NO. 92-511 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

WENDELL 0. GRAY, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Thomas A. Olson, Judge presiding. 

For Appellant: 

Jennifer Bordy, Berry & Bordy, 

Bozeman, Montana 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General, 

Cregg W. Coughlin, Assistant Attorney General, 

Helena, Montana; A. Michael Salvagni, Gallatin 

County Attorney, Marty Lambert, Deputy 

County Attorney, Bozeman, Montana 

Submitted on Briefs: March 4, 1993 
Justice William E. Hunt, Sr., delivered the opinion of the Court. 

Following a bench trial in the Eighteenth Judicial District 

Court, Gallatin County, appellant Wendell 0. Gray was found guilty 

of the crime of robbery, a felony, in violation of 5 45-5-401, MCA. 

Gray appeals the court's final conviction and sentence entered on 

July 23, 1992. He also appeals the court's denial of motions for 

evaluation at the Montana State Eospital at Warm Springs entered on 

May 1, 1992. 

We affirm. 

Appellant presents two issues for this Court's consideration. 

1. Did the District Court err in denying appellant's motion 

to obtain a complete psychological evaluation under 5 46-14-202, 

MCA? 

2. Did the District Court err at sentencing by not 

determining whether appellant suffered from a mental disease or 

defect at the time of the offense? 

On January 19, 1992, a store clerk noticed Gray looking into 

the shoe store where she worked. Shortly thereafter, Gray entered 

the store, browsed for a minute, and then approached the cash 

register. Gray concealed his right hand in his coat pocket and 

handed the clerk a note which told her to give him the money and no 

one would get hurt. The store clerk believed that Gray was 

concealing a gun or a bife in his coat. She gave him all the 

money in the cash register. The store clerk testified that she 

smelled alcohol on Gray during the robbery. Gray placed the money 

in his coat and left the store. Based upon Gray's physical 

2 
description given by the store clerk, the police located Gray at a 

local bar. After the store clerk identified Gray at the police 

station, he was arrested and charged with robbery. 

Because of a long history of mental health problems, Gray 

filed a motion requesting an evaluation at the Montana State 

Hospital at Warm Springs pursuant to 5 46-14-202, MA. The State 

requested that a local psychiatrist perform the evaluation to save 

time. The court ordered Dr. Noel Haukebo, a local psychiatrist, to 

perform the evaluation. 

After Dr. Haukebogs first evaluation, Gray made a second 

motion for a more complete evaluation at Montana State Hospital 

because Dr. Haukebo met with Gray for only one afternoon. Gray 

contended that this was inadequate, considering Gray's history of 

mental illness. The District Court held a hearing and took the 

matter under advisement, but subsequently denied the motion. 

A bench trial was held on June 23, 1992. After presentation 

of the evidence, the District Court found that Gray did not suffer 

from a serious mental disease or defect. The court recognized that 

Gray had mental disorders, but concluded that the disorders did not 

deprive him of the capacity to understand the nature and meaning of 

the proceedings against him, or of his conduct on the day of the 

robbery, and that Gray acted purposely and knowingly when he 

committed the robbery. The court found Gray guilty and sentenced 

him to 15 years in the Montana State Prison without eligibility for 

parole. Gray appeals the aenial of the motions for evaluation and 

the final conviction and sentence. 
I. 

Did the District Court err in denying appellant's motion to 

obtain a complete psychological evaluation under 5 46-14-202, MCA? 

Section 46-14-202 (I), MCA, provides that upon a written motion 

by the defense requesting an examination: 

[Tlhe district court shall appoint at least one qualified 

psychiatrist or licensed clinical psychologist or shall 

request the superintendent of the Montana state hospital 

to designate at least one qualified psychiatrist or 

licensed clinical psychologist . . . to examine and 

report upon the defendant's mental condition. 

The statute gives the district court the discretion to appoint 

either a qualified professional or order the Montana State Hospital 

to evaluate the defendant. Absent an abuse of discretion we will 

not disturb the order of the district court. 

