No. 91-406 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

THE STATE OF MONTANA, 

plaintiff and Respondent, r *$WT 

v. Frif ,d ,- 4. .3A~e,.d "id ?A sdd FT ,,! 

BRETT DONALD BYERS, 0 CT 0 6 1993 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Frank M. Davis, and The Honorable 

Thomas Olson, Judges presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Alexander trZandertr Blewett (argued) , 

Hoyt & Blewett, Great Falls, Montana; 

Wendy Holton, Helena, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Barbara 

Harris, Assistant Attorney General (argued), 

Helena, Montana; Mike Salvagni, Gallatin 

County Attorney, Bozeman, Montana 

Filed: 

Submitted: February 11, 1993 

Decided: October 6, 1993 
Justice Fred J. Weber delivered the Opinion of the Court. 

This is an appeal from the final judgment of the District 

Court of the Eighteenth Judicial District, Gallatin County, entered 

May 1991. Brett Byers was tried and convicted by a Butte-Silver 

Bow jury of two counts of deliberate homicide. We affirm the 

District Court on all issues. 

We consider the following issues on appeal: 

1. Does Montana's mental disease or defect statute 

unconstitutionally shift the burden of proof on the issue 

of mental state from the prosecution to the defense? 

2. Does Title 46, Chapter 14 of the MCA violate the 

Fifth and Fourteenth Amendment right to due process of 

law and the Sixth Amendment right to a trial by jury? 

3. Did the District Court err when it allowed the 

State's psychiatrist, William Stratford, to testify in 

spite of the fact that the State violated the discovery 

statutes and the trial judge's omnibus order, when it 

failed to disclose Dr. stratford's diagnosis to the 

defense until he was in the midst of his testimony? 

4. Did the District Court abuse its discretion in 

refusing to grant a mistrial when the State's 

psychologist, John Van Hassel, testified, in response to 

questioning by the County Attorney, to statements made 

during the course of his examination of Brett Byers? 

5. Did the District Court abuse its discretion when 

it allowed the State to present evidence that the length 

of the shotgun possessed by Brett Byers was in violation 

of federal regulations? 

6. Did the District Court err when it denied Brett 

Byers1 motion to dismiss the charges of deliberate 

homicide in favor of those of mitigated deliberate 

homicide? 

7. Did the District Court err by instructing the 

jury that it could convict Brett Byers if it merely found 

that Byers was aware of his conduct or if he had the 

conscious object to engage in conduct of a particular 

nature? 

8. Did the District Court err by instructing the 

jury that voluntary intoxication is not a defense to 

criminal activity? 

9. Did the District Court err by refusing to 

include voluntariness in instructions 17 and 181 

10. Did the District Court make an improper comment 
on the evidence when it instructed the jury that 

consiousness of guilt could be inferred from flight? 

11. Did the District Court err when it imposed a 

separate, consecutive sentence for weapon use even though 

the offense of weapon use was not charged? 

12. Did the District Court err when it imposed a 

fifteen year sentence for weapon use when the statute 

provides for a maximum sentence of ten years? 

13. Should Byers1 conviction be reversed? 

In the early morning of May 15, 1990, two Montana State 

University students, Brian Boeder and James Clevenger, were shot in 

a dormitory room on campus. Each student was shot twice and died 

before 4 a.m. that morning. Brett Byers, another Montana State 

University student, was subsequently arrested and charged with two 

counts of deliberate homicide for their deaths. 

At arraignment, Byers gave notice he would introduce evidence 

of mental disease or defect at trial. The County Attorney 

requested Byers be sent to Warm Springs State Hospital for a 

psychiatric evaluation, which was done. Subsequently, Byers was 

also evaluated for the State by Dr. William Stratford, a 

psychiatrist. Byers himself obtained a lengthy evaluation by Dr. 

D. J. Plazak, a forensic psychiatrist. 

The jury trial was moved from Gallatin County to Butte-Silver 

Bow and began January 2, 1991. The trial lasted nine days. At 

trial, Byers introduced evidence that he suffered from Borderline 

Personality Disorder and was in a derealized state at the time of 

the homicides and, therefore, could not have acted knowingly, 

purposely or voluntarily. Byers also presented evidence that he 

was under extreme emotional and mental stress at the time of the 

shootings. The State presented evidence that Byers acted knowingly 
and purposely when he shot Boeder and Clevenger. 

After receiving instructions, the jury found Byers guilty of 

both counts of deliberate homicide. A sentencing hearing was held 

and on May 17, 1991, Byers was sentenced to two seventy-five year 

terms of incarceration for deliberate homicide and fifteen years 

for the use of a weapon--all terms to run consecutively. Byers was 

designated a dangerous offender. This appeal followed and oral 

argument was granted. 

Does Montana's mental disease or defect statute unconstitutionally 

shift the burden of proof on the issue of mental state from the 

prosecution to the defense? 

The statute at issue provides: 

Evidence that the defendant suffered from a mental 

disease or defect is admissible to prove that the 

defendant did or did not have a state of mind that is an 

element of the offense. 

Section 46-14-102, MCA. 

Byers contends that his defense of mental disease or defect is 

inextricably intertwined with proof of llknowinglyw or llpurposelyl' 

which are elements of the crime. Byers contends that when such a 

defense negates an element of a crime, it becomes necessary for the 

prosecution to disprove the defendant's contentions with regards to 

that defense. According to Byers, it is unconstitutional to 

require a defendant to prove that he did not have the requisite 

mental state because of his mental disease or defect. Such a 

requirement, argues Byers, shifts the burden of proof from the 

State to the defendant. 

The State argues that the burden of proof is not shifted to 

4 
the defense. The State contends that the Montana statute provides 

specifically that evidence relevant to the issue of mental disease 

or defect is admissible. The State argues that it must still prove 

the elements of the crimes beyond a reasonable doubt. Further, the 

State argues that Montana's statute does not provide an affirmative 

defense of mental disease or defect as Byers contends. 

Byers1 assumption that this statute shifts the burden to him 

to disprove an element of the crime is not correct. The statute 

enables a defendant to present evidence concerning his claim of 

mental disease or defect. It does not require the defendant to 

prove beyond a reasonable doubt that his disease absolutely negates 

the required state of mind. 

To require such proof would be to determine that the 

presentation of evidence permitted to defendant by S 46-14-102, 

MCA, rises to the level of an affirmative defense. Evidence of 

mental disease or defect is not an affirmative defense. It is 

evidence of a condition that could have prevented the defendant 

from having the requisite state of mind. Whether defendant 

actually has a mental disease or defect and if so, whether that 

disease precludes the required mental state are questions of fact 

for the jury. We stated in State v. Watson (1984), 211 Mont. 401, 

Read together, the jury instructions properly informed 

the jury on the law of mental disease or defect and the 

burden on the part of the State to establish the 

necessary criminal intent beyond a reasonable doubt. 

Whether his mental disease affected the defendant's 

ability to act with purpose and knowledge was a question 

of fact for the jury. The jury answered that question by 

returning guilty verdicts on each count. 
Watson, 211 Mont. at 415, 687 P.2d at 886. 

It is unconstitutional for the State to be relieved of the 

burden of proof of an element of a criminal offense. In re Winship 

(1970), 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368. The jury was 

properly instructed that the State had the burden to prove that 

Byers acted knowingly and purposely beyond a reasonable doubt. 

Byers relies on Walker v. Endell (9th Cir. 1987), 850 F.2d 

470, for his argument that if a defense negates an element of the 

crime, rather than mitigates culpability once guilt is proven, it 

is unconstitutional to put the burden of proof on the defendant. 

While that is true, Walker distinguishes defenses which necessarily 

negate an element of the crime and those that can, but do not 

necessarily do so. Walker, 850 F.2d at 472, 473. 

In Walker, one of three co-defendants in a double homicide 

claimed that once their original burglary plan had gone awry, he 

was afraid of his comrades because of their violent propensities. 

He argued that he was under duress to go along with the murders for 

fear that the other two would shoot him. According to Walker he 

could not have had the requisite intent to commit the murders 

because of this duress. 

On appeal, the court upheld Walker's 89 year conviction for 

kidnapping, robbery, burglary, and theft, committed attendant to 

the homicides. The appeals court stated that duress did not negate 

intent. Walker, 850 F.2d at 473. Duress and intent are not 

mutually exclusive terms. Similarly, the existence of a mental 

disease or defect in a person does not necessarily preclude such a 
person from acting knowingly or purposely. State v. Korell (1984), 

213 Mont. 316, 690 P.2d 992. It is up to the jury to determine the 

interaction of any mental disease or defect Byers may have and the 

required states of mind to commit the act in question. 

Byers' reasoning is also faulty in his argument that the 

burden "shiftss* to him by permitting him to introduce evidence that 

he did not act knowingly or purposely. When a burden "shifts" it 

goes from one party to another, from prosecution to defendant. But 

the prosecution here was not relieved of its burden. The jury was 

not instructed that Byers had any kind of burden at all. Byers 

chose to introduce evidence that he had a mental disease or defect 

and such condition prevented him from acting knowingly or 

purposely. By making this choice, Byers submitted testimony by a 

leading forensic psychiatrist that the homicides could not have 

been deliberate. But the trier of fact must weigh the witnesses' 

testimony knowing that the State must establish the necessary 

mental state beyond a reasonable doubt. 

We conclude that the Montana statute is constitutional because 

the State is not relieved of its burden to prove all elements of 

the crime. We, therefore, hold that Montana's mental disease and 

defect statute does not unconstitutionally shift the burden of 

proof on the issue of mental state from the prosecution to the 

defense. 

Does Title 46, Chapter 14 of the MCA violate the Fifth and 

Fourteenth Amendment right to due process of law and the Sixth 

Amendment right to a trial by jury? 
A. Due Process under the ~ifth and Fourteenth Amendments 

Byers argues that the question of whether he has a mental 

disease or defect impacts more than the issue of whether he had the 

requisite mental state. According to Byers, the question is also 

whether he had the moral culpability for the particular offense. 

Byers argues that because the court refused to instruct the jury on 

the traditional insanity defense, his Fifth and Fourteenth 

Amendment rights to due process were violated. Byersl contention 

is that failure to so instruct contravenes a fundamental legal 

principle that criminal sanctions will only be imposed on persons 

who act with wrongful intent in the commission of an offense. 

The State argues that the current statutory scheme does not 

divest Byers of his right to due process under constitutional law. 

According to the State, this Court has already addressed the 

constitutional arguments put forth by Byers and determined that the 

current law is constitutional. 

Montana requires the State to prove beyond a reasonable doubt 

that the defendant had the requisite state of mind. However, prior 

to the 1979 changes to the Criminal Code of this State, insanity 

was treated as an affirmative defense that the defendant had to 

establish by a preponderance of the evidence. State v. Korell 

(1984), 213 Mant. 316, 690 P.2d 992. In contrast, today a 

defendant may submit evidence of mental disease or defect without 

a requirement that he establish the same by any particular 

evidentiary standard. 

As described in Korell, the defendant's alleged mental disease 
or defect is now evaluated at three different stages of the legal 

proceedings. Before trial, the defendant's state of mind is 

considered by analyzing whether he is able to understand the 

proceedings and to assist counsel in his own defense. Section 46- 

14-103, MCA. During trial, the defendant may present evidence that 

he suffers from a mental disease or defect and did not have the 

requisite mental state. Section 46-14-102, MCA. During 

sentencing, the sentencing judge may consider whether at the time 

of the commission of the offense the defendant was suffering from 

a mental disease or defect that rendered him unable to appreciate 

the criminality of his behavior or to conform his behavior to the 

requirements of the law. Section 46-14-311, MCA. The sentencing 

judge must then determine whether the mental disease or defect is 

such that defendant should be confined to a specialized 

institution. This third consideration is progressive in that it 

not only provides a defendant with a third consideration of his 

condition, but does so in a way that both he and the public are 

protected. 

The due process clause of the Fourteenth Amendment was 

intended in part to protect certain fundamental rights long 

recognized under the common law. Korell, 213 Mont. at 327, 690 

P.2d at 998. Byers argues that the insanity defense is firmly 

rooted in the common law and pleading the defense is a fundamental 

right protected under our national constitution. We have carefully 

considered this argument before and have stated that no 

constitutional right to plead insanity exists in the law. Korell, 
213 Mont. at 334, 690 P.Zd at 1002. We also note that the united 

States Supreme Court has determined that the Due Process Clause 

does not require the use of any particular insanity test. Leland 

v. Oregon (19521, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302. 

While the Montana statutory scheme eliminates insanity as an 

affirmative defense, it provides a criminal defendant the 

opportunity to present evidence that he has a mental disease or 

defect and places no particular burden on defendant in presenting 

his evidence. Because it is up to the jury to consider and weigh 

the evidence presented to it, the defendant need only cast a 

reasonable doubt in the minds of the jurors that he had the 

requisite mental state. Korell, 213 Mont. at 331, 690 P.2d 1000. 

The creation of such a doubt is far different than having to 

shoulder the burden of proof. Under the Montana scheme, the 

burden of proof never leaves the State. 

In accordance with our holding in Korell, we conclude the 

statutory scheme involving evidence of mental disease or defect is 

constitutional. We hold that Title 46, Chapter 14 of the MCA, does 

not violate the Fifth and Fourteenth Amendment rights of the 

defendant. 

B. The Sixth Amendment Right to Trial by Jury. 

Byers argues that under the present statutory scheme, when a 

defendant enters a plea of not guilty by reason of insanity, he is 

deprived of his right to a trial by a jury. Byers argues that the 

present state of the law allows the mental disease or defect issue 

to be decided solely by the court. In making this argument, Byers 
refers to the third step in the statutory procedure which directs 

the court to consider the mental disease or defect issue in the 

rendering of judgment. While the judge does consider mental 

disease or defect in sentencing, the State argues that Montana law 

further permits the defendant to provide evidence of mental disease 

or defect to the jury. As previously referred to, Korell discusses 

the three step approach to the presentation of evidence of mental 

disease or defect under the Montana statutes. 

Byersl argument that the third step of the presentation of 

evidence pursuant to 5 46-14-312, MCA, concerning mental disease or 

defect does away with his right to jury trial is clearly incorrect 

where he has already received such a trial. The effect of 

consideration of mental disease or defect by the judge under the 

statute does not nullify the jury verdict. That third step is a 

further precaution for the protection of both criminal defendants 

and society. s his allows the court to consider defendant's mental 

disease or defect as it relates to appropriate 

institutionalization. 

We hold that 5 46-14-312, MCA, does not violate Byers1 Sixth 

Amendment right to a jury trial. 

111. 

Did the District Court abuse its discretion by allowing Dr. 

Stratford to testify after it was established that the State had 

failed to disclose his diagnosis pretrial? 

Under 5 46-14-205, MCA, the District Court ordered Dr. 

Stratford to conduct an examination of Byers to determine whether 

he had, at the time the offenses were committed, a particular state 
of mind which is an essential element of the offense of deliberate 

homicide. Dr. Stratford complied with this order and the State 

presented his reports to Byers and to the court. The reports 

stated that Dr. Stratford determined that Byers did not have a 

mental disease or defect and had acted knowingly and purposely 

during the commission of the offenses. 

Byers contends that Dr. Stratford's report as furnished to him 

did not contain any diagnosis. Byers next contends that the State 

violated discovery because it did not provide him with his 

diagnosis before trial but tried to introduce it for the first time 

at the time of trial. The court did permit Dr. stratford to 

testify but did not allow him to testify as to his diagnosis. 

Byers contends he was effectively prevented from cross examining 

Dr. Stratford for fear of inadvertently bringing up the diagnosis, 

and also because cross examination prohibited his right to address 

the discovery violation. 

The State argues that Dr. Stratford was asked to determine 

whether Byers had the requisite mental state of knowingly or 

purposely at the time the offenses were committed. The State 

further points out that it provided Byers with all Dr. Stratford's 

physical examinations, scientific tests, experiments or 

comparisons, including all written reports or statements made by 

Dr. Stratford in the evaluation. This included Dr. Stratford's 

notes from his interview with Byers. The State argues that Byers 

could have contacted Dr. Stratford directly at any time regarding 

his diagnosis. 
The State admitted that Dr. Stratford had not furnished a 

diagnosis of Byers until several days before trial and the State 

did not at that time provide Byers a copy of the diagnosis. The 

court ruled that the State had violated discovery with regard to 

the diagnosis, and that the State could not question Dr. Stratford 

as to the diagnosis. The court did warn Byers that if cross 

examination opened up the diagnosis issue, then that would be 

Byers1 problem. The District Court was correct in concluding the 

State breached its duty to disclose Dr. Stratford's diagnosis as 

required under 5 46-15-327, MCA: 

Continuing duty to disclose. If at any time after a 

disclosure has been made any party discovers additional 

information or material that would be subject to 

disclosure had it been known at the time of disclosure, 

the party shall promptly notify all other parties of the 

existence of the additional information or material and 

make an appropriate disclosure. 

As a result of the information furnished, Byers knew that Dr. 

Stratford would testify that Byers did not have a mental disease or 

defect and had acted knowingly and purposely during the offenses. 

Prior to Dr. Stratford's main portion of testimony at trial, Byers 

also knew that Dr. Stratford had concluded that Byers did not 

suffer from Borderline Personality Disorder. 

Despite his foreknowledge of such testimony by Dr. Stratford, 

Byers contends he was unable to adequately cross examine Dr. 

Stratford because he had not known anything about Dr. Stratford's 

diagnosis and had no time to question his own expert on the 

technicality of the diagnosis so that a cross examination of Dr. 

Stratford would be meaningful. However, the record demonstrates 
that the court offered Byers1 counse1.a continuance to question its 

own expert, Dr. Plazak, about Dr. Stratford's diagnosis. The court 

told defense counsel to inform it at the end of Dr. Stratfordus 

direct examination if he wished this continuance. The record does 

not show any request by Byers for such continuance. 

Defense counsel claims that any questioning of Dr. Stratford 

would have prevented Byers from alleging a discovery violation. In 

answer to this contention, we note that Byers did not need to 

allege a discovery violation. The court determined that one had 

occurred. Second, there is no reason why defense counsel could not 

have continued with his planned cross examination, Byers knew that 

Dr. Stratford would testify to his evaluation that Byers did not 

suffer a mental disease or defect and that he had acted knowingly, 

purposely and voluntarily when he committed the offenses. Counsel 

for Byers has failed to demonstrate any reason that the absence of 

the specific Stratford diagnosis prevented an adequate cross 

examination. While we do approve the District Court's limitation 

on the State's testimony because of the failure to disclose the 

Stratford diagnosis, we are unable to conclude that there was any 

adverse effect upon Byers. 

The court prohibited Dr. Stratford from testifying about a 

specific diagnosis and allowed Dr. Stratford to testify to that 

information already in defense counselus hands. The court properly 

prohibited a witness from testifying to something that was not 

disclosed. Section 46-25-329, MCA. Such prohibition was a 

sanction against the State. The District Court has the discretion 
to levy sanctions it deems most appropriate for discovery 

violations. State v. Van Voast (1991), 247 Mont. 194, 805 P.2d 

1380. Because the actual testimony was no different than what was 

contemplated and because Byers can point to no damage caused by Dr. 

Stratford's testimony, we conclude that the District Court's 

sanction was appropriate. Therefore, we hold that the District 

Court did not abuse its discretion by allowing Dr. Stratford to 

testify after it was established that the State had failed to 

disclose his diagnosis before trial. 

IV. 

Did the District Court err in refusing to grant a mistrial when the 

State's psychologist, John Van Hassel, testified, in response to 

questioning by the County Attorney, to statements made during the 

course of his examination of Brett Byers? 

Byers contends that the only issue to be resolved by the jury 

is his state of mind. Byers further argues that the State was 

permitted to introduce evidence of that state of mind through 

testimony of its expert witness reciting comments made by Byers 

during an interview. It is Byerst contention that this testimony 

was an intrusion into his right of refusal to testify against 

himself pursuant to Article 11, Section 25, 1972 Montana 

Constitution. 

The State argues that Byers' own expert testified to Byers' 

thoughts before and after the shootings notwithstanding the court's 

directives. As a result of the testimony by Byers' expert, the 

State argues that its own testimony was admissible. 

The court, after reviewing applicable statutes and case law, 

concluded: 

15 
THE COURT: This is regarding Section 46-14-401, which 

deals with the admissibility of statements made during a 

psychiatric examination under the Montana Criminal Code. 

Let the record show that I have reviewed the statute and 

I have paid particular attention to the case of State v. 

Statczar, 44 State Reporter 1668, issued by the Montana 

Supreme Court in October of 1987. And the holding is 

that statements made by a defendant for purposes of the 

psychiatric examination are not admissible in evidence 

against a defendant in any criminal proceeding on any 

issue other than that of his mental condition. And the 

Supreme Court cautions trial courts to refrain from 

admitting evidence of the defendant's mental condition 

which implies or constitutes an admission of guilt of the 

crime charged. So, I guess we are under that rule. So. 

therefore, the State's wsvchiatric witnesses will not be 

able to comment on any statements made bv the defendant 

which imalv or constitute an admission of the wilt of 

the crime charaed, but mav only a0 into his mental 

condition. [Emphasis added.] 

The court denied the motion for mistrial on the basis that the 

State's expert engaged in proper rebuttal of the defense's expert 

witness and because any inappropriate testimony was inadvertent. 

A trial court has the discretion to grant a mistrial. State 

v. Graves (lggo), 241 Mont. 533, 788 P.2d 311. Where there has 

been no abuse of discretion, this Court must not disturb the 

district court's decision. Graves, 241 Mont. at 538, 788 P.2d at 

The Montana statute pertinent to this issue is: 

Admissibility of statements made during examination or 

treatment. A statement made for the purposes of 

psychiatric examination or treatment provided for in this 

chapter by a person subjected to such examination or 

treatment is not admissible in evidence against him in 

any criminal proceeding, except a sentencing hearing 

conducted under 5 46-14-311, on anv issue other than that 

of his mental condition. It is admissible on the issue 

of his mental condition, whether or not it would 

otherwise be considered a privileged communication, 

unless it constitutes an admission of guilt of the crime 

charged. [Emphasis added.] 
Section 46-14-401, MCA (1989) (now, 46-14-217, MCA). In order to 

determine whether testimony admitted at trial was in violation of 

the above statute and, therefore, prevented Byers a fair trial we 

consider the alleged offending testimony. 

Byers contends that the offensive question and answer by the 

State was not inadvertent because the State specifically asked Dr. 

Van Hassel about Byersl statements: 

Q. What did he tell you about that? 

A. I don't recall his exact statements without referring to 

my notes. But he did indicate to us that he was aware 

that police cars were following him, and that he did 

speed up when they turned on their lights, and that when 

he arrived at East Helena and found the road blocked off, 

that he knew he couldn't get away, and that he knew he 

was in a lot of trouble and he did (sic) want to face it, 

and, consequently, he crashed his truck. 

A. I guess, you know, I could continue beyond that in the 

sense of, seemingly he was aware of what was happening at 

the time that he was arrested. He appears to have 

behaved in an expected fashion in the sense that he was 

aware that he was being arrested. I don't know how far 

beyond the time of the shootings you want to go, but I 

think there's substantial evidence that up to a very 

short time before those shootings and a very short time 

afterwards, he was fully aware of his behavior and fully 

capable of making conscious choices. 

Byers contends that these statements imply an admission of 

guilt. The State argues that the above testimony was in rebuttal 

to Dr. Plazakrs (Eyers1 expert) testimony earlier concerning Byers' 

post-shooting admonition to the Dormitory Resident Advisor to call 

the police. Dr. Plazak stated: 

A. [I]t would be very easy to interpret this as 

meaning that he knew that, at that point, 

something had happened which would require the 

presence of the police. Actually, my feeling 
after examining him and evaluating and talking 

to him about the incident, which incidently is 

very fuzzy in his mind anyway, although he's 

not amnesic or any of that, he was asking for 

help. 

Dr. Plazak was permitted to testify that ByerS had indicated 

to him that his recollection of the shootings was hazy. This 

testimony indicates Byers' mental state. Dr. Van Hassel was 

permitted to testify that up until a short time before and a short 

time after, Byers was capable of making conscious choices. We 

conclude that under the statute and the judge's orders, the 

testimony of both experts was appropriate as admissible statements 

regarding Byers' mental condition. We further conclude that Byers 

opened the door to this testimony by his initial examination of his 

own witness, Dr. Plazak, and therefore cannot object to the 

responsive interrogation by the State. We conclude that Byers was 

not denied a fair trial because of the above mentioned testimony. 

We hold the District Court did not abuse its discretion in 

failing to grant a mistrial with regard to the testimony of State's 

psychologist, Dr. John Van Hassel. - 

v. 

Did the District Court abuse its discretion when it allowed the 

State to present evidence that the length of the shotgun possessed 

by Brett Byers was in violation of federal regulations? 

Byers argues that the court erroneously allowed the State to 

present evidence that the shotgun used in the shootings had been 

altered to an illegal length and had a pistol grip. Byers' 

contention is that the State should have provided a Just notice if 

it intended to offer evidence concerning an illegal weapon. See 
State v. Matt (1990), 245 Mont. 208, 799 P. 2d 1085. Byers contends 

that in the absence of a Just notice, the court abused its 

discretion in allowing the State to present this evidence. 

The State argues that the information concerning the illegal 

length of the shotgun is not a matter which required a Just notice. 

According to the State, the weapon was part of the corpus delicti 

of the crime and was relevant to the case. The State contends that 

the uniqueness of the gun is a factor in identifying Byers as the 

alleged killer. 

The District Court allowed the evidence of the illegal length 

of the gun, stating: 

The basis for my ruling is that there has been testimony 

that this weapon did once have a thirty inch barrel. 

That when it was given to the defendant it was in proper 

condition. And it was used in the crime, and I think the 

jury's entitled to know what the status of that weapon is 

and it may -- as it may be relevant in this case. 

Byers argues that the testimony concerning the length of the gun 

was irrelevant because it had been altered to its present unique 

state several years before the shootings, not in anticipation of 

the shootings. 

The barrel of the shotgun, which was found at the scene of the 

shootings, was 14 and 9/16" long and had a pistol grip. The 

minimum legal length is 18". The gun was subsequently identified 

as the murder weapon used to kill Boeder and Clevenger. Thus, any 

information that showed the identity of the perpetrator would be 

relevant because it linked the defendant with the scene of the 

crime and the victims. See State v. Pease (1986), 222 Mont. 455, 

724 P.2d 153. This link was established by the unique character of 

19 
the gun. Part of that unique character was the fact that it had a 

short barrel. 

We have stated that the State is entitled to present evidence 

of other crimes when these matters are inextricably or inseparably 

related to the crime. State v. Wolfe (1991), 250 Mont. 400, 821 

P.2d 339. Here the State was permitted to introduce evidence of 

the act of owning an illegal length shotgun because it was 

inextricably related to the crime. The crime was conclusively 

proven to have been caused by the sawed-off shotgun left at the 

scene. 

Byersv argument that no Just notice was given before the State 

entered the evidence of the illegal act is not correct. As this 

Court stated in State v. Gillham (1983), 206 Mont. 169, 179, 670 

Likewise, evidence that Gillham told others of his plan 

to kill Nordahl, that he visited the Nordahl home, and 

that he followed Nordahl's vehicle intending to harm 

Nordahl is admissible under Rilev as part of the corvus 

delicti of the crime charged. All of this evidence 

provides an explanatory context in which the jury was 

entitled to view the actions of Gillham. The State was 

entitled to present at trial the entire corDus delicti of 

the crime charged, including this evidence of acts 

closely related and explanatory of the crime charged. 

The District Court did not admit evidence in violation of 

the Just procedural requirements. 

We conclude that evidence with regard to the shotgun is part 

of the cortms delicti of the crime and does not require the giving 

of a Just or Modified Just notice. We hold the District Court did 

not abuse its discretion in allowing evidence that the length of 

the shotgun possessed by the defendant was in violation of federal 

regulations. 
Did the District Court err when it denied Brett Byers' motion to 

dismiss the charges of deliberate homicide in favor of those of 

mitigated deliberate homicide? 

Byers claims that he asserted the affirmative defense of 

extreme mental or emotional stress for which there is reasonable 

explanation or excuse, and that such defense reduces deliberate 

homicide to mitigated deliberate homicide. Byers contends that the 

fact that he was under extreme emotional distress was undisputed at 

trial and the court should find as a matter of law that the jury 

could only consider mitigated deliberate homicide. 

The State argues that the court correctly declined to direct 

a verdict. The State contends that a directed verdict may only be 

granted when no evidence exists to support a guilty verdict and 

such is not the case here. Further, according to the State the 

jury was given both the deliberate and mitigated deliberate 

homicide instructions. The State points out the jury was not 

convinced by Byers' argument because it did not find that defendant 

was under extreme mental or emotional distress for which there is 

a reasonable explanation or excuse as described in the 

instructions. Section 45-5-103, MCA. 

First, we note that Byers did not ask for a directed verdict. 

He asked the judge to determine as a matter of law that the jury 

could only consider mitigated deliberate homicide and not 

deliberate homicide. Byers relies on three Montana cases for this 

argument concerning his motion: State v. Kamrud (1980), 188 Mont. 

100, 611 P.2d 188; State v. Grenfell (1977), 172 Mont. 345, 564 
P.2d 171; and State v. Frates (1972), 160 Mont. 431, 503 P.2d 47. 

In all three cases the issue involved was entrapment by police. In 

Grenfell we established that entrapment could be established as a 

matter of law. These three cases are not applicable to charges of 

deliberate or mitigated deliberate homicide. 

In order for the charge of deliberate homicide to be reduced 

to mitigated deliberate homicide, the jury must be convinced by a 

preponderance of the evidence that such reduction is warranted, in 

accordance with 5 45-5-103, MCA: 

Mitigated deliberate homicide. (I) A person commits the 

offense of mitigated deliberate homicide when he 

purposely or knowingly causes the death of another human 

being but does so under the influence of extreme mental 

or emotional stress for which there is reasonable 

emlanation or excuse. The reasonableness of such 

emlanation or excuse shall be determined from the 

vi&ipoint of a reasonable person in the actor's 

situation. 

(2) It is an affirmative defense that the defendant 

acted under the influence of extreme mental or emotional 

stress for which there was reasonable explanation or 

excuse, the reasonableness of which shall be determined 

from the viemoint of a reasonable person in the actor's 

situation. This defense constitutes a mitigating 

circumstance reducing deliberate homicide to mitigated 

deliberate homicide and must be proved by the defendant 

by a preponderance of the evidence. [Emphasis added.] 

The record demonstrates that the testimony of the defendant's 

experts and the State's experts were in various aspects 

contradictory and inconsistent. As an example, Byers' expert, Dr. 

Plazak, testified that Byers was under extreme stress during the 

shooting episodes. State's witness, Dr. Van Hassel, testifiedthat 

Byers reported to him he felt extreme stress following an accident 

with his truck directly before the shootings. Dr. Van Hassel 
testified that he believed that Byersl perception of his own state 

of mind was that he was under extreme stress. Dr. Stratford, the 

second State expert witness, did not specifically conclude that 

Byers was under stress. He did mention a series of things over 

which Byers was experiencing wproblems.fl It was up to the jury to 

determine the weight to be attached to the testimony of the various 

witnesses. State v, Bower (1992), 254 Mont. 1, 833 P.2d 1106. We 

conclude the determination of the weight to be given to this 

testimony was within the exclusive province of the jury as trier of 

fact. 

We hold that the District Court did not err in denying Byersr 

motion to dismiss the charge of deliberate homicide in favor of 

mitigated deliberate homicide. 

 id the District Court err by instructing the jury that it could 

convict Byers if it merely found that Brett Byers was aware of his 

conduct or if he had the conscious object to engage in conduct of 

a particular nature? 

Byers argues that the jury was instructed improperly as to the 

meanings of llpurposelyl* or "knowinglyw with the result that the 

Staters burden on the mental element of the offense was reduced. 

This, according to Byers, warrants a reversal of the jury verdict. 

Byers1 contention is that ltpurposelyll can be meant as 1) purpose to 

engage in conduct, or 2) purpose to cause a result. nKnowinglyM is 

defined likewise as relatingto either conduct or result--depending 

on the definition of the crime involved, asserts Byers. According 

to Byers, the crime of deliberate homicide is defined by a result-- 

the death of a human being. However, Byers contends that the jury 

23 
was erroneously given a composite of the two alterative meanings of 

these two states of mind so that it could convict Byers if it found 

that he possessed the requisite mental state only as to his 

conduct, not as to the result. 

The State argues that the jury was clearly instructed as to 

the legal meanings of gtknowingly't and "purposely. I' Byers 

argument, according to the State, is that Byers can be convicted 

with the instructions given if he did not have the requisite 

intent. However, the State contends that specific intent is no 

longer required unless the statute defining the offense requires it 

as an element. According to the State, this Court has already 

considered Byers' argument and failed to find it persuasive. 

The Byers' jury was instructed: 

Instruction #11: A person commits the offense of 

deliberate homicide if he purposely or knowingly causes 

the death of another human being. (Taken from 5 45-5- 

102 (1) , MCA. ) 

Instruction #12: A person acts purposely when it is his 

conscious object to engage in conduct of that nature or 

to cause such a result. (Taken from 5 45-2-101(58), MCA.) 

Instruction #13: A person acts knowingly when he is 

aware of his conduct or when he is aware that it is 

highly probable that a result will be caused by his 

conduct. (Taken from § 45-2-101(33), MCA.) 

Byers' arguments have been made and considered previously by 

this Court in State v. Sigler (1984), 210 Mont. 248, 688 P.2d 749. 

In Siqler, the defendant was accused of deliberate homicide after 

having hit or kicked a 19-month old child, causing his bowels to 

perforate, killing him. The Siqler jury was similarly instructed: 

Instruction #12: A person acts purposely with respect to 

a result or to conduct described by statute defining an 
offense if it is his conscious object to engage in that 

conduct or to cause that result. 

Instruction #13: A person acts knowingly with respect to 

conduct when he is aware of his conduct. A person acts 

knowingly with respect to the result of conduct described 

by a statute defining an offense when he is aware that it 

is highly probable that such result will be caused by his 

conduct. 

Instruction # 14 : A person commits the offense of 

deliberate homicide if he purposely or knowingly causes 

the death of another human being. 

Sisler, 210 Mont. at 257-258, 688 P.2d at 749, 754. 

The instructions given by the District Court in Byers were 

similar to those given in Sisler and were taken from the same 

statutes. We determined in Sisler that the court had correctly 

instructed the jury. There, as here, the jury was also instructed 

that the State had to prove all elements of the crime. 

Byers1 argument that the Sisler case should be overruled 

because it is not the law is unpersuasive. We have considered his 

argument in previous cases and have found instructions like those 

given in Bvers to be an adequate statement of the law. Byers' 

argument on this point is that the court's interpretation of the 

law in Siqler relieves the State of proving that the defendant had 

the required intent to cause the death of another human being. 

