this case. The substantive effect of the judgment here is not dismissal of the case. The substantive effect is acquittal of the defendant. The two terms are neither mutually inclusive nor synonymous. In a dismissal of the case,...