No. 83-410 INTHE SUPREME COURTOF THE STATEOF MONTANA 1984

STATE OF MONTANA, Plaintiffand Respondent,

-vsJERRYT. KORELL, Defendantand Appellant.

APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Ravalli, The Honorable RobertM. Holter, Judgepresiding.

COUNSELOF RECORD:

ForAppellant: Robinson,Doyle & Bell;John C. Doyle argued, Hamilton,Montana

For Respondent: Hon. Mike Greely,Attorney General,Helena,Montana Kimberly A. Kradolfer argued,Asst. Atty. General Robert B. Brown, CountyAttorney, Hamilton,Montana Larry Johnson argued,Deputy County Atty., Hamilton

Submitted: October 2, 1984 Decided: November 16, 1984

Filed: 

## FQV1 1984

ClerkMr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Jerry Rorell appeals the judgment of the Ravalli County District Court finding him guilty of attempted deliberate homicide and aggravated assault. Korell was sentenced to concurrent sentences of thirty-five and fifteenyears at the Montana State Prison. Korell's defense at trialwas that he lacked the requisite criminal mental state by reason of his insanity. On appeal his primary contention is that the Montana statutory scheme deprived him of a constitutional right to raise insanity as an independent defense. Jerry Korell is a. Viet Nam veteran who had several disturbing experiences during his tour of duty. The exact nature of the traumawas never fully documented. Friendsand family agree that he was a different person when he returned from the service. Between Korell's honorable discharge in 1970 and the present events, he was twice admitted to VA hospitals for psychological problems and treated with anti-psychotic drugs. In 1976 he was jailed briefly in Boise, Idaho, for harassing and threatening the late Senator Frank Church. Thebasic nature ofKorell'sproblemswas thathewould periodically slip into paranoid pheses during which he had trouble re1ating to male authority figures. His mental health varied dramatically. In the poorer times his family entertained thoughts abouthaving him civilly committed. His VA hospital.izationswere voluntary and neither of the stays

were of such length that he was fully evaluated or treated.. In 1980 Korell entered a community collegeprogram for echocardiology in Spokane,Washington. Echocardiology is the skill associatedwith recordingand interpreting sonogramsofthe heart for diagnostic purposes. In March 1982he was sent to Missoula to serve a clinical externship at St. Patrick's Hospital. Korell's supervisor at the hospital was Greg Lockwood, the eventual victim of this crime. Korell's relationshipwith Lockwood deteriorated for a variety of work-related reasons. Foremost was Korell

## 's belief that he was worked excessively by Lockwood. At this time Korell was subjected to what expert testimony labeled psychological stressors: a divorce by his wife, financial problems and the pressures of graduation requirements. In April 1982 Korell wrote a letter to the hospital administrator complaining about his supervisor, Lockwood. Korell was transferred to an externship in Spoka.ne, and Lockwood was placed on probation. Both men retained.very bitter feelings about the incident. Lockwood stated to friends he would see to it that Korell was never hired anywhere in echocardiology. Korell may have learned of Llockwood'sstatements. Korell's actions in the next two months indicate a great deal of confusion. He set fire to a laundromat because he lost nine quarters in a machine and was tired of being ripped off. He set fire to a former home of his wife because shehad bad feelings about it. Released on bail from these incidents, he returned to Missoula in June 1982. Psychiatric testimony introduced at trial indicates that Korell felt he had to kill Lockwood before Lockwood. killed him. He removed a handgun from a friend's home, had another acquaintance purchase ammunition, and on the evening of June 25, 1982, drove to the Lockwood home in the Eagle Watch area of the Bitterroot Valley. Shirley Lockwood, Grecr's wife, saw the unfamiliar vehicleapproach the house. Greg Lockwood was lying on the 1-iving room floor at the time watching television. Korel.1entered the house through a side door and began firing. Although wounded, Greg Lockwood managed to engage the defendant in a struggle. A shot was fired in the direction of Lockwood's wife. Korell grabbed a kitchen knife and both men were further injured before Lockwood was able to subdue Korell. Korell was charged with attempted deliberate homicide and aggravated assault. The defendant gave notice of his intent to rely on a mental disease ordefect toprove thathe did not have the particular state of mind which is an essential element of the offense charged. Prior to trial he sought 

### a writ of supervisory control declaring that he had a right to rely on the defense that he was suffering from a mental disease or defect at the time he committed the acts charged. The writ was denied by this Court on December 20, 1-982,and the caseproceeded to trial. Several psychologists and psychiatrists testified on Korell's mental condition. The defense sought to establish by its expertwitnesses and numerous character witnesses that Korell was a disturbed man who was psychotic at the time the crimes were committed. Itwas argued that his acti-onswhen he entered the Lockwood home were not voluntary acts. The St-ateproduced its own expert witnesses who testified on Korell

### 's mental condition. Four doctors testified in all-, two for the prosecution and two for the defense. Three of the four stated Korell had the capacity to act knowingly or purposely, the requisite mental state for the offenses, when he entered the Lockwood home. Without giving prior notice, the State produced.Cedric Hames a.s a rebuttal witness who testified that he purchasedammunition for the defendant several days before the shooting. A motion for mistrial was made by the defense. The court denied the motion but offered the defense a continuance. The offerwas refused by defendant's counsel. In keepingwithMontana's current lawonmental disease

or defect, the jury was instructed that they could consider mental disease or defect only insofar as it negated the defendant

### 's requisite state of mind. The jury returned guilty verdicts for the attempted deliberate homicide and aggravated assault. On appeal the defendant presents the following issues: 1. Is there a constitutional right to raise insanity

as an independent defense to criminal charges? 2. Was the State's rebuttal testimony of Cedric Hames properly admitted? 3. Was the jury properly instructed on the issue of voluntariness? 4. Did the DistrictCourt fail t.oconsiderdefendant's mental condition at sentencing? 5. Did the DistrictCourt actwithin its discretion in awarding fees to defendant's court-appointed attorney?

