NO. 92-593 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

GERALD THOHAS DAVIDSON, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Robert W. Holmstrom, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Arnold A. Berger, Berger Law Firm, 

Billings, Montana 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General, 

Elizabeth L. Griffing, Assistant Attorney 

General, Helena, Montana 

Dennis Paxinos, Yellowstone County Attorney, 

Billings, Montana 

Filed: 

Submitted on Briefs: August 4, 1994 

Decided: September 14, 1994 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

Defendant Gerald Davidson was charged by information filed in 

the District Court of the Thirteenth Judicial District in 

Yellowstone County with deliberate homicide in violation of 

§ 45-5-102, MCA. During pretrial proceedings, Davidson filed a 

notice of intent to rely on the defense of mental disease or 

defect. Therefore, pursuant to 5 46-15-323, MCA, the District 

Court ordered Davidson to provide the State with copies of reports 

from those witnesses who would be called in support of that 

defense. Davidson refused to exchange the reports and was 

precluded by order of the District Court from offering evidence of 

mental disease or defect. Following a trial by jury, Davidson was 

convicted of deliberate homicide. He appeals the District Court's 

order excluding evidence of mental disease or defect. We affirm 

the District Court. 

The issue on appeal is: 

Do Montana's reciprocal discovery statutes, specifically, 

§ 46-15-323, -328, and -329, MCA (1991), violate the Fifth, Sixth, 

and Fourteenth Amendments of the Federal Constitution and 

Article 11, Section 25, of the Montana Constitution? 

FACTUAL BACKGROUND 

Defendant Gerald Davidson was involved in a sometimes 

turbulent relationship with Pamela Moberly, a 20-year-old Billings 

woman. Following an argument, and Pamela's attempt to leave the 

relationship, he strangled Pamela and shot her at least two times 

in the head. 
On September 11, 1990, the State filed its information 

charging Davidson with deliberate homicide. 

On October 12, 1990, Davidson moved for a psychiatric 

evaluation. The District Court granted the motion on October 26, 

1990, and an examination was ordered by Dr. Donald Harr. Dr. Harr 

was directed to submit a report to the District Court in 

triplicate, including the elements set forth in 5 46-14-203, MCA 

(1989). After several delays, Dr. Harr filed his report with the 

District Court on January 23, 1991. 

Davidson was iater examined by three additional psychiatrists 

or psychologists. On October 15, 1991, Davidson gave notice under 

5 46-14-201, MCA (1989) (now 5 46-15-323(3) in relevant part), of 

his intention to rely on mental disease or defect as a defense. 

The notice did not specify the names and addresses of the persons 

he intended to call as witnesses at the trial to support his 

defense as required by 5 46-14-201 MCA (1989) (now 5 46-15-323(4) 

in relevant part). On October 24, 1991, the State moved for 

disclosure of the names, addresses, and any statements or reports 

that are required to be disclosed under 5 46-15-323, MCA (1991). 

At an omnibus hearing on October 25, 1991, defense counsel 

advised the District Court that he would not provide the 

information requested by the State's motion. Defense counsel 

stated that he believed disclosing the documents, written reports, 

and medical examiners' statements could not be done without 

disclosing privileged or incriminating information. Recognizing 

Davidson's concern that some of the information contained in the 
witness reports may be privileged or incriminating, the District 

Court ordered Davidson to avail himself of provisions in 

5 46-15-328, MCA, regarding any information that was 

non-discoverable because of privilege or otherwise. The District 

court alerted counsel to the fact that 5 46-15-328, MCA, provides 

for protective orders and for excising any information that may 

incriminate the defendant, or is cloaked with a privilege. 

Davidson still refused to submit the reports. After this issue was 

submitted on briefs, the District Court ordered Davidson to turn 

the reports over to the State. 

After failing to comply with the District Court's order, 

Davidson sought a writ of supervisory control from this Court. 

Davidson's petition argued that the District Court's disclosure 

order violated the due process clause of the Fourteenth Amendment 

to the United States Constitution. On January 7, 1992, this Court 

upheld the District Court's order, with a slight modification that 

limited the order to persons who would be called as witnesses at 

trial. Davidson still refused to comply with the discovery order. 

