IN THE SUPREMECOURT OF THE STATE OF MONTANA
No. 96-258
BRETT D. BYERS,
Petitioner, OPINION
and
v. ORDER
MIKE MAHONEY, Warden,
Montana State Prison,
Respondent.
Brett D. Byers has filed a petition for post-conviction relief
pursuant to 5 46-21-105, MCA, asking this Court to vacate his
conviction on two counts of deliberate homicide as entered by the
Eighteenth Judicial District Court, Gallatin County. This petition
is based on the allegation that this Court has reversed its
position on the constitutionality of two sets of jury instructions
regarding the mental element of the offense of deliberate homicide
since the issue was raised on appeal in State v. Byers (1993), 261
Mont. 17, 861 P.2d 860.
%yers was charged with two counts of deliberate homicide,
pursuant to § 45-5-102, MCA, for the shooting deaths of two college
students on May 15, 1990. He was found guilty on both counts by a
jury. Byers appealed his conviction which was affirmed. Bvers,
861 P.2d 860. Byers' writ of certiorari was denied by the United
States Supreme Court in Byers v. Montana (1994), 114 S. Ct. 1380,
128 L. Ed. 2d 55.
Byers first argues that his objections to the jury
instructions defining purposely and knowingly, raised by him on
appeal and rejected by this Court, have since been overruled by
State v. Rothacher (1995), 272 Mont. 303, 310, 901 P.2d 82, 87.
The set of instructions at issue defined purposely and knowingly in
the following manner:
1. State's Proposed Instruction 26: A person acts
purposely when it is his conscious object to engage in
conduct of that nature or to cause such a result.
2. State's Proposed Instruction 27: A person acts
knowingly when he is aware of his conduct or when he is
aware that it is highly probable that a result will be
caused by his conduct.
Byers further argues that his objection to the instruction on
voluntary intoxication has also been overruled by this Court's
decision in State v. Egelhoff (1995), 272 Mont. 114, 900 P.2d 260.
That instruction read as follows:
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 he did not know that it was an
intoxicating substance when he consumed the substance
causing the condition.
Therefore, Byers asks this Court to grant his petition for
post-conviction relief on the basis that there has been a
substantial change in the applicable law, relying on our holding in
Coleman v. State (1981), 194 Mont. 428, 633 P.2d 624, for this
assertion.
The State argues that Byers' claims are barred by the doctrine
of res judicata because they were raised and resolved in his direct
appeal. Section 46-21-101, MCA, provides that the validity of a
sentence may be subject to collateral attack upon any ground of
alleged error available under a writ of habeas corpus. We have
previously held that a post-conviction court may consider matters
which have been previously addressed and determined adversely to a
prisoner on direct appeal where there has been a substantial change
in the applicable law. Coleman, 633 P.2d at 631.
This Court did effect a substantial change in the applicable
law by our holding in Rothacher, 901 P.2d at 86-87. In that case
we addressed a similar set of jury instructions. By reexamining
the line of decisions, which defined purposely and knowingly in an
analogous manner as the present case, we determined that our prior
2
construction of the required state of mind to establish deliberate
homicide had been misapplied. We concluded that the district court
erred when it instructed the jury that the State merely needed to
prove that Rothacher acted purposely, without regard to the result
that he intended. Rothacher, 901 P.2d at 86.
The State argues that Rothacher is distinguishable from this
case. We disagree. The jury instruction given in Bvers defining
purposely allowed the jury to consider only if Byers' conscious
object was to engage in that conduct or to cause such a result.
The instruction defined knowingly as being aware of his conduct or
aware that it was highly probable that a result would be caused by
his conduct. These instructions only required the State to prove
that Byers acted purposely, without regard to the result that he
intended. We explicitly held that Beers was overruled to the
extent that it was inconsistent with our holding in Rothacher.
Rothacher, 901 P.2d at 87. It is clear that our previous
determination that the set of jury instructions defining purposely
and knowingly in Bvers was constitutional was overruled by our
decision in Rothacher, 901 P.2d at 87. A substantial change in the
applicable law was effected. Pursuant to our holding in Coleman,
although this issue had been addressed and determined adversely to
Byers on direct appeal, we may nevertheless consider this matter as
a substantial change in the law has occurred. Therefore, the
doctrine of res judicata does not bar this claim.
The State goes on to argue that this change is a new rule of
law and therefore it is inapplicable to this case under the United
States Supreme Court's analysis of retroactive application of
judicial decisions to cases on collateral review as set forth in
Teague v. Lane (1989), 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d
334. Under Teaque, the U.S. Supreme Court held that a new rule
will not be applied to cases coming before the Court on federal
habeas (collateral) review after the date of the decision. Teaque
defined a "new rule" as a rule in which the result was not dictated
by precedent at the time the defendant's conviction became final.
Teaque , 109 S. Ct. at 1070. Our analysis in Rothacher was explicit
3
in that we did not announce a new rule of law but corrected a line
of decisions which had misapplied the correct state of mind
required to establish deliberate or mitigated deliberate homicide.
Rothacher, 901 P.2d at 86. We therefore hold that Byers' claim as
to the set of jury instructions defining purposely and knowingly is
not barred by the U.S. Supreme Court's holding in Teasue, and the
change in applicable law may be applied to Byers' claim.
Our conclusion that Rothacher did overrule our holding in
Bvers, as to the constitutionality of the set of jury instructions
defining purposely and knowingly, does not complete our analysis.
A district court judgment will not be reversed for error which is
harmless. Section 46-20-104, MCA. When reviewing an instructional
error to determine if that error was harmless we have held that the
case must be reviewed as a whole, rather than by examining one
component at a time. State v. McKenzie (1980), 186 Mont. 481, 608
P.2d 428.
In Rothacher, we held that although the jury was improperly
instructed, the error was harmless beyond a reasonable doubt. As
in Rothacher, the potential prejudice in this case resulting from
the instructional error would be where the defendant acted
purposefully but intended no harm. The facts of Bvers are even
more compelling than those of Rothacher. The facts in this case
clearly show that Byers intended to cause harm to his victims when
he fired his shotgun directly at them. We conclude that after a
review of the record in whole and of the specific facts that the
instructional error was harmless. Rothacher, 901 P.2d at 88.
Byers next argues that the voluntary intoxication instruction
given by the District Court was err, citing this Court's decision
in Eqelhoff. The voluntary intoxication instruction given in this
case was held to be unconstitutional in Eoelhoff because it reduced
the State's burden of proof as to the mental element of the
offense. This ruling, however, has since been overturned by the
United States Supreme Court in Montana v. Egelhoff (June 13, 1996),
64 U.S.L.W. 4500 (No. 95-566). Therefore, as a result of this
4
recent reversal there has been no substantial change in the
applicable law since our decision in Bvers.
Byers urges this Court to reaffirm our decision in Eqelhoff on
adequate and independent state grounds. We have stated that we
will not "march lock-step" with the United States Supreme Court
where constitutional issues are concerned, even if the applicable
state constitution provisions are identical or nearly identical to
those of the United States Constitution. State v. Johnson (1986),
221 Mont. 503, 512, 719 P.2d 1248, 1254.
However, in Eqelhoff we specifically addressed whether that
holding should be applied retroactively to cases on collateral
review after the issuance of that opinion. We determined that
Eqelhoff had established a "new rule" under the Teaque criteria and
specifically held that our decision would not apply retroactively
to cases on collateral review after the date of the opinion.
Eaelhoff, 900 P.2d at 267. This determination would not change,
even if the issues in Eqelhoff were reaffirmed under state
constitutional grounds. We therefore determine that it is not
appropriate under the circumstances for this Court to review
Eqelhoff on state constitutional grounds. Although we have
declined to readdress Eqelhoff at this time, this does not preclude
our review of Eqelhoff on adequate and independent state grounds
under the appropriate circumstances. The relief Byers seeks on the
issue of the voluntary intoxication instruction based only on
Eqelhoff therefore must be denied.
The Court having considered fully the matter before it,
IT IS HEREBYORDEREDthat Byers' petition for post-conviction
relief is DISMISSED.
The Clerk is directed to mail a copy of this Order to all
counsel of record, and to the Clerk of Court for the Eighteenth
Judicial District Co rt.
-3
DATED this ticday of July, 1996. A#,'
./-$+&Au?
Justice James C. Nelson concurs in the foregoing Opinion
and Order.
Justices Hunt and Trieweiler concur in that part of the
opinion and order which relates to Rothacher, but would reconsider
the issues raised in Eqelhoff on state constitutional grounds
consistent with their concurring and dissenting opinion in
Eqelhoff.
Justices
6