No. 93-40s
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
STATE OF MONTANA,
Plaintiff and Respondent,
JAMES ALLEN EGELHOFF, Jji. (~1 ,iyyj
6
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln,
The Honorable Robert S. Keller, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Ann C. German, Libby, Montana; Amy Guth, Lincoln
County Public Defender, Libby, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, Pamela P.
Collins, Assistant Attorney General, Helena,
Montana; Scott B. Spencer, Lincoln County Attorney,
Libby, Montana
Heard: October 21, 1994
Submitted: February 23, 1995
Decided: July 6, 1995
Filed:
Cl&k
Justice Fred J. Weber delivered the Opinion of the Court.
James Allen Egelhoff (Egelhoff) appeals his conviction in the
District Court of the Nineteenth Judicial District, Lincoln County,
on two counts of deliberate homicide for the shooting deaths of his
two companions following a day of drinking. Egelhoff was sentenced
to forty years on each count and an additional two-year term for
use of a weapon on each count, a total of eighty-four years, to run
consecutively. The District Court also designated him as a
dangerous offender for parole purposes. We reverse and remand.
The following issues are presented on appeal:
I. Was Egelhoff denied due process by a jury instruction
that voluntary intoxication may not be taken into consideration in
determining the existence of a mental state which is an element of
the offense?
II. Did the District Court err in permitting a lay witness to
give opinion testimony?
III. Are the jury verdicts finding Egelhoff guilty of two
counts of deliberate homicide supported by substantial evidence?
IV. Did the District Court err in designating Egelhoff a
dangerous offender for purposes of parole?
We conclude that Issue I is dispositive.
Egelhoff was convicted by a jury of two counts of deliberate
homicide for the July 12, 1992 shooting deaths of Roberta Pavola
(Pavola) and John Christianson (Christianson). At approximately
midnight on July 12, 1992, their bodies were found in the front
seat of the station wagon belonging to Christianson and Egelhoff
was found in the rear cargo area, alive but intoxicated.
Egelhoff and a friend from Helena went to the Yaak area near
Troy to pick mushrooms in early July 1992. Egelhoff had no
2
transportation and no personal effects apart from some clothing and
a .38 caliber handgun which he kept in a holster on his right hip.
Pavola and Christianson, also in the Yaak area to pick
mushrooms, camped in an area near the place where they picked
mushrooms. Egelhoff and his companion camped in the same area as
Christianson and Pavola and became acquainted with them.
Egelhoff's companion departed prior to the day Pavola and
Christianson were killed.
Egelhoff, Pavola and Christianson sold their mushrooms on
Sunday, July 12, 1992 and then bought beer and went to a party at
a Troy apartment. They spent most of the day drinking at the party
and in bars. The trio left the party sometime after 9:00 p.m. in
Christianson's station wagon with Christianson driving, Pavola in
the front passenger seat and Egelhoff in the rear.
Much of what occurred after they left the party that evening
is unknown. Testimony at trial indicated that Egelhoff and
Christianson were seen in an IGA grocery store at approximately
9:20 p.m. and that Christianson's station wagon was seen being
driven in an erratic manner on Highway 2 west of Troy a while
later. Christianson's vehicle was also observed going off the road
into a ditch several times. Law enforcement officers later located
five places in the area where a vehicle had gone off the highway.
Numerous witnesses testified about their observations during
this period of time. Two of the witnesses who observed the
Christianson vehicle reported a possible drunken driver to the
Lincoln County Sheriff's department shortly before midnight. When
the station wagon came to its final stop and the sheriff's officers
3
arrived, it was situated in a ditch, Pavola and Christianson were
dead and Egelhoff was yelling obscenities from the rear of the
vehicle.
Both Pavola and Christianson died from gunshot wounds. Pavola
had been shot in the left temple area and Christianson was shot in
the right back side of his head. Pavola's body remained in the
passenger seat near the window and Christianson's body was found in
the middle of the front seat close to Pavola with his legs on the
floorboards in front of the passenger's seat and Pavola's upper
body slumped over his legs. Egelhoff's gun was found on the
floorboard near the brake pedal on the driver's side and Egelhoff
was in the back of the station wagon where the back seat had been
laid flat. Egelhoff's revolver was found with four loaded rounds
and two empty casings. Egelhoff was lying on his right side with
his head towards the back of the cargo area.
