ATTORNEYS FOR APPELLANT
Susan K. Carpenter
Public Defender of Indiana
Gregory L. Lewis
Deputy Public Defender
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Barbara Gasper Hines
Deputy Attorney General
SUPREME COURT OF INDIANA
GUADALUPE A. SANCHEZ, )
Appellant (Defendant Below), ) Indiana Supreme Court
) Cause No. 92S03-0009-CR-518
) Indiana Court of Appeals
STATE OF INDIANA, ) Cause No. 92A03-9908-CR-322
Appellee (Plaintiff Below). )
APPEAL FROM THE WHITLEY CIRCUIT COURT
The Honorable James R. Heuer, Judge
Cause No. 92C01-9807-CF-00124
ON PETITION FOR TRANSFER
June 26, 2001
We hold that Indiana Code section 35-41-2-5, prohibiting the use of evidence of
voluntary intoxication to negate the mens rea requirement in criminal cases, does not
violate the Indiana Constitution.
Factual and Procedural Background
On the night of July 6, 1998, Guadalupe Sanchez attended a birthday party
in a trailer in Allen County, Indiana. All nine people at the
party were drinking and some were smoking marijuana. Sanchez was noticeably intoxicated
after consuming between two and twenty-four beers and several glasses of tequila.
He was asked to leave after he was accused of grabbing all the
Sanchez soon returned to the trailer with a gun. He held the
four remaining occupants of the trailer hostage while he attempted to find a
woman who had already left the party. After the four hostages convinced
Sanchez that they did not know where the woman was, he ordered one
of the hostages to remove all of the telephones in the trailer, took
the phones, and forced seventeen-year-old H.S. to leave with him.
Sanchez and H.S. walked for thirty minutes to a cornfield where Sanchez forced
H.S. to remove her clothes and then raped her. When she complained
that he was hurting her, Sanchez performed oral sex on her, and then
raped her several more times. The pair then walked three and one-half
miles to Sanchezs house, hiding in ditches when cars passed. When they
reached the house, Sanchez took H.S. to the basement and again raped her.
Both Sanchez and H.S. then fell asleep.
Early that morning, the police arrived and found Sanchez asleep next to H.S.
with a loaded weapon near his right hand and his left hand around
H.S.s neck. At trial, the trial court gave the following instruction over
Sanchezs objection: Voluntary intoxication is not a defense to the charge of
Rape and Confinement. You may not take voluntary intoxication into consideration in
determining whether the Defendant acted knowingly or intentionally, as alleged in the information.
This instruction accurately reflects Indiana law, effective July 1, 1997, as codified
in Indiana Code section 35-41-2-5. Pub. L. No. 210-1997, § 3, 1997
Ind. Acts 2938. A jury convicted Sanchez of rape and criminal confinement
and he was sentenced to forty years imprisonment.
On appeal, Sanchez argues that it was error to give the voluntary intoxication
instruction because the Due Course of Law provision of the Indiana Constitution and
several other state constitutional provisions establish his right to present a voluntary intoxication
defense. The Court of Appeals, after an extensive examination of the origin
of Article I, Section 12 and the history of intoxication as a defense,
found that Sanchez had provided no independent analysis supporting a due course of
law claim under the Indiana Constitution, and therefore evaluated this issue under federal
due process doctrine.
Sanchez v. State, 732 N.E.2d 165, 173 (Ind. Ct.
App. 2000). The Court of Appeals found Montana v. Egelhoff, 518
U.S. 37 (1996), dispositive. The court concluded that there was no federal
due process violation because, in the terms of the plurality opinion in Egelhoff,
prohibiting evidence of intoxication did not offend a principle of justice so rooted
in the traditions and conscience of our people so as to be ranked
fundamental. Sanchez, 732 N.E.2d at 173.
I. Voluntary Intoxication as a Defense Under Indiana Law
The Court of Appeals opinion contains a more detailed account of the history
of voluntary intoxication as a defense to the mens rea element of crimes.
In summary, at the time of the debates surrounding the 1851 Constitution,
drunkenness and intoxicating liquors were viewed quite harshly. Proposals to the Constitution
were made to prohibit licenses to sell liquor and to prevent the State
from benefiting from liquor sales. At common law, intoxication was itself an
offense, and the prevailing view was that one crime was no defense to
By 1860, this Court, consistent with other states, had come to
the view that evidence of intoxication might be allowed in certain homicide crimes.
OHerrin v. State, 14 Ind. 420, 420 (1860). Thirty years later,
this Court held that evidence of intoxication was admissible to reduce a first-degree
murder conviction to second-degree. Aszman v. State, 123 Ind. 347, 353-59, 24
N.E. 123, 125-27 (1890). By 1901, the Court had extended the use
of intoxication evidence to all crimes requiring proof of specific intent. Booher
v. State, 156 Ind. 435, 448-49, 60 N.E. 156, 160 (1901). This
became the majority position in the United States. See Montana v. Egelhoff,
518 U.S. 37, 46-47 (1996).
In 1980, the legislature added Indiana Code section 35-41-3-5(b), which attempted to limit
the use of voluntary intoxication as a defense to crimes that required with
intent to or with intention to. Four years later, in
State, 465 N.E.2d 1085, 1088 (Ind. 1984), this Court held that, [a]ny factor
which serves as a denial of the existence of mens rea must be
considered by a trier of fact before a guilty finding is entered, and
concluded that the statute was unconstitutional.
In 1996, the United States Supreme Court held that a state could prohibit
a criminal defendant from offering evidence of voluntary intoxication to negate the requisite
mens rea without violating the Due Process Clause of the Fourteenth Amendment.
Egelhoff, 518 U.S. at 56. Therefore, as we observed in Van Cleave
v. State, 674 N.E.2d 1293, 1302 n.15 (Ind. 1996), the Terry doctrine is
no longer good law insofar as it is grounded in the federal constitutional
guarantee of due process.
In 1997, in response to
Egelhoff, the legislature enacted Indiana Code section 35-41-2-5.
This section provides: Intoxication is not a defense in a prosecution
for an offense and may not be taken into consideration in determining the
existence of a mental state that is an element of the offense .
. . [with exceptions not relevant here]. If this statute is consistent
with the state constitution, the instruction in Sanchezs trial properly captured the law
of Indiana governing a claim of lack of intent by reason of voluntary
intoxication. As explained below, compatibility of the statute with the federal constitution
was established in Egelhoff, but the state constitutional issues have not been resolved
by this Court.
II. Article I, Section 12Due Course of Law and Substantive Due Process
Sanchez first argues that Indianas Due Course of Law provision, when read in
conjunction with the other constitutional provisions, protected Sanchezs ability to challenge the States
proof of his intent by putting on a defense of voluntary intoxication.
