STATE v EGELHOFF
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No. 93-40s IN THE SUPREME COURT OF THE STATE OF MONTANA 1995 STATE OF MONTANA, Plaintiff and Respondent, Jji. JAMES ALLEN EGELHOFF, APPEAL FROM: (~1 ,iyyj 6 District Court of the Nineteenth In and for the County of Lincoln, The Honorable Robert S. Keller, Judicial Judge District, presiding. COUNSEL OF RECORD: For Appellant: Ann C. German, Libby, County Public Defender, For Montana; Libby, Amy Guth, Montana Lincoln Respondent: Hon. Joseph P. Mazurek, Attorney General, Collins, Assistant Attorney General, Lincoln County Montana; Scott B. Spencer, Libby, Montana Heard: Submitted: Decided: Filed: Cl&k Pamela P. Helena, Attorney, October 21, February 23, 1995 July 6, 1994 1995 Justice Fred J. Weber James Allen District Court Egelhoff use of Judicial the for the conviction Lincoln count, a total offender following for parole issues of was sentenced two-year eighty-four also purposes. are County, Egelhoff on each Court the deaths and an additional District in shooting a day of drinking. The Court. District, count consecutively. The his on each a weapon dangerous of appeals homicide following years Opinion (Egelhoff) of deliberate two companions forty the of the Nineteenth on two counts to delivered term years, designated We reverse presented of his for to run him as and remand. on appeal: I. Was Egelhoff denied due process by a jury instruction that voluntary intoxication may not be taken into consideration determining the existence of a mental state which is an element the offense? give II. Did the District opinion testimony? III. counts Did the offender District Court err in for purposes of parole? that Egelhoff Issue for (Pavola) and John midnight on July the in Egelhoff Troy to pick I is the July 1992 Christianson 12, station the by a jury 12, 1992, wagon rear and a friend mushrooms shooting designating two to Egelhoff counts deaths of (Christianson). their bodies area, from in witness Egelhoff guilty of two by substantial evidence? of belonging cargo a lay in of a dispositive. was convicted homicide was found in permitting jury verdicts finding homicide supported We conclude of err Are the deliberate of IV. dangerous seat Court a to Helena went July 2 Pavola approximately found in Christianson but deliberate Roberta At were alive early of and the front Egelhoff intoxicated. to 1992. the Yaak Egelhoff area had near no transportation and no personal a .38 caliber handgun Pavola and which camped in mushrooms. Egelhoff Christianson and Egelhoff, Sunday, bars. the front passenger 9:20 p.m. were in they trial an vehicle was also into a ditch several five places in the area where witnesses testified Two time. vehicle reported Sheriff's came the department to its final 3 in Pavola in was Troy off officers their being a while the located the highway. observations who during observed drunken driver before midnight. and the road later off witnesses shortly and seen of had gone evening approximately going observed stop p.m. that at 2 west a possible party Egelhoff wagon about of 9:00 party store station a vehicle at the that Law enforcement times. at a party rear. the on Highway wagon and to driving, the IGA grocery manner Christianson's station them. on after indicated erratic County as mushrooms and went left an Christianson picked Pavola day drinking in Christianson's of pick with their Christianson that period to same area day sometime and later. the party after at seen in Lincoln the occurred driven this hip. they the the beer and Egelhoff Testimony Numerous in sold of the wagon with seat what Christianson area acquainted to bought most left station unknown. became right where camped Christianson spent The trio Much of is and They Christianson's place prior 1992 and then apartment. and Yaak and killed. 12, a Troy some clothing on his the the companion and from a holster in near departed Pavola July area Pavola were in also and his companion Christianson in an apart he kept Christianson, mushrooms, Egelhoff's effects sheriff's the to the When officers arrived, it was situated dead and Egelhoff in a ditch, was yelling Pavola and Christianson obscenities from the were rear of the vehicle. Both Pavola and Christianson had been shot the right passenger back side temple of his of the front head. floorboards in slumped floorboard front of over near seat his close legs. pedal flat. Egelhoff's and two empty casings. his head towards to Pavola with was lying the back of the cargo Clint 13, 1992, and came to the Libby been brought intoxicated, by Gassett combative another officer Egelhoff by holding Detective Gassett during would the five down calm According when another Egelhoff and Be and cursing that only to the testimony detective looked hospital directly and Egelhoff right about rounds side with 1:00 a.m. on where Egelhoff had was Egelhoff physically by his arms continued of Detective flare Gassett, pulled restrain and chest. Egelhoff up again. to take Egelhoff's at the detective, Gassett, to act wildly was at the hospital. to repeatedly 4 had been loaded Detective to Egelhoff was preparing four on the that testified him down on the table times side on his profusely. to six hours Gassett at upper to a call attempted others testified on the area. responded officers. the legs gun was found was found with Egelhoff in in and Pavola's seat his wagon where the back seat Detective July was shot body was found in on the