I. CONSTITUTIONAL CHALLENGE

A. Background

In 1.979 the Forty-Sixth Session of theMontana Legislature enacted House Bill 877. This Bill abolished use of the traditional. insanity defense in Montana and substituted alternativeprocedures for consideringa criminaldefendant'smental condition. Evidence of mental disease or defect i.s

now considered at three phases of a criminal proceeding. Before trial, evidence may be presented to show that the defendant is not fit to proceed to trial. Section 46-14-221, MCA. Anyone who is unable to understand the proceedings against him or assist inhis defense may not be prosecuted. Section 46-14-103, MCA. During trial-, evidence of mental disease or defect is admissible when relevant to prove that, atthe time of the offense charged, thedefendant didnot have the stateof mind that is an element of the crime charged, e.q., that the defendant did not act purposely or knowingly. Section 46-14-102, MCA. The State retains theburden of proving each element of the offense beyond a reasonable doubt. Defendant may, of course, present evidence to contradict the State's proof that he committed the offense and that he had the requisite stateof mind atthattime. Whenever the jury finds that the State has failed. to prove beyond a reasonable doubt that the defendant had the requisite stateof mind atthetime he committed theoffense, it is instructed to return a special verdict of not guilty "for the reason that. due to a mental disease or defect he could not have a particular state of mind that is an essential element of the offense charged. 

# . . ." Section 46-14-201 (2),MCA. Finally atthe dispositional stage following the trial and conviction, the sentencingjudge must consider any relevant evidence presented at the trial, plus any additional evidence presented at the sentencing hearing, to determine whether the defendant was able to appreciate the criminality of his actsortoconform his conduct tothe Law atthetimehe committed the offense for which hewas convicted. Section 46-14-311,MCA. The sentencing judge's considerationof the evidence is not the same as that of the jury. The jury determines whether the defendant committed the offense with the requisite state ofmind, e.g., whether he acted purposely or knowingly. The sentencing judge determines whether, at the time the defendant committed the offense, he was able to appreciate its criminalityor conformhis conduct to the law. If the court concludes the defendantwas not sufferina from a mental disease or defect that rendered him unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of law,normal criminal sentencingprocedures are invoked. Section 46-14-312(1),MCA. Whenever the sentencing court finds the defendant was suffering from mental disease or defect which rendered him unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of law, mandatory minimum sentences are waived. The defendant is committed to the custody of the director of institutionsand placed in an appropriate institution for custody, care and treatment not to exceed the maximum possible sentence. Section 46-14--312(2),MCA. As a practical matter, this means the defendant may be placed in the Warm Springs State Hospitalunder the alternative sentencing procedures. The institutionalized defendant may later petition the District Court for release from the hospital upon a showing that the individual has been cured of the mental disease or defect. If the petition is granted, the court must transfer the defendant to the stateprison or place the defendant under alternative confinement or supervision. The length of thisIf. >

confinement or supervisionmust equal the original sentence. Section 46-14-312(3),MCA. In summary,whileMontanahas abolished the traditional use of insanity as a defense, alternative procedures have been enacted to deal with insane individuals who commit criminal acts. Much hasbeen written concerning criminal responsibility and jnsanity. Professor Norval Morris commented that "[rlivers of ink, mountains of printer's lead, forests of paper have been expended on this issue. 

# . . ." Morris, Psychiatry 

### -- and the DangerousCriminal,41 S.Ca1.L.R. 514, 516 (1968). Yet there is a paucity of judicial opinions construing the constitutionalparameters of the traditional insanity defense or the various reform proposals. This case is the first direct constitutional challenge to Montana's abolition of the affirmative insanity defense and adoption of alternative procedures in itsplace. Four opinions of this Court have addressed the post-1979 law on mental disease or defect: State v. Mercer

(PJont. 1981.), 625 P.2d 44, 38 St.Rep. 312; State v. Doney (Mont. 1981), 636 P.2d 1377, 38 St.Rep. 1707; State v. Zampich (Mont. 1983), 667 P.2d 955, 40 St.Rep. 1235; and State v. Watson (Mont. 1984), 686 P.2d 879, 41 St.Rep. 1452. In Plercer, supra, we affirmed the aggravated assault conviction of a man found guilty of attacking a school teacher. The defendant, Bryan Mercer, suffered episodic mental illness. While broad questions concerning the mental disease defense were raised,we did not reach these issues. Mercer argued that sentencing to prison a man suffering from severe mental illness violates the constitutionalban against cruel and unusual punishment. We found no authority holding thati-mprisonmentrather tha.nmedical treatment of a person who claims to be insane, but has not been adjudicated insane, constitutes cruel and unusual punishment. We held that the jury verdict convicting the defendant was supported by substa.ntia1evidence and that the defendant had failed to show any statutory or constitutional violation by the sentencing judge

# . FollowingMercer, this Courtheard the appeal of another aggravated assault conviction in Doney, supra. The defendant Doney stabbed the night clerk of a Havre hotel and relied on expert testimony during trial to show he was incapable of forming the requisite mental sta.te

### of purposely or knowingly. On appeal he argued that the State was required to overcome his "preponderance of evidence" by proving his sanity beyond a reasonabledoubt,aswell as the fact thathe had acted purposely and knowingly. We rejected that notion: 

## ".

# .

# . It is sufficient that the State prove beyond a reasonable doubt the existence 

### of the mental state that is an essential element of each of the offenses charged. Implicit in the jury's conviction is its conclusion that thedefendant possessed the requisite mental state,and therefore had the capacity to form that mental state. The State has met the requirements of Montana law." 636 P.2d at 1382. Our holding in Doney clarified prior language in Mercer, where the majority had noted: 

# ".

.

