2014 WI 93
SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP1467-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Donyil Leeiton Anderson, Sr.,
Defendant-Appellant.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 350 Wis. 2d 505, 838 N.W.2d 136
(Ct. App. 2013 – Unpublished)
OPINION FILED: July 30, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 8, 2014
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Rock
JUDGE: James P. Daley
JUSTICES:
CONCURRED: PROSSER, J., concurs. (Opinion filed.)
DISSENTED: ABRAHAMSON, C.J., BRADLEY, J., dissent. (Opinion
filed.)
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-respondent-petitioner, the cause was
argued by Sally Wellman, assistant attorney general, with whom
on the briefs was J.B. Van Hollen, attorney general.
For the defendant-appellant, there was a brief by William
E. Schmaal, assistant state public defender, and oral argument
by William E. Schmaal.
2014 WI 93
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 202011AP1467-CR
(L.C. No. 2008CF2428)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Petitioner,
FILED
v. JUL 30, 2014
Donyil Leeiton Anderson, Sr., Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 MICHAEL J. GABLEMAN, J. This is a review of an
unpublished decision of the court of appeals1 reversing the
judgment of the Rock County Circuit Court2 convicting Donyil L.
Anderson, Sr., of one count of first-degree intentional homicide
and one count of attempted first-degree intentional homicide.
¶2 The question presented in this case is whether the
circuit court erred in instructing the jury that "[a] temporary
1
State v. Anderson, No. 2011AP1467-CR, unpublished slip op.
(Wis. Ct. App. Aug. 15, 2013).
2
The Honorable James P. Daley presided.
No. 2011AP1467-CR
mental state which is brought into existence by the voluntary
taking of drugs or alcohol does not constitute a mental defect."
The State and Anderson both argue that this jury instruction was
erroneous, but for different reasons. Anderson argues that the
jury instruction was erroneous because it failed to distinguish
between prescription medication and illegal drugs. As a result,
the jury was prevented from considering whether his use of
Strattera, a prescription medication used to treat Attention
Deficit Disorder, supported an insanity defense. The State's
position is that the jury instruction was erroneous because
Anderson's defense was premised on his reaction to the mixture
of alcohol and Strattera. Therefore, the instruction used the
wrong conjunction by referring to "drugs or alcohol," rather
than "drugs and alcohol." However, the State argues that any
error was harmless because as a matter of law, an insanity
defense cannot be premised on a mental state arising from the
voluntary use of drugs and alcohol.
¶3 We conclude that the circuit court's instruction to
the jury was an accurate statement of the law. This court has
never determined that consumption of prescription medication can
give rise to a mental defect that would sustain an insanity
defense. We decline to craft a new affirmative defense that
would incorporate elements of the involuntary intoxication and
insanity defenses simply because Anderson cannot meet the
requirements of the involuntary intoxication defense statute.
Moreover, even if the circuit court had instructed the jury that
the consumption of "drugs and alcohol" cannot create a mental
2
No. 2011AP1467-CR
defect, Anderson would fare no better, because it is established
law that one who mixes prescription medication with alcohol is
responsible for any resulting mental state. Accordingly, we
reverse the decision of the court of appeals.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
¶4 This case centers around an incident that arose in the
early morning hours of August 9, 2008, when the defendant,
Donyil L. Anderson, Sr. ("Anderson"), arrived at a residence he
had previously shared with his then-girlfriend, Stacey Hosey
("Hosey"), with whom he had a one-year-old son. Upon arriving,
Anderson saw the car of Hosey's new boyfriend, Branden Beavers-
Jackson ("Beavers-Jackson"). Anderson removed the car stereo
from his own car and used it to smash the windows of Beavers-
Jackson's car. Anderson then proceeded to kick in the back door
of Hosey's home and enter the residence. A neighbor witnessed
Anderson's entry and called the police.
¶5 Upon entering the residence, Anderson stabbed Hosey
multiple times with various kitchen knives.3 Anderson also
stabbed Beavers-Jackson five times in the abdomen and hip.
