IN THE SUPREME COURT OF THE STATE OF MONTANA 

No. 96-258 

BRETT D. BYERS, 

Petitioner, OPINION 

and 

v. ORDER 

MIKE MAHONEY, Warden, 

Montana State Prison, 

Respondent. 

Brett D. Byers has filed a petition for post-conviction relief 

pursuant to 5 46-21-105, MCA, asking this Court to vacate his 

conviction on two counts of deliberate homicide as entered by the 

Eighteenth Judicial District Court, Gallatin County. This petition 

is based on the allegation that this Court has reversed its 

position on the constitutionality of two sets of jury instructions 

regarding the mental element of the offense of deliberate homicide 

since the issue was raised on appeal in State v. Byers (1993), 261 

Mont. 17, 861 P.2d 860. 

%yers was charged with two counts of deliberate homicide, 

pursuant to § 45-5-102, MCA, for the shooting deaths of two college 

students on May 15, 1990. He was found guilty on both counts by a 

jury. Byers appealed his conviction which was affirmed. Bvers, 

861 P.2d 860. Byers' writ of certiorari was denied by the United 

States Supreme Court in Byers v. Montana (1994), 114 S. Ct. 1380, 

128 L. Ed. 2d 55. 

Byers first argues that his objections to the jury 

instructions defining purposely and knowingly, raised by him on 

appeal and rejected by this Court, have since been overruled by 

State v. Rothacher (1995), 272 Mont. 303, 310, 901 P.2d 82, 87. 

The set of instructions at issue defined purposely and knowingly in 

the following manner: 
1. State's Proposed Instruction 26: A person acts 

purposely when it is his conscious object to engage in 

conduct of that nature or to cause such a result. 

2. State's Proposed Instruction 27: A person acts 

knowingly when he is aware of his conduct or when he is 

aware that it is highly probable that a result will be 

caused by his conduct. 

Byers further argues that his objection to the instruction on 

voluntary intoxication has also been overruled by this Court's 

decision in State v. Egelhoff (1995), 272 Mont. 114, 900 P.2d 260. 

That instruction read as follows: 

A person who is in an intoxicated condition is criminally 

responsible for his conduct, and an intoxicated condition 

is not a defense to any offense and may not be taken into 

consideration in determining the existence of a mental 

state which is an element of the offense unless the 

defendant proves he did not know that it was an 

intoxicating substance when he consumed the substance 

causing the condition. 

Therefore, Byers asks this Court to grant his petition for 

post-conviction relief on the basis that there has been a 

substantial change in the applicable law, relying on our holding in 

Coleman v. State (1981), 194 Mont. 428, 633 P.2d 624, for this 

assertion. 

The State argues that Byers' claims are barred by the doctrine 

of res judicata because they were raised and resolved in his direct 

appeal. Section 46-21-101, MCA, provides that the validity of a 

sentence may be subject to collateral attack upon any ground of 

alleged error available under a writ of habeas corpus. We have 

previously held that a post-conviction court may consider matters 

which have been previously addressed and determined adversely to a 

prisoner on direct appeal where there has been a substantial change 

in the applicable law. Coleman, 633 P.2d at 631. 

This Court did effect a substantial change in the applicable 

law by our holding in Rothacher, 901 P.2d at 86-87. In that case 

we addressed a similar set of jury instructions. By reexamining 

the line of decisions, which defined purposely and knowingly in an 

analogous manner as the present case, we determined that our prior 

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construction of the required state of mind to establish deliberate 

homicide had been misapplied. We concluded that the district court 

erred when it instructed the jury that the State merely needed to 

prove that Rothacher acted purposely, without regard to the result 

that he intended. Rothacher, 901 P.2d at 86. 

The State argues that Rothacher is distinguishable from this 

case. We disagree. The jury instruction given in Bvers defining 

purposely allowed the jury to consider only if Byers' conscious 

object was to engage in that conduct or to cause such a result. 

The instruction defined knowingly as being aware of his conduct or 

aware that it was highly probable that a result would be caused by 

his conduct. These instructions only required the State to prove 

that Byers acted purposely, without regard to the result that he 

intended. We explicitly held that Beers was overruled to the 

extent that it was inconsistent with our holding in Rothacher. 

Rothacher, 901 P.2d at 87. It is clear that our previous 

determination that the set of jury instructions defining purposely 

and knowingly in Bvers was constitutional was overruled by our 

decision in Rothacher, 901 P.2d at 87. A substantial change in the 

applicable law was effected. Pursuant to our holding in Coleman, 

although this issue had been addressed and determined adversely to 

Byers on direct appeal, we may nevertheless consider this matter as 

a substantial change in the law has occurred. Therefore, the 

doctrine of res judicata does not bar this claim. 

