No. 12753 INTHE SUPREME COURT OF THE STATE OF MONTANA 1974

STATE OF MONTANA ex rel. WILLIAM T. MAIN, Relator,

THE DISTRICT COURT OF THE FIFTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, INAND FOR THE COUNTY OF BEAVERHEAD, and THE HONORABLE FRANK E. BLAIR, Presiding Judge, Respondents.

ORIGINAL PROCEEDING: Counsel of Record: For Relator: Smith, Smith and Sewell, Helena, Montana Chadwick H, Smith argued, Helena, Montana For Respondents: Hon. Robert L. Woodahl, Attorney General, Helena,

Montana W. G. Gilbert 111, County Attorney, argued, Dillon,

Montana

Submitted: May 23, 1974

Filed:

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## 11914Mr. Justice John Conway Harrison delivered the Opinion of the Court.
This is an original proceeding wherein relatorWilliam 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 Informationwas filed on March 2, 1971. Relator was representedby counselwho represented to the court that relator suffered froma 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 reportwas made to the court by Dr. M.F. Gracia, clinical director at the state hospital. The report stated relatorwas suffering froma 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 submissionof briefs by both parties, the court found relator

was suffering from mental disease which prevented him fromunderstanding 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 inhis 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 federalhospital) for more extended treatment. This treatmentwas recommendedby a staff psychiatrist at the state hospital. No actionwas taken by the court for nearly one year,when on July 9, 1973,relatormoved the court to dismiss the Information and grant a judgment of acquittal on the grounds that at the time of the crime relatorwas suffering froma mental disease or defect which rendered him unable to appreciate the criminality of his conduct or to conformhis 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 fromMissoula,Montana. The transcript of this hearing alongwith 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 relatorwas 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 StatesArmy. 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-socialpersonality and schizophrenic-chronic undifferentiated type. Dr. Gracia's opinion,after examining and treating relator,was that he I' 

# ***was not able to conformhis conduct to the requirements of the law at the time of the criminal conduct charged

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# *."Dr. Moisey testified for the stateand statedhe had examined relatorbetween October 18and October 29, 1973. In addition he interviewed the victim, the county attorney of Beaverhead County and reviewed the case histories of the statehospital and the American Lake Hospital, Tacoma, Washington, inregard to relator. With thisbackground of information, Dr. Moisey testified that inhis opinion he did "not see evidence that he was so grossly mentally disturbed that he was unable toappreciatewhat he was

I' doing atthe time. In his opinion relatorwas presently capable of standing trial. In weighing the consideration tobe given Dr. ~oisey's testimonywe note thatjust three questions before the above quoted testimony, Dr. Moisey testified: "Well from my examination of William Main, itwas not possible for me todetermine his state of mind atthe time of the alleged offense in 1971." Dr. ~oisey's examination of relator occurred two and one half years after the offense and no testimony was offered by Dr. Moisey or the state with regard torelator's abilityatthe time of the alleged offense toconform hisconduct tothe requirements of the law. On December 11, 1973, after the hearing, Judge Blair entered

an order denying relator's motions on thebasis that Dr. Moisey expressed an opinion that: (a) in spite of hishistory of mental disease, defendant has the capacity tounderstand the proceedings against him and toassist inhis own defense; (b) that defendant

was able toappreciate the criminality of his conduct and to conform hisconduct totherequirements of the law at the time of the criminal conduct charged. On that basis Judge Blair stated that a factual question for thejury was raised. On December 24, 1973, the county attorney dismissed the original Information and refiled an identical Information chargingrelatorwith the same offenses. Three issues arepresented in this application for a writof supervisory control, allare directed tothe trialcourt's abuse of 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 relatorwas unable to appreciate the criminality of his conduct or to conform his condust to the requirements of the lawbecause 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 rendered 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 raisedwewill 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. The controlling statutes are sections 95-501,505, 507,R.C.M. 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 isnot responsible for criminal conduct if at the time of such conduct as a result ofmental disease or defect he is unable either to appreciate the criminality of his conduct or to conformhis conduct to the requirements of law, II In this case the defense of mental disease or defectwas 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 conformhis 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. Psychiatric examination of defendantwith respect tomental disease or defect. (a) Whenever the defendant has filed a notice of intention to rely on the defense of mental disease or defect excluding responsibility, or there isreason to doubt his fitness toproceed, or reason tobelieve that mental disease or defect of the defendantwillotherwise become an issue in the cause, the court shall appoint atleast one (1) qualified psychiatrist or shall request the superintendent of the Montana statehospital to designate at least one (1) qualified psychiatrist, which designation may be or include himself, to examine and report upon the mental condition of the defendant. The court may order the defendant tobe committed to a hospital or other suitable facility for the purpose of the examination for a period of not exceeding sixty (60)days or such longer period as the court determines tobe necessary for the purpose and may direct that a qualified psychiatrist retained by the defendantbe permitted towitness and participate inthe examination.

