author: CHIEF JUSTICE TURNAGE JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JOE JUNIOR COWAN, Defendant and Appellant.
    No. 91-289.
    Submitted April 4, 1993.
    Rehearing Denied Nov. 4, 1993.
    Decided October 6, 1993.
    50 St.Rep. 1153.
    260 Mont. 510.
    861 P.2d 884.

      For Defendant and Appellant: Margaret L. Borg and William Boggs, Missoula.
    For Plaintiff and Respondent: Marc Racicot, Attorney General; Barbara Harris, Assistant Attorney General, Helena; Robert L. Deschamps III, County Attorney, Missoula.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

The District Court for the Fourth Judicial District, Missoula County, sitting as the trier of fact, convicted Joe Junior Cowan of aggravated burglary and attempted deliberate homicide. He appeals. We affirm.

The issues are:

1. Did the State prove the mental element of the crimes of attempted deliberate homicide and aggravated burglary beyond a reasonable doubt?

2. Do the Montana statutes governing the presentation of evidence of mental disease or defect in effect establish a conclusive or unrebuttable presumption of criminal intent in contravention of the doctrine enunciated in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979)?

3. Does sentencing and confining Cowan to prison violate the Eighth and Fourteenth Amendments to the United States Constitution because of his mental condition?

On April 23 or 24, 1990, Joe Junior Cowan broke into a United States Forest Service cabin at the Lolo Work Center, eighteen miles west of Lolo, Montana. When the occupant of the cabin came home on the evening of the 24th, it was clear to her that someone had been in her cabin eating her food, watching her television, and generally making himself at home. She called “911” and locked her doors before Cowan again broke in and assaulted her -with a tree-planting tool called a hodag.

Sheriff’s deputies responding to the victim’s phone call apprehended Cowan at the Work Center. He had in his possession a backpack containing some of the victim’s belongings. He did not resist arrest. The victim was found semi-conscious on the floor of her kitchen. She survived, despite injuries including a punctured lung, broken ribs, a broken scapula, a dislocated shoulder, and a skull fracture.

Cowan has been diagnosed as suffering from paranoid schizophrenia, a serious mental disorder. Prior to trial, he was evaluated by psychiatrists and found competent to stand trial.

Cowan waived his right to a jury trial. At his bench trial, he argued that he did not act deliberately in committing these offenses. He asserts that he was in an acute psychotic episode at the time of the attack and that he was under the delusion that the victim was a robot, not a human being. Mental health professionals testified for both Cowan and the State on this issue. The court found Cowan guilty as charged.

At Cowan’s sentencing hearing, the court heard argument about whether he should be confined in a prison or a mental institution. The court ordered him committed to the custody of the Montana Department of Institutions “for placement in a facility deemed appropriate to [his] need for treatment and society’s need for protection from [him].”

I

Did the State prove the mental element of the crimes of attempted deliberate homicide and aggravated burglary beyond a reasonable doubt?

Our standard of review is whether, viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found Cowan guilty beyond a reasonable doubt of the crimes with which he was charged. State v. Bower (1992), 254 Mont. 1, 6, 833 P.2d 1106, 1110. The charge of attempted deliberate homicide required proof that Cowan purposely or knowingly attempted to cause the death of another human being. Sections 45-4-103 and 45-5-102, MCA. The aggravated burglary charge required proof that he knowingly entered or remained in an occupied structure with the purpose to commit an offense and was armed with a weapon. Section 45-6-204(2)(a), MCA. Cowan concedes the conduct elements of both offenses. He challenges the finding that he acted knowingly or purposely.

“Knowingly” and “purposely” are defined at § 45-2-101(33) and (58), MCA:

(33) “Knowingly” — a person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware of his conduct or that the circumstance exists. Aperson acts knowingly with respect to the result of conduct described by a statute defining an offense when he is aware that it is highly probable that such result mil be caused by his conduct. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence. Equivalent terms such as “knowing” or “with knowledge” have the same meaning.
(58) “Purposely” — a person acts purposely with respect to a result or to conduct described by a statute defining an offense if it is his conscious object to engage in that conduct or to cause that result. When a particular purpose is an element of an offense, the element is established although such purpose is conditional, unless the condition negatives the harm or evil sought to be prevented by the law defining the offense. Equivalent terms such as “purpose” and “with the purpose” have the same meaning.

Cowan contends the most conservative conclusion one could draw from the expert testimony in this case is that it clearly raised a reasonable doubt about whether he acted deliberately in committing the offenses. He cites the evidence that he had suffered for years from a serious mental disorder, paranoid schizophrenia. A psychologist testified on behalf of Cowan that there was “reasonable scientific evidence” that he was suffering an acute psychotic episode at the time of the incident. The psychologist who appeared on behalf of the State testified that “the presence of his disorder ... plus that kind of behavior certainly raised the possibility of psychosis at that time.”

However, the expert testimony concerning whether Cowan was in a psychotic episode at the time of the attack was less than unequivocal. Exaggeration of symptoms was a concern. It was not until his third interview with the State’s psychologist that Cowan stated he was under a delusion that the victim was a robot at the time of the attack. Before that, he described her as a “large white woman” who looked stronger than he was.

The experts testified that Cowan’s paranoid schizophrenia is episodic and that it waxes and wanes. They testified that they could not determine with certainty whether Cowan was in the midst of a psychotic episode at the time of the attack. Also, the State’s expert testified that Cowan’s intelligence, motive, and past experiences were sufficient to enable him to falsify symptoms of psychosis. One of Cowan’s experts testified that Cowan had a history of “going into places that belonged to other people and just basically hanging around for a while and eating.”

The expert witnesses also testified that Cowan had a history of assaults on females and had been through the criminal process before. The psychologist who testified for Cowan admitted that, according to the diagnostic manual he used, malingering should be strongly suspected in certain circumstances, including if the patient is referred in a legal context or if the person has antisocial personality disorders. He also testified that, in answer to a question in a psychological test, Cowan stated that he frequently lies to get out of trouble.

The weight of evidence and the credibility of witnesses are within the province of the trier of fact. State v. Whitcher (1991), 248 Mont. 183, 188, 810 P.2d 751, 754. Afactfinder may find credible some, all, or none of the testimony of any witness. State v. LeDuc (1931), 89 Mont. 545, 562, 300 P. 919, 926. As the trier of fact in this case, the court could have, for example, found credible the evidence that Cowan suffers from paranoid schizophrenia but disbelieved that Cowan was in a psychotic state which prevented him from acting knowingly or purposely on April 24,1990.

Moreover, the issue before the court in the trial phase of this action was not whether Cowan was in a psychotic state, but, as stated above, whether he acted purposely or knowingly. The existence of a mental disease or defect in a person does not necessarily preclude the person from acting purposely or knowingly. State v. Byers (Mont. 1993), 861 P.2d 860, [50 St.Rep. 1162], citing State v. Korell (1984), 213 Mont. 316, 690 P.2d 992. The State’s expert felt that, on April 24, 1990, Cowan was able to act with purpose or knowledge. Cowan’s expert psychiatrist agreed that eyewitness testimony is as important in determining what a person was feeling or thinking at a particular time as is the testimony of experts. He did not obtain information from eyewitnesses before rendering his opinion, however.

Cowan states that the eyewitness testimony of the victim and the officers who arrested him describes bizarre, senseless, reckless, and terrifying behavior. He refers to his actions of trying to tear the license plates off the victim’s car prior to attacking her, approaching the victim even when he could see she had a shotgun pointed at him, and, when the authorities arrived, running from them only to retrieve his backpack.

A deputy county sheriff who talked to Cowan and offered him a ride on the day before the attack, near the Work Center, stated that Cowan was coherent and able to carry on a normal conversation then. Cowan told the officer he planned on camping in the area. At the time of the attack, Cowan was lucid enough to be able to eavesdrop on the victim’s telephone call to “911” from an extension phone in another building. He was rational enough to slash the tires on the victim’s car and to use a tool to break through the locked front door of her cabin after finding all the doors to the cabin locked. The victim described Cowan circling her cabin before he broke in, mocking her pleas to leave and to let her go. She described his facial expression as “mad, angry, serious.” He called her a “society bitch,” in addition to calling her, as the defense points out, a “robot bitch.” After he entered the cabin, and in the midst of assaulting her with the hodag, he wrestled the shotgun away from her and attempted to shoot her with it.

The District Court found that, prior to his attack on the victim, Cowan had made no statements or comments to mental health care givers indicating a delusional belief system involving the existence of robots disguised as humans. There is no evidence to the contrary in the trial transcript. The court further found that, in discussing the attack with mental health professionals, Cowan has referred to the victim as “she,” “her,” and a “white woman.” That finding is supported in the record. The court then found that, during the attack, Cowan “was conscious of the fact that [the victim] was a human woman.”

After reviewing the record, and viewing it in a light most favorable to the prosecution, we conclude that a rational trier of fact could have found beyond a reasonable doubt that Cowan possessed the requisite mental state to be convicted of the crimes with which he was charged.

II

Do the Montana statutes governing the presentation of evidence of mental disease or defect in effect establish a conclusive or unrebuttable presumption of criminal intent in contravention of the doctrine enunciated in Sandstrom v. Montana?

In Sandstrom v. Montana (1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39, the United States Supreme Court established that the Due Process Clause prohibits the use of a presumption which relieves the prosecution of the burden of proving mental state by requiring an inference of the existence of criminal intent from the fact of criminal conduct. In that case, the impermissible presumption was embodied in a jury instruction which recited statutory language providing that “a person intends the ordinary consequences of his voluntary acts.”

Because this case was tried to the court, there were no jury instructions. Cowan bases his argument on statutes upon which he believes the court must have relied.

Evidence of a mental disease or defect is admissible in Montana under § 46-14-102, MCA, to prove that a criminal defendant did or did not have a state of mind that is an element of a charged offense. Cowan argues that because mental disease or defect does not, however, constitute a valid defense to a criminal charge in Montana, a conclusive presumption is established as to mental state in violation of the Due Process Clause as discussed in Sandstrom.

Cowan also argues that the court must have applied § 45-5-112, MCA. That statute provides that “[i]n a deliberate homicide, knowledge or purpose may be inferred from the fact that the accused committed a homicide and no circumstances of mitigation, excuse, or justification appear.” Cowan argues that if any evidence of organized or integrated conduct will suffice to establish criminal intent beyond a reasonable doubt, in spite of clear manifestations of insanity, then no one who commits a criminal act can ever be acquitted on grounds of insanity because it would be impossible for anyone to cause harm without engaging in a minimal level of organized conduct.

We have previously affirmed the constitutionality of the abolition of the insanity defense in terms of violation of the right to due process. Byers, 861 P.2d at 866; Korell, 690 P.2d at 1002. As we noted in Byers and Korell, the United States Supreme Court has determined that the Due Process Clause does not require the use of any particular insanity test or allocation of burden of proof. Leland v. Oregon (1952), 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302, reh. denied, 344 U.S. 848, 73 S.Ct. 4, 97 L.Ed. 659.

Section 45-5-112, MCA, provides that any evidence of organized or integrated conduct may suffice to establish criminal intent in a deliberate homicide beyond a reasonable doubt. The ultimate determination is left to the finder of fact. Section 45-5-112, MCA, establishes a permissive inference, not a conclusive presumption. A statute establishing a permissive inference does not violate the rule stated in Sandstrom. See State v. Woods (1983), 203 Mont. 401, 415, 662 P.2d 579, 586; State v. Coleman (1979), 185 Mont. 299, 397-98, 605 P.2d 1000, 1052-53, cert. denied, 446 U.S. 970, 100 S.Ct. 2952, 64 L.Ed.2d 831, reh. denied, 448 U.S. 914, 101 S.Ct. 34, 65 L.Ed.2d 1177.

We hold that the Montana statutes governing the presentation of evidence of mental disease or defect do not establish a conclusive or unrebuttable presumption of criminal intent in contravention of the doctrine enunciated in Sandstrom.

Ill

Does sentencing and confining Cowan to prison violate the Eighth and Fourteenth Amendments to the United States Constitution because of his mental condition?

Cowan states that it is inhumane to consider the insanity of a person accused of a crime only to reduce the degree of the crime or the punishment therefor. He argues that sentencing an insane person like himself to the law-of-the-jungle conditions in prison is essentially a death sentence. He cites People v. Skinner (Cal. 1985), 704 P.2d 752. In that case, the California Supreme Court stated that the M’Naghten test of insanity, which has been used since 1850, reflects a fundamental principle of criminal law. Skinner, 704 P.2d at 759.

We decline to adopt the reasoning of the California Supreme Court in Skinner. As we stated above, the United States Supreme Court has not required the use of any specific insanity test for purposes of due process. Montana’s law allows consideration of a defendant’s mental disease or defect at three stages — determination of fitness to stand trial, at trial to disprove state of mind, and at sentencing. Korell, 690 P.2d at 996-97. This Court has further explained:

The [Montana] legislature has made a conscious decision to hold individuals who act with a proven criminal state of mind accountable for their acts, regardless of motivation or mental condition. Arguably, this policy does not further criminal justice goals of deterrence and prevention in cases where an accused suffers from a mental disease that renders him incapable of appreciating the criminality of his conduct. However, the policy does further goals of protection of society and education.
Our legislature has acted to assure that the attendant stigma of a criminal conviction is mitigated by the sentencing judge’s personal consideration of the defendant’s mental condition and provision for commitment to an appropriate institution for treatment, as an alternative to a sentence of imprisonment.

Korell, 690 P.2d at 1002.

We reiterate that Cowan was not sentenced to prison, but was placed in the custody of the Department of Institutions. The court specifically stated its purpose to provide for treatment of Cowan’s mental illness at a different facility if the Director of the Department of Institutions determines treatment at a different facility is needed.

We hold that the sentence imposed by the District Court does not violate the Eighth and Fourteenth Amendments to the United States Constitution.

Affirmed.

JUSTICES HARRISON, GRAY, WEBER and McDONOUGH concur.

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority opinion.

I conclude that Montana’s abolition of the insanity defense in 1979 violated the defendant’s right to due process of law guaranteed under the Fourteenth Amendment to the United States Constitution, and Article II, Section 17, of the Montana Constitution.

Based on the Legislature’s abolition of the insanity defense in 1979, and this Court’s approval of that change, a person in Montana can be convicted of serious crimes and sentenced to confinement in the State Prison (in this case for a period of up to 60 years), even though at the time of the acts with which they are charged they were unable to appreciate the criminality of their conduct or were unable to conform their conduct to the requirements of the law because of mental illness. This result flies in the face of those notions of fundamental fairness which have been universally accepted by civilized societies subscribing to English notions of justice for the past 700 years.

Furthermore, I disagree with the majority’s reliance on the United States Supreme Court’s decision in Leland v. State of Oregon (1952), 343 U.S. 790, 72 S. Ct. 1002, 96 L. Ed. 1302. While that Court did hold in that case that the defendant was not constitutionally entitled to a specific form of the insanity defense, it is implicit from that decision that some form of insanity defense is required by the due process clause. In fact, subsequent to this Court’s decision in State v. Korell (1984), 213 Mont. 316, 690 P.2d 992, the California Supreme Court cited Leland for exactly the opposite purpose for which it is cited by this Court. In People v. Skinner (Cal. 1985), 704 P.2d 752, the California Supreme Court, while discussing the due process dimensions of the insanity defense, stated that:

Because mens rea or wrongful intent is a fundamental aspect of criminal law, the suggestion that a defendant whose mental illness results in inability to appreciate that his act is wrongful could be punished by death or imprisonment raises serious questions of constitutional dimension under both the due process and cruel and unusual punishment provisions of the Constitution. In Leland v. Oregon (1952), 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302, the court upheld an Oregon law placing the burden of proving insanity beyond a reasonable doubt on the defendant and affirmed the right of the state to formulate the applicable test of legal insanity. In so doing, however, the court measured the law under due process standards, concluding that the irresistible impulse extension of traditional insanity test was not “ ‘implicit in the concept of ordered liberty.’ ” (343 U.S. at p. 801, 72 S.Ct. at 1009). The court thus seemingly accepted the proposition that the insanity defense, in some formulation, is required by due process. (See also Robinson v. California (1962), 370 U.S. 660, 666, 82 S.Ct. 1417, 1420, 8 L.Ed.2d 758, suggesting that punishment for the status of being mentally ill would constitute cruel and unusual punishment.) Scholars, too, suggest that abolition of the traditional insanity defense may be constitutionally impermissible if the result would be imposition of punishment on a mentally ill person for acts done without criminal intent. (See Robitscher & Haynes, In Defense of the Insanity Defense (1982) 31 Emory L.J. 9; Note, The Proposed Federal Insanity Defense: Should the Quality of Mercy Suffer for the Sake of Safety (1984) 22 Am.Crim.L.Rev. 49.)
This court suggested a similar view in People v. Coleman (1942), 20 Cal.2d 399, 407, 126 P.2d 349, where we observed: “Obviously an insane person accused of crime would be inhumanely dealt with if his insanity were considered merely to reduce the degree of his crime or the punishment therefor.”

Skinner, 704 P.2d at 757-58.

Montana’s statutory scheme for dealing with mental illness does exactly what the California Supreme Court suggests would violate due process and cruel and unusual punishment provisions of the Constitution. It allows for conviction and punishment of those who are unable to appreciate the criminality of their conduct, and substitutes for the insanity defense the mere option of the district court to take mental illness into consideration when deciding the degree of punishment or nature of confinement.

