*1
MONTANA,
OF
Respondent,
STATE
v.
Plaintiff
Appellant.
BUCKMAN, Defendant
RUBEN
JOSEPH
No. 80-284.
April
on Briefs
1981.
Submitted
July
Decided
Marcia Great for defendant and appellant. Gen., Helena, Bourdeau, Mike Greely, Atty. Fred County J. Falls, Great Atty., plaintiff respondent.
MR. HARRISON delivered the of the opinion Court. JUSTICE Buckman appeals Cascade District County Court convictions for aggravated kidnapping aggravated assault. 29, 1979,
During early hours of morning October defendant Buckman was observed in the area of the parking Inn in Heritage Falls, Great Montana. A Walker Security patrolman stopped defendant, questioned defendant drew a whereupon out handgun of his and fired a shot pocket in the direction of the patrolman. truck, Mahon, this incident a milk
During driven by Lyle ap- proached car. As security patrolman’s Mahon out of the got truck, he encountered Buckman. Defendant forced Mahon into the car security holding Mahon’s head. pistol thereafter another Soon Walker officer Security appeared scene, as did several Great Falls Defendant officers. police Buckman ordered Mahon to tell the officers not to approách minutes, car or he would security kill him. twenty For held Mahon in the captive car. He then surrendered and security was taken into custody.
Defendant Buckman raises three issues for this Court’s review: of, Was for, 1. defendant convicted and sentenced two separate 46-11-502, offenses out of a act in violation of section single arising MCA? Did the trial court fail to follow the statutory requirements
2. of section MCA? Did the trial court err in to instruct the refusing of a defendant who is reason of mental acquitted
disposition by disease or defect? 46-11-502(1), MCA, that a not be provides person may
convicted two offenses that are the same transaction if part one offense included in the An “included other. offense” is de- fined as one which “is established of the same or than less proof all the facts to establish required the commission of the offense (2)(a), charged.” Section 46-11-501 Buckman case the same fact used to establish assault aggravated used to establish the charge use, use, restraint or threat to force element of physical aggra- vated An additional fact is kidnapping. necessary prove *3 — is, aggravated charge to hold the kidnapping purpose concludes, victim as a shield or he hostage. aggra- vated assault or charge established the same less than all the by facts required and it prove aggravated kidnapping charge, must be considered an included as offense charged case.
The of when an offense is included in another question under terms of a convictions or statutory prohibition against mutliple for the same act has been punishments considered evaluated defendant, two tests under basic cited but the by State properly Arizona, takes on issue with defendant’s reliance case law from California and Illinois. While these decisions be an Oregon, may of law accurate recital in those under current jurisdictions, law, statutes and case the trial did not err in judge impos- Montana of he was sentences on both which ing charges against convicted. 940, 229, (1981),
In State v. Close
191 Mont.
623 P.2d
38
46-11-502, MCA,
177, 189,
is merely
we
that section
found
St.Rep.
a codification of the standard enunciated in
v. United
Blockburger
(1932),
299,
180,
States
284 U.S.
52 S.Ct.
“The rule applicable where the same act or transaction constitutes a violation of two distinct statutory the test provisions, to be to determine applied whether there are two offenses or only one, is whether each provision which requires proof of fact other does not.” 284 at U.S. at S.Ct. 182. (Emphasis added.) application to the Blockburger analysis statutes in here
question make it clear that defendant could be con- properly victed and sentenced for both offenses As defined charged. in sec- 45-5-202(1)(c), MCA, tion a conviction for assault re- aggravated (1) that a quires (2) proof or person caused purposely knowingly (3) reasonable of serious apprehension in another bodily injury case, use of a As in this weapon. applicable aggravated kidnapping (1) requires proof person charged knowingly purpose- (2) ly (3) without lawful authority restrained another person (4) using use force threatening with the of physical purpose 45-5-303(1)(a), victim as a holding shield or hostage. MCA. Under these statutes the of assault charge aggravated may without of proved restraint the intent to hold showing as a another or shield. the offense of hostage Similarly, aggravated does not entail the victim’s kidnapping serious apprehension Thus, or use of a bodily injury the accused. each weapon by charge not; therefore, requires facts which the other does proof neither offense with or is included merges in the other under Blockburger and section
Buckman also 46-11-502(4), MCA, maintains that section pro- *4 hibits conviction of both offenses in case. It present provides that when more than one offense is established the same transac- by tion, a person not be may convicted of more than one offense if “the offenses differ in that one only is defined to a prohibit designated kind of conduct generally the other to prohibit of instance such conduct.” Buckman specific argues aggra- vated of aggravated assault the use force prohibits generally defined to of such specifically is the use force kidnapping prohibit to restrain a of a or His conclu- person hostage shield. purposes sion is that since the behavior assault charge general prohibits and the the same behavior kidnapping charge prohibits specifi- one We cally, charge disagree sustained. only assault by conduct section prohibited aggravated perti- nent to case of causing this is reasonable serious apprehension 45-5-202(l)(c), in another use of a bodily Section injury by weapon. MCA. The conduct stat- prohibited by kidnapping aggravated ute is restraining another or to use force of using threatening 45-5-303(l)(a), is, any kind. Section Aggravated kidnapping therefore, assault, not a more of merely form specific aggravated crime, but an entirely with its own separate elements dif- specific from those in fering substantially assault statute. aggravated Buckman next of section language MCA, mandates either the appointment specific psychiatrist to have request one designated Warm Springs State Hospital is whenever there reason to doubt a to defendant’s fitness proceed or reason to believe that mental disease or defect of defendant will otherwise become issue the case. 46-14-202, MCA, provides:
“When there reason to doubt the defendant’s fitness proceed or reason to believe that mental or defect of the defendant cause, will otherwise become an issue in the the court shall appoint at least qualified one or shall psychiatrist request superinten- dent of Warm state at least Springs hospital designate one qualified which psychiatrist, designation may be include himself, to examine and report the mental condition of the upon defendant.”
