dissenting.
I respectfully dissent from the majority’s holding that Missouri’s voluntary intoxication instruction, MAI-CR3d 310.50, violates the defendant’s right to due process of law.
I.
On the basis of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), the majority concludes that the voluntary intoxication instruction “effectively creates a presumption that an intoxicated person has the requisite mental state, relieving the State of its constitutional burden of proving all elements of the offense beyond a reasonable doubt.” If that conclusion is correct, there is unquestionably a due process violation. Sandstrom, 442 U.S. at 521, 99 S.Ct. at 2458. I dissent *485because of my firm belief that MAI-CR3d 310.50, unlike the instruction in Sandstrom, cannot be construed by jurors to relieve the State of the burden of proving the requisite mental state.
The Sandstrom instruction stated that “[t]he law presumes that a person intends the ordinary consequences of his voluntary act.” Under the Supreme Court’s reasoning, this instruction could be construed by jurors to contradict the burden of proof instruction that requires the State to prove, inter alia, that defendant acted “purposely or knowingly.” The Court found that the jury might have resolved the contradiction either by applying what was perceived to be a conclusive presumption that the defendant had the criminal intent to commit the offense or by requiring the defendant to rebut the perceived presumption that he had that criminal intent. In either scenario, the State would be relieved of its burden of proof.
The majority acknowledges that the voluntary intoxication instruction, MAI-CR3d 310.50, contains no weighty presumption which on its face contradicts the burden of proof instruction. Nevertheless, the majority speculates that a juror might be so confused or misled by the instruction, “that even though the juror believes the accused does not have the specific mental state required by law, if at the time the accused was voluntarily intoxicated, then the accused is criminally responsible.” By that reasoning, the majority finds that the State might effectively be relieved of the burden of proof on the issue of intent. But, in my view, such a construction by jurors, or by anyone else, is illogical and contrary to the instruction’s plain language.
MAI~CR3d 310.50 states: “You are instructed that an intoxicated condition will not relieve a person of responsibility for his conduct.” This instruction does not tell the jury that the defendant is criminally responsible for his conduct if he was voluntarily intoxicated, or because he was voluntarily intoxicated, and certainly, there is no presumption to either effect. Unlike Sand-strom, the defendant in this case was not required to prove that he did not act knowingly, i.e., he did not have the burden of disproving the requisite mental state. Nor was the jury free to ignore the burden of proof instruction so that the burden of proving criminal responsibility would be transferred from the State to the defendant. In this case, the burden of proof instruction, the voluntary intoxication instruction, and the verdict director, read fairly and in conjunction with each other, advise the jury that 1) the State bears the burden of proving beyond a reasonable doubt that defendant acted knowingly,1 and 2) the defendant’s voluntary intoxication does not excuse his conduct. The State was still required to prove that defendant acted knowingly; the defendant was required to prove nothing.
The majority’s reliance on Sandstrom is all the more inappropriate in view of Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990), which changed the standard of review for jury instructions alleged to be ambiguous and subject to erroneous interpretation. Under the Sand-strom standard, the question was whether a reasonable juror could have misunderstood the meaning of the instruction. Sandstrom, 442 U.S. at 516-17, 99 S.Ct. at 2455-56. Now, under Boyde, the inquiry is whether there is a “reasonable likelihood” that the jury erroneously interpreted the instruction. Boyde, 494 U.S. at 380, 110 S.Ct. at 1198. In explaining the adoption of the “reasonable likelihood” standard, the Court stated:
This “reasonable likelihood” standard, we think, better accommodates the concerns of finality and accuracy than does a standard which makes the inquiry dependent on how a single hypothetical “reasonable” juror could or might have interpreted the instruction. ... Jurors do not sit in solitary isolation booths parsing instructions for subtle shades of *486meaning in the same way that lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting.
It is tenuous, at best, to conclude that a reasonable juror could have misinterpreted MAI-CR3d 310.50. It is sheer conjecture to go a step further and find a reasonable likelihood that the instruction was misinterpreted.
II.
Although the majority declares that MAI-CR3d 310.50 deprives the defendant of due process of law, it does not question the constitutionality of § 562.076.1, RSMo 1986, the statute on which the instruction is based. The pertinent portion of § 562.076.1 provides that: “[a] person who is in an intoxicated or drugged condition ... is criminally responsible for his conduct ...” The majority holds that the statute does not mandate an instruction on voluntary intoxication, and so none should be given. But, in my opinion, if the statute is constitutional, it should be given full effect.
The majority would give partial effect to the statute, but only in the sense that the statute serves to make irrelevant any evidence of voluntary intoxication offered on the issue of a defendant’s requisite mental state. Through this constricted interpretation, the majority converts § 562.076.1 from a substantive law into a mere rule of evidence. Recognizing the possibility of “those rare situations” in which evidence of voluntary intoxication might be properly introduced on some issue other than the defendant’s mental state, the majority suggests that prosecutors may request a limiting instruction which would notify the jury that “the evidence of intoxication is admitted only for a limited purpose.” In my view, such a limiting instruction is too narrow to convey the full import of the statute because the jury is not also instructed that evidence of voluntary intoxication cannot be considered to negate the State’s showing of requisite mental state. In short, I do not agree that the majority can give full effect to the statutory rule that intoxication is no defense and yet disallow an instruction based on that rule.
This case presents a classic illustration of the need for an instruction that fully advises the jury on the law of voluntary intoxication. Given the admission of substantial evidence that defendant was voluntarily intoxicated, and absent the submission of MAI-CR3d 310.50, the jury could well reason that defendant’s voluntary intoxication precludes a finding that the murder was committed “knowingly.” This is exactly the result the legislature sought to avoid by enacting § 562.076.1. To properly implement the statute, a court must give MAI-CR3d 310.50 so that the jury is made aware that voluntary intoxication cannot be considered on the issue of defendant’s mental state.
III.
Under Sandstrom v. Montana, due process is violated when jury instructions can be construed to relieve the State of the burden of proving beyond a reasonable doubt the requisite mental state of the crime charged. I would hold that MAI-CR3d 310.50 is not susceptible to such a construction. To hold otherwise is to say that the jury would disregard the plain meaning of the language used and rewrite the instruction to state that persons are criminally responsible ¾/they are intoxicated, or because they are intoxicated.
The conviction should be affirmed.
. Here, the State did indeed submit evidence that would allow a jury to conclude beyond a reasonable doubt that defendant acted knowingly. As noted in the principal opinion, the victim, while asleep in bed, was shot twice in the head, and defendant admitted that "I can picture myself shooting [the victim] in his room.”