No. 93-325 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

STATE OF MONTANA, 

Plaintiff and Respondent, 

RODNEY EUGENE WATSON, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Jlissoula, 

The Honorable James B. 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 - 1984 
Mr. Justice Fred 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 100 years imprisonment 

on each count without possibility of parole or furlough. 

Defendant raises two issues on appeal: 

(1) Did the trial court err in instructing the jury on 

the law of mental 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 

from a serious mental disorder? 

We affirm the conviction and the sentencing order. 

These facts are undisputed. Defendant began drinking 

beer and smoking marijuana during the afternoon of October 2, 

1982. Later that evening, he entered a Missoula apartment, 

stole some pocket change and a hunting knife, and left when 

the occupant awakened. He then entered another apartment, 

took a purse, and left. He returned to the second apartment, 

entered a bedroom, and stabbed a sleeping women 35 times with 

the stolen knife. when a man entered the room, the defendant 

stabbed him 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 substantial blood loss and a 

collapsed lung made her injuries life threatening, but she 

survived. Defendant was arrested wearing a jacket stained 

with Melissa Smith's blood. 
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 examinations of the defendant prior 

to trial. Defendant was found fit to proceed. 

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 night he stabbed Melissa Smith and Andrew Floberg. 

The judge instructed the jury on the elements of each of 

the crimes charged, burdens of proof, reasonable doubt and 

mental disease or defect. The jury was given special verdict 

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 

evaluations by one psychiatrist, four clinical psychologists 

and a medical doctor. The sentencing court found that the 

defenda-nt suffers 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 felony offenses, 

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-efendant as 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 from Montana State Prison to Warm Springs 

State Hospital. 

The record contains a letter from a psychiatrist and a 

psychologist at the Warm Springs State Hospital Forensic Unit 

indicating that the defendant petitioned for return to 

Montana State Prison from the Hospital on June 15, 1983. The 
Forensic 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 claimed he would not put up with 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 

not based on psychotic delusions or the commands of 

voices or hallucinations. Thus, upon return to 

MSP, we recommend this individual remain in the 

maximum security area 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 at Warm 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 first employed the insanity defense as 

a tool of pardon 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 16th Century, a legalrationale developed that absolved certain offenders from 

criminal responsibility based on a lack of moral capacity. 

"The insane were perceived as infants or 'beasts' in their 

moral and cognitive abilities. Deprived of understanding and 

memory, such a man could not know what he was doing, nor 
could be the object of punishment." N. Fink & N. Larene, - In 

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

1983). The test for criminal responsibil-ity was whether the 

accused "does not know what he is doing, no more 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 hear medical testimony. 

The landmark -- M'Naghten case made both these trends 

a standard part of English and American law." 

Washington v. United States (D.C.Cir. 1967), 390 

F.2d 444, 445. 

Daniel M'Naghten held the delusionary belief that there 

was a widespread Tory plot aimed at his ultimate destruction. 

In "self-defense," M'Naghten attempted to assassinate the 

Tory leader, British Prime Minister Sir Robert 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 that M'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.son of insanity. 

Under M'Naghten, the test for insanity was whether the 

accused was laboring under such a defective reason from a 

disease of the mind, as not to know the nature and quality of 

what he was doing or, if he did know it, that he 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 such a defective reason." 

Throughout much 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 until 
1367, when a. modified version of the Model Penal Code was 

enacted. See State v. Noble (1963), 142 Mont. 284, 384 ~.2d 

504; State v. Peel (1899), 23 Mont. 358, 59 P. 169. 

Sixteen states continue to use the MINaghten standard 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 

MINaghten and 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 (National Center for State Courts 1983). 

The ALI test provides that a "person is not responsible for 

criminal cond-uct if 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 to 
appreciate 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 of his conduct or to 

conform his conduct to the requirements of the law. This was 

a stricter standard than the ALI 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 

criminal or other antisocial conduct. 

In 1979 the Montana Legislature repealed 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 of Mental Disease or Defect 

"46-14-101. Mental disease or defect. As used in 

this chapter, the term 'mentT1 disease 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. ~vidence that 
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 

to proceed. No personxho, as a result oz . - 

disease or defect, is unable to understand 

the proceedings against him or to assist in his own 

defense shall be tried, convicted, or sentenced for 

the commission of an offense so long as such 

incapacity endures." 

