No. 81-316 INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

THE STATE OF MONTANA, Plaintiff and Respondent,

LEONARD DAVE PEAVLER, Defendant and Appellant.

Appeal from: DistrictCourt of theEighthJudicialDistrict, Inand for theCounty of Cascade Hon. H. William Coder, Judge presiding. Counsel of Record: For Appellant: Mark Bauer, PublicDefender, Great Falls, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana J. Fred Bourdeau, County Attorney, Great Falls, Montana

-- - Submitted on briefs: September 25, 1981 Decided: Filed: 

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C PY ClerkMr. Justice John Conway Harrison delivered the Opinion of tneCourt. This is an appeal from a conviction of burglary committed inCascadeCounty. The appellantwas triedby ajury and sentenced tofiveyears asanondangerous offender. The soleissue

### iswhether theDistrictCourt erred in excluding expert testimony on whether appellant's alleged intoxicated condition deprived him of his capacity to appreciate the criminalityof hisconduct or toconform his conduct totherequirements of the law. Appellant has a long history of problems with alcohol. He has held numerous jobs until payday and then been fired because of alcohol-related problems. On April 18, 1980, appellant was at his home in Helena, Montana, drinking with three friends. Hiswife, who was present but not drinking, testified that the four friends consumed nearly a case of beer and were "pretty smashed" when appellantleftforGreatFallsinmid-afternoon. That evening at approximately 10:OO p.m. a silent burglary alarm went off at Spencer's Store in the Holiday Village shopping mall and two police officers in the area
were dispatched to investigate. Upon arrival they found that the bottom half of a splitdoor leading intothe store from the mall was unlocked but closed. The officers proceeded into the store and past a storage area. Subsequently, an individual bolted from the storage area, out the door, and into the mall. The officers chased and finally subdued the individual. The store owner and his son arrived shortly thereafter. The police and owner checked the store, found
no one else, and thepolice left. As theowner and his sonchecked to see what was missing, they found a money bag, customarily used the open the store, was missing some $50. As they were leaving, the owner noticed the hands of the appellant extending out from under a bench in the storage

area. The owner left the storage area and called the police. The police entered the store again and called upon the appellant to come out of hiding. Appellant came out peacefully and smoking a cigarette. Later, some of the missing money was found in the storage room where the appellanthad hidden. Spencer and thetwo arrestingofficerstestified that the appellant emerged from the storevery relaxed, hiseyes
were normal, and there were no signs of intoxication, although the officers noted a faint odor of alcohol on his breath.Appellant's defensewas, first, thathewas a chronic alcoholic, could not controlhisdrinking, and was therefore involuntarily intoxicated at the time of the offense. Second, because of this involuntarily-produced intoxication, hewas completelydeprived of hiscapacity toappreciate the criminality of hisconduct or to conform his actions tothe requirements of the law. Aspart of the defense, appellant had intended to ask a psychiatrist, Dr. Davis, and a psychologist, Dr. Bateen, the followingquestion: "Doctor, assuming that Dave Peavler was intoxicated on April 18, 1980, and, as you know, was found inSpencerIsStoreinHoliday Village in Great Falls, do you have an opinion on reasonable medical/psychologica1 certaintyastowhether or not Dave Peavler's intoxicated condition deprived him of his capacitytoappreciate thecriminalityof his conduct or to conform his conduct to the requirements of law?" Appellant contends that his defense was completely

### destroyed when the court granted the State's motion limiting the testimony of the psychologist and the psychiatrist. The prosecution claims inability to appreciate the criminality of one's conduct or to conform one's conduct to the requirements of the law has not been recognized as a defense in Montana since 1979. The trial court agreed, and excluded that portion, but only that portion, of the psychologist's and psychiatrist's expert testimony. The appellant argued that section 45-2-203, MCA, allows the testimony. Section 45-2-203,MCA,provides: "Res~onsibility



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## --- -- intoxicated or drugqed condition. A personwho is in an intoxicated or drugged condition is criminally responsible for conduct unless such condition is involuntarily produced and depr ives him of his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. An intoxicated or drugged condition may be taken into consideration in determining the existence of a mental state which is an element of the offense

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### In 1979, the legislature extensively amended the sections involved with the defense of mental disease or defect. House Bill 877 removed these two defenses from sections 46-14-213(2) and 46-14-301, MCA; but, in their efforts they failed for some reason to remove these defenses from the provisions of section 45-2-203, MCA. It is appellant's position that section 45-2-203, MCA, not having been changed in any way by the bill, entitleshim to rely on
same for his defense. We find the case of State v. Ostwald (1979), 180 Mont. 530, 591P.2d 646, 36 St.Rep. 442,controlling in this matter. Therewe held: 

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. . We hold that where, as here, the

### defense of intoxication shifts to a defense based on expert testimony as to the long term effects of alcoholism, then it becomes a defense of mental disease or defect within the purview of the statutes requiring notice



# ..." 591 P.2d at 650. While in this case notice was given in the defense, and the narrow question of Ostwald was whether the defendant's expert testimony could be presented in absence of prior notice, the clear holding of that case is much broader. Under Ostwald, once expert testimony is submitted
on intoxication, the defense comes within section 46-14-101 et seq., MCA, for all purposes. Ostwald holds that the proffer of expert testimony comes within section 46-14-213, MCA, which specifically limits the testimony that an expert may give. That testimony includes, "his opinions as to the ability of the defendant to have a particular state of mind which is an element of the offense charged." It does not include opinions on the ability to appreciate the criminality or to conform conduct to the requirements of the law. The District Court properly held that after the amendments of 1979, the legislature has done away with those two indicia of criminal reponsibility. The judgmentof the District Court is affirmed.We 

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ustices

Mr. Ji~stice Daniel J. Sheawillfilea concurring opinion.