driver's revolver Pavola body remained Egelhoff's was in the back of the station laid Pavola's the passenger's the brake wounds. area and Christianson seat near the window and Christianson's the middle body in the left died from gunshot his at one point photograph, leg back and kicked the foot, camera knocking testified was out the that of the camera to he thought surprised to detective's the hands floor. that the Detective Egelhoff's learn with of his Donald coordination Egelhoff's flat Bernall was good blood alcohol and he content was .36 percent. Egelhoff happened that not testified on the evening he was at the gone down. being in at party station the at one point of at the did hospital. not 12, Troy he did wagon, in the he July He testified the Bernall that 1992, not and he and Christianson were sitting bottle of back and of Pavola being with them Forensics testing identified hands. The bullet that killed temple, exited right back Testimony bullet guns the which At killed and being precluded him tasks he had done. side necessary He contended them. He had no time. her on Egelhoff's head at indicated come from the left found. that the thousands he had been measured his the have done what 5 a because hospital, he suffered somewhere, passing residue intoxication that that of gun. from to Detective or a bank that have Egelhoff's driven party, head and was never that having the or kicking examiner could to the leaving entered contended brought from at of her firearms suffering sun had between Pavola like the he remembered gunshot Christianson Egelhoff trial, after physical State's characteristics unconscious hour the by with gun, forth recollection and that on a hill Velvet what being wagon was parked Black of memory testified station much last remember the He further the his apartment shooting evening remember level car or the from of at found .36 one intoxication undertaking prosecution the claimed an alcohol-induced amnesia the (blackout) night in which Egelhoff kept sobered up Part asking the came to questions next Egelhoff's was officers Egelhoff did not in Knecht, Egelhoff the the of hours of his probably suffered from and some 13, alcoholic period He examination. experiencing such with of around people experienced testified also a blackout the at at trial was disappeared the that before to He may walk, unable hospital testified that behavior, in time of Dr. and tell person fully that time Knecht's intoxicated talk, in some point an to Libby, and his at the in Libby level that person them. 1992. alcohol prior the when he asked "blackout" time When he who practiced room blood him?" accident. doctor July from function, the person a blackout. A jury found homicide for the defendant is Egelhoff granted issues of asking who had the emergency judging conviction hospital, recall presented car a medical in morning he the scene Egelhoff, for events the to find been referring which at early the him you person a fourth take "Did theory Clyde examined recalling like, day, arrived Dr. the attendants or to whom he may have of there him from question. When ambulance questions prevented deaths of a new trial as discussed raised guilty below, of two Christianson as a result we decline counts and of of deliberate Pavola. our to address BeCaUSe reversal of his the remaining by Egelhoff. Was Egelhoff deprived instructed the jury that of due process when the District voluntary intoxication may not be 6 Court taken into consideration which is an element Although was Egelhoff granted validity on the 1987 consideration day by the Egelhoff of the measured raised only of trials. in determining of the offense four this jury issue of least to extent Court containing statutory voluntary gave the language oral the MCA, intoxication alcoholic that state argument constitutional 45-2-203, of .33% and possibly The District on appeal, § consumed the of a mental homicide? concerning evidence voluntarily to existence deliberate issues amendment homicides at the of regarding in criminal beverages his blood on the alcohol level .36%. following from instruction § 45-Z-203, to MCA, the jury referring to 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 object to address Instruction objected to at the she claimed has the a mental State's effect state is voluntarily is unconstitutional 11 No. of for settling when proving intoxicated. because She also shifts 7 including objected to argued the where that burden that because State the prove defendant § 45-2-203, of the At unconstitutional that not Egelhoff instructions. homicide the did reasons, counsel requirement deliberate it several MCA, is the Egelhoff now asserted. jury § 45-2-203, of negating that ground Egelhoff's time that argument 11 on the reasons. instruction it No. Instruction constitutional time, the proof MCA, on the element of mental addition to making counsel detail also from the prosecution these to the giving of this Eqelhoff 45-5-102, removing the Section that them in greater properly death it 45-2-203, of -- "knowingly" human being. MCA, is of due process relevant element intoxicated § 45-2-203, 45-2-203. condition. provides: condition. MCA, provided: Responsibility -- intoxicated or drugged 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 An intoxicated or druqqed condition may be taken law. into consideration in determination of the existence of 8 by to of the offense by the State. MCA, as amended in 1987, Responsibility must prove § 45-2-203, facts an essential doubt acted another defendants consideration state, the State claimed deprives homicide. 