On March 13, 1992, the State moved in limine to preclude 

evidence at trial from Davidson in support of the defense of mental 

disease or defect. On April 3, 1992, at oral argument regarding 

the State's motion in limine, defense counsel advised the District 

Court that it should grant the State's motion. Counsel stated that 

he felt the statutes requiring disclosure were unconstitutional, 

and therefore, would not provide the requested information. 

Davidson was personally advised by the District Court that his 
counsel's actions would deprive him of a possible defense at trial. 

Davidson conferred with his attorney and agreed that he understood 

that non-disclosure would eliminate his right to rely on mental 

disease or defect as a defense at trial. Accordingly, on April 7, 

1992, the District Court granted the State's motion in limine and 

precluded Davidson from offering evidence in support of the defense 

of mental disease or defect. 

Davidson was ultimately tried by a jury and convicted of 

deliberate homicide. On September 16, 1992, Davidson filed his 

notice of appeal. 

DISCUSSION 

Do Montana's reciprocal discovery statutes, specifically 

55 46-15-323, -328, and -329, MCA (1991), violate the Fifth, Sixth 

and Fourteenth Amendments of the Federal Constitution and 

Article 11, Section 25, of the Montana Constitution? 

When we consider whether a statute is constitutional, there is 

a strong presumption in favor of the statute's validity. The party 

challenging a statute's constitutionality has the burden of proving 

it unconstitutional. State ex rel. Dreher v. Fuller (1993) , 257 Mont. 445, 

448, 849 P.2d 1045, 1047. In determining whether the District 

Court properly imposed sanctions by precluding Davidson from 

producing evidence of mental disease or defect, this Court 

considers whether the District Court clearly abused its discretion. 

The statutory scheme provides that the district court *mayt1 

disallow testimony, hence it is a matter left to the district 

court's discretion. Absent a clear abuse of discretion, the 

5 
district court's decision must be upheld. State v. Waters (1987), 228 

Mont. 490, 495, 743 P.2d 617, 621. 

We note at the outset that Davidson raised nearly the exact 

same issues in his initial petition for writ of supervisory control 

that he now raises on appeal. This Court, on January 7, 1992, 

accepted supervisory control and, with slight modification, upheld 

the District Court's disclosure order. Thus, the issue was 

substantively decided and Davidson could be precluded from 

relitigating this issue. See State v. Zimmeman (1977), 175 Mont. 179, 

185, 573 P.2d 174, 177-78. However, since our prior decision was 

issued in summary fashion, we now further discuss the issues raised 

by Davidson's appeal. 

Davidson asserts that §§ 46-15-323 (3), (4), and (6), and -329, 

MCA (1991), violate the Fifth, Sixth, and Fourteenth Amendments of 

the United States Constitution, and Article 11, Section 25, of the 

Montana Constitution. The challenged portions of 46-15-323, MCA 

(1991), state: 

(3) Within 10 days after receiving a report of the 

defendant's mental condition from a psychiatrist or 

psychologist or at a later time as the court may for good 

cause permit, the defendant shall provide the prosecutor 

with a written notice of the defendant's intention to 

introduce evidence at trial of the defense that due to a 

mental disease or defect, the defendant did not have a 

particular state of mind that is an essential element of 

the offense charged. 

(4) The notice must specify for each defense the 

names and addresses of the persons, other than the 

defendant, whom the defendant may call as witnesses in 

support of the defense, together with all written reports 

or statements made by them concerning the results of 

physical examinations, scientific tests, experiments, or 

comparisons, except that the defendant need not include 
a privileged report or statement unless he intends to use 

the privileged report or statement, or the witness who 

made it, at trial. .... 

(6) Within lo days after the omnibus hearing in 

district court or at a later time as the court may for 

good cause permit, the defendant shall make available to 

the prosecutor fortesting, examination, or reproduction: 

(a) the names, addresses, and statements of all 

persons, other than the defendant, whom the defendant may 

call as witnesses in the defense case-in-chief, together 

with their statements; 

(b) the names and addresses of experts whom the 

defendant may call at trial, together with the results of 

their physical examinations, scientific tests, 

experiments, or comparisons, including all written 

reports and statements made by these experts in 

connection with the particular case: and 

(cj all papers, documents, photographs, and other 

tangible objects that the defendant may use at trial. 