In Montana, at this 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 in the 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 at the 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, the sentencing court shall consider any 

relevant evidence presented at the trial and shall 

require such additional evidence as it considers 

necessary for the determination of the issue, 

including examination of the defendant and a report 

thereof as provided in 46-14-202 and 46-14-203." 

For the first time 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 statute in a case where 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 or defect? 

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 antisocial behavior. Defendant 

contends that if the jury found that he had a mental disease 

manifested only by antisocial or criminal behavior, then they 

were instructed to find that he did not suffer from a mental 

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 state or 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 states of mind 

required as a.n element of the offense charged, in 

this case, purpose or knowledge. 

"You are to determine the meaning of the phrase 

'mental disease or defect,' and in so doing you may 

apply -- - the common meanings of these words in - your 

experience in life, and you may be guided by the 

testimony you find credible and relevant. However, 
the term 'mental disease or defect' does not 

include an abnormality manifested only repeated 

criminalor antisocial conduct." Jurv Instruction 

20 (emphazs added 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 from which he suffers has manifested 

itself only through antisocial 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 antisocial beha.vior. It did 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 to mutilate oneself . . ." 

In addition to the extensive expert testimony on mental 

disease, the jury also heard testimony from defendant's 

brother and former cellmates that defendant 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 cutting his fingers, smearing blood on 

his face, looking in the mirror and laughing; that he prayed 

and talked out loud to himself, waving his hands. 

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 disease was 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 or defect as follows: 

"As used in this instruction, the terms mental 

disease or defect do not include an abnormality 

manifested only by repeated criminal or anti-social 

conduct. However, if you find there is other 

evidence that the defendant had a mental disease or 

defect, you may consider repeated criminal or other 

anti-social conduct as a manifestation of a mental 

disease or defect." 

We find this to be a correct statement of the law. However, 

we do not agree with the defendant that the instruction given 

by the district court creates a Sandstrom-like presumption. 

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 should be disregarded. The jury was 

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 jury was 

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 instruction does 

not constitute reversible error. 

Defendant also challenges Jury Instruction No. 31, which 

states r 

"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 reasonable doubt." 
This is an edited version of an instruction proposed by the 

defendant. No objection to the court's amendment was made by 

defense counsel. Having failed to object or to identify any 

specific grounds for objection, defendant's challenge on 

appeal must fail. See State v. Walker (1966), 148 Mont. 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 offense beyond 

a reasonable doubt; (2) the State's responsibility of proving 

that the defendant acted 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 inferences and 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 any mental 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 question by returning guilty verdicts 

on each count. 

We hold that the trial court properly instructed the 

jury on the law of mental disease or defect and the State's 

burden of proof. We affirm the jury verdicts. 
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 requirements of the law. 

Section 46-14-312, MCA specifies the sentencing 

alternatives: 

"Sentence -- to be imposed. (1) If the court finds 

that the defendant at the time of the commission of 

the offense of which he was convicted did not 

suffer from a mental disease or defect as described 

in 46-14-311, it shall sentence him as provided in 

Title 46, chapter 18. 

" (2) If the court finds that the defendant at the 

time of the commission of 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 to be 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 treatment of 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 

has been cured of the mental disease or defect. The 

sentencing court may make any order not 

inconsistent with its original sentencing authority 

except that the length of confinement or 

supervision must be equal to that of the original 

sentence. The professional person shall review the 

defendant's status each year." 

The choice of either sentencing alternative is dependent 

upon prior determination criminal responsibility 
irresponsibility, 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 satisfaction of 

thrsentencing court that atthe 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 (emphasis added). 

In addition to the lay witness and expert testimony 

presented at trial in this case, the court had psychological 

evaluations and a pre-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 

requirements of the law. 

Defendant argues that once the sentencing judge 

determined that he suffered from a "serious mental 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 years 
without possibility of parole or furlough constitutes cruel 

and unusual punishment. 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 the National Commission -- on the Insanity Defense 41 

(March, 1983). 