While evidence of mental disease or defect is admissible to prove that a defendant did not have a state of mind that is an element of the offense, it is clear that Montana’s law does not take into consideration the defendant’s ability to appreciate the criminality of his conduct or conform his conduct to the law. The only state of mind that had to be proven to convict the defendant in this case was that he acted knowingly and purposely at the time of the illegal conduct with which he is charged. Based on Montana’s definitions of knowingly and purposely, he could act with both states of mind and still not appreciate the criminality of his conduct nor be able to conform his conduct to the law. The facts of this case are a perfect example.

The behavior of defendant, as described by the victim of his brutal conduct, was nothing less than bizarre and irrational. While he circled her house looking for a point of entry, he referred to her as a “robot bitch.” He kicked at her car and inexplicably pulled at her license plate. He flattened all four tires of her vehicle, but made no effort to remove the keys from the ignition. When the victim demanded that defendant leave the premises, he would grunt and mimic her. However, most of what he said was unintelligible. When he did finally gain entry to the house, she pointed a gun at him and pulled the trigger. However, he was undeterred by the threat from her gun. When the victim asked defendant who he was and what he wanted, he would simply mimic her by repeating what she said. She also recalled that he told her she was in his house and that she should get out of his house.

After defendant’s assault on his victim and the arrival of at least two Missoula County Deputy Sheriffs, defendant was observed by one of those deputies in front of the mess hall near the building where the assault occurred. That deputy, who was armed, told him to stop. However, again disregarding the threat to his safety, he ran around to the back of the building where he retrieved his backpack. The deputy followed him to the back of the building where she found him standing with his backpack. After that point in time, he obeyed all of the deputy’s instructions.

Defendant was examined by numerous psychologists and psychiatrists prior to trial. One psychiatrist and two clinical psychologists gave testimony at trial. Everyone who examined defendant concluded that he was suffering from paranoid schizophrenia, a form of mental disease, which even the State’s psychologist conceded may have precluded defendant from understanding and appreciating the criminality of his conduct at the time of the crime with which he was charged.

Dr. Noel Hoell testified that he was a psychiatrist practicing in Missoula who interviewed defendant, reviewed his previous medical records from North Carolina, and did a mental status evaluation. From his investigation, he learned that defendant had been hospitalized on a number of previous occasions with diagnoses of depression, having psychotic features, and schizophrenic disorder. He concluded from his own examination that defendant suffered from serious mental illness which he diagnosed as schizophrenia. He testified that common symptoms of schizophrenia are hallucinations, delusions, and paranoid ideas. He said that it is a psychotic disorder which implies a break in one’s ability to understand and deal with reality. His diagnosis was illustrated by his conversations with defendant during which he stated that defendant displayed delusional thinking and talked about people being programmed by religious groups and the government to control their behavior.

Dr. Hoell reviewed the records from defendant’s evaluation at the Montana State Hospital and found nothing inconsistent in the State’s evaluation.

Dr. Hoell learned from his interview with defendant that defendant thought he was on his own property at the time of his assault on the victim, and also believed that the victim was not really a human being, but believed she was a mechanical robot. He testified that defendant felt endangered by the victim when she began yelling and screaming in a menacing sort of way.

Most importantly, Dr. Hoell testified that, in his opinion, defendant was in a psychotic state at the time that he attacked his victim. In that state, he could not understand or deal with reality because of hallucinations, delusions, and misinterpretation of events. He could satisfy Montana’s requisite mental state because he could make a decision about what he was doing within his own sense of reality. In other words, he could act with purpose and knowledge. However, Dr. Hoell testified that because of defendant’s mental defect, he did not appreciate the nature of his attack on the victim and was not able to appreciate the criminality of his conduct. In fact, it was Dr. Hoell’s opinion that defendant did not even appreciate that the death of a human being was a potential result of his conduct.

Robert A. Shea was a clinical psychologist in Missoula who examined defendant at the request of the public defender’s office. He reviewed the history of defendant’s mental disease, and found that it was progressive. He reviewed the records of Dr. Will Stratford, Herman Walters, Ph.D., and the psychiatrist who examined defendant at the State Mental Hospital, and stated that they had all, likewise, diagnosed paranoid schizophrenia.

Dr. Shea interviewed the victim of defendant’s attack and custodial people at the Missoula County Jail to learn about defendant’s behavior. They described it as crazy and weird. On occasion, he was observed hiding underneath his bunk with the mattress wrapped around himself.

From April 25, when Dr. Shea first examined defendant, until September 2, he saw defendant’s behavior deteriorate to a point where he became concerned about defendant’s ability to aid in his own defense. When he finally was able to get defendant to talk about the incident with which he was charged, defendant told him he had been defending himself against a robot. There was nothing in the conversations to suggest to Shea that defendant thought he was dealing with a human being.

According to Shea, defendant even had some concerns that his own attorney might be a robot.

Shea’s diagnosis was also paranoid schizophrenia.

He testified that while acting in a psychotic schizophrenic state, defendant could act with purpose and could act knowingly, as those terms are defined in Montana’s criminal code. However, at the same time, defendant would not be able to understand the real implications of his conduct because of the delusions under which he would have acted. It was Shea’s opinion that on the night of the conduct which formed the basis of criminal charges against defendant, he was suffering from a mental disease or defect which prevented him from understanding the nature of the act he was committing and appreciating the criminality of his conduct, even though he was capable of acting purposely and knowingly while he thought he was defending himself against a robot.

Dr. Herman Walters, a clinical psychologist from the University of Montana, was retained by the State to consult with Dr. Will Stratford for purposes of evaluating defendant. He and Stratford, likewise, diagnosed defendant with paranoid schizophrenia. Although he stated it would be difficult to state what a person’s mental condition was at some point in the past, he stated that defendant’s thoughts were disordered and that he was acting in a delusional fashion during his third interview with him. He testified that it was possible that defendant was delusional or psychotic at the time of the incident, but he could not say for sure. He did explain that if defendant had been delusional, his conduct would have been based on false assumptions and false premises. Most importantly, Dr. Walters testified that in a delusional state, defendant could act purposely and knowingly and still not be able to appreciate the criminality of his conduct.

There was no testimony from any witness to controvert the expert medical opinion that, because of serious mental disease, defendant was unable to appreciate the criminality of his conduct at the time that he assaulted his victim.

The result in this case is the worst case scenario anticipated by national critics of Montana’s insanity laws and brought to this Court’s attention in Justice Sheehy’s dissent to our decision in Korell. There, he brought the following illustration to our attention:

“Yet the issue of criminal blameworthiness should require a deeper inquiry. Implicit in this concept is a certain quality of knowledge and intent, going beyond a minimal awareness and purposefulness. Otherwise, for example, a defendant who knowingly and intentionally kills his son under the psychotic delusion that he is the biblical Abraham and his son, the biblical Isaac, could be held criminally responsible. The Montana, Idaho and Utah enactments, on their face, would deny a defense to such a defendant.” American Bar Association, Standing Committee on Association Standards for Criminal Justice, Report to the House of Delegates, August, 1984, Standard 7-6.1, Commentary P.327.
Thus has Montana’s abolition of the insanity defense in 1979 been held up for criticism and disrespect by national authorities and scholars.

Korell, 690 P.2d at 1009.

The majority’s conclusion that abolition of the insanity defense does not violate the due process clauses of the Montana or Federal Constitutions is based largely on its prior decision in Korell, and that decision’s interpretation of Leland.

The inadequacy of this Court’s decision in Korell, and the inaccuracy of its analysis oí Leland is thoroughly set forth by the dissenting opinion of Justice McDevitt in State v. Searcy (Idaho 1990), 798 P.2d 914. I agree with that analysis, and would follow it in this case.

As pointed out in the Searcy opinion, there are no U.S. Supreme Court decisions which directly address the issue of whether the insanity defense can constitutionally be abolished. The reason is that there are only three states which do not currently permit an insanity defense. However, as noted by the majority in Korell:

Three older state court decisions have found state statutes abolishing the insanity defense to be unconstitutional. State v. Lang (1929), 168 La. 958, 123 So. 639; Sinclair v. State (1931), 161 Miss. 142, 132 So. 581; State v. Strasburg (1910), 60 Wash. 106, 110 P. 1020.

Korell, 690 P.2d at 999. The majority distinguishes these decisions because the statutory schemes under attack in those cases did not permit introduction of mental disease for the limited purposes for which such evidence is allowed under our statutory scheme. However, I find that distinction unpersuasive.

The only reported decision outside of Montana which I am familiar with and which specifically upholds abolition of the insanity defense is the majority opinion in Searcy. In his well-documented opinion dissenting from that decision, Justice McDevitt made several important points.

First, he examined the various tests for due process that have been set forth over the years. He observed that:

In Palko v. Connecticut, 302 U.S. 319, 324-25, 58 S.Ct. 149, 151-52, 82 L.Ed. 288 (1937), Justice Cardozo wrote that those particulars of the Bill of Rights which must be held to apply as against the States through the Fourteenth Amendment Due Process Clause are those which “have been found to be implicit in the concept of ordered liberty, ...” such that “a fair and enlightened system of justice would be impossible without them.”

Searcy, 798 P.2d at 927.

He noted that:

The underlying theme of these various formulations of “due process” is a sense of historical precedent upon which American institutions were founded and our continuing legal traditions. Thus, the proper focus in evaluating the place of a particular doctrine in the concept of due process is the pervasiveness of the doctrine in the history of the common law. A review of the extensive history of the insanity defense in the law of England and the United States leads to the conclusion that due process does require the availability of that defense to criminal defendants.

Searcy, 798 P.2d at 928.

As noted in Justice McDevitt’s dissent, the insanity defense has existed as an excuse to crime from the time of the reign of Edward I during the 13th Century, and was well established by the 16th Century. Searcy, 798 P.2d at 928-29. He pointed out that as early as the 18th Century there was recorded case law to the effect that a man deprived of reason cannot be guilty. The jury was so instructed in Rex v. Arnold, 16 How.St.Tr. 695 (1724). American cases closely tracked English law from the time that insanity was first considered as a defense in this Country’s courts. In re Clark, 1 City Hall Recorder (N.Y.) 176 (1816), and In re Ball, 2 City Hall Recorder (N.Y.) 85 (1817).

Then, in 1843, M’Naughten’s Case, 8 Eng.Rep. 718 (H.L. 1843), was decided. That case provided that a person suffering from disease of the mind, to the extent that they did not know the nature and quality of their conduct, or did not know that what they were doing was wrong, could not be guilty of a crime. The M’Naughten rule, in some form or another, has been followed in virtually every American jurisdiction until 1979. However, whether following the M’Naughten rule, or some other variation of the insanity defense, McDevitt points out that the appropriateness of the defense has rarely been questioned.

Second, McDevitt pointed out that there were three legislative attempts to abolish the insanity defense between 1910 and 1931, but that each of those legislative enactments were overturned by the state supreme courts where they were attempted. Searcy, 798 P.2d at 932. Referring to this Court’s discussion of those decisions in Korell, Justice McDevitt pointed out that:

The Montana Supreme Court, in its recent decision upholding the 1979 abolition of the defense in Montana, effortlessly distinguished those three cases because “[t]hey interpret statutes that precluded any trial testimony of mental condition, including that which would cast doubt on the defendant’s state of mind at the time he committed the charged offense.” Korell, 213 Mont. at 329, 690 P.2d at 999 (emphasis in original). The Korell court felt that Montana’s allowance for psychiatric evidence going to the issue of mens rea at trial removed any precedential value from those three prior cases. However, I believe that two of those cases have greater applicability to the issues faced in Korell and by this Court than the Montana Supreme Court would allow.

Searcy, 798 P.2d at 932.

For the reasons mentioned by the dissent in Searcy, I agree.

Finally, the dissenting opinion in Searcy points out that:

Another, albeit less authoritative, test of whether a particular doctrine is “implicit in the concept of ordered liberty” other than the history of the legal concept, is the unanimity with which the doctrine is adopted among American jurisdictions. With the exception of the three attempted legislative abolitions of the insanity defense noted above, and the recent rejections of the defense in Montana (1979), Idaho (1982), and Utah (1983), the insanity defense has been universally accepted in all American jurisdictions throughout this nation’s history.

Searcy, 798 P.2d at 934.

Based upon the foregoing, and based on the inapplicability of those authorities relied upon by the majority of the Idaho Supreme Court and the majority of this Court, the dissent in Searcy concluded that:

I believe it is evident that the defense has an independent existence of sufficient duration and significance to entitle it to a place in our American concept of “ordered liberty.”

Searcy, 798 P.2d at 927.

I agree.

I believe as strongly as anyone that innocent people must be protected from those who are a danger to society, whether their behavior results from mental disease or simply an antisocial personality. However, the alternative to imprisoning those whose behavior results from insanity, over which they have no control, is not to turn them loose on society. Our law prior to 1979 provided that when a defendant is acquitted based on the defense of mental disease or defect, he or she must be committed to the custody of the superintendent of the Montana State Hospital for so long as they remain a threat to society. Section 95-508, R.C.M. (1947). That procedural safeguard has been carried forward to our current statutory scheme. Section 46-14-301, MCA.

However, at a time of serious prison overcrowding, the unavailability of public funds with which to build new prisons, and obvious administrative problems controlling current prison populations, the last thing in the world that makes sense is to use prisons as warehouses for the insane. That obvious conclusion, by itself, is a matter of public policy which should normally be of no concern to the judiciary. But, when using prisons to house the insane results from a denial of the due process which is guaranteed under our State and Federal Constitutions, it should be of concern to the judiciary. I conclude that the abolition of the insanity defense in Montana is, for the reasons previously mentioned, a violation of due process. Joe Junior Cowan is certifiably insane and it was uncontroverted that at the time of the acts with which he was charged, he did not understand that his conduct was wrong or illegal. While the interests and safety of society may require that he be institutionalized for the rest of his life, or the duration of his mental illness, centuries-old standards of decency prohibit his conviction and placement in the Montana State Prison for an act which he could not appreciate was illegal. Therefore, I would reverse the judgment of the District Court.

JUSTICE HUNT joins in the foregoing dissent.


source: Caselaw Access Project

license: Public Domain

text:
    IN RE THE MARRIAGE OF DENISE RENE JURGENS, Petitioner Below, and JIMMIE ALLEN TURNER, Respondent Below and Petitioner Herein, v. ELEVENTH JUDICIAL DISTRICT COURT, Respondent Herein.
    No. 93-419.
    Dated October 14, 1993.
    50 St.Rep. 1202.
    260 Mont. 528.
    861 P.2d 186.

      For Petitioner: Jimmie Allen Turner, pro se; Jeffrey A. Noble, Snyder & Noble, P.C., Bigfork.
    For Respondent: H. James Oleson, Kalispell, for Denise Rene Jurgens and Eleventh Judicial District Court, Judge Michael H. Keedy.
   OPINION AND ORDER

On May 25, 1993, the Eleventh Judicial District Court, Judge Michael H. Keedy presiding, issued a final decree of dissolution in the marriage of Denise Jurgens (Jurgens) and Jimmie Turner (Turner). In the final order, Turner was ordered to pay to Jurgens:

1) $195 per month in child support beginning June 20, 1993;
2) $2,826 for Jurgens’ interest in the real property of the marriage;
3) $508 for Jurgens’ half of the parties’ 1991 tax refund; and
4) $1,161 in retroactive child support.

Neither party appealed the order and decree of dissolution.

On July 2, 1993, Jurgens filed an “affidavit of facts” with the District Court in which she stated that Turner had not paid any of the sums ordered by the District Court in the decree. The District Court subsequently issued an order instructing Turner to appear and show cause why he should not be held in contempt for failing to pay the sum of $4,8[8]5 as ordered in the May 25,1993, order and decree of dissolution. A July 27,1993, hearing date was set.

On July 26,1993, the day prior to the scheduled contempt hearing, Randall Snyder, an attorney for Turner’s father, George Turner, faxed and mailed a letter to Jurgens’ counsel. In that letter, Snyder indicated that he was enclosing a check for $2,000 which was “payable to your trust account... This amount is forwarded to you, for application on Jimmie’s obligation to Ms. Jurgens.” The letter also stated that “I included, within the amount payable to Ms. Jurgens, the amount for June and July child support.”

The contempt hearing was held the following day. Jurgens testified that she had received no money from Turner for payment of the amounts ordered in the May 25,1993, decree. Turner testified that, as far as he knew, Jurgens and her counsel had accepted his offer to discharge the amount owing by a $2,000 downpayment and terms of $150 per month at ten percent interest. The District Court found Turner guilty of contempt of court and entered four separate counts of contempt, apparently for the four separate debts set out above, and sentenced him to five days incarceration for each count — a total of twenty days. The District Court also ordered that Turner could purge himself of contempt if he paid Jurgens $4,885, plus costs and attorney’s fees of $529.20, by August 24, 1993.

On August 24, 1993, Turner filed a petition for writ of certiorari with this Court. He argued, among other things, that the District Court refused to hear or accept his evidence regarding the parties’ agreement to settle the amounts owing during the July 27 hearing. On August 24, 1993, we issued an order staying the contempt proceedings until further order of this Court and ordering responses to Turner’s petition. Jurgens and the District Court filed a joint response to the writ of certiorari; Jurgens also filed motions for attorney’s fees, costs, and sanctions and the District Court filed a motion to dismiss the petition for writ of certiorari. We initially review Turner’s petition for writ of certiorari.'

An order of contempt is final and conclusive and not an appealable order; a writ of certiorari is the proper avenue for review of a contempt order. Section 3-1-523, MCA; Milanovich v. Milanovich (1982), 200 Mont. 83, 87, 655 P.2d 959, 961. We note that this Court has made an exception to this rule in marriage dissolution proceedings and allowed review of contempt orders on direct appeal. In re Marriage of Sessions (1988), 231 Mont. 437, 441, 753 P.2d 1306, 1308. This exception, however, does not prohibit Turner from resorting to the usual method, a petition for writ of certiorari, to obtain review of the contempt order issued by the District Court in this case.