Davidson did provide notice of his intent to introduce 

evidence of mental disease or defect as required by subsection (3), 

but did not comply with subsection (4) which requires a defendant 

to provide the names and addresses of the witnesses and their 

written reports or statements. Since he did not comply with the 

discovery requirements, the District Court imposed sanctions under 

5 46-15-329, MCA (1991). That section states that a district 

court may impose any sanction it finds just under the 

circumstances: among the options listed are precluding a party from 

calling a witness, offering evidence, or raising a defense that is 

not disclosed. Because Davidson did not provide the requisite 

items, the District Court granted the State's motion in limine 

which precluded him from offering evidence of mental disease or 

defect at trial. 
This Court previously affirmed Montana's reciprocal 

discovery provisions against attack on the same constitutional 

grounds in State ex rel. Carkulis v. Dktrict Courl (1987) , 229 Mont. 265, 746 

P.2d 604, appealdismissed, Carkulisv. Montana (1988)' 487 U.S. 1201, 108 

S. Ct. 2839, 101 L. Ed. 2d 877. We likewise upheld Montana's 

discovery statutes in subsequent cases. See State v. Miller (1988) , 23 1 

Mont. 497, 757 P.2d 1275 (prohibiting defendant from offering 

testimony of a private investigator for impeachment because 

defendant failed to disclose the private investigator's report); 

State v. Kills on Top (1990) , 241 Mont. 378, 787 P. 2d 336 (holding that 

defendant could not claim error in part because he did not request 

the district court to review the witness reports in question which 

would allow the district court to review the statements and excise 

incriminating information). 

In Carkulis. the defendant refused to disclose materials he was 

ordered to disclose. The district court held that based on his 

refusal to provide discovery, the evidence sought could not be 

introduced at trial. The defendant filed a petition for writ of 

supervisory control with this Court. Carkulis claimed that the 

reciprocal discovery statutes violated his rights against 

self-incrimination based on the Fifth Amendment, Article 11, 

Section 25, of the Montana Constitution, and due process rights 

guaranteed by the Fourteenth Amendment. We concluded, relying in 

part on Stateexrel. Sikora v. District Coun (1969), 154 Mont. 241, 462 P.2d 
897, that not all evidence obtained from a defendant is privileged 

under the Fifth Amendment. 

In Sikora, this Court discussed the constitutionality of 

5 95-1803(d), RCM (1947), which was repealed but substantially 

incorporated into 5 46-15-323, MCA (1991) . Sikora dealt specifically 

with the prior discovery statutes in cases involving the defenses 

of insanity, self-defense, and alibi. We reasoned that giving 

notice of a defense does not incriminate a defendant because the 

Constitution does not protect a defendant from consequences of 

claiming a defense. Nor does the Constitution assure a defendant 

the right to defend in a manner that denies the State a chance to 

examine the truthfulness of a defendant's position. Sikora, 462 P.2d 

at 899. The purpose of reciprocal discovery provisions is to 

provide notice and prevent surprise. Sikora, 462 P.2d at 899. 

Citing previous cases, we recognized that a criminal trial is not 

considered a game of concealment, but rather a search for the 

truth. Sikora, 462 P.2d at 901. 

The previous discovery statute, as discussed in Sikora, 462 P.2d 

at 902, did not infringe upon the privilege against selfincrimination because it "in no manner compels a defendant to give 

evidence other than that which he will voluntarily and without 

compulsion give at trial. It A defendant's privilege is not abridged 

if the defendant chooses to remain silent or not call any witnesses 

regarding his or her sanity. 
In Carkulis, we also relied on Williarnsv. Florida (1970), 399 U.S. 

78, 90 S. Ct. 1893, 26 L. Ed. 2d 446, which upheld a Florida 

statute requiring the defense to disclose an alibi witness to the 

state before trial. The Court in wilhns based its decision on the 

theory of ptaccelerated disclosure." It reasoned that because at 

the trial the defendant would have to reveal his alibi and 

witnesses; accelerating disclosure does not affect constitutional 

rights against self-incrimination. William, 399 U.S. at 85 (stating 

that the Fifth Amendment does not grant a defendant a 

constitutional right to wait until after the prosecutionts case in 

chief before announcing the nature of his defense). Partly because 

without disclosure the prosecution may suffer from surprise, and 

partly because Montana's discovery statutes provide protections for 

defendants, such as protective orders found in 5 46-15-328, MCA, 

the Carkulis Court held that a defendant must provide the State a 

list of all witnesses he intends to call at trial. Carkufis, 746 

P.2d at 609. 

