State v. Ostwald

• Decision Date: 07 March 1979
• Docket Number: No. 14376,14376
• Citation: 36 St.Rep. 442,180 Mont. 530,591 P.2d 646
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Edward Lyle OSTWALD, Defendant and Appellant.
• Court: Montana Supreme Court

Page 646

591 P.2d 646

180 Mont. 530

The STATE of Montana, Plaintiff and Respondent, v. Edward Lyle OSTWALD, Defendant and Appellant.

No. 14376.

Supreme Court of Montana.

Submitted Jan. 30, 1979.

Decided March 7, 1979.

Robert L. Stephens, Jr., David B. Kinnard (argued), Billings, for defendant and appellant.

Michael T. Greely, Atty. Gen., Richard Larson, Asst. Atty. Gen. (argued), Helena, Harold Hanser, County Atty., James D. Walen, Deputy County Atty., (argued), Billings, for plaintiff and respondent.

HASWELL, Chief Justice.

Defendant appeals from his conviction of the crimes of burglary and misdemeanor possession of dangerous drugs following a jury trial in the District Court of Yellowstone County.

In the early morning hours of December 26, 1977, when the janitor of the Billings Eagles Club reported for work, he noticed that the club's front door had been pried open. As he approached the building, he heard what he thought was hammering inside. He then left and contacted the authorities.

Shortly after 3:30 a. m., several sheriff's deputies and city police officers were dispatched to the club and deployed around the building. An officer and a deputy approached the front door and glimpsed defendant inside. They called out to him and he began to flee. Defendant ran out the rear of the club where he was apprehended by a deputy sheriff stationed there. Several of the deputies and defendant then returned to the club where a damaged safe and a variety of hand tools were discovered. The tools belonged to defendant.

During the course of the arrest, a deputy sheriff asked defendant what he was doing inside the building. Defendant answered that he did not know. A subsequent inventory search of defendant uncovered two cigarettes which the officers suspected to be marijuana. The substance in the cigarettes was later tested by one of the officers with a "valtox kit" (a selection of chemical reagents, some of which produce a characteristic color when combined with marijuana) with positive results. The suspected substance was never sent to the state crime laboratory for any further testing.

On December 28, 1977, an information was filed in the District Court, Yellowstone County, charging defendant with the crimes of burglary and misdemeanor possession of dangerous drugs. At his arraignment on January 4, 1978, defendant pled not guilty to both offenses. Trial by jury was scheduled for April 18, 1978.

On the day of the trial, counsel sought to endorse as an additional witness a psychologist who had performed a battery of tests on defendant. The psychologist was to testify that because of the effects of alcohol on defendant, "the disease of alcoholism and the actual brain damage he has suffered through the years", defendant was incapable of acting with a conscious object and could not have had the requisite mental state that is an element of the crime of burglary. The State objected to this proposed testimony on the grounds that it constituted a defense of mental disease or defect and that written notice pursuant to section 95-503, R.C.M. 1947, now section 46-14-201 MCA had not been given. Defendant argued that the testimony of the psychologist would go only to the defense of intoxication for which written notice is not required. The State contended that if an accused relies on a particular alcoholic episode to raise intoxication as a mitigating factor then he is not required to give notice; if, however, he relies on a defense of alcoholism in a generic sense as a mental disease or defect, as here, then the notice requirement applies. The court reserved its ruling on the State's motion to exclude the expert testimony until after all the other defense witnesses had finished testifying. At that time, the court granted the motion and excluded the psychologist's testimony.

Three of the arresting officers testified at the trial. All testified they observed defendant's manner of speech and ability to carry on a conversation, his coordination and general condition, and each concluded defendant was not intoxicated at the time of his arrest. One deputy testified he smelled a faint odor of alcohol about defendant at the time he was being booked but he too stated defendant appeared sober, that he was coherent and his coordination was good.

Defense witnesses who had seen defendant during the eighteen hour period prior to his arrest testified in general that defendant was an alcoholic, that he had a history of irrational behavior when he was intoxicated, and that he was intoxicated throughout Christmas day, the day before his arrest. His wife and college age son testified that when defendant left the family home around 2:30 a. m. the morning of the incident, he was in an extreme state of intoxication.

