                                      No.     93-40s
             IN THE SUPREME COURT OF THE STATE OF MONTANA
                                            1995
STATE OF MONTANA,

            Plaintiff         and Respondent,


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




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:
            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
Filed:



                                            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            by Justice       Harlan--
           that   a new rule    should                                      be applied             retroactively         if  it
           places    "certain   kinds                                      of primary,              private      individual

                                                                               16
          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     non-

retroactive               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


                                                                                     23
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.


                                                                24
                              .

                    . . . 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      simply
          irrelevant         in deciding,          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




                                                                     26
