No. 93-325 INTHE SUPREME COURT OF THE STATE OF MONTANA 1984

STATE OF MONTANA, Plaintiff and Respondent,

RODNEY EUGENE WATSON,Defendant and Appellant.

APPEAL FROM: DistrictCourt of theFourthJudicial District, Inand for the County of Jlissoula, The Honorable JamesB. Wheelis, Judge presiding.

COUNSEL OF RECORD: For Appellant: James Park Taylor & John E. Riddiough argued, Public Defenders, Missoula, llontana

For Respondent: Hon. Mike Greely, Attorney General, Iielena, Montana Kimberly Kradolpher argued, Asst. Atty. General, Helena, Montana Robert L. Deschamps, 111, County Attorney, Missoula, Montana: Robert Sullivan argued, Deputy County Attorney, Missoula, Montana

Submitted: March 15, 1984 Decided: August 3, 1984

Filed: 

### 4145 3

# - 1984Mr. JusticeFred J. Weber delivered the Opinion of the Court. Defendant was convicted by a jury of attempted deliberate homicide, aggravated assault and burglary. The court designated him a dangerous offender and a persistent felony offender. He was sentenced to 100years imprisonment

on each count without possibility of parole or furlough. Defendantraises two issues on appeal: (1) Did the trial court err in instructing the jury on the lawofmental disease and defect? (2) Was it cruel and unusual punishment to sentence the defendant to 300 years imprisonment without possibility of parole or furlough after finding that the defendant suffers froma seriousmental disorder? We affirm the convictionand the sentencingorder. These facts are undisputed. Defendant began drinking beer and smoking marijuana during the afternoon ofOctober 2, 1982. Later that evening, he entered a Missoula apartment, stole some pocket change and a hunting knife,and leftwhen the occupant awakened. He then entered another apartment, took apurse, and left. He returned to the second apartment, entered abedroom, and stabbed a sleepingwomen 35 times with the stolenknife. when aman entered the room,the defendant stabbedhim in the leg and fled. Andrew Floberg's leg had a four-inch puncture wound, which developed a large blood clot. Although 33 of Melissa Smith's 35 stab wounds were superficial, it took approximately four hours for an emergency room surgeon to suture them. The combination of substantialblood lossand a collapsed lung made her injuries life threatening, but she survived. Defendant was arrested wearing a jacket stained withMelissa Smith'sblood.After receiving Miranda warnings and signing an acknowledgement of advice of rights, the defendant gave a recorded statement to the police. His confession included unpublicized details of the crime and an admission that he entered Melissa Smith's apartment twice 

## - first taking her purse, then returning with intent to have sexual intercourse with her. According to his statement,he stabbed Ms. Smith to subdue her resistance. Defendant's taped confession was admitted into evidence at trial. It contained no mention of any demon spirit. Defendant was charged by information with attempted deliberate homicide, aggravated assault and burglary. He pleaded not guilty and noticed his intent to rely on mental disease or defect. Upon requests from prosecution and defense counsel, the court ordered five psychiatric/psychological examinationsof the defendantprior to trial. Defendantwas found fit toproceed. Trial by jury began February 2, 1983. Both the State and the defense presented lay and expert witnesses, who testified regarding defendant's mental condition. Defense witnesses testified regarding the defendant's past involvement in Satanic worship and defendant's belief that the demon spirit Asmodeus was in possession of his body on the nighthe stabbed Melissa Smith andAndrew Floberg. The judge instructed the jury on the elementsof each of the crimes charged, burdens of proof, reasonable doubt and mental disease ordefect. The jurywas given specialverdict forms, allowing them to find the defendant guilty,not guilty by reason of mental disease or defect, or not guilty. On February 10, 1983, the jury returned unanimous verdicts of guilty on each count.Prior to the sentencing hearing, the court received recommendations in a pre-sentence investigation report and evaluationsby one psychiatrist, four clinical psychologists and a medical doctor. The sentencing court found that the defenda-ntsuffers from a serious mental disorder, but that the defendant was able to appreciate the criminality of his conduct and able to conform his conduct to the requirements of the law. Based upon the court's designation of defendant as a persistent felony offender, the defendant was sentenced to 100 years imprisonment for each of the three felonyoffenses, sentences to run consecutively. These sentences are within the statutory maximum terms. See section 46-18-502(2) & (4), MCA

# .Based upon the court's designation of d-efendantas a dangerous offender and for the protection of society, the court specified that the defendant shall be ineligible for parole or participation in the supervised release program. This restriction on defendant's sentence is authorized by section 46-18-202(2)

### ,MCA. In the sentencing order, the court transferred custody of the defendant to Montana State Prison and requested that the Warden transfer the defendant to Warm Springs State Hospital or any other facility deemed appropriate by the Warden. After a suicide attempt in May 1983,defendant was in fact transferred fromMontana State Prison to Warm Springs State Hospital. The record contains a letter from a psychiatrist and a psychologist at theWarm Springs State Hospital Forensic Unit indicating that the defendant petitioned for return to Montana State Prison from the Hospital on June 15, 1983. TheForensic Unit doctors agreed to his request based upon the following factors: "1) The patient stated he can 'make it' in the prison as long as he is given residence in the maximum security area. Says things are on a smaller scale there and he can handle that. "2) He claimedhe would notput upwith the larger group settinq in the prison and would use suicide to escape that situation. It is our opinion this choice is based on his preferential reasoning, and value judgment, and his view of the Bible. It is notbased onpsychotic delusions or the commandsof voices or hallucinations. Thus, upon return to MSP, we recommend this individual remain in the maximum securityarea for a long time.