In State V. Campbell (1985), 219 Mont. 194, 202, 711 P.2d 

1357, 1362, cert. denied (1986) : 475 U.S. 1127: we held that the 

district court did not err in denying appellant's motion for a 

second psychiatric evaluation simply because appellant thought that 

the results of the first evaluation were unfair. We stated that 

the statute does not provide for a second evaluation. Cam~belL, 

711 P.2d at 1362. Gray seeks a second evaluation because he claims 

that the psychological evaluation was insufficient because of his 

long history of mental illness. 

Section 46-14-202(3), MCA, provides that for the examination, 

"any method may be employed that is accepted by the medical or 

psychological profession for the examination of those alleged to be 

suffering from mental disease or defect." The record shows that 
Dr. Haukebo is a qualified psychiatrist who testified at trial that 

the examination he performed was a standard evaluation for those 

asserting a mental disease or defect. In his first report, Dr. 

Haukebo stated that a person with such mental disorders should be 

given a period of inpatient care to reduce the severity of his 

illness. 

Contrary to Gray's allegation that he was seen only once, Dr. 

Haukebo testified that he examined Gray on a second occasion the 

day before trial. In the second report, Dr. Haukebo stated that 

Gray retained the capacity to understand the nature and meaning of 

the proceedings against him and the possible outcome. Dr. Haukebo 

further opined that Gray was not seriously mentally ill as defined 

by Montana law and that Gray understood the criminality of his 

behavior. As we have stated previously: 

The spirit of the statute is to have a qualified 

professional examine a defendant for the purpose of 

evaluation. Where that spirit is substantially 

fulfilled, as here, we can find no substantial 

interference with a defendant's rights and, thus, no 

reversible error. 

State v. Buckman (1981), 193 Mont. 145, 150-51, 630 P.2d 743, 746. 

In this instance, the spirit of the statute was upheld. We 

hold that the District Court did not err in denying Gray's second 

motion for a psychiatric evaluation at the Montana State Hospital. 

11. 

Did the District Court err at sentencing by not determining 

whether appellant suffered from a mental disease or defect at the 

time of the offense? 
Gray contends that the District Court erred when it did not 

consider his mental disease or defect at seneencing. Specifically, 

Gray asserts that pursuant to our holding in State v. Raty (19841, 

214 Mont. 114, 692 P.2d 17, and 5 46-14-311, MCA, the District 

Court did not determine at sentencing whether Gray suffered from a 

mental disease or defect at the time of the offense. 

At the close of the evidence, the District Court specifically 

found that Gray did not suffer from a serious mental disease or 

defect. The court did not further discuss Gray's mental condition 

during the sentencing hearing, or in its written sentence and 

judgment. The only additional evidence regarding Gray's mental 

condition presented during the sentencing hearing was Gray's own 

testimony. 

Section 46-14-312(1), MCA, provides: 

If the court finds that the defendant at the time of the 

commission of the offense of which the defendant was 

convicted did not suffer from a mental disease or defect 

as described in 46-14-311, the court shall sentence the 

defendant as provided in Title 46, chapter 18. 

In this instance, the District Court was the trier of fact 

making both legal and factual determinations. All the evidence 

regarding Gray's mental condition was presented during the bench 

trial. The court made a specific finding that Gray did not suffer 

from a mental disease or defect. 

Based upon the presentence investigative report, the District 

Court sentenced Gray to 15 years at the Montana State Prison 

without possibility of parole. Attached to the presentence 

investigative report were the psychiatric reports of Dr. Haukebo. 
We hold that the District Court did not err in its consideration of 

Gray's mental disease or defect at the time of the commission of 

the offense. 

We affirm. 

Justice 

We concur: 
May 25, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Jennifer Bordy 

Berry & Bordy 

2631 West Main St. 

Bozeman, MT 59715 

Hon Joseph P. Mm~rek, Morney Genera! 

Cregg Coughlin, Assistant 

Justice Bldg. 

Helena, MT 59620 

A. Michael Salvagni 

Marty Lambert, Deputy 

615 S. 16th Ave., Rm 100 

Bozeman, MT 59715 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA