No. 94-210

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

APPEAL FROM: District Court of the Twelfth Judicial District,

In and for the County of Hill,

The Honorable Thomas M. McKittrick, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Thomas J. Sheehy, Attorney at Law, Big Sandy,

Montana

Lawrence A. LaFountain, Attorney at Law, Great

Falls, Montana

For Respondent:

Honorable Joseph P. Mazurek, Attorney General; John

P. Connor, Jr., and Michael S. Wellenstein,

Assistant Attorneys General, Helena, Montana

Dave Rice, Hill County Attorney, Havre, Montana

Filed:

Submitted on Briefs: July 28, 1995

Decided: August 24, 1995
Chief Justice J. A. Turnage delivered the Opinion of the Court.

A jury in the District Court for the Twelfth Judicial

District, Hill County, found Jose Delos Santos, II, guilty of

felony theft and two counts of deliberate homicide. Santos

appeals. We affirm.

The issues are:

1 . Did the District Court err in finding Santos competent to

stand trial?

2 . Did the court err by admitting expert testimony elicited

by the prosecution in violation of 5 46-14-213(2), MCA?

3. Did the court err in refusing to allow the defense to play

at trial certain videotapes of Santos?

4 . Was Santos deprived of a constitutional right to an

insanity defense by the court's refusal to give three jury instructions offered by the defense?

On the morning of March 4, 1993, the bodies of Walter and

Thelma Gebhardt were found in their home just west of Havre,

Montana. They had each been hit repeatedly in the head with a

blunt object while they slept. They were sixty-one and sixty-seven

years old, respectively. A bloodstained claw hammer was found in

their living room, and their 1984 El Camino was missing.

Several adult children of the Gebhardts had visited their

parents the night before they were killed. Based upon their statements, local law enforcement authorities began looking for Jose

Delos Santos, II.

2
Santos had been staying at the Gebhardts' home for several

weeks. He had arrived in Havre by freight train, inadequately

dressed for the winter weather, and knocked on the Gebhardts' door.

Although he was a complete stranger to them, the Gebhardts took him

into their home. Santos was not at the Gebhardts' home when their

bodies were found, although he had been there the night before.

On March 5, 1994, Santos was apprehended outside Virgelle,

Montana, in the Gebhardts' El Camino. While he was being booked at

the Chouteau County Jail, Santos said that he had changed the

license plates on the El Camino and that he had killed the

Gebhardts.

Santos subsequently gave a statement describing the murders in

detail. He told the officers that he killed Walter Gebhardt

because Walter had put him on the spot by asking him to show a

picture of his girlfriend to visiting Gebhardt family members. He

explained that he killed Walter by hitting him in the head with the

claw hammer, and that he then killed Thelma by striking her with

the hammer and choking her. He described burning documents which

identified the owner of the El Camino and a pair of Walter's pants

in the Gebhardts' living room fireplace "to destroy the evidence."

He described switching the rear license plate on the El Camino with

one from another vehicle before leaving the Gebhardts' home after

the murders. He took with him his high school equivalency certificate, his birth certificate, food, clothing, and a letter from his

girlfriend.
Prior to trial, Santos moved to be declared incompetent to

stand trial. For purposes of that motion, he was examined by a

psychiatrist on behalf of the State and a psychologist on behalf of

the defense. After hearing the testimony of both experts and

reviewing the written report prepared by the State's psychiatrist,

the court denied the motion.

The case was transferred to Cascade County for trial on a

defense motion for change of venue. After a week-long trial at

which the central issue was Santos's mental state, a jury found him

guilty on all charges. Santos appeals.

Issue 1

Did the District Court err in finding Santos competent to

stand trial?

The standard for a district court's decision on whether a

criminal defendant is fit to proceed to trial is set forth at 5 46-

14-103, MCA:

A person who, as a result of mental disease or defect, is

unable to understand the proceedings against the person

or to assist in the person's own defense may not be

tried, convicted, or sentenced for the commission of an

offense so long as the incapacity endures.

The trial court must determine "whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable

degree of rational understanding--and whether he has a rational as

well as factual understanding of the proceedings against him."

State v. Austad (1982), 197 Mont. 70, 78, 641 P.2d 1373, 1378,

citing Dusky v. United States (1960), 362 U.S. 402, 402, 80 S.Ct.

