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: DistrictCourt of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable RobertW. Holmstrom,Judgepresiding.

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, 1994Justice Terry N. Trieweiler delivered the opinion of the Court. Defendant Gerald Davidsonwas 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 toprovide 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, Davidsonwas convicted of deliberatehomicide. 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 PamelaMoberly, 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 examinationwas 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, Davidsongave notice under 5 46-14-201,MCA (1989) (now5 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 thewitness 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 issuewas 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 FourteenthAmendment to the United States Constitution. On January 7, 1992, this Court upheld the District Court's order,with a slightmodification that limited the order to persons who would be called as witnesses at trial. Davidson still refused to complywith the discovery order. On March 13, 1992, the State moved in limine to preclude evidence at trial fromDavidson in support of the defense ofmental 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 shouldgrant 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 hiscounsel's actionswould deprivehim of apossible defense at trial. Davidson conferredwith 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 supportof 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? Whenwe considerwhether a statute is constitutional,there is

a strong presumption in favor of the statute's validity. The party challenginga statute's constitutionalityhas theburden ofproving it unconstitutional. Stateexrel. Dreherv.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 considerswhether 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 5district court's decisionmust be upheld. Statev. Waters (1987), 228 Mont. 490, 495, 743 P.2d 617, 621. We note at the outset that Davidson raised nearly the exact

same issues inhis initial petition forwrit of supervisorycontrol that he now raises on appeal. This Court, on January 7, 1992, accepted supervisorycontrol 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. SeeStatev.Zimmeman (1977), 175Mont. 179, 185, 573 P.2d 174, 177-78. However, since our prior decision was issued in summary fashion,we now furtherdiscuss the issuesraised 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 courtmay 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 allwritten reports or statements made by them concerning the results of physical examinations,scientific tests, experiments, or comparisons, except that the defendant need not includeaprivileged report or statementunless he intendstouse 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,orreproduction: (a) the names, addresses, and statements of all persons,other than the defendant,whom thedefendantmay call aswitnesses in the defense case-in-chief,together with their statements; (b) the names and addresses of experts whom the defendantmay call at trial,togetherwith 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 requiredby 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 sanctionsunder 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 areprecluding aparty 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

### exrel. Carkulisv.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. SeeStatev.Miller (1988)

## , 231 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.Killson 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 questionwhich would allow the district court to review the statementsand 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 FourteenthAmendment. We concluded, relying in part on Stateexrel.Sikorav.DistrictCoun (1969), 154 Mont. 241, 462 P.2d897,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 into5 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 examinethe truthfulnessof adefendant'sposition. 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. Thepreviousdiscovery statute,as discussed inSikora, 462P.2d at 902, did not infringe upon the privilege against selfincriminationbecause 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 ornot call anywitnesses 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 statebefore 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 rightsagainst self-incrimination. William, 399 U.S. at 85 (stating that the Fifth Amendment does not grant a defendant a constitutional right towait until after the prosecutiontscase in chiefbefore announcing the nature ofhis defense). Partly because without disclosure the prosecution may suffer from surprise, and partly becauseMontana's discoverystatutesprovide 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; Inre Misetter (Cal. 1985)

## , 698 P. 2d 637.)Davidsonreasserts argumentsrelyingonthose 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 theU.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 inCarkulis, we do not find Davidson's reliance persuasive here. In fact,Misener, is no longer the law in California. Seelzazaga v.SuperiorCourt (Cal. 1991)

## , 815 P.2d 304 (upholdingthe 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 (citingMnlloyv.Hogan (l964), 378 U.S. 1, 84 S. Ct. 1489, 12 

### L. Ed. 2d. 653. In Carkuli~,746 P.2d at 611,we were particularlycareful 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,Davidsonwas 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. SeeKillson Top, 787 P.2d at 344

(statingthatbecause defendant did not request aprotective 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 (9thCir. 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 upondisclosure. The court's discussion focused on whether or not the defendant was entitled to a competentpsychologist 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 involvea challenge toMontana'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 allowadefendantto 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-clientprivilege extends only to the "pointof testimonial

use of that comm~nication.~~ We hold 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, SixthAmendment argumentswere also litigated and decided in Carkulis. The United States Supreme Court has recognized inNobles, 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 Carkuliswe 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. Davidsonnext challengestheconstitutionalityof 5 46-15-329, MCA, which allows a district court to impose sanctions on a defendantwho 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 constitutionalor statutory limitations are permissible,it goes hand in hand with that determinationto say that the District Court may exercise its judicial discretion in enforcing such permissible disclosures. Carkulis, 746 P.2d at 616. Likewise, in later opinionswe recognized that 1 46-15-329, MCA, is consistent with the goal of reciprocal discovery to "enhancethe search for truth." See Waters, 743 P.2d at 620. As mentioned above,this Court defers to thedistrict court's discretion regarding the imposition of sanctions. Waters, 743 P.2d at 621;State

### v. VanVoast (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:September14, 1994 CERTIFICATEOFSERVICE Ihereby certifythatthefollowing certifiedorderwas sentby United States mail, prepaid,tothe followingnamed:

ArnoldA. Berger BergerLawFirm,P.C. P.O. Box 1914 Billings,MT 59103 DennisPaxinos,CountyAttorney ShelleyBriney

### ,Deputy P.O. Box35025 Billings,MT 59107 Hon.Joseph P.Mazurek,AttorneyGeneral ElizabethL. Griffing,Assistant JusticeBldg. Helena,MT 59620

EDSMITH CLERKOFTHE SUPREME COURT STATEOFMONTANA