Such intent is no longer required in this state: 

tlPurposelylt and uknowinglyl~ have replaced the concepts of 

malice and intent known to our former law. . . . In 

short, the voluntary act of a person, if not justifiable . . . . knowingly, purposely, or negligently done is 

criminal homicide if it causes the death of another human 

being. . . .Proof of cause is a primary duty of the 

State, and a necessary element to be found by the jury 

for a proper conviction in a criminal homicide case. 

(Emphasis in original.) 
Sisler, 210 Mont, at 258, 688 P.2d at 754. And more recently we 

have stated: 

It is no longer necessary to prove specific intent as an 

element of the crime unless the statute defining the 

offense requires as an element thereof specific purpose. . . .As the trial court noted in refusing defendant's 

proffered instructions, a defendant can properly be 

convicted of deliberate homicide even though he may not 

have intended that the death result from the act where he 

contemplated the same kind of harm or injury to the 

victim. . . . 

State v. Van Dyken (1990), 242 Mont. 415, 434, 791 P.2d 1350, 1362, 

cert. denied, 111 S.Ct. 297. 

Contrary to Byersf argument, the Sisler-type instructions have 

been considered on numerous occasions by this Court and we have 

consistently found them to be an accurate reflection of the law: 

Sisler is well-settled law and its holding has been 

affirmed often by this Court. See State v. Blalock 

(1988),232 Mont. 223, 756 P.2d 454; State v. McKimmie 

(1988), 232 Mont. 227, 756 P.2d 1135; State v. Ballenger 

(1987), 227 Mont. 308, 738 P.2d 1291; State v. Koepplin 

(l984), 213 Mont. 55, 689 P.2d 921. We once again affirm 

the Sisler holding and find that the trial court 

correctly instructed the jury concerning mental state. 

Van Dyken, 242 Mont. at 434, 791 P.2d at 1362. 

In Sigler we gave an example of the effect of deletion of 

specific intent in the current law: 

. . . . proof beyond a reasonable doubt that a defendant 

consciously shot another with a gun where no 

circumstances of mitigation, excuse or justification 

appear, and the other died from the gunshot, will suffice 

to convict the defendant of deliberate homicide, without 

proof that death was the intended result by the defendant . . . .Our criminal law proscribes purposely doing an act 

which causes the death of another; it also proscribes 

doing an act with the conscious object of causing the 

death of another. In the former, death may not be the 

intended result, but if the act which causes the death is 

done ~umoselv, deliberate homicide is committed. 

(Emphasis added.) 
Sisler, 210 Mont. at 260, 688 P. 2d at 755. Such a statement of the 

law was taken directly from the law itself. At the time of the 

shootings, the definition of vtpurposelyn was: 

lgPurposet*--a person acts purposely with respect to a 

result or to conduct described by a statute defining an 

offense if it is his conscious object to emacre in that 

conduct or to cause that result. 

Section 45-2-301(58), MCA. The statute clearly provides two ways 

to act with purpose: 1) consciously engaging in a certain conduct, 

or 2) consciously attempting to cause a result. Section 45-5-102, 

MCA, provides: 

(1) A person commits the offense of 

if: 

(a) he purposely or knowingly 

another human being . . . 

Section 45-2-201, MCA, describes the 

deliberate homicide 

causes the death of 

causal relation between 

conduct and result as follows: 

Causal relationship between conduct and result. (1) 

Conduct is the cause of a result if: 

(a) without the conduct the result would not have 

occurred; and 

(b) and additional causal requirements imposed by 

the specific statute defining the offense are satisfied. 

(2) If purposely or knowingly causing a result is 

an element of an offense and the result is not within the 

contemplation or purpose of the offender, either element 

can nevertheless be established if: 

(a) the result differs from that contemplated only 

in the respect that a different person or different 

property is affected or that the injury or harm caused is 

less than contemplated; or (b) the result involves the 

same kind of harm or injury as contemplated but the 

precise harm or injury was different or occurred in a 

different way, unless the actual result is too remote or 

accidental to have a bearing on the offender's liability 

or on the gravity of the offense. (Emphasis added.) 

Because the law specifically indicates an inter-connectedness 

between conduct and result in deliberate homicide, this Court has 
consistently interpreted the law on its face since Sisler: the 

defendant need only have the purpose to engage in a certain 

conduct. If that conduct causes death, defendant can be charged 

with deliberate homicide. 

The deliberate homicide statute does not require only a 

wresultvt as Byers argues. Tf defendant engages in any conduct 

Mpurposelyu and death is a "resultu, according to the statutes now 

in effect in this State, the defendant can be found guilty of 

deliberate homicide. Such was the case in Sisler. 

We conclude that Byers is in error in contending that the 

State had to prove that Byers intended to cause the death of 

another human being. We also conclude that the Bversl instructions 

are a correct reflection of the current law in this State. 

We hold that the District Court did not err by instructing the 

jury that it could convict Byers if it merely found that Byers was 

aware of his conduct or if he had the conscious object to engage in 

conduct of a particular nature. 

VIII 

Did the District Court err by instructing the jury that voluntary 

intoxication is not a defense to criminal activity? 

Byers argues that the voluntary intoxication statute is 

unconstitutional because its use relieves the State of its burden 

of proving the elements of an offense. Byers contends that he 

never used intoxication as a defense because there exists no 

connection between his use of alcohol and the shootings. Byers 

asserts that his conviction must be overturned because of the use 

of this instruction by the court. 
The State argues that the court did not err in giving the 

intoxication instruction because testimony was presented at trial 

which indicated that Byers was intoxicated. Further, according to 

the State, the instruction regarding intoxication did not override 

the instruction regarding the State's burden of proving the 

elements of the crimes. 

The jury was instructed: 

A person who is in an intoxicated condition is 

criminally responsible for his conduct and an intoxicated 

condition is not a defense to any offense and may not be 

taken into consideration in determining the existence of 

a mental state which is an element of the offense unless 

the defendant proves that he did not know that it was an 

intoxicating substance when he consumed the substance 

causing the condition. 

Jury instruction #22. 

During the State's case, one of Byersf friends in the 

dormitory the Montana State University campus test if ied that 

Byers had drunk almost an entire bottle of wine on the night of the 

shootings and that he was wdrunklq and was llslurring his words" 

shortly before the shootings occurred. The court concluded it was 

proper give the instruction. The trial court must 

determine which instructions are necessary in a particular case and 

should instruct the jury on every theory having support in the 

evidence. State v. Goodwin (1991), 249 Mont. 1, 813 P.2d 953. 

Byersf argument that the intoxication instruction relieved the 

State of the burden of proving beyond a reasonable doubt all of the 

elements of the offense is not persuasive. The court was very 

clear in directing the jury that "[tlhe state of Montana has the 

burden of proving the guilt of the defendant beyond a reasonable 
doubt. tf (Instruction #2. ) The same instruction told the jury that 

ll[t]he defendant is presumed to be innocent of the charge against 

him . , . . throughout every stage of the trial and during your 

deliberations on the verdict.'' 

We review jury instructions as a whole; instructions are 

deemed to be sufficient if they fully and fairly present applicable 

law. State v. Webb (1992), 252 Mont. 248, 828 P.2d 1351. A review 

of the instructions as a whole reveals that the court fully 

instructed on all theories pertinent to the case and fairly 

presented the current state of the law to the jury. We conclude 

that the jury instructions were sufficient. 

We hold that the District Court did not err by instructing the 

jury that voluntary intoxication is not a defense to criminal 

activity. 

IX 

Did the District Court err by refusing to include voluntariness in 

instructions 17 and 18? 

Byers points out that the court did not include an instruction 

on voluntariness with the jury instructions giving the elements of 

the crime. Byers argues that because the voluntariness instruction 

was separated from the instructions on elements of the crime, the 

jury was confused and may not have considered it. According to 

Byers, such lack of consideration was prejudicial to his case. 

The State contends that the jury was properly instructed. 

According to the State, a voluntary act does not refer to 

psychological impairment but to a physical act. Because of this, 

the State contends that it was proper to separate the voluntary 

30 
instruction from the instruction stating the elements of the crime. 

Instruction #10 stated: 

In addition to the particular states of mind which are 

essential elements for the offenses charged or included 

in this case, the State must move beyond a reasonable 

doubt that the Defendant acted voluntarilv. An tfactll has 

its usual and ordinary meaning and includes any bodily 

movement. The term Woluntarytl means the act is the 

product of the effort or determination of the actor, 

either conscious or habitual. Acts which are not 

voluntary are reflexes, convulsions, bodily movements 

during unconsciousness or sleep, or conduct during 

hypnosis, or any other bodily movement that otherwise is 

not a product of effort or determination either conscious 

or habitual. (Emphasis added.) 

This instruction clearly puts the burden on the State to prove 

voluntariness. Further, the next three instructions immediately 

following the above instruction are: 12) deliberate homicide must 

be done purposely or knowingly, 13) definition of purposely, 14) 

definition of knowingly. There is no real separation here. These 

instructions are all individual elements and portrayed as such. 