Defendant himself testified that he was an alcoholic. He stated he had been drinking throughout the day prior to his arrest and could remember nothing from approximately noon of that day until he was awakened for breakfast in a jail cell the following morning.

At the close of trial, defendant offered instruction on criminal mischief and criminal trespass, arguing that those offenses were lesser included offenses in the crime of burglary and that the jury must be instructed on them. Those instructions were refused. Defendant also offered several alternative instructions on diminished capacity due to intoxication as a mitigating factor. The court refused defendant's proposed instructions and instead gave instructions regarding the effect of intoxication on criminal responsibility by quoting the applicable Montana statutes.

On April 20, 1978, the jury returned a verdict of guilty against defendant on both counts in the information. Defendant was sentenced to ten years in prison on the burglary charge and one year in county jail on the possession charge, to be served concurrently. Defendant's motion for admittance to bail pending appeal was denied.

Defendant raises three specifications of error in this appeal:

(1) Error in excluding the testimony of defendant's expert witness.

(2) Error in the giving and refusing of jury instructions.

(3) Sufficiency of the evidence to sustain defendant's conviction of possession of marijuana.

In ruling on the motion to exclude defendant's proffered expert testimony, the court cited the Revised Commission Comment to section 95-503, R.C.M. 1947, now section 46-14-201 MCA, which provides in pertinent part: "If the defendant fails to give notice of his intent to rely on a defense of lack of specific intent he does not lose that defense, but he will be limited to 'lay' testimony which generally is not effective for a defense of mental disease or defect." The text of section 95-503, R.C.M. 1947, now section 46-14-201 MCA, reads:

"(a) Mental disease or defect excluding responsibility is an affirmative defense which the defendant must establish by a preponderance of the evidence.

"(b)(1) Evidence of mental disease or defect excluding responsibility is not admissible unless the defendant, at the time of entering his plea of not guilty or within ten (10) days thereafter or at such later time as the court may, for good cause, permit, files a written notice of his purpose to rely on such defense.

"(2) The defendant shall give similar notice when in a trial on the merits, he intends to rely on a mental disease or defect, to prove that he did not have a particular state of mind which is an essential element of the offense charged. Otherwise, except on good cause shown, he shall not introduce in his case in chief, expert testimony in support of that defense.

"(c) When the defendant is acquitted on the ground of mental disease or defect excluding responsibility, the verdict and the judgment shall so state."

In addition, there is another separate statute regarding the notice requirement. Section 95-1803(3)(a), R.C.M. 1947, now section 46-15-301(2)(a) MCA provides:

"For purpose of notice only and to prevent surprise, the defendant shall furnish to the prosecution and file with the clerk of the court, at the time of entering his plea of not guilty or within 10 days thereafter or at such later time as the court may for good cause permit, a statement of intention to interpose the defense of mental disease or defect, self-defense, or alibi."

Defendant argues that he was not required to give notice because he was proceeding under section 94-2-109, R.C.M. 1947, now section 45-2-203 MCA, which has no notice requirement. That statute provides:

"A person who is in an intoxicated or drugged condition is criminally responsible for conduct unless such condition is involuntarily produced and deprives him of his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. 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's purpose in offering the testimony of the psychologist was to demonstrate that defendant, because of his history of alcoholism and alcoholic personality, would be more prone on a given occasion of intoxication to be deprived of the ability to appreciate the criminality of his conduct than would a person who had no such attributes. The psychologist could not have testified to defendant's intoxication at the time of the commission of the offenses with which he was charged because the psychologist did not see him at that time. The expert testimony could only have gone to the likelihood that if defendant had in fact been drinking heavily on the day of the crime, then the disease of alcoholism from which he suffers would make it more probable that his intoxication would prevent him from acting knowingly and purposely within the meaning of the statute defining the offense of burglary. Section 94-6-204, R.C.M. 1947, now section 45-6-204 MCA. We hold that the defense raised by this theory falls within the purview of the statutes requiring...