STATE EX REL MAIN v DIST COURT

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No. 12753 I N T E SUPREME COURT O T E STATE O M N A A H F H F OTN 1974 STATE O M N A A ex rel. WILLIAM T. M A I N , F OTN Relator, T E DISTRICT C U T O T E FIFTH JUDICIAL H OR F H DISTRICT O THE STATE O M N A A I N AND F F OTN, FOR THE COUNTY O BEAVERHEAD, and THE F HONORABLE F A K E. BLAIR, P r e s i d i n g Judge, RN Respondents. ORIGINAL PROCEEDING : Counsel o f Record: For R e l a t o r : Smith, Smith and Sewell, Helena, Montana Chadwick H , Smith argued, Helena, Montana For Respondents: Hon. Robert L. Woodahl, Attorney General, Helena, Montana W. G. G i l b e r t 111, County Attorney, argued, D i l l o n , Montana Submitted: Filed : JvL 8 1 1914 May 23, 1974 Mr. Justice John Conway Harrison delivered the Opinion of the Court. This is an original proceeding wherein relator William T. Main petitions for a writ of supervisory control or other appropriate writ seeking in effect dismissal of an Information and a finding of acquittal by the district court of the fifth judicial district, county of Beaverhead. The issues here arose out of the filing of an Information charging the crimes of rape and assault in the first degree. The Information was filed on March 2, 1971. Relator was represented by counsel who represented to the court that relator suffered from a mental defect and required a psychiatric examination, The court granted counsel's request and petitioner was committed to the state hospital for evaluation without an arraignment. Following examination and evaluation, a report was made to the court by Dr. M.F. Gracia, clinical director at the state hospital. The report stated relator was suffering from a mental defect or disease which prevented him from conforming his conduct to the requirements of the law at the time of the criminal conduct charged and further that relator's capacity to understand the proceedings against him and assist in his own defense was impaired. This report was filed on April 14, 1971. On July 3, 1971, following the submission of briefs by both parties, the court found relator was suffering from mental disease which prevented him from understanding the nature of the proceedings against him and from assisting in his own defense. The court committed relator to the state hospital until such time as he was able to understand the nature of the proceedings against him and to assist in his own defense, Relator remained at the state hospital pursuant to the court's order, undergoing treatment under the direction of Dr. Gracia. On August 4, 1972, relator's guardian moved the court to allow relator to be transferred to American Lake Hospital in Tacoma, Washington, ( a federal hospital) for more extended treatment. This treatment was recommended by a staff psychiatrist at the state hospital. No action was taken by the court for nearly one year, when on July 9, 1973, relator moved the court to dismiss the Information and grant a judgment of acquittal on the grounds that at the time of the crime relator was suffering from a mental disease or defect which rendered him unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. A hearing was had on relator's motion on November 13, 1973, Relator offered the testimony of Dr. Gracia and the state offered the testimony of a Dr. Stanley G. Moisey, a practicing psychiatrist from Missoula, Montana. The transcript of this hearing along with all of the files and exhibits of this case are before this Court for consideration. Dr. Gracia testified as to relator's psychiatric history: 1. That he had first examined relator in 1966 on an emergency commitment and relator was under his care for some two and a half months. 2 . That relator had a history of mental illness dating back to 1962 according to medical records of the United States Army. These records indicate he was treated at Letterman General Hospital in San Francisco for psychiatric disorders. 