II(b) In such examination any method may be employed which isaccepted by the medical profession for the examination of those alleged tobe suffering from mental disease or defect. "(c) The report of the examination shallinclude the following: "(1) A description of the nature of the examination; "(2) A diagnosis of the mental condition of the defendant; "(3) If the defendant suffers from a mental disease or defect, an opinion as tohis capacity to understand the proceedings against him and to assist inhis own defense. "(4) When a notice of intention to rely on the defense of irresponsibilityhas been filed, an opinion as to the abilityof the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law atthe time of the criminal conduct charged; and "(5) When directedby the court, an opinion as to the capacity of the defendant tohave a particular stateof mind which isan element of the offense charged.

!IIf the examination cannot be conducted by reason of the unwillingness of the defendant toparticipate therein, the report shall so stateand shall include, if possible, an opinion asto whether such unwillingness of the defendant was the result of mental disease or defect.

### ' he report of the examination shallbe 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 courtwas then confrontedwith the alternative actions that canbe applied under the provisions of section 95- 507(a), R.C.M. 1947: "95-507. Determination of irresponsibilityon basis of report--accessto defendantby psychiatrist of his own choice--formof expert testimonywhen issue of responsibility is tried. (a) If the report filed pursuant to section 95-505finds that the defendant at the time of the criminal conduct charged suffered froma mental disease or defectwhich 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 attorneyprosecuting or the defendant, is satisfied that suchmental 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 iswhether under the discretionaryprovisions of section 95-507,therewas an abuse of discretion in giving suchweight 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'smental condition at the time of the criminal act charged, as required by section 95-507,R.C.M. 

### 1947. We agree.The statutewas particularly designed toprocedurally process just such a case aswe have before us here. Relator has been in custody over three and one-half years at the state hospital and the overwhelmingweight of allof the testimony, much of which isbased on the medical records before the court, is that relator suffers from such mental disease or defect as toexclude responsibility forhis acts. There isno medical testimony contrary toDr. ~racia's testimony that relator "was not able toconform his conduct to the requirement of the law atthe time of the criminal conduct charged." Dr. Gracia based this opinion on (1) an examination of relator severalweeks after the alleged crime; (2) upon extensive psychological testing and medical examination including observation by staff personnel every day for several years; (3) upon the study of relator's social history and history of mentalillness datingback to 1962; and (4)the doctor's personal contact with relator beginning in 1966. In State ex rel. Krutzfeldt v. District Court, 

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-9 515 P.2d 1312, 1315, 30 St.Rep. 993, this Court discussed the procedures provided for in section 95-507(a), R.C.M. 1947:

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# * That comment makes it clear that if, in thejudge's opinion and after a hearing if requested by either attorney, a defendant was clear1 

### 7i- suffering from mental disease at the time of t e crime then thejudge can acquit the defendant and have him committed to a stateinstitution forthwith. The purpose isplain--to avoid a costly trialwhere the mental defect isplain and obvious. 

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# * *" The entry of judgment of acquittal by the trialcourt does not mean the relator goes free. The provisions of section 95-508(a), R.C.M. 1947, procedurally provide for these cases. In Statev. Taylor, 158 Mont. 323, 335, 491 P.2d 877, this Court ininterpreting section 95-508(a) said that a person so committed would not be released from the statehospital unless the release was recommended by the superintendent and the person committed could establish ata hearing held before the districtjudgewho 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

$1is to protect the public aswell as the individualby insuring that standards for release are not subvertedby allowing the final determination to be according to the individual subjective standards of the hospital staff." Under Montana statutes only the trial court,the committing court, has the power to discharge or conditionallyrelease. Therefore,we direct the trial court to reverse its order entered on December 11, 1973and 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. 1947.

i Justice 4 We concur: I