Lee R. KERR

ROSEBUD COUNTY ATTORNEY

Rosebud County Courthouse

P.O. Box 69

Forsyth, Montana 59327

(406) 356-2236

Attorney for Plaintiff

MONTANA SIXTEENTH JUDICIAL DISTRICT, ROSEBUD COUNTY

STATE OF MONTANA )

)

Plaintiff, ) CAUSE NO. DC 96-01

)

vs. ) STATE’S BRIEF IN SUPPORT OF

) MOTION IN LIMINE AND FURTHER

DAVID BARA, ) SUPPORT FOR STATE’S MOTION

) FOR ACCESS TO THE DEFENDANT FOR

Defendant, ) MENTAL EXAMINATION

The State, has good faith reason to believe, that the defense in this case, will at trial, attempt to show some form of intellectual efficiency defect, limitation, or impairment on the part of the defendant, that would impact upon the defendant’s ability to form requisite mental state of purposely or knowingly to the defenses charged. In the hearing for temporary investigative authority before the Youth Court, which was not before this court, the defendant did, in opposing the Temporary Investigative Authority, present witnesses that tended to show that the defendant did have intellectual limitations, that the defendant had Attention Deficit Disorder, had a specialized program of study, and to some extent, was intellectually impaired.

The State through its investigation, has also discovered that the defendant has a long history of aggressiveness andviolence that may raise the issue as to the defendant’s mental state, which should be evaluated. The defense has argued that the defendant has not raised and will not use the defense of mental disease or defect. However, as previously raised by the state, the state has the burden of proof as to whether the defendant acted purposely or knowingly, and this burden has been increased by the supreme court’s recent Rothacher case, which has been alluded to in previous briefs, ROTHACHER at 901 P.2d 82. (1985), and that the state, not only the defendant, has the right to request a mental examination. This was previously pointed out by the state in State ex. rel. V. Nelson vs. District Court, 173 Montana 221, 566 P.2d 1382(1977).

The defendant, in his reply to the state’s motion for access to the defendant, in the memorandum dated February 6, 1996, affirmatively states “The defendant does not raise the issue of his fitness to proceed, or his ability to form the mental states of knowingly and purposely.” Based on that affirmative representation by the defense, the state contends that the state should receive an order in limine squarely addressing these issues, and prohibiting the defendant from any argument or testimony that would in any way touch upon the defendant’s intellectual capabilities. If that is ordered, then a mental examination by the state may not be necessary.

The examination conducted at the request of the state, would not be for the purpose of eliciting incriminating statements from the defendant pertaining to the specific acts charged, butwould be done for the purposes of obtaining rebuttal testimony to any claims of mental defect or limitation of intellectual capacity. As sited to by the defendant, 46-14-217 is relevant to this issue, as it provides in relevant part “admissibility of statements made during examination” which is admissible on the issue of the person’s mental condition, whether or not it would otherwise be considered a privileged communication, only when after the defendant presents evidence, that due to a mental disease or defect the defendant did not have the particular state of mind that is the element of the offense charged. Although the defense claims that it is not relying on mental disease or defect, any testimony or evidence at trial that would in any way reflect on the defendant’s intellectual capacities would be testimony and evidence as to a mental defect, and as such, then the state would be entitled to rebut that claim, and the only way that claim could be rebutted would be through an expert witness testimony of a clinical psychiatrist after examination of the defendant, to either verify or dispel the defendant’s claim of intellectual defects that would impact on his ability to form the requisite mental state of purposely or knowingly.

Further documentation as to the state’s good faith belief that the defendant has a mental disease or defect and that in some way it may be attempted to be utilized by the defense at trial as a defense as to the elements of purposely or knowingly, is reflected in the medical statements that have been obtained from the defendant’s medical records regarding this particular defendant. The following medical statements are excerpts taken from the defendant’s medical reports and history, which are attached hereto and made a part of this document, and show a long history of aggression and behavioral problems. That upon further examination of the defendant, it may in fact demonstrate that the defendant does in fact have either a mental disease or defect.

From review of the defendant’s medical records, from the age of one (1) to fifteen (15) David Bara, Defendant, has been continually described as aggressive, destructive, violently angry, uncontrollable, dangerous and confrontational, as shown by the following excerpts:

1. That at the age of two (2) the defendant was a problem in his nursery because of hyperactivity and anger. The father of the defendant reports that he is mean to people, wants to hit everyone, including his dogs.

2. That the defendant had an emotional evaluation which revealed the defendant was a very angry young boy, “violently angry.”

3. That the defendant’s parents state that he was moody and would go from happy to being “ready to kill you,” which has left the parents feeling overwhelmed.

4. That at the age of twelve (12) years old the defendant was a danger to the staff. He would have power struggles with threatening manners toward others.

5. That at the age of fifteen (15) the defendant showed aggressiveness toward his peers.

The state’s sole motivation for requesting a psychiatric examination of the defendant is to access the defendant’s intellectual capabilities, defects if any, and not for the purposes of eliciting any admissions as to the crimes charged. Utilization of that examination would be used for the purposes of rebuttal of any claims related in any way to the intellectual deficits on the part of the defendant touching upon the issues of purposely or knowingly.

CONCLUSION

In conclusion, the state request that its order for a psychiatric examination of the defendant for rebuttal testimony be granted, or in the alternative, that the state’s motion in limine be granted, prohibiting the defendant from in anyway presenting testimony or argument as to any potential intellectual deficiencies, limitations, or deficits that the defendant may have. Respectfully submitted this day of February, 1996.

LEE R. KERR

ROSEBUD COUNTY ATTORNEY