"3) In short, this individual's problem behaviors and his threat to harm himself is not based on mental illness, and does not require hospitalization at this time." Defendant remains atWarm Springs State Hospital pending this appeal.

The insanity defense to criminal responsibility evolved from the concept that punishing those who are blameless for their actions is morally unacceptable and does nothing to

serve the basic objectives of criminal law, i.e. rehabilitation and deterrence. "Our collective conscience does not allow punishment where it cannot impose blame." Holloway v. United States (D.C.Cir. 19451, 148 F.2d 665,

The English Crown firstemployed the insanitydefense as

a tool ofpardon in the 13th Century. Pardons were replaced by the concept of the "King's Grace," which was granted to mitigate punishment, not guilt. By the 16thCentury,a legalrationale developed that absolved certain offenders from criminal responsibility based on a lack ofmoral capacity. "The insane were perceived as infants or 'beasts' in their moral and cognitive abilities. Deprived ofunderstandingand memory, such a man could not know what he was doing, norcould be the object ofpunishment." N. Fink & N. Larene, In 

### - Defense of the Insanity Defense, 62 Mich. B.J. 199 (March 

### -- 1983). The test for criminal responsibil-itywas whether the accused "doesnot know what he is doing,nomore than

# . .. a wild beast." Rex v. Arnold (1724),16 How.St.Tr. 695, 764. "Later, English courts began to focus on whether the accused could distinguish between right and wrong. They also began to hearmedical testimony. The landmark 

### -- M'Naghten casemade both these trends a standard part of English and American law." Washington v. United States (D.C.Cir. 1967), 390 F.2d 444, 445. DanielM'Naghten held the delusionary belief that there

was awidespread Tory plot aimed at his ultimate destruction. In "self-defense," M'Naghten attempted to assassinate the Tory leader,British PrimeMinister SirRobert Peel,but shot and mistakenly killed the Minister's secretary,who happened to be riding in the Minister's carriage at the time. During

a lengthy trial, it was established thatM'Naghten's actions

were based upon delusionary, irrational beliefs and that he suffered from what today might be termed paranoia schizophrenia. The jury returned a verdict of not guilty by

rea.sonof insanity. Under M'Naghten, the test for insanity was whether the accused was laboring under such a defective reason from a disease of themind, asnot to knowthe natureand quality of what he was doing or, ifhe did know it,thathe did not know he was doing what was wrong. Daniel MINaghten's Case

(1843), 10 C.&F. 200, 8 Eng.Rep. 718. he Ml~aghten~ule relieves a person from criminal responsibility if he was "laboring under sucha defectivereason." Throughoutmuch of the 20th Century, the M'Naghten Rule continued to be the dominant test for establishing an insanity defense. A combination of the M'Naghten rule and the irresistible impulse rule was followed in Montana until1367, when a. modified version of the Model Penal Code was enacted. See Statev. Noble (1963), 142Mont. 284, 384 ~.2d 504; Statev. Peel (1899),23 Mont. 358, 59 P. 169. Sixteen states continue to use theMINaghtenstandard of insanity. I. Keilitz & J. Fulton, The Insanity Defense and Its Alternatives at 22 (National Center for State Courts 1983). Several jurisdictions excuse criminal responsibility for conduct that resulted from an "irresistible impulse" or a person's inability to control his actions. Colorado, Georgia, New Mexico a.nd Virginia use combinations of the MINaghtenand irresistible impulse standards. The American Law Institute insanity standard is used in twenty-five state jurisdictions and most of the federal courts. I. Keilitz & J. Fulton,The Insanity Defense -- and Its Alternatives at 22 (NationalCenter for State Courts 1983). The ALI test provides that a "person is not responsible for criminal cond-uctif at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of law." American Law Institute, Model Penal Code, Proposed Official Draft S4.01, at 74 (1962). Today this formula is the pred-ominate standard among the state courts, although most of the states that use it have modified it to some extent. See I. Keilitz & J. Fulton, The Insanity Defense

## - and Its Alternatives at 22, note b (National Center for State Courts 1983).

In 1967 Montana adopted a modified version of the ALI standard: 

### "(a) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he is unable either toappreciate the criminality of his conduct or to conform his conduct to the requirements of law. 

### "(b) As used in this chapter, the term 'mental disease or defect' does nct include an abnormality manifested only by re-repeated criminal or otherwise antisocial conduct." Section 95-501, R.C.M. 1947. (enacted by Sec. 1, Ch. 196, L. 1967). A person was excused from criminal responsibility if he was unable to appreciate the criminality ofhis conduct or to conformhis conduct to the requirementsof the law. Thiswas

a stricter standard than theALI model provision. Under the ALI standard, he was excused if he lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. In addition, subsection (b) of 95-501, R.C.M. 1947 excluded from mental disease or defect any abnormality manifested only by repeated criminalor other antisocialconduct. In 1979 theMontana Legislaturerepealed subsection (a), leaving subsection (b) in effect. This was termed an abolition of the insanity defense. In a similar manner in 1982, the Idaho Legislature abolished the insanity defense. See Idaho Code S18-207 (1982). In these two states, other procedures have been substituted for the independent, affirmative defense of insanity. See Bender, After Abolition: The Present State 

### -- of the Insanity Defense - in Montana, 45 Mont. L. Rev. 133 (1984); sections 46-14-311 & -312,MCA; Idaho Code S19-2523 (1982). Current Montana law, Title 46, Chapter 14, Part 1, states: Relevance ofMental Disease or Defect "46-14-101. Mental disease or defect. As used in this chapter, the term 'mentT1disease or defect' does not include an abnormality manifested only by repeated criminal or other antisocial conduct. "46-14-102. Evidence of mental disease or defect admissible to prove state of mind. ~videncethat - 

### --the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did or did not have a state of mind which is an element of the offense. "46-14- fitness mental 103. Mental disease or defect excludin toproceed. No personxho, asa result oz

.

### - disease or defect, is unable tounderstand theproceedings againsthim ortoassist inhisown defense shallbe tried, convicted, or sentenced for the commission of an offense so long as such incapacityendures." In Montana, atthis time, evidence of a mental disease

or defect is admissible prior to trial to prove that the defendant is unfit to proceed. During trial, evidence of a mental disease or defect is admissible to prove that a defendant lacked a particular state of mind which is an element of the crime. The former concept of inability to appreciate the criminality or to conform conduct to the requirements of law is now contained only inthe sentencing statute. "46-14-311. Consideration of mental disease or defect in sentencina. whenever a defendant 

### is convicteron a verdict or a plea of guilty and he claims that atthe time of the commission of the offense of which he was convicted he was suffering from a mental disease ordefectwhich rendered him unable toappreciate thecriminalityof hisconduct or to conform his conduct to the requirements of law, the sentencing court shall consider any relevant evidence presented atthe trialand shall require such additional evidence as it considers necessary for the determination of the issue, includingexamination of the defendant and a report thereof as provided in 46-14-202 and 46-14-203." For the firsttime since 1967, this Court is faced with the need for defining mental disease or defect without the repealed language of former section 95-501, R.C.M. 1947. In addition, we must d-etermine the proper application of the alternative sentencing statuteina casewhere the sentencing judge has concluded that the defendant does suffer from a serious mental disorder, but that his mental condition did not render him unable to appreciate the criminality of his 

### -conduct or unable to conform his conduct to the requirements of the law.

Did the court err in instructing the jury on the law of mental disease ordefect? Defendant contends that section 46-14-101, MCA creates a conclusive presumption, the effect of which was to tell the jury that they should accept as true,without proof, that a mental disease or defect is not an abnormality manifested only by repeated criminal or antisocialbehavior. Defendant contends that if the jury found that he had amental disease manifested onlyby antisocialor criminal behavior, then they

were instructed to find thathe did not suffer from amental disease. Defendant argues that because his mental disease

was manifested primarily by repeated criminal or antisocial behavior, the jury was misled to presume that he had the state of mind required as an element of each offense. He contends that section 46-14-101, MCA creates an unconstitutional, mandatory presumption as to defendant's mental stateor intent. We disagree. The jury was instructed on the presumption of innocence and the State's burden of proving each and every element beyond a reasonable doubt. In addition, the jury was specifically instructed regarding mental disease or defect and criminal intent: "You must decide 1. whether the defendant had a mental disease or defect at the time of the acts alleged in the Information before you, and 2. whether, if he had a mental disease or defect, it prevented him from having any of the statesofmind required as a.nelement of the offense charged, in this case,purpose orknowledge. "You are to determine the meaning of the phrase 'mentaldisease or defect,'and in sodoingyoumay apply the common meanings of these words in your

-- - - experience in life, and you may be guided by the testimonyyou find credibleand relevant. However,the term 'mental disease or defect' does not include an abnormality manifested only repeated criminalor antisocial conduct." Jurv Instruction 20 (emphazsadded to the part to which defendant

- objects)

# . Defendant

### 's expert witness, Dr. John G. Watkins

### , a clinical psychologist,testified as follows: "Q. Do you have an opinion as to whether the mental disease fromwhich he suffershasmanifested itselfonly throughantisocial or criminal conduct? "A. Well, the experiences in prison, the experience, for example, of seeing pig's head on the teacher or of seeing demons, hallucinations, that would not be antisocialbeha.vior. Itdid not manifest itself in the stabbing. "Q. We've also had testimony

# . . . that in prison Rodney would at times cut his fingers and smear blood on his face. Is that antisocial behavior? "A. Well, it's masochistic behavior. It's psychotic like behavior. It's not considered social behavior tomutilate oneself

# ..

# ." In addition to the extensive expert testimony onmental disease, the jury also heard testimony from defendant's brother and former cellmates thatdefendant refused to bathe; he slept fully clothed, on top of the bed covers, with the lights on so that evil spirits would not talk to him; that defendant sat within a pattern drawn on the floor of his prison cell in order to be protected from evil spirits; that he had a practice of cuttinghis fingers, smearing blood on his face, looking in the mirror and laughing; thathe prayed and talked out loud to himself, waving hishands. The definition of "antisociaJ-conduct" is not an issue in this case. We shall not attempt to define that term, as
now used in section 46-14-101, MCA. The evidence outlined above, including expert testimony regarding masochistic behavior, establishes that this is not a case where the mental diseasewas manifested only by criminal or antisocial conduct.Defendant's proposed jury instruction paraphrased the first part of the jury instruction that was given. The second paragraph of the proposed instruction defined mental disease ordefect as follows: "As used in this instruction, the terms mental disease or defect do not include an abnormality manifested onlyby repeated criminal or anti-social conduct. However, if you find there is other evidence that the defendanthad amental disease or defect,youmay considerrepeated criminalor other anti-social conduct as a manifestation of amental disease or defect." We find this to be a correct statementof the law. However,

we do not agreewith the defendant that the instruction given by the district court creates a Sandstrom-likepresumption. Here, there is substantial evidence of mental disease which was not manifested only by criminal or antisocial conduct. As a result there was no basis for the jury to presume, based on Jury Instruction No. 20, that the mental disease of the defendant shouldbe disregarded. The jurywas instructed to find the defendant not guilty if there was a reasonable doubt as to whether he acted knowingly or purposely. The instructions given did not allow the jury to presume that criminal intent existed. In fact, the jurywas specifically instructed to the contrary. While the defendant's proposed instruction was correct as a matter of law, we hold that the refusal to give that instructiondoes not constitute reversibleerror. Defendant also challenges Jury InstructionNo. 31,which

statesr "The defendant is presumed to he sane. However, this presumption is rebutted and disappears whenever reliable evidence is introduced that raises a reasonable doubt as to the defendant's sanity. It makes no difference from which side this evidence comes. "From the moment it appears, the burden is at once upon the State to establish the responsibility of the defendant,beyond a reasonabledoubt."This is an edited version of an instructionproposed by the defendant. No objection to the court's amendmentwasmade by defense counsel. Having failed to object or to identify any specific grounds for objection, defendant's challenge on appeal must fail. See Statev. Walker (1966),148Mont. 216, 223, 419 P.2d 300,304. The jury was instructed on (1) the State's burden of proving each and every element of each charged offensebeyond

a reasonable doubt; (2)the State's responsibility ofproving that the defendantacted purposely or knowingly in committing the charged offenses; (3) that mental disease or defect may prevent a defendant from acting purposely or knowingly; (4) that the jury may draw reasonable inferencesand conclusions from the witnesses' testimony about defendant's appearance, behavior, speech and actions; and (5) in determining whether the required state of mind for each offense had been proven beyond a reasonable doubt, the jury may consider testimony concerning the presence and nature of anymental disease from which the defendant claims to have suffered at the time of the offense. 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 questionby returning guilty verdicts

on each count. We hold that the trial court properly instructed the jury on the law ofmental disease or defect and the State's burden ofproof. We affirm the juryverdicts.Did the District Court act properly when it sentenced the defendant to 300 years in Montana State Prison without possibility of parole or furlough? The consideration to be given to mental disease or defect in sentencing is contained in section 46-14-311,MCA. As noted above, this section now requires the sentencing judge to determine whether the defendant was able to appreciate the criminality of his conduct or to conform his conduct to the requirementsof the law. Section 46-14-312, MCA specifies the sentencing alternatives: "Sentence 

### -- to be imposed. (1) If the court finds that the defendantat the time of the commissionof the offense of which he was convicted did not suffer fromamental disease ordefect asdescribed in 46-14-311, it shall sentence him asprovided in Title 46,chapter 18. 

### "(2) If the court finds that the defendant at the time of the commissionof the offense suffered from a mental disease or defect as described in 46-14-311, any mandatory minimum sentence prescribed by law for the offense need not apply and the court shall sentence him tobe committed to the custody of the director of the department of institutions to be placed in an appropriate institution for custody,care, and treatment for a definite period of time not to exceed the maximum term of imprisonment that could be imposed under subsection (1). The authority of the court with regard to sentencing is the same as authorized in Title 46,chapter 18,provided the treatmentof the individual and the protection of the public are provided for. 

### "(3) A defendant whose sentence has been imposed under subsection (2) may petition the sentencing court for review of the sentence if the professional person certifies that the defendant hasbeen cured of themental disease ordefect. The sentencing court may make any order not inconsistentwith its original sentencing authority except that the length of confinement or supervision must be equal to that of the original sentence. Theprofessional person shall review the defendant's statuseachyear." The choice of either sentencing alternative isdependent upon prior determination criminal responsibilityirresponsibility, as defined by section 46-14-311, MCA. In making this determination, the sentencing court shall consider any relevant evidence presented at the trial and "such additional evidence as it considers necessary." Section 46-14-311, MCA. "The judge is not limited to a consideration of evidence presented at the trial." State v. Doney (Mont. 1981), 636 P.2d 1377, 1385, 38 St.Rep. 1707,

"[The] defendant must prove to the satisfactionof thrsentencing court thatatthe time of the commission of the offense of which he was convicted, he was suffering from a mental disease or defect which rendered him unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.' 

# ... A determination of the existence of mental disease

# .

. 

# . rests within the discretion of the sentencing judge

# .I' Doney, 636 P.2d at 1385, 38 St.Rep. at 1716 (emphasisadded). In addition to the lay witness and expert testimony presented at trial in this case, the court had psychological evaluationsand apre-sentence investigation report available to it. Defense witness, Dr. John G. Watkins, was the only expert who specifically concluded that the defendant lacked control over his criminal conduct. Each of the other psychologists and one psychiatrist supplied substantial evidence from which the court could conclude that the defendant was able to appreciate the criminality of his conduct and had the ability to conform his conduct to the requirementsof the law. Defendant argues that once the sentencing judge determined thathe suffered from a "seriousmental disorder," the court was statutorily required to commit him to the custody of the Department of Institutions to be placed in an appropriate mental institution. He further argues that sentencing a mentally ill defendant to prison for 300 yearswithout possibility of parole or furlough constitutes cruel and unusualpunishment. We disagree. The American Psychiatric Association and the National Mental Health Association concur "that expert witnesses should testify within their areas of specialized knowledge and not to the ultimate legal issues of whether or not the accused was legally insane at the time of the alleged act." National Mental Health Association, Myths 

### & Realities: A 

### - Report

## of

## theNational Commissionon the InsanityDefense 41 

### -- (March,1983). A medical diagnosis of mental illness that requires treatmentand a legal findingofmental disease that relieves criminal responsibility are distinguishable. It is possible to be diagnosed as suffering from a mental illness for medical and treatmentpurposes and, from a legal standpoint, still be criminally culpable. If the mental disease does not satisfy the definition in section 46-14-311,MCA, then a sentence of imprisonmentmay properly be imposed. 

### In State

### v. Mercer (Mont. 1981), 625P.2d 44, 38 St.Rep. 312, the defendant appealed a conviction for aggravated assault and a sentence of 20 years imprisonment. Expert testimony established that Mercer suffered from an untreatable mental disorder that prevented him from conforming his behavior to social norms, but that the disorder was episodic. His mental disease had purportedly been evident for many years. The State established that defendant's story about another being taking control of his body began only when investigation of the case began to center on him. The jury found him guilty. The judge determined that Mercer was "in fullpossession of his mental capacity and not suffering from mental disease or defect which could render him incapable of appreciating thecriminality of his conduct or the ability to conform his conduct to the requirementsof law." Mercer, 625 P.2d at 50, 38 St.Rep. at 318. For the protection of society, defendant

was sentenced as a dangerous offender to 20 years imprisonment. We noted in Mercer that the statutory scheme dealing with the mental competency of criminal defendants "does not prescribe special rules for sentencing a defendant who was sane at the time of his crime,but whomay be insane at other times." Mercer, 625 P.2d at 50, 38 St.Rep. at 319. We concluded that under circumstances where a defendanthas not been adjudicated insane, a sentenceof imprisonment does not violate any statutoryor constitutional law. Defendant citesthe following language in supportofhis contention that he was entitled to be committed to Warm Springs Sta.teHospital rather than sentenced toMontana State Prison: 

# ".

. . The defendant was sentenced and classified as a dangerous offender based only on his past criminal behavior and his propensity for antisocial conduct. If,however, the courthad determined that the defendantwere mentally deranged but sentenced him nevertheless to a penal institution without providing foradequate treatment, the defendantmay have had grounds to argue that the sentence violated constitutional prohibitions against cruel and unusual punishment." Mercer, 625 P.2d at 51, 38 St.Rep. at 319. We find this argument unpersuasive. The quoted hypothetical is dicta in Mercer. In addition, section 46-14-311, MCA requires more than just a finding of mental disease. Where mental disease exists, the court must also determine its effect upon. the defendant's ability to appreciate criminality and capacity to conform his conduct, i.e. whether the diseasemeets the standa.rdof impairment set forth in section 46-14-311,MCA.In State 

### v. Doney (Mont. 1981), 636 P.2d 1377, 38 St.Rep. 1707, the defendant was convicted of attempted robbery and aggravated assault and sentenced toMontana State Prison for two 10 year terms to be served concurrently. Defendant testified that he had no recollection of the assault. He claimed that his intoxicated and drugged conditionmade him incapable of forming the requisite mental state. The sentencing court refused defendant's request to be committed rather than imprisoned. This Court stated on appeal: 

# ".

. 

# . Before such commitment will be ordered, defendant must prove to the satisfaction of the sentencing court that 'at the time of the commissionof the offense ofwhich he was convicted he was suffering from a mental disease or defect which rendered him unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.

## ' Sections 46-14-311and 46-14-312,MCA. The sentencing judge is not limited to a consideration of evidence presented at the trial. A determination of the existence of mental disease or defect under these sections rests within the discretion of the sentencing judge. "If the mental disease or defect described in section 46-14-311, MCA, is found, the judge must order the commitment described in section 46-14-312(2). 

# .

# . .

"Section 46-14-312(I),MCA, provides that if the mental disease or defect described in section 46-14-311, MCA, is not found by the sentencing judge, defendant shall be sentenced asprovided in Title 46,chapter 18." Doney, 636 P.2d at 1385, 38 St.Rep. at 1716. Affirming the sentence of imprisonment,we held: 

### "[TIhe determination whether defendant does suffer from such mental disease or defect lies within the discretion of the sentencing judge, after his evaluation of the trial evidence and any other evidence he may deem necessary. The sentencing judge was not persuaded that defendant suffered from a mental disease or defect within the meaninq of section 46-14-311, MCA. He acted well within - - his discretion in denying defendant's request that he be committed pursuant to section 46-14-312(2), MCA." Doney, 636 P.2d at 1386, 38 St.Rep. at 1717

(emphasis added)

# .In each reference to mental disease or defect, this Court stressed that the disease or defect must be one described in section 46-14-311,MCA. Here, the sentencing court found that defendant

### 's "seriousmental disorder"did notmeet the standard set forth in section 46-14-311,MCA. The court further found that the defendant "is not willing to conform his behavior to the requirementsof law." We hold that the sentencing court did not abuse its discretion in determining that defendant's mental disorder failed to meet the standard set forth in section 46-14-311, MCA

# . We find no error in the court's sentencing the defendant to imprisonment under section 46-14-312(l), MCA. Defendant next contends that the sentence of an individual who is mentally ill to the Montana State Prison for a term of 300 years without the possibility ofparole or furlough is cruel and unusual punishment and a violation of the Eighth Amendment of the U.S. ConstitutionandArticle 11, Section 22, 1972 Montana Constitution. Defendant argues that he was sentenced not for his behavior, but for his illness. The term of 300 years is within the statutory maximum allowable for a persistent felony offender. Section 46-18-502(2), MCA. As this Court stated in State v. Metz (1979),184Mont. 533, 536, 604P.2d 102, 104: "Defendant's sentence is within the maximum allowable by the persistent felony offender statute. 

# .

# ..As a general rule, sentences within the maximum statutory limits do not violate the Eighth Amendment. 

# . .. Defendant must establish that his sentence is an exception to this rule.



# .

# .. The evidence presented here does not establish that the length of the sentence was unconstitutional. "The court's 100 year sentencemay in defendant's eyes seem inequitable,but it isnot so shockingor oppressive as to be cruel and unusual punishment. Challenges to the equitability of a sentence asopposed to its legality are properly directed to the Sentence Review Board." (citations omitted) Section 46-18-202(2), MCA authorizes the sentencing court to impose restrictions,aspart of the sentence, making the defendant ineligible for parole or participation in the supervised releaseprogram. Such restrictionsmay be imposed where the court finds it necessary to protect society and states the reasons for the restriction. Here, the court stated ten reasons for its designation of defendant as a dangerous offender and imposition of the restrictive sentence: "a. Protectionof society. "b. No chance of rehabilitation. "c. Defendant was convicted by jury of all the acts alleged in the information. "d. Defendant's earlierrecord. "e. Defendant's behavior at trial and at sentencing. "f. Testimony at trial as to the Defendant's history. "g. Defendant is not willing to conform his behavior to the requirementsof law. "h. Defendant is a very dangerous person and will continue to be suchaperson. "i. It is unlikely that the Defendantwill ever be non-violent or not commit further acts that were a source of the trial. "j. There isno treatmentprogram whichwill alter the Defendant'sbehavior." Four of the five psychological and psychiatric evaluators specifically concluded that the defendantwas able to appreciate the criminality of his conduct and to conform his conduct to the requirementsof law. The one expert whose diagnosis differed from the others agreed with the others as to defendant's dangerousness and propensity for crimina.1 violence in the future. In fact, he concluded that thedefendant has the capacity to carry out a "Manson" type homicide. All of the e~~aluations upport the court's finding that defendant is a very dangerous person and will continue tobe a danger to society. Regarding disposition, the various experts advised the court as follows: "There is no treatment facility in the state of Montanawhich is likely tobe more suitable for the resolution of Mr. Watson's psychological problems than that available at the Montana State Prison. Mr. Watson's psychological disorders arenot of the type or severitywhichwouldmake it in the state's interest to commit him to a treatment facility such as Warm Springs StateHospital." 

# ".

. . I am very concerned about the degree of danger which he can pose if his very tenuous restraining capacity were taxed due to stress, fatigue, or drugs. I would view him as a very dangerous man who should be handled with the strictestkindsof controls, whatever the outcome." 

# ".

.

# .His poor socialand vocational adjustment in a context of chronic substance abuse and frequent lawbreaking, are consistent with diagnosis of personality disorders. The prognosis for treatment is poor and he should be regarded as having a strong potential for further violent, impulsive behavior." "It is essential for the protection of others as well as himself that he be under institutional control for a long time. His violent behavior (as contrasted with his hurglarizings) is best described as a psychiatric illness. His condition suggests the need for intensive, individual therapy, perhaps abreactions to release the repressed rage. However, neither Warm Springs State Hospitalor theDeerLodge Prison is probably prepared to give such treatment. Institutionssuch as Atascadero or Vacaville in California desiqned for the criminally insane arebest equipped in this respect. "Where-everhe is confined it is important for the protection of society that he notmerely be given a parole or discharge after a few months, or even a fewyears,ofgood,overt behavior

# . .."

"Hedoes not indicate symptoms ofpsychosis. There is a failure to accept socialnorms with respect to lawful behavior. There is irritability and impulsivity. There is irresponsibility. There is chronic use and abuse ofalcoholicbeverages."Thedefendant,Rodney Watson, does not suffer from serious mental disease ordefect. 

# .

# .. "Mr. Watson has the ability to appreciate the criminality of his conduct, to conformhis conduct to the requirements of law at the time of the criminal conduct charged." The pre-sentence investigation report recommended that the defendantbe confined inMontana State Prison for themaximum time allowable under the law,based upon considerationof the defendant's prior criminal history, his past failures on parole supervision, the violent nature ofhis last crime,and the fact that there is a poor prognosis for treatment of his mental disorder. We hold that the sentencing court did not abuse its discretion in imposing a sentencewith restrictions that the defendant shall be ineligible forparole or participation in the supervised releaseprogramwhile servinghis term. The fact that the sentencing judge in this case requested that the defendant be transferred to another facility, should the Prison Warden deem it appropriate, indicates the court's concern regarding post-dispositional treatment of this offender. It also recognizes the possibility that more appropriate treatment for defendant's particular condition, than that available at the Prison,may become available at a la.terdate; at which time, custody of the defendant couldbe transferred. Defense counsel asserted at the sentencing hearing that

a California facility for the criminally insanemight be able to treat the defendant's disorder; however, no evidence of available treatment or agreement to enter into a Western Interstate CorrectionsCompactwaspresented. The record contains no evidenceof the type ordegree of psychological treatment that might be made available to the defendantat theMontana State Prison,nor any evidence otherthan defense counsel's assertions that such treatment would be inadequate. Defendant's argument that the prison is incapable of meeting his particular needs is premature. In the event of deficient care, defendant has the alternative of legal proceeding against the State. State v. Austad (1982), 197 Mont. 70, 101, 641P.2d 1373, 1390. We hold that the sentence given the defendant does not constitute the infliction of cruel and unusual punishment. Affirmed.

We concur: 

# 3-4

# Jcwak4A.Q Chief Justice

- JusticesMr. Justice JohnC. Sheehy,dissenting:

I dissent principally on two grounds, one, that the court committed instructions-1 error with respect to mental disease or defect, and two, that the sentence imposed is cruel and unusualpunishment.

For the reader to und.erstand this issue,Iset out the provisions of section 46-14-101,MCA: "Mental disease or defect. 

### As used in this chapter, the termTmental disease or defect' does not include an abnormality manifested only by repeated criminal or other antisocial conduct." The obverse of section 46-14-101, should be that mental disease or defect does include abnormalities manifested by other than repeated criminal or other antisocial conduct. Everybody that has had anything to do with this case admits that the defendant is suffering, at least medically, from a mental disease or defect. All the experts who testified at the trial agreed on this point. The state prosecutors at the county and state levelagree, the District Court agreed, and now this Court, through its majority opinion also agrees. In that situation, we must a.sk ourselves whether the jurywasproperly instructed so that it could determine whether at the time he committed the alleged offense he was suffering from amental disease or defect so that he could not have the particular state of mind that is

an essential element of the offense charged. The court's instruction on this point is as follows: "INSTRUCTIONNO. 20 "You must decide 1. whether the defendant had a mental disease or defect at the time of the acts alleged in the Information before you, and 2. whether, if he had a mental disease or defect, itprevented him from having any of the sta.tesofmind required as an element of the offense charged, in this case,purpose or knowledge. "You are to determine the meaning of the phrase 'mentaldiseaseordefect,' and in sodoingyoumay apply the common meanings of these words and your experience in life, and you may be guided by the testimonyyou find credibleand relevant. However, the term 'mental disease or defect' does not 

## -- -- include an abnormalitymanifested only

## 2repeated criminalor 

## - other antisocial conduct." (Emphasis added.) Obviously, as far as it went, the instruction is in accord with section 46-14-101, MCA. However, the defense offered a clarification to the instruction which would have added the following language: "As used in this instruction, the terms mental disease or defect do not include an abnormality manifested onlyby repeated criminalor anti-social conduct. However, if you find there is other evidence that the defendanthad a mental disease or defect, you may consider repeated criminal or anti-social conduct as a manifestation of a mental disease ordefect." The District Court denied the addition to the instruction as proposed by the defendant. I think a serious error occurred at thatpoint. This is not spoken in criticism of the district judge. I think the DistrictCourt was faced with a statute that is too vague and ambiguous to be applied. The point that the defendant's offered instructionwas hoping to meet is this: if the only manifestation of the a.bnorma1.ityis repeated "criminal or other antisocial conduct" then the jurymay not consider that the defendant acted und.er the influence of a mental disease or defect; but if in fact there are other manifestationsof abnormality,as allagree there are in this case, then the jury may consid-erthe repeated criminal and antisocial conduct as further manifestation of the abnormality.The term "other antisocial conduct" itself is too broad to be constitutionally applied. Criminal conduct is, of course, antisocial. What other conduct may be regarded as antisocial? By definition, one who is averse to the society of others is antisocial. The term also includes behavior which is hostile or harmful to organized society or which is marked by behavior deviating sharply from the social norm. Webster'sNewCollegiate Dictionary (1981). Thus,antisocial conduct runs thebroad spectrum from criminal conduct through vandalism and even to those Montananswho "liketheir fellow men thebestwhen they are scattered some." The term "antisocial conduct" is too broad 

### and vague to be constitutionallyapplied. Without a standardto guide the jury based on the clause, the jurywas left with no guidance in the application of the law to the abnormality claimed by the defendant. The instructions given to the jury were in effect a presumption in the vice of Sandstrom,because some jurors may have excluded all of the defendant's abnormal behavior asantisocial,and thereforenot to be considered as

amanifestation of hismental diseaseordefect. It is true that the defendantdid not offer, as I search the record, an instruction defining "antisocial conduct" in the sense of the statute. Undoubtedly the defendant could not have found such a standard, but at least the clarificationoffered should havebeen given to the jury that if the defendant did engage in conduct which was abnormal, then the jury might also consider his repeated criminal violations,and his repeated "antisocialconduct." There is a serious statutory hole here that requires filling up by the legislature. 

