No. 83-410 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsJERRY T. KORELL, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and For the County of Ravalli, 

The Honorable Robert M. Holter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

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, County Attorney, Hamilton, Montana 

Larry Johnson argued, Deputy County Atty., Hamilton 

Submitted: October 2, 1984 

Decided: November 16, 1984 

Filed: FQV 1 1984 

Clerk 
Mr. 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 fifteen years at the 

Montana State Prison. Korell's defense at trial was 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 trauma was never fully documented. Friends and 

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. 

The basic nature of Korell's problems was that he would 

periodically slip into paranoid pheses during which he had 

trouble re1 ating to male authority figures. His mental 

health varied dramatically. In the poorer times his family 

entertained thoughts about having him civilly committed. His 

VA hospital.izations were voluntary and neither of the stays 

were of such length that he was fully evaluated or treated.. 

In 1980 Korell entered a community college program for 

echocardiology in Spokane, Washington. Echocardiology is the 

skill associated with recording and interpreting sonograms of 
the heart for diagnostic purposes. In March 1982 he 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 relationship with 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's statements. 

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 

she had 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 vehicle 
approach the house. Greg Lockwood was lying on the 1-iving 

room floor at the time watching television. Korel.1 entered 

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 or defect to prove that he 

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 case proceeded to trial. 

Several psychologists and psychiatrists testified on 

Korell's mental condition. The defense sought to establish 

by its expert witnesses and numerous character witnesses that 

Korell was a disturbed man who was psychotic at the time the 

crimes were committed. It was argued that his acti-ons when 

he entered the Lockwood home were not voluntary acts. The 

St-ate produced 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 purchased 
ammunition 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 offer was refused by defendant's counsel. 

In keeping with Montana's current law on mental 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 District Court fail t.o consider defendant's 

mental condition at sentencing? 

5. Did the District Court act within its discretion in 

awarding fees to defendant's court-appointed attorney? 

I. CONSTITUTIONAL CHALLENGE 

A. Background 

In 1.979 the Forty-Sixth Session of the Montana Legislature enacted House Bill 877. This Bill abolished use of the 

traditional. insanity defense in Montana and substituted 

alternative procedures for considering a criminal defendant's 
mental 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 in his 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, at the time of the 

offense charged, the defendant did not have the state of 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 the burden 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 state of mind at that time. 

Whenever the jury finds that the State has failed. to 

prove beyond a reasonable doubt that the defendant had the 

requisite state of mind at the time he committed the offense, 

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 at the dispositional stage following the trial 

and conviction, the sentencing judge 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 acts or to conform his conduct to the Law at the time 
he committed the offense for which he was convicted. Section 

46-14-311, MCA. 

The sentencing judge's consideration of the evidence is 

not the same as that of the jury. The jury determines whether the defendant committed the offense with the requisite 

state of mind, 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 criminality or conform his conduct to the law. 

If the court concludes the defendant was 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 sentencing procedures 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 institutions and 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 state prison or place the defendant under alternative confinement or supervision. The length of this 
If. > 

confinement or supervision must equal the original sentence. 

Section 46-14-312 (3), MCA. 

In summary, while Montana has abolished the traditional 

use of insanity as a defense, alternative procedures have 

been enacted to deal with insane individuals who commit 

criminal acts. 

Much has been 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 Dangerous Criminal, 41 S.Ca1.L.R. 514, 516 

(1968). Yet there is a paucity of judicial opinions construing the constitutional parameters 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 its place. 

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 constitutional ban against cruel 

and unusual punishment. We found no authority holding that 
i-mprisonment rather tha.n medical 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.ntia1 evidence and that the defendant had failed to show 

any statutory or constitutional violation by the sentencing 

judge . 

Following Mercer, this Court heard 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 reasonable doubt, as well as the fact that he 

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 the defendant 

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 

knowingly at 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 practice 
is not the rule in Montana. Prior to 1979, insanity was 

trea.ted as an affirms-tive defense that had to be established 

by the accused by a preponderance of the evidence. State v. 

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 prove beyond a reasonable doubt the 

requisite mental 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 defect was Zampich, 

supra. The defendant Zampjch was charged with mitigated 

deliberate homicide for a tavern shooting in Carter, Montana. 