According to Sanchez, Indiana Code section 35-41-2
See footnote -5 is unconstitutional because it violates Article
I, Section 12, in addition to several other constitutional provisions. Although he
does not analyze Section 12 independently of other constitutional provisions, Sanchez phrases his
argument in terms of due course of law. His contention seems to
be that the criminal protections in the other sections of the Indiana Constitution
create either a protectable interest under the Due Course of Law provision or
establish that the voluntary intoxication defense is firmly ingrained and, therefore, cannot be
abolished by the legislature because of the Due Course of Law provision.
The State tersely responds that, Clearly the [voluntary intoxication] instruction does not violate
the Indiana Constitution, relying on the proposition that due course of law claims
are to be examined using the same analysis as federal due process claims.
We agree with the States conclusion, but not with its reasoning.
No case from this Court other than Terry v. State, 465 N.E.2d 1085,
1088 (Ind. 1984), has considered the need for a voluntary intoxication defense under
either the federal or state constitution. Terry did not state in so
many words that a statutory abolition of the defense of voluntary intoxication is
prohibited by the Indiana Constitution. We nevertheless have the proposition from Terry
that the issue presented in that case was whether elimination of voluntary intoxication
as a defense is violative of the Constitution of the United States and
the State of Indiana. Terry, 465 N.E.2d at 1087. The constitutional
basis for Terrys conclusion that the voluntary intoxication statute is void and without
effect is not clear. Id. at 1088. Terry adopted the concurring
opinion in Sills v. State, 463 N.E.2d 228, 240 (Ind. 1984) (Givan, C.J.),
overruled on other grounds by Wright v. State, 658 N.E.2d 563, 569-70 (Ind.
1995), which took the view that every crime necessarily has a mens rea
requirement. Sills did not make clear whether a specific constitutional provision was
thought to impose such a requirement, or, if so, what provision of the
federal or state constitution it was. In sum, although Terry, via Sills,
suggests that the Indiana Constitution forbids a limitation on the voluntary intoxication defense,
neither opinion indicates what provision of the state constitution supports that conclusion.
The same is true of the concurrence in this case.
Sanchez points to the due course of law phrase as the source of
his Indiana constitutional claim. Questions arising under the Indiana Constitution are to
be resolved by examining the language of the text in the context of
the history surrounding its drafting and ratification, the purpose and structure of our
constitution, and case law interpreting the specific provisions. Indiana Gaming Commn v.
Moseley, 643 N.E.2d 296, 298 (Ind. 1994). And, the first line of
inquiry in any constitutional case is the text of the constitution itself.
Ajabu v. State, 693 N.E.2d 921, 929 (Ind. 1998). Article I, Section
12 provides: All courts shall be open; and every person, for injury
done to him in his person, property, or reputation, shall have remedy by
due course of law. Justice shall be administered freely, and without purchase;
completely, and without denial; speedily, and without delay. By the terms of
Section 12, only the second sentence of that section is relevant in the
criminal context, and that sentence gives no guidance on the need vel non
for a defense based on lack of mens rea for any reason, let
alone for voluntary intoxication.
Other interpretative tools in addition to language analysis are also of limited use
here. There is no unique Indiana history surrounding the adoption of this
clause in 1816 or its redrafting in 1851, McIntosh v. Melroe Co., 729
N.E.2d 972, 974 (Ind. 2000), but the interpretation suggested by this language is
supported by the history of the due course of law doctrine and by
the case law surrounding Article I, Section 12. Due course of law
provisions appear to stem from Sir Edward Cokes commentary on the Magna Carta.
Their basic thrust is that courts will adhere to the law, rather
than whim or corruption, in dispensing justice to litigants. Jennifer Friesen,
Constitutional Law § 6-2(a) (2d ed. 1996). These provisions have been interpreted
to be a response to the abuses that were present in England at
that time, including bribes to delay or expedite the judicial system. Id.
Twenty-one states share similar provisions encompassing the idea that the very essence
of civil liberty certainly consists in the right of every individual to claim
the protection of laws, whenever he receives an injury. Id. at §
6.2(b) & App. 6 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137,
So viewed, the Due Course of Law provision is applicable to civil proceedings,
but provides none of the criminal protections of its federal counterpart. As
we recently noted in Melroe, 729 N.E.2d at 976 & n.2, all of
the previous cases that have found any criminal protection in the first sentence
of Article I, Section 12 have done so based on due process without
any analysis of the independent meaning of the Due Course of Law provision.
Because the federal constitution required the results in those cases, appending a
state due process doctrine without explanation was unnecessary, and, we think, incorrect as
well. Rather, [b]y its terms, [the first sentence of Article I, Section
12] applies only in the civil context. Id. at 976.
The second sentence of Article I, Section 12 refers to justice being administered
completely. Article I, Section 1 embodies the provision in the Declaration of
Independence that guarantees a right to life, liberty, and the pursuit of happiness.
Neither of these, and no other provision of the Indiana Constitution, can
be claimed to be the express limitation on governmental action found in the
Fifth and Fourteenth Amendments. Nevertheless, we are satisfied that
Terry was correct
in its implicit assumption that fundamental fairness in judicial proceedings is assumed and
required by our state constitution. The common law has long been a
basic building block of Indiana law. See Ind. Code § 1-1-2-1 (1998)
(adopting language from 1 Ind. Rev. Stat. ch. 61, § 1 (1852)).
As the Court of Appeals noted, this Court has frequently referred to a
federal and state constitutional requirement of due process. Sanchez, 732 N.E.2d at
171-72. Although technically inaccurate, we think these references reflect the common understanding
that courts of this state are constitutionally bound by the basic concepts of
fairness that are frequently identified with due process in the federal constitution.
We agree that, in general terms, this concept of fairness embraces the opportunity
to present evidence relevant to a defense, whether or not that evidence is
also supported by the terms of the Article I, Section 13 right to
compel attendance of witnesses. We thus have no quarrel with the concurrences
claim that the constitution of our state requires that a defendant have the
opportunity to present evidence on a mens rea element or any other element
or recognized defense. But we think the legislature has redefined the mens
rea element in Indiana to render irrelevant the evidence that Sanchez and the
concurrence would present.
For that reason, although the state constitutional right in
Article I, Section 12 and federal due process are not necessarily identical, in
this instance, we reach the same conclusion under our state constitution as the
United States Supreme Court reached in Egelhoff under the Fourteenth Amendment.
III. Terry and Sills and the Debate over Strict Liability
We do not agree with Terry v. State, 465 N.E.2d 1085, 1088 (Ind.
