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State v. Egelhoff7/6/1995
suggested by Justice Harlan — that a new rule should be applied retroactively if it places "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe," . . .
The second exception suggested by Justice Harlan — that a new rule should be applied retroactively if it requires the observance of "those procedures that . . . are `implicit in the concept of ordered liberty,'" [citation omitted] — we apply with a modification. The language used by Justice Harlan in Mackey leaves no doubt that he meant the second exception to be reserved for watershed rules of criminal procedure[.]
Teague, 489 U.S. at 310-11, 109 S.Ct. at 1076. 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 TURNAGE, JUSTICES GRAY, NELSON and DISTRICT JUDGE PURCELL, concur.
JUSTICE 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 prohibiting the jury from considering the fact 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 e
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