788, 789, 4 L.Ed.2d 824, 825. This Court's standard of review is

4
whether substantial evidence supports the district court's decision

that the defendant was fit to proceed to trial. State v. Statczar

(1987), 228 Mont. 446, 456, 743 P.Zd 606, 613.

Santos's attack on the District Court's decision is based on

the adequacy of the court's findings rather than on the sufficiency

of the evidence. Under the above standard of appellate review,

however, we must look to the sufficiency of the evidence.

The State's expert witness was Dr. William Stratford, a

forensic psychiatrist. Before offering his opinion that Santos was

competent to stand trial, Dr. Stratford conducted a thorough

examination of Santos and submitted a detailed report on his

competency. His examination included reviewing the sheriff's

reports, a police report, autopsy reports, witness interviews and

statements, Santos's interview with the arresting officers, and

Santos's Seattle police department rap sheet. He also reviewed

Santos's records from the Seattle Mental Health Institute and a

summary of Santos's contacts with a Seattle drop-in center. Dr.

Stratford spoke by phone with Santos's father. In addition, he

conducted interviews with Santos over the course of two days and

administered eighteen different tests to him.

Dr. Stratford reported that Santos was twenty-four years old

and had been living as a "street person" in Seattle before he came

to Montana. Dr. Stratford admitted that, to a lay person, Santos's

record may look bizarre. He stated, however, that the record

revealed no clear-cut history of mental illness.

5
Dr. Stratford stated in his report that Santos has some

intrusive paranoid ideas but that "it is also likely that much of

the time he has learned to bring these issues up for effect knowing

that they do influence health care examiners in general," and "[hle

certainly is not above or incapable of lying about issues such as

this and is motivated to go to a hospital and certainly not to a

prison or jail." At the hearing, Dr. Stratford stated, "I think

it's also important to indicate that I think Mr. Santos is capable

of emphasizing points like that consciously to attempt to impress

someone that he's very disturbed." He reported that Santos had

obtained elevated results on a test he administered to detect

malingering and deception.

Dr. Stratford concluded that Santos suffers from a schizotypal

personality disorder as well as being chemically dependent.

However, Santos did well on a test to determine his competency to

relate to and cooperate with his attorney and to fully understand

the nature and quality of the proceedings against him. Dr.

Stratford concluded his report to the court by stating that he

believed Santos was competent to stand trial.

Santos's expert witness, psychologist Fredrick Wise, did not

submit a written report to the court. His testimony at the

competency hearing conflicted with that of Dr. Stratford in that

Dr. Wise found Santos unresponsive and unable to comprehend what

was going on. He concluded that Santos suffered from schizophrenia

and was not fit to proceed to trial. Santos contends that the

6
court erred in ignoring Dr. Wise's testimony and in not attempting

to reconcile or assess the positions of the two experts.

The testimony of one witness is sufficient to prove a fact.

State v. Radi (1978), 176 Mont. 451, 462, 578 P.2d 1169, 1176.

Additionally, the weight and credibility of witnesses are exclusively the province of the trier of fact. In the event of

conflicting evidence, it is within the province of the trier of

fact to determine which will prevail. State v. Flack (1993), 260

Mont. 181, 189, 860 P.2d 89, 94. In this instance, the trier of

fact was the District Court.

Santos was able to discuss with Dr. Stratford his complete

history, including the homicides. That ability cast doubt on

Santos’s claims that he was not able to converse with his counsel,

cooperate with his counsel, respond to his counsel's questions, or

recall facts. Santos was cooperative with Dr. Stratford, providing

an array of information, including extensive information about the

charged offenses. As the District Court noted at the competency

hearing, there was no reason why Santos's counsel could not also

get the same information.

Dr. Stratford's expert testimony and report clearly supported

a finding that Santos was able to consult with and assist his

counsel and that he had a rational as well as a factual understanding of the proceedings against him. We conclude that the District

Court did not abuse its discretion in finding that Santos was fit

to proceed to trial. We therefore affirm the court's determination.

7
Santos also asserts that the court should have reassessed its

competency determination because of evidence presented after the

competency hearing. He cites Drape v. Missouri (1975), 420 U.S.