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, from objected of deliberate the defendant beyond a reasonable 45-2-203. counsel homicide, the jury's of mental to be proven Egelhoff's We conclude trial. Egelhoff's Eqelhoff because from determination causing MCA. unconstitutional new of two counts of the offense in trial, and explained a on a charge of deliberate "purposely" the In instruction. was convicted as an element Section that to the defendant. during for motion of the record To convict objections made the same arguments in her post-trial our review Or state a a mental state which (Emphasis Egelhoff does affirmative the exclusion element of from intoxication of the offense. has § homicide, the right The State was allowed result is the that of for him Egelhoff the homicides. driven of the offense because the of alcohol whether for of deliberate prejudiced the the burden of a reasonable would that as being made it wagon that the of his night of was instructed all the impossible Egelhoff also proving to explain as evidence have he not the elements jury of the doubt. established evening and also court because in order argues is well under process Constitution, the the S.Ct. in order Fourteenth State a reasonable 90 state station also beyond It beyond had which State due process State of Christianson's The statutory determining intoxication "blackout" to the the prosecution was not events coordination deprived that of the physical have in for impermissible. evidence remember only amendment) evidence mental constitutionally contends 1987 and relieved required of an alcohol-induced lack removed or "purposely" to (the consideration jury's the deliberations No. 11, containing the to use the inability jury's MCA, to He challenges state Instruction prove which the 45-z-203, "knowingly" to he intoxication. mental that from burden that from determining language he acted contend evidence contends 364, an of voluntary of Egelhoff his not defense purposes its is supplied.) 1068, must doubt. 1072, to afford Amendment prove of every element See In Re Winship 25 L.Ed.2d 9 the 368, (1970), 375. a defendant United of the States offense 397 U.S. 1n due 358, addition, Sandstrom v. Montana 2459, 61 L.Ed.Zd burden of proof 39, 51, on the unconstitutional. the ordinary jury element that argues the denied that consideration in States United supports of his 246, the by which with that of Instruction It .36. whether No. intends The Sandstrom proof the Egelhoff 11 precluded acted the jury that 240, States could Morissette government, The a from was criminal law. element of presented of evidence knowingly Court which evidence level 288, be convicted state such he acted Supreme mental he 96 L.Ed. of had that whether the of least prohibits philosophy homicide. clear was at He contends contends a defendant Egelhoff is is from a person instruction 72 S.Ct. our at the resulted defendant United with deliberate issue also to be inconsistent established that determining by of measured the in because is defendant presumption. proof offense trial the 342 U.S. a process here the to acts." the without Our concern the (1951), intent determined the rebut Egelhoff arguments condemned criminal Sandstrom intoxication v. shifted shifting voluntary because and purposely. there his 2450, presumption. to knowingly state burden 99 S.Ct. which he law presumes of that his 524, an instruction the opportunity of 510, of mental [tl opportunity U.S. that was a rebuttable Egelhoff is held consequences presumption allowed 442 In Sandstrom, instructing the (1979), at intoxication was relevant to and purposely; considering it for yet that purpose. The prosecution reflected despite presented on Egelhoff's his level of a ability to great shoot That intoxication. 10 deal Pavola of evidence and evidence which Christianson included the following: In from the flee after when Rebecca glove noticed to seat. to "stay away" physical of he and his "knowingly." in its kicking State of Such evidence used p.m., could avoid to or not Garrison He had The as was evidence acted was "purposely" considered he acted by assistance. was good Egelhoff the detection give be properly of whether Ms. driver. camera. that Egelhoff told coordination the by Egelhoff from 9:20 to Garrison drive ambulance stopped his to establish determination at detection Ms. could He tried had avoid been He later the take car. Egelhoff to that to have words. who to the IGA store strength. testified by the must the talked gun He made an attempt approach his witnesses by presented jury slur the demonstrated or not At the He tried so that Bernall Detective ditch. to he had to vehicle. she assumed talk. and energy another the accelerator and did crimes, the tried which He could the of into Garrison the well commit compartment a stick spoke to he went depress back order by the "purposely" or "knowingly." However, evidence the that his requisite burden of of This fair 1045, for v. Mississippi 35 L.Ed.2d fundamental. rebuttal element of 297, Chambers, defend (1973), 308. 410 of such mental the the This right U.S. at to 302, is State's 284, 294, present 93 with forming of the prosecution's was reduced. Due process 410 U.S. from elimination state the evidence him evidence, against 11 rebut precluded of due process. to to As a result this a denial allowed intoxication state. the opportunity Chambers of using proof is was not level mental opportunity a Egelhoff s.ct. "the right to accusations." 