In the case defendant filed a notice of on intent to rely defense of mental disease or defect that he did not have a prove state particular ofmind which an essential element offenses charged. He Charles presented Jones, Clinical testimony *5 150 Mental Community with the North Central Montana
Psychologist with re- stated that his Buckman meetings Health Center. Jones him reason to believe vealed various which gave symptoms from a mental illness. suffering Buckman and the notice gave that this testimony Defendant asserts would be an mental disease or defect to believe that court reason two court had only options view the issue in the case. In Buckman’s 46-14-202, MCA, neither of section under the mandatory language concludes, the court defendant of which were chosen. to the for examination pursuant denial of his motion erred in its 46-14-202, of section requirements 46-14-202(2), that we note section a matter As preliminary MCA, order a defendant that the court may on to provide goes for or “other suitable facility” psycho committed to a hospital that the District is not persuaded examination. This Court logical in sending function or directive failed to fulfill any judicial Court no examination. presents to the state Buckman Buckman prison unsuitable for such purpose. that the facility evidence prison find the that court’s order was deficient We it to name a an exaltation of because failed particular psychiatrist no was ex form over substance. There is question who, amined with a qualified psychiatrist, along psychologist, of defendant’s mental condition. filed detailed report (1980), This issue resembles that v. closely posed Kyle State 374, 260, 1447, 192 Mont. in which the de- 628 P.2d 37 St.Rep. fendant of a attacked from Warm on legitimacy report Springs order the court ground appointed superintendent him, but examine some of the tests were conducted actually others staff. This Court the defendant’s technical at- rejected 260, tack on the 37 at 628 P.2d 1449-1450. report. St.Rep. We is to have a find here. The statute Kyle persuasive spirit examine a defendant for the qualified purpose professional here, fulfilled, as we evaluation. Where spirit substantially and, find no substantial interference with a defendant’s rights thus, no reversible error. Section MCA. See also v. State (1980), Olsen 189 Mont. 614 P.2d St.Rep. Further, that, we take note of the fact at the time the motion denied, mental regarding examination was the District Court had received the report qualified psychiatrist psychologist that defendant was not indicating from a mental suffering or defect at the time the crimes were committed. thatAt point *6 had no “reason to judge doubt” defendant’s competence sanity. doubt, To raise such a the presented testimony psy- who stated that he chologist did not with of some the agree but who language also admitted that had report he not per- followed, examined sonally defendant. Based on the order that it is clear that the who had the judge, to review opportunity the report witness, listen to the personally did not this as accept testimony into calling original report question.
Defendant’s final issue attacks the District Court’s refusal of a instruction which read: proposed jury
“When a defendant is
on the
acquitted
ground
due to a men-
tal disease or defect he could not
have
of
particular state mind
that is an essential element of the offense
charged,
court shall
order him
to
committed
of
custody
superintendent Warm
state
Springs
to be
in
hospital
placed
appropriate institution for
care,
(See
46-14-301, MCA.)
custody,
treatment.”
section
instruction,
The
to
objected
State
this
on State v. French
relying
(1975),
sustained,
166 Mont.
This in determined that it was not error trial court to refuse to instruct the that a jury person acquitted by reason of mental disease or defect shall be committed to the State at Warm Hospital Court’s rationale was stated as Springs. follows:
“The function is to determine the facts jury’s relevant to guilt innocence. It should not concern itself with alternatives available to the court the verdict.” at following 166 Mont. 205.
Buckman his out that begins French was by pointing decided in before in the mental changes competency Code, of the Montana Criminal Procedure enacted in chapter law, the old Under the determination of criminal responsi- 46-14-211, could be made in of two bility either ways. MCA, for a in determination which the provided summary-type court could enter of of mental judgment acquittal ground disease or defect without a trial. excluding responsibility holding The second method was have the issue of mental disease or defect decided at trial with the issues of the case. along general in law determination repealed summary provided
The 1979 now at in The issue must be decided trial section of this role in determination issue jury’s case. every increased. is greatly reason, of
For that
Buckman asserts that the rule
v. United
Lyles
(D.C.Cir.1957),
States
254 F.2d
which
rejected
French,
court
should be reviewed. In
believed
Lyles,
know,
has
as
their
right
part
parcel
fact-finding
role, the
of an
verdict based on an
meaning
insanity
acquittal
defense. See also
Buckman disease or defect of the not reason mental consequences guilty by *7 the case. In the pros was verdict particularly prejudicial told the he argument, jury: ecuting attorney’s closing able to live with the acquittal that must also be “I suggest you did, him and what know this man you acquit based upon you if loose, be able to live with that.” (Emphasis him must also you turn defendant’s.) the jury’s that this statement compounds
Defendant argues or reason of mental disease of the not guilty by misunderstanding be misunderstanding only and that this defect verdict for commit- to the statutory provision instruction as prevented by such a verdict. ment following with Montana rule is consistent
We do not believe Lyles to the amendments virtue of the 1979 consistent by law or made comments that the State’s Nor do we find mental law. competency to a Lyles analysis. susceptible in this case make it specially in this We have held that the function consistently jury is to determine the facts relevant innocence. State guilt State French, Accord, (1975), 168 Mont. v. State v. supra. Caryl 389, 396. 543 P.2d and We reaffirm that the no further duty jury’s purpose go should not be involved with the of the verdict consequences they defendant, are there is render. charged Although, according no to determine the existence longer provision allowing judge trial, of a mental changes defect without statutory have increased the role on this issue. contention over- This jury’s trials, looks the fact that both involved not French Caryl jury the ex- summary dispositions by presiding judge. istence of the whatso- cited alterations in the statutes has no effect ever on the earlier of this of- Court holdings propriety fered instruction. summa- of the record reveals that defense during
Our review tion, that defend- theory defendant’s stressed to lawyer jury and that he ant was from a mental disease or defect suffering treatment, rather than should therefore given opportunity to the convicted. out pointed She being specifically would have to live with a conviction. they Thus, context, taken in it clear remark prosecutor’s more than a to the earlier exhorta- nothing legitimate response fact, tion of defense of that error caused any counsel. In light State’s comment is made harmless when the record is considered in its entirety.
Affirmed.
MR. CHIEF MR. DALY HASWELL JUSTICE JUSTICE concur.
MR. MORRISON concurring: JUSTICE However, take I concur in the result reached the majority. I which gives to that language majority opinion exception *8 argument. sanction to the attorney’s closing prosecuting out As pointed majority opinion, told the prosecutor jury: that suggest
“I must also be able to live you with based acquittal did, what know upon this man if you acquit him and turn him you loose, must you also be able to with live that.”
This statement was made in ato response defense argument the defendant should be given an opportunity for treatment. The finds the majority statement to prosecutor’s be legitimate to the defense response argument.
If prosecutor’s statement was in to made response defense argument regarding consequences of based acquittal upon defect, mental disease then the im- prosecutor’s was argument record, Although the defense went outside the proper. the defense informed the accurately about the jury consequence mental disease acquittal. If the was to prosecutor such an responding argu- ment, the informed the prosecutor falsely such an jury acquit- tal would result in the defendant being turned loose. both Though record, comments went outside the the defense statement was true while the prosecutor’s false. realize that
I the statement made prosecuting attorney on the basis that justified an outright acquittal of the defendant Nevertheless, would have the effect of the defendant. freeing statement is and when made to misleading, in the defense response defect, mental argument regarding would tend to create a false in minds of the impression jurors.
A prosecuting has a far at- attorney different ethical role than an torney a civil action. The prosecuting prosecuting attorney and should represents people strive the case always objectively. prosecutor’s closing in this case is im- when viewed context proper in owed. obligation er- only did not move for mistrial Defense counsel on the consequences ror court instruct failing jury trial these disease or Under based mental defect. acquittal upon However, circumstances, I do verdict. affirming I concur with the sentiment against improper intend hereby strong express *9 and, made, if the record is proper will tend to view prej- udicial as reversible error. arguments
MR. SHEA concurs. JUSTICE