# . Therefore, the jury knew that the State had the burden of proving beyond a reasonable doubt that the defendant was sa.ne and capable of acting purposely or knowinglyat the time of the crime." 625 P.2d at 49. While some jurisdictions, most notably the federal courts,have given the prosecution the burden of proving the defendant's sanity beyond a reasonable doubt, such practiceis not the rule in Montana. Prior to 1979, insanity was trea.tedas an 

### affirms-tive defense that had to be established by the accused by a preponderance of the evidence. Statev. Caryl (1975),168 Mont. 414, 425, 543 P.2d 389, 395. As the above discussion and our holding in Doney states, it is sufficient that the State provebeyond a reasonabledoubt the requisitemental state,e.g., purposely or knowingly, that is

an element of the offense charged. The third decision of this Court to address the 1.979 changes in the law on mental disease or defectwas Zampich, supra. The defendant Zampjch was charged with mitigated deliberatehomicide fora tavern shooting in Carter,Montana. Zampich's psychologist testified thatwhile thedefendantmay have been able to actpurposely or knowingly,he may nothave been acting voluntarily. We upheld the conviction on the ground that a jury instruction was given stating that a voluntary act is amaterial element of every offense and that the instructions read as a whole properly gave the jury notice of the defendant's theory of the case. Finally in Watson, supra, the defendant argued.that, because the primary symptoms of his mental disease were his repeated criminal or antisocialbeha-viorand because the jury

was instructed that mental disease does not include an abnormality manifested only by repeated criminal or other antisocial conduct, the jurywasmisled to presume that he had the requisite state of mind at the time he committed the offenses. See section 46-14-101,MCA. Watson had entered two Missoula apartments, stabbed a sleepingwoman thirty-five times and also stabbed a man who

came to her rescue. Both victims survived the attacks. The defend-antclaimed a demon. spirit.possessed h.isbody duringthe acts. The jury convicted Watson of attempted deliberate homicide, aggravated assa.ult and burglary. Tn accordance with our prior decisions, this Court concluded that the jury

was properly informed of the State's burden of establishing beyond a reasonable doubt that Watson acted purposely or knowingly. The convictionwas affirmed. The sentencing judge found that Watson was suffering from a serious mental. disorder, but also found that Watson was capable of appreciating the criminalityofhis conduct or conforming his conduct to the law but chose not to do so. See section 46-14-311, MCA. The court designated Watson a dangerous and persistent felony offender and sentencedhim to 300years imprisonment. Watson contended that his punishment

was cruel and unusual in light of the fact that he suffered from a mental disorder. Relying on our prior decisions in Nercer and Doney, we upheld Watson's sentence, which was within the statutory maximum. Review of our case law reveal-sthat the constitutionality of the legislature's abolition of the affirmative defense of insanity has not previously been decided. Korell

### 's present challenge is based on the Fourteenth Amendment guarantee of due process of law and the Eighth Amendment prohibition against cruel and unusualpunishment.

B. Due ProcessConsidera.tions

1. FundamentalRights.

The due process clause of the FourteenthArnend.mentwas intended in part to protect certain fundamental rights long recognized under the common law. Powell v. Alabama (1932)

## , 287 u.S. 45, 53 S.Ct. 55, 77 L.Ed. 158. Appellant contendsthat the insanitydefense is so embedded in our legal history that it shouldbe afforded status as a fundamentalright. He argues that the defense was firmly established as a pa.rtof the common law long before our federal constitution was adopted and. is essential to our present system of ordered liberty. The United States Supreme Court has never held that there is a constitutional right to plead an insanitydefense. Moreover, the Court has noted that the significance of the defense is properly left to the states: "We cannot cast aside the centuries-1-ong evolution of the collection of interlocking and overlapping concepts which the common lawhasutilized to assess the moral accountability of an individual for his antisocial deeds. The doctrines of actus reus,mens real insanity, mistake, 

### - -- iustification, and duress have historical-lyprovided the tools for a constantly shifting adjustment of the tension between the evolving aims of the criminallawand changing rel-igious, moral,philosophical,andmedical views of thenature of man. This process of ad.justmenthas a.lwaysbeen thought tobe the province of the States." Powellv. Texas (19681,392 U.S. 514, 535-536, 88 S.Ct. 2145, 2156, 20 L.Ed.2d 1254, 1269. An examinationof the common law in a search for fundamental rights can be misleading. When lookingat concepts of insanity and criminal responsibility,one discovers a continuum of changing societal values and views. Commentators and courts have reached differing conclusions on the role of the insanitydefense in the history of jurisprudence. The English jurist Stephenobserved: 

# ".

.. in very ancient times proof of madness appears not to have entitled a man to be acquitted, at least in case of murder, but to a special verdict that he committed the offense when mad. This gave him a right to a pardon. The same course was taken when the defence was killing by misadventure or inself-defence." 2 Stephen, A History of the Criminal.

### -- Law of ~ngland-151. (1883), This early thirteenth century practice of pardoning the insane was acknowledged in our Watson decision and the historical discussion therein. Pardons were liberally granted and the practice represented a humane departure from earlier times of absolute liability for criminal acts. Development of the 

## -- mens rea concept preceded recognition of the insanity defense. The Latin phrase 

### -- mens rea literally translatesas "evilmind." Ithas alsobeen interpreted as guilty mind, evil intent or criminal intent. Enlightenedmed-ievaljurists developed themens 

### -- rea doctrine: without criminal intent, there can be no moral blameworthiness, crime or punishment. In the words of Henrici Bracton

(d. 1268): "For a crime is not committed u.nl.essthe will to harm be present." This principle has played.a central role in all subsequent considerations of capacity, insanity, and moral and legal culpability. For centuries evidence of mental illness was admitted to show the accusedwas incapable of forming criminal intent. Insanitydid not come tobe generally recognizedas an affirmative defense and an independentground for acquittal until the nineteenth century. M.orris,The Criminal Responsibility of the Mentally Ill, 33 Syracuse L. R. 477, 500 (1982); 

### -- American Medical Association, The Insanity Defense 

### - in Criminal Trials 

## - and Limitations 

### - of Psychiatric Testimony, Report of the Roard ofTrustees,at 27 (1983). The defense grew out of the earliernotions ofmens rea. 

### -- We rejectappellant's contention that from the earliest period of the common law, insanity has been recognized as a defense. What we recognize is that one who la.cks therequisite criminal state of mind may not be convicted or punished. Three older state court decisions have found state statutes abolishing the insanity defense to be unconstitutional. State 

### v. Lange (1929), 168 La. 958, 123 So. 639; Sinclair 

### v. State (19311,161 Miss. 1.42, 132 So. 581; State

v. Strasburg (1910), 60Wash. 106, 110 P. 1020. These decisions are distinguishable in that they interpret statutes that precluded 

### any trial testimony of mental condition, including that which would cast doubt on the defendant's state of mind at the time he committed the charged offense. The Montana statutes in question expressly allow evidence of mental disease or defect to be introduced to rebut proof of defendant's stateofmind. Section 46-14-102,MCA. The United States Supreme Court refused in 1952 to accept the argument that the Due Process Clause required the

use of a particular insanity test or allocation of burden of proof. Leland v. Oregon (19521,343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302. The Oregon statute upheld in Leland required the defendant to prove insanity beyond a reasonable doubt. This allocation of proof was found constitutionally sound because the State retzined the burden to prove the requisite state of mind and other essential criminal elements. The State's due process burden ofproofwas further emphasized in Ln Re Winship (1970),397U.S. 358, 90S.Ct. 1068, 25 L.Ed.2d 368. Winship established that the prosecution must prove beyond a reasonable doubt every element constituting the crime charged. The Montana statutory scheme is consistent with the dictates of Leland and Winship. The 1979 amendments to the criminal code do not unconstitutionally shift the State'sburden of proof of the necessary elements of the offense. The State retains its traditional. burden of proving all elementsbeyond a reasonabledoubt.