Discussing the issue of whether or not a defendant must 

surrender copies of statements obtained by the defendant, and 

statements of witnesses the defendant would call at trial, we 

acknowledged in Carkulis that two states had refused to allow 

pretrial disclosure of witness lists or statements. Carkulis, 746 

P.2d at 610 (citing Scott v. State (Alaska 1974), 519 P.2d 774; In re 

Misetter (Cal. 1985) , 698 P. 2d 637. ) 
Davidson reasserts arguments relying on those cases. However, 

both of those cases were based on state constitutional law, not 

united States Supreme Court decisions. Thus, Alaska and California 

decided to interpret their constitutions more broadly than the U.S. 

Supreme Court had construed the Fifth Amendment in William. In 

those cases, the courts disallowed pretrial exchange of witness 

lists and witness statements because they felt it was testimonial 

and stated such information may tend to be incriminating in some 

cases. Carkulis, 746 P.2d at 610. However, as we did not find 

defendant's reliance on those cases persuasive in Carkulis, we do not 

find Davidson's reliance persuasive here. In fact, Misener, is no 

longer the law in California. See lzazaga v. Superior Court (Cal. 1991) , 

815 P.2d 304 (upholding the prosecution's motion to compel formal 

discovery in a rape and kidnapping case and recognizing 

California's discovery provisions as a two-way street). 

In Carkulis, we noted that our analysis applied equally to 

pretrial disclosure of prospective expert witnesses. We were 

careful then, and we reiterate now, that district courts should 

exercise caution because examinations by experts require the 

defendant to communicate freely and candidly. As a result, an 

expert's notes or reports may contain possibly incriminating 

information to which the State is not entitled. Carkulis, 746 P.2d 

at 611 (citing Mnlloy v. Hogan (l964), 378 U.S. 1, 84 S. Ct. 1489, 12 

L. Ed. 2d. 653. In Carkuli~, 746 P.2d at 611, we were particularly 
careful to mention that psychologists' and psychiatrists' reports 

may contain incriminating statements, which should, after incamera 

inspection, be excised from the material produced. 

We reiterate the importance of Montana's protective order 

provisions in 5 46-15-328, MCA. We do not hold that a criminal 

defendant is required to disclose an incriminating statement. In 

this case, however, Davidson was specifically advised of his right 

to avail himself of the statute's protective provisions and 

declined. Instead, he refused to provide any information. 

Davidson personally agreed with this procedure after his 

counsel decided to challenge the constitutionality of Montana's 

statutes, despite counsel's knowledge of the Carkulis decision. 

Because Davidson did not attempt to utilize the protective order 

provisions, his claims must fail. See Kills on Top, 787 P.2d at 344 

(stating that because defendant did not request a protective order, 

and the district court record did not contain evidence of 

prejudice, that defendant's argument was merely academic). 

Davidson also relies on Smith v. McCormick (9th Cir. 1990)~ 914 

F.2d 1153. In that case, the defendant requested the court to 

reconsider his previous guilty plea where he requested the death 

sentence, and requested a psychiatric evaluation. The court 

granted the evaluation on the condition that the results be 

provided to the court. At issue in Smith were questions of an 

indigent defendant's due process rights, and whether they were 

violated because psychiatric assistance was conditioned upon 
disclosure. The court's discussion focused on whether or not the 

defendant was entitled to a competent psychologist or psychiatrist 

who could conduct appropriate exams and assist in preparing the 

defense without being required to disclose his or her opinion to 

the State or the court. It did not involve discovery rules which 

relate to witnesses a defendant intends to call at trial. 

We are not here confronted with the same issue. First, Smith 

did not involve a challenge based on Fifth Amendment rights. 