162, 181, 95 S.Ct. 896, 908, 43 L.Ed.2d 103, 119, concerning the

court's continuing obligation to be on guard for changes in a

defendant's competence throughout the trial.

Santos refers to a report by Dr. Jack Hornby, a psychiatrist

who prescribed medication for him after the competency hearing.

Santos claims Dr. Hornby stated he felt Santos was not competent to

stand trial. That comment is not found in the copy of Dr. Hornby's

report provided to this Court. In his report, Dr. Hornby specifically noted that he had "not been asked,to evaluate for competency. I' Further, Dr. Hornby's report was submitted to the court in

support of a motion to continue the trial date to allow Santos

additional time on his medication, not in connection with a

determination of competency.

At the beginning of trial and at the close of the State's

case, the defense moved to be allowed to have Santos testify in

connection with his competency to proceed. In denying these

motions, the District Court pointed out that, at the competency

hearing several weeks earlier, it had heard a tape-recording of

Santos's interview with Dr. Wise. The court also stated that it

had been observing Santos during trial and that the proposed

testimony would be self-serving. After reviewing the record, we

conclude that no abuse of discretion has been shown in the denial

of the motions to put Santos on the stand.

8
Santos also cites Dr. Wise's trial testimony that he saw

Santos after the medication was prescribed by Dr. Hornby and that

although Santos was calmer and easier to keep on track in conversation, his thoughts were still very disordered. Dr. Wise gave

examples of statements by Santos which he felt indicated a lack of

the requisite mental state to stand trial. However, after

reviewing the record, we conclude that Dr. Wise did not testify to

any statements markedly different from those which he had previously reported at the competency hearing.

We conclude that Santos did not present additional evidence

requiring the court to reverse its earlier decision that Santos was

fit to proceed to trial. Accordingly, that claim is denied.

As a final argument under this issue, Santos points out that

Dr. Stratford's written report did not include a specific finding

as to whether Santos was seriously mentally ill, as required under

§ 46-14-206(1)(b), MCA. This argument is raised for the first time

on appeal. As such, we will not consider it. See State v.

Arlington (1994), 265 Mont. 127, 151, 875 P.Zd 307, 321.

Issue 2

Did the court err in admitting expert testimony elicited by

the prosecution in violation of § 46-14-213(Z), MCA?

Section 46-14-213(2), MCA, provides:

When a psychiatrist or licensed clinical psychologist who

has examined the defendant testifies concerning the

defendant's mental condition, the psychiatrist or

licensed clinical psychologist may make a statement as to

the nature of the examination and the medical or psychological diagnosis of the mental condition of the defendant. The expert may make any explanation reasonably

serving to clarify the expert's examination and diagno9
sis, and the expert may be cross-examined as to any

matter bearing on the expert's competency or credibility

or the validity of the expert's examination or medical or

psychological diagnosis. A psychiatrist or licensed

clinical psychologist may not offer an opinion to the

jury on the ultimate issue of whether the defendant did

or did not have a particular state of mind that is an

element of the offense charged.

The mental states which were an element of the offenses charged

against Santos are "knowingly" and "purposely" as defined at § 45-

2-101(33) and (581, MCA. In particular, "purposely" is defined

under the statute and was defined for the jury in Instruction No.

23 as "[a] person acts purposely with respect to a result . if

it is the person's conscious object to engage in that conduct or to

cause that result."

The first testimony challenged by Santos as violative of § 46-

14-213 izj , Ivim, occurred on cross-examination of defense witness

Dr. Wise. The prosecuting attorney asked Dr. Wise if he recalled

Santos's statements that he had taken the victims' vehicle, had

attempted to change the license plate and had driven the vehicle

out of town. He then asked if Dr. Wise believed that Santos was

"aware of where he was" and "aware of what he was doing" when he

engaged in the described behavior. Dr. Wise replied that he

assumed Santos did have such an awareness. The following colloquy

then occurred:

Q. [Mr. Connor, the prosecuting attorney] At least by

the defendant's own words, those acts would certainly

demonstrate a purpose of the defendant to carry out

specific abilities, would they not?

A. [Dr. Wise] I would say that, yes.

10
Q. And they at least demonstrate a conscious objective

on his part to engage in a particular form of conduct, do

they not?

A. Yes.

Q. And that it was his purpose, by his own description,

to cause a particular result; correct?