1984), to the extent it suggested that the Indiana Constitution contains an inherent
bar to the elimination of voluntary intoxication as a means of negating the
mens rea element of a crime. And although we agree with the
concurrence that constitutional precedent should not be lightly disregarded, we do not consider
Terry and Sills v. State, 463 N.E.2d 228, 240 (Ind. 1984), overruled on
other grounds by Wright v. State, 658 N.E.2d 563, 569-70 (Ind. 1995), to
contain more than casual references to the state constitution.
As already noted, there are limits on what the legislature may criminalize, even
in the absence of a specific constitutional bar. Because there is no
general due process clause in our state constitution, and no specific provision addressing
the issue, if there is a mens rea requirement that the state constitution
imposes on this or any other crime, it must derive from this fairness
concept. But courts must be careful to avoid substituting their judgment for
those of the more politically responsive branches. Federal due process limitations on
substantive provisions of criminal law are largely a dead letter today, having yielded
to procedural (
) and structural (Miranda
) reforms in the last half century.
Finding substantive criminal law constraints in our state constitution is even harder
where there is no specific provision such as the Ex Post Facto clause.
Federal substantive due process jurisprudence as a means of judicial override of
legislative policy is often criticized as anchorless. In the Indiana Constitution, we
have not even a due process clause to hold our jurisprudential vessel steady
against the shifting tides of judicial inclinations. We also have the constitutional
directive in Article I, Section 1 that all power is inherent in the
people. This too suggests deference to legislation that does not run afoul
of a specific constitutional provision.
For all of the foregoing reasons, we think constitutional rights not grounded in
a specific constitutional provision should not be readily discovered. Specifically, we do
not agree with the Sills concurrence, cited with approval in Terry, to the
extent it takes the view that intent is a constitutionally required element of
every crime. To support that view, the concurrence in Sills explains the
case law supporting strict criminal liability as in reality finding an implied intent.
463 N.E.2d at 241. Smith v. California, 361 U.S. 147 (1959),
is cited for the proposition that every crime requires intent, even though that
case expressly stated that, it is doubtless competent for the States to create
strict criminal liabilities by defining criminal offenses without any element of scienter.
Id. at 150. To explain this apparent rejection of the necessity of
a mens rea element, the Sills concurrence contended that some laws, e.g., food
and drug regulatory statutes, require strict liability to serve their purposes, and, therefore,
it is necessary to imply intent under some circumstances. 463 N.E.2d at
241. We assume the reference is to cases such as United States
v. Park, 421 U.S. 658, 672-73 (1975), and United States v. Dotterweich, 320
U.S. 277, 281 (1943), upholding strict criminal liability under some circumstances. We
think it is more candid to acknowledge, as Smith holds, that some crimes
do not have a mens rea component, rather than to contend that intent
is always required, but may be implied if necessary. 361 U.S at
We do agree that a crime requires some voluntary action, and perhaps that
is all Terry and Sills address. Sills cites an example that was
contended to illustrate the need for an intent requirement for every crime.
Although acknowledging that running a red light is an offense as to which
lack of intent is no defense, Sills cites it as a case where
implied intent is necessary. 463 N.E.2d at 241. To prove its
point, Sills posed the example of a motorist who is struck by a
rock and rendered unconscious while the car proceeds through the light. Id.
The contention is that no judge or jury should convict under those
conditions. The conclusion is generally correct, but we think this example does
not establish that intent is an element, but rather reflects the usual assumption
that voluntary action is a component of a crime. See Ind. Code
§ 35-41-2-1 (1998); cf. McClain v. State, 678 N.E.2d 104, 107 (Ind. 1997).
To the extent some have suggested that statutes similar to this eliminate the
commonly understood requirement of voluntary actions necessary for culpability,
See footnote we disagree. The
statute provides that voluntary intoxication may not be taken into consideration in determining
the existence of a mental state that is an element of the offense.
Like all statutes in derogation of the common law, it is to
be strictly construed.
Durham v. U-Haul Intl, 745 N.E.2d 755, 759 (Ind.
2001). We think an element of the offense refers to each
unique mental element set forth in the statute defining the crime, and not
to the general requirement of voluntary action that underlies all crimes, but is
typically not articulated in the statutes except as it is found in the
overriding provision of Indiana Code section 35-41-2-1.
See footnote The Indiana intoxication statute eliminates
the requirement that the voluntarily intoxicated defendant acted knowingly or intentionally as to
those crimes that include those elements.See footnote But even if there may be
an act rendered involuntary by intoxication, itself a doubtful premise in most circumstances,
the legislature has decreed that the intoxication, if voluntary, supplies the general requirement
of a voluntary act. That is sufficient to place the voluntarily intoxicated
offender at risk for the consequences of his actions, even if it is
claimed that the capacity has been obliterated to achieve the otherwise requisite mental
state for a specific crime.
The concurrence contends that the need for voluntary acts cannot be supplied by
voluntary intoxication. As we see it, the issues are: first, what
conduct the legislature has chosen to prohibit; and second, whether there is any
constitutional bar to criminalizing that conduct. It may be unwise to impose
strict liability for actions taken by voluntarily intoxicated persons. But the issue
before us is whether the legislature has so provided, and, if so, whether
it is unconstitutional. If the statute so provides, and the constitution presents
no barrier to that legislation, evidence of voluntary intoxication may not be presented
to negate mens rea.
Providing that a voluntarily intoxicated person is responsible for his or her actions
to the same degree as a sober person does not criminalize activity that
is wholly innocent because of ignorance of an obscure law or lack of
knowledge of relevant facts. Rather, it substitutes an element of voluntary intoxication
to the point that a person can claim ignorance of his own actions
for the mens rea otherwise required as to the wrongful conduct itself.
In this respect, it is similar to felony murder, which accepts the mens
rea of the underlying felony as sufficient for murder. Both involve attaching
more serious penal consequences to an activity that the legislature may view as
reprehensible in itself if it produces greater harm than it typically does.
As such, neither presents the problem of criminalizing activity that most would regard
as wholly blameless,
or even the issue of individual criminal responsibility for organizational
failures without proof of individual mens rea.
Sanchez individually and alone inflicted this night of terror on his victim.
His conduct was plainly at the core of the circle of culpability.
The issue is whether the legislature may hold him criminally responsible notwithstanding a
claim of intoxication. We think the legislature had conventional crimesmurder, battery, rape,
and so forthin mind when it provided that voluntary intoxication does not negate
the mens rea element. So applied, that treatment of intoxication does not
criminalize activity that ordinary citizens would consider benign. Rather, it supplements the
knowing and intentional elements with a third condition. The statute acts
qualitatively the same as felony murder, and both are constitutional forms of strict
liability. If and when we are confronted with a claim that intoxication
was accompanied by an act wholly innocent if taken by a sober person,
we can consider the issues those facts raise.