3. That from 1962 to the time of the alleged crimes, relator had a history of commitment and recommitment in mental institutions including the American Lake Hospital in Washington. Based on the treatments given relator at the state hospital under the supervision of Dr. Gracia and the medical records available from other mental treatment institutions, Dr. Gracia diagnosed relator's condition to be acute schizophrenia, schizophrenia paranoid type, anti-social personality and schizophrenic-chronic undifferentiated type. Dr. Gracia's opinion, after examining and treating relator, was that he I ' * * * was not able to conform his conduct to the requirements of the law at the time of the criminal conduct charged * * *. " D r . Moisey t e s t i f i e d f o r t h e s t a t e and s t a t e d he had examined r e l a t o r between October 18 and October 29, 1973. In a d d i t i o n he interviewed t h e v i c t i m , t h e county a t t o r n e y of Beaverhead County and reviewed t h e c a s e h i s t o r i e s of t h e s t a t e h o s p i t a l and t h e American Lake H o s p i t a l , Tacoma, Washington, i n r e g a r d t o relator. With t h i s background of i n f o r m a t i o n , D r . Moisey t e s t i f i e d t h a t i n h i s opinion he d i d "not s e e evidence t h a t he was so g r o s s l y mentally d i s t u r b e d t h a t he was unable t o a p p r e c i a t e what he was doing a t t h e t i m e . I' I n h i s opinion r e l a t o r was p r e s e n t l y capable of s t a n d i n g t r i a l . I n weighing t h e c o n s i d e r a t i o n t o b e given D r . ~ o i s e y ' s testimony we n o t e t h a t j u s t t h r e e q u e s t i o n s b e f o r e t h e above quoted testimony, D r . Moisey t e s t i f i e d : "Well from m examination of y e William Main, i t was n o t p o s s i b l e f o r m t o determine h i s s t a t e of mind a t t h e time o f t h e a l l e g e d o f f e n s e i n 1971." Dr. ~ o i s e y ' s examination of r e l a t o r occurred two and one h a l f y e a r s a f t e r t h e o f f e n s e and no testimony was o f f e r e d by D r . Moisey o r t h e s t a t e w i t h r e g a r d t o r e l a t o r ' s a b i l i t y a t t h e time of t h e a l l e g e d o f f e n s e t o conform h i s conduct t o t h e requirements of t h e law. O December 11, 1973, a f t e r t h e h e a r i n g , Judge B l a i r e n t e r e d n an o r d e r denying r e l a t o r ' s motions on t h e b a s i s t h a t D r . Moisey expressed an opinion t h a t : ( a ) i n s p i t e of h i s h i s t o r y of mental d i s e a s e , defendant has t h e c a p a c i t y t o understand t h e proceedings a g a i n s t him and t o a s s i s t i n h i s own defense; (b) t h a t defendant was a b l e t o a p p r e c i a t e t h e c r i m i n a l i t y of h i s conduct and t o conform h i s conduct t o t h e requirements of t h e law a t t h e time of t h e c r i m i n a l conduct charged. On t h a t b a s i s Judge B l a i r s t a t e d t h a t a f a c t u a l q u e s t i o n f o r t h e j u r y was r a i s e d . On December 24, 1973, t h e county a t t o r n e y dismissed t h e o r i g i n a l Information and r e f i l e d a n i d e n t i c a l Information c h a r g i n g r e l a t o r w i t h t h e same o f f e n s e s . Three i s s u e s a r e p r e s e n t e d i n t h i s a p p l i c a t i o n f o r a w r i t of s u p e r v i s o r y c o n t r o l , a l l a r e d i r e c t e d t o t h e t r i a l c o u r t ' s abuse o f discretion: 1. The district court committed reversible error in refusing to grant relator's motion to dismiss and for judgment of acquittal on the grounds that the only competent evidence shows that at the time of the alleged offense relator was unable to appreciate the criminality of his conduct or to conform his condust to the requirements of the law because of a mental disease or defect. 2. The district court committed reversible error in refusing to dismiss the Information on the ground that so much time had elapsed since the arrest that it would be unjust to resume the criminal proceedings under the circumstances of this case. 3. The issues presented by this application are not render- ed moot by the action of the district court in dismissing the Information against relator and allowing immediate refiling of an identical Information. In our discussion of the issues raised we will consider the issues as one. Relator argues that in failing to grant relator's motion to dismiss and for a judgment of acquittal the trial court committed error. 