Detective Clint Gassett responded to a call about 1:00 a.m. on
July 13, 1992, and came to the Libby hospital where Egelhoff had
been brought by officers. Be testified that Egelhoff was
intoxicated, combative and cursing profusely. Detective Gassett,
another officer and others attempted to physically restrain
Egelhoff by holding him down on the table by his arms and chest.
Detective Gassett testified that Egelhoff continued to act wildly
during the five to six hours Gassett was at the hospital. Egelhoff
would calm down at times only to repeatedly flare up again.
According to the testimony of Detective Gassett, at one point
when another detective was preparing to take Egelhoff's photograph,
Egelhoff looked directly at the detective, pulled his leg back and
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kicked the camera out of the detective's hands with the flat of his
foot, knocking the camera to the floor. Detective Donald Bernall
testified that he thought Egelhoff's coordination was good and he
was surprised to learn that Egelhoff's blood alcohol content was
.36 percent.
Egelhoff testified that he did not remember much of what
happened on the evening of July 12, 1992, his last memory being
that he was at the party at the Troy apartment and that the sun had
not gone down. He testified he did not remember leaving the party,
being in the station wagon, shooting the gun, or kicking Detective
Bernall at the hospital. He further testified he remembered that
at one point in the evening the station wagon was parked somewhere,
and he and Christianson were sitting on a hill or a bank passing a
bottle of Black Velvet back and forth between them. He had no
recollection of Pavola being with them at that time.
Forensics testing identified gunshot residue on Egelhoff's
hands. The bullet that killed Pavola entered her head at the left
temple, exited the right back side of her head and was never found.
Testimony by the State's firearms examiner indicated that the
bullet which killed Christianson could have come from thousands of
guns with characteristics like Egelhoff's gun.
At trial, Egelhoff contended that because he had been found
unconscious and suffering from intoxication measured at .36 one
hour after being brought to the hospital, his level of intoxication
precluded him from having driven the car or undertaking the
physical tasks necessary to have done what the prosecution claimed
he had done. He contended that he suffered from an alcohol-induced
5
amnesia (blackout) which prevented him from recalling the events of
the night in question.
When ambulance attendants came to take him to the hospital,
Egelhoff kept asking questions like, "Did you find him?" When he
sobered up the next day, Egelhoff did not recall asking the
questions or to whom he may have been referring when he asked them.
Part of Egelhoff's theory which he presented at trial was that
there was a fourth person in the car who had disappeared before
officers arrived at the scene of the accident.
Dr. Clyde Knecht, a medical doctor who practiced in Libby,
examined Egelhoff in the emergency room at the Libby hospital in
the early morning hours of July 13, 1992. He testified that
Egelhoff, judging from his blood alcohol level and his behavior,
probably suffered from alcoholic "blackout" at some point in time
and for some period of time prior to the time of Dr. Knecht's
examination. He also testified that an intoxicated person
experiencing such a blackout may walk, talk, and fully function,
with people around the person unable to tell that the person
experienced a blackout.
A jury found Egelhoff guilty of two counts of deliberate
homicide for the deaths of Christianson and Pavola. BeCaUSe
defendant is granted a new trial as a result of our reversal of his
conviction as discussed below, we decline to address the remaining
issues raised by Egelhoff.
Was Egelhoff deprived of due process when the District Court
instructed the jury that voluntary intoxication may not be taken
6
into consideration in determining the existence of a mental state
which is an element of the offense of deliberate homicide?
Although Egelhoff raised four issues on appeal, oral argument
was granted only on this issue concerning the constitutional
validity of the 1987 amendment to § 45-2-203, MCA, regarding
consideration by the jury of evidence of intoxication in criminal
trials. Egelhoff voluntarily consumed alcoholic beverages on the
day of the homicides to the extent that his blood alcohol level
measured at least .33% and possibly .36%.
The District Court gave the following instruction to the jury
containing statutory language from § 45-Z-203, MCA, referring to
voluntary intoxication:
INSTRUCTION NO. 11
A person who is in an intoxicated condition is
criminally responsible for his conduct and an intoxicated
condition is not a defense to any offense and may not be
taken into consideration in determining the existence of
a mental state which is an element of the offense unless
the Defendant proves that he did not know that it was an
intoxicating substance when he consumed the substance
causing the condition.
We first address the State's argument that Egelhoff did not
object to Instruction No. 11 on the ground now asserted. Egelhoff
objected to Instruction No. 11 for several reasons, including
constitutional reasons. Egelhoff's counsel objected to the
instruction at the time of settling jury instructions. At that
time, she claimed that § 45-2-203, MCA, is unconstitutional because
it has the effect of negating the requirement that the State prove
a mental state when proving deliberate homicide where the defendant
is voluntarily intoxicated. She also argued that § 45-2-203, MCA,
is unconstitutional because it shifts the burden of proof on the
7
element of mental state from the prosecution to the defendant. In
addition to making these objections during the trial, Egelhoff's
counsel also made the same arguments and explained them in greater
detail in her post-trial motion for a new trial. We conclude from
our review of the record that Egelhoff's counsel properly objected
to the giving of this instruction.
Eqelhoff was convicted of two counts of deliberate homicide.
To convict on a charge of deliberate homicide, the State must prove
as an element of the offense that the defendant acted "knowingly"
Or "purposely" in causing the death of another human being.
Section 45-5-102, MCA. Eqelhoff claimed § 45-2-203, MCA, is
unconstitutional because it deprives defendants of due process by
removing from the jury's consideration facts relevant to a
determination of mental state, an essential element of the offense
to be proven beyond a reasonable doubt by the State.
Section 45-2-203, MCA, as amended in 1987, provides:
45-2-203. Responsibility -- intoxicated condition.
A person who is in an intoxicated condition is criminally
responsible for his conduct and an intoxicated condition
is not a defense to any offense and may not be taken into
consideration in determinins the existence of a mental
state which is an element of the offense unless the
defendant Droves that he did not know that it was an
intoxicating substance when he consumed, smoked, sniffed,
injected, or otherwise ingested the substance causing the
condition. (Emphasis supplied.)
In 1985, § 45-2-203, MCA, provided:
45-2-203. Responsibility -- intoxicated or drugged
condition. A person who is in an intoxicated or drugged
condition is criminally responsible for conduct unless
such condition is involuntarily produced and deprives him
of his capacity to appreciate the criminality of his
conduct or to conform his conduct to the requirements of
law. An intoxicated or druqqed condition may be taken
into consideration in determination of the existence of
8
a mental state which is an element of the offense.
(Emphasis supplied.)
Egelhoff does not contend that he has the right to the
affirmative defense of voluntary intoxication. He challenges only
the exclusion of evidence from the jury's deliberations for
purposes of determining mental state (the 1987 amendment)
Egelhoff contends that Instruction No. 11, containing the statutory
language from § 45-z-203, MCA, removed evidence of alcohol
intoxication from the jury's consideration in determining whether
he acted "knowingly" or "purposely" and relieved the prosecution of
its burden to prove the required mental state for deliberate
homicide, which is constitutionally impermissible.
The State contends that Egelhoff was not prejudiced because he
was allowed to use the evidence of intoxication in order to explain
his inability to remember the events of the evening as being the
result of an alcohol-induced "blackout" and also as evidence of his
lack of physical coordination which would have made it impossible
for him to have driven Christianson's station wagon the night of
the homicides. The State also argues that Egelhoff was not
deprived of due process because the court also instructed the jury
that the State had the burden of proving all elements of the
offense beyond a reasonable doubt.
It is well established that in order to afford a defendant due
process under the Fourteenth Amendment of the United States
Constitution, the State must prove every element of the offense
beyond a reasonable doubt. See In Re Winship (1970), 397 U.S. 358,
364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368, 375. 1n addition,
9
Sandstrom v. Montana (1979), 442 U.S. 510, 524, 99 S.Ct. 2450,
2459, 61 L.Ed.Zd 39, 51, held that an instruction which shifted the
burden of proof on the element of mental state to the defendant is
unconstitutional. In Sandstrom, the burden shifting resulted from
instructing the jury that “[tl he law presumes that a person intends
the ordinary consequences of his voluntary acts." The Sandstrom
presumption was a rebuttable presumption.
Egelhoff argues that in Sandstrom the defendant was at least
allowed the opportunity to rebut the presumption. He contends he
is denied that opportunity because the instruction prohibits
consideration of his intoxication in determining whether he acted
knowingly and purposely. Egelhoff also contends that Morissette
v. United States (1951), 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288,
supports his arguments because the United States Supreme Court
there condemned a process by which a defendant could be convicted
of criminal intent without proof by the government, which was
determined to be inconsistent with our philosophy of criminal law.
Our concern here is with proof of the mental state element of
the offense of deliberate homicide. The evidence presented at
trial established that Egelhoff had a level of intoxication
measured at .36. It is clear that such evidence was relevant to
the issue of whether Egelhoff acted knowingly and purposely; yet
Instruction No. 11 precluded the jury from considering it for that
purpose.
The prosecution presented a great deal of evidence which
reflected on Egelhoff's ability to shoot Pavola and Christianson
despite his level of intoxication. That evidence included the
10
following: In order to commit the crimes, he had to take the gun
from the glove compartment of the vehicle. He made an attempt to
flee after he went into the ditch. He tried to avoid detection
when Rebecca Garrison tried to approach the car. Ms. Garrison
noticed a stick which she assumed must have been used by Egelhoff
to depress the accelerator so that Egelhoff could drive from the
back seat. He could talk. At the IGA store at 9:20 p.m., Egelhoff
spoke well and did not slur his words. He later told Ms. Garrison
to "stay away" and he talked to the ambulance driver. He had
physical energy and strength. He tried to avoid detection by
another of the witnesses who had stopped to give assistance.
Detective Bernall testified that his coordination was good as was
demonstrated by his kicking of the camera. The evidence was
presented by the State to establish that Egelhoff acted "purposely"
or "knowingly." Such evidence could be properly considered by the
jury in its determination of whether or not he acted "purposely" or
"knowingly."
However, Egelhoff was not allowed to rebut such evidence with
evidence that his level of intoxication precluded him from forming
the requisite mental state. As a result of the elimination of the
opportunity of using this rebuttal evidence, the prosecution's
burden of proof for the element of mental state was reduced.
This is a denial of due process. Due process is "the right to
a fair opportunity to defend against the State's accusations."
Chambers v. Mississippi (1973), 410 U.S. 284, 294, 93 S.Ct. 1038,
1045, 35 L.Ed.2d 297, 308. This right to present a defense is
fundamental. Chambers, 410 U.S. at 302, 93 s.ct. at 1049, 35
11
L.Ed.2d at 312. In Martin v. Ohio (19871, 480 U.S. 228, 233, 107
S.Ct. 1098, 1101, 94 L.Ed.2d 267, 274, the United States Supreme
Court upheld a conviction of murder where the defendant attempted
to prove self defense. The Supreme Court held it was not a
violation of due process to place the burden of proving self
defense on a defendant charged with committing aggravated murder.
The Court in Martin emphasized that the defendant had the
opportunity under the law and instructions to justify the killing
by showing herself blameless because she acted in self defense. As
a part of that discussion the Martin Court then stated:
It would be quite different if the jury had been
instructed that self-defense evidence could not be
considered in determining whether there was a reasonable
doubt about the State's case, i.e., that self-defense
evidence must be put aside for all purposes unless it
satisfied the preponderance standard. Such instruction
would relieve the State of its burden and plainly run
afoul of Winship's mandate. 397 U.S., at 364. The
instructions in this case could be clearer in this
respect, but when read as a whole, we think they are
adequate to convey to the jury that all of the evidence,
including the evidence going to self-defense, must be
considered in deciding whether there was a reasonable
doubt about the sufficiency of the State's proof of the
elements of the crime.
. . .
When the prosecution has made out a prima facie case
and survives a motion to acquit, the jury may
nevertheless not convict if the evidence offered by the
defendant raises any reasonable doubt about the existence
of any fact necessary for the finding of guilt. Evidence
creating a reasonable doubt could easily fall far short
of proving self-defense by a preponderance of the
evidence. . . .
Martin, 480 U.S. at 233-34, 107 S.Ct. at 274-75, 94 L.Ed.Zd at
1102. While the above statement may not have been essential to the
holding of the Court, it emphasizes a clear distinction between
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placing a burden upon a defendant to prove a specific aspect of her
defense, in this case self defense, and instructing a jury that
self defense evidence could not be considered in determining
whether there was a reasonable doubt as to her guilt. The analysis
is clearly applicable to our present case. While Egelhoff was
given the opportunity to present evidence of his level of
intoxication, the instruction prevented consideration by the jury
as it decided whether or not there was a reasonable doubt as to
Egelhoff's acting "knowingly" and "purposely.1' Because the jury
was not allowed to consider that evidence for such a purpose, the
State was relieved of part of its burden to prove beyond a
reasonable doubt every fact necessary to constitute the crime
charged. It was reversible error to instruct the jury not to
consider it.
By allowing the jury to consider such evidence, we permit the
jury to make its decision on all of the relevant evidence as
required under Martin. By instructing the jury that it may not
consider intoxication evidence for purposes of determining a mental
state of "knowingly" or "purposely,'C the jury may be misled into
believing the State has proved the mental state beyond a reasonable
doubt and that is why defendant cannot introduce evidence in
opposition to a specific state of mind. The State should never
escape its burden of proof of each element of the offense.
Egelhoff's argument focuses on "burden shifting" which is not
technically what happens in a case such as the present one. The
burden is not shifted but rather it is lessened because the
defendant is precluded from presenting arguments concerning the
13
prosecution's "failure of proofl' of the subjective mental state
element required for conviction of a crime which includes the
mental state of acting "knowingly" or "purposely."
Similar arguments were presented in State v. Byers (1993), 261
Mont. 17, 41-41, 861 P.2d 860, 875. There are significant factual
differences between Byers and the present case, because Byers did
not rely upon intoxication as an element of his defense and because
there was no question in Bvers that he had committed the two
homicides, whereas in the present case Egelhoff relies on the
intoxication defense as part of his argument and the basic issue
was whether or not he actually committed the homicides.
In Byers the holding was that the district court did not
commit reversible error by instructing the jury that voluntary
intoxication is not a defense to criminal activity. Our holding in
the present case does not conflict with the express holding in
Byers. In Byers we did state that the intoxication instruction
which was identical to that in the present case did not relieve the
State of its burden of proving beyond a reasonable doubt all of the
elements of the offense. In making that statement, although it was
dicta, we were not correct as appears from our foregoing analysis.
We overrule any of the statements made in Byers to the extent that
it indicates it is constitutional to instruct that an intoxicated
condition may not be taken into consideration in determining the
existence of a mental state which is an element of the offense.
We conclude that the defendant had a due process right to
present and have considered by the jury all relevant evidence to
rebut the State's evidence on all elements of the offense charged.
14
We conclude that the following portion of 5 45-z-203, MCA (1993),
is a violation of due process and is therefore unconstitutional:
[an intoxicated condition]. . may not be taken into
consideration in determining the existence of a mental
state which is an element of the offense. .
We hold Egelhoff was denied due process when the jury was
instructed that voluntary intoxication may not be taken into
consideration in determining the existence of a mental state which
is an element of the offense.
For the benefit of the bench and bar of Montana, we briefly
discuss the extent to which the holding of this decision has
application to other cases. In a criminal case we have noted that,
at a minimum, all "new" rules of constitutional law must be applied
to cases still subject to direct review at the time the "new"
decision is handed down. State, City of Bozeman v. Peterson
(1987), 227 Mont. 418, 420, 739 P.2d 958, 960, citing Shea v.
Louisiana (19851, 470 U.S. 51, 57, 105 S.Ct. 1065, 1069, 84 L.Ed.2d
38, 45.
The United States Supreme Court has refined its position since
we decided Peterson, stating as follows:
We therefore hold that a new rule for the conduct of
criminal prosecutions is to be applied retroactively to
all cases, state or federal, pending on direct review or
not yet finalL.
Griffith v. Kentucky (1987), 479 U.S. 314, 328, 107 S.Ct. 709, 716.
93 L.Ed.Zd 649, 661. We conclude that the foregoing rule is
binding upon this Court.
15
With regard to the question of retroactivity, the United
States Supreme Court has additionally made its position more clear
and we find this also to be binding upon us:
Retroactivity is properly treated as a threshold
question, for, once a new rule is applied to the
defendant in the case announcing the rule, evenhanded
justice requires that it be applied retroactively to all
who are similarly situated. . .
It is admittedly often difficult to determine when
a case announces a new rule, and we do not attempt to
define the spectrum of what may or may not constitute a
new rule for retroactivity purposes. In general,
however, a case announces a new rule when it breaks new
ground or imposes a new obligation on the States or the
Federal Government. To put it differently, a case
announces a new rule if the result was not dictated by
precedent existing at the time the defendant's conviction
became final. [Citations omitted. 1
Teague v. Lane (1989), 489 U.S. 288, 300-01, 109 S.Ct. 1060, 1070,
103 L.Ed.Zd 334, 349.
We conclude that we have here established a "new rule." Based
upon the foregoing authorities, we conclude that our decision is
applicable to all cases still subject to direct review by this
Court on the date of this opinion. With regard to collateral
review as compared to a direct review of cases, the United States
Supreme Court has clarified its position as to collateral review of
criminal convictions, stating:
[W]e now adopt Justice Harlan's view of retroactivity for
cases on collateral review. Unless they fall within an
exception to the general rule, new constitutional rules
of criminal procedure will not be applicable to those
cases which have become final before the new rules are
announced.
The first exception suggested by Justice Harlan--
that a new rule should be applied retroactively if it
places "certain kinds of primary, private individual
16
conduct beyond the power of the criminal law-making
authority to proscribe," . .
The second exception suggested by Justice Harlan--
that a new rule should be applied retroactively if it
requires the observance of "those procedures that . .
are 'implicit in the concept of ordered liberty,'"
[citation omitted]--we apply with a modification. The
language used by Justice Harlan in Mackev leaves no doubt
that he meant the second exception to be reserved for
watershed rules of criminal procedure[.l
Teaque, 489 U.S. at 310-11. We conclude that such view of
retroactivity for cases on collateral review is binding upon this
Court.
We conclude that this decision does not fall within either of
the two above described exceptions to the general rule of non-
retroactive application to collateral review. We therefore state
this opinion will apply retroactively to those cases still subject
to final decision on direct review on the date of this opinion, but
will not apply retroactively to cases on collateral review after
the date of this opinion.
Reversed and remanded for a new trial.
Chief Justice
Justices
17
Justice James C. Nelson specially concurs.
I concur in our opinion. I write separately only because of
my lingering concern that our decision will be misread as allowing
an affirmative defense of voluntary intoxication in criminal cases.
That is absolutely not so. This case is not about a defense.
Rather, it deals with burden of proof and the fundamental
obligation of the State to prove each element of a criminal charge
--including the mental state element--beyond a reasonable doubt.
As a general proposition, the legislature may enact statutes
that specify what defenses are and are not available to a charge of
criminal conduct. In Montana, the legislature has, permissibly,
determined that voluntary intoxication is not a defense to the
commission of a crime and that, while voluntarily intoxicated, a
person is still criminally responsible for his or her conduct. In
other words, a defendant may not come before the jury and say: "I
shot and killed Smith because (or while) I was drunk. You must,
therefore, acquit me." To that extent, the portion of § 45-2-203,
MCA, which provides that "an intoxicated condition is not a defense
to any offense" was and is constitutional. That portion of the
statute is not at issue in this case.
On the other hand, as pointed out in our opinion, it is always
the obligation of the State to prove beyond a reasonable doubt each
and every element of the crime charged, including that the
defendant acted with the requisite mental state. If, in a given
case, the only way that the prosecution can prove the defendant's
mental state is by prohibitinq the jury from considering the fact
19
that the defendant was too intoxicated to form the requisite mental
state, then the State effectively and impermissibly has been
relieved of all or part of its burden to prove beyond a reasonable
doubt an essential element of the crime charged. Under both the
Montana and federal constitutions, the defendant must be allowed to
come to the jury and, in effect, say: "I did not act purposely or
knowingly; and the reason that I did not, is because I was too
drunk to act with either of those two mental states. If you, jury,
conclude that to be true--and that is solely your call based on all
the evidence--then you must also conclude that the prosecution has
not proven an essential element of the crime charged beyond a
reasonable doubt, and you must, therefore, acquit me."
In short, the language ". . . and may not be taken into
consideration in determining the existence of a mental state which
is an element of the offense. .'I (emphasis added) inserted in the
1987 and subsequent versions of § 45-2-203, MCA, effectively and
impermissibly relieves or lessens the burden of the State to prove
beyond a reasonable doubt an essential element of the offense
charged--the mental state element--by statutorily precluding the
jury from considering the very evidence that might convince them
that the State had not proven that element.
It remains the burden of the State to prove beyond a
reasonable doubt mental state despite the defendant being
intoxicated. The statutory language at issue here eliminates or
lessens that burden and is, therefore, constitutionally infirm.
Under 5 45-2-203, MCA, and our decision here, a voluntarily
20
intoxicated defendant remains criminally responsible for his
conduct and his voluntarily intoxicated condition continues not to
be a defense to any offense. However, the defendant's intoxicated
condition may be taken into consideration by the finder of fact in
determining the existence of a mental state which is an element of
the offense charged.
Justice Karla M. Gray joins in
21
Chief Justice J. A. Turnage, specially concurring:
I respectfully specially concur, specifically to the majority
opinion holding that the opinion will apply retroactively to those
cases still subject to final decision on direct review on the date
of this opinion but will not apply retroactively to cases on
collateral review after the date of this opinion.
I further specially concur and urge the next session of the
Montana legislative assembly to amend 5 45-2-203, MCA, to eliminate
the problem this Court finds to exist in the 1987 amended version
of this statute. I would recommend that the legislature consider
amending § 45-2-203, MCA, to reinstate the provisions thereof that
existed in the 1985 version of this statute. Such amendment would
essentially reinstate language that "[aln intoxicated or drugged
condition may be taken into consideration in determination of the
existence of a mental state which is an element of the offense."
22
Justice Terry N. Trieweiler specially concurring in part and
dissenting in part.
I concur with the majority's conclusion that the stricken
portions of § 45-Z-203, MCA (1993), violated Egelhoff's right to
due process, and therefore, were unconstitutional. However, I do
not agree with all that is said in the majority opinion.
I specifically disagree that a principle of constitutional law
can be made applicable to some citizens and not others.
In my view, the role of this Court is to interpret the
Constitution and apply it to the parties before it. Whether the
parties come before this Court by direct appeal, or by statutorily
authorized collateral review, is irrelevant. The protections
afforded by the Constitution apply to everyone. It makes no sense
to have different interpretations based on the procedure by which
an unconstitutionally treated person arrives in our Court.
The majority relies on Teaguev.Lane (1989), 489 U.S. 288, 109
S. Ct. 1060, 103 L. Ed. 2d. 334, for the principle that "new" rules
of constitutional law must be applied to all cases still subject to
review, but only under limited circumstances to cases which are
collaterally reviewed. Teague, and the U.S. Supreme Court's earlier
decision in GrifJifhv.Kentucky (1987), 479 U.S. 314, 107 S. Ct. 708, 93
L. Ed. 2d 649, are based largely on the earlier dissent of Mr.
Justice Harlan in Mackeyv. UnitedStates (1971), 401 U.S. 667, 91 S. Ct.
1160, 28 L. Ed. 2d. 404. In Ma&y, the majority of the U.S.
Supreme Court refused to apply two of its decisions interpreting
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the Fifth Amendment right against compulsory self-incrimination to
other cases which were pending on direct appeal at the time those
cases were decided. In dissent, Justice Harlan pointed out that
selectively applying the Constitution to people who are similarly
situated based merely on the circumstances or timing of their
appearance in court is the antithesis of the judiciary's
responsibility. Since his observations are equally applicable to
the distinction made between those defendants who appear by direct
appeal and those who appear by collateral review, they are worth
repeating.
We announce new constitutional rules, then, only as
a correlative of our dual duty to decide those cases over
which we have jurisdiction and to apply the Federal
Constitution as one source of the matrix of governing
legal rules. We cannot release criminals from jail
merely because we think one case is a particularly
appropriate one in which to apply what reads like a
general rule of law or in order to avoid making new legal
norms through promulgation of dicta. This serious
interference with the corrective process is justified
only be necessity, as part of our task of applying the
Constitution to cases before us. Simply fishing one case
from the stream of appellate review, using it as a
vehicle for pronouncing new constitutional standards, and
then permitting a stream of similar cases subsequently to
flow by unaffected by that new rule constitute an
indefensible departure from this model of judicial
review.
. 1n truth, the Court's assertion of power to
disregard current law in adjudicating cases before us
that have not already run the full course of appellate
review, is quite simply an assertion that our
constitutional function is not one of adjudication but in
effect of legislation. We apply and definitively
interpret the Constitution, under this view of our role,
not because we are bound to, but only because we
occasionally deem it appropriate, useful, or wise. That
sort of choice may permissibly be made by a legislature
or a council of revision, but not by a court of law.
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.
. . . I continue to believe that a proper perception
of our duties as a court of law, charged with applying
the Constitution to resolve every legal dispute within
our jurisdiction on direct review, mandates that we apply
the law as it is at the time, not as it once was.
Inquiry into the nature, purposes, and scope of a
particular constitutional rule is essential to the task
of deciding whether that rule should be made the law of
the land. That inquiry is, however, quite simply
irrelevant in deciding, once a rule has been adopted as
part of our legal fabric, which cases then pending in
this Court should be governed by it.
A&key, 401 U.S. at 678-81, 28 L. Ed. 2d at 412-14 (Harlan, J.,
dissenting).
While Justice Harlan was unwilling to apply the same logic to
those cases reviewed by a petition for a federal writ of habeas
corpus, I can see no reason for making such a distinction under
state law. The bases by which criminal convictions can be
collaterally reviewed in Montana are very limited. See 5 46-22-101,
MCA (habeas corpus), and 5 46-21-105(2), MCA (limitations on
post-conviction relief). Furthermore, no criminal conviction can
be reversed under Montana law, even if constitutional rights were
violated, where the constitutional infraction did not contribute to
the defendant's conviction. Section 46-20-104, MCA.
The effect of the majority's limitation on the application of
their decision, then, is to hold that even in those cases where
people have been convicted and jailed in violation of their right
to due process, and even where that violation is raised properly by
collateral review, we will not consider the constitutional
25
infraction simply because it is brought to our attention by
collateral review, rather than direct appeal.
This dichotomy is irrational and offends the very traditions
of fairness and due process which we, as a judicial body, are
charged to enforce.
For these reasons, while I concur with the result arrived at
in this case, I dissent from that part of the majority opinion
which would selectively apply the constitution of this State, or of
the United States, based upon the procedure by which offensive
governmental conduct is brought to our attention.
Justice William E. Hunt, Sr., joins in the foregoing concurring and
dissenting opinion.
i
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