93 S.Ct. 1038, a defense at 1049, is 35 L.Ed.2d at 312. S.Ct. 1098, Court upheld to prove The 1101, in opportunity process herself of that 274, murder to where place with law discussion States held burden that the was justify in then not proving defendant to Court attempted it of a self murder. had the self 107 Supreme aggravated she acted Martin 233, defendant committing because the United Court and instructions blameless 228, the the emphasized the 480 U.S. the Supreme charged Martin under by showing a part due (19871, 267, The on a defendant Court Ohio of defense. of v. 94 L.Ed.2d a conviction self violation defense In Martin the killing defense. As 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 to acquit, the and survives a motion jury may nevertheless not convict if the evidence offered by the defendant raises any reasonable doubt about the existence Evidence of any fact necessary for the finding of guilt. creating a reasonable doubt could easily fall far short self-defense by a preponderance of the of proving evidence. . . . Martin, 480 1102. While holding of U.S. at the above the Court, 233-34, statement it 107 S.Ct. at may not emphasizes 12 274-75, 94 L.Ed.Zd have been essential a clear distinction to at the between placing a burden defense, self in is this defense whether case self evidence there to intoxication, the as whether decided was not State was to reasonable charged. It consider While Egelhoff of his was level there a reasonable doubt was and that "purposely.1' evidence of fact its error Because for necessary reversible of by the part make the its jury such to to prove instruct as the constitute to jury the beyond the the to jury a purpose, burden under consider intoxication of the and opposition escape Martin. to its burden defendant what is not is why happens the a crime jury not to the jury each focuses the evidence as that it may not of determining the jury state a mental may be misled beyond introduce evidence mind. The should element of on "burden in a case such shifted but rather it precluded from presenting 13 into a reasonable cannot of of we permit relevant the mental state evidence, purposes defendant of proof argument of "purposely,'C a specific Egelhoff's for has proved is burden technically or all such instructing evidence State that on By "knowingly" believing to consider decision required doubt determining it. to state that The analysis evidence every By allowing jury in case. of was a jury consideration not consider doubt of her prevented or relieved instructing as to her guilt. present "knowingly" allowed aspect considered present instruction acting be doubt to a specific and not our opportunity Egelhoff's defense, could applicable the it to prove was a reasonable clearly given upon a defendant State the is arguments which is not one. The because present lessened never offense. shifting" as the in the concerning the prosecution's "failure element required mental state 17, upon was homicides, In or commit as part error the case Byers. In of not by does Byers we did which was identical to that State of elements burden of the we were dicta, We overrule it offense. not any of indicates it is condition may not existence of as appears statements be taken the that state into case all statement, foregoing to the considered by the State's evidence on all had process elements 14 all the relevant of it the was analysis. extent determining of jury the that an intoxicated an element a due the of although in defendant in relieve doubt Byers in holding not consideration the not instruction did our did voluntary express that is issue Our holding instruct which the basic that intoxication made in to jury the from two on court a reasonable that and have present rebut In making the activity. the present the homicides. the the beyond and did and because relies district with constitutional a mental We conclude in correct the the that of proving its Egelhoff the Byers committed argument that state defense 261 factual because had case conflict the (1993), significant he to criminal not are his instructing a defense state includes v. Byers case, committed was which of that his mental "purposely." There present holding is present the he actually intoxication crime present Bvers not subjective in State 875. in in reversible or and the the Byers a as an element question defense was whether 860, Byers whereas intoxication of were presented intoxication no the "knowingly" 861 P.2d between rely there acting 41-41, of proofl' conviction arguments differences not for of Similar Mont. of offense the offense. right to evidence to charged. We conclude is that a violation the following portion of due process of 5 45-z-203, and is therefore MCA (1993), 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 instructed Egelhoff that was denied voluntary due process intoxication consideration in determining is an element when the may not discuss the application taken to is 38, cases. subject handed 227 Mont. Louisiana which "new" rules still decision (1987), to to other cases (19851, a mental into to down. 418, 420, the holding of In a criminal this review State, City 739 P.2d we briefly decision case we have noted of constitutional direct which state of the bench and bar of Montana, extent at a minimum, all of was of the offense. For the benefit the existence be jury law at of time 960, that, be applied the Bozeman v. 958, 470 U.S. 51, 57, 105 S.Ct. the must has "new" Peterson citing Shea v. 1065, 1069, 84 L.Ed.2d 45. The United we decided States Peterson, Supreme Court has refined stating its position as follows: We therefore hold that a new rule for the conduct criminal prosecutions is to be applied retroactively pending on direct review all cases, state or federal, not yet finalL. Griffith v. Kentucky 93 L.Ed.Zd binding 649, upon this (1987), 661. since 479 U.S. We conclude Court. 