Until 1997 a voluntarily intoxicated defendant in Indiana could claim that his actions
were neither knowing or intentional. Yet the pages of the Northeast Reporter
are full of cases reciting that the defendants action in executing a plan,
operating a motor vehicle, or otherwise demonstrating physical capacity were enough to establish
the requisite mens rea as a matter of law. Assuming intoxication has
both rendered a person incapable of apprehending the consequences or wrongfulness of his
acts and still left him capable of performing them, we think the legislature
may constitutionally provide that the perpetrator whose ignorance is the product of self-induced
intoxication rather than moral blindness is equally culpable. In this case, there
can be no doubt from the extended sequence of events that Sanchez acted
voluntarily, however impaired he may have been. The legislature has chosen to
treat ignorance of the consequences of ones act induced by voluntary intoxication the
same as simple ignorance of the law. Even strong opponents of strict
liability doctrine agree that it may be appropriate for some crimes. Professor
Harts work is usually cited as one of the fountainheads of attacks on
strict liability. See Henry M. Hart, Jr., The Aims of the Criminal
Law, 23 Law & Contemp. Probs. 401 (1958). But he recognized that
any member of the community who does these things without knowing they are
criminal is blameworthy, as much for his lack of knowledge as for his
actual conduct. Id. at 413.
IV. The Statute as a Redefinition of the Mens Rea Requirement
Because we conclude that a statute may properly impose criminal liability for some
actions without a mens rea element, the question becomes whether the statute before
us does that. We think Montana v. Egelhoff, 518 U.S. 37 (1996),
is instructive on that point. Four Justices constituted the plurality sustaining the
Montana statute in Egelhoff on the ground that a state may exclude relevant
evidence if its exclusion does not offend some principle of justice so rooted
in the traditions and conscience of our people as to be ranked as
fundamental. Id. at 43 (quoting Patterson v. New York, 432 U.S. 197,
201-02 (1977)). After examining the history of voluntary intoxication in much more
detail than is recounted here, the Court then concluded that a voluntary intoxication
defense is not a fundamental right protected by federal due process.
Justices Ginsburg, Souter, and OConnor, in individual concurrences or dissents, agreed that a
state could constitutionally define the mental element of a crime to be satisfied
by voluntary intoxication. Justice Ginsburg thought that this was the proper view
of the Montana statute and concurred on that basis.
Id. at 59-60.
Justice Souter also thought the statute seemed to do that, but felt
constrained by the Montana Supreme Courts position that the statute prevented the introduction
of relevant evidence and therefore violated due process. Id. at 73-74.
Justice OConnor agreed that a state could constitutionally define mens rea, but read
the statute to exclude relevant evidence, and, therefore, to deny procedural due process.
Id. at 71-73.
Unlike the Montana Supreme Court, we read the Indiana statute as redefining the
elements of crimes, and not as excluding relevant evidence. As a matter
of form, the statute does not speak in terms of admissible evidence.
It was added to the Indiana Code as a new section for Chapter
35-41-2, which is entitled Basis of Criminal Liability, itself a part of Article
35-41, entitled Substantive Criminal Provisions. This reading is reinforced by our knowledge
that the Indiana statute was adopted after
Egelhoff, and with the benefit of
its analysis and the knowledge that the result in Egelhoff turned on Justice
Ginsburgs reading of the Montana statute. Justice Breyer, joined by Justice Stevens,
pointed out that reading the Montana statute as equivalent to a redefinition of
the mental elements of crimes has some potentially anomalous results. Id. at
79. He asks why, if this were the intended result, would the
legislation not have done so explicitly. Id. at 80. We think
Egelhoff itself suggests the answer to that question for Indiana. The language
of the Indiana statute is essentially identical to the Montana version, which had
already passed federal constitutional muster in Egelhoff. That is a good enough
reason for the Indiana legislature to stick with the tried and true.
Second, and less important, the criminal laws of this state are filled with
various mens rea provisions. An attempt to redefine all in a single
provision would fit poorly with the codification effort to group statutes in logically
related categories, and amending these crimes piecemeal would be a much more daunting
drafting task. Because we view the voluntary intoxication statute as defining the
elements of crimes in this state, we do not find it offensive to
either the federal due process clause or any notion of fundamental fairness embedded
in our state constitution.
Because the statute does not exclude relevant evidence, it does not necessarily proscribe
evidence of the defendants use of alcohol or drugs. Rather, as occurred
in this case, this evidence may be admissible as general background,
relevant to something other than lack of mens rea, e.g., identity. Perhaps
it may also be relevant to a claim of accident under other circumstances.
But none of these issues are raised here. This is not
to say, as the concurrence contends, that other rules of evidence, specifically, Indiana
Rule of Evidence 404(b), may not preclude use of this evidence if the
defense objects. To the contrary, Swanson v. State, 666 N.E.2d 397, 398-99
(Ind. 1996), cited by the concurrence, holds that Rule 404(b) may preclude evidence
of other bad acts. We think this holding is fully consistent with
our ruling today. Here, evidence of defendants intoxication was admitted and embraced
by the defendant. If such evidence is admitted, the instruction given by
the trial court is proper. Moreover, the trial court may properly exclude
evidence of blood alcohol content, as was done in this case, if it
finds that it bears solely on the degree of intoxication.
The concurrence purports to agree with Justice OConnors concurrence in Egelhoff. But
as already noted, although Justice OConnor readily agreed with the plurality that a
state could constitutionally redefine the mens rea elements to elevate voluntary intoxication, she
felt bound by the Montana Supreme Courts view of the Montana statute.
Egelhoff, 518 U.S. at 71-73. Because we construe our statute as redefining
the requisite mens rea, we assume Justice OConnor would agree that the Indiana
statute is constitutional under federal law.
In sum, we agree with the concurrence that the State is obligated to
prove all elements of a crime. And we agree that a defendant
has a right to present relevant evidence to negate an element of any
charged offense. But we disagree with the concurrence that the voluntary intoxication
statute denies this right. The statute redefines the requirement of mens rea
to include voluntary intoxication, in addition to the traditional mental states, i.e., intentionally,
knowingly, and recklessly. Thus, evidence of voluntary intoxication does not negate the
mens rea requirement, as the concurrence contends. Rather, it satisfies this element
of the crime.