On review, we determine whether the court issuing the contempt order acted within its jurisdiction and whether substantial evidence supports the finding of contempt. Doran v. City Court of Whitefish (1989), 239 Mont. 94, 98, 779 P.2d 68, 70. In this case, Turner does not challenge the District Court’s jurisdiction. Indeed, it is obvious from the limited record before us that Turner was ordered to pay Jurgens $4,885 in May, 1993, and by his own admission, had not paid that full amount as of July 27,1993. Such a failure to comply with the District Court’s order constitutes contempt. See Sessions, 753 P.2d at 1309; In re Marriage of Robbins (1985), 219 Mont. 130, 137-38, 711 P.2d 1347, 1351.

Because of the unique procedural posture of this case, further examination of the District Court’s order is required. As noted above, the District Court imposed four separate counts of contempt, apparently for the four separate amounts owing and unpaid. According to the District Court’s order, Turner had until August 24,1993, to purge himself of contempt by paying the ordered amounts. Turner filed his petition for writ of certiorari before Turner’s allowed time to purge himself of the contempts expired. As such, the District Court did not have an opportunity to consider whether Turner had, in fact, purged himself of one or more of the four counts of contempt.

As stated earlier, Turner contends that his father, George Turner, has paid $2,000 on his behalf towards the amount he owes to Jurgens. The letter to Jurgens’ counsel also seems to indicate that the amounts for the June and July child support obligations were paid by Turner’s father. From the record before this Court, we cannot ascertain whether those amounts were received or accepted by Jurgens.

We conclude, therefore, that it is appropriate for Turner to submit to the District Court documentation of the amounts he, or someone on his behalf, has paid to Jurgens pursuant to the District Court’s orders. After Jurgens has had opportunity to respond, the District Court should determine which, if any, of the four counts of contempt have been satisfied by the payments made, and issue the appropriate orders.

We emphasize that we are in no way concluding that Turner is not subject to contempt for failure to abide by the District Court’s May 25,1993, order. We conclude only that, in light of the manner in which the separate contempts were imposed and the contusion over payments alleged to have been made prior to the contempt hearing, further proceedings are appropriate to determine the extent to which one or more of the contempts have been purged.

The remaining issues raised in Turner’s petition for writ of certiorari do not relate to the contempt order and, therefore, are not properly before us. Similarly, as we are granting limited relief to Turner, Jurgens’ motions for attorney’s fees, costs and sanctions will also be denied.

IT IS ORDERED:

1. Turner is granted ten (10) days from the date of this Opinion and Order to file with the District Court proof of the amounts paid to date towards the total amount owing to Jurgens;

2. Jurgens is allowed five (5) days from the date of Turner’s submission to respond, if desired, to that evidence;

3. The District Court shall then determine whether Turner has purged himself of any of the four counts of contempt entered against him. If the entire obligation has not been satisfied, the District Court shall execute the contempt sentence(s) imposed.

4. Jurgens’ motion for attorney’s fees and costs is DENIED;

5. Jurgens’ motion for sanctions is DENIED; and

6. The District Court’s motion to dismiss the writ of certiorari is DENIED.

The Clerk of Court is directed to mail a true copy of this Order to the Jimmie Turner personally, to counsel of record for all parties, to the Honorable Michael H. Keedy and to the Clerk of Court for the Eleventh Judicial District.

DATED this 14th day of October, 1993.

J.A. TURNAGE, Chief Justice

JOHN CONWAY HARRISON, Justice

KARLA M. GRAY, Justice

WILLIAM E. HUNT, SR., Justice

TERRY N. TRIEWEILER, Justice

JAMES C. NELSON, Justice

FRED J. WEBER, Justice


author: CHIEF JUSTICE TURNAGE

text:
    IN RE THE MARRIAGE OF EDWARD L. SMITH, Petitioner and Appellant, and SHARON B. SMITH, Respondent and Respondent.
    No. 93-307.
    Submitted on Briefs September 23, 1993.
    Decided October 21, 1993.
    50 St.Rep. 1307.
    260 Mont. 533.
    861 P.2d 189.

      For Petitioner and Appellant: E. Eugene Atherton, Kalispell.
    For Respondent: Paul A. Sandry, Warden, Christiansen, Johnson and Berg, Kalispell.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Edward L. Smith, petitioner, appeals from an order entered by the Eleventh Judicial District Court, Flathead County, requiring him to pay maintenance to his former spouse, Sharon B. Smith. We affirm the District Court’s order.

The issue presented is whether the District Court erred in modifying the parties’ dissolution decree to include a maintenance provision, when the original decree was silent as to maintenance, and one spouse moved the court for modification of the decree.

Edward L. Smith (Edward) and Sharon B. Smith (Sharon) married on June 12, 1960, at Livingston, Park County, Montana. Four children were born during the marriage, all of whom were emancipated at the time of the dissolution. Edward, disabled, received workers’ compensation monies from the State of Alaska during part of the marriage. Edward negotiated a settlement with the State of Alaska, which resulted in his entitlement to a lump sum of $75,000, to be paid in the Fall of 1991.

After approximately thirty years of marriage, Edward filed for dissolution on October 29, 1990. The parties entered into a marital settlement agreement prior to the dissolution hearing, which agreement in part provided:

The parties hereto are possessed of certain real property and personal property which has been previously equitably divided between them.

The agreement was silent as to maintenance. The agreement did, however, state that:

Husband agrees to and shall pay the sum of $16,988.62 immediately upon the receipt of his Workers’ Compensation settlement [benefits] [to wife].

As security, Edward signed a promissory note, promising to pay Sharon $16,988.62. In return for this note, the marital settlement agreement and a release, Sharon consented to entry of a decree of dissolution of the marriage. The court incorporated the marital settlement agreement into the parties’ decree of dissolution and entered the decree on January 18,1991.

Edward received the workers’ compensation settlement proceeds during 1991; he did not pay Sharon any amount toward the debt he owed her. On April 1, 1992, he filed for bankruptcy under Chapter 7 with the United States Bankruptcy Court for the District of Montana. The Bankruptcy Court subsequently discharged Edward’s debts, including the debt owed to Sharon.

On October 15, 1992, Sharon moved the District Court for an award of maintenance. Among other things, she showed the court that she was unable to meet her living expenses. Edward in return moved the court to dismiss Sharon’s motion on the grounds that it was barred by the doctrine of res judicata. The court denied Edward’s motion and subsequently ordered him to pay Sharon maintenance of $356.86 per month for six years. The court did this by inserting the following maintenance provision:

Husband shall pay to Wife as maintenance payments the sum of $356.86 per month for a period of six years commencing on the 15th day of January, 1993 and ending on the 15th day of December, 1998. Interest at the rate of 10% per annum shall accrue on all delinquent payments.

The court further provided that “the obligation to pay future maintenance shall not be terminated upon the death of Edward ....” Edward appeals from the court’s order.

Did the District Court err in modifying the parties’ dissolution decree to include a maintenance provision?

We review discretionary trial court rulings, such as an award of maintenance upon dissolution, under the abuse of discretion standard. See In Re Marriage of Danelson (1992), 253 Mont. 310, 317, 833 P.2d 215, 218. Additionally, we review a district court’s findings of fact for clear error, and its conclusions of law to determine whether those conclusions are correct. Danelson, 833 P.2d at 219; Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603-04.

Edward contends that the court modified the parties’ dissolution decree without jurisdiction because § 40-4-203, MCA, is the exclusive grant of jurisdiction for awarding maintenance, and that the court’s modification did not comport with that statute. Sharon argues that § 40-4-208, MCA, gives a court jurisdiction to modify a dissolution decree and award maintenance up to two years after the entry of the dissolution decree, when the decree is silent as to maintenance. We agree with Sharon.

Generally, Montana law prefers property dispositions over maintenance in dissolution matters. In Re Marriage of Luisi (1988), 232 Mont. 243, 756 P.2d 456. Whether to award maintenance is a decision within the sound discretion of the court. See § 40-4-203, MCA.

In most cases, a final adjudication bars subsequent actions as res judicata. After a dissolution decree is entered, however, § 40-4-208, MCA, provides exceptions to the general rule. In Re Marriage of Ensign (1988), 227 Mont. 357, 739 P.2d 479.

A petition for modification with respect to maintenance must be considered by the District Court if it is filed within two years of the date the decree was rendered, regardless of whether the decree contains provisions for maintenance .... [Emphasis supplied.]

In Re Marriage of Cooper (1985), 216 Mont. 34, 37, 699 P.2d 1044, 1046; see also In Re Marriage of Jones (1990), 242 Mont. 119, 788 P.2d 1351.

Sharon filed the motion for modification within the statutory time limit of two years. See § 40-4-208(2)(a), MCA. The District Court then opened the property distribution portion of the dissolution decree after Sharon showed good cause for modification. See § 40-4-208(3)(b), MCA. After considering the evidence, the corut amended the dissolution decree to include an award of maintenance. We hold that because the original agreement was silent as to maintenance, the court had jurisdictional authority for this modification under § 40-4-208(2)(a), MCA.