15 314, that 328, the 107 S.Ct. foregoing of to or 709, 716. rule is With States regard Supreme and we find to the Court this question of has additionally also to retroactivity, made its be binding upon the position United more clear 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 103 L.Ed.Zd (1989), 334, We conclude upon the we have here authorities, all cases date of to on review Supreme criminal that as compared Court to the Court 288, 300-01, 109 S.Ct. 1060, 1070, 349. foregoing applicable 489 U.S. convictions, we conclude still subject this opinion. a direct has clarified established its review position to that our direct With of a "new rule." decision review by to the as to collateral United review [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. suggested be applied of primary, 16 this States stating: The first exception that a new rule should "certain kinds places is collateral regard cases, Based by Justice Harlan-retroactively if it individual private of conduct authority beyond the power to proscribe," of the . . criminal law-making 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 for cases retroactivity 310-11. We conclude on collateral review that such view is binding upon within of this either Court. We conclude the two above retroactive this to will not the date this will apply decision Reversed Chief to not fall to the general collateral review. retroactively to those review retroactively this does exceptions on direct apply of decision described application opinion final that to on the cases for a new trial. Justice Justices 17 of We therefore cases of this on collateral opinion. and remanded date rule still nonstate subject opinion, review of but after Justice James C. Nelson I concur in my lingering is that defense our not it with deals obligation of --including the the state defenses criminal what conduct. determined that commission of In person is other words, and killed acquit MCA, which provides any statute is was not On the at other the obligation and every defendant case, mental element the only state with this State the by prohibitinq doubt. statutes to a charge not a defense to the intoxicated, his or her the jury portion condition That In and say: "I You must, of is a conduct. I was drunk. the of permissibly, voluntarily while) out crime requisite the charge § 45-2-203, not a defense portion of the case. to prove the of way that is in a criminal has, constitutional. as pointed hand, of the acted is fundamental available for extent, a defense. may enact is "an intoxicated issue of come before (or To that and the legislature while may not that offense" not responsible because me." and legislature the and that, Smith about cases. a reasonable intoxication a defendant not element are and are criminally therefore, to the voluntary still is of as allowing in criminal proof each Montana, a crime case of because be misread element--beyond proposition, specify shot This to prove mental will only intoxication burden State separately decision so. As a general that I write of voluntary absolutely Rather, concurs. opinion. concern an affirmative That our specially in our beyond prosecution the 19 jury it is always a reasonable doubt each including that the charged, mental opinion, state. can prove from If, the considering in a given defendant's the fact that the state, defendant then relieved the of doubt was too all State and federal come to the jury drunk conclude the not proven either of essential doubt, short, is of the beyond versions a charged--the from that the State It remains the doubt The intoxicated. lessens had not that Under burden 5 45-2-203, and very call the that of not jury, based be on all has beyond taken a into state which inserted in effectively the State element of the and to the prove offense precluding convince might the them element. the State despite therefore, and our 20 too me." of that you, charged may burden was prosecution statutorily language MCA, If of a mental evidence state is, I MCA, element--by statutory because acquit essential mental or added) an burden purposely § 45-2-203, of proven act (emphasis the the to crime and lessens state considering reasonable . doubt mental jury the or reasonable be allowed not that existence .'I the your therefore, offense. relieves of the both states. conclude . Under is solely been a reasonable must did two mental ". determining and subsequent not, also language in impermissibly I is beyond defendant did mental has charged. "I that requisite impermissibly say: element consideration 1987 the must, the to prove crime those and you the an element the that you must an burden effect, reason evidence--then In in to be true--and the reasonable of and constitutions, with that its and, and to act of element Montana to form effectively or part an essential knowingly; intoxicated at to the issue prove defendant here constitutionally