2. TheDelusional Defendant

Jn addition to asserting that the insanitydefense is a fundamental constitutionalright,the appellant contends that insanity is a broader concept than 

### -- mens rea. Korell argues that individuals may be clearly insaneyet alsobe capable of forming the requisite intent to commit a crime. For example,

an accused may form intent to harm under a completely delusional perception of reality or act without volitional control. It is defendant's position that the due process of these defe~dantsis compromised hy state law which permits convictionofdelusional defendantsand those who actwithout voJitional control. Addressing thedelusional defendant first,we note that planning, deliberation and a studied intent are often found in caseswhere the defendant lacks the capacity to understand the wrongful.nessof his acts. Fink & Larene, 

### - In Defense 

### - of the Insanity Defense, 62 Mich. B. J. 1.99 (1983). Illustrations include the assassin acting under instructionsof God, the mother drowning her demonically-possessed child, and the man charging up Montana Avenue on a shooting spree believing he is Teddy Roosevelt on San Juan Hill. Defendant contends that these people could properly be found guilty by a jury under currentMontana law. As some commentatorshave noted, the 1979 amendments to the law onmental disease or defectmay actually have lowered the hurdle mentally disturbed defendants must clear to beexcul-pated.. In order to be acquitted, the defendant need. only cast a reasonabledoubt in the minds of the jurors that he had the requisite mental state. See,Bender,After Aboli- tion: The Present State of the Insanity Defense in Montana, 

## - - -- 

## - 45 Mont. L. R. 133, 141 (1984). As a practical matter, the prosecutor who seeks a conviction of a delusional and! psychotic defendantwill be facedwith a heavy burden of proof. Assuming the delusional defendant is found guilty by a iury, factors of mitigation must be considered hy the sentencing judge in accordance with section 46-14-311,MCA. The fact that the proven criminal state of mind was formed by a deranged mind would certainlybe considered. In addition, a defendant can be sentenced to imprisonment only after the sentencing judge specifically finds that the defendant was not. sufferi.ng,at the time he committed the offense, from a mental disease that rendered him unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. Section 46-14-312(1),MCA.

3. TheVolitionally-Impaired Defendant

The test of mental disease or defect thatwas afforded defendantsprior to 197'9 read as foll.ows: "Aperson isnot responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he isunable either to appreciate the criminality 

### of his conduct or to conform his conduct to the requirements of the law." Section 46-14-101,MCA (1978)

# . It is the second prong of this standard, the volitional aspect ofmental disease or defect,that appellant claimshas been eliminated. He argues that there are thosewho lack the ability to conform their conduct to the law and thatelimination of the involuntariness defense is unconstitutional. The volitional aspect of mental disease or defect has not been eliminated from our criminal Law. Consideration of

a defendant's ability to conform his conduct to the law has been moved from the jury to the sentencing judge. TheUnited States Supreme Court found in Leland, 343 U.S. at 801, that the "irresistible impulse" test of insanitywa-snot implicit in the concept of ordered liberty. Additionally, theminimum requirements of any criminal offense are still a voluntary act and companion mental state. Section 45-2-202, MCA, provides tha.t "[a] material element of ever17offense is a voluntary act. 

# ..." ThisCourthas not judiciall-yrecognized the automatism defense. Applications of the defense may exist where a defendant acts during convulsions, sleep, unconsciousness, hypnosis or seizures. See,Peoplev. Grant (1978),71 111.2d 551, 377 N.E.2d 4. Our criminal code's provisions requiring

a voluntary act and defining involuntary conduct adequately provide for such defenses. See sections 45-2-202 and 45-2- 101(31),MCA. To the extent that the 1979 criminal code revisions allegedly eliminated the defense of j-nsanity-inducedvolitional impairment,we find no abrogation of a constitutional right.

C. Eighth Amendment ConsiderationsAppellant next contends that abolition of the affirmative defense of insanity violates the Eighth Amendment's prohibition of cruel and unusual punishment. In Robinson v.Ca1ifornj.a (1962), 370 U.S. 660, 82 S.Ct. 1417, 8 L8.Ed.2d 758, the Supreme Court held that punishment for the status crime of drug addiction violated the Eighth Amendment prohibition. The Court declared that any law which created a criminal offense of being mentally ill would also constjtute cruel and unusual punishment. The Court noted that had the California statute under which Robinson was convicted required proof of the actual use of narcotics, it would have been valid. In Powellv. Texas, 392 U.S. at 532, a statute imposing a fi~e for public intoxication was found to not violate the Eighth Amendment. There the Court reasoned that although alcoholismmight be a disease,the statutewasvalid because it punished an act, not the status of being an alcoholic. TheMontana Crinjnal Codedoesnotpermit punishment of

a mentally ill person who has not committed a criminal act. As such, the statutes avoid the constitutional infirmities discussed in Robinson v. Cal_ifornia,supra, and Powell v. Texas, supra. Prior to sentencing, the court is required to consider the convicted defendant's mental condition at the time the offense was committed. This review is mandatory whenever a claim of mental disease or defect is raised. The plain language of the statute reads: 

# ".

.. the sentencing court shall consider any relevant evidence. 

# ..." Section 46-14-311, MCA (emphasis added)

# . Whenever the sentencing court finds the defendant suffered from a mental disease or defect, as described in section 46-14-311,MCA, the defendant must be placed in an 

# ".

.. appropriate institution for custody, care and treatment. 

