                                      No.        81-316

         I N THE SUPREME COURT O T E STATE O M N A A
                                F H         F OTN

                                                 1981



T E STATE O MONTANA,
 H         F

                                         P l a i n t i f f and Respondent,



LEONARD DAVE PEAVLER,

                                         Defendant and A p p e l l a n t .



Appeal from:           D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t ,
                       I n and f o r t h e County o f Cascade
                       Hon. H. W i l l i a m Coder, J u d g e p r e s i d i n g .

Counsel o f Record:

     For A p p e l l a n t :

           Mark Bauer, P u b l i c D e f e n d e r , G r e a t F a l l s , Montana

     F o r Respondent:

           Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
           J . F r e d Bourdeau, County A t t o r n e y , Great F a l l s , Montana

                                                  --   -




                                       S u b m i t t e d on b r i e f s :   September 2 5 ,      1981

                                                              Decided:

Filed:   b!OV 5. 4988
                  $'




                         C                  PY
                                                           Clerk
Mr. J u s t i c e J o h n Conway H a r r i s o n d e l i v e r e d                t h e Opinion of
tne Court.
           T h i s i s a n a p p e a l from a c o n v i c t i o n o f b u r g l a r y com-

m i t t e d i n Cascade County.                The a p p e l l a n t was t r i e d by a j u r y
and s e n t e n c e d t o f i v e y e a r s a s a n o n d a n g e r o u s o f f e n d e r .
           The s o l e i s s u e i s w h e t h e r t h e D i s t r i c t C o u r t e r r e d i n
excluding        expert       testimony            on w h e t h e r    appellant's              alleged

intoxicated           condition              deprived        him      of        his   capacity       to
a p p r e c i a t e t h e c r i m i n a l i t y of h i s c o n d u c t o r t o conform h i s

c o n d u c t t o t h e r e q u i r e m e n t s o f t h e law.
           Appellant              has    a    long      history            of     problems         with
alcohol.         He    h a s h e l d numerous j o b s u n t i l p a y d a y and t h e n
been f i r e d because o f               alcohol-related              problems.             On A p r i l

18,    1980,      a p p e l l a n t was       at     his     home     i n Helena,           Montana,
drinking with three friends.                         H i s w i f e , who was p r e s e n t b u t

not     drinking,         testified            that      the     four           friends     consumed
nearly       a   case        of    beer       and      were      "pretty           smashed"        when

a p p e l l a n t l e f t f o r Great F a l l s i n mid-afternoon.
           That       evening       at       approximately            10:OO       p.m.      a    silent
b u r g l a r y a l a r m went o f f         a t Spencer's S t o r e i n t h e Holiday
V i l l a g e s h o p p i n g m a l l and two p o l i c e o f f i c e r s i n t h e a r e a
were    dispatched           to     investigate.               Upon    arrival           they     found
t h a t t h e bottom h a l f o f a s p l i t door l e a d i n g i n t o t h e s t o r e

from     the     mall        was        unlocked       but      closed.               The   officers
proceeded          into       the        store        and      past        a     storage          area.
Subsequently,           an    individual            bolted      from t h e s t o r a g e a r e a ,
o u t t h e d o o r , and i n t o t h e m a l l .              The o f f i c e r s c h a s e d and
f i n a l l y subdued t h e i n d i v i d u a l .
           The      store          owner       and       his     son           arrived          shortly
thereafter.           The p o l i c e and owner c h e c k e d t h e s t o r e , f o u n d

no o n e e l s e , and t h e p o l i c e l e f t .             A s t h e owner and h i s s o n
c h e c k e d t o s e e what was m i s s i n g ,                 they   found      a money        bag,

c u s t o m a r i l y u s e d t h e open t h e s t o r e , was m i s s i n g some $50.

As    t h e y were       leaving,        t h e owner            noticed    the    hands of         the

a p p e l l a n t e x t e n d i n g o u t from under              a bench        in the storage

area.         The      owner      left       the       storage      area        and     called     the

police.         The p o l i c e e n t e r e d t h e s t o r e a g a i n and c a l l e d upon

t h e a p p e l l a n t t o come o u t o f                hiding.         Appellant       came o u t

peacefully          and     smoking          a    cigarette.            Later,        some   of    the

missing        money       was     found          in      the    storage        room    where      the

a p p e l l a n t had h i d d e n .

            S p e n c e r and t h e two a r r e s t i n g o f f i c e r s t e s t i f i e d t h a t

t h e a p p e l l a n t emerged f r o m t h e s t o r e v e r y r e l a x e d , h i s e y e s

were      normal,         and     there          were      no     signs    of     intoxication,

a l t h o u g h t h e o f f i c e r s n o t e d a f a i n t o d o r o f a l c o h o l on h i s

breath.