Shortly thereafter, as Officer Richard LeFeber ("Officer
3
The criminal complaint filed against Anderson specifies
that he inflicted "13 individual stab wounds to Hosey's back, a
large laceration across the front of Hosey's neck near her
throat and voice box area which was approximately 4" to 5" wide,
a puncture wound below Hosey's left breast, several laceration
and possible puncture wound [sic] to Hosey's left arm, spanning
from her shoulder area all the way down to her wrist, one
laceration to Hosey's right forearm which was approximately four
inches long and several lacerations on both Hosey's hands which
appeared to be defensive wounds."
3
No. 2011AP1467-CR
LeFeber") of the City of Beloit police department approached the
scene, he saw Beavers-Jackson standing in his boxer shorts,
covered in blood and waving frantically. Officer LeFeber also
found Hosey leaning against a nearby garage door, while Anderson
lay motionless in Hosey's driveway. Officer LeFeber called to
Anderson, and Anderson stood up, held a four-inch kitchen knife
above his head, and walked towards Officer LeFeber, asking to be
killed. Officer LeFeber ordered Anderson to drop the knife, but
Anderson continued to approach, and Officer LeFeber subdued him
with a Taser.
¶6 At the hospital, Anderson admitted to police that he
had a few beers before the incident but stated he was not
intoxicated. Anderson also explained that he had been taking
Strattera, a prescription medication used to treat Attention
Deficit Disorder, for about two months, and it been making him
"real edgy."4
¶7 Beavers-Jackson survived his injuries, but Hosey's
wounds proved fatal. Anderson was charged with one count of
First-Degree Intentional Homicide and one count of Attempted
First-Degree Intentional Homicide in violation of Wis. Stat. §§
940.01(1)(a) and 939.32 (2007-08).5
4
During the trial, a psychologist for Anderson's counseling
center testified that Anderson was prescribed 80 milligrams of
Strattera, to be taken once per day.
5
All subsequent references to the Wisconsin Statutes are to
the 2007-08 version unless otherwise indicated.
4
No. 2011AP1467-CR
¶8 At trial, the State presented its case-in-chief, and
Anderson then entered an Alford plea on both counts.6 Anderson
argued that he was not guilty by reason of insanity due to a
mental disease or defect under Wis. Stat. § 971.15. During the
insanity phase of the trial, Anderson called an expert witness,
Dr. Hugh Johnston ("Dr. Johnston"). Dr. Johnston testified that
he believed Anderson suffered a temporary mental defect at the
time of the homicide that made him unable to control himself or
conform his conduct to the requirements of the law. This
condition, according to Dr. Johnston, was caused by a
combination of four factors: (1) a lifelong impairment of the
ability to exert self-control in emotionally provocative
situations; (2) a major depressive disorder that was not
appropriately treated; (3) the impact of Strattera on brain
functioning; and (4) Anderson's ingestion of alcohol.7 Dr.
Johnston explained that, while all of these factors
simultaneously played a role in Anderson's behavior, he believed
if Anderson had not been taking Strattera, it was "highly
6
"An Alford plea is a guilty plea in which the defendant
pleads guilty while either maintaining his innocence or not
admitting having committed the crime." State v. Garcia, 192
Wis. 2d 845, 856, 532 N.W.2d 111 (1995).
7
Dr. Johnston's written report recited the results of a
blood alcohol test taken by hospital staff following the
homicide as 0.176. However, at trial, Dr. Johnston testified
that Anderson's blood alcohol concentration was 0.0176. It
appears Dr. Johnston misspoke during trial, given that a later
blood sample of Anderson revealed a blood alcohol concentration
of 0.150——well above the 0.08 legal limit for driving in
Wisconsin.
5
No. 2011AP1467-CR
unlikely that Ms. Hosey would have been killed." In Dr.
Johnston's opinion, Anderson's use of Strattera played "a very
important role" in the incident.
¶9 Dr. Johnston also described the half life of Strattera
and explained that in most cases, a blood test administered
twenty hours after consumption of Strattera would likely show no
detectable traces of the medication. Dr. Johnston further
concluded that Anderson's ability to distinguish right from
wrong was not impaired by his "abnormal mental state" at the
time of the homicide.
¶10 The State called its own expert witness during the
trial, Dr. Christopher Tyre ("Dr. Tyre"). Dr. Tyre opined that
Anderson had an antisocial personality disorder but did not
suffer from a mental disease or defect due to a major depressive
disorder or ingestion of alcohol and Strattera. Dr. Tyre
concluded that at the time of the incident, Anderson was able to
conform his conduct to the requirements of the law and
appreciate the wrongfulness of his behavior.
