IN THESUPREME COURTOFTHESTATEOFMONTANA
No. 96-258

BRETTD. BYERS,

Petitioner, OPINION and v. ORDER
MIKEMAHONEY,Warden, Montana State Prison,

Respondent.

Brett D.Byers hasfiled apetition for post-conviction relief pursuant to 5 46-21-105, MCA, asking this Court to vacate his conviction ontwo 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 onthe constitutionality of two sets of jury instructions regarding the mental element of the offense of deliberate homicide since the issue was raised onappeal 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 onMay15, 1990. Hewasfound guilty onboth counts by a jury. Byers appealed his conviction which was affirmed. Bvers, 861 P.2d 860. Byers' writ of certiorari wasdenied by the United States Supreme Court in Byers v. Montana (1994), 114S. Ct. 1380, 128 L. Ed. 2d55. 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. Theset of instructions at issue defined purposely andknowingly 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 whenhe is aware of his conduct or whenhe 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), 272Mont. 114, 900 P.2d 260. That instruction read as follows: Aperson whois in anintoxicated condition is criminally responsible for his conduct, andanintoxicated condition is not adefense to anyoffense andmaynot betaken into consideration in determining the existence of amental 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 onour holding in Coleman v. State (1981), 194 Mont. 428, 633 P.2d 624, for this assertion. TheState argues that Byers' claims are barred bythe doctrine of res judicata because they were raised andresolved in his direct appeal. Section 46-21-101, MCA,provides that the validity of a sentence maybe subject to collateral attack upon any ground of alleged error available under awrit of habeas corpus. Wehave previously held that apost-conviction court mayconsider matters which have beenpreviously addressed anddetermined adversely to a prisoner ondirect appeal where there hasbeenasubstantial change in the applicable law. Coleman, 633 P.2d at 631. This Court did effect asubstantial change in the applicable law by our holding in Rothacher, 901 P.2d at 86-87. In that case
weaddressed a similar set of jury instructions. By reexamining the line of decisions, which defined purposely andknowingly in an analogous manner asthe present case, wedetermined that our prior

2construction of the required state of mind to establish deliberate

homicide hadbeenmisapplied. Weconcluded 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. TheState argues that Rothacher is distinguishable from this
case. Wedisagree. Thejury 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. Theinstruction defined knowingly asbeing aware of his conduct or
aware that it washighly probable that aresult would becaused by his conduct. These instructions only required the State to prove that Byers acted purposely, without regard to the result that he intended. Weexplicitly 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, 901P.2d at 87. Asubstantial change in the applicable law waseffected. Pursuant to our holding in Coleman, although this issue hadbeenaddressed anddetermined adversely to Byers ondirect appeal, wemaynevertheless consider this matter as
a substantial change in the law has occurred. Therefore, the doctrine of res judicata does not bar this claim. TheState goes onto argue that this change is anewrule of law andtherefore 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 Teaguev. Lane (1989), 489U.S. 288, 109S. Ct. 1060, 103L. 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" asarule in which the result wasnot dictated byprecedent at the time the defendant's conviction became final. Teaque, 109S. Ct. at 1070. Ouranalysis in Rothacher wasexplicit
3in that wedid not announce anewrule of law but corrected aline

of decisions which had misapplied the correct state of mind required to establish deliberate or mitigated deliberate homicide. Rothacher, 901 P.2d at 86. Wetherefore hold that Byers' claim as to the set of jury instructions defining purposely andknowingly is not barred by the U.S. SupremeCourt's holding in Teasue, and the change in applicable law maybeapplied to Byers' claim. Our conclusion that Rothacher did overrule our holding in Bvers, asto the constitutionality of the set of jury instructions defining purposely and knowingly, does not complete our analysis. Adistrict court judgment will not be reversed for error which is harmless. Section 46-20-104, MCA. Whenreviewing aninstructional
error to determine if that error washarmless wehave held that the
case must be reviewed as a whole, rather than by examining one component at atime. State v. McKenzie (1980), 186Mont. 481, 608 P.2d 428. In Rothacher, weheld that although the jury was improperly instructed, the error washarmless beyond areasonable 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 showthat Byers intended to cause harmto his victims when he fired his shotgun directly at them. Weconclude that after a review of the record in whole and of the specific facts that the instructional error washarmless. Rothacher, 901 P.2d at 88. Byers next argues that the voluntary intoxication instruction given by the District Court waserr, citing this Court's decision in Eqelhoff. Thevoluntary intoxication instruction given in this
case washeld to beunconstitutional 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 SupremeCourt in Montana v. Egelhoff (June 13, 1996), 64 U.S.L.W. 4500 (No. 95-566). Therefore, as a result of this

4recent 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. Wehave 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), 221Mont. 503, 512, 719 P.2d 1248, 1254. However, in Eqelhoff wespecifically addressed whether that holding should be applied retroactively to cases on collateral review after the issuance of that opinion. Wedetermined that Eqelhoff hadestablished a"newrule" under the Teaquecriteria 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. Wetherefore 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 doesnot preclude
our review of Eqelhoff on adequate and independent state grounds under the appropriate circumstances. Therelief Byers seeks onthe issue of the voluntary intoxication instruction based only on Eqelhoff therefore must bedenied. TheCourt having considered fully the matter before it, IT IS HEREBYORDERED 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 Cort. -3 DATEDthis ticday of July, 1996. A#,'

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

andOrder.

Justices Hunt and Trieweiler concur in that part of the opinion andorder 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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