507, R.C.M. The controlling statutes are sections 95-501, 505, 1947. Under the provisions of section 95-501, in order to sustain a criminal charge the state must be able to prove criminal intent: "95-501. Mental disease or defect excluding responsibility. (a) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he is unable either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law,I I In this case the defense of mental disease or defect was given and the district court, following the provisions of section 95-505, R.C.M. 1947, sent relator to the state hospital for an evaluation and to determine whether or not relator understood the criminality of his conduct or could conform his conduct to the requirements of the law at the time of the criminal conduct charged or had the capacity to assist in his defense. Section 95-505, R.C.M. 1947, provides: "95-505. P s y c h i a t r i c examination of defenda n t with r e s p e c t t o mental d i s e a s e o r d e f e c t . (a) Whenever t h e defendant has f i l e d a n o t i c e of i n t e n t i o n t o r e l y on t h e defense of mental d i s e a s e o r d e f e c t excluding r e s p o n s i b i l i t y , o r t h e r e i s reason t o doubt h i s f i t n e s s t o proceed, o r reason t o bel i e v e t h a t mental d i s e a s e o r d e f e c t of t h e defenda n t w i l l otherwise become an i s s u e i n t h e cause, t h e c o u r t s h a l l appoint a t l e a s t one (1) q u a l i f i e d p s y c h i a t r i s t o r s h a l l request t h e superintendent of t h e Montana s t a t e h o s p i t a l t o designate a t l e a s t one (1) q u a l i f i e d p s y c h i a t r i s t , which designation may be o r include himself, t o examine and r e p o r t upon t h e mental condition of t h e defendant. The c o u r t may order t h e defendant t o be committed t o a h o s p i t a l o r o t h e r s u i t a b l e f a c i l i t y f o r t h e purpose of t h e examination f o r a period of n o t exceeding s i x t y ( 6 0 ) days o r such longer period a s t h e c o u r t d e t e r mines t o be necessary f o r t h e purpose and may d i r e c t t h a t a q u a l i f i e d p s y c h i a t r i s t r e t a i n e d by the defenda n t be permitted t o witness and p a r t i c i p a t e i n t h e examination. II (b) I n such examination any method may be employed which i s accepted by t h e medical profession f o r t h e examination of those a l l e g e d t o be s u f f e r i n g from mental d i s e a s e o r d e f e c t . "(c) The r e p o r t of t h e examination s h a l l include t h e following : "(1) A d e s c r i p t i o n of t h e n a t u r e of t h e examination; A diagnosis of t h e mental condition of t h e "(2) defendant; "(3) I f t h e defendant s u f f e r s from a mental d i s e a s e o r d e f e c t , an opinion a s t o h i s c a p a c i t y t o understand t h e proceedings a g a i n s t him and t o a s s i s t i n h i s own defense. "(4) When a n o t i c e of i n t e n t i o n t o r e l y on t h e defense of i r r e s p o n s i b i l i t y has been f i l e d , an opinion a s t o t h e a b i l i t y of t h e defendant t o app r e c i a t e t h e c r i m i n a l i t y of h i s conduct o r t o conform h i s conduct t o t h e requirements of law a t t h e time of t h e c r i m i n a l conduct charged; and "(5) When d i r e c t e d by t h e c o u r t , an opinion a s t o t h e c a p a c i t y of t h e defendant t o have a p a r t i c u l a r s t a t e of mind which i s an element of t h e offense charged. !I I f t h e examination cannot be conducted by reason of t h e unwillingness of t h e defendant t o p a r t i c i p a t e t h e r e i n , t h e r e p o r t s h a l l so s t a t e and s h a l l include, i f p o s s i b l e , an opinion a s t o whether such unwillingness of t h e defendant was t h e r e s u l t of mental d i s e a s e o r d e f e c t . ' he report of the examination shall be filed (in triplicate) with the clerk of court, who shall cause copies to be delivered to the county attorney and to counsel for the defendant.It Having followed the above procedural statutes, and having received the statements of evaluation and prognosis of the two psychiatrists the court was then confronted with the alternative actions that can be applied under the provisions of section 95507( ) R.C.M. a, 1947: "95-507. Determination of irresponsibility on basis of report--access to defendant by psychiatrist of his own choice--form of expert testimony when issue of responsibility is tried. ( ) If the report filed pursuant to section a 95-505 finds that the defendant at the time of the criminal conduct charged suffered from a mental disease or defect which rendered him unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of law, and the court, after a hearing if a hearing is requested by the attorney prosecuting or the defendant, is satisfied that such mental disease or defect was sufficient to exclude responsibility, the court on motion of the defendant shall enter judgment of acquittal on the ground of mental disease