¶11 The State also called a toxicologist who examined the
blood test administered to Anderson when he was taken into
custody. The toxicologist testified that the post-crime blood
test administered to Anderson showed no detectable levels of
Strattera in his blood.
¶12 In addition, the State presented evidence that shortly
before Anderson's arrival at Hosey's residence, he had been
arrested for striking someone in a bar. The arresting officer
6
No. 2011AP1467-CR
charged Anderson with battery but then released him because he
did not appear to be intoxicated.
¶13 At the close of evidence, a jury instructions
conference was held, during which counsel discussed a modified
version of a proposed pattern jury instruction indicating that
the voluntary consumption of drugs or alcohol does not
constitute a mental defect. Anderson's counsel asked the
circuit court to insert the word "street" before the word
"drugs." Instead, the circuit court instructed the jury as
follows:
The first question is at the time the crime was
committed, did the defendant have a mental defect?
Mental defect is an abnormal condition of the mind
which substantially affects mental or emotional
processes. The term "mental defect" identifies a
legal standard that may not exactly match the medical
terms used by mental health professionals. You are
not bound by medical labels, definitions, or
conclusions as to what is or is not a mental defect to
which the witnesses may have referred.
You should not find that a person is suffering from a
mental defect merely because the person committed an
act, committed a criminal act or because of the
unnaturalness or enormity of the act or because a
motive for the act may be lacking. Temporary passion
or frenzy prompted by revenge, hatred, jealousy, envy,
or the like does not constitute a mental defect. . . .
An abnormally, an abnormality [sic] manifested only by
repeated criminal or otherwise antisocial conduct does
not constitute a mental defect. A temporary mental
state which is brought into existence by the voluntary
taking of drugs or alcohol does not constitute a
mental defect.
7
No. 2011AP1467-CR
(Emphasis added). The jury found that Anderson did not have a
mental defect at the time the crime was committed, and Anderson
was therefore convicted.
¶14 In an unpublished, per curiam opinion, the court of
appeals reversed and remanded to the circuit court for a new
trial on Anderson's insanity defense. The court concluded that
the real controversy in Anderson's case was not fully tried
because the jury instruction incorrectly suggested that the
consumption of prescription medication is voluntary and cannot
give rise to a mental defect. According to the court of
appeals, the instruction prevented the jury from addressing
whether Anderson's use of Strattera created a mental defect that
made him unable to conform his conduct to the requirements of
the law.
¶15 The State petitioned this court for review, which we
accepted on January 13, 2014. We now reverse.
II. STANDARD OF REVIEW
¶16 "'A circuit court has broad discretion in deciding
whether to give a requested jury instruction.'" State v.
Hubbard, 2008 WI 92, ¶28, 313 Wis. 2d 1, 752 N.W.2d 839 (citing
State v. Coleman, 206 Wis. 2d 199, 212, 556 N.W.2d 701 (1996)).
We will not overturn a circuit court's decision to give or not
give a requested jury instruction absent an erroneous exercise
of discretion. Id. "However, we independently review whether a
jury instruction is an accurate statement of the law applicable
to the facts of a given case." State v. Fonte, 2005 WI 77, ¶9,
281 Wis. 2d 654, 698 N.W.2d 594 (citation omitted). "'If the
8
No. 2011AP1467-CR
overall meaning communicated by the instructions was a correct
statement of the law, no grounds for reversal exist.'" Hubbard,
313 Wis. 2d 1, ¶27 (citing Fischer v. Ganju, 168 Wis. 2d 834,
850, 485 N.W.2d 10 (1992)).
III. DISCUSSION
¶17 The question before us is whether the circuit court's
instruction to the jury that "[a] temporary mental state which
is brought into existence by the voluntary taking of drugs or
alcohol does not constitute a mental defect" was erroneous.