            A p p e l l a n t ' s d e f e n s e was, f i r s t , t h a t h e was a c h r o n i c

a l c o h o l i c , c o u l d n o t c o n t r o l h i s d r i n k i n g , and was t h e r e f o r e

involuntarily              intoxicated              a t    the     time    of     the     offense.

Second, b e c a u s e of t h i s i n v o l u n t a r i l y - p r o d u c e d      intoxication,

h e was c o m p l e t e l y d e p r i v e d o f h i s c a p a c i t y t o a p p r e c i a t e t h e

c r i m i n a l i t y of h i s c o n d uc t o r t o conform h i s a c t i o n s t o t h e

r e q u i r e m e n t s of t h e law.            A s p a r t of    the defense, appellant

had     intended          to     ask     a       psychiatrist,            Dr.    Davis,      and     a

p s y c h o l o g i s t , Dr. B a t e e n , t h e f o l l o w i n g q u e s t i o n :

            " D o c t o r , a s s u m i n g t h a t Dave P e a v l e r w a s
            i n t o x i c a t e d on A p r i l 1 8 , 1 9 8 0 , a n d , a s you
            know, was f o u n d i n S p e n c e r I s S t o r e i n H o l i d a y
            V i l l a g e i n G r e a t F a l l s , d o you h a v e an
            o p i n i o n on r e a s o n a b l e m e d i c a l / p s y c h o l o g i c a 1
            c e r t a i n t y a s t o w h e t h e r o r n o t Dave P e a v l e r ' s
            i n t o x i c a t e d c o n d i t i o n d e p r i v e d him o f h i s
            capacity t o appreciate the c r i m i n a l i t y of h i s
            c o n d u c t o r t o conform h i s c o n d u c t t o t h e
            requirements of law?"

            Appellant          contends           that     his    defense       was     completely
destroyed when the court granted the State's motion limiting
the testimony of the psychologist and the psychiatrist.
          The prosecution claims inability to appreciate the
criminality of one's conduct or to conform one's conduct to
the requirements of the law has not been recognized as a
defense in Montana since 1979.            The trial court agreed, and
excluded       that portion, but        only    that portion, of the
psychologist's and psychiatrist's              expert testimony.           The
appellant argued         that section 45-2-203, MCA,           allows      the
testimony.
          Section 45-2-203, MCA, provides:
          "--- ~--- i b i l i t y-- intoxicated or drugqed
            Res ons
          condition. A person who is in an intoxicated
          or drugged condition is criminally respon-
          sible for conduct unless such condition is
          involuntarily produced and depr ives him of
          his capacity to appreciate the criminality of
          his conduct or to conform his conduct to the
          requirements of law.          An intoxicated or
          drugged condition may be taken into consi-
          deration in determining the existence of a
          mental state which is an element of the
          offense ."
          In   1979,   the   legislature       extensively    amended      the
sections involved with             the defense of mental disease or
defect.        House Bill 877 removed these two defenses from
sections 46-14-213(2) and            46-14-301, MCA; but,           in their
efforts they failed for some reason to remove these defenses
from   the     provisions     of    section    45-2-203,     MCA.     It    is
appellant's position that section 45-2-203, MCA, not having
been changed in any way by the bill, entitles him to rely on
same for his defense.
          We find the case of State v.             Ostwald     (1979), 180
Mont. 530, 591 P.2d 646, 36 St.Rep. 442, controlling in this
matter.      There we held:
          ". . .    We    hold     that where, as here, the
          defense of intoxication shifts to a defense
          based on expert testimony as to the long term
          effects of alcoholism, then it becomes a
          defense of mental disease or defect within
          the purview of the statutes requiring notice
          . . . " 591 P.2d at 650.
          While in this case notice was given in the defense,
and     the    narrow     question     of   Ostwald    was       whether    the
defendant's expert testimony could be presented in absence
of prior notice, the clear holding of that case is much
broader.       Under Ostwald, once expert testimony is submitted
on intoxication, the defense comes within section 46-14-101
et seq., MCA, for all purposes.
         Ostwald holds that the proffer of expert testimony
comes    within      section    46-14-213, MCA, which            specifically
limits the         testimony that an expert may              give.         That
testimony includes, "his opinions as to the ability of the
defendant to have a particular state of mind which is an
element       of   the   offense     charged."      It does not       include
opinions on the ability to appreciate the criminality or to
conform       conduct    to    the   requirements     of   the    law.      The
District Court properly held that after the amendments of
1979, the legislature has done away with those two indicia
of criminal reponsibility.
         The judgment of the District Court is affirmed.
W concur:
 e




       ustices




Mr.   J i ~ s t i c e a n i e l J. Shea w i l l f i l e a c o n c u r r i n g o p i n i o n .
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