Implicit redefinitions, evidentiary proscriptions, and guilty minds: intoxicated wrongdoers.

• Author: Sweitzer, Brett G.
• Position: Case Note

You heard all about drugs. Sin ain't sin when good folks take a little pill,

smoke a little marijuana. "I really didn't intend to kill that police

officer." I don't buy that and I don't believe you do. A man doesn't take

pills and take dope and drink whiskey and not be accountable for what

he does. That's just an excuse.

--From the prosecutor's argument to the jury in Mississippi v. Lanier(1)

INTRODUCTION

In July 1992, James Egelhoff was in northwestern Montana camping and picking mushrooms.(2) He carried no personal items save the clothes he was wearing and a .38-caliber handgun. While camping, he met two other mushroom harvesters, Roberta Pavola and John Christianson. On July 12, Egelhoff, Pavola, and Christianson sold the mushrooms they had collected, bought some beer, and spent the day drinking at bars and a private party. Sometime after 9:00 p.m., the trio left the party and continued drinking while driving around in Christianson's car.

Shortly before midnight, sheriffs officers responded to reports of a car, later determined to be Christianson's, being driven erratically. The officers found Christianson's car in a ditch by the side of the road. The scene was macabre. Both Christianson and Pavola were dead, Christianson from a gunshot wound to the right back side of his head, and Pavola from a bullet through her left temple. The two bodies were in the front seat of the car. Egelhoff lay in the back of the car, alive, intoxicated, and yelling obscenities, with gunshot residue on his hands. On the floor in front of the driver's seat was Egelhoff's gun, containing four loaded rounds and two empty casings.

Egelhoff appeared severely intoxicated at the scene. He was largely incoherent, but repeatedly asked emergency personnel questions such as "Did you find him?" Egelhoff was taken to the hospital, where his blood-alcohol level was measured at .36%. The next day, after Egelhoff sobered up, he remembered nothing about the previous evening; his last memory was of leaving the party sometime shortly before dusk. Egelhoff could not recall repeatedly asking authorities at the scene of the homicides "Did you find him?," nor could he recall to whom the "him" might refer. A medical doctor who examined Egelhoff at the hospital later testified at Egelhoff's trial that Egelhoff had probably suffered alcoholic "blackout."

Montana authorities charged Egelhoff with two counts of deliberate homicide, defined by Montana law as purposely or knowingly causing the death of another person.(3) At trial, Egelhoff maintained that his extreme intoxication rendered him physically incapable of committing the homicides and accounted for his inability to remember that evening's events. Although Egelhoff was permitted to introduce evidence of his intoxication for these purposes, the jury was instructed, pursuant to Montana law,(4) that it could not take Egelhoff's intoxication into account in determining whether he acted purposely or knowingly as required by Montana's definition of deliberate homicide. The jury found Egelhoff guilty on both counts. He was sentenced to eighty-four years in prison.

On appeal, Egelhoff claimed that the intoxication instruction deprived him of due process by removing from the jury's consideration a fact--his intoxication--relevant to a determination of his mental state, which was an element of deliberate homicide to be proven by the state beyond a reasonable doubt. A unanimous Supreme Court of Montana agreed, reversing Egelhoff's conviction and remanding the case for a new trial.(5) The United States Supreme Court, without a majority opinion, reversed the decision of the Supreme Court of Montana and held that Montana's statutory prohibition of the use of intoxication evidence to negate mens rea does not violate the Due Process Clause of the Fourteenth Amendment.(6)

Egelhoff's case sharply presents a persistent issue in criminal law: the bearing, if any, of voluntary intoxication on criminal liability. A thorough examination of this issue must address two related questions. First, does holding severely intoxicated wrongdoers(7) criminally liable to the same extent as sober offenders violate due process? Put more precisely, does substantive due process(8) require that, at some theoretical point when an intoxicated wrongdoer's drunkenness precludes a finding of mens rea, he not be held criminally liable to the same extent as a sober offender who causes the same harm?

Second, if society may--consistent with substantive due process--choose to treat intoxicated wrongdoers and sober offenders alike, does procedural due process nonetheless limit the way in which such a social judgment may be effectuated? These are the two questions addressed in this Comment.

