The question in this appeal is whether a state may place the burden of proving voluntary intoxication on an accused who invokes it as a defense to a crime requiring specific intent. We find no constitutional prohibition to such a statutory allocation of the onus probandi and affirm the denial of a petition for a writ of habeas corpus filed by a state prisoner convicted of first degree murder.

A Delaware state court convicted the petitioner of first degree murder, first degree rape, and first degree conspiracy. He is serving sentences of life imprisonment for the murder and rape convictions and 30 years for the conspiracy count. After exhausting state remedies, he sought a writ of habeas corpus in the federal district court only with respect to the conviction for murder.1 After reviewing records of the state proceedings, the court denied the petition.

In February of 1976, the petitioner, then 18 years of age, and two other youths, Robert W. Jones, Jr., the petitioner's codefendant in state court, and Carey Dale Shirk, were living on the second floor of a farmhouse in Smyrna, Delaware. Goddard and Jones had rented the rooms from a third party while the owner, a woman over 70 years of age, was away. When she returned a week after the premises had been rented, Goddard suggested to his roommates that they kill her to avoid paying rent. The three youths then went to a pool hall for about two hours. When they came back to the farmhouse, Goddard again proposed that they lure the landlady to their rooms and kill her. After instructing his roommates to hide, he went to the first floor and persuaded the woman to accompany him upstairs. After she entered the rooms, he attacked her. Shirk fled, but Jones remained in an adjoining room. Goddard then bound, raped, and strangled the woman.

Jones came into the room as Goddard finished killing his victim and assisted in disposing of her body. They placed the corpse in the trunk of the victim's car and, with Goddard at the wheel, drove to Elkton, Maryland. There, they concealed the body in a wooded area.

At trial, the petitioner testified that he had taken LSD and smoked marijuana and "angel dust" shortly before the murder. He contended that as a result he was hallucinating and never consciously intended to kill the victim. Jones and Shirk testified that to their knowledge Goddard had not used any drugs on the day of the killing, and in their opinion he was not intoxicated. Jones stated that Goddard was "(p)retty calm" and acted "like he knew what he was doing."

The trial judge charged the jury that voluntary intoxication was available as a defense only if it was "such as to make it impossible for (Goddard) to have the state of mind required for (the) offense ((first degree murder)). In this case, the relevant state of mind was the intent to kill the alleged victim." If the defendant was able to prove the necessary degree of intoxication by a preponderance of the evidence, then the jury was told to consider whether he was guilty of second degree murder or manslaughter.2

The court also charged that to find the defendant guilty of murder in the first degree, the jury had to find two elements: (1) that the defendant caused the death of the victim, and (2) that the "defendant acted intentionally; that is, it must have been the defendant's conscious object or purpose to cause death . . . . If after considering all of the evidence, you find that the State has established beyond a reasonable doubt that either defendant acted in such a manner as to satisfy all the elements, which I have just stated, at or about the date and place stated in the indictment, you should find the defendant guilty of Murder in the First Degree."

Instructions were also given with respect to the lesser degrees of murder and manslaughter, specifying that the state had the burden of proof beyond a reasonable doubt. Near the conclusion of the charge, the judge said:

"You should, however, keep in mind that at all times it's the defendant's state of mind which is at issue here, and in order to convict the defendant, you are required to find beyond a reasonable doubt that he in fact had the intention and/or recklessness required for guilt."

The Supreme Court of Delaware affirmed Goddard's conviction over his contention that the instructions concerning the intoxication defense violated due process by relieving the state of its obligation to prove each element of the offense beyond a reasonable doubt. The court found that the charge met federal constitutional standards on the burden of proof articulated in Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977). Goddard v. State, 382 A.2d 238 (Del.1977). The habeas court, however, read the charge as placing the burden on the petitioner to negate intent, an essential element of first degree murder, counter to Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975). Nevertheless, the district judge refused to grant the writ, deciding that in light of the overwhelming evidence of the petitioner's guilt, the erroneous instruction was "harmless beyond a reasonable doubt."

The issue in this case is whether Delaware was constitutionally prohibited from requiring the petitioner to prove the affirmative defense of voluntary intoxication by a preponderance of the evidence. Phrased differently, once the defense of intoxication had been raised, was the prosecutor required to prove its absence? In charging the jury on intoxication, the trial judge faithfully followed the provisions of the Delaware Criminal Code, so necessarily we must pass upon their validity. Resolution of the question requires a brief review of the relevant statutes and a consideration of several leading cases on the burden of proof in criminal trials, including In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); Mullaney v. Wilbur, supra ; and Patterson v. New York, supra. We turn first to the statutory framework.

At the time Goddard committed his crime, § 421 of the Delaware Criminal Code recognized the defense of voluntary intoxication "if it negative(d) the element of intentional or intentionally." 59 Del. Laws c. 203, § 37 (1973), amending 58 Del. Laws c. 497, § 1 (1972).3 Section 304 of the Code provides that when an "affirmative" defense is raised, the defendant must establish it by a preponderance of the evidence. The burden of proof on the state in every criminal case is governed by § 301(b). It provides: "No person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt." Del. Code Ann. tit. 11, § 301(b) (Michie 1979).

The petitioner was charged with first degree murder, "intentionally caus(ing) the death of another person." Del. Code Ann. tit. 11, § 636(a)(1) (Michie 1979). Although the defense of voluntary intoxication was available to counter the element of "intentionally," it could not negative the mental state of recklessness inherent in lesser degrees of homicide where the intoxicant's effect was merely to make the accused unaware that he had created a risk sufficient to satisfy that standard. See note 3 supra ; 11 Del. Code Ann. tit. 11, § 231(c) (Michie 1979) (definition of recklessness); Model Penal Code § 2.08, comment 3, at 9 (Tent. Draft No. 9, 1959). Thus, under the Criminal Code, voluntary intoxication only served to make what otherwise would have constituted first degree murder a reduced grade of homicide, where recklessness or some less culpable state of mind is all that is required. See Del. Code Ann. tit. 11, §§ 231 (definitions regarding state of mind), 635 (second degree murder), 632 (manslaughter), and 631 (criminally negligent homicide) (Michie 1979). Against this statutory background, we must consider the relevant Supreme Court pronouncements on the burden of proof.

In In re Winship, supra, the Supreme Court held that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime." 397 U.S. at 364, 90 S.Ct. at 1073. Five years later, in Mullaney v. Wilbur, supra, the Court reviewed the habeas corpus appeal of a defendant convicted of first degree murder by the Maine courts. The trial court had charged that malice aforethought was an essential and indispensable element of murder and was inconsistent with the defense of heat of passion on sudden provocation. The jury was further instructed that if the prosecution established that the homicide was both intentional and unlawful, malice aforethought was to be conclusively implied unless the defendant proved by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation.

Noting that malice aforethought distinguished murder from lesser degrees of felonious homicide, Mullaney held that by placing the burden on the defendant to establish the converse, the state had violated his right to due process. In the Court's judgment, this persuasion-shifting arrangement relieved the prosecution of its constitutional obligation to establish every fact critical to a greater degree of culpability. See 421 U.S. at 696-701, 95 S.Ct. at 1888-1890. In a concurring opinion, Justice Rehnquist wrote that he saw no inconsistency between the result reached by the majority and the Court's opinion in Leland v. Oregon, 343 U.S. 790, 72 S. Ct. 1002, 96 L. Ed. 1302 (1952), where a statute requiring the defendant in a murder case to prove insanity beyond a reasonable doubt survived a constitutional challenge. 421 U.S. at 704-06, 95 S.Ct. at 1892-93.

A year after Mullaney was decided, the Court was confronted with a Delaware statute that placed the burden of proving insanity in a criminal case on the defendant. In Rivera v. Delaware, 429 U.S. 877, 97 S. Ct. 226, 50 L. Ed. 2d 160 (1976), the Court dismissed for want of a substantial federal question an appeal from the Delaware Supreme Court affirming a conviction in a trial where the defendant was required to prove insanity. Thus Leland remained viable despite Mullaney.

The next development was Patterson v. New York, supra, a murder case in which the Court rebuffed a constitutional attack on a state statute that required the defendant to shoulder the burden of proving the defense of extreme emotional disturbance. The trial judge charged that the state had to establish beyond a reasonable doubt that the defendant "intended . . . to kill either the victim himself or some other human being" and repeated that it was the prosecution's burden "to prove (defendant's) guilt, and to prove that he intended to kill in this instance beyond a reasonable doubt." 432 U.S. at 199-200, 97 S.Ct. at 2321-22. The jury also was instructed that the defendant had the burden of proving his affirmative defense by a preponderance of the evidence. Id. at 200, 97 S.Ct. at 2321.

In reviewing the New York statute, the Court noted that "(t)he death, the intent to kill, and causation are the facts the state is required to prove beyond a reasonable doubt . . . . No further facts are either presumed or inferred in order to constitute the crime." Id. at 205-06, 97 S.Ct. at 2324. The Court went on to say that if an intentional killing were shown, the defendant would be considered a murderer unless he demonstrated mitigating circumstances. The affirmative defense of extreme emotional disturbance in these circumstances did not serve to negative any facts of the crime that the state had to prove in order to convict. The majority refused to reconsider Leland and Rivera. Mullaney was explained as requiring a state to prove every ingredient of an offense beyond a reasonable doubt, "and . . . it may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense . . .. It was unnecessary to go further in Mullaney." Id. at 215, 97 S.Ct. at 2329.

At the very least, Mullaney has been substantially narrowed by Patterson. See id. at 221-25, 97 S.Ct. at 2332-34 (Powell, J., dissenting). On the same day that Patterson was decided, the Court, in Hankerson v. North Carolina, 432 U.S. 233, 97 S. Ct. 2339, 53 L. Ed. 2d 306 (1977), held that Mullaney was retroactive. Significantly, however, Justice Blackmun and the Chief Justice held out an invitation to the state court to reexamine in light of Patterson its position that placing the burden of proving self-defense on the accused violated due process. Id. at 245, 97 S.Ct. at 2346.4III.

There are striking similarities between Patterson and the case at bar. Here, the state had the burden to prove all the elements of the crime including intent. There was no presumption operating to establish one fact by proof of another as Patterson found present in Mullaney. The defense of intoxication is premised on the same general theory as extreme emotional disturbance, that is, an impairment of the intellectual process brought on here by drugs and in Patterson by an emotional upheaval. Both to some extent may be loosely characterized as a temporary degree of insanity. W. LaFave & A. Scott, Handbook on Criminal Law § 45, at 342 (1972),5 although under the Delaware Code insanity is a complete defense. Del. Code Ann. tit. 11, § 401 (Michie 1979). Voluntary intoxication, if it eliminated the intent to kill, reduced the severity of the crime, but it did not excuse the defendant from the consequences of other gradations of homicide. In that respect, the defense is similar to that of extreme emotional disturbance which, if established, would reduce the crime from first degree murder to a lesser degree of homicide.

At first glance, the statute, former § 421, appears to implicate Patterson's prohibition against requiring a criminal defendant to disprove any facts of the crime that the state had to establish in order to convict. By its terms, the defense seems to be available only when it negatives an element of the offense. But on reflection, it is apparent that as the statute was applied to Goddard, it did not conflict with Patterson.

Historically a majority of the states have placed the burden of proving the defense of voluntary intoxication on the defendant in a criminal case.6 Indeed, before the adoption of the Delaware Criminal Code, that state so allocated the burden as a matter of common law. Fisher v. State, 4 Storey 542, 546-47, 54 Del. 542, 546-47, 182 A.2d 333, 335 (1962); State v. Kupis, 7 W.W.Harr. 27, 31, 37 Del. 27, 31, 179 A. 640, 641 (1935). In Patterson, the Court held, "Proof of the nonexistence of all affirmative defenses has never been constitutionally required . . . ." 432 U.S. at 210, 97 S.Ct. at 2327. It stated:

"Long before Winship, the universal rule in this country was that the prosecution must prove guilt beyond a reasonable doubt. At the same time, the long-accepted rule was that it was constitutionally permissible to provide that various affirmative defenses were to be proved by the defendant. This did not lead to such abuses or to such widespread redefinition of crime and reduction of the prosecution's burden that a new constitutional rule was required. This was not the problem to which Winship was addressed. Nor does the fact that a majority of the States have now assumed the burden of disproving affirmative defenses for whatever reasons mean that those States that strike a different balance are in violation of the Constitution."

Id. at 211, 97 S.Ct. at 2327 (footnotes omitted). The Court also commented approvingly on the statement by Chief Judge Breitel of the New York Court of Appeals that to discourage the use of affirmative defenses may be misguided since they may be used to ameliorate the statutory scheme for punishment of crime rather than foster rigidity. Id. at 211 n.13, 97 S. Ct. at 2327 n.13.

That factor is present here because Delaware provided for the affirmative defense of voluntary intoxication, although it was not required either constitutionally or at common law.7 In an attempt to limit the exposure of the defendants to conviction for a crime requiring specific intent, however, the legislature provided for intoxication as a mitigating factor. A gratuitous defense having been provided, it is not constitutionally perverse for the state to insist that the defendant assume the responsibility of proving his contention by a preponderance of the evidence.8 As the Patterson Court noted, statutes requiring proof of certain affirmative defenses fall within an area in which the legislature has room to maneuver. And as the holding implies, such matters as heat of passion and voluntary intoxication are in this category.

Moreover, since the Court has held that the defense may be required to establish insanity, Rivera v. State, supra; Leland v. Oregon, supra, it follows that a state may impose the burden of proof upon the accused when the effect upon rational behavior may be less severe. Indeed, in the case of voluntary intoxication, the state has displayed an even greater degree of leniency because the impaired intellectual functioning was caused by the defendant's own voluntary act, unlike deficiencies caused by forces beyond one's control.

Examining the manner in which this defense was presented to the jury further convinces us that Goddard suffered no harm. The trial judge instructed the jury on numerous occasions that the state was required to prove beyond a reasonable doubt all the elements of first degree murder including the intent to kill. There can be no doubt that reasonable jurors would have understood from the instructions as a whole that if the state failed to prove the requisite intent, they necessarily had to acquit the defendant of first degree murder. See Sandstrom v. Montana, 442 U.S. 510, 514-19, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979); Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S. Ct. 396, 400, 38 L. Ed. 2d 368 (1973).

An analysis of the evidentiary bases of the prosecution's case and of the defense demonstrates the practical application of the charge. It must be remembered that a jury may be required to determine the existence of an element of the crime that is, an "ultimate" or "elemental" fact from the proof of one or more "evidentiary" or "basic" facts. County Court of Ulster County v. Allen, 442 U.S. 140, 156, 99 S. Ct. 2213, 60 L. Ed. 2d 777 (1979). In this case the evidentiary facts leading to the ultimate fact of intent to kill differ from the evidentiary facts that Goddard sought to use in establishing his defense. The jury could infer criminal intent from the actions of the defendant in planning the murder, tying up the victim, and deliberately strangling her. None of these actions would likely have been the product of recklessness, inadvertence, or mistake. Thus, the prosecution had produced all the evidence necessary from which the jury could find the presence of an intent to kill, and at that point the state's case was complete. It did not rely upon a presumption that the defendant was called upon to rebut.

The petitioner's testimony on intoxication did not challenge the evidentiary facts of the prosecution's case. Thus, the burden to convince the jury of the basic facts relied on to establish the ultimate fact of intent to kill never was taken from the state, and, reading the charge as a whole, there is no possibility that the jury perceived the burden to be otherwise. In this sense, the evil that the Patterson Court found inherent in Mullaney requiring the defendant to negative the prosecution's case is not present. Only after determining that the prosecution had established its case on first degree murder did the jury have occasion to consider whether the intoxication had been established. This affirmative defense therefore did not lessen the state's burden but added a separate element to the trial so that the defendant would have an opportunity for mitigation.

The statutory scheme and the instructions given to the jury did not unconstitutionally shift any part of the state's burden to the petitioner, and, accordingly, the district court properly denied the petition for a writ of habeas corpus, albeit on a different ground. The order will be affirmed.