We conclude that the court did not abuse its discretion in fashioning an equitable ruling made within the bounds of its statutory jurisdiction. The order of the District Court is therefore affirmed.

JUSTICES HARRISON, TRIEWEILER, NELSON and HUNT concur.


author: JUSTICE NELSON

text:
    ALTON EUGENE WALKER, Petitioner and Appellant, v. STATE OF MONTANA Respondent and Respondent.
    No. 93-200.
    Submitted on Briefs August 26, 1993.
    Decided September 28, 1993.
    50 St.Rep. 1115.
    261 Mont. 1.
    862 P.2d 1.

      For Appellant: Alton Eugene Wálker, Pro Se, Deer Lodge.
    For Respondent and Respondent: Joseph P. Mazurek, Attorney General, Elizabeth L. Grilling, Ass’t Attorney General, Helena; and Dennis Paxinos, Yellowstone County Attorney, Billings.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from the Thirteenth Judicial District Court, Yellowstone County, denying Alton Eugene Walker’s (Walker) petition for post-conviction relief. Walker appeals from the District Court’s denial of his petition. We affirm.

One issue is dispositive of this appeal: whether the District Court erred in denying Walker’s petition for post-conviction relief.

On June 30, 1988, Walker was charged with felony assault and aggravated assault. At that time, Walker retained John Adams as his attorney. Walker pled not guilty and was released on bond. Walker subsequently fled the jurisdiction of the state; a bench warrant was issued and his bond was forfeited.

On March 7, 1989, Walker was apprehended and returned to Montana. On April 24,1989, Walker retained Dennis Paxinos as co-counsel for the purposes of his trial, which was scheduled for June 5,1989.

After the jury trial concluded, Walker was found guilty of both the assault charges and, on July 13,1989, was sentenced to ten years on the felony assault charge and twenty years on the aggravated assault charge. Walker then moved pro se for a new trial and filed a petition for a writ of habeas corpus and a motion for a “Bill of Particulars.” Both motions were denied by the District Court. Walker did not appeal the conviction itself, nor did he appeal the denial of his motions.

Walker was sent to the Montana State Prison and then extradited to Ohio on September 15,1989, to stand trial for a pending charge of aggravated murder. He was found guilty of the murder charge, sentenced to life imprisonment, and returned to Montana to serve his assault sentences. Ohio currently has a detainer placed on Walker.

On March 29,1990, Walker filed a “Petition for Writ of Certiorari and Application for an Extension of Time to File an Appellant’s Brief,” requesting leave to file a delayed appeal. This Court denied that petition, and disallowed the untimely appeal.

On February 13, 1991, Walker filed a “Petition for Coram Nobis, etc., Motion to Vacate[,] Set Aside[,] or Correct Judgment” in state district court. On March 7, 1991, Walker filed a “Motion to Amend and Add to Previous Petition of Writ of Coram Nobis.” Among other claims for relief, Walker charged that his attorneys provided him with ineffective assistance of counsel. Because of this allegation, the District Court ordered the attorneys, John Adams and Dennis Paxinos, to respond to the charges. After their affidavits were filed, the State of Montana (State) moved to dismiss the petition. The District Court treated the petition as a petition for post-conviction relief, and dismissed all the claims except those regarding ineffective assistance of counsel. Walker has not appealed from the dismissal of these claims. Walker has, however, filed numerous petitions with this Court during the pendency of the District Court proceedings.

The District Court ordered an evidentiary hearing on the claims of ineffective assistance of counsel and appointed Walker new defense counsel. The hearing was held on August 7, 1992. On February 25, 1993, the District Court issued its Findings of Fact, Conclusions of Law and Order denying the petition for post-conviction relief. From this judgement, Walker appeals.

The factual background leading up to Walker’s conviction is as follows. Walker lived in Billings in a house with the victim, D.T., Beverly Martin (Martin), Donna Carl, and two children. D.T. had lived with Walker for approximately ten years and worked for him as a prostitute, as did the other women, in Billings and Butte.

In the early morning horns of June 21, 1988, D.T. and Martin returned from Butte where they had been working. Around 3:30 a.m., Walker and the women began smoking cocaine, continuing until 9:00 a.m. About that time, Walker became angry with D.T. and began hitting her, concentrating on the face and head. Walker threw drinking glasses at D.T. and hit her with heavy ashtrays, his fists, a belt and belt buckle, a flyswatter, and a telephone. He also broke one of her fingers. In addition, he re-opened a previous wound on her scalp and attempted to strangle her. This abuse went on for most of the day, with Walker starting and stopping the beating. Finally, Walker ordered D.T. to clean up the blood which had splattered on the walls and bed. As she was doing so, Walker pulled a “metal bar” (later identified as a shotgun) out of the closet and struck D.T. in the head with the barrel, opening a large wound on her forehead. Because the bleeding would not stop, Walker ordered Martin to take D.T. to the hospital.

D.T. was treated at the hospital for multiple lacerations on her face, head, and scalp. Glass was imbedded in the cuts, and she had bruising around her neck. In addition, one of her fingers was broken. At this time, there was no indication of bruising on her arms, chest, or abdomen. D.T. was afraid to tell the hospital personnel what had happened, in fear of Walker’s retaliation.

When D.T. left the hospital, around 6:00 a.m. on June 22, 1988, Walker was waiting for her. D.T. felt she had no choice but to return to the house. Upon arriving at the house, D.T. attempted to sleep but Walker kept waking her up. At 11:00 a.m., he ordered her into the living room, where he removed her clothing. He then began punching her on her chest, stomach, and arms. He also jumped on her with his knees, and stomped on her with his feet. When D.T. put up her hands to protect herself, Walker crushed a joint in her finger and broke another finger. He again threw ashtrays and drinking glasses at her and burned her face with a small torch. In addition, he punched out her front teeth and crushed her ribs. Walker would stop the beating, and then resume again. Finally, Walker threw a glass at D.T. which caused a severe cut to her forearm. The wound was bleeding severely and could not be stopped; Walker again told Martin to take D.T. to the hospital.

Martin and D.T. drove around the hospital, checking to see if Walker had followed them. Then, Martin told D.T. she would help her get away. Around 4:30 p.m., D.T. was driven to a pay phone, where she called a taxi. When the taxi arrived, D.T. climbed in the back seat and laid down, afraid Walker would see her. D.T. decided to go to Red Lodge, believing that Walker would not look for her there.

During the taxi ride, D.T. told the taxi driver, Norman Jensen, that her boyfriend had beaten her up, and told him about the earlier assault. Mr. Jensen drove D.T. to the hospital in Red Lodge, and Dr. Kerr, the emergency room physician at the Red Lodge hospital, treated D.T. upon her arrival. Dr. Kerr testified that the injuries D.T. had suffered were the worst beatings he had ever seen during his tenure as a physician. D.T. had bruises all over her face, neck, chest, abdomen, and back and lacerations on the front and back of her head. She was missing a tooth and had lacerations to the lip. In addition, two fingers were fractured and two ribs were broken, and she had a deep cut in her forearm. Dr. Kerr considered D.T.’s condition severe and possibly life-threatening. D.T. eventually had reconstructive surgery on her hands. D.T. was unable to feed herself for three weeks, was unable to eat solid meals for three months, and was unable to bathe or dress herself for six months.

After Dr. Kerr treated D.T., he contacted a social worker, Ed Lambrect, who interviewed D.T. at the hospital. D.T. was initially reluctant to identify and accuse Walker, but after Mr. Lambrect told D.T. that Dr. Kerr had to report the assault to the police, D.T. told Mr. Lambrect that she had been beaten by Walker, taken to a Billings hospital, then taken home and beaten again.

Meanwhile, the Billings police went to Walker’s house to investigate a report by the Department of Family Services regarding the children at the residence. An officer spoke with Walker and stated he was looking for Danny Sessions. Walker stated he knew Sessions but that Sessions was not at the house. An officer also asked Walker if he knew D.T., and Walker said that he did not know her very well and that he had not seen her for some time. Walker then left the house and walked away. The officer later learned that the name Walker was an alias used by Danny Sessions.

After D.T. spoke with the police regarding the assaults, the police returned to Walker’s house with a warrant, and found Walker hiding in a closet. Walker was placed under arrest and read his Miranda rights. Walker admitted that he had “done the first beating” but not the second one. At this time, the police had not even told Walker about the second assault.

The police also searched the house for items D.T. claimed she had been beaten with, including a “metal bar”, a pipe, glasses and ashtrays. The police found broken glass scattered around the house and found blood on the bed, walls, and ceilings. They also found broken glass imbedded in a wall, and found broken ashtrays, broken glass, and pieces of a flyswatter in the garbage can. The police did not find a “metal bar,” but did find a shotgun in the closet.