or defect excluding responsibility. " The problem here is whether under the discretionary provisions of section 95-507, there was an abuse of discretion in giving such weight to the testimony of Dr. Moisey as to now require the question of mental competency to go to a jury. Respondent court argues that this is a matter entirely up to the discretion of the trial court; that there have been three hearings before the court during which time the court could observe relator and that in employing Dr. Moisey the court could and did get medical testimony that, in the court's opinion, was such that he (the trial judge) felt the matter should be submitted to a jury. Relator argues that Dr. Moisey's testimony failed to raise a factual question, noting that Dr. Moisey did not, and he testified he could not, testify as to relator's mental condition at the time of the criminal act charged, as required by section 95-507, R.C.M. 1947. We agree. The s t a t u t e was p a r t i c u l a r l y designed t o procedurally process j u s t such a c a s e a s we have before us here. Relator has been i n custody over t h r e e and one-half years a t t h e s t a t e h o s p i t a l and t h e overwhelming weight of a l l of t h e testimony, much of which i s based on t h e medical records before t h e c o u r t , i s t h a t r e l a t o r s u f f e r s from such mental d i s e a s e o r d e f e c t a s t o exclude r e s p o n s i b i l i t y f o r h i s a c t s . There i s no medical testimony c o n t r a r y t o D r . ~racia's testimony t h a t r e l a t o r "was not a b l e t o conform h i s conduct t o t h e requirement of t h e law a t t h e time of t h e criminal conduct charged." D r . Gracia based t h i s opinion on (1) an examination of r e l a t o r s e v e r a l weeks a f t e r t h e a l l e g e d crime; (2) upon ext e n s i v e psychological t e s t i n g and medical examination including observation by s t a f f personnel every day f o r s e v e r a l y e a r s ; ( 3 ) upon t h e study of r e l a t o r ' s s o c i a l h i s t o r y and h i s t o r y of ment a l i l l n e s s d a t i n g back t o 1962; and ( 4 ) t h e d o c t o r ' s personal c o n t a c t with r e l a t o r beginning i n 1966. I n S t a t e ex r e l . K r u t z f e l d t v. D i s t r i c t Court, 9 515 P.2d 1312, 1315, 30 St.Rep. - . Mont 993, t h i s Court discussed t h e procedures provided f o r i n s e c t i o n 95-507(a), R.C.M. 1947: *** That comment makes i t c l e a r t h a t i f , i n t h e judge's opinion and a f t e r a hearing i f r e quested by e i t h e r a t t o r n e y , a defendant was c l e a r 1 s u f f e r i n g from mental d i s e a s e a t t h e time of 7it e crime then t h e judge can a c q u i t t h e defendant and have him committed t o a s t a t e i n s t i t u t i o n forthwith. The purpose i s p l a i n - - t o avoid a c o s t l y t r i a l where *" t h e mental d e f e c t i s p l a i n and obvious. * " * The e n t r y of judgment of a c q u i t t a l by the t r i a l c o u r t does n o t mean t h e r e l a t o r goes f r e e . 95-508(a), R.C.M. The provisions of s e c t i o n 1947, procedurally provide f o r t h e s e cases. I n S t a t e v. Taylor, 158 Mont. 323, 335, 4 9 1 P.2d 877, t h i s Court i n i n t e r p r e t i n g s e c t i o n 95-508(a) s a i d t h a t a person so committed would n o t be r e l e a s e d from t h e s t a t e h o s p i t a l u n l e s s t h e r e l e a s e was recommended by t h e superintendent and t h e person committed could e s t a b l i s h a t a hearing held before t h e d i s t r i c t judge who signed the commitment, beyond a reasonable doubt that he would not be dangerous in the forseeable future. We noted in Taylor, that the judicial supervision under these circumstances $1 is to protect the public as well as the individual by insur- ing that standards for release are not subverted by allowing the final determination to be according to the individual subjective standards of the hospital staff." Under Montana stat- utes only the trial court, the committing court, has the power to discharge or conditionally release. Therefore, we direct the trial court to reverse its order entered on December 11, 1973 and enter a judgment of acquittal on the ground of mental disease or defect excluding responsibility. Thereafter, we direct that commitment proceedings be held in accord with the provisions of section 95-507, R.C.M. i We concur: Justice 4 I 1947.

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