The court restated elements of instructions 12, 13, 14 again 

in instructions 17 and 18. These latter two instructions combined 

the possibility of mitigated deliberate homicide and evidence of 

extreme mental or emotional stress: 

Instruction #17: To convict the defendant of the offense 

of deliberate homicide, under Count I, the State must 

prove the following elements: 

1. That the defendant caused the death of James 

Allen Clevenger [Instruction #18 was identical but 

inserted the name Brian Peter Boeder] , a human being; and 

2. That the defendant acted purposely or 

knowingly. 

The defendant has asserted the affirmative defense of 

mitigated deliberate homicide which requires proof by a 

preponderance of the evidence that the defendant acted 

under the influence of extreme mental or emotional stress 
for which there was a reasonable explanation or excuse. 

If you find from your consideration of the evidence 

that all of elements number 1 and 2 have been proved 

beyond a reasonable doubt, and the defendant has not 

proved extreme mental or emotional stress, by a 

preponderance of the evidence, then you should find the 

defendant guilty of deliberate homicide. 

If you find from your consideration of the evidence 

that all of elements number 1 and 2 have been proved 

beyond a reasonable doubt, and the defendant has proved 

extreme mental or emotional stress, by a preponderance of 

the evidence, then you should find the defendant guilty 

of mitigated deliberate homicide. 

If you find from your consideration of the evidence 

that either element[s] number 1 or number 2 has not been 

proven beyond a reasonable doubt, then you should find 

the defendant not guilty. 

If you find from your consideration of the evidence 

that the defendant did not have the required mental state 

of purposely or knowingly described in element number 2, 

because of mental disease or defect then you should find 

the defendant not guilty by reason of mental disease or 

defect. 

The court did not include in instructions 17 or 18 any mention of 

voluntariness. Neither did anything in these two instructions 

negate the instruction already given on voluntariness. 

Jury instructions must be read and reviewed as a whole and if 

they fairly and fully reflect the law, they will be found 

sufficient. Goodwin, 249 Mont. at 13, 813 P.2d at 961. We 

conclude that the instructions as given adequately reflect the law 

and the placement of the voluntariness instruction is not 

prejudicial to defendant. 

We hold that the District Court did not err by refusing to 

include voluntariness in instructions 17 and 18. 
 id the ~istrict Court make an improper comment on the evidence 

when it instructed the jury that consciousness of guilt could be 

inferred from flight? 

The court instructed the jury: 

If you are satisfied that the crime charged in the 

information has been committed by someone, then you may 

take into consideration any testimony showing, or tending 

to show, flight by the defendant. This testimony may be 

considered by the jury as a circumstance tending to prove 

a consciousness of guilt, but is not sufficient of itself 

to Drove wilt. The weight to be given such circumstance 

and significance if any, to be attached to it, are 

matters for the jury to determine. (Emphasis added.) 

Instruction #21. 

Byers argues that many jurisdictions have eliminated a 

"flightn instruction. Byersf contention is that the instruction 

when given is an improper comment by the court on a single piece of 

evidence. It works, according to Byers, to invade the province of 

the jury and essentially directs a verdict for the State. Byers 

further argues that in a situation as here where the only issue is 

mental state, defined as consciousness, a flight instruction 

essentially tells the jury that defendant was "consciousm1 of his 

guilt if he fled the scene. 

The State argues that this Court has upheld the use of the 

flight instruction in situations where it is supported by evidence. 

According to the State, there is no dispute that Byers fled from 

the scene of the crime and on that basis the instruction was 

proper. 

The evidence introduced at trial is uncontroverted that 

Byers left the Montana State University campus in the early morning 
hours and drove to East Helena, Montana, where he was apprehended. 

Thus, the facts of this case make the flight instruction 

appropriate. 

Yet, Byers contends that we should once again consider whether 

the flight instruction is an appropriate statement of the law. The 

instruction was taken from the Montana Criminal Jury Instructions 

1-019. It has been used with approval in numerous cases. see 

State v. Campbell (1990), 241 Mont. 323, 787 P.2d 329; State v. 

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

(1988), 234 Mont. 119, 761 P.2d 825; State v. Charlo (1987), 226 

Mont. 213, 735 P.2d 278. 

The use of the instruction here is no less appropriate than in 

the preceding cases. It is important to note here that the jury 

was specifically told in this instruction that it was their domain 

to weigh any evidence of flight. They were also instructed that 

evidence of flight alone was not enough to show guilt. Thus, 

Byers' argument that the use of this instruction acted to direct a 

verdict where the only issue is his mental state is not correct. 

It is the trial court's responsibility to give the jury the legal 

tools that it needs to make a decision. We conclude it did that 

here. The court's use of the flight instruction under the facts of 

this case was an accurate reflection of the present law. 

We, therefore, hold that the District Court did not improperly 

comment on the evidence when it instructed the jury that 

consciousness of guilt could be inferred from flight. 
Did the sentencing judge err when he imposed a separate, 

consecutive sentence for weapon use even though the offense of 

weapon use was not charged? 

Byers argues he was charged with two counts of deliberate 

homicide, but was given three sentences. Because of the wording of 

the weapon enhancement statute, Byers asserts he was denied due 

process because he was not charged with this third offense. 

The State contends the weapons enhancement statute does not 

constitute a separate offense. According to the State, this Court 

has already concluded the enhancement statute does not circumvent 

due process. The State argues that our Ninth Circuit has also 

reached the same conclusion. 

Section 46-18-221, MCA, reads: 

Additional sentence for offenses committed with a 

dangerous weapon. (1) A person who has been found 

guilty of any offense and who, while engaged in the 

coromission of the offense, knowingly displayed, 

brandished, or otherwise used a firearm, destructive 

device, as defined in 45-8-332(1), or other dangerous 

weapon shall, in addition to the punishment provided for 

the commission of such offense, be sentenced to a term of 

imprisonment in the state prison of not less than 2 years 

or more than 10 years, except as provided in 46-18-222. 

(2) A person convicted of a second or subsequent 

offense under this section shall, in addition to the 

punishment provided for the commission of the present 

offense, be sentenced to a term of imprisonment in the 

state prison of not less than 4 years or more than 20 

years, except as provided in 46-18-222. 

Byers1 argument concerning a separate offense was made in 

State v. Krantz (l99O), 241 Mont. 501, 788 P.2d 298. There we 

stated that the United States Supreme Court has given the states 

great latitude in defining the elements of a crime and the factors 

mitigating or aggravating sentencing. Krantz, 241 Mant. at 508, 
788 P.2d at 302; citing Patterson v. New York (l977), 432 U.S. 197, 

Further, we stated in Krantz: 

The Montana weapon enhancement statue contains a 

number of elements similar to those found in substantive 

criminal statutes, but those elements do not make it a 

separate crime. The enhancement statute contains a 

recidivist provision, requires a mental state of 

knowingly, and may require a finding of fact, use of a 

weapon, not necessary to establish guilt of the 

underlying crime. The recidivist provision carries out 

the statute's purpose by limiting the sentencing court's 

discretion in imposing increased punishment for repeat 

offenders. The mens rea requirement protects the 

defendant by imposing on the court an additional and 

appropriate finding in determining weapon usage. All 

sentencing factors may, and often do, require the court 

to consider facts not established during trial. These 

elements are as much pertinent and necessary attributes 

of traditional sentencing considerations as they are 

attributes of substantive crimes. 

This Court has repeatedly held that Montana's weapon 

enhancement statute does not create a separate crime or 

element of a crime. (cites omitted) The Montana 

legislature has chosen a scheme which makes dangerous 

offender status and use of a weapon sentencing factors. 

So long as that scheme remains constitutional, it is not 

the province of this Court to transmute these statutory 

factors into separate crimes or elements of crimes. 

Krantz, 241 Mont. at 511-512, 788 P.2d at 304-305. 

Again, we conclude that Byers was afforded due process because 

the State clearly had the burden of proof of all elements of the 

crime. Further, the legislative decision to make weapon 

enhancement a sentencing factor and not a separate offense, does 

not violate Byers' due process. 

We hold the sentencing judge did not err in imposing a 

separate, consecutive sentence for weapon use even though the 
offense of weapon use was not charged. 

Did the ~istrict Court improperly impose a 15 year sentence for 

weapon use? 

Byers argues that Montana should adopt the California lfsingle 

incident1' rule. According to Byers, it serves no purpose to 

sentence a defendant to so many years for each offense when all 

offenses were committed at one time. This is so, claims Byers, 

because the purpose of weapon enhancement statutes is to discourage 

future use of weapons. 

The State argues that the Court must consider the language of 

the statute and determine that it refers to a single floffenselv not 

a single vtransaction.ll The court sentenced Byers: 

For the use of a weapon in the commission of the two 

homicides, the herein imposed sentence [75 years per each 

count of homicide] is enhanced by an additional aggregate 

term of 15 years, to run consecutive to the sentences 

imposed in I and 11. 

