No. 93-40s 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

STATE OF MONTANA, 

Plaintiff and Respondent, 

JAMES ALLEN EGELHOFF, Jji. (~1 6 ,iyyj 

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: 

Filed: 

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 

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 

4 
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 

12 
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 

that a new rule should be applied 

places "certain kinds of primary, 

16 

by Justice Harlan-- 

retroactively if it 

private individual 
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 nonretroactive 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 

irrelevant in deciding, 

simply 

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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