# . .." Section 46-14-312(2)

## , MCA

# .These requirements place a heavy burden on the courts and the department of institutions. They serve to prevent imposition of cruel and unusual punishment upon the insane. Since the jury is properly preoccupiedwith proof of stateof mind, it is imperative that the sentencing court discharge its responsibility to independently review the defendant's mental condition. It is further argued that subjecting the insane to the stigma of a criminal conviction violates fundamental principles of justice. We cannot agree. The legislaturehasmade

a conscious decision to hold individuals who act with a proven criminal state of mind accountable for their acts, reqardlessofmotivation ormental condition. Arguably,this policy does not further criminal justice goals of deterrence and prevention in cases where an accused suffers from a mental disease that renders him incapableof appreciating the criminalityof his conduct. However,thepolicy does further goals of protection of society and education. One State Supreme Court Justice who wrestled with this dil-emma observed: "In a very real sense, the confinement of the insane is the punishment of the innocent; the releaseof the insane is the punishment of society." State v. Stacy (Tenn.L980), 601 S.W.2d 696, 704 (Henry,J., dissenting). Our legislaturehas acted to assure that the attendant stigma of a criminal conviction 

### ismitigated by the sentencing judge's personal consideration of the defendant's mental condition and provision for commitment to an appropriate institution for treatment, as an alternative to a sentence

### of imprisonment. For the foregoing reasons we hold thatVontana's abolition of the insanity defense neither deprives a defendant ofhis Fourteenth Amendment right to due process nor violates the Eighth Amendment proscription against cruel and unusual punishment. There is no independent constitutional right to plead insanity.

11. REBUTTAL TESTIMONY The evening before the final day of trial, the Ravalli County Attorney's office received word that Cedric Hames could testify he purchased ammunition for Korell a couple days before the shooting. Hames was told to report to the courthouse the next morning where a subp0en.awould awaithim. Hames was the owner of a bar that the defendant frequented in the weeks preceding the shooting. The prosecution briefly interviewed Hames in the morning and decid-edto put him on the stand. Since Korell had twice requested Hames to buy a.mmunition for him in the days before the shooting, Hames' testimony would tend to rebut defendant's claim that he did not actpurposely or knowingly. Hames was put on the stand without any prior notice to the defendant or the court. Our discovery statutes specifically provide that the defendant and the courtmust be given suchnotice:"For the purpose of notice only and.to prevent surprise, the prosecution shall furnish to the defendant and file with the clerk of the court no later than. 5 d.aysbefore trial or at such later time as the court may for good causepermit a listofwitnesses theprosecution intends to call as rebuttal witnesses to the d.efenses of justifiable use of force, entrapment, compulsion, alibi, or the defense that the defendantdid nothave a particular state of mind tha.t is an essential element of the offense charged.I' Section 46-15-301(3)

### , MCA.Har@.esltestimony was short and to the point. Defense counsel did not object to the direct examination of the witness. However, after counsel learned on cross-examination that the witness had contacted the prosecution the day before,defensemoved for amistrial. Outside the presence of the jury, the court heard arguments of counsel and interviewed thewitness. Convinced that there was no designed surprise by the prosecution, the court denied the motion for a mistrial. Defense counselwas offered a continuance to prepare cross-examination. Defense refused this offer and chose not to examine the witness further. Failure of the county attorney to give the court and defendant notice of the new rebuttal witness constituted clearerror. This issue concerning the failure of theprosecution to give notice of a rebuttal witness arose in State v. Madera

(Mont. 1983), 670 P.2d 552, 40 St-Rep. 1558. In Madera a witness not previously announced was used by the prosecution

on the last day of trial to rebut an alibi witness. This Court announced that when unanticipated exigencies arise at trial the court may waive the time limitations for giving notice when good cause is shown. Additionally, this Court said that if surprise is claimed by the other party, the proper procedure is to ask for a continuance so that preparationmay bemade. While Madera established that the time limitations of section 46-15-301(3), MCA, may be waived, it did not suggest that notice may also be waived. There was no reason the deputy county attorney could not have notified the court and defendant that Hames had come forward the morning hetestified. Had such notice been given, the court could have ruled whether there was good cause to waive the time limitations. The recognized error in this case does not rise to the level of reversible error. Defense counsel was given an opportunity to prepare for cross-examination. The continuance offer was refused. Counsel claims prejudicia.1surprise

on appeal yet did not avail himself of the opportunity to alleviate suchprejudice at trial. While the prejudicial surprise of this particular testimony is found harmless error, future prosecutorial disregard of these discovery notice provisions will not be condoned.

111. VOLUNTARY INSTRUCTION The trial court refused an instruction offered by the defendant that: "A material element of every crime is a voluntary act." The courtdid include four instructions that specifically mentioned. the requirement of vol-untariness:

"[InstructionNo. 171 A person commits the offense of attemptwhen with purpose to commit a specific offensehe vo1unta.rilydoes any act toward the commission of such offense." "[Instruction No. 241 

# .

# .

# . the State must prove that each el-ement of the offense was done purposely or knowingly andvol-untarily.

# . .

# ." "[Instruction No. 381 

# .

# .. You may consider such evidence because thedefend.antasserts that due to mental disease or defecthe could nothave had aparticular stateofmind which is an element of the offense, i.e.

## , that he did not.purposely or knowingly and voluntarily commit the acts constituting the offense. 11 

# ... "[Instruction

### No. 401 

# ..

# . a person, to be guilty of any of the offenses charged,must have committed the act or a.cts voluntarily, while having, with regard to each element contained in the 1-aw-definin9 the offenses, one of the mental states contained in said definition I1 

# ... The refused imstruction is based on section 45-2-202, MCA,which states: "Amateria,- element of every offense is a voluntary act. 

# .

# .

# ." This code provision expresses the common law principle previously discussed that every crime must consist of an act and a criminal intent. One of defendant's theori-esin this case was that he did not act voluntarily due to his mental condition. Although this Courtpermit.tedsection 45-2-202, MCA, tobe used for such a theory in Zampich, supra.,the statute was not intended to address psychological impairment. Thevoluntary act requirement properl-y reflects physiological considerations; those who act by reflex, while sleepwalking, etc., should not be held criminally responsible. See, section 45-2-101(31), MCA; Bender, supra,at 144-145;W. LaFave & A. Scott,Criminal

## - Law S 25, at 179-181 (1972). Defendant's theory of his case was not prejudiced by the trial court's refusal to give the instruction. Arguably, the instruction would not have hurt the prosecution as it correctly states the law 

### of Montana. However,we sense that defense counselwas offering the instruction fora context to which it was not designed. The four instructions set forth above properly instructed the jury on the requirement of a voluntary act.