The State goes on to argue that this change is a new rule of 

law and therefore it is inapplicable to this case under the United 

States Supreme Court's analysis of retroactive application of 

judicial decisions to cases on collateral review as set forth in 

Teague v. Lane (1989), 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 

334. Under Teaque, the U.S. Supreme Court held that a new rule 

will not be applied to cases coming before the Court on federal 

habeas (collateral) review after the date of the decision. Teaque 

defined a "new rule" as a rule in which the result was not dictated 

by precedent at the time the defendant's conviction became final. 

Teaque , 109 S. Ct. at 1070. Our analysis in Rothacher was explicit 

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in that we did not announce a new rule of law but corrected a line 

of decisions which had misapplied the correct state of mind 

required to establish deliberate or mitigated deliberate homicide. 

Rothacher, 901 P.2d at 86. We therefore hold that Byers' claim as 

to the set of jury instructions defining purposely and knowingly is 

not barred by the U.S. Supreme Court's holding in Teasue, and the 

change in applicable law may be applied to Byers' claim. 

Our conclusion that Rothacher did overrule our holding in 

Bvers, as to the constitutionality of the set of jury instructions 

defining purposely and knowingly, does not complete our analysis. 

A district court judgment will not be reversed for error which is 

harmless. Section 46-20-104, MCA. When reviewing an instructional 

error to determine if that error was harmless we have held that the 

case must be reviewed as a whole, rather than by examining one 

component at a time. State v. McKenzie (1980), 186 Mont. 481, 608 

P.2d 428. 

In Rothacher, we held that although the jury was improperly 

instructed, the error was harmless beyond a reasonable doubt. As 

in Rothacher, the potential prejudice in this case resulting from 

the instructional error would be where the defendant acted 

purposefully but intended no harm. The facts of Bvers are even 

more compelling than those of Rothacher. The facts in this case 

clearly show that Byers intended to cause harm to his victims when 

he fired his shotgun directly at them. We conclude that after a 

review of the record in whole and of the specific facts that the 

instructional error was harmless. Rothacher, 901 P.2d at 88. 

Byers next argues that the voluntary intoxication instruction 

given by the District Court was err, citing this Court's decision 

in Eqelhoff. The voluntary intoxication instruction given in this 

case was held to be unconstitutional in Eoelhoff because it reduced 

the State's burden of proof as to the mental element of the 

offense. This ruling, however, has since been overturned by the 

United States Supreme Court in Montana v. Egelhoff (June 13, 1996), 

64 U.S.L.W. 4500 (No. 95-566). Therefore, as a result of this 

4 
recent reversal there has been no substantial change in the 

applicable law since our decision in Bvers. 

Byers urges this Court to reaffirm our decision in Eqelhoff on 

adequate and independent state grounds. We have stated that we 

will not "march lock-step" with the United States Supreme Court 

where constitutional issues are concerned, even if the applicable 

state constitution provisions are identical or nearly identical to 

those of the United States Constitution. State v. Johnson (1986), 

221 Mont. 503, 512, 719 P.2d 1248, 1254. 

However, in Eqelhoff we specifically addressed whether that 

holding should be applied retroactively to cases on collateral 

review after the issuance of that opinion. We determined that 

Eqelhoff had established a "new rule" under the Teaque criteria and 

specifically held that our decision would not apply retroactively 

to cases on collateral review after the date of the opinion. 

Eaelhoff, 900 P.2d at 267. This determination would not change, 

even if the issues in Eqelhoff were reaffirmed under state 

constitutional grounds. We therefore determine that it is not 

appropriate under the circumstances for this Court to review 

Eqelhoff on state constitutional grounds. Although we have 

declined to readdress Eqelhoff at this time, this does not preclude 

our review of Eqelhoff on adequate and independent state grounds 

under the appropriate circumstances. The relief Byers seeks on the 

issue of the voluntary intoxication instruction based only on 

Eqelhoff therefore must be denied. 

The Court having considered fully the matter before it, 

IT IS HEREBY ORDERED that Byers' petition for post-conviction 

relief is DISMISSED. 

The Clerk is directed to mail a copy of this Order to all 

counsel of record, and to the Clerk of Court for the Eighteenth 

Judicial District Co rt. 

-3 DATED this ticday of July, 1996. A#,' 

./-$+&Au? 
Justice James C. Nelson concurs in the foregoing Opinion 

and Order. 

Justices Hunt and Trieweiler concur in that part of the 

opinion and order which relates to Rothacher, but would reconsider 

the issues raised in Eqelhoff on state constitutional grounds 

consistent with their concurring and dissenting opinion in 

Eqelhoff. 

Justices 

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