This Court's responsibility involving statutes is to interpret 

them as they exist and not to insert terms, or restrictions, 

clearly not present. State v. Crane (1990), 240 Mont. 235, 784 

P.2d 901. Our enhancement statute states in pertinent part: 

A person who has been found guilty of anv offense and 

who, while engaged in the commission of the offense, 

knowingly displayed, brandished, or otherwise used a 

firearm, destructive device, as defined in 45-8-332(1), 

or other dangerous weapon shall, in addition to the 

punishment provided for the commission of such offense, 

be sentenced to a term of imprisonment in the state 

prison of not less than 2 years or more than 10 years, 

except as provided in 46-18-222. (Emphasis added.) 

Section 46-18-221(1), MCA. 

The language on the face of this statute clearly indicates an 
enhancement for a single offense. Were we to interpret this 

statute as California has, we would be inserting a restriction 

which is nowhere herein indicated in any way. 

We conclude that Montana's weapon enhancement statute dictates 

an enhancement of from 2 to 10 years for each offense and in no way 

restricts the sentencing considerations to a single period of time. 

Byers next argues that the 15 year sentence, stated in the 

aggregate, is a general sentence. Such is clearly not the case. 

A @'generalw sentence is one which is undivided; in other words, it 

is not frspecific*f as to each crime or each count. The sentencing 

judge unequivocally assessed Byers 75 years for each count of 

deliberate homicide: 

For Brett Donald Byersl conviction for the killing of 

James Clevenger, he is hereby sentenced to the Montana 

State Prison for a term of 75 years. 

For Brett Donald Byersl conviction for the killing of 

Brian Boeder, he is hereby sentenced to the Montana State 

Prison for a term of 75 years. 

Each of the prison terms to run consecutive. 

The specific term of 15 years was assessed over and above the 

aforementioned specific tens of 75 years. Therefore, there is 

nothing "generalv concerning Byersf sentence. Byers argues that 

the court should have divided the 15-year enhancement between the 

two offenses. In this situation where both crimes are the same, 

the use of an aggregate sentence within the parameters set out in 
§ 46-18-221, MCA, is sufficient. 

We hold the ~istrict Court properly sentenced the appellant 

pursuant to the weapon enhancement statute. 

XI11 

Should Byerso conviction be reversed? 

This Court will not set aside a conviction, if after viewing 

the evidence in the light most favorable to the prosecution, any 

rational trier of fact could have found the essential elements of 

the crime beyond a reasonable doubt. State v. Matt (1991), 249 

Mont. 136, 814 P.2d 52. This Court has carefully considered the 

trial transcript. We conclude that any rational trier of fact 

could have found the essential elements of the crimes beyond a 

reasonable doubt. We hold that Byers1 conviction should not be 

reversed. 

Affirmed . 
~ustice Terry N. Trieweiler specially concurring in part and 

dissenting in part. 

I concur with the majority's conclusions regarding Issues 1, 

4, 5, and 8-11. 

I specially concur with those parts of the majority opinion 

which relate to Issues 3, 6, and 12. However, although I concur 

with the result reached, I do not agree with all that is said in 

the majority opinion with regard to these issues. 

I dissent from the majority's conclusions as they relate to 

Issues 2 and 7. 

With regard to Issue 2, I dissent from the majority's 

conclusion that Montana's treatment of the insanity defense does 

not violate defendant's right to due process. For the reasons 

stated in my dissent to the majority's opinion in State v. Cowan 

(Mont. 1993), - P.2d -t - St. Rep. , I conclude that 

Montana's abolition of the insanity defense in 1979 violated 

defendant's right to due process of law guaranteed under the 

Fourteenth Amendment to the United States Constitution, and Article 

11, Section 17, of the Montana constitution. 

Anyone unfamiliar with Montana's treatment of insane people 

who are charged with crimes would believe, based on the majority 

opinion, that they are treated more favorably now than before the 

statutory changes which were made in 1979. That is not correct. 

Based on the Legislature's abolition of the insanity defense 

in 1979, and this Court's approval of that change in State v. KorelI 
(l984), 213 Mont. 316, 690 P.2d 992, persons in Montana can be 

convicted of serious crimes and sentenced to confinement in the 

State Prison, even though at the time of the acts with which they 

are charged they were unable to appreciate the criminality of their 

conduct or were unable to conform their conduct to the requirements 

of the law because of mental illness. In addition to Montana, only 

the states of Utah and Idaho allow punishment of the mentally ill, 

and no U.S. Supreme Court decision has ever held that such 

treatment of the mentally ill satisfies the due process clause of 

the Fourteenth Amendment to the United States Constitution. 

I conclude that the majority's reliance on Lelandv. Stateof Oregon 

(1952), 343 U.S. 790, 72 S. Ct. 1002, 96 L. Ed. 1302, is misplaced. 

While the U.S. Supreme Court did hold in that case that the 

defendant was not constitutionally entitled to a specific form of 

the insanity defense, it is implicit from that decision that some 

form of an insanity defense is required by the due process clause. 

In fact, subsequent to this Court's decision in Korell, the 

California Supreme Court cited Leland for exactly the opposite 

purpose for which it is cited by this Court. In People v. Skinner (Cal. 

1985), 704 P.2d 752, the California Supreme Court, while discussing 

the due process dimensions of the insanity defense, stated that: 

Because mens rea or wrongful intent is a fundamental 

aspect of criminal law, the suggestion that a defendant 

whose mental illness results in inability to appreciate 

that his act is wrongful could be punished by death or 

imprisonment raises serious questions of constitutional 

dimension under both the due process and cruel and 

unusual punishment provisions of the Constitution. In 
Leland v. Oregon (1952), 343 U.S. 790, 72 S.Ct. 1002, 96 

L.Ed. 1302, the court upheld an Oregon law placing the 

burden of proving insanity beyond a reasonable doubt on 

the defendant and affirmed the right of the state to 

formulate the applicable test of legal insanity. In so 

doing, however, the court measured the law under due 

process standards, concluding that the irresistible 

impulse extension of traditional insanity test was not 

ttaimplicit in the concept of ordered liberty. "' (343 

U.S. at p. 801, 72 S.Ct. at 1009). The court thus 

seemingly accepted the proposition that the insanity 

defense, in some formulation, is required by due process. 

(See also Robinsonv. California (1962), 370 U.S. 660, 666, 82 

S.Ct. 1417, 1420, 8 L.Ed.2d 758, suggesting that 

punishment for the status of being mentally ill would 

constitute cruel andunusual punishment.) Scholars, too, 

suggest that abolition of the traditional insanity 

defense may be constitutionally impermissible if the 

result would be imposition of punishment on a mentally 

ill person for acts done without criminal intent. (See 

Robitscher & Haynes, In DejGense of the Insanity Defense (1982) 31 

Emory L. J . 9 ; Note, The Proposed Federal Insanity DejGense: Should the 

Quality of Mercy Suffer for the Sake of Safety ( 1984 ) 22 Am. Crim. L . Rev. 

49.) 

This court suggested a similar view in People v. 

Coleman (l942), 20 Cal.2d 399, 407, 126 P.2d 349, where 

we observed: "Obviously an insane person accused of crime 

would be inhumanely dealt with if his insanity were 

considered merely to reduce the degree of his crime or 

the punishment therefor." 

Skinner, 704 P.2d at 757-58. 

Montana's statutory scheme for dealing with mental illness 

does exactly what the California Supreme Court suggests would 

violate due process and cruel and unusual punishment provisions of 

the Constitution. It allows for conviction and punishment of those 

who are unable to appreciate the criminality of their conduct, and 

it substitutes for the insanity defense the mere option of the 

district court to take mental illness into consideration when 
deciding the degree of punishment or nature of the defendant's 

confinement. 

While evidence of mental disease or defect is admissible to 

prove that a defendant did not have a state of mind that is an 

element of the offense, it is clear that Montana's law does not 

take into consideration the defendant's ability to appreciate the 

criminality of his conduct or conform his conduct to the law. The 

only state of mind that had to be proven to convict the defendant 

in this case was that he acted knowingly and purposely at the time 

of the illegal conduct with which he is charged. Based on 

Montana's definitions of knowingly and purposely, he could act with 

both states of mind and still not appreciate the criminality of his 

conduct nor be able to conform his conduct to the law. 

The majority's conclusion that abolition of the insanity 

defense does not violate the due process clauses of the Montana or 

Federal Constitutions is based largely on its prior decision in 

Korell, and that decision's interpretation of Leland. 

The inadequacy of this Court's decision in Korell, and the 

inaccuracy of its analysis of Leland is thoroughly set forth by the 

dissenting opinion of Justice McDevitt in State v. Sear~y (Idaho 1990) , 

798 P.2d 914. I agree with that analysis, and would follow it in 

this case. 

