No. 93-40s INTHESUPREMECOURTOFTHESTATE OFMONTANA 1995 STATE OFMONTANA,

Plaintiff and Respondent,

JAMESALLEN 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.

COUNSELOFRECORD:

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&kJustice 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,
ontwo counts of deliberate homicide for the shooting deaths of his two companions following adayof drinking. Egelhoff wassentenced to forty years oneach count and an additional two-year term for
use of aweapon oneach count, atotal of eighty-four years, to run consecutively. The District Court also designated him as a dangerous offender for parole purposes. Wereverse and remand. The following issues are presented onappeal: I. Was Egelhoff denied due process by ajury instruction that voluntary intoxication maynot betaken into consideration in determining the existence of amental state which is anelement of the offense? II. Did the District Court err in permitting alay 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? Weconclude that Issue I is dispositive. Egelhoff was convicted by ajury 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 afriend from Helena went to the Yaak area near Troy to pick mushrooms in early July 1992. Egelhoff had no 2transportation andnopersonal effects apart from someclothing and

a .38 caliber handgun which hekept in aholster onhis 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 andwent to aparty at
aTroy apartment. They spent most of the daydrinking 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 2west of Troy awhile later. Christianson's vehicle wasalso observed going off the road into aditch several times. Lawenforcement officers later located five places in the area where avehicle 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 andthe sheriff's officers 3

### arrived, it wassituated in aditch, Pavola andChristianson were

dead and Egelhoff wasyelling obscenities from the rear of the vehicle. BothPavola andChristianson died fromgunshot wounds. Pavola hadbeenshot in the left temple area andChristianson wasshot in the right back side of his head. Pavola's body remained in the passenger seat nearthewindowandChristianson's bodywasfound in the middle of the front seat close to Pavola with his legs onthe 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 onthe driver's side andEgelhoff wasin the back of the station wagonwhere the back seat hadbeen laid flat. Egelhoff's revolver wasfound with four loaded rounds andtwoempty casings. Egelhoff waslying onhis right side with his headtowards the backof the cargo area. Detective Clint Gassett responded toacall about 1:00a.m. on July 13, 1992, andcameto the Libby hospital where Egelhoff had been brought by officers. Be testified that Egelhoff was intoxicated, combative andcursing profusely. Detective Gassett, another officer and others attempted to physically restrain Egelhoff byholding himdownonthe table byhis arms 

### andchest. Detective Gassett testified that Egelhoff continued to act wildly during the five tosix hours Gassett wasatthe hospital. Egelhoff would calm 

### downat times 

### only to repeatedly flare upagain. According tothe testimony of Detective Gassett, at onepoint whenanother detective waspreparing totake Egelhoff's photograph, Egelhoff looked directly at thedetective, pulled his leg backand 4kicked 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 hethought 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 hewasat the party at the Troy apartment and that the sun had not gone down. Hetestified hedid not remember leaving the party, being in the station wagon, shooting the gun, or kicking Detective Bernall at the hospital. Hefurther testified he remembered that at onepoint in the evening the station wagonwasparked somewhere, and heand Christianson were sitting onahill or abank 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. Thebullet that killed Pavola entered her head at the left temple, exited the right back side of her head andwasnever 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 hehaddone. Hecontended that hesuffered from analcohol-induced
5amnesia (blackout) which prevented him from recalling the events of

the night in question. Whenambulance attendants came to take him to the hospital, Egelhoff kept asking questions like, "Did you find him?" Whenhe sobered up the next day, Egelhoff did not recall asking the questions or towhomhemayhave been referring whenheasked them. Part of Egelhoff's theory which he presented at trial was that there was afourth person in the car who had disappeared before officers arrived at the scene of the accident. Dr. Clyde Knecht, amedical 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 somepoint 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 ablackout maywalk, talk, and fully function, with people around the person unable to tell that the person experienced ablackout. A jury found Egelhoff guilty of two counts of deliberate homicide for the deaths of Christianson and Pavola. BeCaUSe defendant is granted anewtrial asaresult of our reversal of his conviction asdiscussed below, wedecline to address the remaining issues raised by Egelhoff.

WasEgelhoff deprived of due process when the District Court instructed the jury that voluntary intoxication may not be taken

6into consideration in determining the existence of amental state

which is anelement of the offense of deliberate homicide? Although Egelhoff raised four issues onappeal, 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 onthe day of the homicides to the extent that his blood alcohol level measured at least .33% andpossibly .36%. TheDistrict 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 andanintoxicated condition is not adefense to any offense andmaynot be taken into consideration in determining the existence of amental state which is anelement of the offense unless the Defendant proves that hedid not know that it wasan intoxicating substance when he consumed the substance causing the condition. Wefirst address the State's argument that Egelhoff did not object to Instruction No. 11onthe ground nowasserted. 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
amental state whenproving deliberate homicide where the defendant is voluntarily intoxicated. Shealso argued that §45-2-203, MCA, is unconstitutional because it shifts the burden of proof onthe

7

### element ofmental state from theprosecution tothe defendant. In

addition to making these objections during the trial, Egelhoff's counsel also madethe samearguments andexplained themingreater detail in herpost-trial motion 

### for anew trial. 

### Weconclude from our review of the record that Egelhoff's counsel properly objected to the giving of this instruction. Eqelhoff wasconvicted of twocounts of deliberate homicide. Toconvict onacharge ofdeliberate homicide, theState mustprove asanelement 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 dueprocess by removing from the jury's consideration facts relevant to a determination ofmental state, anessential element of the offense to beproven beyond areasonable doubt bythe State. Section 45-2-203, MCA,asamendedin 1987, provides: 45-2-203. Responsibility -- intoxicated condition. 

### Aperson whois inanintoxicated condition iscriminally responsible for his conduct andanintoxicated condition isnot adefense toanyoffense andmaynot betaken into consideration in determinins the existence of amental state which is anelement of the offense unless the defendant Droves that hedid not knowthat it wasan intoxicating substance whenheconsumed, smoked,sniffed, injected, orotherwise ingested thesubstance causing the condition. (Emphasis supplied.) In 1985, §45-2-203, MCA,provided: 45-2-203. Responsibility -- intoxicated or drugged condition. 

### Aperson whois inanintoxicated ordrugged condition is criminally responsible for conduct unless suchcondition isinvoluntarily produced anddeprives him of his capacity to appreciate the criminality of his conduct or to conform his conduct tothe requirements of law. Anintoxicated or druqqed condition maybetaken into consideration in determination of the existence of 8a 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. Hechallenges 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 heacted "knowingly" or "purposely" andrelieved the prosecution of its burden to prove the required mental state for deliberate homicide, which is constitutionally impermissible. TheState contends that Egelhoff wasnot prejudiced because he
wasallowed to use the evidence of intoxication in order to explain his inability to remember the events of the evening as being the result of analcohol-induced "blackout" andalso asevidence 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 dueprocess because the court also instructed the jury that the State had the burden of proving all elements of the offense beyond areasonable doubt. It is well established that in order to afford adefendant due process under the Fourteenth Amendment of the United States Constitution, the State must prove every element of the offense beyond areasonable doubt. See In ReWinship (1970), 397U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368, 375. 1n addition,

9Sandstrom v. Montana (1979), 442 U.S. 510, 524, 99 S.Ct. 2450,

2459, 61L.Ed.Zd 39, 51, held that aninstruction which shifted the burden of proof onthe element of mental state to the defendant is unconstitutional. In Sandstrom, the burden shifting resulted from instructing the jury that “[tl helaw presumes that aperson intends the ordinary consequences of his voluntary acts." The Sandstrom presumption was arebuttable presumption. Egelhoff argues that in Sandstrom the defendant was at least allowed the opportunity to rebut the presumption. Hecontends he is denied that opportunity because the instruction prohibits consideration of his intoxication in determining whether heacted knowingly andpurposely. Egelhoff also contends that Morissette
v. United States (1951), 342U.S. 246, 72S.Ct. 240, 96L.Ed. 288, supports his arguments because the United States Supreme Court there condemned aprocess bywhich adefendant could beconvicted of criminal intent without proof by the government, which was determined to beinconsistent 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. 11precluded 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 10following: In order to commit the crimes, hehad to take the gun

from the glove compartment of the vehicle. Hemadeanattempt to flee after he went into the ditch. He tried to avoid detection when Rebecca Garrison tried to approach the car. Ms. Garrison noticed astick which she assumed must have been used by Egelhoff to depress the accelerator so that Egelhoff could drive from the back seat. Hecould talk. At the IGAstore at 9:20 p.m., Egelhoff spoke well and did not slur his words. Helater 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 aswas demonstrated by his kicking of the camera. The evidence was presented bythe State to establish that Egelhoff acted "purposely"
or "knowingly." Such evidence could beproperly considered bythe jury in its determination ofwhether or not heacted "purposely" or "knowingly." However, Egelhoff wasnot allowed to rebut such evidence with evidence that his level of intoxication precluded him from forming the requisite mental state. As aresult 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 adenial of dueprocess. Dueprocess is "the right to
a fair opportunity to defend against the State's accusations." Chambers v. Mississippi (1973), 410 U.S. 284, 294, 93S.Ct. 1038, 1045, 35 L.Ed.2d 297, 308. This right to present adefense is fundamental. Chambers, 410 U.S. at 302, 93 s.ct. at 1049, 35 11L.Ed.2d at 312. In Martin v. Ohio (19871, 480 U.S. 228, 233, 107

S.Ct. 1098, 1101, 94L.Ed.2d 267, 274, the United States Supreme Court upheld aconviction 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 onadefendant 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 byshowing herself blameless because sheacted in self defense. As
apart 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 wasareasonable 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 awhole, 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.

. . . Whenthe prosecution hasmadeout aprima facie case and survives a motion to acquit, the jury may nevertheless not convict if the evidence offered by the defendant raises anyreasonable doubt about the existence of any fact necessary for the finding of guilt. Evidence creating areasonable 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 maynot have been essential to the holding of the Court, it emphasizes a clear distinction between

12placing aburden upon adefendant to prove aspecific aspect of her

defense, in this case self defense, and instructing ajury that self defense evidence could not be considered in determining whether there wasareasonable doubt asto 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 areasonable doubt as to Egelhoff's acting "knowingly" and "purposely.1' Because the jury
was not allowed to consider that evidence for such apurpose, 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. Byallowing the jury to consider such evidence, wepermit 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 amental state of "knowingly" or "purposely,'C the jury may bemisled into believing the State hasproved the mental state beyond areasonable 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 acase 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 13prosecution'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, 861P.2d 860, 875. There are significant factual differences between Byers and the present case, because Byers did not rely upon intoxication asanelement of his defense andbecause 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
waswhether or not heactually 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 adefense to criminal activity. Ourholding in the present case does not conflict with the express holding in Byers. In Byers wedid state that the intoxication instruction which wasidentical to that in the present case did not relieve the State of its burden of proving beyond areasonable doubt all of the elements of the offense. Inmaking that statement, although it was dicta, wewere not correct asappears from our foregoing analysis. Weoverrule any of the statements madein Byers to the extent that it indicates it is constitutional to instruct that an intoxicated condition maynot betaken into consideration in determining the existence of amental state which is anelement of the offense. Weconclude 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 onall elements of the offense charged. 14

### Weconclude that the following portion of 545-z-203, MCA(1993),

is aviolation of dueprocess andis therefore unconstitutional: [an intoxicated condition].

. maynot betaken into consideration in determining the existence of amental state which is anelement of the offense.

. Wehold Egelhoff wasdenied dueprocess whenthe jury was instructed that voluntary intoxication may not be taken into consideration indetermining the existence of a mental state 

### which is anelement of the offense. For the benefit of the benchandbar of Montana, webriefly discuss the extent to which the holding of this decision has application toother cases. Inacriminal casewehavenoted that, ataminimum, all "new" rules ofconstitutional law must 

### beapplied to cases still subject to direct review at the time the "new" decision is handed down. State, City of Bozemanv. Peterson (1987), 227 Mont. 418, 420, 739 P.2d 958, 960, citing Sheav. Louisiana (19851, 470U.S. 51,57, 105S.Ct. 1065, 1069, 84L.Ed.2d 38, 45. 

### TheUnited States SupremeCourt hasrefined its position since
wedecided Peterson, stating asfollows: Wetherefore hold that anewrule for the conduct of criminal prosecutions is to beapplied retroactively to all cases, state or federal, pending ondirect 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. Weconclude that the foregoing rule is binding uponthis Court.

15With regard to the question of retroactivity, the United

States Supreme Court has additionally madeits position more clear and wefind this also to bebinding 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 beapplied retroactively to all who are similarly situated.

. . It is admittedly often difficult to determine when acase announces anew rule, and we do not attempt to define the spectrum of what mayor maynot constitute a new rule for retroactivity purposes. In general, however, acase announces anewrule when it breaks new ground or imposes anewobligation onthe States or the Federal Government. To put it differently, a case announces anew rule if the result was not dictated by precedent existing atthe time the defendant's conviction became final. [Citations omitted. 

### 1 Teague v. Lane (1989), 489U.S. 288, 300-01, 109 S.Ct. 1060, 1070, 103 L.Ed.Zd 334, 349. Weconclude that wehave here established a"new rule." Based upon the foregoing authorities, weconclude 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 adirect review of cases, the United States Supreme Court hasclarified its position asto collateral review of criminal convictions, stating: [W]enowadopt Justice Harlan's view of retroactivity for cases oncollateral review. Unless they fall within an exception to the general rule, newconstitutional 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 anew rule should be applied places "certain kinds of primary, 16 by Justice Harlan--

retroactively if it private individualconduct beyond the power of the criminal law-making

authority to proscribe,"

. . The second exception suggested by Justice Harlan-- that anew 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 amodification. The language used byJustice Harlan in Mackev leaves nodoubt 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 oncollateral review is binding upon this Court.Weconclude that this decision does not fall within either of the two above described exceptions to the general rule of nonretroactive application to collateral review. Wetherefore state this opinion will apply retroactively to those cases still subject to final decision ondirect review onthe date of this opinion, but will not apply retroactively to cases on collateral review after the date of this opinion. Reversed and remanded for anewtrial.

Chief Justice

Justices

17Justice James C.Nelson specially concurs.

I concur in our opinion. I write separately only because of mylingering concern that our decision will bemisread asallowing
anaffirmative defense ofvoluntary 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 acriminal charge --including the mental state element--beyond areasonable doubt. Asageneral proposition, the legislature mayenact statutes that specify what defenses are and are not available to acharge of criminal conduct. In Montana, the legislature has, permissibly, determined that voluntary intoxication is not a defense to the commission of acrime and that, while voluntarily intoxicated, a person is still criminally responsible for his or her conduct. In other words, adefendant maynot comebefore the jury and say: "I shot and killed Smith because (or while) Iwas drunk. You must, therefore, acquit me." Tothat extent, the portion of §45-2-203, MCA,which provides that "an intoxicated condition is not adefense to any offense" was and is constitutional. That portion of the statute is not at issue in this case. Onthe other hand, aspointed out in our opinion, it is always the obligation of the State to prove beyond areasonable doubt each and every element of the crime charged, including that the defendant acted with the requisite mental state. If, in agiven case, the only way that the prosecution can prove the defendant's mental state is byprohibitinq the jury from considering the fact
19that the defendant wastoo 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 areasonable doubt an essential element of the crime charged. Under both the Montana andfederal constitutions, the defendant must beallowed to
cometo 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 betrue--and that is solely your call based onall the evidence--then you must also conclude that the prosecution has not proven an essential element of the crime charged beyond a reasonable doubt, andyou must, therefore, acquit me." In short, the language ".

. . and may not be taken into consideration in determining the existence of amental state which is anelement 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 545-2-203, MCA, and our decision here, avoluntarily
20

### intoxicated defendant remains criminally responsible for his

conduct andhis voluntarily intoxicated condition continues not to beadefense toanyoffense. However, the defendant's intoxicated condition maybetaken into consideration bythe finder of fact in determining the existence of amental state which is anelement of the offense charged.

Justice Karla M.Grayjoins in

21Chief Justice J. A. Turnage, specially concurring:

Irespectfully specially concur, specifically to the majority opinion holding that the opinion will apply retroactively to those
cases still subject to final decision ondirect review onthe 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 amend545-2-203, 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 1985version of this statute. Such amendment would essentially reinstate language that "[aln intoxicated or drugged condition maybetaken into consideration in determination of the existence of amental state which is anelement of the offense."

22Justice 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. Ispecifically disagree that aprinciple of constitutional law
can bemade 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 comebefore this Court bydirect appeal, or by statutorily authorized collateral review, is irrelevant. The protections afforded bythe Constitution apply to everyone. It makes nosense to have different interpretations based on the procedure by which
anunconstitutionally treated person arrives in our Court. The majority relies on Teaguev.Lane (1989), 489 U.S. 288, 109 S. Ct. 1060, 103L. Ed. 2d. 334, for the principle that "new" rules of constitutional law must beapplied to all cases still subject to review, but only under limited circumstances to cases which are collaterally reviewed. Teague, andthe U.S. Supreme Court's earlier decision in GrifJifhv.Kentucky (1987), 479U.S. 314, 107S. 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, 91S. 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

23the Fifth Amendment right against compulsory self-incrimination to

other cases which were pending ondirect 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 madebetween those defendants whoappear by direct appeal and those who appear by collateral review, they are worth repeating. Weannounce newconstitutional rules, then, only as acorrelative 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 newlegal norms through promulgation of dicta. This serious interference with the corrective process is justified only be necessity, aspart of our task of applying the Constitution to cases before us. Simply fishing onecase from the stream of appellate review, using it as a vehicle for pronouncing newconstitutional standards, and then permitting astream of similar cases subsequently to flow by unaffected by that new rule constitute an indefensible departure from this model of judicial review.

. 1ntruth, 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 oneof 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 deemit appropriate, useful, or wise. That sort of choice maypermissibly bemadeby alegislature or acouncil of revision, but not by acourt of law.

24.

. . . Icontinue to believe that aproper perception of our duties as acourt of law, charged with applying the Constitution to resolve every legal dispute within our jurisdiction ondirect review, mandates that weapply 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 bemade the law of the land. That inquiry is, however, quite irrelevant in deciding, simply once arule has been adopted as part of our legal fabric, which cases then pending in this Court should begoverned by it. A&key, 401 U.S. at 678-81, 28 L. Ed. 2d at 412-14 (Harlan, J., dissenting). While Justice Harlan wasunwilling to apply the same logic to those cases reviewed by apetition for afederal writ of habeas corpus, I can see no reason for making such adistinction under state law. The bases by which criminal convictions can be collaterally reviewed in Montana arevery limited. See546-22-101, 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. Theeffect of the majority's limitation onthe application of their decision, then, is to hold that even in those cases where people have been convicted andjailed in violation of their right to dueprocess, andeven where that violation is raised properly by collateral review, we will not consider the constitutional

25infraction 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.

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