A. Based on the interview, yes.

Also, in rebuttal testimony, the prosecution asked its own expert,

Dr. Stratford, whether "going out of the house, changing the

license plates on the car and taking the car to another location"

were indications of Santos's capacity to act purposely or knowingly. Dr. Stratford answered that they were.

The State defends this line of questioning as not directly

relating to Santosls mental state during the homicides. However,

in so arguing, the State overlooks the charge of theft of the El

Camino. The elements of that charge were described to the jury in

Instruction No. 20 as "[al person commits the offense of theft if

he purposely or knowingly obtains or exerts unauthorized control

over property of the owner, and has the purpose of depriving the

owner of the property." Clearly, the above testimony relates

directly to whether Santos possessed the requisite mental state of

"knowingly" or "purposely" as to the theft of the El Camino. We

conclude that the above testimony violated the 5 46-14-213 (2), MCA,

prohibition as to the charge of theft of the El Camino.

Under 5 46-20-104(2), MCA, this Court may review any error

which necessarily affects the judgment. However, 'I [nlo cause shall

be reversed by reason of any error committed by the trial court

against the appellant unless the record shows that the error was

11
prejudicial." Section 46-20-701(l), MCA. The trial transcript

before us exceeds 700 pages in length; much of it was conflicting

testimony from Drs. Wise and Stratford. Overall, the evidence

against Santos was overwhelming. On the record before us, we

conclude that the erroneous admission of the above brief questions

and answers constituted harmless error.

Santos also challenges the State's questions to Dr. Stratford,

which again occurred in rebuttal, as set forth below:

Q. [Mr. Connor] Doctor, without giving me specific

instances, were the materials you read, in your professional opinion, replete with examples of conduct by the

defendant which amounted to conscious deliberate behavior?

A. [Dr. Stratford] Yes, sir.

Q. And which amounted to conscious object to carry out

particular actions?

A. That's correct.

Santos further challenges Dr. Stratford's comments on rebuttal

concerning assessment of a person's ability to act knowingly and

purposely as grounds for reversal.

The basis for these challenges is the 1991 commission comment

to 5 46-14-213(2), MCA. The comment notes that the last sentence

of the subsection was added by the 1991 Montana Legislature, and

states:

[T]he statute contains an additional statement expressly

barring an expert opinion before a jury on the ultimate

issue of the defendant's mental state or mental capacity.

The last portion of this comment, concerning mental capacity, goes

beyond the language of the statute. Where a statute is clear on

its face, a court is not to go beyond the facial language in
interpreting the statute. Section l-Z-101, MCA; Love11 v. State

Comp. Mut. Ins. Fund (1993), 260 Mont. 279, 285, 860 P.2d 95, PP.

We decline to read into § 46-14-213(2), MCA, a prohibition on

testimony by expert witnesses concerning a criminal defendant's

mental capacity. Questions and expert opinions on a criminal

defendant's mental capacity are not prohibited under the above

statute; what the statute prohibits are expert opinions on the

ultimate issue of whether the defendant actually possessed the

requisite mental state at the time the offense was committed.

We believe that this narrow reading of the statute supports

the purpose of expert testimony as an aid to the finder of fact,

based upon the expert's particular knowledge or experience, in

determining the fact at issue. See Rule 702, M.R.Evid. The

Supreme Court of Connecticut faced an analogous issue in State v.

Forrest (Corm. 1990), 578 A.2d 1066. In that case, the issue was

whether a mental health expert may give opinion testimony concerning a criminal defendant's capacity for self-control. Loss of

self-control was an element of the defense of extreme emotional

disturbance, which was a factual question before the jury. In

ruling that the expert could give an opinion on the defendant's

capacity for self-control, the court reasoned as follows:

[Iln construing [the statute] narrowly, we have assumed

that the legislature enacted the statute to accomplish a

reasonable and rational result. A broad construction of

the statute, taken to its extreme, would arguably bar

experts from fully testifying to their diagnoses of a

defendant and to their resulting professional opinions,

from which the jury could infer the defendant's state of

mind at the time of a particular act. Jurors would thus

be left without adequate expert assistance in making an

informed decision upon the ultimate issue of the defen13
dant's mental state, the precise issue expressly reserved

to them by [the statute].

