No. 13855 INTHE SUPREME COURT OF THE STATE OFBONTANA 1977

STATE ex rel. JOHN G. WINSTON, CountyAttorney,Plaintiff and Appellant,

THE DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT OF THE STATE OF MONTANA, INAND FOR THE COUNTY OF BUTTE-SILVER BOW, AND THE HONORABLE JAMES D. FREEBOURN, PRESIDING JUDGE, Respondent.

ORIGINAL PROCEEDING: Counsel of Record: For Appellant: Hon. Mike Greely, Attorney General, Helena,

Montana John G. Winston, CountyAttorney, Butte, Montana CraigPhillipsargued, Deputy CountyAttorney,

Butte, Montana For Respondent: Henningsen, Purcell and Genzberger, Butte, Montana RexF. Henningsen argued and John Jardine argued,

Butte, Montana

Submitted: June 22, 1977 Decided: 

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Filed: 

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ClerkNo. 13844 INTHE SUPREME COURT OF THE STATE OF MONTANA 1977

STATE OF MONTANA, ex rel. THEODORE NELSON, Relator,-vsTHE DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT OF THE STATE OF MONTANA, INAND FOR THE COUNTY OF SILVERBOW, AND THE HON. JAMES D. FREEBOURN, PRESIDING JUDGE, Respondent.

ORIGINAL PROCEEDING: Counselof Record: For Relator: Henningsen, Purcell & Genzberger, Butte, Montana RexF. Henningsen argued and John Jardine argued,

Butte, Montana For Respondent: Hon. Mike Greely, AttorneyGeneral, Helena, Montana John G. Winston, CountyAttorney, Butte, Montana CraigPhillips argued, Deputy CountyAttorney,

Butte, Montana

Filed: Submitted: June 22, 1977 Decided: 

## Jf#28Mr. JusticeJohn Conway Harrison delivered the Opinion of the Court.

Defendant Theodore Nelson, charged with the crime of deliberatehomicide, and the stateof Montana, by John G. Winston, County Attorney, SilverBow County, petition for separatewrits of supervisory control. Because petitioners areadversaries in the same criminal proceeding, the issues raised by these petitions

were combined for argument before thisCourt and both willbe decided pursuant tothisopinion. On January 4, 1977 an Information was filed inthe districtcourt, Silver Bow County, charging defendantwith deliberate homicide under section 94-5-102(1)(a), R.C.M. 1947. Defendant plead not guilty and filed a timely notice of intent torely on the affirmative defense of mental disease or defect. He was admitted tobail after examination by William N. Alexander, M.D., whom defendant had hired toconduct such examination. On January 17, 1977, pursuant tostipulation of counsel, thedistrict court ordered defendant be admitted toWarm Springs StateHospital for psychiatric examination and evaluation inaccordance with section95-505, R.C.M. 1947. Defendant was examined againby Dr. Alexander inhis capacity asClinicalDirector and Chief of Forensic Medicine attheMontana StateHospital atWarm Springs. Dr. Alexander submitted his report tothe court onApril 6, 1977. The report stated, inpertinent part: "Patient is aware of the nature of the charges againsthim and is able toassist his lawyer in hisown defense. He is also able toappreciate the criminality of the charges. Atthe timeof the incidentwhich led tothepresent charges it is feltthat the patient was unable toconduct himself according tothe requirements of the law because he had reached the climax of a severe adjustment reactionwhich had temporarily assumed psychotic proportions. Atthatpoint he was unable tohave a particular stateof mind which is an element of the offense charged.* 

## * *"Upon receipt of this report defendant filed a motion for acquittal by reason ofmental disease or defect, and a hearing

was held. At the hearing Dr. Alexander testified in his opinion defendantwas unable to appreciate the criminality of his conduct

or to conform his conduct to the requirements of law at the time of the killing. The state called no rebuttal witnesses,but cross-examinedDr. Alexander extensively regarding the factual basis for his diagnosis and the subjective nature of a psychological examination. Dr. Alexander stated his diagnosis was based upon the facts surrounding the incident as related to him by defendant,and while he thought defendantwas telling the truth, his diagnosis could change if the facts were not as defendant claimed them to be. He also stated it was possible, though unlikely, that his opinionwould be disputed by his colleagues. The district court found: "That the question of whether defendant was aware or unaware of his actions or whether he was able or unable to have a particular state of mind at the designatedmoment isdisputable". The court denied themotion for acquittal. Did the district court err indenying defendant's motion for acquittal? Defendant argues that under section 95-503(a), R.C.M. 1947,he need only provemental disease or defect excluding responsibilityby a preponderance of the evidence, and the only evidence before the court, the testimony of Dr. Alexander, clearly establishes this proof. The structure for the procedure in question is set out in section 95-507(1), R.C.M. 1947: "Ifthe report filed under section 95-505 finds that the defendant at the time of the criminal conduct charged suffered 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, and the court, after a hearing if a hearing is requested by the attorney prosecuting or the defendant, is satisfied that the mental disease

### or defect was sufficient to exclude responsibility, the court onmotion of the defendant shall enter judgment of acquittal on the ground of mental disease or defect excluding responsibility." This Court has previously discussed the purpose of section 95-507(1). In State ex rel. Krutzfeldt v. DistrictCourt, 163Mont. 164, 170, 515 P.2d 1312, the Court noted: 

## "** * the Revised Commission Comment to section 95- 507,R.C.M. 1947, in regard to subdivision (a), states in part: "'Under subdivision (a)in cases of extreme mental disease or defectwhere the exclusion of responsibility is clear, trial canbe avoided and the defendant immediately committed as irresponsible.' "That commentmakes it clear that if, in the judge's opinion and after a hearing if requested by either attorney, a defendantwas clearly suffering frommental disease at the time of the crime then the judge can acquit the defendant and have him committed to a state institution forthwith. The purpose is plain--to avoid a costly trialwhere the mental defect is plain and obvious.* 

## * *" At this stage of the process,

### the^ the question is not one of the preponderance of the evidence, but whether the exclusion of criminal responsibilitydue tomental disease or defect is "plain and obvious". If it is not plain and obvious, a trial should be conducted and the trier of fact can determine the preponderance of the evidence. The summary procedure outlined by section 95-507

was never designed to replace the trial where the issue of criminal responsibility is disputable. InKrutzfeldt thisCourt held this procedure does not preclude a defendant from raising the defense of mental disease or defect at trial. Such a holding would be unnecessary if the standard of proof at the hearing was equivalent to the standard at trial. Defendant argues he is entitled to acquittal as a matter of lawunder the authority of State ex rel. Main v. District Court, 164Mont. 501, 525 P.2d 28. Main isdeceptively similar to the instant case,but there are criticaldifferences. In Main,relator filed a motion to dismiss on the grounds ofmental disease

or defect and a hearing was held under section 95-507,R.C.M. 1947. Dr. M. F. Gracia testified relator was not responsible at the time of the criminal conduct charged. The only doubt was cast by another psychiatrist, Dr. Moisey, who testified that, in his opinion, relatorwas not somentally disturbed he did not knowwhat he was doing. However, he admitted he was unable to determine relator's state of mind at the time of the incident,and this Court held Dr. Moisey's testimonywas thereby rendered incompetent and thus raised no factual issue. Therewas no doubt cast upon the testimony of Dr. Gracia, except for the incompetent testimony of Dr. Moisey, so relatorwas entitled to an acquittal as a matter of law. We noted the persuasive basis for Dr. Gracia's opinion in Main:

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## * Dr. Gracia based his opinion on (1)an examination of relator severalweeks after the alleged crime; (2)upon extensive psychological testing and medical examination including observation by staff personnel every day for several years; (3)upon the study of relator's socialhistory and history of mental illness dating back to 1962;and (4)the doctor's personal contactwith relator beginning in 1966." 164Mont. 509 In the instant case, by contrast,Dr. Alexander based his opinion on his examination of defendant which lasted six to

sevenhours in total. While we do not doubt this is adequate for a complete and thorough psychiatric examination, it is a fact Dr. Alexander's findingswere largely based on the facts of the occurrence as related to him by defendant. The alleged temporary insanitywas admittedly of short duration, and Dr. Alexander testified his diagnosis could change if the factswere not in accord with defendant'sversion of the incident. For example, this colloquy occurred between the county attorney and Dr. Alexander on cross-examination:"Q. 

### But the question is anyway, the question: Your opinionwould change if you knewhe had a loaded gun before he got there? A. Yes, sir. "Q. 

### And he's the only one that told you that. You don't know the facts of that doyou? A. I do not." We did not hold inMain, and do not intend to hold, that the district judge is absolutelybound by the opinion of an expert testifying on the ultimate issue of mental disease or defect. We do not believe the statute intended to make the examining psychiatrist into the trier of fact. While State

### v. Taylor, 158Mont. 323, 335, 491 P.2d 877,dealtwith the release of a defendant from commitment after his sanity was allegedly restored, the reasoning therewith regard to the opinion testimony of experts is applicable: "While the determination of defendant's mental condition and his expected behavior, if released, must be on the basis of expert testimony, the trial court could weigh such opinion evidence but he is not bound by it. He 

### could reject it if, in his judgment, the reasons given for the testimoney were unsound." 158Mont. 335 In the instant case,while the opinion of Dr. Alexander is uncontradicted by any other testimony, thedistrict judge could properly have found his opinion was based upon determinations of factwhich were for a jury to determine. Therefore, the existence of mental defect at the time of the incidentwas not so "plain and obvious" as to require an acquittal at this stage of the proceeding. Accordingly,the district court's denial of defendant's motion for acquittal is affirmed. The state in its application for a writ of supervisory control alleges that the trial court abused its discretionby its denial of the state'smotions for: (1)The examination of defendant by another psychiatrist; (2) 

### the listing of additionalwitnesses

on the Information;and (3) 

### a continuance until July 15, 1977,due to the unavailability of keywitnesses. The continuance issuewould appear to be moot at this time and will not be discussed. Defendant argues the issues raised by the state do not fall within section 95-2403,R.C.M. 1947,governing the scope of appeal by the state in a criminal case. An application for a writ of supervisory control before this Court is an originalproceeding and not an appeal. Jurisdiction is not denied by the fact the relator has no right to an appeal. Defendant's jurisdictional argument iswithout merit. The state seeks an examination of defendant by another qualified psychiatrist under the authority of section 95-507(2), R.C.M. 1947: "Wheneither the defendant or the state wishes the defendant to be examined by a qualified psychiatrist or other expert, selected by the one proposing the examination, the examiner shallbe permitted to have reasonable access to the defendant for the purpose of the examination." This is expanded upon by the Revised CommissionComment to the original section 95-507: "Subdivision (b) [nowsubdivision (2) ] allows both the prosecution and defense access to the defendant for purposes of psychiatric examinations. The sheriff or warden must make the defendant accessible for such examinations. The number of times the defendantmust be made accessible for such examinations will rest in the discretion of the court." Despite the fact this statute expressly gives the prosecution or the defense the right to an examination of defendant, defense counsel argue the title of section 95-507 restricts the benefit of the statute to defendant. The title is: "Determinationof irresponsibilityon basis of report 

### -- access to defendant by psychiatrist of his own choice

## -- form of expert testimony when the issue of responsibility is tried." Defendant's imaginative argument is that allowing a psychiatrist

## of the state's choice to have access to defendantwould violateArt. V, section 11(3), 1972 Montana Constitution, which states:"Eachbill, except general appropriation bills and bills for the codification and general revision of the laws, shall contain only one subject, clearly expressed in its title. If any subject is embraced in any act and is not expressed in the title, only somuch of the act not so expressed is void." This provision obviously refers to acts or bills, but does not refer to sectionswithin each act. The title of the act creating section 95-507 is contained in the Laws of 1967,Chap. 196,and states: "AnAct Creating a Montana Code of Criminal Procedure to Codify and Generally Revise the Statutes Which Govern Court Procedures in CriminalMatters." Section 95-507was amended by the Laws of 1974,Chap. 120, entitled: "ANACT FOR THE CODIFICATIONAND GENERAL REVISION OF THE LAWS RELATING TO THE DEPARTMENT OF INSTITUTIONS." Patently these acts were codifications and general revisions and possessed adequate titles. The constitutional provision requiring acts to have complete titles has never been applied to the sectionswithin each act, and defendant has cited no authority. Alternatively, defendant argues section 95-507(2) allows not a substantive psychiatric examination but merely an inquiry into the procedure and credibility of the psychiatrist who reported under section 95-505. The plain language of section 95-507(2) and the Revised Commission Comment however, refer to a psychiatric examination of the defendant. The purpose of subsection (2) becomes clear in subsection (3) of section 95-507,which states in pertinent part: 

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## * both the prosecution and the defensemay summon any other qualified psychiatrist [other than the reporting psychiatrist who was appointed under section 95-5051 or other expert to testify,but no one who has not examined the defendant is competent to testify to an expert opinionwith respect to the mental condition or responsibility of the defendant, as distinguished from the validity of the procedure followed by, or the general scientific propositions stated by another witness." Clearly, any psychiatrist or other expertmay testify regarding defendant'smental condition or responsibilityprovided thepsychiatrist has examined the defendant. Subsection (2)allows for such an examinationby either the prosecution or the defense. The remaining question iswhether the trial court abused its discretion in refusing to allow an examination of defendantby

a psychiatrist other than Dr. Alexander, since the number of additional examinations allowed under section 95-507 iswithin the discretion of the trial court. Revised Commission Comment, section 95-507,R.C.M. 1947. There are two main considerations: 1. Prior to examining defendant pursuant to stipulation of counsel,Dr. Alexander was hired by defendant to examine him for purposes of bail. This at least raises a conflict of interest. 2. The district court found Dr. Alexander's conclusions to be "disputable". If the conclusions of the only expert who has examined defendant are found to be disputable, itwould appear to be sensible to allow at least one other psychiatrist to examine and either confirm or dispute the findings of the initial expert. In light of these circumstances,we hold the district court abused its discretion in refusing to allow access to the defendant by a psychiatrist, in addition to Dr. Alexander. The state also seeks reversal of the denial by the district court of the state'smotion,made six days before the trialwas to commence, to add to the Information the names of approximately twenty witnesses. The state alleges thesewitnesses were discovered after the original Informationwas filed and are necessary to prove the state's case in light of defendant's affirmative defense ofmental disease or defect. Section 95-1503(d), R.C.M. 1947 states: "If the charge isby information or indictment, it shall include endorsed thereon, the names of the witnesses for the state, if known." Also applicable is section 95-1803(a)(1)(2),R.C.M. 1947: "Inall criminal cases originally triable in district court the following rules shall apply:

### " (a) List of Witnesses: "(1) For the purpose of notice only and to prevent surprise, the prosecution shall furnish to the defendant and filewith the clerk of the court at the time of arraignment, a list of witnesses intended to be called by the prosecution. The prosecutionmay, any time after arraignment, add to the list the names of any additionalwitnesses, upon a showing of good cause. The list shall include the names and addresses of the witnesses. 

### " (2) The requirement of subsection 

### (a)(1)

### ,of this section, shall not apply to rebuttalwitnesses." The proper procedure to be followed when the statemoves to list additional witnesses is set out in Statev. Klein, Mont

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"Thecourt should first determine whether the need for the additional witnesses and the reason for their not being disclosed earlier is a 'substantial reason'. It should then determine whether there isprejudice based on surprise and whether this surprise can be overcome by the granting of a continuance. If the surprise element can be overcome by a continuance, then the witnesses should be endorsed and the continuance granted. The spirit and intent of the law is that the names and addresses of potential witnesses should be disclosed as soon as they are known.

### " Here, the state claims and the defense does not deny the witnesses are material to the question of defendant's responsibility and they were unknown to the state at the time the Informationwas filed. The defense claimsprejudice in that on the one hand, it would have no time to prepare for trial if the witnesses were added, and on the other hand, if a continuancewere granted, defendant would be prejudiced by an unnecessary delay. Defendant cannot have it both ways. If good cause to list the additionalwitnesses is shown, as here, and if any prejudice caused by defendant's surprise can be overcome by the granting of a continuance,the additional witnesses should be listed. The district court's denial of the state's motion to list additionalwitnesses is reversed. Finally, the state asks this Court, to rule on an issue collateral to those in its petition for a writ 

### of supervisorycontrol for the reason that the issuemight arise at trial, if the statewas denied a psychiatric examination of defendant. This issue is not properly before the Court and the state's motion is denied. In summary, the district court's denial of defendant's motion for acquittal is affirmed. The district court's denial of the state's motions for a psychiatric examination and to list additional witnesses on the Information is reversed. The cause is remanded to the district court with instructions to allow for a psychiatric examination of defendant and to allow the listing of the additional witnesses on the Information pursuant to the state's motion. 

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Justices