Second, Smith did not involve a challenge to Montana's statutes that 

require disclosure of a psychiatric report after notice of mental 

disease or defect. Third, nothing here prevented Davidson from 

being examined by psychiatrists of his choice. In fact, the court 

appointed Dr. Harr to examine Davidson at his first request. 

Furthermore, Davidson was examined by several other psychiatrists 

and psychologists. Thus, Davidson was entitled to a neutral and 

independent psychiatrist to assist and evaluate whether or not the 

mental disease or defect claim was advisable. 

Montana's reciprocal discovery provisions allow a defendant to 

be examined by as many psychiatrists as a defendant desires to 

prepare a defense. He or she must only disclose statements of 

those that are to be called as witnesses at trial. Defendants are 

allowed to communicate freely with a psychiatric expert and need 

disclose nothing unless the expert is to be called as a witness. 

See United Slates v. Alvarez (3d Cir. 1975), 519 F.2d 1036, 1046. 

Furthermore, even in Smith, 914 F. 2d at 1160 (citing United States v. 
Noblts (1975), 422 U.S. 225, 240, 95 S. Ct. 2160, 2171, 45 

L. Ed. 2d. 141, 154-55, n. 15), the court recognized that the 

attorney-client privilege extends only to the "point of testimonial 

use of that comm~nication.~~ Wehold that the discovery provisions 

found at g 46-15-323, MCA, do n~t violate the Fifth and Fourteenth 

Amendment's of the United States Constitution, or Article 11, 

Section 25, of the Montana Constitution. 

Davidson also argues that his Sixth Amendment rights were 

violated. Davidson fails to specify which of his Sixth Amendment 

rights, nonetheless, Sixth Amendment arguments were also litigated 

and decided in Carkulis. The United States Supreme Court has 

recognized in Nobles, 422 U.S. at 240-41, that the Sixth Amendment 

does not grant the right to assert half truths and is subject to 

legitimate demands of the adversarial system. Citing Nobles, in 

Carkulis we agreed that the Sixth Amendment does not confer the right 

to give testimony free from the demands of the adversarial system. 

Carkulis, 746 P.2d at 616. We also conclude that the discovery 

provisions found at § 46-15-323, MCA, do not violate the Sixth 

Amendment of the United States Constitution. 

Davidson next challenges the constitutionality of 5 46-15-329, 

MCA, which allows a district court to impose sanctions on a 

defendant who fails to comply with discovery requirements. Again, 

Carkulis is dispositive. 

Once it is determined, as we have determined here, 

that reciprocal pretrial disclosures subject to 

constitutional or statutory limitations are permissible, 
it goes hand in hand with that determination to say that 

the District Court may exercise its judicial discretion 

in enforcing such permissible disclosures. 

Carkulis, 746 P.2d at 616. Likewise, in later opinions we recognized 

that 1 46-15-329, MCA, is consistent with the goal of reciprocal 

discovery to "enhance the search for truth." See Waters, 743 P.2d at 

620. As mentioned above, this Court defers to the district court's 

discretion regarding the imposition of sanctions. Waters, 743 P.2d 

at 621; State v. Van Voast (lggl), 247 Mont. 194, 202, 805 P.2d 1380, 

1385, 

In this case, Davidson repeatedly refused to comply with 

orders by the District Court and from this Court requiring him to 

comply with the discovery provisions. Therefore, we conclude that 

in an effort to enforce the reciprocal discovery statutes, the 

District Court did not abuse its discretion by excluding evidence 

of mental disease or defect. 

Accordingly, we affirm the District Court and hold that 

Montana's reciprocal discovery statutes for criminal proceedings, 

specifically SS 46-15-323(3), (4), and (ti), and -329, MCA, do not 

violate the Federal or Montana Constitutions. 
We concur: 
September 14, 1994 

CERTIFICATE OF SERVICE 

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

following named: 

Arnold A. Berger 

Berger Law Firm, P.C. 

P.O. Box 1914 

Billings, MT 59103 

Dennis Paxinos, County Attorney 

Shelley Briney , Deputy 

P.O. Box 35025 

Billings, MT 59107 

Hon. Joseph P. Mazurek, Attorney General 

Elizabeth L. Griffing, Assistant 

Justice Bldg. 

Helena, MT 59620 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA