### No. 96-245 IN THE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA, Plaintiff and Respondent,

v. STACY GENE HALL, Defendant and Appellant

APPEAL FROM: District Court of the Second Judicial District, In and for the County of Silver Bow, The Honorable James E. Purcell, Judge presiding.

COUNSEL OF RECORD: For Appellant: Stacy G. Hall, pro se,Deer Lodge,Montana DeirdreCaughlan (stand-bycounsel),Butte,Montana For Respondent: Honorable Joseph P. Mazurek, Attorney General; Pamela P. Collins,Assistant Attorney General, Helena,Montana Brad Newman,Deputy CountyAttorney, Butte, Montana

Filed: Submitted on Briefs: October 31, 1996 Decided: 

### December 10, 1996

### Chief Justice 

### J.

### A. Turnage delivered the Opinion of the Court. Pursuant to Section I, 

### Paragraph 3

### (c),Montana Supreme Court 1995 Internal Operating Rules, the following decision shallnot be cited asprecedent and shallbe publishedby its filingas apublic documentwith the Clerk of the Supreme Court andby a report of its result to State Reporter Publishing andWest Publishing Companies. A jury in the Second Judicial District Court, Silver Bow County, found StacyHall guilty of felony escape. He appeals. We affirm. Hall raises three issues on appeal. 1. 

### Did the District Court abuse its discretion when it allowed the Stateto cross-examineDr.Peters regarding his opinion

on mental disease or defect and Hall's capacity to form the requisitemental state to commit the offense of escape? 2. Did the District Court abuse its discretion when it rejected Hall'sproposed jury instructions? 3. Did the District Court abuse its discretion when it instructed the jury on the definitions of purposely and knowingly in accordance with § 

### 45-2-103(3),MCA? BACKGROUND Hall was transferred fromprison and placed at the Butte PreRelease Center. On May 8, 

### 1995, while subject to official detention, Hall walked away fromthe Center without authorization. Three days later he was arrested and returned to Montana State Prison. Hall was charged with escape and pled not guilty. At trial,he argued that he suffered from a psychotic episode on the day 

### of his alleged escape and did not act purposely or knowingly.

### Hall introduced the testimony of Dr. Bernard Peters, a licensed psychologist. Dr. Peters had performed court-ordered psychological tests on Hall. On direct examination, Hall questioned Dr. Peters about the results of the tests,which indicated that Hall did not suffer from any neuropsychological problems and that he was mentally healthy. On cross-examination,the State asked Dr.Peters if he had an opinion as to whether Hall suffered from mental disease or defect in May 1995. Hall objected,arguing that the opinion was for the jury to decide. The court overruled Hall's objection and Dr. Peters opined that Hall did not suffer from mental disease or defect, and that he had the capacity to act with knowledge or purpose in May 1995. Hall appeals. 1. Did the District Court abuse its discretion when it allowed the State to cross-examine

### Dr. Peters regarding his opinion on mental disease or defect and Hall's capacity to form the requisite mental state to commit the offense of escape? Hall contends that the court abused its discretion when it overruled his objection,based on § 

### 46-14-213(2),MCA, and allowed Dr. Peters to answer the question whether Hall suffered from a mental disease or defect inMay 1995. The State argues that § 

### 46- 14-213(2),MCA, does not prohibit the State'squestion. The standard of review for evidentiary rulings iswhether the district court abused its discretion. State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263. Under § 

### 46-14-102,MCA, evidence of a mental disease or defect is admissible to prove whether a defendant possessed a state of mind that is an element of

a charged offense. 

### See Statev. Cowan (1993),260 Mont. 510, 516, 3861 P.2d 884, 888. Hall called Dr. Peters as a witness and introduced testimony concerning the diagnosis froma psychological test designed to determinemental disorders. Hall did not ask Dr. Peters whether Hall suffered from a mental disease or defect. However, Hall raised the possibility to the jury of whether he suffered from a mental disease or defect. Because Hall raised the issue of his mental state at the time of his alleged escape, and centered his defense on that argument, the State was entitled to clarify the issue by asking Dr. Peters about Hall'smental condition in May 1995. Section 46-14-213(2), MCA, does not prohibit the questions that the State asked Dr. Peters. The District Court did not abuse its discretion when it allowed the State to cross-examine Dr. Peters concerning Hall's mental disease or defect. Hall also argues that the court violated § 46-14-213(2),MCA, when it allowed Dr. Peters to give his opinion as to whether Hall possessed the mental capacity to act purposely or knowingly inMay 1995. Hall failed to object to this question. We will not consideranargument raised for the first time onappeal. State v. Santos (1995),273 Mont. 125, 133, 902 P.2d 510, 514-15. 2. Did the District Court abuse its discretion when it rejected Hall'sproposed jury instructions? Hall argues that the court did not adequately instruct the jury onhis affirmative defense to escape. The State counters that Hall'sproposed instruction is not supported by Montana law and that the jury was properly instructed on his defense.We review jury instructions in a criminal case to determine whether the instructions,as awhole, fullyand fairly instruct the jury on the lawapplicable to the case. Statev.Leyba (l996),276 Mont. 45, 51, 915 P.2d 794, 797. District courts have broad discretion in formulating jury instructions. State

### v.Ross (1995), 269 Mont. 347, 358, 889 P.2d 161, 167. While a defendant is entitled to have instructions onhis theory of the case,he is not entitled to an instruction concerning everynuance of his argument.