A medical diagnosis of mental illness that requires 

treatment and a legal finding of mental disease that relieves 

criminal responsibility are distinguishable. It is possible 

to be diagnosed as suffering from a mental illness for 

medical and treatment purposes 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 imprisonment may properly be imposed. 

In State v. Mercer (Mont. 1981), 625 P.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 full possession of his mental 

capacity and not suffering from mental disease or defect 

which could render him incapable of appreciating the 
criminality of his conduct or the ability to conform his 

conduct to the requirements of 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 who may be insane at other 

times." Mercer, 625 P.2d at 50, 38 St.Rep. at 319. We 

concluded that under circumstances where a defendant has not 

been adjudicated insane, a sentence of imprisonment does not 

violate any statutory or constitutional law. 

Defendant cites the following language in support of his 

contention that he was entitled to be committed to Warm 

Springs Sta.te Hospital rather than sentenced to Montana 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 court had determined that 

the defendant were mentally deranged but sentenced 

him nevertheless to a penal institution without 

providing for adequate treatment, the defendant may 

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 disease meets the standa.rd of 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 to Montana 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 

condition made 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 

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. ' Sections 

46-14-311 and 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 as provided in 

Title 46, chapter 18." Doney, 636 P.2d at 1385, 38 

St.Rep. at 1716. 

Affirming the sentence of imprisonment, we held: 

" [TI he 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 

"serious mental disorder" did not meet 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 

requirements of 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 of parole or 

furlough is cruel and unusual punishment and a violation of 

the Eighth Amendment of the U.S. Constitution and Article 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), 184 Mont. 533, 536, 604 P.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 sentence may in defendant's 

eyes seem inequitable, but it is not so shocking or 

oppressive as to be cruel and unusual punishment. 

Challenges to the equitability of a sentence as 
opposed 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, as part of the sentence, making 

the defendant ineligible for parole or participation in the 

supervised release program. Such restrictions may 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. Protection of society. 

"b. No chance of rehabilitation. 

"c. Defendant was convicted by jury of all the 

acts alleged in the information. 

"d. Defendant's earlier record. 

"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 requirements of law. 

"h. Defendant is a very dangerous person and will 

continue to be such a person. 

"i. It is unlikely that the Defendant will ever be 

non-violent or not commit further acts that were a 

source of the trial. 

"j. There is no treatment program which will alter 

the Defendant's behavior." 

Four of the five psychological and psychiatric 

evaluators specifically concluded that the defendant was able 

to appreciate the criminality of his conduct and to conform 

his conduct to the requirements of 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 the 
defendant has the capacity to carry out a "Manson" type 

homicide. All of the e~~aluationsupport the court's finding 

that defendant is a very dangerous person and will continue 

to be a danger to society. 

Regarding disposition, the various experts advised the 

court as follows: 

"There is no treatment facility in the state of 

Montana which is likely to be more suitable for the 

resolution of Mr. Watson's psychological problems 

than that available at the Montana State Prison. 

Mr. Watson's psychological disorders are not of the 

type or severity which would make it in the state's 

interest to commit him to a treatment facility such 

as Warm Springs State Hospital." 

". . . 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 

strictest kinds of controls, whatever the outcome." 

". . . His poor social and 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 Hospital or the Deer Lodge Prison is probably 

prepared to give such treatment. Institutions such 

as Atascadero or Vacaville in California desiqned 

for the criminally insane are best equipped in this 

respect. 

"Where-ever he is confined it is important for the 

protection of society that he not merely be given a 

parole or discharge after a few months, or even a 

few years, of good, overt behavior . . ." 

"He does not indicate symptoms of psychosis. There 

is a failure to accept social norms with respect to 

lawful behavior. There is irritability and 

impulsivity. There is irresponsibility. There is 

chronic use and abuse of alcoholic beverages. 
"The defendant, Rodney Watson, does not suffer from 

serious mental disease or defect. . .. 

"Mr. Watson has the ability to appreciate the 

criminality of his conduct, to conform his conduct 

to the requirements of law at the time of the 

criminal conduct charged." 

The pre-sentence investigation report recommended that the 

defendant be confined in Montana State Prison for the maximum 

time allowable under the law, based upon consideration of the 

defendant's prior criminal history, his past failures on 

parole supervision, the violent nature of his 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 sentence with restrictions that the 

defendant shall be ineligible for parole or participation in 

the supervised release program while serving his 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 of fender. 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.ter date; at which time, custody of 

the defendant could be transferred. 