Zampich's psychologist testified that while the defendant may 

have been able to act purposely or knowingly, he may not have 

been acting voluntarily. We upheld the conviction on the 

ground that a jury instruction was given stating that a 

voluntary act is a material 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 antisocial beha-vior and because the jury 

was instructed that mental disease does not include an abnormality manifested only by repeated criminal or other antisocial conduct, the jury was misled 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 

sleeping woman thirty-five times and also stabbed a man who 

came to her rescue. Both victims survived the attacks. The 

defend-ant claimed a demon. spirit. possessed h.is body during 
the 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 conviction was affirmed. 

The sentencing judge found that Watson was suffering 

from a serious mental. disorder, but also found that Watson 

was capable of appreciating the criminality of his 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 sentenced him to 

300 years 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-s that 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 unusual punishment. 

B. Due Process Considera.tions 

1. Fundamental Rights. 

The due process clause of the Fourteenth Arnend.ment was 

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 contends 
that the insanity defense is so embedded in our legal history 

that it should be afforded status as a fundamental right. He 

argues that the defense was firmly established as a pa.rt of 

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 insanity defense. 

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 law has utilized 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-ly provided the tools for a constantly 

shifting adjustment of the tension between the evolving aims of the criminallaw and changing rel-igious, moral, philosophical, and medical views of the nature 

of man. This process of ad.justment has 

a.lways been thought to be the province of 

the States." Powell v. Texas (19681, 392 

U.S. 514, 535-536, 88 S.Ct. 2145, 2156, 

20 L.Ed.2d 1254, 1269. 

An examination of the common law in a search for fundamental rights can be misleading. When looking at 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 

insanity defense in the history of jurisprudence. 

The English jurist Stephen observed: 

". . . 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 in 
self-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 translates as "evil mind." It has also been interpreted as guilty mind, evil intent or criminal intent. 

Enlightened med-ieval jurists developed the mens -- 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.ess the 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 accused was incapable of forming criminal intent. 

Insanity did not come to be generally recognized as an affirmative defense and an independent ground 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 of Trustees, at 27 (1983). The defense grew out 

of the earlier notions of -- mens rea. 

We reject appellant'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 the 
requisite 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), 60 Wash. 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 state of mind. 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 of proof was further emphasized in 

Ln Re Winship (1970), 397 U.S. 358, 90 S.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's 
burden of proof of the necessary elements of the offense. 

The State retains its traditional. burden of proving all 

elements beyond a reasonable doubt. 

2. The Delusional Defendant 

Jn addition to asserting that the insanity defense is a 

fundamental constitutional right, the appellant contends that 

insanity is a broader concept than -- mens rea. Korell argues 

that individuals may be clearly insane yet also be 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~dants is compromised hy state law which permits 

conviction of delusional defendants and those who act without 

voJ itional control. 

Addressing the delusional defendant first, we note that 

planning, deliberation and a studied intent are often found 

in cases where the defendant lacks the capacity to understand 

the wrongful.ness of his acts. Fink & Larene, - In Defense - of 

the Insanity Defense, 62 Mich. B. J. 1.99 (1983). Illustrations include the assassin acting under instructions of 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 current Montana law. 

As some commentators have noted, the 1979 amendments to 

the law on mental disease or defect may actually have lowered 

the hurdle mentally disturbed defendants must clear to be 
excul-pated.. In order to be acquitted, the defendant need. 

only cast a reasonable doubt 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 defendant will be faced with 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 certainly be 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. The Volitionally-Impaired Defendant 

The test of mental disease or defect that was afforded 

defendants prior to 197'9 read as foll.ows: 

"A person is not 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 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 of mental disease or defect, that appellant claims has 

been eliminated. He argues that there are those who lack the 

ability to conform their conduct to the law and that 
elimination 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. The United 

States Supreme Court found in Leland, 343 U.S. at 801, that 

the "irresistible impulse" test of insanity wa-s not implicit 

in the concept of ordered liberty. Additionally, the minimum 

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 ever17 offense is a 

voluntary act. . . ." 

This Court has not judiciall-y recognized the automatism 

defense. Applications of the defense may exist where a 

defendant acts during convulsions, sleep, unconsciousness, 

hypnosis or seizures. See, People v. 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-induced volitional impairment, we find no abrogation of a constitutional 

right. 

C. Eighth Amendment Considerations 

Appellant 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 Powell v. 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 alcoholism might be a disease, the statute was valid 

because it punished an act, not the status of being an 

alcoholic. 

The Montana Crinjnal Code does not permit 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 46-1 4-312 (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 preoccupied with proof of state of 

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 legislature has made 

a conscious decision to hold individuals who act with a 

proven criminal state of mind accountable for their acts, 

reqardless of motivation or mental 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 incapable of appreciating the 

criminality of his conduct. However, the policy 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 release of the insane 

is the punishment of society." State v. Stacy (Tenn. L980), 

601 S.W.2d 696, 704 (Henry, J., dissenting). 

Our legislature has acted to assure that the attendant 

stigma of a criminal conviction is mitigated 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 that Vontana's abolition of the insanity defense neither deprives a defendant of 
his 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.a would await him. 

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-ed to 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 act purposely 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 court must be given 

such notice: 

"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.ays before trial or at such later time 

as the court may for good cause permit a 

list of witnesses the prosecution intends 

to call as rebuttal witnesses to the 

d.efenses of justifiable use of force, 

entrapment, compulsion, alibi, or the 

defense that the defendant did not have a 

particular state of mind tha.t is an 

essential element of the offense 

charged. I' Section 46-15-301 (3) , MCA. 
Har@.esl testimony 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, defense moved for a mistrial. 

Outside the presence of the jury, the court heard 

arguments of counsel and interviewed the witness. Convinced 

that there was no designed surprise by the prosecution, the 

court denied the motion for a mistrial. Defense counsel was 

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 

clear error. 

This issue concerning the failure of the prosecution 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 preparation may be made. 

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 he 
testified. 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.1 surprise 

on appeal yet did not avail himself of the opportunity to 

alleviate such prejudice 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 court did include four instructions that 

specifically mentioned. the requirement of vol-untariness: 

" [Instruction No. 171 A person commits 

the offense of attempt when with purpose 

to commit a specific offense he vo1unta.rily does 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 

and vol-untarily. . . ." 

"[Instruction No. 381 . . . You may 

consider such evidence because the defend.ant asserts that due to mental disease 

or defect he could not have had a particular state of mind 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: "A materia,- 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-es in this case was that he 

did not act voluntarily due to his mental condition. Although this Court permit.ted section 45-2-202, MCA, to be used 

for such a theory in Zampich, supra., the statute was not 

intended to address psychological impairment. The voluntary 

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 counsel was offering the instruction for a 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. Herman 
Walters, 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. 

Michael Marks, Ph.D., a cl-inical psychologist. 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 control his behavior. 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'm going to address myself in regard tc 

your mental condition. Let me say that 

the jury heard the evidence by all of 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 

you did have the mental state required by 

the statute. For me to indulge otherwise 

would a.mount to 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 must 
review the defendant's mental condition prior 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 for penal punishment. That determination must be independently made by the 

sentencing judge and the record must reflect the deliberative 

process. 

If problems of cruel and unusual punishment of the 

insane are to be avoided, the sentencing judge must faithfully discharge the review duties of sections 46-14-311 and 

46-14-312, MCA. The sentence is vacated. 

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 is unfair in light of the defense presented. 

This Court has adopted guidelines to be followed when 

awarding a court-appointed attorney compensation. Those 

guidelines are set forth in State v. Boyken (J.981), 196 Mont. 

122, 637 P.2d 1193, and the District Court order at issue. 

That order reflects that the District Court properly 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 the accused. Ha.ving so reached its decision, we 

will not disturb the trial court's award of fees. 

We remand this cause to the District. Court for resentencing consistent with this opinion. 

Chief ~ust-ice 1 

We concur: 
Mr. Justice Frank B. Morrison, Jr., concurs in part and 

dissents in part. 

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 but was harmless. The basis of the majority'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 ''state of mind." This was 

the pivotal issue in the case. 

The unquestionable prejudice to defendant in not 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 opportunity because the reality of the proof 

was unknown. Defendant was further denied the right to deal 

with this damaging evidence either in voir dire or at any 

other stage of the trial. I cannot conceive of a majority 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 to prepare 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 expense 
Justice John C. Sheehy, dissenting: 

It js a matter of coincidence that I dictate this 

dissent on Sunday, November 11, 1984. This used 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 a memorial 

statuary to Viet Narn war veterans, the seven-foot tall 

representation of three Viet Narn war servicemen who 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 that war. 

It was a war in which nothing was won and much was 

lost. A part of that loss, not recognized 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 a mentally 

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 that dysfunction. 

Jerry Korell's dysfunction can be traced almost 

directly to the Viet Narn war. There are thousands of others 

whose mental aberrations have no such djstinct origins. From 

genes, from force of environment, from physical trauma, or 

from countless other causes, their actions do not meet the 
norm. You know them wel-1--the strange, the different, the 

weird ones. 

Sometimes (not really often it should be said) these 

mentally aberrent persons commit a crimi.n.21 act. 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 least not 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 I use 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 sense of those persons who meet the America.n Law 

Lnstitute formulation of insanity for criminal pu-rposes: 

"A person 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 

conform his conduct with the requirements 

of law. " 

" (2) As used in this chapter, the term 

'menta.1 disease of defect' does not 

include an abnormality manifested only by 

repeated criminal or other antisocial 

conduct." 

The provisions of former section 95-501, F..C.M. 1947, 

reflected the American Law Jnstitute position with 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 or defect in the 

same manner as subdivision (2) of former section 95-501, 

supra. 

Thus, the 1.979 legislature removed any statutory direction that a person is not 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 leqislature went further. While one may not 

use the defense of mental disease or defect unless within ten 

days of entering plea one files a written notice of a purpose 

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 (section 46-14-201, 

MCA) , once one has filed such a notice, the court thereupon 

appoints a psychiatrist or requests the superintendent of the 
Montana State Eospital to designate a qualified psychiatrist 

to examine and report upon the mental condition of the defendant. Section 46-14-202, MCA. 

Under section 46-14-202(3), in the exa.mination of the 

defendant any method may be employed which 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 the medical 

profession, is one of the methods that may be used in such an 

examination. There can be no question that, regard-less of 

the method of the examination, the insane defendant's right 

agai-nst self-incrimination is at once imperiled. 

I would 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, 

is what 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.s to the ability of the defendant 

--- to have a particular state -- of mind 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.ppreciate the criminality 

of his conduct or his ability t.o conform his conduct to the 

requi-rements of the law. The statute instead places in the 
power 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 trial by jury 

as to every element of the crime charged against him. See, 

In Re Winship (1970), 397 U.S. 358, 90 S.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 jury must be instructed, even where 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 is unable to conform his 

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 acted by force of mental 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 inevitable 
conclusion 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 defendant was 

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 

scheme pertaining to insane defendants in Montana unconstitutional. I do not hold with the majority that there is no 

independent constitutional right to plead insanity. I 

consider that position the ul-timate insanity. 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, I do not agree with the majority with 

respect to the rebuttal testimony offered by Cedric Hames. 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. The State used his psychiatric examination to 

help convict him. 

I also emphatically disagree with the majority with 

respect to the necessity of the voluntary instruction. 
Section 45-2-202, MCA, states that "a material element 

of every offense is a vol-untary act . . . " The majority 

opinion seems to limit this statutory provision by 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, choice or consent. 

Unfortunately, our criminal code does not define a 

"voluntary act." It does define an "involuntary act" to 

include reflexes or convulsions, unconscious sleep movements, 

hypnosis and such. Section 45-2-101 (31) , MCA. The majority 

has changed the definition of an involuntary act t.o limit the 

scope of a voluntary act which, to me, is not the intent of 

the criminal code and is improperly restrictive. 

I would 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 

last word on the subject, but because we do have remaining in 

our statutes some recognition of the ALI formulations with 

respect to the insanity defense. Under present law the 

District Court must look to the ALI formulations to 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 or 
defect 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 1egisLative recognition 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?.eyls attack on President Reagan, and the subsequent 

acquittal of Hinckley in June 1982, prompted a rash of 

enactments and proposal s 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 

considering mental health law and 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 credit must 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 its proposed criminal justice mental 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 

comment had this to say: 
"This approach, which would permit evidence of mental condition on the 

requisite mental element of the crime but 

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 of moral and legal history 

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 

defendant who knowingly and 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, Idaho and 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, Commentary P. 327. 

Thus has Montana's abol-ition of the insanity defense in 

1979 been held up for criticism and disrespect by national 

authorities and scholars. It behooves our legislature, which 

will be meeting in a few months, to reexamine its mental 

health laws as they pertain to criminal. justice and 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 

Association which 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, that person was unable to 
appreciate 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.s to how the 

development, adaptation and functioning 

of the defendant1 s ment.al processes may 

have influenced d.efendantl sconduct 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 

not be admissible. " 

It is clear that the Stand.ing Committee, 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 reason we 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.