During settlement of jury instructions, Hall submitted proposed instruction number 1. It stated: It is an affirmative defense that the defendant acted underthe influenceof extrememental oremotional stress for which therewas reasonableexplanationorexcuse,the reasonableness of which shall be determined from the viewpoint of a reasonable person in the actor's situation. If you find that the defendant acted under the influence of extrememental oremotional stress, thenyoumust find him not guilty. The State objected to this proposed instruction, arguing that it was an improper statement of Montana law. The court sustained the objection. Hall then submitted a revised proposed jury instruction which stated: You are instructed that the defendant is charged with an offence [sic] which requires him to have acted with the mental state of purposely or knowingly. A person isnot guilty of the offence [sic]of escape if you find that he did not act purposely or knowingly. The State objected to the revised proposed instruction because it

was repetitive. The court sustained the objection.

### A defendant is entitled to a jury instruction regarding any recognized defense for which there exists sufficient evidence for

a reasonable jury to find in his favor. Mathews v.United States

(1988),485

### U.S. 58, 63, 108 

### S.Ct. 883,887, 99

### L.Ed.2d 54, 61. 

### In Montana, extreme emotional distress is a recognized affirmative defense to deliberate homicide and may reduce such a charge to mitigated deliberate homicide. See § 45-5-103,

### MCA. However, a defendant's extreme mental or emotional distress is not a recognized affirmative defense to escape. Hall argues that the court erred when it refused to give the jury his revised proposed jury instruction. A court can refuse repetitious jury instructions. State v. Larson (1978),175 

### Mont. 395, 401, 574 

### P.2d 266, 

### 270. The jury received instructions that evidenceof a defendant'smental disease 

### ordefect isadmissible to prove that the defendant did not have the state of mind necessary toprove an element of the offense with which he was charged. The jury was also instructed that the State had to prove beyond a reasonable doubt that Hall acted purposely or knowingly. The District Court did not abuse its discretion when it refused to include Hall'srevised proposed jury instructions,the contents of which had already been included in two other instructions. Hall also argues that because the District Court refused his proposed jury instructions,he was denied the ability topresent an adequate defense. This is inaccurate. Hall argued to the jury that he lacked the requiredmental intent onMay 8,1995,

### to commit the offense of escape due to 

### extreme mental or emotional stress.Through his own testimony and that of several witnesses, Hall placed his mental state on May 8, 1995, into evidence. The District Court fully and accurately instructed the jury on the offense of escape and did not prohibit Hall from raising an adequate defense. 3. Did the District Court properly instruct the jury on the definitions of purposely and knowingly in accordancewith § 45-2- 103(3),MCA? Hall argues that proposed instruction number 17 was improper because it instructed the jury to disregard any state of mind requirement and made a mandatory presumption regarding the mental state required to prove him guilty of escape. The District Court offered proposed instruction number 17 during settlement of instructions. The proposed instruction stated: Purpose or knowledge is manifested by the circumstances connected with the offense. Purpose or knowledge need not be proved by direct evidence, but may be inferred from acts, conduct and circumstances appearing in evidence. Hall objected, claiming that proposed instruction number 17 requires the jury to ignore state of mind and does not advise that purpose or knowledge are required mental intent. The District Court overruled Hall'sobjection. In instruction number 14 the jury was instructed that the State must prove the element of purposely or knowingly beyond a reasonable doubt. Instruction number 7 informed the jury that they

were to consider all of the instructions as a whole. It was unnecessary for the court to accept Hall'sproposed instruction

7number 17 to repeat the language of instruction number 14,which already informed the jury that the Statemust prove all elementsof the charged offense beyond a reasonable doubt. The jury was properly instructed in conformity with 5 45-2- 103(3),MCA, which provides, "Theexistence of a mental state may be inferred from the acts of the accused and the facts and circumstancesconnected with the offense." Becausemental state is rarely susceptible to direct proof, it must usually be inferred from the facts testified to by witnesses and the circumstances developed by the evidence. State v. Smith (1987),228 Mont. 258, 262-63,742 P.2d451,453-54. The District Court did not abuse its discretion when it gave instruction numbers 7and 14 and refused to give proposed instruction number 17. For the reasons stated in this opinion,we affirm.

We concur: