*1
Respondent,
MONTANA, Plaintiff
v.
THE STATE OF
Appellant.
TAYLOR, Defendant
KENNETH
JACK
No. 12078.
Sept. 30, 1971.
Submitted
13, 1971.
Decided Dec.
Rehearing
7, 1972.
Denied Jan.
MR. JUSTICES HASWELL and filed con- part part. curring dissenting and McCarvel, argued, Ulrich, Glendive, Francis J. Mont. John Assn., Legal appeared, Helena, Service for defendant appellant. Helena, Gliko, Woodahl, Atty. Gen., L. David Y.
Robert Atty. Helena, argued, Haag, Gen. County Atty., Asst. Kenneth appeared, Glendive, plaintiff respondent. for Opinion
MR. JOHN HARRISON delivered JUSTICE C. of the Court. with the charged Taylor, Kenneth
Defendant, Jack 1968. 29, January on of murder in second crime finding de- was returned April jury verdict 19, 1968, On or defect disease mental by reason of “NOT fendant GUILTY ac- Following defendant’s excluding responsibility.” criminal judge of Gulbrandson, court quittal, district Hon. L. C. defend- Dawson, judicial district, county ordered
seventh of the superintendent custody ant committed to treat- Springs, for care hospital at Warm Montana state 95-508(a), Section R.C.M.1947. ment. 1969, hospitalized being
On December after nine- some months, pursuant (e), R.C.M.1947, to section 95-508 teen defend- petitioned ant release from the
grounds condition “that is such he can be released society danger and returned to or other himself society.” Acting members of petition, ap- on the court pointed qualified psychiatrists two to examine defendant and *3 report opinions to their the court toas his mental condition. After reports, hearing submission of the to was held deter- safely mine whether defendant could be discharged. released or At the hearing conclusion of the and after all evidence had submitted, been the district court held the “evidence is insuf- ficient the petitioner Court may determine the safely or discharged be released without danger to himself' or others.” burden-, appeals, contending
Defendant that while he may proving safely discharged of be or the- released, proof required preponderance standard is a of the evidence* he has met that standard. and In the alternative, defendant court argues the district should have ordered his release* upon such conditions the court should determine to be neces- protection of sary for the defendant and society under the? 95-508(c), provisions of section R.C.M.1947. R.C.M.1947', legislature enacted section 95-508, procedures
outlining for the commitment and subsequent discharge acquitted by mental crime dis- of one of a reason provides for R.C.M.1947, 95-508(a), ease or defect. Section “custody person mandatory commitment of such hospital” superintendent of Montana for care treatment, following acquittal. provides super- (b), R.C.M.1947, if the Section 95-508 “may person custody intendent committed to his believes discharged danger condition without to him- be or released on others, application discharge or he shall make for the self * * person report to or release of such in a court *.” “appoint (2) qualified psy- then at least The court must two * * * report person such and to chiatrists examine his mental condition” their as to to the court. provides: “If 95-508(c), R.C.M.1947, the court Section report psychiatrists, filed” satisfied necessary testimony the court that the com- other “as deems person discharged condition may be or released on mitted others, danger himself shall order court discharge release on such court deter- or his conditions as the necessary.” satisfied, If it shall the court is not mines superintendent’s hearing to determine the merits order hearing pro- application and “such shall deemed a civil person ceeding the burden shall be the committed may safely discharged prove that he or released.” provides recommit- (d), R.C.M.1947, for the 95-508 Section conditionally discharged person within released ment discharge or conditions of such release have years, if the five necessary and recommitment deemed not been fulfilled * * safety others safety for the “or *4 R.C.M.1947,provides appli- 95-508(e), pro for a se Section appointment quali- person, the two by committed the cation report, subsequent their and a as psychiatrists, hearing, fied (b) (c). However, 95-508 in sections provided for pro application such se until not consider such need court for care and confined person been * * (6) six months than not less period “for a treatment 95-508, to section comment Law The Criminal Commission the- acquittal and legal an forth the effect R.C.M.1947,sets custody. continued for criterion to used dis- acquittal ground of mental on the legal “The effect by excluding responsibility characterized ease defect appropriate to an (a) mandatory commitment of defendant him- acquittal, (b) upon dangerousness an institution power custody, (c) or others as criterion for continued self (other by habeas only committing court than affected (d) probation- corpus) discharge defendant, or release the discharge, appli- (e) ary an alternative to absolute release as discharge superintend- by cation for release be made with Hospital or of Montana State the defendant ent applications by frequency defend- limitations as * * * preferable dangerousness It ant. to make seems custody provide than to that the criterion for continued rather person may discharged re- committed or released when * * sanity Although may *. stored to his mental disease greatly improved, person map dangerous have such a still be personality background because than other of factors Also, provides possible- mental disease. such a standard may for the control of the occasional means defendant who quite dangerous successfully feigned but who mental dis- acquittal. prescribed procedure to gain protects- ease an The public providing both the defendant inde- an pendent psychiatric examination the defendant ac- before application release, tion on the and then either for sum- mary application action on hearing: favorable or a full provision probation for release on The furnishes additional' public protection to the the case of those individuals who supervision community.” some their return need (Emphasis supplied) 2, 1968, January Jack Taylor
On committed an act of second- *5 by shooting murder Clay any one Tennant without apparent provocation premeditation. shooting The occurred in a bar Taylor where drinking had dancing. been At presided the trial over judge the same who this heard application release, the defense of mental disease or defect supported was raised and testimony defendant who maintained he had during “blacked out” the incident and was unable to recall leading up during, to, events or immediately shooting. after testimony Defendant’s was supported by further testimony Freese, Dr. one a Miles City psychiatrist, treating who had been defendant for some prior shooting. time Dr. date of the Freese testified that in suffering defendant was from mental dis- ease; prognosis “very poor;” and, that his defendant hospitalized many years” “should be use with “intensive help ability.” medications to stabilize his emotional jury The returned a guilty by verdict of not reason of mental disease or defect and defendant was committed April 1968, hospital to the Montana state with accordance section 95-508(a), R.C.M.1947. 5,
On December petitioned defendant pur- for release suant to section (e), R.C.M.1947, alleging .95-508 “be- lieves his condition is such that he can be released and society returned to danger to himself or other mem- society.” bers of The district appointed court Drs. Calixto Harry Punzalan and Xanthopoulos, psychiatrists C. at the hospital, Montana state to examine report defendant and opinions the court their as to his mental condition. psychiatrists Both submitted letters to describing the court Taylor having as good “made a adjustment in the setting” and that while at he had “not exhibited any type psychosis.” Xanthopoulos Dr. submitted two let- court. ters to the The first Taylor one “selfish, described irresponsibile, callous, impulsive, and guilt unable to feel experience punishment.” In learn letter, his second Xanthopoulos stated: is man opinion if this express an been asked “We have history past society. view of his returned to able to be future predict impossible to judgment, it would be lack of any patient.” applies to and this behavior being be released Not that defendant should satisfied letters,, court strength psychiatrists’ the district (c), pursuant 95-508 hearing to section to be held ordered only wit- Dr. Punzalan were R.C.M.1947. Defendant and *6 deposed Xanthopoulos was later hearing. Dr. nesses at the court. deposition and his submitted being committed that as a result of Defendant testified insight gained has a substantial into he state previous were problem; that now realizes his difficulties he alcohol; and, that never realized he he result of his use on al- until attended a six week course was an alcoholic he during hospital. That his commitment Galen coholism at the helper, and chaplain’s assistant, a baker’s worked as a he has maximum although he was confined a butcher and as months, been has since security first three he ward for the com- parole on a ward that is grounds and lives granted full duty no attendant on is, there is self-governing pletely —that particular ward. on his escaped from that in March he did admit
Defendant Washington, Olympia, where hospital and went to the state carpenter longshore- and as a month as worked for one he police “run- apprehended the local as a wms man, until he hospital. Montana state away” from the released, future, he be plans for should
Defendant’s job apparently where he moving to Oklahoma include Anonymous. join Alcoholics awaiting him and that while he had not treated defend- Dr. Punzalan testified him, past record, and with examined his ant, had talked Dr. opportunity to observe his behavior. It was had had the opinion that: Punzalan’s * * “* my my examination at the time of based patient, nonhostile very cooperative,
examination, I him saw every- in every manner, he is oriented and he is coherent psychosis, call any signs as we thing, and he does show delusions, hallucinations, like this.” “Mr. Jack
Dr. Punzalan further stated that society;” Taylor present will be safe at the time to be out point possess nor is not now a low frustration he does person- presence of an antisocial there indication of the irrespon- “selfish, callous, Taylor ality. He did not find to be Xanthopoulos’ impulsive” indicated in as was sible, [or] first letter. Montana
Laboratory (electroencephalogram) at tests suffering Taylor or has suf- hospital “suggest” that fered Dr. Punzalan as organic “brain brain damage syndrome which was defined [*] * * will produce coupled syndrome, organic brain memory impairment.” This alcohol, effect previous has had the Taylor’s with use inhibitions, him normal leads causing him to or lose his relax memory “blackout” to the events and causes to trouble episodes. drinking transpire during his hearing during and reminded Dr. Punzalan was advised *7 but sanity, court not before the defendant’s that the issue society. dangerousness On potential to himself and rather his while dangerousness, Dr. Punzalan stated that of the issue if were dangerous, he could become so Taylor is not now drinking it would habits. He said that former to revert his conduct, predict” Taylor’s but he also future “hard to applies any individual. pointed out that this 2, 1970, to the court Dr. first letter dated March his Taylor having Xanthopoulos per- an described antisocial deposition term in sonality. He defined this as “a char- disorder the individual a acter or behavior tends to be usually into with get trouble the laws and loner and codes of type person it to a character indicated rather society.” He condition. a mental than would Xanthopoulos that he cross-examination, stated
On pointed but out guarantee Taylor’s future also behavior be- behavior guarantee any future he would not individual’s capable of homi- conditions, we are all cause under certain cide.
Defendant’s first contention standard is proof required persons hospital under committed to the state 95-508(a), R.C.M.1947, preponderance section is or should be greater and not cannot the evidence standard. We By very reason agree with this contention. nature of the hospital, any condi commitment to the state defendant’s for his be established evidence convinc tions release must beyond a reasonable doubt that the release ing its effect public. danger to v. Shack State could be effected ford, 1970, 262 359. Me. A.2d defendant, findings jury that the when
Inherent Clay Tennant, guilty by murder of was not tried for the defect, the conclusion that the reason mental disease By killing part of his mental disease or defect. so find- was a jury put in what have called defendant some courts ing, “exceptional people.” Leach, v. an class Overholser blameless, to be 669. He became one who is held F.2d subject penal an act imprisonment for otherwise free from sanctions. Shackford, legislature
As determined that noted exceptional class, one this the reasonable when enters him to a thing to do is to commit mental humane will, hopefully, undergo which enable he can treatment where member, society posing no as a useful threat to return to him general public’s safety. Howbver, to either his special public acquires interest in re his confinement and lease, which interest must be considered court. When given being release, public to his interest consideration against right weighed free. claimed be set must no proof, our statutes set find Though standard we *8 require judicial reasonable to that both medical and doubts C., be in public. Russell, resolved favor v. D. Overholser proof F.2d 195. find We this standard of confirmed quoted. Law Criminal Commission comment heretofore Here, must we determine whether defendant has met proof. burden of The appeal entire record reveals that only three witnesses testified or submitted evidence relevant to dangerousness defendant’s hos- two state —defendant pital psychiatrists. testimony selfserving. Defendant’s De- record fendant’s while hospital confined to the state shows that he jobs, including has held several re- one [butcher] quiring potential weapons; the use of that he has demon- ability get strated his along participate with others and to group therapy; in completed that he has train- alcoholic’s ing course; and, recognizes and rehabilitation that he he anis alcoholic and he must abstain use of in the alcohol escaped future. The record also that he reveals Olympia, Washington. hospital laboratory “suggest” The tests organic syndrome. from an suffers brain
While Dr. Taylor Punzalan testified that out safe society, predict in it is “hard to his future course of conduct” apparently dependent upon because his future conduct is ab- staining from the use alcohol. Xanthopoulos guarded was opinion. more He Taylor “conditionally”
stated should released con- abstaining ditions such release should include from alcohol follow-up psychiatric Although treatment. Dr. Xantho- poulos willing indicated that “the would be to make attempt arrangements or arrangements at least to make follow-up” treatment, specific program no some sort proposed any suggestion the court. Nor was there that the willing Oklahoma participate would authorities program. facts, has these the defendant On demonstrated evi beyond a reasonable doubt sufficient to dence move the dis-
333 released, he will not that, if of the district court cretion Taylor society? or think not. dangerous himself We either While, having personality. diagnosed been has a schizoid defect, or it is character medically, not mental a this is a disease relapsable potentialities.” State known for its disorder “well catalyst which The Shackford, Me.1970, v. 364. A.2d resort Taylor to “blackout” and possibly cause would could any guarantee violence, is devoid is alcohol. The record Taylor that will abstain use of alcohol. The efforts the are progress Tayloor made staff and the the acquitted admirable; Taylor of second but when defect, public ac- murder reason of mental disease the subsequent quired special a confinement and interest his duty protect that interest. it is the court’s release and cri legislature “dangerousness” the When the made custody, placed terion continued burden beyond doubt defendant to establish a reasonable evidence This dangerous he will future. not be in the foreseeable guarantee, will doctors he has failed to do. There is no nor Even predict, Taylor alcohol, not if released. will consume during though the indicates has abstained evidence defendant a con confinement, he within the confines of has done so subject be released and be environment. If he were to trolled having everyday recourse pressures of life might former hospital, he resume sanctuary of assurance, have we violence. This resulting with habits been offered. hospital- Taylor in 1968 “should be testified Freese specific program many years.” In the absence
ized following release, and due to providing for treatment alcohol, we temptatious feel defend- accessibility nature by the is at time not warranted release this ant’s unconditional evidence. appeal
Defendant’s
contention on
that in
event
second
acceptable for
him not
an unconditional re-
the court found
lease,
court should have
his conditional release
ordered
provisions
That
95-508(c),
under
R.C.M.1947.
section
provides
may
person
section
“# * *
the court
release a committed
guoh
conditions as the court
determines
necessary.” Taylor’s problem analogous
presented
to that
McNeil,
United
v.
(1970),
States
While we Judge with Chief concurr Bazelon’s *10 ing opinion in “Any person eligible McNeilthat so committed is for conditional may release if will fashioned that conditions be give adequate patient public will assurance the and the thereby injury.”, suffer the serious neither the facts nor record plan the instant case warrant such a release. No proposed by was hospital either the the or defendant for judge’s trial consideration. The record not show satis does factory judge grant evidence which trial a the could provided by Except conditional release as statute. for defend self-serving, by ant’s testimony, given which is the evidence psychiatrists “guarded” the two whether was as to defendant “dangerous.” would be statutes, any
Under Montana committed to individual hospital hospital the state is to be from released the when complete longer necessary protect no confinement is the public injury. individual or However, the from serious individ hospitalized following acquittal charges “by uals of crinminal respon reason mental disease or defect excluding criminal sibility” position. in a stand somewhat different cases legislature hospital’s the integrity order to insure the determination that the stat- individual’s condition meets utory release, provided standard for must release preceded by judicial a stand- statutory determination 95-508(c), R.C.M.1947. met. Section for have been ards release super requiring judicial point Ultimately following acquittal of hospitalized individual vision excluding crim or defect by of “mental disease crime reason indi well as the protect public responsibility,” is to inal subverted are not for release by insuring that standards vidual according be made final allowing the determination hospital staff. subjective the individual standards presided second Here, judge trial over the the same trial, request defendant, and heard the murder committed before evidence had all of the trial defendant’s release. He request returned hearing to be him at of defendant’s laboratory tests society. had the records He syn- “organic brain suggesting that defendant suffered drome” which indicated “brain damage that [*] [*] will [*] that defendant produce memory impairment.” He was aware apprehended had to had left the for month and hospital. to consider the returned to the state He had hospital psy- “guarded” testimony two rather testi- that at the trial Dr. Freese had chiatrists and was aware disease, defendant a mental fied in his suffered “hos- poor” prognosis “very should be defendant medication pitalized many years” use of with “intensive help ability.” emotional stabilize his Too, application should noted that this de- *11 (e), R.C.M.1947, appli- fendant under section 95-508 and not an provided by superintendent cation the of the state super- (b), for section 95-508 R.C.M.1947. The state noticeably any participation from intendent is absent in judge proceedings; gave a fact the trial no doubt considerable superintendent ready for had consideration felt defendant discharge for he could have moved under release (b), section 95-508 R.C.M.1947.
While determination of defendant’s mental expected behavior, if released, condition and his must expert weigh the basis of such testimony, the trial court could opinion reject evidence but he is not it. lie could bound if, in judgment, given testimony were reasons court, unsound. com- Under Montana statutes the trial mitting conditionally court, power discharge has the release the defendant. necessary
We feel it briefly separate comment on the concurring dissenting opinion and of Justices Haswell and Daly. opinion We concur analysis with that as opinion in evidence the instant case. We do consider distinction evidence; between “pre- the standards of ais ponderance of evidence” or beyond “evidence a reasonable doubt” to dissenting imply. be as vital as the Justices would public But, the protection is entitled to the who one committed a criminal act by society but is “excused” because of his mental condition. To establish that mental condition being longer no dangerous, we do it unwarranted not believe to have excluding any evidence hypothesis. other reasonable emphasize We hypothesis” “reasonable feel that and do not proof impossible.” “virtually fact, apply- As a matter of ing weight sufficiency standards as to the evi- jury quoted, dence from the instruction where the given certainty, based that, reasonable medical absent conflicting evidence, contradictory ordinarily would ex- hypothesis clude reasonable and be sufficient to move the discretion of the trier of fact.
Judgment affirmed. MR. CHIEF HARRISON, JUSTICE JAMES T. MR. CASTLES, JUSTICE concur. part
MR. DALY JUSTICES HASWELL and (concurring dissenting part): majority affirming concur with We the decision of court, disagree but we with the district rationale contained
337 ma- to the majority opinion in the dissent specifically and jority holding required. proof on the sufficiency
The evi- appeal ultimate issue is the discharge appli- dence sustain district court’s refusal to cant from pursuant proce- Montana state to the requirements dure and 95-508, of section R.C.M.1947. Under discharge requires this statute, finding by district court applicant’s “condition is such that he can released and society returned to danger to himself or other mem- society.” bers of The district such court here refused make finding, but instead found evidence insufficient for “the was discharged the court petitioner may safely to determine that danger or released without to himself or others.” The point conflicting largely evidence on this consisted expert opinion psychiatrists Montana evidence two at the past whose applicant’s were on conclusions based history together psychiatric and behavior with medical and Where, here, examinations. district court is trier of facts, weight sufficiency its consideration and governed by principles evidence is the same forth in the set given subject jury jury standard in a instruction this to a case: ordinarily permit opinion
“The rules of evidence do not exception to be witness received as evidence. An this expert rule person exists the case of witnesses. A who education, experience study expert any an become art, profession, may witness, science or and who is called as a give as to such matter which he is versed and which is material the case. You should consider expert opinion given weigh reasons, any, should if bound, opinion. it. You however, are not such an Give weight you it entitled, to which deem whether that you it, great slight, may reject your judgment if in given it are 4th, reasons unsound.” No. Cal.Jur.Inst.Civ. 33. district case, principles instant
Applying these to determine finding insufficient that the court’s evidence *13 supported discharged applicant safely could from prior escape Applicant’s substantial credible evidence. history of damage, past hospital, organic brain his his conflicting drinking and his and behavior, its effect on opinions psychiatrists eviden- of substantial the two constitute tiary support for court’s determination. the district duty reviewing findings
Our of fact in civil action jury tried the district court without a is confined to deter- sup- mining whether there substantial evidence to credible findings port them, we will disturb district court’s and preponderance against them. there is a clear of evidence unless D.D., & 155 Highway Falls State Com’n v. West Great F.C. 753, Mont. cited therein. P.2d cases specifically majority holding an We dissent applicant 95-508, prove R.C.M.1947, under section must discharge to “be- entitlement from the Montana state yond degree, required proof a reasonable doubt.” This is the of 94-7203, state to convict in a criminal case. Section degree 93-2001-1, R.C.M.1947 and section R.C.M.1947. This hy- proof requires any the exclusion reasonable other pothesis. entirely require In view it unwarranted our proof patient seeking discharge from this from a hospital pursuant 95-508, R.C.M. the Montana state section 1947. expressly provides 95-508
The statute itself a section degree of hearing proceeding.” The “shall be deemed a civil proceeding proof required applicant for relief civil of an 93-2001-1(5), preponderance of Section is “a the evidence.” simply greater weight of the evi- R.C.M.1947. This means the having convincing when dence, the more force or evidence Jury In- against opposing Montana weighed evidence. #21.00, Guide, cited thereunder. struction cases virtually impossible “beyond doubt” is a reasonable Proof predicting when individual the future human behavior of an under unknown of future circumstances indeterminable might subjected. stress to which In the words Xanthopoulos, quoted opinion: majority in the express man is
“We have been asked to an if this past history society. able to be returned view of his judgment, impossible predict and lack of it would be (Emphasis future applies any patient.” behavior and this added) again
And cross-examination indi- the doctor testified on majority opinion guarantee cated that he wouldn’t conditions, individual’s future behavior because under certain capable we are all of homicide. quite properly places proof burden
The statute applicant protection public. However, for the *14 require majority’s impossible does not and unattainable proof. majority holding In our is tant- view the converting amount to lifetime the Montana state into a possibility custodial institution which there is no of dis- charge.