STATE v PEAVLER
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No. 81-316 I N THE SUPREME COURT O T E STATE O M N A A F H F OTN 1981 T E STATE O MONTANA, H F P l a i n t i f f and Respondent, LEONARD DAVE PEAVLER, Defendant and A p p e l l a n t . D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t , Appeal from: I n and f o r t h e County o f Cascade Hon. H. W i l l i a m Coder, J u d g e p r e s i d i n g . Counsel o f Record: For A p p e l l a n t : Mark Bauer, P u b l i c D e f e n d e r , G r e a t F a l l s , Montana F o r Respondent: Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana J . F r e d Bourdeau, County A t t o r n e y , Great F a l l s , Montana -- - S u b m i t t e d on b r i e f s : Decided: Filed: b!OV 5. 4988 $' C PY Clerk September 2 5 , 1981 Mr. J u s t i c e J o h n Conway H a r r i s o n d e l i v e r e d tne Court. t h e Opinion of T h i s i s a n a p p e a l from a c o n v i c t i o n o f b u r g l a r y comm i t t e d i n Cascade County. The a p p e l l a n t was t r i e d by a j u r y and s e n t e n c e d t o f i v e y e a r s a s a n o n d a n g e r o u s o f f e n d e r . The s o l e i s s u e i s w h e t h e r t h e D i s t r i c t C o u r t e r r e d i n excluding expert intoxicated testimony condition on w h e t h e r deprived appellant's him of his alleged capacity to 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 c o n d u c t o r t o conform h i s c o n d u c t t o t h e r e q u i r e m e n t s o f t h e law. Appellant alcohol. has a 1980, alcohol-related a p p e l l a n t was at his drinking with three friends. not drinking, nearly a history of problems with h a s h e l d numerous j o b s u n t i l p a y d a y and t h e n He been f i r e d because o f 18, long testified case of beer problems. i n Helena, home On A p r i l Montana, H i s w i f e , who was p r e s e n t b u t that and the were four friends "pretty consumed smashed" when a p p e l l a n t l e f t f o r Great F a l l s i n mid-afternoon. That evening at approximately b u r g l a r y a l a r m went o f f 10:OO p.m. a silent a t Spencer's S t o r e i n t h e Holiday V i l l a g e s h o p p i n g m a l l and two p o l i c e o f f i c e r s i n t h e a r e a were dispatched to investigate. Upon arrival they found t h a t t h e bottom h a l f o f a s p l i t door l e a d i n g i n t o t h e s t o r e from the proceeded mall was into Subsequently, an unlocked the store individual but and bolted o u t t h e d o o r , and i n t o t h e m a l l . closed. past a The officers storage area. from t h e s t o r a g e a r e a , The o f f i c e r s c h a s e d and f i n a l l y subdued t h e i n d i v i d u a l . The thereafter. store owner and his son arrived shortly The p o l i c e and owner c h e c k e d t h e s t o r e , f o u n d no o n e e l s e , and t h e p o l i c e l e f t . A s t h e owner and h i s s o n c h e c k e d t o s e e what was m i s s i n g , they found a money bag, c u s t o m a r i l y u s e d t h e open t h e s t o r e , was m i s s i n g some $50. As t h e y were leaving, t h e owner noticed a p p e l l a n t e x t e n d i n g o u t from under area. The police. owner left the the a bench storage area hands of the in the storage and called the The p o l i c e e n t e r e d t h e s t o r e a g a i n and c a l l e d upon t h e a p p e l l a n t t o come o u t o f peacefully missing and money smoking was a hiding. cigarette. found in the Appellant Later, storage came o u t some room of the where the a p p e l l a n t had h i d d e n . S p e n c e r and t h e two a r r e s t i n g o f f i c e r s t e s t i f i e d t h a t t h e a p p e l l a n t emerged f r o m t h e s t o r e v e r y r e l a x e d , h i s e y e s were normal, and there were no signs of intoxication, a l t h o u g h t h e o f f i c e r s n o t e d a f a i n t o d o r o f a l c o h o l on h i s breath. A p p e l l a n t ' s d e f e n s e was, f i r s t , t h a t h e was a c h r o n i c a l c o h o l i c , c o u l d n o t c o n t r o l h i s d r i n k i n g , and was t h e r e f o r e involuntarily intoxicated a