Anderson argues that the jury instruction failed to distinguish
between the use of prescription medication and the use of
illegal drugs, and as a result, the jury was prevented from
considering whether Anderson's use of Strattera could give rise
to a mental defect. Anderson relies on State v. Gardner, 230
Wis. 2d 32, 601 N.W.2d 670 (Ct. App. 1999), for the proposition
that the consumption of prescription drugs is not "voluntary"
for purposes of an insanity defense. Gardner involved an
involuntary intoxication defense under Wis. Stat. § 939.42, as
opposed to an insanity defense under Wis. Stat. § 971.15, but
Anderson maintains that the rationale applies equally to both
defenses.
¶18 The State concedes that the jury instruction was "not
legally correct" because Anderson's defense was premised on his
consumption of Strattera and alcohol, whereas the jury
instruction discussed the taking of drugs or alcohol. According
to the State, an insanity defense would not be precluded by a
defendant's consumption of prescription medication alone, but
9
No. 2011AP1467-CR
the defense is unavailable if the defendant mixes the
prescription medication with alcohol. However, the State argues
that any error in the instruction was harmless, because even if
the instruction had used "and" instead of "or," Anderson would
still be ineligible for an insanity defense, because he admits
he voluntarily consumed alcohol while taking Strattera.
¶19 Although the State concedes that the jury instruction
was incorrect, we are not bound by a party's concession of law.
Bergmann v. McCaughtry, 211 Wis. 2d 1, 7, 564 N.W.2d 712 (1997).
Moreover, we independently review whether a jury instruction is
an accurate statement of the law. Fonte, 281 Wis. 2d 654, ¶9.
The State and Anderson both maintain that the jury instruction
was erroneous, but as we discuss below, nothing in our case law
supports the proposition that the consumption of prescription
medication may form the basis for an insanity defense. We
therefore hold that the circuit court's jury instruction was a
proper articulation of the law.
¶20 We begin our discussion in Part A by reviewing the
statutory and procedural requirements under Wis. Stat. § 971.15,
the insanity defense statute, and Wis. Stat. § 939.42, the
involuntary intoxication defense statute. In Part B, we apply
these requirements to the facts of this case and conclude that
the circuit court's insanity defense instruction was an accurate
statement of the law.
A. Insanity and Involuntary Intoxication Defenses
¶21 A criminal defendant may raise an affirmative defense
of not guilty by reason of mental disease or defect, also known
10
No. 2011AP1467-CR
as an "insanity" or "NGI" defense. Wis. Stat. § 971.15. The
defendant bears the burden of establishing the defense "to a
reasonable certainty by the greater weight of the credible
evidence." Wis. Stat. § 971.15(3). Wisconsin Stat. § 971.15(1)
provides that the defendant may establish an insanity defense by
demonstrating that he lacked substantial capacity either to (1)
appreciate the wrongfulness of his conduct, or (2) conform his
conduct to the requirements of the law.
¶22 In contrast to an insanity defense under Wis. Stat.
§ 971.15, an involuntary intoxication defense is established if
a defendant's intoxicated or drugged condition is involuntarily
produced and either: (1) "Renders the [defendant] incapable of
distinguishing between right and wrong;" or (2) "[n]egatives the
existence of a state of mind essential to the crime." Wis.
Stat. § 939.42.
¶23 An insanity defense under Wis. Stat. § 971.15 has been
described as "coextensive" with the involuntary intoxication
defense in Wis. Stat. § 939.42, although each contains distinct
elements. See Gardner, 230 Wis. 2d at 38. For instance, a
defendant capable of distinguishing between right and wrong may
not assert an involuntary intoxication defense but may still be
able to raise an insanity defense.
¶24 Beyond the defenses' distinct elements, each has
unique procedural requirements that correspond to their
respective substantive purposes. For instance, when an insanity
defense is asserted, the trial is bifurcated into two phases: a
"guilt" phase and a "responsibility" or "insanity" phase. Wis.
11
No. 2011AP1467-CR
Stat. § 971.165(1); State v. Langenbach, 2001 WI App 222, ¶16,
247 Wis. 2d 933, 634 N.W.2d 916. During the guilt phase of the
trial, the State must prove all the elements of the offense
beyond a reasonable doubt. State v. Randall, 192 Wis. 2d 800,
809, 532 N.W.2d 94 (1995). If the insanity defense succeeds,
the defendant will be found "not responsible" for the criminal
conduct, but is still subject to commitment and treatment. See
Wis. Stat. §§ 971.15, 971.17.