V. Article I, Section 13Right to Present a Defense
Sanchez also contends that exclusion of evidence showing his voluntary intoxication violates Article
I, Section 13 of the Indiana Constitution. That section provides: In
all criminal prosecutions, the accused shall have the right . . . to
be heard by himself and counsel . . . . He claims
that his right to be heard provides him a right to present his
defenses. It is correct that the Indiana Constitution places a unique value
upon the desire of an individual accused of a crime to speak out
personally in the courtroom and state what in his mind constitutes a predicate
for his innocence of the charges.
Campbell v. State, 622 N.E.2d 495,
498 (Ind. 1993), abrogated on other grounds by Richardson v. State, 717 N.E.2d
32, 49 n.36 (Ind. 1999). The United States Supreme Court has similarly
described the defendants federal constitutional right to present his own version of events
in his words as fundamental. Rock v. Arkansas, 483 U.S. 44, 52
But Article I, Section 13 does not require that any specific claim of
a defense be recognized by Indiana law. Rather, it gives defendants the
right to present evidence in support of those defenses that are recognized by
the law of the state. The language of the provision refers to
the right of a defendant to be heard by himself and counsel.
It protects against limitations on a defendants right to testify at trial and
to be represented by either himself or counsel. As this Court recently
Roach v. State, under the federal constitutional right to present a
defense, the accused, as is required of the State, must comply with established
rules of procedure and evidence designed to assure both fairness and reliability in
the ascertainment of guilt and innocence. 695 N.E.2d 934, 939 (Ind. 1998)
(quoting Chambers v. Mississippi, 410 U.S. 284, 302 (1973)). One of the
rules of evidence is the requirement of relevance. Ind. Evidence Rule 401.
If the substantive law renders the evidence irrelevantwhich is what the statute
does to Sanchezs claim of voluntary intoxicationthere is no right under Article I,
Section 13 to present it. We agree with the concurrence that a
defendant has a right to present evidence to negate any element of any
crime. We disagree that the point is relevant here because the statute,
by definition with elements different than the concurrence would like, renders the evidence
Accordingly, we hold that Indiana Code section 35-41-2-5 does not violate Article I,
Section 13 of the Indiana Constitution.
VI. Article I, Section 19Jury to Determine Law and Facts
Article I, Section 19 reads, In all criminal cases whatever, the jury shall
have the right to determine the law and the facts. Sanchez contends
that Indiana Code section 35-41-2-5 violates his right to have the jury determine
the law and the facts pursuant to Article I, Section 19. Specifically,
he argues that the voluntary intoxication instruction binds the jury to find intent
where it may not have been proved, or to disregard evidence that negates
We do not find Sanchezs claim persuasive. The voluntary intoxication instruction does
not unconstitutionally compel the jury to make a finding of intent. In
effect, it provides that the crime is committed if it is done with
the requisite mens rea or as a result of voluntary intoxication. This
statutory scheme does not violate either the federal constitution
See footnote or the jurys ability
to determine the law and the facts.
VII. Article I, Section 23Equal Privileges and Immunities
Sanchez finally contends that Indiana Code section 35-41-2-5 violates Indianas Privileges and Immunities
clause, Article I, Section 23. He claims that the statute created a
class of voluntarily intoxicated criminal defendants who are not allowed to disprove their
intent to commit the crime and are held criminally responsible even if they
did not act knowingly or intentionally. This Court has enunciated a two-part
test for determining whether a statute granting unequal privileges or immunities to differing
classes of persons passes constitutional muster under Article I, Section 23: First,
the disparate treatment accorded by the legislation must be reasonably related to inherent
characteristics which distinguish the unequally treated classes. Second, the preferential treatment must
be uniformly applicable and equally available to all persons similarly situated. Collins
v. Day, 644 N.E.2d 72, 80 (Ind. 1994). In applying this test,
the judgment of the legislature is entitled to substantial deference. Id.
The first inquiry under Article I, Section 23 is whether the statute is
reasonably related to the inherent characteristics that define the classes. This statute
classifies persons into three groups: (1) those not intoxicated, (2) those voluntarily
intoxicated, and (3) those involuntarily intoxicated. As for the second of these,
Indiana Code section 35-41-2-5 reflects the legislative determination that defendants who are voluntarily
intoxicated are responsible for their resulting actions, but recognizes that individuals who become
intoxicated through no fault of their own are not to be held responsible
for actions taken while intoxicated. This is a permissible legislative judgment.
This distinction between voluntarily and involuntarily intoxicated defendants is rationally related to legislative
goals and is a permissible balancing of the competing interests involved. The
differentiation of the voluntarily intoxicated from those who lack mens rea for reasons
other than self-induced drunkenness is also rational. The former voluntarily placed themselves
in a mode to be harmful to others, and the latter did not.
Section 23 also requires that the preferential treatment provided by the legislation be
uniformly applicable to all similarly situated persons. On its face, the voluntary
intoxication statute applies to everyone. Sanchez is treated no differently from any
other person who is voluntarily intoxicated when he or she commits a crime.
Indiana Code section 35-41-2-5 does not violate Article I, Section 23.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, J., concur.
SULLIVAN, J., concurs in result with separate opinion in which RUCKER, J., concurs.
Attorneys for Appellant
Susan Karen Carpenter
Public Defender of Indiana
Gregory L. Lewis
Deputy Public Defender
Attorneys for Appellee
Jeffrey A. Modisett
Attorney General of Indiana
Barbara Gasper Hines
Deputy Attorney General
INDIANA SUPREME COURT
GUADALUPE A. SANCHEZ,
Appellant (Defendant below),
STATE OF INDIANA,
Appellee (Plaintiff below).
) Supreme Court No.
) Court of Appeals No.
APPEAL FROM THE WHITLEY CIRCUIT COURT
The Honorable James R. Heuer, Judge
Cause No. 92C01-9807-CF-00124
ON PETITION TO TRANSFER
June 26, 2001
SULLIVAN, Justice, concurring in result.
This case is not about a defendants right to avoid culpability for criminal
acts on the grounds that he is drunk. Nor is this case
about the legislatures ability to draft and redraft criminal statutes. What this
case is about is a defendants right to present evidence to a jury
that an element of a crime has not been satisfied.
Nearly seventeen years ago, this Court determined in Terry v. State that a
criminal defendant has a constitutional right to introduce evidence of intoxication to negate
an element of an offense charged by the State. 465 N.E.2d 1085,
1088 (Ind. 1984). Specifically, Terry held that [a]ny factor which serves as
a denial of the existence of mens rea must be considered by the
trier of fact before a guilty finding is entered. Historically, facts such
as age, mental condition, mistake or intoxication have been offered to negate the
capacity to formulate intent. Id. Terry allowed a defendant to present
relevant evidence to show that the State has failed to carry its burden
to establish beyond a reasonable doubt that the mens rea requirement of a
crime has been satisfied.
