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COURT OF APPEALS DECISION DATED AND RELEASED FEBRUARY 11, 1997 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-2752-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
LEONARD R. MILLER,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Pierce County:
DANE F. MOREY, Judge. Affirmed.
LaROCQUE, J. Leonard Miller appeals a misdemeanor hit
and run conviction, in violation of § 346.67(1)(a)(b), Stats.
Miller, who pleaded not guilty and not guilty by reason of mental disease
or defect, claims the trial court erred by refusing to admit certain evidence
at the guilt phase of a bifurcated trial allegedly relevant to Miller's
statutory defense of intoxication.[1] Miller sought to introduce the testimony of
a psychiatrist, who would testify regarding Miller's psychiatric
condition. Miller also sought to admit
the testimony of his wife, who would give similar testimony. This court affirms
the judgment.
The trial evidence
indicates that Miller backed his pickup truck into another vehicle in a parking
lot causing minor damage, stopped long enough to offer money for the damages,
which was refused, and then drove away without identifying himself. Miller was stopped and arrested for OWI a
short time later in Red Wing, Minnesota.
He tested .31 BAC and pleaded guilty to the OWI offense.
Miller was prosecuted in
Wisconsin for the hit and run accident.
The trial court refused to allow Miller to present certain psychiatric
evidence concerning his intoxication at the guilt phase of his trial. The essence of Miller's offer of proof
relating to the psychiatric testimony was that his intoxication was involuntary
because he was "self-medicating" his post traumatic stress disorder
(PTSD), a recognized form of mental illness.
Miller's wife was prepared to testify that she was intimately familiar
with the symptoms of PTSD, and was aware that her husband suffered from that
disorder as well as a chemical dependency, and was so suffering on the date of
the incident.
This court concludes
that self-induced intoxication, even where the consumption is attributable to a
mental illness or psychiatric condition, is not "involuntary" within
the meaning of § 939.42(1), Stats. The statute does not define the term
"involuntary." However, our
supreme court has held that intoxication is not involuntary unless it is the
result of force or fraud on the part of a third person because of mistake by
the defendant, such as where he lacks knowledge of a substance's intoxicating
effects. Loveday v. State,
74 Wis.2d 503, 512, 247 N.W.2d 116, 122 (1976).
The evidence here does
not support a claim of involuntary intoxication as the term is explained in Loveday. Miller complains of no force or fraud upon
him by a third person, and does not assert that his intoxication was the result
of a mistake. This court concludes that
Miller's claim in this case is no different from that of a person who suffers
from alcoholism and drinks as a result of that illness. Thus, the trial court properly excluded the
evidence as it related to the defense of involuntary intoxication under §
939.42(1), Stats.
This court concludes
that Miller has waived any argument that the excluded evidence relates to the
defense described in § 939.42(2), Stats.[2] Miller made only passing reference to this
subsection in both his arguments to the trial court and in his brief to this
court. The substance of his offer of
proof, however, reveals that the excluded evidence relates solely to whether
Miller's intoxication was involuntary, a concept that relates to subsec. (1)
alone. For example, Miller's trial
counsel argued:
That's
essentially our defense to the first phase of the trial. Under the statute, we would be required to
present evidence which I have just indicated the wife would produce, as would
Dr. Marshall, and it would indicate--their testimony goes to the
involuntariness of this alcohol consumption.
A person who is mentally ill and psychotic does not have the volition or
the free will to choose to drink alcohol.
Furthermore, Miller does
not argue that the psychiatric evidence is required to show how his
intoxication alone negatived the existence of the necessary mens rea. Rather, he apparently argues that the
psychiatric testimony was required to show how his PTSD drove him to drink,
resulting in an intoxicated condition where he was unable to form the required
state of mind. The latter testimony is
not admissible in the guilt phase:
We hold that a psychiatrist, properly
qualified as an expert on the effects of intoxicants, may render an expert
opinion as to whether a defendant's voluntary intoxicated condition negatived
the defendant's capacity to form the requisite intent, but only if that opinion
is based solely on the defendant's voluntary intoxicated condition.
...
Trial courts must carefully scrutinize such testimony to ensure that a
defendant's mental health history is not being considered by any expert,
psychiatrist or not, in reaching his or her conclusion that the defendant
lacked the capacity to form the requisite criminal intent due to his or her
voluntary intoxication.
State
v. Flattum, 122 Wis.2d 282, 297-98, 361 N.W.2d 705, 713 (1985).
By the Court.—Judgment
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.
[1]
Section 939.42, Stats.,
provides:
An intoxicated or a drugged
condition of the actor is a defense only if such condition:
(1) Is involuntarily produced and renders the actor incapable of
distinguishing between right and wrong in regard to the alleged criminal act at
the time the act is committed; or
(2) Negatives the existence of a state of mind essential to the crime, except as provided in s. 939.24(3).