Defense counsel asserted at the sentencing hearing that 

a California facility for the criminally insane might be able 

to treat the defendant's disorder; however, no evidence of 

available treatment or agreement to enter into a Western 

Interstate Corrections Compact was presented. 

The record contains no evidence of the type or degree of 

psychological treatment that might be made available to the 

defendant at the Montana State Prison, nor any evidence other 
than 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, 641 P.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 Jcwa k4A.Q 

Chief Justice 

- 

Justices 
Mr. Justice John C. 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 unusual punishment. 

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 level agree, the District 

Court agreed, and now this Court, through its majority 

opinion also agrees. In that situation, we must a.sk 

ourselves whether the jury was properly instructed so that it 

could determine whether at the time he committed the alleged 

offense he was suffering from a mental 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: 

"INSTRUCTION NO. 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, it 
prevented him from having any of the sta.tes of mind 

required as an element of the offense charged, in 

this case, purpose or knowledge. 

"You are to determine the meaning of the phrase 

'mental disease or defect,' and in so doing you may 

apply the common meanings of these words and your 

experience in life, and you may be guided by the 

testimony you find credible and relevant. However, 

-- the term 'mental disease or defect' does -- not 

include an abnormality manifested only 2 repeated 

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 only by repeated criminal or anti-social 

conduct. However, if you find there is other 

evidence that the defendant had a mental disease or 

defect, you may consider repeated criminal or 

anti-social conduct as a manifestation of a mental 

disease or defect." 

The District Court denied the addition to the 

instruction as proposed by the defendant. I think a serious 

error occurred at that point. 

This is not spoken in criticism of the district judge. 

I think the District Court was faced with a statute that is 

too vague and ambiguous to be applied. The point that the 

defendant's offered instruction was hoping to meet is this: 

if the only manifestation of the a.bnorma1.ity is repeated 

"criminal or other antisocial conduct" then the jury may not 

consider that the defendant acted und.er the influence of a 

mental disease or defect; but if in fact there are other 

manifestations of abnormality, as all agree there are in this 

case, then the jury may consid-er the 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's New Collegiate Dictionary (1981). Thus, antisocial 

conduct runs the broad spectrum from criminal conduct through 

vandalism and even to those Montanans who "like their fellow 

men the best when they are scattered some." 

The term "antisocial conduct" is too broad and vague to 

be constitutionally applied. Without a standard to guide the 

jury based on the clause, the jury was 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 as antisocial, and therefore not to be considered as 

a manifestation of his mental disease or defect. 

It is true that the defendant did 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 

clarification offered should have been 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 "antisocial conduct." 

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 the 
consequences 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-ty of 

furlough or parole. 

It is evident that the District 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 unusual punishment. 

Punishment for crimes may be "cruel and unusual" because 

of its barbarity, or because it is "excessive" or 

"disproportionate" to the offense. Solem v. 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; Gregg v. Georgia (1976), 428 U.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 a maturing 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 was maturing by adopting Art. TI, § 28 

to the effect that laws for the punishment of crime shall be 

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 toward his rehabilitation. By salting the defendant 
away 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 to Warm Springs, the District Court insured 

that he would never be rehabilitated through medical 

treatment. From the sentence, therefore, I determine that 

its imposition is at once barbarous 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, 947 people 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-e or 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 reverse on that ground also. 
I would reverse the conviction and remand for a new 

trial. 

Mr. Justice Daniel J. Shea dissents and will file a written 

dissent later. 
DISSENT OF MR. JUSTICE DANIEL J. SHEA 

No. 83-325 

STATE OF MONTANA, 

Respondent, 

VS. 

RODNEY EUGENE WATSON, 

Appellant. 

DATED: January 6, 1985 
Mr. Justice Da.niel J. 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. I have 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.s to its meaning, as is the 

statute in this case, additional instructions must 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 unusual punishment. 

As Justice Sheehy points out, the 1972 Constitution, Art. 11, 

28 provides that punishment for crimes shall be based on 

prevention - and reformation. While the preventive 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 for a new trial.