Forrest, 578 A.2d at 1070 (citations omitted). The above comments

by the Connecticut Supreme Court are equally applicable to the

question here before us. See also Vitauts M. Gulbis, Annotation,

"Admissibility of expert testimony as to whether accused had

specific intent necessary for conviction," 16 A.L.R.4th 666 (1982).

The objection to questions and testimony on behalf of the

prosecution concerning Santos's capacity to form the requisite

mental states must further be viewed in the context of prior

defense questions. The defense asked its expert Dr. Wise whether

Santos had the capacity to understand his actions, to always know

what he is doing, to remember what he had done, and to act in an

intentionai or a conscious manner. As the State points out, the

defense thereby opened the door to questions about Santos's

capacity to form the requisite mental state.

To recapitulate, we hold that the District Court erred in

allowing expert testimony in violation of § 46-14-213(2), MCA,

concerning Santos's state of mind during the charged offense of

theft of the Gebhardts' El Camino. We conclude, however, that such

error was harmless. As to the convictions of deliberate homicide,

we hold that the court did not err in admitting expert testimony

into evidence.

Issue 3

Did the court err in refusing to allow the defense to play at

trial certain videotapes of Santos?

14
At trial, the defense proposed to play and introduce into

evidence two videotapes of interviews of Santos which were made by

defense counsel shortly after his arrest. The defense offered the

videotapes as evidence of Santos's mental state. The State

objected on hearsay grounds. The defense then offered to have

Santos take the stand for cross-examination. The court refused to

admit the proposed evidence.

Santos argues that because the videotapes were not offered to

prove the truth of the matters asserted therein, they did not fit

the Rule 801(c), M.R.Evid., definition of hearsay--that is, they

were not offered to show that Santos's statements therein were

true, but to show his poor state of mind.

Our standard of review on issues of admissibility of evidence

is whether the district court abused its discretion. State v. Oman

(1985), 218 Mont. 260, 263, 707 P.2d 1117, 1119. The State points

out that, in rejecting the admission of the videotapes, the

District Court noted that there were no safeguards to insure their

integrity and that they were not staged by Santos. The probative

value of the videotapes is suspect considering the circumstances

under which they were made, including that Santos was not under

oath. Their probative value is further limited in that they at

best demonstrate Santos's mental state several days after the

offenses occurred, not at the time of the crimes. Yet further

support for the court's refusal to admit the tapes into evidence is

Santos's failure to comply with the discovery rule requiring

disclosure of the tapes to the prosecution prior to trial. &

15
§ 46-15-323(6), MCA. We conclude that the District Court did not

abuse its discretion by denying admission into evidence of the

videotapes.

Issue 4

Was Santos deprived of a constitutional right to an insanity

defense by the court's refusal to give three jury instructions

offered by the defense?

Santos offered three instructions to the jury which would have

allowed him to rely upon an insanity defense. All three proposed

instructions were refused by the District Court.

Montana law allows consideration of a defendant's mental

disease or defect at three stages of a criminal proceeding. First,

prior to trial the defendant may be examined to determine whether

he is able to understand the proceedings against him or to assist

in his own defense. Section 46-14-103, MCA. Second, a defendant

may introduce evidence of mental disease or defect at trial

whenever it is relevant to prove that he did not have a state of

mind which is an element of the offense charged. Section 46-14-

102, MCA. Third, a defendant who has been convicted of a crime may

claim during sentencing that at the time of the offense he was

suffering from mental disease or defect which rendered him "unable

to appreciate the criminality of [his] behavior or to conform [his1

behavior to the requirements of law." Section 46-14-311, MCA.

Santos exercised all three of these options.

The constitutionality of the above statutory framework has

been repeatedly upheld by this Court. There is no constitutional

16
right to an insanity defense as expressed in the instructions

proposed by Santos. _,See State v. Cowan (1993), 260 Mont. 510, 861

P.2d 884, cert. denied, 114 s.ct. 1371 (1994); State v. Byers

(1993), 261 Mont. 17, 861 P.2d 860, cert. denied 114 S.Ct. 1380

(1994), reversed on other grounds, State v. Egelhoff (Mont. 1995),

P.2d -, 52 St.Rep. 548. We hold that the District Court

did not err in refusing the three jury instructions offered by

Santos concerning a defense of mental disease or defect.