### In the meantime, it is the duty of this Court to protect the defendant from theconsequences of the District Court taking from the jury a11 consideration of abnormal behavior simply because it falls within the categories of criminal or antisocial conduct.

As serious to me as the instructional error is the punishment meted out to the defendant here, three 100 year terms, to be served consecutivel-y,without possibilj-tyof furlough orparole. It is evident that theDistrict Court decided to put the defendant "on ice" for the remainder of his life. Worse,he will be preserved in his present state, without hope of treatment until death overtakes him. To me, this is cruel and unusualpunishment. Punishment for crimesmay be "crueland unusual" because of its barbarity, or because it is "excessive" or "disproportionate" to the offense. Solemv. Helm (1983),462 U.S. - ; Edmund v. Florida (1972), 458 U.S. 782; Coker v. Georgia (1977),433 U.S. 584; Estelle v. Gamble (1977),429 U.S. 97;Greggv. Georgia (1976),428U.S. 153. The term "cruel and unusual punishment" comes from the Eighth Amendment to the United States Constitution. The Eighth Amendment is based upon the "evolving standards of decency that mark the progress of amaturing society." Trop

v. Dulles (1958), 356 U.S. 86, 101, 

## - S.Ct. -1 

### - L.Ed.2d 

### - 

# . Montana, in adopting its 1972 Constitution, purportedly showed it wasmaturing by adoptingArt. TI, § 28 to the effect that laws for the punishment of crime shallbe founded on the principles of prevention and reformation. Punishment, therefore,ought to have a two-pronged objective: one, preventing the defendant from further crime, but two, directed towardhis rehabilitation. By salting the defendantaway for the rest of his natural 1-ife, the court has undoubtedly prevented him from future crime against persons outside the prison walls; but the District Court has also determined that he is incapable of rehabilitation. The only evidence of his inability to rehabilitate is his mental illness. That is why by sentencing him to the Montana State Prison instead of toWarm Springs,theDistrict Court insured that he would never be rehabilitated through medical treatment. From the sentence, therefore, I determine that its imposition is at oncebarbarous and excessive. As the appellant noted in his brief, the sentence is also disproportionate. Statistics compiled by the Sentence Review Board of our Court in 1980 show that of the 352 convictions for aggravated assault between July 1, 1978 and December 12,1979,only six individuals received prison terms in excess of 20 years. The defendant was given 100 years, pursuant to the persistent felony offender statute without possibility of parole or furlough for his conviction on the charge of aggravated assault against Andrew Floberg. Likewise, 947people were convicted of burglary between July 1, 1978 and December 12, 1979. Of those 947, 3 received sentences of 40 to 50 years, probably under the persistent felony offender statutes. None received sentences in excess of 50 years. The defendant, however, received a sentence of 100 years without the possibility of parol-eor furlough on his burglary conviction for entering Melissa Smith's apartment and stealing her purse. The Sentence Review Board compiled. no statistics for the offense of attempted deliberate homicide in its 1980 report. I think it rather obvious that the sentences here are disproportionate and I would reverseon thatground also.I would reverse the conviction and remand for a new trial.

Mr. Justice Daniel J. Shea dissents and will file awritten dissent later.DISSENT OF MR. JUSTICE DANIEL J. SHEA

No. 83-325

STATE OF MONTANA,

Respondent,

VS.

RODNEY EUGENEWATSON,

Appellant.

DATED: January 6, 1985Mr. JusticeDa.nielJ. Shea.,dissenting:

I agree with the dissent of Mr. Justice Sheehy,and the arguments expressed therein. 1 feel that jury instruction

no. 20, which merely paraphrases the relevant statutory languaqe, is confusing and did not fully inform the jury of the legal concepts involved. Ihave repeatedly stressed that jury instructions which merely set forth statutory language verbatim are not always sufficient. If the language of the statute is vague or unclear a.sto its meaning, as is the statute in this case, additional instructionsmust be given by the trial court to help the jury fully understand the relevant legal.principles. The incomplete instruction given in this case could easily mislead the jury into totally disregarding the defendant's criminal or antisocial behavior

as an indication of mental disease or defect, even if there was additional evidence supporting the claim of mental disease. Further, I agree that sentencing the defendant to 300 years in the Montana State Prison without the possibility of parole or treatment constitutes cruel and unusualpunishment. As Justice Sheehy points out,the 1972Constitution,Art. 11, 28 provides that punishment for crimes shall be based on prevention 

## - and reformation. While thepreventive aspects of the 300-year sentence are apparent,any attempt to reform the defendant is totally lacking. I would reverse the defendant's conviction and remand this cause fora new trial.