¶25 In contrast, an involuntary intoxication defense does
not result in a bifurcated trial; rather, the entire trial
consists of a "guilt" phase, at the end of which a prevailing
defendant is found "not guilty" due to involuntary intoxication.
See Christine M. Wiseman & Michael Tobin, 9 Wisconsin Practice
Series: Criminal Practice and Procedure § 17.25 (2d ed.) ("If
the [involuntary intoxication] defense is successfully applied,
the result will be an acquittal on the charge . . . .").
B. The Circuit Court's Instruction to the Jury
¶26 The jury instruction at issue in this case explained
that "[a] temporary mental state which is brought into existence
by the voluntary taking of drugs or alcohol does not constitute
a mental defect." Anderson stresses that the instruction failed
to distinguish between prescription medication and illegal
drugs. As a result, Anderson argues the jury was prevented from
considering whether his use of Strattera, in conjunction with
his consumption of a moderate amount of alcohol, supported an
insanity defense. The State does not dispute that the
12
No. 2011AP1467-CR
instruction was erroneous, but instead takes the position that
any resulting error was harmless.
¶27 We disagree with both parties regarding the accuracy
of the jury instruction.8 This court has never held that
consumption of prescription medication may give rise to a mental
defect that would sustain an insanity defense, and Anderson has
failed to cite to any Wisconsin case law that supports the
conclusion that it does. The jury instruction was an accurate
recital of the law. We have never distinguished between the use
of prescription drugs and the use of illegal drugs in the
context of an insanity defense, and see no reason to do so now.
Anderson's attempt to shoehorn an involuntary intoxication
defense under the insanity statute, Wis. Stat. § 971.15, is
essentially nothing more than a policy argument that is wholly
unsupported by our case law.
¶28 In general, when a defendant argues that prescription
medication contributed to criminal conduct, the defense is
raised under the involuntary intoxication statute, Wis. Stat.
§ 939.42. However, Anderson cannot assert an involuntary
intoxication defense because his own expert witness concedes
that he was capable of distinguishing right from wrong at the
time of the crime. See Wis. Stat. § 939.42(1). Consequently,
Anderson is stuck with raising an insanity defense, which is not
8
Because we conclude that the circuit court's instruction
to the jury was an accurate recital of the law, we need not
address the State's argument that the court of appeals
erroneously exercised its discretion in granting a new trial
under Wis. Stat. § 752.35.
13
No. 2011AP1467-CR
precluded by his expert's testimony. To succeed on his defense,
Anderson must invoke the second prong of the insanity defense,
which asks whether he was able to conform his conduct to the
requirements of the law.9 As explained above, this latter prong
is available only as an insanity defense and not as an
involuntary intoxication defense.
¶29 Anderson argues his use of Strattera should be able to
form the basis of his insanity defense. Anderson correctly
points out that in Gardner, the court of appeals determined that
the use of prescription medication can form the basis of an
involuntary intoxication defense under Wis. Stat. § 939.42.
Gardner, 230 Wis. 2d at 40. However, Anderson ignores the fact
that this holding has never been extended to an insanity defense
raised under Wis. Stat. § 971.15. The involuntary intoxication
defense focuses on the mental state of the defendant at the time
of the crime and provides clear-cut requirements for the level
of intoxication necessary to invoke the defense. See Wiseman &
Tobin, supra ¶25 ("The defendant's intoxicated mental state is a
defense only if it rendered him or her incapable of
distinguishing between right and wrong when the act was
committed."). In State v. Strege, 116 Wis. 2d 477, 486, 343
N.W.2d 100 (1984), we explained that a defendant raising a
voluntary intoxication defense "must come forward with some
9
Much like the involuntary intoxication defense, the first
prong of the insanity defense asks whether the defendant was
able to appreciate the wrongfulness of his conduct. The
testimony of Anderson's expert precludes him from raising a
defense under this prong.
14
No. 2011AP1467-CR
evidence of the degree of intoxication which constitutes the
defense. An abundance of evidence which does not meet the legal
standard for the defense will not suffice." This rationale was
applied to an involuntary intoxication defense in Funmaker v.
Litscher, No. 00-C-625-C, 2001 WL 34377571, at *5 (W.D. Wis.
Sept. 20, 2001).