The only reported decision outside of Montana which I am 

familiar with and which specifically upholds abolition of the 

insanity defense is the majority opinion in Searcy. In his 
well-documented opinion dissenting from that decision, Justice 

McDevitt made several important points. 

First, he examined the various tests for due process that have 

been set forth over the years. He observed that: 

In Palkov. Connecticut, 302 U.S. 319, 324-25, 58 s.c~. 

149, 151-52, 82 L.Ed. 288 (1937), Justice Cardozo wrote 

that those particulars of the Bill of Rights which must 

be held to apply as against the States through the 

Fourteenth Amendment Due Process Clause are those which 

"have been found to be implicit in the concept of ordered 

liberty, . . .I1 such that I1a fair and enlightened system 

of justice would be impossible without them." 

Searcy, 798 P.2d at 927. 

He noted that: 

The underlying theme of these various formulations 

of "due processt1 is a sense of historical precedent upon 

which American institutions were founded and our 

continuing legal traditions. Thus, the proper focus in 

evaluating the place of a particular doctrine in the 

concept of due process is the pervasiveness of the 

doctrine in the history of the common law. A review of 

the extensive history of the insanity defense in the law 

of England and the United States leads to the conclusion 

that due process does require the availability of that 

defense to criminal defendants. 

Searcy, 798 P.2d at 928. 

As noted in Justice McDevittls dissent, the insanity defense 

has existed as an excuse to crime from the time of the reign of 

Edward I during the 13th Century, and was well established by the 

16th Century. Searcy, 798 P.2d at 928-29. He pointed out that as 

early as the 18th Century there was recorded case law to the effect 

that a man deprived of reason cannot be guilty. The jury was so 

instructed in Rexv.Amold, 16 How.St.Tr. 695 (1724). American cases 
closely tracked English law from the time that insanity was first 

considered as a defense in this Country's courts. InreClark, 1 City 

Hall Recorder (N.Y.) 176 (1816), and InreBaU, 2 City Hall Recorder 

(N.Y.) 85 (1817). 

Then, in 1843, M'Naughten'sCase, 8 Eng.Rep. 718 (H.L. l843), was 

decided. That case provided that a person suffering from disease 

of the mind, to the extent that they did not know the nature and 

quality of their conduct, or did not know that what they were doing 

was wrong, could not be guilty of a crime. The MeNaughten rule, in 

some form or another, has been followed in virtually every American 

jurisdiction until 1979. However, whether following the M'Naughten 

rule, or some other variation of the insanity defense, McDevitt 

points out that the appropriateness of the defense has rarely been 

questioned. 

Second, McDevitt pointed out that there were three legislative 

attempts to abolish the insanity defense between 1910 and 1931, but 

that each of those legislative enactments were overturned by the 

state supreme courts where they were attempted. Searcy, 798 P.2d at 

932. Referring to this Court's discussion of those decisions in 

Korell, Justice McDevitt pointed out that: 

The Montana Supreme Court, in its recent decision 

upholding the 1979 abolition of the defense in Montana, 

effortlessly distinguished those three cases because 

If [t] hey interpret statutes that precluded any trial 

testimony of mental condition, includingthatwhich would 

cast doubt on the defendant's state of mind at the time 

he committed the charged offense." KoreU, 213 Mont. at 

329, 690 P.2d at 999 (emphasis in original). The KoreU 
court felt that Montana's allowance for psychiatric 

evidence going to the issue of mensrea at trial removed 

any precedential value from those three prior cases. 

However, I believe that two of those cases have greater 

applicability to the issues faced in KoreU and by this 

Court than the Montana Supreme Court would allow. 

Searcy, 798 P.2d at 932. 

For the reasons mentioned by the dissent in Seany, I agree. 

Finally, the dissenting opinion in Searcy points out that: 

Another, albeit less authoritative, test of whether 

a particular doctrine is "implicit in the concept of 

ordered liberty" other than the history of the legal 

concept, is the unanimity with which the doctrine is 

adopted among American jurisdictions. With the exception 

of the three attempted legislative abolitions of the 

insanity defense noted above, and the recent rejections 

of the defense in Montana (1979), Idaho (1982), and Utah 

(1983), the insanity defense has been universally 

accepted in all American jurisdictions throughout this 

nation's history. 

Searcy, 798 P.2d at 934. 

Based upon the foregoing, and based on the inapplicability of 

those authorities relied upon by the majority of the Idaho Supreme 

Court and the majority of this Court, the dissent in Searcy concluded 

that: 

I believe it is evident that the defense has an 

independent existence of sufficient duration and 

significance to entitle it to a place in our American 

concept of "ordered liberty." 

Searcy, 798 P.2d at 927. 

I agree. 

I believe as strongly as anyone that innocent people must be 

protected from those who are a danger to society, whether their 

behavior results from mental disease or simply an antisocial 
personality. However, the alternative to imprisoning those whose 

behavior results from insanity, over which they have no control, is 

not to turn them loose on society. Our law prior to 1979 provided 

that when a defendant is acquitted based on the defense of mental 

disease or defect, he or she must be committed to the custody of 

the superintendent of the Montana State Hospital for so long as he 

or she remains a threat to society. Section 95-508, R.C.M. (1947). 

That procedural safeguard has been carried forward to our current 

statutory scheme, Section 46-14-301, MCA. 

I do not mean to infer from this dissent that this defendant 

could have satisfied the burden of proof with regard to Montana's 

former insanity defense. However, I conclude that because he was 

denied the opportunity to have a jury decide whether, due to mental 

disease or defect, he was unable to appreciate the criminality of 

his conduct or conform his conduct to the requirements of the law, 

he was denied due process of law. 

I also dissent from the majority's conclusion that the 

District Court did not err when it instructed the jury that 

defendant could be convicted of deliberate homicide if his conduct 

was purposeful and knowing, regardless of whether he intended the 

results of his conduct. 

The crime of deliberate homicide is defined at 5 45-5-102, 

MCA. That statute provides that: 

(1) A person commits the offense of deliberate 

if: 

(a) he purposely or knowingly causes the 

another human being . . . . [Emphasis added.] 

homicide 

death of 
The jury was correctly instructed in the District Court's 

Instruction No. 11 that "[a] person commits the offense of 

deliberate homicide if he purposely or knowingly causes the death 

of another human being." 

However, the jury was incorrectly instructed by the District 

Court in Instruction Nos. 17 and 18. In Instruction No. 17, the 

jury was told that the State could convict the defendant of the 

offense of deliberate homicide if it merely proved the following 

elements: 

1. That the defendant caused the death of James 

Allen Clevenger, a human being; and 

2. That the defendant acted purposely or 

knowingly. 

Instruction No. 18 was a mirror reflection of No. 17, except 

that it referred to the other victim, Brian Peter Boeder. 

In other words, although by statute in Montana, the crime of 

deliberate homicide is limited to the knowing or purposeful 

causation of someone's death, these instructions, and this Court's 

previous decision in Statev. Sigh (1984), 210 Mont. 248, 688 P.2d 749, 

allow conviction for deliberate homicide where a defendant acts 

knowingly or purposely, even though it was not his purpose to cause 

anyone's death and he did not know that death would result from his 

conduct. This is an example of judicial activism in the extreme. 

I agree with Justice Morrison's dissent to Sigkr wherein he states 

that : 

By judicial fiat, the law in Montana is that a 

defendant who acts with purpose and accidently causes the 
death of another, is guilty of deliberate homicide. In 

other words, if one strikes another on the jaw with his 

fist, and the one struck falls to the ground striking his 

head upon the curbing, and death ensues, the offense is 

deliberate homicide. 

This case perfectly illustrates the evil inherent in 

result-oriented decision making. Defendant Sigler's 

conduct may well have resulted in the death of an infant 

child. If believed, the State's case leaves little room 

for sympathy for Sigler. These inflammatory factual 

settings provide the genesis for irrational and 

unworkable legal principles. 

Based on the facts in this case, correct instructions 

regarding the required mental state may not have changed the 

outcome. However, this Court's willingness to freely amend the law 

in order to accomplish a desired result will have potentially 

dangerous consequences in the future. While this may be a popular 

approach, I decline to participate. 

For these reasons, I dissent to Issues 2 and 7 of the majority 

opinion. 

Justice William E. Hunt, Sr., joins in the foregoing concurrence 

and dissent. 
October 6, 1993 

CERTIFICATE OF SERVICE 

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

following named: 

Alexander "Zander" Blewett 

HOYT & BLEWETT 

501 2nd Ave. 

Great Falls, MT 59403 

WENDY HOLTON 

Attorney at Law 

1219 11th Ave. 

Helena, MT 59601 

HON. MARC RACICOT, Attorney General 

Barbara Harris, Assistant 

Justice Bldg. 

Helena, MT 59620 

Mike Salvagni, County Attorney 

Gallatin County Attorney's Office 

615 South 16th Avenue, Rm 100 

Bozeman, MT 59715 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTQA