stating that defendant must show that codefendant would testify in separate trial and that testimony would be exculpatory
How later courts described this case
- stating that defendant must show that codefendant would testify in separate trial and that testimony would be exculpatory
- error to instruct jury that “defendant has the burden of proving that the defendant reached this degree of intoxication”
- instruction required "the defendant to prove a specific fact, his incapacity, which would negate intent"
Written by the judges who cited it.
The opinion
GIVAN, Justice,
concurring in result.
I concur with the majority that the final sentence on the instruction on intoxication as a defense was error in that it stated, "The defendant has the burden of proving that the defendant reached this degree of intoxication." As pointed out by the majority, this is contrary to our holding in Powers v. State (1989), Ind. 540 N.E.2d 1225 that although a defendant has the responsibility of raising an affirmative defense such as intoxication, this does not relieve the State of its burden of proving the element of mens rea.
However, the majority correctly cites Fowler v. State (1988), Ind., 526 N.E.2d 1181 and the Powers case and then proceeds to imply that Huffman v. State (1989), Ind., 543 N.E.2d 360 , cert. denied, — U.S. —, 110 S.Ct. 3257 , 111 L.Ed.2d 767 holds to the contrary. This is not true. Huffman does not address this subject either in the majority opinion or the dissenting opinion. There is nothing about the decision in the case at bar which would imply the necessity of overruling any portion of Huffman.
In all other respects, I agree with the majority opinion.