decision beyond here, a being eliminates infirm. a voluntarily or intoxicated conduct defendant remains and his voluntarily be a defense condition to any offense. may be taken into determining the existence the offense criminally intoxicated However, charged. Justice Karla M. Gray joins condition in 21 by the finder state which for continues the defendant's consideration of a mental responsible his not to intoxicated of fact in is an element of Chief Justice J. A. opinion holding cases of still this I Montana the of this amending existed but review further the to opinion final this the § 45-2-203, the reinstate condition may be taken existence of a mental date of this exist recommend in that of this the "[aln consideration which 22 is those on the to date cases on of the opinion. the next session MCA, to eliminate the 1987 the legislature amended provisions version consider thereof that Such amendment statute. that majority to review retroactively and urge to language state retroactively on direct MCA, to reinstate into to the to amend 5 45-2-203, finds 1985 version essentially apply apply concur I would specifically will not assembly Court concurring: decision will specially statute. in opinion after legislative problem concur, that subject collateral specially specially I respectfully Turnage, would intoxicated in or determination an element of the drugged of offense." the Justice Terry N. in part. concur with dissenting I portions of agree the all I specifically view, Constitution parties come before by the have 1060, of 103 L. Ed. law must but only collaterally Ed. Justice 1160, Supreme under in 2d Harlan 28 L. Court are in Ed. for refused 404. It makes in by which our Court. 489 (1989), U.S. the principle that cases to Supreme to to cases which are Court's earlier (1971), 401 U.S. 667, majority of two its 23 of 107 S. decisions rules subject on the apply 109 still largely the 314, 288, "new" 479 U.S. Ma&y, no sense procedure circumstances In the protections (1987), based the or by statutorily on the U.S. law Whether The arrives and the I do interpret it. to all Mackeyv. UnitedStates 2d. to to everyone. be applied Teague, GrifJifhv.Kentucky 649, 334, limited reviewed. decision L. 2d. is appeal, on Teaguev.Lane to others. irrelevant. person right opinion. before based treated constitutional review, is stricken of constitutional Court by direct apply relies majority parties interpretations The majority Ct. the Court the and However, and not this review, an unconstitutionally S. to Constitution different the a principle of part Egelhoff's some citizens it this that violated in that role collateral afforded to the in unconstitutional. said to and apply authorized is disagree can be made applicable my were that concurring conclusion MCA (1993), and therefore, with In specially majority's § 45-Z-203, due process, not Trieweiler Ct. earlier 708, dissent 93 of Mr. 91 S. Ct. the interpreting U.S. the Fifth Amendment other cases which cases were right decided. selectively appeal Justice Harlan dissent, the Constitution on in court is the his observations Since distinction and made between those who appear the to merely responsibility. self-incrimination on direct based appearance appeal pending compulsory In applying situated the were against people circumstances antithesis those are the time pointed or equally timing the similarly of their applicable they to by direct are 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 legislation. We apply and definitively effect of 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 that judiciary's who appear review, those out who are of defendants by collateral at to worth . . . . 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 That inquiry is, the land. 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 those Justice cases I corpus, state Harlan reviewed can by for The bases which reviewed MCA corpus), (habeas post-conviction be reversed and under where decision, then, been to due process, collateral is to we will MCA that not 25 consider be on can were not contribute to MCA. in is application those violation violation can rights on the in under conviction did even habeas (limitations constitutional that of to See 5 46-22-101, 46-20-104, and jailed and even where limited. limitation hold writ no criminal if same logic convictions infraction majority's convicted review, even the a distinction 46-21-105(2), Section conviction. of the have are very constitutional The effect people law, such criminal Furthermore, Montana the 5 apply a federal making in Montana relief). defendant's their by to for no reason collaterally the a petition see law. violated, was unwilling of raised the of cases where their right properly constitutional by infraction simply collateral review, rather dichotomy is This of fairness charged and to For in the due I governmental than brought direct irrational reasons, United is to attention by appeal. and offends which our we, as the very traditions a judicial body, are the arrived at enforce. these would it process case, this which because while dissent selectively States, conduct from apply based is Justice William E. Hunt, dissenting opinion. I concur that the part of the brought to joins i 26 majority of this procedure our result the constitution upon Sr., with by opinion State, which or of offensive attention. in the foregoing concurring and
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