IV. SENTENCING Four doctors testified before the jury concerning Korell's mental condition. The State produced Dr. HermanWalters, Ph.D., a clinical psychologist, and Dr. Verne Cressey, M.D., a psychiatrist. The defendant called Dr. William Stratford, M.D., a forensic psychiatrist, and Dr. MichaelMarks, Ph.D., a cl-inicalpsychologist. Additionally,

a psychiatrist, Dr. Noel Howell, M.D., was retained by the defense and filed an eva.1-uation with the court although he did not testify. These expert witnesses were allowed to express their opinions concerning Korell's medical diagnosis, whether he suffered from mental disease or defect at the time of the shooti-ng,his capacity to form the requisite intent and his ability to controlhisbehavior. Additionally,Dr. Stratford

was called to testify at the sentencing hearing on his recommendations for treatment of Korell. All the doctors filed written eva-Luations with the court-. Immediately after announcing sentence, the trial judge stated: "I'mgoing to addressmyself in regard tc your mental condition. Let me say that the juryheard the evidenceby allof the various doctors in regard to your mental condition. The jury reached their conclusion after some twenty-four to twenty-six hours,and in that conclusion they found that you were responsible and that youdid have the mental staterequiredby the statute. Forme to indulge otherwise would a.mountto nothing but nullification of the jury's effort, and I will not do so." This pronouncement flies in the face of the court's basic duty to independently evaluate the defendant's mental condition. The trial judge's refusal to act compels this Court to vacate the defend-ant" sentence and remand for resentencing. As Part 

### I of this opinion established,whenever mental disease or defect is put in issue, the trial jud.ge mustreview the defendant's mental conditionprior to sentencing. Deferring to a jury verdict indicates a misunderstanding of the distinct roles of the jury and court. The jury has a narrow duty under the statutes: to consider mental disease or defect insofar as it relates to criminal state of mind. The fact that a jury has found the existence of a requisite mental state does not conclusively establish the defendant's sanity or fitness forpenal punishment. That determinationmust be independently made by the sentencing judge and the recordmust reflect the deliberative process. If problems of cruel and unusual punishment of the insane are tobe avoided,the sentencing judge must faithfully discharge the review duties of sections 46-14-311 and 46-14-312,MCA. The sentence isvacated.

V. ATTORNEY FEES As a final matter, defense counsel appeals the order affixing his attorney fees. The court determined that reasonable fees for Korell's defense were $12,000 and awarded the appointed attorney this amou~t. Counsel contends that the amount isunfair in light of the defensepresented. This Court has adopted guidelines to be followed when awarding a court-appointed attorney compensation. Those guidelinesare set forth in Statev. Boyken (J.981),196Mont. 122, 637 P.2d 1193, and the District Court order at issue. That order reflects that the District Courtproperly considered the Boyken factors of time expended, nature of the defense, fees paid for similar services elsewhere, public funds available, the responsibility of the legal profession,and needs of theaccused. Ha.vingsoreached itsdecision, we willnotdisturbthetrialcourt's award of fees. We remand this cause to the District.Court for resentencing consistentwith thisopinion.

Chief ~ust-ice 1

Weconcur:Mr. Justice Frank B. Morrison, Jr., concurs in part and dissents inpart.

1 concur with the result reached by majority on all issues except the admission of certain testimony. This dissent specifically relates to the admission of rebuttal testimony received from one Cedric Hames. The majority opinion finds that the failure to notice this witness and the subsequent admission of the witness's testimony, constituted

error butwas harmless. Thebasis of themajority's determination that reception of the evidence constituted harmless

error was that defense counsel was given an opportunity, through being afforded a continuance, for cross-examination of the witness. Such opportunity did not cure the error. The thrust of Hames' testimony was to counter defendant's evidence with respect to ''stateof mind." This was thepivotal issue in the case. Theunquestionable prejudice to defendant innot knowing of Hames' testimony,was that defendant 

### was denied opportunity to counter the testimony with psychiatric testimony offered on behalf of defendant. To effectively answer the State's position that the defendant planned this act defendant must be allowed the opportunity to explain the meaning of the actions portrayed by Hames. Defendant's psychiatrist

was denied this opportunitybecause the reality of the proof

was unknown. Defendantwas further denied the right to deal with this damaging evidence either in voir dire or at any other stageof the trial. Icannot conceive of amajority of this Court holding that cross-examination of an unnoticed witness satisfies the legal requirement that defendant be entitled to know the State's case and be given the opportunity toprepare a defense.Sometimes I feel we may as well abolish the defendant's procedural safeguards for we routinely hold that the State's failure to comply constitutes ha.rmless error. At least we would all be saved the expenseJusticeJohnC. Sheehy,dissenting:

It js a matter of coincidence that I dictate this dissent on Sunday,November 11, 1984. Thisused to be called Armistice Day, and the television news is full of reports of

a reunion of Viet Narn war veterans in Washington, D.C. Coincident with their reunion is the dedication of amemorial statuary to Viet Narn war veterans, the seven-foot tall representation of three Viet Narn war servicemenwho seem to be peering intently at an earlier Viet Narn war memorial. on which is inscribed the names of more than 58,000 servicemen who lost their lives in thatwar. It was a war in which nothing was won and much was lost. A part of that loss,notrecognized or admitted by the authorities at first, was the damaging effect to the cognitive abilities of some that served in the war. Only recently has there been positive acceptance that there does exist in some ex-servicemen a post-Viet Narn war traumatic syndrome. Jerry Korell-,the evidence is clear, is a victim of that syndrome. Before his term of service,he

### was amentally functional citizen. After his return from service, he is mentally dysfunctional. We can measure our maturity about how we meet such problems by the fact that Jerry Korell now will inevitably spend a great part of his life in jail for his actions arising out of thatdysfunction. Jerry Korell's dysfunction can be traced almost directly to theViet Narn war. There are thousands of others whosemental aberrationshave no suchdjstinct origins. From genes, from force of environment, from physical trauma, or from countless other causes, their actions do not meet thenorm. You know them wel-1--thestrange, the different, the weird ones. Sometimes (not really often it should be said) these mentally aberrent persons commit a crimi.n.21act. If the criminal act is the product of mental aberra.tion,and not of

a straight-thinking cognitive direction, it would seem plausible that society should offer treatment, but if not treatment, at leastnot punishment. The State of Montana is not such a society. T would hold that Montana's treatment of the insanity defense is unconstitutional for at least two reasons: One, it deprives the insane defendant of due process by depriving him of a trial by jury for each element of the crime for which he is charged; and two, it invades the insane defendant's right against self-incrimination. In this dissent Iuse the terms "insanity"and "insane" in their universal sense. They include the broad spectrum of mental aberration from the maniacal to those deprived of their reasoning processes by such vague forces as prolonged melancholia, depression, paranoia and the like. I use the terms in the senseof those persons who meet theAmerica.nLaw Lnstitute formulation of insanity for criminal pu-rposes: "Aperson is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.I' Model Penal Code, section 4.01)

## ,proposed official draft (1962). Before 1979, it was clear in Montana that persons suffering from a mental disease or defect were not responsible for their criminal conduct. Former section 95-501,R.C.M. 1947,provided:"(1) A person is nct responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he is unable either to appreciate the criminality of his conduct or to conformhis conduct with the requirements of law." 

### "(2) As used in this chapter, the term 'menta.1 disease of defect' does not include an abnormalitymanifested only by repeated criminal or other antisocial conduct." The provisions of former section 95-501, F..C.M. 1947, reflected the American Law Jnstitutepositionwith respect to the insanity defense. The language four16 j.n subsection (2) of section 95-501, R.C.M. 1947, was a caveat formed by the ALI to restrict the definition of mental disease or defect. In 1979, the legislature acted to repeal and eliminate what was subdivision (1) 

### of section 95-501, R.C.M. 1947. What remains are only the provisions of present section 46-14-101,MCA,which defines mental disease ordefect in the

same manner as subdivision (2) of former section 95-501, supra.Thus, the 1.979 legislature removed any statutorydirection that aperson isnot responsible for criminal conduct if at the time of the conduct,as a result of mental disease or defect, he was unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. The 1979 leqislaturewent further. While onemay not use the defense of mental disease or defect unless within ten days of entering plea one files awritten notice of apurpose to rely on such mental disease or defect to prove that one did not have a particular state of mind which is the essential element of the offense charged (section46-14-201, MCA)

### , once one has filed such a notice, the court thereupon appoints apsychiatristor requests the superintendent of theMontana State Eospital to designate a qualified psychiatrist to examine and reportupon the mental condition of the defendant. Section 46-14-202,MCA. Under section 46-14-202(3), in the exa.minationof the defendant anymethod may be employedwhich is accepted by the medical profession for the examination of those alleged to be suffering from mental disease or defect. Under section 46-14-212, the psychiatrist is to be permitted to have reasonable access to the defendant for the purpose of the examination. Chemical injection, if accepted by themedical profession, is one of the methods thatmay be used in such an examination. There can be no question that, regard-lessof the method of the examination, the insane defendant's right agai-nstself-incrimination is at once imperiled. Iwould not,however, on the grounds of self-incrimination alone, hold the process unconsti.tutiona1. I recognize the necessity, in cases where insanity is pleaded as a defense, that the State have equal right to psychiatric testimony to the same extent that is enjoyed by the defendant. What is more serious constitutional.ly,however, iswhat our statutes provide with respect to the testimony at trial from the examining psychiatrist. Section 46-14-213,MCA,provides that when the psychiatrist who has examined the defendant testifies, his testimony may include his opinion "a.sto the ability of the defendant to have aparticular state ofmind which is an element of the 

### --- -- offense charged." The statute takes away from the psychiatrist, and from the jury, the previous test of whether the defendant lacked the capacity to a.ppreciatethe criminality of his conduct or his ability t.o conform his conduct to the requi-rementsof the law. The statute instead places in thepower of the psychiatrist, and takes from the jury, the determination of whether the defendant 

### -- had the particular state of mind which is an element of the offense ch.arged. 

## -- Thus is the defendant deprived of his right of trialby jury

as to every element of the crime charged against him. See, In ReWinship (1970),397U.S. 358, 90S.Ct. 1068, 25 ~.Ed.2d

The elements of the crime of deliberate homicide in Montana are a voluntary act (section 45-2-202,MCA)

## , coupled with either purpose or knowledge (section 45-5-102, MCA). Thus the jurymust be instructed, evenwhere the insanity is an issue, that if the defendant acted purposely, or with knowledge, he is guilty of the offense. The jury is then instructed that a person acts knowingly if,with respect to the conduct, he is aware of his conduct. Section 45-2-101(33),MCA. The jury is also instructed that the defendant acts purposely if it is his conscious object to engage in that conduct or to cause that result. Section 45-2-101(58), MCA. No consideration is given by the jury as to whether the defendant lacks substantial capacity to appreciate the criminality of his conduct, or whether he isunable to conformhis conduct to the requirements of the law. If the psychiatrist has testified that the defendant had the state of mind required as an element of the crime, that is, in the case 

### of deliberate homicide, purpose or knowledge, the defendant is criminally guil-ty. The jury never gets to determine if the defendant actedby forceofmental aberration. In a case under present Montana law, therefore, when the defendant relies on insanity to explain the crime of deliberate homicide, the jury is led to the inevitableconclusion by managed testimony that he is indeed guilty of the crime. Plontana's statutory scheme seeks to ameliorate the managed conviction of the insane defendant by providing that at his sentencing, he having been convicted of a criminal act, the sentencing judge may take into consideration his insanity! At the sentencing, the judge, and not the jury, shall for the first time consider whether the defendantwas suffering from a mental disease or defect which rendered him unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. Section 46-14-311, -312, MCA. For the reasons foregoing, I would hold the statutory schemepertaining to insane defendants inMontana unconstitutional. I do not hold with the majority that there is no independent constitutional right to plead insanity. I consider that position the ul-timateinsanity. I would hold that he has an independent constitutional right to trial by jury of the fact of his ability to commit a crime by mental aberration. For like reasons, Idonot agree with themajority with respect to the rebuttal testimony offeredby CedricHames. T would hold that reversible error occurred in that instance. Principally I would so hold because the state learned that Korell had twice requested Hames to buy ammunition for him in the days before the shooting from his examination by the psychiatrists. TheStateused his psychiatric examination to help convicthim. I also emphatically disagree with the majority with respect to thenecessity of thevoluntary instruction.Section 45-2-202,MCA, states that "amaterial element of every offense is a vol-untaryact 

# .. ." The majority opinion seems to limit this statutoryprovisionby determining that the statute reflects only physiclogical considerations, stating that those who act by reflex, or while sleepwalking, should not he held criminally responsible. That is too narrow an interpretation of "voluntary." The word has its root in the Latin word for will, and any interpretation of it should include acts done through one's will, choice or consent. A jury should be specifically instructed that a criminal act requires one's will, choiceor consent. Unfortunately, our criminal code does not define a "voluntary act." It does define an "involuntary act" to include reflexesor convulsions,unconscious sleep movements, hypnosis and such. Section 45-2-101(31)

### ,MCA. Themajority has changed the definition of an involuntaryact t.o limit the scope of a voluntary act which, to me, is not the intent of the criminal code and is improperly restrictive. Iwould reverse and remand for a new trial,and direct the District Court to instruct the jury on the ALI formulations respecting insanity as applied to criminal acts. I suggest a retrial on the basis of the ALI formulations not because I consider those formul.ations the lastword on the subject, but becausewe do have remaining in our statutes some recognition of the ALI formulations with respect to the insanity defense. Under present law the District Courtmust look to theALI formulationsto determine the extent of the sentence to be imposed, section 46-14-311, MCA

# . The real problem facing this Court is that the abolition by the legislature in 1979 of mental disease ordefect as an e:rculpatory defense leaves a cavity in our criminal law that is the obligation of the legislature to fill. Unless we now recognize the ALI formulations on the basis that there is 1egisLativerecognition of their validity in the sentencing process, we have no legislative direction in the statutes for the insanity defense. It is curious that Montana abolished the insanity defense in 1979, before the onset of the Hinckley trial. Hinck?.eylsattack on President Reagan, and the subsequent acquittal of Hinckley in June 1982, prompted a rash of enactments and proposals for enactments with respect to the insanity defense. The Standing Committee on P.ssociation Standards for Criminal Justice of the American Bar Association at the time of the Hinckley verdict had been consideringmental health lawand criminal justice issues for close to a year and a half. The Hinckley verdict triggered the Committee's consideration of key issues in order to advise Congress, state legislatures and the public in the aftermath of the concern arising from the Hinckley verdict. At least part of the creditmust be given to that Standing Committee for the fact that Congress has refused so far to abolish the insanity defense. The Standing Committee on Association Standards has since promulgated itsproposed criminal justicemental health standards for consideration by the Bar and by legislatures.
Tt proposes that the insanity defense be considered as "the defense of mental nonresponsibility," and further proposes that such a condition be exculpatory to a criminal charge. The Committee examined enactments such as Montana's and in commenthad this to say:"This approach, which would permit evidence of mental condition on the requisite mental element of the crimebut eliminate mental nonresponsibility as an independent, exculpatory doctrine, has been proposed in several hills in Conqress, and adopted in Montana, Idaho and Utah. The ABA has rejected it out of hand. Such a jarring reversal of hundreds of years ofmoral and legalhistory would constitute an unfortunate and unwarranted overreaction to the Kinckley verd-ict 

# .

"Yet the issue of criminal blameworthiness should require a deeper inquiry. 1mplicj.t in this concept is a certain quality of knowledge and intent, going beyond a minimal awareness and purposefulness. Otherwise, for example, a defendantwho knowinglyand intentionally kills his son under the psychotic delusion that he is the biblical Abraham and his son, the biblical Isaac, could be held criminally responsible. The Montana, Idahoand Utah enactments,on their face, would deny a defense to such a defendant." American Bar Association, Standing Committee on Association Standards for Criminal Justice,Report to the House of Delegates, August, 1984, Standard 7-6.1, CommentaryP. 327. ThushasMontana's abol-itionof the insanitydefense in 1979 been held up for criticism and disrespect by national authoritiesand scholars. Itbehooves our legislature, which will be meeting in a few months, to reexamine its mental health laws as theypertain to criminal.justiceand to reva.mp the same. It could do nothing finer than to adopt the standard of exculpatory definition proposed by the Standing Committee on Association Standards of the American Bar Associationwhich follows: "Standard 7-6.1. The defense of mental nonresponsiblity [insanity]

# . "(a) A person is not responsible for criminal conduct if, at the time of such conduct, and as a result of mental disease or defect,thatperson was unable toappreciate the wrongfulness of such conduct. 

### "(b)When used as a legal term in this standard 'mental disease or defect' refers to: 

### "(i)impairments of mind, whether enduring or transitory;or, (ii)mental retardation either of which substantially affected the mental or emotional processes of the defendant at the time of t-he alleged offense." There are accompanying standards proposed by the Standing Committee which the legislature should also adopt,which would soften the aspects of self-incrimination which I have described above, and especially a proposed. standard which would prevent the experts from invading the province of the jury. Particularly applicable, in my opinion, would be Standard 7-6.6: "Standard 7-6.6. Limitation on opinion testimony concerning mental condition. "Expert opinion testimony a.sto how the development, adaptation and functioning of the defendant1 s ment.alprocesses may have influenced d.efendantl s conduct at the time of the offense charged should be admissible. Opinion testimony, whether expert or lay, as to whether or not the defendant was criminally responsible at the time of the offense charged should notbe admissible." It is clear that the Stand.ingCommittee,by proposing Standard 7-6.6, recognized the impropriety of handing to medical or other persons the ultimate question to be determined by the jury, whether the defendant is entitled to be exculpated because of his mental processes at the time of the crime charged. The Report of the Standing Committee points out that the issue is jurisprudential, and not medical, and for that reasonwe should provide an exception to section 704 of the Montana Rules of Evidence, which allows opinion testimony on the ultimate question in the ordinary case.In the meantime, I would reverse the conviction of Jerry Korell., and return this cause for a trial on his insanity defense.

Justice Daniel J. Shea, dissenting:

I join in the dissent of Justice Sheehy and I also will be filing my own dissent setting forth in more detail my own reasons.