State v. Cowan

NO. 91-289

IN THE SUPREME COURT OF THE STATE OF MONTANA

1993

STATE OF MONTANA,

Plaintiff and Respondent,

V. j

JOE JUNIOR COWAN,

Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula,

The Honorable Ed McLean, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Margaret L. Borg and William Boggs, Missoula

For Respondent:

Hon. Marc Racicot, Attorney General: Barbara

Harris, Assistant Attorney General, Helena

Robert L. Deschamps 111, County Attorney,

Missoula

Submitted: April 4, 1993

Decided: October6,1993

Filed:

Chief Justice J. A. 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?

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.

2

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 schizo-

phrenia, 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].I1

3

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 (l992), 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 5 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. A person 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 will 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 "purposet1 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 "reason-

able 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

5

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. A factfinder 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. A s the

6

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), - P-2d - t - St.Rep. _,

-, 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 eyewit-

nesses 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.

7

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,11in 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 Ilshe," llher,"and a "white

woman.'I That finding is supported in the record. The court then

8

found that, during the attack, Cowan I'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.

I1

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 3 9 , 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.

9

Evidence of a mental disease or defect is admissible in

Montana under 5 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 3 45-5-112,

MCA. That statute provides that “[iln 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. Bvers, __ P.2d at - Korell, 690 P.2d at

;

1002. As we noted in Bvers 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

10

proof. Leland v. Oregon (1952), 343 U.S. 790, 72 S.Ct. 1002, 96

L.Ed. 1302, reh. denied, 344 U.S. 848.

Section 45-5-112, MCA, provides that any evidence of organized

or integrated conduct ma^ 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 presump-

tion. 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, reh. denied, 448 U.S. 914.

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.

I11

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.

11

1985), 7 0 4 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

12

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.

We concur:

Justices

13

Justice Terry N. 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 11, 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,

14

subsequent to this Court's decision in statev. 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

Lelandv. 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

I"imp1icit 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, k required by due process.

(See also Robinsonv. 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 o the Insanity Defense (1982) 31

f

..

Emory L J 9: Note, The Proposed Federal Insanity Defense: Should the

..

Quality of Mercy Suffer the Sake of Safety ( 1984) 22 Am. Crim L Rev.

for

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

15

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.

16

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

17

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.

18

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

19

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

20

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.

21

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

KoreN . 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. 'I 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 ofthe 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 of Leland is thoroughly set forth by the

dissenting opinion of Justice McDevitt in state V S e a V (Idaho 1990),

.

798 P.2d 914. I agree with that analysis, and would follow it in

this case.

22

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 k n g (1929), 168 La. 958, 123

.

So. 639; Sinclairv. state (1931), 161 Miss. 142, 132 So. 581;

Statev. Strasburg (1910), 6 0 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 Palkov. 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, ..

. I f such that Ira fair and enlightened system

of justice would be impossible without them."

23

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 Rexv. Amold, 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. InreClark, 1 City

Hall Recorder ( N . Y . ) 176 (1816), and InreBall, 2 City Hall Recorder

(N.Y.) 85 (1817).

Then, in 1843, MpNaughten'sCase, 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

24

was wrong, could not be guilty of a crime. The MINaughten rule, in

some form or another, has been followed in virtually every American

jurisdiction until 1979. However, whether following the MlNaughten

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. seany, 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 KoreU

court felt that Montana's allowance for psychiatric

evidence going to the issue of mensrea 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:

25

Another, albeit less authoritative, test of whether

a particular doctrine is 8Bimplicitin 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. *I

Searcy, 798 P.2d at 927.

I agree.

I believe as strongly as anyone t st innocen people mus 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

26

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.

27

Justice William E. Hunt, Sr., joins in the foregoing dissent.

Justice

28

October 6, 1993

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the

following named:

Margaret L. Borg

Missoula Public Defender's Office

317 Woody St.

Missoula, MT 59802

William Boggs

Attorney at Law

P.O. Box 7881

Missoula, MT 59807

Hon. Marc Racicot, Attorney Gereral

Barbara Harris, Asst. Atty. Gen.

Justice Building

Helena, Mt 59620

Robert L. Deschamps, 111,

Missoula County Attorney

County Courthouse

Missoula, MT 59802

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA , ?

,