¶30 Because Anderson cannot demonstrate that he possessed
the requisite mental state for an involuntary intoxication
defense, he attempts to bypass the defense's requirements by
framing his argument as an insanity defense. In essence,
Anderson asks us to create a new affirmative defense that would
absolve a defendant whose use of prescription medication makes
him unable to conform his conduct to the requirements of the
law.10
¶31 At the same time, Anderson's argument would require us
to ignore our existing precedent by holding that a jury
instruction that provided for no such defense was in error. In
other words, Anderson asks us to change the law and make this
change retroactively apply to the time when the circuit court
10
In fact, Anderson asks us to do even more. In spite of
Gardner's caveat that the use of prescription medication will
not give rise to an involuntary intoxication defense when the
defendant "mixes a prescription medication with alcohol or other
controlled substances," Anderson asserts that only "excessive"
consumption of alcohol, as opposed to "moderate" drinking,
should prevent a defendant from raising an insanity defense.
State v. Gardner, 230 Wis. 2d 32, 42, 601 N.W.2d 670 (Ct. App.
1999). Anderson does not explain how "moderate," as opposed to
"excessive," drinking should be gauged by this court, but as he
provides no support for his proposed rule, the omission is of no
consequence.
15
No. 2011AP1467-CR
issued its jury instruction. We decline to undertake such a
gross overreaching of our judicial mandate.11
¶32 The circuit court properly declined to amend the jury
instruction to include an implied involuntary intoxication
defense. However, we note that even if the law provided for an
insanity defense arising from a defendant's use of prescription
medication, it would have been inappropriate for the circuit
court to instruct the jury that consumption of Strattera could
create a mental defect under the facts of this case. The basis
of Anderson's insanity defense was not his use of Strattera
alone; rather, he argued that the drug, in combination with
three other factors——including his consumption of alcohol——
created a mental defect.
¶33 The State maintains that the circuit court erred by
instructing the jury regarding the effects of drugs or alcohol,
rather than drugs and alcohol. The State's proposed jury
instruction would read as follows: "[a] temporary mental state
which is brought into existence by the voluntary taking of drugs
and alcohol does not constitute a mental defect." Because
Anderson's argument is founded in part on his consumption of
11
We do not suggest that a defendant who takes prescription
medication as directed is barred from raising an insanity
defense. The circuit court instructed the jury that "[a]
temporary mental state which is brought into existence by the
voluntary taking of drugs or alcohol does not constitute a
mental defect." (Emphasis added). This instruction explained
that use of prescription medication cannot create a mental
defect, but it in no way precludes a defendant from asserting an
insanity defense on other grounds.
16
No. 2011AP1467-CR
alcohol along with Strattera, it is unquestionable that he would
not prevail on his insanity defense regardless of whether the
circuit court's instruction had used the term "and alcohol"
instead of "or alcohol." Assuming arguendo that the rationale
in Gardner——which holds prescription drugs can form the basis of
an involuntary intoxication defense——is also applicable to an
insanity defense, any limitations to that defense would apply
with equal force to this case. And, as the court of appeals
explained in Gardner, one who "mixes a prescription medication
with alcohol or other controlled substances" is not eligible for
the involuntary intoxication defense.12 Gardner, 230 Wis. 2d at
42; see also City of Waukesha v. Godfrey, 41 Wis. 2d 401, 406,
164 N.W.2d 314 (1969).
¶34 Gardner's reasoning is in keeping with the generally
accepted principle that an individual is responsible for the
consequences that result from voluntary consumption of mind-
altering substances. For instance, in State v. Kolisnitschenko,
84 Wis. 2d 492, 499, 503, 267 N.W.2d 321 (1978), we explained
that an insanity defense cannot be premised on the interaction
between alcohol and illegal drugs, because "[o]ne who
12
Gardner also explained that the involuntary intoxication
defense is available only to a defendant who takes his
prescription medication as ordered. Gardner, 230 Wis. 2d at 42.
As the State points out, Anderson did not testify that he took
his Strattera as prescribed, and at the time of the crime, there
was no trace of Strattera in his bloodstream. Anderson's friend
testified at trial that he had once observed Anderson taking an
unidentified medication three times a week, but the Strattera
was prescribed as a daily medication.