In order to set and address these questions effectively, the Comment is divided into five Parts. Part I clarifies two basic distinctions that limit the scope of the Comment: the common law distinction between voluntary and involuntary intoxication, and the distinction between intoxication asserted by a defendant as an affirmative defense and as a failure of proof claim. Part II reviews the current status of state law on the issue of voluntary intoxication's bearing on criminal liability and identifies the current trend toward equal treatment of intoxicated wrongdoers and sober offenders, demonstrating the importance of the issues raised in this Comment.

Part III addresses directly the two principal issues: the substantive and procedural due process limitations on the criminal liability of intoxicated wrongdoers. This Part clarifies the Supreme Court's holding in Egelhoff critically examines the Court's reasoning, and poses some objections to the statutory scheme at issue in that case. Here I will argue that (1) the culpability requirement of the criminal law demands that some severely intoxicated wrongdoers be treated differently than sober offenders; and (2) even if intoxicated wrongdoers and sober offenders may be treated alike, procedural due process requires that this be effectuated through the substantive criminal law rather than through limiting defendants' ability to present intoxication evidence to rebut the state's prima facie case of criminal liability.

Part IV explores the implications of the Supreme Court's ruling in Egelhoff for other states' exclusions of voluntary intoxication evidence. Here I examine how other states' exclusionary schemes bear on the objections to Montana's scheme that were raised in Part III. Part V suggests a different approach to the treatment of intoxicated wrongdoers. Specifically, this Part briefly outlines an offense of intoxicated criminal conduct, and demonstrates how this approach avoids the due process objections to the exclusionary schemes discussed in Parts III and IV.

1. TWO BASIC DISTINCTIONS

   Two basic distinctions must be made clear from the outset. First, the common law traditionally has distinguished voluntary intoxication from involuntary intoxication.(9) Generally, more exculpatory weight is given to evidence of involuntary intoxication because an involuntarily intoxicated wrongdoer typically is viewed as morally less culpable than a voluntarily intoxicated wrongdoer.(10) This Comment is concerned only with claims of voluntary intoxication, which make up the overwhelming majority of intoxication-related claims raised by criminal defendants. A state's treatment of involuntary intoxication is not completely irrelevant to the arguments presented below,(11) but it will not be a focus of the discussion. I will therefore use "intoxication" to mean voluntary intoxication.

   Second, there are two fundamental ways in which intoxication evidence might be presented to mitigate a wrongdoer's criminal liability: as an affirmative defense and as a failure of proof claim. Intoxication has almost never been recognized as an affirmative defense,(12) although this has changed to some degree with the promulgation of the Model Penal Code.(13) The other potential use of intoxication evidence is to attack the State's prima facie case by negating (i.e., establishing a reasonable doubt as to the proof of) an element of the offense charged. Although this use is often referred to as a "defense," and is in a general sense a defense to criminal liability, it is properly termed a failure of proof claim.

   At common law, intoxication evidence was relevant to negate only the mens rea element of specific intent crimes; the actus reus element could not be negated, due to the common law fiction that the voluntariness of the consumption of the intoxicant "substituted" for the voluntariness of the offense's actus reus element.(14)

   The distinction between employing intoxication as an affirmative defense and using it to support a claim that the State has failed to prove mens rea is critically important, because these two uses of intoxication evidence implicate due process to a different extent. In a criminal prosecution, the State bears the burden of proving every element of an offense beyond a reasonable doubt.(15) In contrast, a state may place the burden of persuasion regarding affirmative defenses upon the defendant.(16) A state, therefore, must bear the burden of disproving beyond a reasonable doubt a defendant's intoxication-based failure of proof claim, whereas the defendant may be required to bear the burden of persuasion regarding an affirmative defense of intoxication, if such a defense exists under state law.

   This Comment is concerned only with the use of intoxication evidence to support a failure of proof claim as to the mens rea element of a criminal offense. Therefore, the nature and extent of the State's due process burden to prove mens rea beyond a reasonable doubt is of central concern.

2. CURRENT LAW AND ITS GENESIS

   1. Intoxication Under the Common Law

      At early common law, a wrongdoer's intoxiCation, usually but not necessarily by way of alcohol, had no effect on his criminal liability; intoxication neither aggravated nor...