Walker did not present any evidence at trial. Based upon the facts previously discussed, a jury found Walker guilty of felony assault for the first beating and aggravated assault for the second beating.

The standard of review for denial of post-conviction relief is whether substantial evidence supports the findings and conclusions of the district court. State v. Coates (1990), 241 Mont. 331, 336, 786 P.2d 1182, 1185. Walker argues that the District Court erred in failing to find he was provided with ineffective assistance of counsel. We disagree.

There is a heavy burden of proof on a defendant who seeks to reverse a judgment on the grounds of ineffective assistance of counsel. State v. McColley (1991), 247 Mont. 524, 526, 807 P.2d 1358, 1360. In evaluating ineffective assistance of counsel claims, we utilize a two-part test as set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. First, the defendant must establish that counsel’s performance was deficient. Coates, 786 P.2d at 1185. Counsel’s performance will be evaluated pursuant to the “reasonably effective assistance” test; if counsel acted within the range of competence demanded of attorneys in criminal cases, his performance was not deficient. Coates, 786 P.2d at 1185.

To satisfy the second prong of the Strickland test, the defendant must establish that the deficient performance prejudiced the defendant so as to deprive him of a fair trial. Coates, 786 P.2d at 1185. The standard for evaluating prejudice is whether a reasonable probability exists that, but for counsel’s deficient performance, the trial’s outcome would have been different. Coates, 786 P.2d at 1185. However, this Court will not second-guess trial tactics and strategy. Coates, 786 P.2d at 1185.

In his petition for post-conviction relief, Walker alleges that the following errors were committed by Mr. Paxinos and Mr. Adams:

1. Counsel failed to introduce evidence to rebut D.T.’s claim that Walker had beaten her with a “metal bar” (or shotgun);

2. Counsel failed to introduce eye-witness testimony to the beatings; and

3. Counsel failed to file a notice of appeal.

I — THE METAL BAR/SHOTGUN ISSUE

Walker contends that counsel was ineffective by failing to introduce evidence rebutting D.T.’s testimony that Walker hit her with a shotgun, by not having the shotgun tested for trace evidence, and by not calling any experts to testify as to the exact cause of the wounds to D.T.’s forehead.

Mr. Paxinos exhaustively cross-examined D.T. on this issue, and elicited the admission from D.T. that she had originally told hospital personnel that she had been hit with a metal bar. Mr. Paxinos cross-examined Mr. Lambrect, the social worker, who also testified that D.T. told him she had been hit with a metal bar. Mr. Paxinos elicited this testimony from the police officer who initially interviewed D.T. Mr. Paxinos repeatedly attempted to impeach the credibility of D.T. by emphasizing the fact that D.T. had initially reported that she had been hit with a metal bar. In addition, Mr. Paxinos moved for a directed verdict on this issue because of the discrepancy between the information originally reported by D.T. and the testimony elicited at trial.

Walker has established nothing that indicates that either counsel fell below the standard of reasonably effective assistance on this issue. On the contrary, the record contains substantial evidence that Mr. Paxinos thoroughly addressed this matter, both on cross-examination and by moving for a directed verdict. Given the fact that the barrel of a shotgun is a metal bar, we fail to see how counsel could have made more of this issue than he did.

In addition, Walker contends that counsel was ineffective because they failed to have the shotgun tested for trace evidence and failed to call any experts to testify as to the exact cause of the wounds to D.T.’s forehead. These specific claims of ineffective assistance of counsel were not raised by Walker in his petition or during the hearing. Therefore, because Walker failed to raise these claims in the District Court, we will not address them for the first time on appeal.

II — EYEWITNESS TESTIMONY

Walker also contends that counsel failed to introduce eye-witness testimony to the beatings, and that this failure amounts to ineffective assistance of counsel. The record shows that counsel interviewed all possible eyewitnesses and decided that their testimony was not credible. For example, in the middle of the trial, Martin tried to take the blame for the beatings. Counsel discussed her statements with Walker, who agreed she should not testify. Counsel further made the record in chambers that they could not present Martin’s new story for fear of suborning perjury.

In addition, the record clearly indicates that Walker did not want anyone to testify on his behalf. The following discussion, which took place in chambers, is illustrative:

[By Mr. Adams]: I would like to put on the record the fact that the state having rested, it is the intent of the defendant to rest at this time... Mr. Walker has indicated to us that he does not wish to testify at this time, does not wish to offer any evidence in regard to this matter, but we want it understood that he was advised that he can if he wishes... Mr. Walker is that what we talked to you [about]?
[By Walker]: Yes, it is.
[By Mr. Paxinos]: Is it also true that we have discussed with you the fact that you had certain alleged alibi witnesses or witnesses that I could not —
[By Walker]: This is true. I don’t want her to testify, so we will just, we don’t want anybody else to get in trouble.
[By Mr. Paxinos]: We don’t want anybody else on the witness stand; is that right?
[By Walker]: That’s right.
[By Mr. Paxinos]: One clarification. You don’t want McNeil to testify either, is that correct?
[By Walker]: Well, at this point I don’t see any light anywhere. ...

Walker has not made any showing that counsel’s performance was deficient on this issue. Counsel was prepared for trial and properly questioned witnesses and investigated all viable leads. Counsel filed pretrial motions and attempted to negotiate a favorable plea bargain. Counsel rigorously represented Walker at trial, thoroughly cross-examined all witnesses, and moved for a directed verdict. The evidence against Walker was overwhelming; besides the convincing testimony of the victim, Mr. Jensen, Dr. Kerr, and Mr. Lambrect, the State offered evidence that Walker had misinformed police officers of his identity, presented tacit admissions by Walker, and introduced evidence that Walker was hiding from the police and had absconded from the jurisdiction of the State after making bail. Walker has not established that counsel fell below the standard of reasonably effective assistance on this issue.

Ill —APPEAL ISSUE

Walker contends that he was denied effective assistance of appellate counsel, because his attorneys did not file a notice of appeal. The record indicates that Mr. Adams and Mr. Paxinos met with Walker and informed Walker of his right to appeal. Counsel informed Walker that they did not believe any meritorious issues for appeal existed. After sentencing, Mr. Paxinos was dismissed by Walker. Mr. Adams advised Walker to pursue sentence review remedies. In addition, Walker never requested either counsel to file a notice of appeal. There is no basis for a claim of ineffective assistance of counsel based on a failure to appeal if the defendant does not express his desire to appeal to counsel. In Re Petition of David Allen Melone, (1992) 254 Mont. 538, 836 P.2d 1239.

The District Court found that Walker had been advised of his right to appeal, but did not communicate any desire to appeal to his counsel. In fact, the record shows that Walker wished to file a motion for a new trial, and drafted such a motion, as well as other petitions and motions, himself. The testimony of Mr. Paxinos and Mr. Adams, as well as Walker’s own actions, provide substantial evidence for the District Court’s finding that Walker was not deprived of effective appellate counsel.

In conclusion, there is substantial evidence in the record to support the District Court’s findings and conclusions that Walker was provided with both effective trial and appellate counsel, and that another attorney would not have obtained a more favorable result for Walker considering the amount of evidence the State presented against Walker. Walker has failed to establish that counsel's performance was deficient or that any of their alleged errors prejudiced the outcome of the trial.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, HUNT and TRIEWEILER concur.


author: JUSTICE GRAY

text:
    IN RE THE MARRIAGE OF DOROTHY DAVIES STOUT, formerly DOROTHY DAVIES GOLLEHON, Petitioner and Appellant, and THOMAS F. GOLLEHON, Respondent and Respondent.
    No. 92-268.
    Submitted on Briefs June 23, 1993.
    Rehearing Denied Oct. 28, 1993.
    Decided October 4, 1993.
    50 St.Rep. 1119.
    261 Mont. 10.
    861 P.2d 856.

      For Petitioner and Appellant: K. Dale Schwanke, Jardine, Stephenson, Blewett & Weaver, Great Falls.
    For Respondent and Respondent: Daniel Donovan, Great Falls.
   JUSTICE GRAY

delivered the Opinion of the Court.

Dorothy Gollehon appeals from the findings of fact, conclusions of law and decree of dissolution entered by the Ninth Judicial District Court, Teton County, distributing the marital estate and declining to award attorney’s fees and costs. We affirm.

The following issues are raised on appeal:

1. Did the District Court err in distributing the marital property?

2. Did the District Court err by declining to award attorney’s fees and costs?

Dorothy Stout (Dorothy) and Thomas Gollehon (Thomas) were married on December 30, 1987. At Dorothy’s request, they signed a premarital agreement on that date expressing their desire to “keep separate and apart” their respective assets and obligations acquired either before or during the marriage.

Prior to the marriage, Dorothy resided on leased property referred to as the “Kreger Place” near Fairfield, Montana, where she raised Tarentaise cattle. Dorothy characterized the Kreger lease as a “sweetheart deal,” asserting that she was charged only one-third the cost of leasing comparable property and was also able to sublease a portion of the property.

