dissenting.
There is no doubt in my mind that if this court considered Michael Owsley’s claim on the merits, it would conclude that the state trial court erred in denying Owsley the right to introduce evidence of his intoxication at the time of the act for which he was sentenced to death.
So that a reviewing court, including this court en banc, will have all of the facts before it in a single document, I repeat much of what I said in my dissent of December 11, 2000:
During Owsley’s offer of proof, a number of witnesses testified that Owsley was intoxicated on the day of the murder. Owsley’s mother testified that she had seen Owsley at 11:00 a.m., and that he was intoxicated and so “messed up” that he “couldn’t hardly stand up.” (Tr. Yol. V at 1103). At noon, a family friend saw Owsley, noticed that he was intoxicated, and told him to go home. (Tr. Vol. V at 1116-17). A different friend testified that he and Owsley smoked marijuana and POP together later that afternoon. (Tr. Vol. V at 1109). Ows-ley’s cousin testified that at approximately 4:45 p.m. she had seen Owsley leaving a liquor store. (Tr. Vol. V at 1112). When Owsley picked up his girlfriend from work at approximately 6:00 p.m., she drove the ear home because of Owsley’s intoxication. (Tr. Vol. V at 1120-21).
As I pointed out in my original dissent, the admissibility of Owsley’s intoxication was first argued during a motion in limine. “This issue was first brought to the attention of the trial court when the prosecution moved in limine to exclude this evidence in a pre-trial hearing the week before the trial.” Tr. at 82-85. The petitioner’s original brief to this court accurately sets forth precisely what happened at a late pre-trial hearing:
Mr. Owsley again brought this issue to the trial court’s attention ...: ‘Can I ask one question? This is something I forgot to ask about. Intoxication, diminished capacity, does the defendant still have a right to introduce witnesses as to his state of intoxication?’ Tr. at 115.... ‘[W]hat I’m trying to say is this: I have several witnesses ... subpoenaed that are willing to testify to my state of intoxication before the incident. What I am asking is, am I going to be allowed to present those witnesses at my trial?’ Tr. at 116. Trial counsel put it very clearly: ‘I’m going to try and put them in to show at the time of the alleged offense he was so intoxicated he couldn’t form the intent to kill him and commit murder one. That is what he wants me to put on, and I am going to try and put it on.’ ....
Later, during the voir dire phase of the trial, Mr. Owsley ... made it clear that [he was] challenging the constitutionality of Missouri Revised Statute § 562.076. See transcript at 755-766. After an extended colloquy during which Mr. Owsley himself and his attorney both repeatedly asserted their desire to present defense witnesses to show that Mr. Owsley was too intoxicated to entertain the culpable mental state required for first degree murder, the trial court stated (referring to § 562.076) ‘That’s the statute and it was passed.’ Trial counsel responded, ‘By the legislature. We don’t agree with the legislature.’ The trial court expressed in no un cer*692tain terms its appreciation of the nature of Mr. Owsley’s claim: ‘It may be unconstitutional, I don’t know, but we are stuck with it. That is the law.’ Tr. at 766.
Again, after making an offer of proof with regard to the evidence of intoxication, [counsel stated]: ‘Your Honor, that is all of my witnesses on my offer of proof as to why they should be allowed to show in the first half of the trial under diminished capacity that he could not form the mental requirement of deliberation to commit murder one.’ Tr. at 1124. Again, the state rested its objection to the testimony on the challenged statute. Id.
Mr. Owsley personally reasserted his right to call witnesses as to his intoxication, and advised the trial court, T will be pursuing it on appeal if necessary, that I should have been allowed those witnesses in the first half.’ Tr. at 1131— 2. The trial court responded, ‘Yeah, and you’re right. You’ve reserved that issue for appeal ... if you need it, that’s right. That’s preserved.’ Id. At 1132....
I continue to believe that the record was more than sufficient to preserve the issue of the constitutionality of Mo. Stat. § 562.076 as construed by the Missouri Supreme Court. As I stated in my dissent:
[A principal] reason for requiring proper preservation of issues at trial is so that the trial court is made aware of the contested issue and will have the first opportunity to correct an error. See Murray v. Carrier, 477 U.S. 478, 487, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Here, the objection was raised early in the proceedings, clearly notifying the trial court of the issue. See, e.g., State v. Barrington, 198 Mo. 23, 95 S.W. 235, 252 (1906) (holding that issue is preserved “if the objections at the trial were sufficiently specific to notify the trial court at the time of the nature and character of the objections and the reasons for them.”); State v. Flynn, 519 S.W.2d 10, 12 (Mo.1975); State v. Tygart, 673 S.W.2d 83, 87 (Mo.Ct.App.1984). As the district court correctly held, Owsley’s colloquy with the court sufficiently preserved the intoxication issue for appellate review, and the Missouri Supreme Court’s refusal to review the claim does not constitute an adequate and independent state law ground for barring our review.
If Owsley’s right to have a federal court rule on the constitutionality of the Missouri statute as construed by the Missouri trial court and affirmed by the Missouri Supreme Court was not clear before, it certainly is now.
On January 22, 2002, the United States Supreme Court handed down an opinion in Lee v. Kemna, 534 U.S. 362, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002). That case makes it abundantly clear that “there are exceptional cases in which exorbitant application of a generally sound rule renders the state ground [weak as it is here] inadequate to stop consideration of a federal question.” Id. at 878. Moreover, because Owsley is simply seeking to preserve his right to a full and fair appeal, his request to recall the mandate of this court is not a second or successive petition. Calderon v. Thompson, 523 U.S. 538, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998).
In Lee, the Supreme Court mentioned three factors which should be considered in determining whether a case “falls within the small category of cases in which asserted state grounds are inadequate to block adjudication of a federal claim.” Lee, at 888.
First, the court noted that the trial judge stated the reason for its action had nothing to do with compliance with state *693rules. Here, the trial judge stated that Owsley’s constitutional claim could be considered on appeal. Thus, this case is stronger than Lee. Second, the court stated that no published decision of the Missouri Supreme Court required literal compliance with published rules. Here, there not only was compliance, but as I see it, literal compliance. Third, the court inquired as to whether the purpose of the rule was served by the defendant’s action. Here, the purpose of giving state courts an opportunity to first consider the question was clearly met.
With deep respect to my colleagues, I must vigorously disagree with what I consider to be the heart of their argument, i.e., that “Owsley made no serious or specific challenge to the statute that would have supported a ruling in his favor, and the Missouri Supreme Court’s requirement that an appellant must lodge more than a vague objection in the trial court to preserve a constitutional challenge.” Having read and reread counsel’s statement at trial, I cannot see how he could have been more precise than he was.
I recognize that the state points out that a panel of our court in Dormiré stated that § 562.076.3 passes due process muster. In my view, however, this statement was dicta. It is dicta because in Dormiré the panel recognized that the petitioner’s challenge to the statute was never presented, let alone adjudicated on the merits, in state court. Here, as I have pointed out, the matter was presented to the state court.
Moreover, as I stated in my original dissent, there is a critical difference between the Montana statute held valid in Egelhoff and the Missouri statute at issue here; a difference that, in my view, requires a holding, at least as applied to the facts of this case, that the Missouri statute fails to meet the constitutional standards of due process.
I would recall our mandate and permit the issue to be thoroughly briefed and argued before the court en banc if necessary, and thus uphold the rule of law so precious to all of us.