17
No. 2011AP1467-CR
intentionally consumes drugs should be held to have intended all
the consequences of the resulting intoxicated condition," since
"individual volition played a major part in producing that
condition." In Gardner, we extended this rationale to cases
involving the interaction between alcohol and prescription
medications.
¶35 Anderson's claim shares similarities with the
defendant's argument in Godfrey, 41 Wis. 2d 401. In Godfrey,
the defendant consumed prescription codeine and alcohol and was
charged with driving while intoxicated. The defendant contested
the circuit court's jury instruction that a driver is
intoxicated "when his ability to operate a motor vehicle is
appreciably or materially impaired because of his consumption of
an alcoholic beverage or other intoxicating substance."
Godfrey, 41 Wis. 2d at 405 (emphasis added). Godfrey argued
that the instruction confused the jury regarding whether to
consider his codeine consumption and its effect when mixed with
alcohol. We disagreed, explaining: "We fail to see how these
assertions could favorably affect the plight of the unfortunate
defendant. A person who consumes an intoxicant along with
medication, does so at his own peril." Id. at 406. Our
reasoning in Godfrey equally applies in the context of an
insanity defense. The established rule from Gardner,
Kolisnitschenko, and Godfrey is that one who mixes drugs——
prescription or otherwise——with alcohol does so at his or her
own risk and is responsible for any consequences that result.
18
No. 2011AP1467-CR
IV. CONCLUSION
¶36 We conclude that the circuit court's instruction to
the jury was an accurate statement of the law. We have never
held that consumption of prescription medication can give rise
to a mental defect that would sustain an insanity defense. We
decline to craft a new affirmative defense that would
incorporate elements of the involuntary intoxication and
insanity defenses simply because Anderson cannot meet the
requirements of the involuntary intoxication defense statute.
Moreover, even if the circuit court had instructed the jury that
the consumption of "drugs and alcohol" cannot create a mental
defect, Anderson would fare no better, because it is established
law that one who mixes prescription medication with alcohol is
responsible for any resulting mental state. For these reasons,
the decision of the court of appeals is reversed.
By the Court.—The decision of the court of appeals is
reversed.
19
No. 2011AP1467-CR.dtp
¶37 DAVID T. PROSSER, J. (concurring). The defendant
admitted to police that he had a few beers before he killed
Stacey Hosey and stabbed Branden Beavers-Jackson. Majority op.,
¶¶5-7. Two blood tests taken after the homicide showed his
blood alcohol concentration to be at least 0.15. Id., ¶8 n.7.
Anderson did not consume alcohol involuntarily. Consequently,
Anderson's claim of a temporary mental state brought into
existence by the voluntary taking of a prescription drug could
not prevail unless Anderson alleged and proved that his drinking
had no effect on his allegedly drug-induced mental state. His
own expert testified otherwise. Id., ¶8. Accordingly, any
error in the jury instruction would be harmless beyond a
reasonable doubt.
¶38 For the foregoing reasons, I respectfully concur.
1
No. 2011AP1467-CR.ssa
¶39 SHIRLEY S. ABRAHAMSON, C.J. (dissenting). I agree
with the court of appeals that the jury instruction incorrectly
conveyed to the jury that the voluntary consumption of
prescription medication cannot give rise to a defense of not
guilty by reason of insanity (NGI).1
¶40 I disagree with the majority opinion's creation of a
new rule that the effects of prescription medicines used as
directed can never be the basis of an NGI defense.2
¶41 I start with the statutes, the one governing NGI and
the other governing involuntary intoxication. The two are
closely related. They have distinctive features but also share
certain legal similarities; violation of each might be proven by
similar facts.3
¶42 The NGI statute provides that a person is not
responsible for criminal conduct if, at the time of such
1
The case raises numerous issues, including preservation of
objections in the circuit court and the power of the court of
appeals under Wis. Stat. § 752.35 to grant a new trial. The
court of appeals' per curiam opinion addressed several of them.
I address only the issue of the instruction.
The legal concept of "voluntary intoxication" is not at
issue here. Voluntary intoxication cannot form the basis of
NGI. State v. Kolisnitschenko, 84 Wis. 2d 492, 495, 503, 267
N.W.2d 321 (1978). Yet simply because a defendant's use of
prescription drugs as directed is "voluntary" in common parlance
does not mean that it causes "voluntary intoxication" as a legal
concept.