Dorothy moved her cattle onto Thomas’ ranch, located eighteen miles from the Kreger Place, shortly after the marriage. She intended the cattle to remain there only for the winter and calving season, after which she would return them to the Kreger Place. However, Thomas insisted that she terminate the lease. Dorothy claims that Thomas made the forfeiture of the lease a condition for remaining married; Thomas asserts that she had agreed prior to the marriage to terminate the lease. In any event, Dorothy relinquished the lease in early 1988.

Thomas informed Dorothy that he wanted a divorce in April of 1989. Two months later, Dorothy filed a petition to dissolve the marriage, asserting that it was irretrievably broken and requesting an equitable division of the marital assets and obligations.

Dorothy subsequently determined that continuing to raise cattle was not feasible given the loss of the Kreger lease and the additional expense that would be involved in re-establishing her ranching operation. As a result, Dorothy sold her cattle at an auction sale held in October of 1989. Dorothy and Thomas formally separated later that month.

The District Court held a dissolution hearing on March 22, 1990. On September 25, 1991, the parties stipulated to allow the court to order the marriage dissolved pending later entry of the decree of dissolution. The court entered an order dissolving the marriage on November 1,1991 and filed its findings of fact, conclusions of law and dissolution decree on April 17, 1992. The court concluded that the parties were entitled to their individual assets and liabilities as of the termination of the marriage. The court also ordered that Dorothy and Thomas pay their own attorney’s fees and costs. Dorothy appeals.

Did the District Court err in distributing the marital property?

The District Court found that Dorothy and Thomas had executed a premarital agreement at Dorothy’s suggestion and concluded that the agreement was valid and enforceable. The court also made extensive findings concerning the factors set forth in § 40-4-202, MCA. Based on those findings, the court concluded that it was equitable for Dorothy and Thomas each to retain their own assets and liabilities as of the termination of the marriage.

We review a district court’s findings of fact relating to the division of marital property to determine whether they are clearly erroneous. Marriage of Danelson (1992), 253 Mont. 310, 317, 833 P.2d 215, 219. A district court, however, has no discretion in determining a question of law; thus, we review a court’s conclusion of law to determine whether it is correct. Danelson, 833 P.2d at 219-20.

The bulk of Dorothy’s asserted errors relate to the District Court’s findings under § 40-4-202, MCA. She contends that a number of the findings were clearly erroneous because they were not supported by substantial evidence or reflect the court’s misapprehension of the effect of the evidence. However, because the District Court’s conclusion regarding the enforceability of the premarital agreement is dispositive if correct, we focus initially on that conclusion.

Dorothy challenges the enforcement of the premarital agreement on two grounds. First, she contends that she did not enter the agreement voluntarily because she did not know that Thomas would insist on the relinquishment of the Kreger lease. Second, Dorothy asserts that she did not know Thomas’ financial situation when the agreement was executed.

Thomas and Dorothy executed their premarital agreement on December 30,1987. The Uniform Premarital Agreement Act(the Act), codified at §§ 40-2-601 through -610, MCA, applies to premarital agreements executed on or after October 1,1987. 1987 Mont. Laws, Ch. 189, Sec. 17. Thus, the Act applies to the agreement before us.

Section 40-2-608, MCA, of the Act specifically governs the enforceability of premarital agreements. A premarital agreement may be set aside under subsection (1) of that statute if the party seeking to avoid the agreement proves that it was not executed voluntarily. The sole basis for Dorothy’s claim regarding voluntary execution is her assertion that she did not know Thomas would insist on termination of the Kreger lease when she signed the agreement. Even if her assertion is true, Dorothy cites no authority to support her contention that a lack of knowledge concerning Thomas’ future conduct renders her execution of the agreement involuntary. Furthermore, the record reflects that the premarital agreement was executed at her suggestion and drafted by her attorney. Thus, there is no merit to her contention that she did not enter into the agreement voluntarily.

Dorothy’s assertion that she did not know the extent of Thomas’ assets also provides no basis to preclude enforcement of the agreement under § 40-2-608, MCA. Aparty must prove that a premarital agreement was unconscionable when executed and that there was no fair and reasonable disclosure of the other party’s property and financial obligations before the agreement can be set aside under § 40-2-608(2), MCA. Dorothy has not contended that the premarital agreement was unconscionable at the time of execution. Indeed, such a position would be untenable considering that the agreement was executed at her suggestion and drafted by her attorney. Thus, her assertion that she did not know the extent of Thomas’ property is not a sufficient basis to set aside the agreement under § 40-2-608(2), MCA. We conclude that the District Court correctly concluded that Dorothy and Thomas’ premarital agreement was valid and enforceable.

We next turn to the terms of the agreement to ascertain the distribution of the marital property. The premarital agreement reflects Dorothy and Thomas’ intent “to keep separate and apart” the assets and liabilities they individually acquired either prior to or after the marriage. The agreement expressly governs “any rights that either might or could have as to the other or the property owned by the other by reason of said marriage.” Furthermore, the premarital agreement contains Dorothy and Thomas’ mutual waiver of all rights and interests in the other’s property that they might acquire as a consequence of the marriage. Thus, according to the terms of the premarital agreement, Dorothy was not entitled to any share of Thomas’ assets upon the dissolution of the marriage.

Dorothy contends that, even if the premarital agreement precludes her from obtaining an interest in Thomas’ assets that might have arisen as a consequence of their marriage, it should not be construed to prevent her from obtaining damages resulting from the termination of the Kreger lease. Relying on 66 Am. Jur. 2d Release § 14 (1973), she asserts that a person cannot release another from liability arising out of the other’s future acts.

The obvious flaw in Dorothy’s position is that the termination of the Kreger lease is not relevant to the distribution of property upon dissolution of the marriage. As discussed above, the distribution of the marital property is governed by the premarital agreement in which Dorothy waived all her rights and interest to Thomas’ individually-owned assets acquired either before or during the marriage. Any appropriate action Dorothy may have for damages resulting from Thomas’ insistence that she relinquish the lease is separate and apart from the dissolution proceeding and the distribution of the marital estate therein.

Finally, we turn to Dorothy’s alleged errors concerning the District Court’s findings under § 40-4-202, MCA. She asserts that the findings did not take into account the financial detriment, including additional expenses and loss of future income, that she incurred as a result of Thomas’ insistence that she terminate the Kreger lease. On that basis, she contends that an equitable distribution of the marital property requires that she be awarded, at a minimum, $36,837 from Thomas’ assets.

Prior to enactment of the Act, a premarital agreement was but one factor a district court was required to consider when distributing marital property under § 40-4-202, MCA (1985). In re the Marriage of Johnston/Turrin (1992), 255 Mont. 421, 425, 843 P.2d 760, 762. However, the legislature added subsection (5) to § 40-4-202, MCA, when it passed the Act; that subsection requires premarital agreements to be enforced as provided by the Act. Thus, where a premarital agreement is enforceable under the Act, the property distribution is governed by the agreement and not the factors set forth in § 40-4-202, MCA. Therefore, we do not address Dorothy’s asserted errors relating to the court’s findings regarding those factors.

While the District Court erred in applying the § 40-4-202, MCA, factors rather than relying solely on the valid and enforceable premarital agreement, its distribution of the marital property was in accord with that premarital agreement. We hold that the District Court did not err in distributing the marital property.

Did the District Court err by declining to award attorney’s fees and costs?

Section 40-4-110, MCA, allows the district court to award attorney’s fees and costs to either party in a dissolution action after considering the parties’ respective financial resources. The district court has considerable discretion in making such an award. In re the Marriage of Peetz (1992), 252 Mont. 448, 453, 830 P.2d 543, 549. We will not overturn a court’s denial of attorney’s fees absent an abuse of discretion. In re the Marriage of Wackler (1993), [258 Mont. 12], 850 P.2d 963, 966, 50 St.Rep. 406, 408.

Dorothy asserts that the District Court’s only finding concerning this issue was that she did not include a specific request in her pleadings. She also contends that her requests for “such other and further relief’ in her petition and for attorney’s fees in her proposed findings of fact, conclusions of law and decree were a sufficient basis for the court to award attorney’s fees and costs. Finally, relying on In re the Marriage of Johnsrud (1978), 181 Mont. 544, 572 P.2d 902, Dorothy contends that the District Court has jurisdiction to make such an award even absent a specific request.

Dorothy’s assertion that the District Court limited its findings on attorney’s fees to her failure to make a request is not supported by the record. In addition to that finding, the court found that she had not demonstrated an inability to pay her own attorney’s fees and costs. According to the court’s findings, Dorothy had sufficient income and assets from which to pay her own attorney’s fees, including the proceeds of her cattle sale, ‘loans” or gifts from her father, jewelry and other personal property. The court also found that she had not established the amount and reasonableness of her attorney’s fees and costs.

We conclude that the District Court did not err or abuse its discretion in declining to award attorney’s fees and costs to Dorothy.

Affirmed.

JUSTICES HARRISON, TRIEWEILER, NELSON and WEBER concur.