The judgment of the District Court is affirmed.

We concur:

Justice Terry N. Trieweiler

17
Justice Karla M. Gray, specially concurring.

I concur in the Court's opinion on issues I, 3 and 4. I

specially concur in that opinion on issue 2, because I agree with

the result and much, but not all, of what is said therein.

Specifically, I agree that questions and answers regarding the

defendant's mental caoacitv are permissible. I also agree that

questions and answers which cross the line from capacity to

puroose are impermissible under 5 46-14-213(2), MCA, which

prohibits psychiatrists and clinical psychologists from offering an

opinion on the ultimate issue of whether the defendant did or did

not have the state of mind which is an element of the offense

charged. Thus, where the mental state element necessary to prove

the charge is--as it is in the case before us--"purposely," no

opinion can be given regarding whether the defendant acted with

purpose. Since between three and five questions and answers of

record violate the statutory prohibition against testimony on the

ultimate issue of the defendant's mental state, I agree with the

Court that those answers were erroneously admitted.

I also agree that, under §§ 46-20-104 and 46-20-701, MCA, the

admission of this evidence does not affect the judgment in this

case. The trial transcript before us exceeds 700 pages in length;

much of it is conflicting expert testimony from Drs. Wise and

Stratford. Overall, the evidence against Santos was overwhelming.

Thus, I join in concluding that, on the record before us, the

erroneous admission of between three and five brief responses

18
constitutes harmless error, without regard to whether it goes to

the theft offense or the deliberate homicide charges.

In this latter regard, I disagree with the Court's tying of

the objectionable questions and answers to the vehicle theft,

rather than to the homicides. To this extent, I agree with the

dissent. This distinction is not raised by the State and, indeed,

is superfluous to the Court's analysis of this issue. Applying the

controlling statutes correctly is a straightforward matter here:

impermissible questions and answers were erroneously admitted into

evidence but, given the overall record before us, the error is not

reversible.

With regard to the dissent, I point out that most of the

questions and answers quoted therein relate only to the discussion

of the offense--whether theft or homicide--to which the questions

related. That portion of the dissent does not, and could not

correctly, suggest that all of the quoted questions and answers

violate the statutory prohibition contained in § 46-14-213 (2), MCA,

against an expert opinion on the ultimate issue of whether Santos

acted purposely or knowingly. It is clear from reading the

transcript segment quoted by the dissent that only the last

questions quoted could conceivably violate the statute.

I join the Court in affirming on all issues.

19
Justice W. William Leaphart, dissenting.

I concur in the Court's opinion on issues 1, 3, and 4. I

dissent from the opinion on issue 2.

As heinous as this fact situation is, I am constrained to

honor the dictates of the law as set forth in § 46-14-213 (Z), MCA,

which states in part: "A psychiatrist or licensed clinical

psychologist may not offer an opinion to the jury on the ultimate

issue of whether the defendant did or did not have a particular

state of mind that is an element of the offense charged."

Santos was charged with deliberate homicide and felony theft.

Both offenses require proof that he acted "knowingly" and

"purposely." The legislature has defined "purposely" as follows:

"[a] person acts purposely with respect to a result . . . if it is

the person's conscious object to engage in that conduct or to cause

that result." Section 45-2-101(58), MCA. It is thus clear that

the Montana legislature has specifically stated that a psychiatrist

or psychologist may not offer an opinion as to whether a defendant,

when committing an act, acted knowingly, purposely or had a

conscious object to engage in the conduct in question. There is no

question but that in this case the prosecution elicited precisely

this type of testimony from Dr. Wise with regard to Santos'

striking of Walter Gebhardt with a hammer and using a rope to stop

Thelma Gebhardt from breathing.

The Court quotes two of the questions posed by the prosecutor

to Dr. Wise in which the prosecution very pointedly asked whether

20
certain acts "would demonstrate a purpose of the defendant to carry

out specific abilities" and whether those acts would "demonstrate

a conscious objective on his part to engage in a particular form of

conduct . . . .'I The Court then suggests that these questions

related to Santos' theft of the vehicle rather than the homicides.