t the time of the Second, b e c a u s e of t h i s i n v o l u n t a r i l y - p r o d u c e d offense. intoxication, h e was c o m p l e t e l y d e p r i v e d o f h i s c a p a c i t y 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 c o n d uc t o r t o conform h i s a c t i o n s t o t h e r e q u i r e m e n t s of t h e law. A s p a r t of had psychiatrist, intended to ask a the defense, appellant Dr. Davis, and a p s y c h o l o g i s t , Dr. B a t e e n , t h e f o l l o w i n g q u e s t i o n : " D o c t o r , a s s u m i n g t h a t Dave P e a v l e r w a s i n t o x i c a t e d on A p r i l 1 8 , 1 9 8 0 , a n d , a s you know, was f o u n d i n S p e n c e r I s S t o r e i n H o l i d a y V i l l a g e i n G r e a t F a l l s , d o you h a v e an o p i n i o n on r e a s o n a b l e m e d i c a l / p s y c h o l o g i c a 1 c e r t a i n t y a s t o w h e t h e r o r n o t Dave P e a v l e r ' s i n t o x i c a t e d c o n d i t i o n d e p r i v e d him o f h i s capacity t o appreciate the c r i m i n a l i t y of h i s c o n d u c t o r t o conform h i s c o n d u c t t o t h e requirements of law?" Appellant contends that his defense was completely destroyed when the court granted the State's motion limiting the testimony of the psychologist and the psychiatrist. The prosecution claims inability to appreciate the criminality of one's conduct or to conform one's conduct to the requirements of the law has not been recognized as a defense in Montana since 1979. excluded that portion, but The trial court agreed, and only psychologist's and psychiatrist's appellant argued that portion, of the expert testimony. that section 45-2-203, MCA, The allows the testimony. Section 45-2-203, MCA, provides: "--- ~--- i b i l i t y-- intoxicated or drugqed Res ons condition. A person who is in an intoxicated or drugged condition is criminally responsible for conduct unless such condition is involuntarily produced and depr ives 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 ." In 1979, the legislature sections involved with defect. extensively amended the the defense of mental disease or House Bill 877 removed these two defenses from sections 46-14-213(2) and 46-14-301, MCA; but, in their efforts they failed for some reason to remove these defenses from the provisions of section 45-2-203, MCA. It is appellant's position that section 45-2-203, MCA, not having been changed in any way by the bill, entitles him to rely on same for his defense. We find the case of State v. Ostwald (1979), 180 Mont. 530, 591 P.2d 646, 36 St.Rep. 442, controlling in this matter. There we held: ". . . We hold that where, as here, the defense of intoxication shifts to a defense based on expert testimony as to the long term effects of alcoholism, then it becomes a defense of mental disease or defect within the purview of the statutes requiring notice " 591 P.2d at 650. . . . While in this case notice was given in the defense, and the narrow question of Ostwald was whether the defendant's expert testimony could be presented in absence of prior notice, the clear holding of that case is much broader. Under Ostwald, once expert testimony is submitted on intoxication, the defense comes within section 46-14-101 et seq., MCA, for all purposes. Ostwald holds that the proffer of expert testimony comes within limits the section 46-14-213, MCA, which testimony that an expert may specifically give. That testimony includes, "his opinions as to the ability of the defendant to have a particular state of mind which is an element of the offense charged." It does not include opinions on the ability to appreciate the criminality or to conform conduct to the requirements of the law. The District Court properly held that after the amendments of 1979, the legislature has done away with those two indicia of criminal reponsibility. The judgment of the District Court is affirmed. W concur: e ustices Mr. J i ~ s t i c e a n i e l J. Shea w i l l f i l e a c o n c u r r i n g o p i n i o n . D
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