See footnote This is what Justice DeBruler meant when he
stated in a later case that [w]henever the State is required to prove
a particular state of mind on the part of the defendant, evidence
intoxication is permitted to negate the existence of that element of the crime.
Fowler v. State, 526 N.E.2d 1181, 1182 (Ind. 1988). Cf. McClain
v. State, 678 N.E.2d 104, 106 (Ind. 1997) (holding as a matter of
statutory law that evidence of automatism can be presented to show lack of
.), rehg denied.
The majority opinion overrules Terry. I think this is wrong.
That Terrys holding stems from the Indiana Constitution is beyond question, despite the
fact that the opinion does not cite a specific provision. First, Terry
stated that the statute at issue there was void and without effect and
violative of the Constitution of the United States and the State of Indiana.
465 N.E.2d at 1087-88. See also id. at 1088 (A defendant in
Indiana can offer a defense of intoxication to any crime.).
See footnote Moreover,
reliance on the Indiana Constitution is further sharpened by its incorporation of Justice
Givans concurring opinion in Sills v. State, where he stated that a defendant
could present evidence of intoxication to negate an element of an offense under
our constitution and under the firmly established principles of the mens rea required
in criminal law. 463 N.E.2d 228, 242 (Ind. 1984) (emphasis added), majority opinion
overruled in part on other grounds in Wright v. State, 658 N.E.2d 563,
570 (Ind.1995), rehg denied. Terrys constitutional pedigree is bolstered by our treatment
of it in the years since 1984. Although the majority opinion asserts
that Terry did not state in so many words that a statutory abolition
of the defense of voluntary intoxication is prohibited by the Indiana Constitution, Majority
Opinion at 7, State v. Van Cleave recognized Terrys roots in the Indiana
and U.S. Constitutions. 674 N.E.2d 1293, 1302 (Ind. 1996) (emphasis added), rehg
granted on other grounds, 681 N.E.2d 181 (1997), cert. denied, 522 U.S. 1119
(1998). Indeed, we have found the constitutional principles expounded in Terry to
be so fundamental that we gave its rule retroactive application. See Pavey
v. State, 498 N.E.2d 1195, 1196 (Ind. 1986) (applying Terry retroactively because its
holding corrected a flaw which directly and persuasively affected the fact finding process
and the determination of a defendants guilt or innocence.). We have as
of yet articulated no doubt about the constitutional source of the Terry rule.
See, e.g., Owens v. State, 659 N.E.2d 466, 472 (Ind. 1995), rehg
denied; Fowler, 526 N.E.2d at 1182.
Exceedingly persuasive arguments must be set out for us to turn our back
on such established law. See New York, C. & St. L.
R. Co. v. Henderson, 237 Ind. 456, 465, 146 N.E.2d 531, 537 (1957)
(We are not unmindful of the importance and the desirability of stable principles
of law upon which litigants may rely, but where a rule announced in
an opinion works an obvious injustice upon litigants and is not supported by
any authority that we can find, it should be eliminated from the body
of precedents of this jurisdiction.), rehg denied; Prudential Ins. Co. of America v.
Smith, 231 Ind. 403, 408, 108 N.E.2d 61, 63 (1952) (This court is
reluctant to overrule its own precedents if there is any justification in legal
principles by which they can be sustained
.). As Chief Justice
Emmert stated in State ex rel. Hale v. Marion County Municipal Court, Room
Nor should this court casually overrule prior precedents if there is to be
stability in the law.
[This] is not a case where the
reasons for the rule have ceased to exist, or there never was any
reason for the rule in the first place, either of which may be
good cause for overruling a prior precedent. If this court is to
overrule prior precedents in order to force a result in a particular case,
we will administer justice by men and not by law, and have the
law declared by judges and not by courts.
234 Ind. 467, 484-85, 127 N.E.2d 897, 905 (1955) (Emmert, C.J., dissenting).
Accord Durham v. U-Haul Intl, 745 N.E.2d 755, 763 (Ind. 2001) (We have
no quarrel with the result reached by the Court of Appeals as a
matter of policy. If we were writing on a clean slate we would
find the Court of Appeals analysis persuasive.).
Under these principles, we should review Terry only to see if intervening circumstances
have eroded its foundation to the extent that there is no justification in
legal principles by which [it] can be sustained. Prudential, 231 Ind. at 408,
108 N.E.2d at 63. My review of the justifications behind Terry indicates
that its rule has several salient features that are as strong today as
The majority would hold that the voluntary intoxication defense statute should be read
as merely defining the elements of crimes in this state. Majority Opinion at
19. This is because a statute may properly impose criminal liability for
some actions without a mens rea element. Id. at 17. And because
he reads Terry (and Sills) to suggest that a mens rea element is
constitutionally required, the majority says, it (they) are not good law.
Even if a mens rea element is not constitutionally required as a matter
of substantive constitutional law, the rule that Terry set out
solely to the presentation of evidence
has been vindicated by the procedural
aspects of this courts and the United States Supreme Courts criminal law jurisprudence.
See Louis D. Bilionis, Process, the Constitution and Substantive Criminal Law, 96
Mich. L. Rev. 1269, 1272 (1998) (
[P]rocess considerations have been shaping the Supreme
Courts jurisprudence at the intersection of the Constitution and substantive criminal law for
at least seventy-five years.). Constitutional criminal law is a process whereby each
governmental actor plays an established role. The legislative branch is responsible for
defining crimes, while courts must craft procedural rules that vindicate those legislative choices.
Id. at 1293, 1320-21.
I view Terry as one such intersection
of the Constitution and substantive criminal law that produced a procedural right.
Id. at 1272. Therefore, while the legislature is free to define the
elements of crimes, it was not free to override the rule of constitutional
criminal procedure that Terry pronounced.
Terry is not alone in this position. Several older Indiana cases suggest
that criminal defendants have a right to present evidence to rebut the States
case on a mens rea element. For example, we stated in
v. State that the Legislature has no power to declare that certain facts
shall be prima facie evidence of the ultimate fact of criminal intent, where
such facts, standing alone and without legislative enactment to aid them, would not
be sufficient to support a verdict. 210 Ind. 259, 278, 2 N.E.2d
409, 418 (1936) (citing Powers v. State, 204 Ind. 472, 184 N.E. 549
(1933)). See also Jacobs v. State, 210 Ind. 107, 110, 1 N.E.2d 452,
453 (1936) (Any instruction, whether or not it is based upon a legislative
enactment, which undertakes to tell the jury that certain evidence is sufficient to
establish the ultimate fact of criminal intent, or any other ultimate fact, or
to create a presumption of such an ultimate fact, invades the constitutional province
of the jury.); Walter v. State, 208 Ind. 231, 237, 195 N.E. 268,
271 (1935) (holding that statute providing that the failure, suspension, or involuntary liquidation
of the bank within thirty days after the time of receiving the deposit,
which is charged to have been embezzled, shall be prima facie evidence of
intent to defraud violated Article 1, § 19 of the Indiana Constitution).