The Court then concludes that, although the questions violated §

46-14-213(2), MCA, they were, in light of the overwhelming

evidence, harmless error. However, when the questions are put in

their full context, it is apparent that they related not only to

the theft of the vehicle, but also to the homicides. As can be

seen from the following excerpt of the transcript, Dr. Wise was

asked to recall some very specific factual statements that Santos

had made to Agent Scott in a written statement.

Q Do you recall reading at the end of the

statement, and if you have it available and need to

refresh your recollection, please do so, but I would

recall or direct your attention particularly to pages 33

and 34 of the transcript of the statement that was given

by the defendant to Agent Scott.

A The one I have goes up to 18.

Q Well, you may have -- is it single spaced,

Doctor?

A Maybe you can direct me to that statement.

Q I guess I'm talking about it's on the end,

whether it's on may [sic] page 33 or your page I7 or

whatever, where he makes a statement to agent Scott to

the effect that he decided to take a particular action,

he decided -- he thought about it, he took a oarticular

action by deciding to oet the hammer and bv soins into

Walter Gebhardt's room and hittinq him in the head with

&.

A Yes.

Q And do you recall reading that portion of the

2 1
tape where he said that he took the rope from the pulley

that was above Thelma Gebhardt's bed and used it to keen

her from breathins earlier?

A I don't remember the pulley, but I remember

reading the rest of it.

Q Do you recall reading the part from that

statement where he stated that he decided to take money

from Mr. Gebhardt's wallet?

A Yes.

Q Do you recall reading from that statement the

portions where he stated that after striking the

Gebhardts in the head, he decided to burn stuff in the

fireplace and he specifically decided to do that to get

rid of evidence?

A Yeah. I don't remember the words "specifically

decided." I do remember that he did that and he said

that, told that in the interview.

Q Do you recall him explaining to deputy, or rather

to Agent Scott that the reason he did that was to get rid

of evidence?

A Yes.

Q And do you recall him describing how he chose to

take the car, to attempt to change the plates on it and

to drive it out of town?

A Yes.

Q So at that point in time, at least, the defendant

was certainly aware of where he was; correct?

A Yes.

Q He was aware of what he was doing; correct?

A I would assume that, yes.

Q And he was aware of who he was doinq it to;

correct?

A Are you talking about after the murder or before?

Q Well, I'm talking about his own statements to the

agent about his conduct.

22
A Yeah, I would say just from those statements, I

would refer that, yes.

Q At least by the defendant's own words, those acts

would certainlv demonstrate a ournose of the defendant to

carry out specific abilities, would they not?

A I would say that, yes.

Q And thev at least demonstrate a conscious

objective on his Dart to encaqe in a narticular form of

conduct, do they not?

A Yes.

Q And that it was his purpose, bv his own

description, to cause a particular result: correct?

A Based on the interview, yes. [Emphasis added.]

Before asking Dr. Wise whether Santos' acts demonstrated a

"purpose" and a "conscious objective on his part to engage in a

particular form of conduct," the State prefaced the questions with

certain facts--including the fact that Santos said he decided to

get a hammer, that he went into Walter Gebhardt's room and hit him

in the head with the hammer and that he took a rope and used it to

keep Thelma Gebhardt from breathing. In addition to the questions

already discussed, the State also inquired of Dr. Wise whether

these acts indicated that Santos was "aware of what he was doing"

and was "aware of who he was doing it to." Obviously the

prosecutor's questions related to more than just the theft of the

El Camino vehicle.

It is hard to imagine a more blatant violation of the

statutory prohibition against having a psychologist express an

opinion as to the defendant's state of mind at the time he is

alleged to have committed a homicide. Here, the State was allowed

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to elicit testimony from a psychologist to the effect that Santos

acted purposely and had a conscious objective when he hit Walter

with the hammer and used a rope to prevent Thelma from breathing.

The State obviously felt it necessary to present expert

testimony on the question of the defendant's state of mind.

Although I agree that more general questions as to the defendant's

"capacity" to have a particular state of mind are legitimate, the

questions posed here went well beyond general "capacity" type

questions. They went directly to the ultimate question of whether

the defendant had the requisite state of mind at the time the

offenses were committed. In light of the bizarre and gruesome

behavior of this defendant, I do not see how such an error can be

considered harmless. The clear provisions of 5 46-14-213(2), MCA,

give me no choice but to dissent.

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