2
Majority op., ¶29-32.
3
See State v. Gardner, 230 Wis. 2d 32, 38, 601 N.W.2d 670
(1999) (citing Wis JI——Criminal 755, cmt for the proposition
that "[t]he involuntary intoxication standard . . . is
coextensive with the mental responsibility test").
1
No. 2011AP1467-CR.ssa
conduct, as a result of mental disease or defect, the person
lacked the capacity either to appreciate the wrongfulness of his
or her conduct or conform to the requirements of the law. Wis.
Stat. § 971.15(1).
¶43 The involuntary intoxication or drugged condition
defense provides that a person is not responsible for criminal
conduct if, at the time the act is committed, the intoxicated or
drugged condition is involuntarily produced and renders the
actor incapable of distinguishing between right and wrong in
regard to the alleged criminal act. Wis. Stat. § 939.42(1).
¶44 A person who attempts to rely on an involuntary
intoxication defense under Wis. Stat. § 939.42 can often meet
the standard of possessing a "mental disease or defect" under
Wis. Stat. § 971.15. "[I]n regard to the effect which
involuntary intoxication must produce in order to be considered
a defense, the same test applies as in the case of mental
disease or deficiency as a defense." State v. Gardner, 230
Wis. 2d 32, 38, 601 N.W.2d 670 (Ct. App. 1999) (emphasis added,
quoted source omitted). In sum, the facts giving rise to an
involuntary intoxication defense can also support an NGI
defense.
¶45 An involuntary intoxication defense can be based on
prescription medicine, when used as directed by a medical
professional.4 The majority opinion accepts this premise. "It
4
Majority op., ¶29 (citing Gardner).
2
No. 2011AP1467-CR.ssa
is clear that the effects of prescription medication can form
the basis of an involuntary intoxication defense."5
¶46 In contrast, according to the majority opinion, under
no circumstances may prescription medicine, when used as
directed by a medical professional, be the basis of an NGI
defense.
¶47 I disagree with the majority opinion. I agree with
both parties in the instant case that based on Gardner,6
Kolisnitschenko,7 and Gibson,8 a temporary mental state that is
brought into existence by the taking of a prescription medicine
as directed can qualify as a mental defect for purposes of an
NGI defense.
¶48 I reach this conclusion not only on the basis of these
specific cases but also on the basis of the underlying statutes,
which demonstrate that the defenses of NGI and involuntary
intoxication are closely related in the law. If the effects of
prescription medicines used as directed can form the basis of
involuntary intoxication, why cannot the effects of prescription
medicines used as directed form the basis of an NGI defense,
when the two defenses overlap? Why does the majority opinion
create a new per se rule that is inconsistent with the
5
Gardner, 230 Wis. 2d at 40, 41-42.
6
Gardner, 230 Wis. 2d 32.
7
Kolisnitschenko, 84 Wis. 2d 492.
8
Gibson v. State, 55 Wis. 2d 110, 197 N.W.2d 813 (1972).
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No. 2011AP1467-CR.ssa
overlapping aspects of the NGI and involuntary intoxication
defenses?9
¶49 I am unpersuaded by the majority opinion, which
reaches what on its face appears to be a conclusion contrary to
the statutes and case law.
¶50 In any event, the real dispute between the parties
focuses on whether the defendant's use of a combination of
prescription drugs and alcohol may constitute the basis of an
NGI defense. The State urges that a temporary mental state
brought into existence by the voluntary taking of prescribed
medicine as directed in combination with alcohol (no matter how
small an amount) cannot be the basis of an NGI defense.
¶51 The majority opinion need not grapple with this issue
because it holds that a defendant who consumes only prescription
drugs is not eligible for an NGI defense. Under the majority
opinion, whether the defendant consumed alcoholic beverages
along with the prescription medication is irrelevant.
¶52 Because the majority opinion fails to provide any
reason why the use of prescription drugs as directed cannot form
the basis of an NGI defense when our case law already recognizes
that such use can form the basis of an involuntary intoxication
defense, I dissent.
¶53 I am authorized to state that Justice ANN WALSH
BRADLEY joins this dissent.
9
Majority op., ¶29.
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No. 2011AP1467-CR.ssa
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