These cases stand for the proposition that the legislature cannot set out the
elements of a crime but prevent a defendant from negating those elements through
irrebuttable presumptions of fact. This is similar to what occurred in
Defendants case, as the legislature defined rape to include an element of intent
but also set up a per se preclusion of the evidence that would
negate that element.
Indiana is not alone in adopting a position that a defendant has a
utional right to present evidence negating an element of mens rea. Several
courts from other jurisdictions have found a constitutional right to present evidence to
rebut the States proof of voluntary conduct:
To find otherwise would deprive a criminal defendant of the right to defend
against one of the essential elements of every criminal case. In
effect, then, such a finding would deprive the defendant of the means to
challenge an a
spect of the prosecutions case and remove the burden of proof
on that element in contravention of constitutional and statutory law.
State v. Phipps, 883 S.W.2d 138, 149 (Tenn. Crim. App. 1994) (discussing
constitutional right to present evidence of diminished capacity). See also Brown v.
State, 931 P.2d 69, 77 (N.M. 1996).
In fact, four members of the United States Supreme Court believe that the
right to pr
esent evidence negating the element of intent is ingrained in the
federal constitution. See Montana v. Egelhoff, 518 U.S. 37, 61 (1996) (OConnor, J.,
dissenting). Justice OConnor based much of her dissent on what she deemed
to be a simple principle: Due process demands that a criminal defendant be
afforded a fair opportunity to defend against the States accusations. Meaningful adversarial
testing of the States case requires that the defendant not be prevented from
raising an effective defense, which must include the right to present relevant, probative
evidence. Id. at 63.
Four other justices in Egelhoff determined that the
ability to present such exculpatory evidence was not a fundamental principle of justice,
id. at 43 (opinion of Scalia, J.) and a fifth voted on
other grounds to uphold the conviction. Id. at 56 (opinion of Ginsburg,
J.). But the fact that Justice OConnors opinion also had four votes
demonstrates that the thinking behind Terry has not faded so much that it
is a case where the reasons for the rule have ceased to exist,
or there never was any reason for the rule in the first place.
Hale, 127 N.E.2d at 905.
Finally, I note that Terry does not work the kind of
against the State that would require its abandonment. Henderson, 237 Ind. at
465, 146 N.E.2d at 537.
Terry simply affords defendants the chance to
present relevant evidence.
It does not guarantee an acquittal, and we have
repeated Terrys admonition that:
The potential of this defense should not be confused with the reality
of the situation. It is difficult to envision a finding of not
guilty by reason of intoxication when the acts committed require a significant degree
of physical or intellectual skills. As a general proposition, a defendant should
not be relieved of responsibility when he was able to devise a plan,
operate equipment, instruct the behavior of others or carry out acts requiring physical
465 N.E.2d at 1088 (emphasis added).
I agree that there are an
extremely limited number of casesas I will discuss in a moment, I do
not think this is one of themwhere a defendant can meet the Terry
standard. But it is a criminal defendants constitutional right to try.
Moreover, while Terry produces little unfairness to the State, the majority opinion produces
great unfairness to defendants. The legislature has defined numerous crimes to include
an element of intentional conduct. See, e.g.,
Ind. Code § 35-42-4-1 (1998)
Under the statute upheld today, a criminal defendant is denied the opportunity
to present evidence that is relevant to these legislatively enacted elements. The
statute precludes this evidence without any reference to its reliability and instead makes
it unavailable simply to increase the likelihood of conviction of a certain class
of defendants who might otherwise be able to prove that they did not
satisfy a requisite element of the offense. 518 U.S. at 61 (OConnor,
And, of course, the majoritys opinion gives the legislature carte
blanch to eliminate a defendants right to present evidence in other circumstances on
the theory that it is merely defining elements. This is perhaps the
most disturbing aspect of todays holding.
I agree with Justice OConnors statement that: A state legislature certainly has the
authority to identify the elements of the offenses it wishes to punish, but
once its laws are written, a defendant has the right to insist that
the State prove beyond a reasonable doubt every element of an offense
Id. at 64.
This unfairness in overruling Terry is exacerbated by the
fact that the majority opinion allows the introduction of evidence of intoxication as
general background. Majority Opinion at 20. Under this approach, the State would
be allowed to attack the defendant with what amounts to evidence of bad
character i.e. that the defendant drinks to excess. However, the defendant
would not be allowed to use the exact same evidence to rebut the
charges against him. Cf. Swanson, 666 N.E.2d at 397 (disapproving the use of
prior bad act evidence to show the res gestae of the crime).
My discussion here does not purport to show that I would feel compelled
to adopt the rule enunciated in Terry if that case were before us
in the first instance. There are valid reasons underlying both the majoritys
opinion and Justice Scalias opinion in Egelhoff. However, the arguments I have
set forth demonstrate that the principles underlying Terry remain sufficiently viable that we
must adhere to this well-settled precedent.
I concur in the result because I am convinced that the trial courts
error was harmless beyond a reasonable doubt. The State proved beyond a
reasonable doubt that Defendant was not so intoxicated that he was incapable of
forming the intent required by the statute. Evidence that shows a defendant
was not so intoxicated so that he could indeed form the requisite mens
rea includes such things as his ability to devise a plan, operate equipment,
instruct the behavior of others, or carry out acts requiring physical skill.
Owens v. State, 659 N.E.2d 466, 473 (Ind. 1995) (quoting Terry, 465 N.E.2d
at 1088). The evidence presented at trial shows that Defendant returned to
a party at a trailer, held the partygoers at gunpoint and ordered them
to handover all the phones inside the trailer. He then forced the
victim to walk to a secluded cornfield. After repeatedly raping her, he
led her to his house, which was more than three miles away.
Along the way, he forced the victim to hide from passing cars and
caught on when the victim attempted to trick him. Inside his home,
Defendant hid the victim in the basement and told others in the house
not to come downstairs. Defendant then raped the victim again. Police
later found Defendant and the victim asleep in a bed. Defendant had a
gun loaded and cocked near his right hand. This evidence is sufficient
to show beyond a reasonable doubt that Defendant was capable of forming the
intent required by the rape statute.
RUCKER, J., concurs
This attitude towards intoxication was not limited to Indiana. E.g., United
States v. Cornell, 25 F. Cas. 650, 657-58 (C.C.D. R.I. 1820) (No. 14,868)
(Drunkenness is a gross vice, and in the contemplation of some of our
laws is a crime . . . .).
Sanchez also challenges Indiana Code section 35-41-3-5 which provides for the defense
of involuntary intoxication. Because he does not present a separate argument under
this section, we do not address it.
Lord Coke stated that, [E]very Subject of this Realm, for injury done
to him in bonds, ferris, vel persona [goods, land, or person] . .
. may take his remedy by the court of Law . . .
. Lord Cokes Second Institute Explicating Article 40, 55-56 (4th ed. 1671).
The very articles cited by the concurrence make the point that it
is for the legislature to define the crimes. As Professor Bilionis put
it in discussing the classic academic literature criticizing strict liability:
The problem with all of this, as Hart well knew, is that the
Constitution never defines crime as such and that few who have worn the
judicial robes have sensed in themselves an individual capacity to trump forthright legislative
decisions to attach the criminal stigma to X or to any other act
or omission that is not privileged by virtue of a recognized constitutional right.
Louis D. Bilionis,
Process, the Constitution, and Substantive Criminal Law, 96 Mich. L.
Rev. 1269, 1277 (1998). Indeed, it is notable that none of the
articles on strict liability cited by the concurrence discuss Egelhoff except to observe
it as an example of the demise of substantive due process limitations on
criminal legislation. We think that is no accident. The problems are
quite distinct from both a jurisprudential and precedential point of view.
Brady v. Maryland, 373 U.S. 83 (1963).
Miranda v. Arizona, 384 U.S. 436 (1966).
Batson v. Kentucky, 476 U.S. 79 (1986).
Ronald J. Allen, Foreward: Montana v. EgelhoffReflections on the Limits of
Legislative Imagination and Judicial Authority, 87 J. Crim. L. & Criminology 633, 644
Indiana Code section 35-41-2-1 reads, A person commits an offense only if
he voluntarily engages in conduct in violation of the statute defining the offense.
Thus, although awareness of the likelihood of severe bodily injury is ordinarily
an element of murder, it is not necessary for the voluntarily intoxicated killer
to be convicted of murder.
Lambert v. California, 355 U.S. 225, 229-30 (1957), held it a
violation of federal due process to convict under a Los Angeles ordinance prohibiting
failure to register as a convicted felon within five days after residing in
See, e.g., Dotterweich, 320 U.S. at 280-81 (upholding strict liability of corporate
officers for violations by the organization without an individual mens rea).
See Elliott v. State, 630 N.E.2d 202, 204 (Ind. 1994); McFarland v.
State, 271 Ind. 105, 111, 390 N.E.2d 989, 993 (1979) (Moreover, we must
recognize that a considerable leeway is allowed even on direct examination for proof
of facts which are not really offered as bearing on the dispute, however
defined, but merely as details which fill in the background of the narrative
and give it interest, color, and lifelikeness.) (citations omitted); Buise v. State, 258
Ind. 321, 325, 281 N.E.2d 93, 96 (1972); see generally Fed. R. Evid.
401 advisory committees note; 1 McCormick on Evidence § 185 (John W. Strong
ed., 5th ed. 1999).
See United States v. Park, 421 U.S. 658, 672-73 (1975).
The majority suggests that Defendant engaged in culpable conduct by consuming alcohol.
See Majority Opinion at 15-16. However, the State has a constitutional
obligation to establish every element of a charged offense, and that includes showing
that Defendant engaged in his conduct intentionally or knowingly when the offense contains
such a mens rea requirement. See, e.g., Ind. Code § 35-42-4-1 (1998) (stating
that rape occurs when a person
knowingly or intentionally has sexual intercourse
with a member of the opposite sex under certain defined circumstances).
The United States Supreme Court overruled the federal component of this holding
in Montana v. Egelhoff, 518 U.S. 37 (1996).
The drafters of the Indiana Constitution apparently subscribed to this view.
A proposed amendment to the resolution that became Article 1, § 15 provided
that [n]o person shall be held to answer to any criminal charge except
in such manner as shall be prescribed by law. Id. at 735.
The fact that this amendment failed, see id. at 736, suggests that the
drafters did not grant the legislature an unfettered power to write rules of
criminal procedure. This reading is reinforced by the concept of separation of
power that the drafters embedded in Article 3, § 1.
It is somewhat difficult to decipher whether Justice OConnor sees this right
as substantive or procedural because she cites substantive cases such as In Re
Winship, 397 U.S. 358 (1970), as well as procedural cases such as Chambers
v. Mississippi, 410 U.S. 284 (1973). However, I see her opinion as
essentially melding both bodies of law. Cf. discussion supra page 6. It
grants a procedural right the ability to present evidence of intoxication
in order to serve substantive goals the requirement that the State prove
its case on every element beyond a reasonable doubt.
The fact that the legislature retained the defense of involuntary intoxication demonstrates
that it considers evidence of intoxication relevant to the issue of intent.
See Ind. Code § 35-41-3-5 (1998). The majority seemingly also would find
evidence of intoxication to be relevant and reliable, as it would allow it
to be introduced as general background. See discussion infra. This conclusion appears
to contradict Chief Justice Shepards opinion in Swanson v. State, 666 N.E.2d 397
(Ind. 1996), rehg denied.
This case is distinct from other situations where we have upheld the
exclusion of pote
ntially exculpatory evidence. See, e.g., Hubbard v. State, 742 N.E.2d 919,
924 (Ind. 2001) (upholding exclusion of polygraph test results). See also Duff
v. State, 508 N.E.2d 17, 21 (Ind. 1987) (DeBruler, J., dissenting) (discussing the
right of the defendant to present relevant evidence and to have a fair
opportunity to cross-examine opposing witnesses), rehg denied. In those cases, we upheld
the exclusion of relevant evidence based on some flaw in its evidentiary value,
such as its unreliability. Here, the defendant is prevented from presenting exculpatory
evidence not because of a failure in its evidentiary value, but because of
the States desire to ensure that even a defendant who lacked the required
mental-state element and is therefore not guilty is nevertheless convicted of
the offense. Egelhoff, 518 U.S. at 66 (OConnor, J., dissenting). See also id.
at 67 ([The statute bars] the defendants use of a category of relevant,
exculpatory evidence for the express purpose of improving the States likelihood of winning
. The pluralitys observation that all evidentiary rules that exclude
exculpatory evidence reduce the States burden to prove its case is beside the
point. The purpose of the familiar rules is not to alleviate the States
burden, but rather to vindicate some other goal or value
The Egelhoff opinion is useful in construing Ind. Code § 35-41-2-5 because
the statute was drafted in 1997, apparently in response to Egelhoff.