PUBLISHED OPINION
Case No.: 95-1365-CR
†Petition for
review filed
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
RICHARD J. ANTHUBER,
Defendant-Appellant.†
Submitted on Briefs: March 1, 1996
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: April 3, 1996
Opinion Filed: April 3, 1996
Source of APPEAL Appeal
from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Racine
(If "Special", JUDGE: Emmanuel Vuvunas
so indicate)
JUDGES: Anderson,
P.J., Brown and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn
behalf of the defendant-appellant, the cause was submitted on the briefs of James
C. Reiher and Timothy W. Feeley of von Briesen & Purtell,
S.C. of Milwaukee.
Respondent
ATTORNEYSOn
behalf of the plaintiff-respondent, the cause was submitted on the brief of James
E. Doyle, attorney general, and Paul Lundsten, assistant attorney
general.
COURT OF APPEALS DECISION DATED AND RELEASED April 3, 1996 |
NOTICE |
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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1365-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
RICHARD J. ANTHUBER,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Racine County:
EMMANUEL VUVUNAS, Judge. Affirmed.
Before Anderson, P.J.,
Brown and Snyder, JJ.
BROWN, J. Richard
J. Anthuber is a heroin addict. He was
convicted on one count of heroin possession after prison officers found him
injecting himself in his cell at the Racine Correctional Institution. Anthuber primarily contends that the trial
court erred when it rejected his necessity defense. He specifically asserts that his illegal drug use was made
necessary by the Department of Corrections (DOC) depriving him of the methadone
it promised to provide. We hold,
however, that Anthuber was not entitled to this defense because the addiction
which drove him to inject heroin on this occasion ultimately rested in his
conscious decision to start using illegal drugs. We also reject Anthuber's claims of prosecutorial misconduct and
double jeopardy, and therefore affirm his conviction.
In March 1993, Anthuber
was a resident at a halfway house. At
the time, he was on parole for a forgery conviction and had recently entered a
methadone treatment program at the Medical College of Wisconsin. Despite these efforts at recovery, Anthuber
left the halfway house because he believed that the DOC suspected him of
illegal drug use and thus feared that his parole would be revoked.
Through his counsel,
Anthuber negotiated with his parole agent and arranged to turn himself in by
June 22, 1993. Before that time, he had
arranged to participate in a different methadone treatment and detoxification
program.
The DOC nonetheless took
Anthuber into custody earlier than he expected. It acted on the basis of Anthuber's suspected drug use back in
March.
Anthuber was first taken
to the Milwaukee County Jail on June 10, 1993.
There he was initially permitted to continue his methadone treatment,
but was told that his dosage was going to be rapidly decreased and that treatment
would end by July. Anthuber was
scheduled, however, to serve a sentence through early October. So, the DOC made Anthuber an offer. If he agreed to a transfer to the Racine
Correctional Institution, he would be allowed to maintain his methadone
treatment during the entire term of his sanction.
Unfortunately, as a
result of what the State acknowledges was a “mistake” by DOC personnel,
Anthuber was not provided with methadone when he entered Racine. Although he tried, through counsel, to get
the DOC to live up to the transfer agreement, the health officers at Racine
could not cooperate because the facility was not certified to administer
methadone.
On August 7, a prison
guard caught Anthuber injecting heroin into his foot. Anthuber was subsequently found in violation of prison rules and
his sentence was adjusted as part of the administrative sanction. He was released from Racine Correctional on
November 5, 1993.
The State filed charges
against Anthuber in February 1994. At
the bench trial, the court rejected his various defenses and found him guilty
of heroin possession. It sentenced him
to one year of probation.
In this appeal, Anthuber
raises the following three claims.
First, he contends that the DOC's refusal to provide him with methadone
treatment created a situation which compelled him to temper his drug addiction
through illegal heroin use. He argues
that he has thus met his burden of establishing the necessity defense outlined
in § 939.47, Stats. Second, Anthuber claims that the
State abused its prosecutorial discretion.
Here, he renews his complaint that the DOC's mistakes forced him back to
illegal drug use and that the State should therefore be precluded from
prosecuting him. Finally, he argues
that the State's criminal charges are barred because he had already been
sentenced for this particular incident by the DOC's administrative system. We will address each of these arguments
seriatim.
We begin with a synopsis
of the necessity defense. The basic
theory supporting it is that a person should not be punished for violating a
law when the person faced the choice of either breaking the law or enduring
some greater harm. See generally
1 Wayne R. LaFave & Austin W. Scott,
Jr., Substantive Criminal Law
§ 5.4 (1986). A classic
application would involve the ambulance driver who defends a speeding ticket
with evidence that she or he was rushing someone to the hospital. See id. at § 5.4(c).
In some jurisdictions,
the defense remains part of the common law.
In others, and Wisconsin is an example of this class, the legislature
has made some basic policy conclusions about how this defense should be
applied. Here, the political process
has outlined what “harms” are so great that the need to avoid such a force may
excuse a person from the reach of the criminal law. See id. at 5.4(a) n.10.
We now face the issue of
whether Anthuber's circumstances fit the necessity defense set out in
§ 939.47, Stats. This presents a question of law because we
are simply applying a statute to a set of undisputed facts. See First Nat'l Leasing Corp. v. City
of Madison, 81 Wis.2d 205, 208, 260 N.W.2d 251, 253 (1977). Since Anthuber and the State submitted a
stipulation of facts, we depart from the general rule that affords trial courts
the discretion to determine what instructions the evidence reasonably
requires. See State v. Dyleski,
154 Wis.2d 306, 310-11, 452 N.W.2d 794, 796-97 (Ct. App. 1990).
In State v. Olsen,
99 Wis.2d 572, 299 N.W.2d 632, (Ct.
App. 1980), the court identified the four elements which comprise the
§ 939.47, Stats., necessity
defense:
(1)the defendant must have acted under
pressure from natural physical forces;
(2)the defendant's act was necessary to
prevent imminent public disaster, or death, or great bodily harm;
(3)the defendant had no alternative means
of preventing the harm; and
(4)the defendant's beliefs were
reasonable.
See id.
at 577-78, 299 N.W.2d at 635-36; see also Wis J I—Criminal 792.[1] We first consider the dispute over whether
Anthuber's heroin addiction is a “natural physical force.”
On this first factor,
the State argues that Anthuber was not entitled to the necessity instruction as
a matter of law since he was responsible for the drug use that led to
his addiction. But supported by a
medical expert who testified about the biological and psychological effects
that heroin (methadone) withdrawal can have on a human, Anthuber responds that
these “serious adverse effects” are a “natural physical force.” In essence, he claims that the natural force
of his addiction caused him to inject the heroin, not a conscious desire to get
high.
When we look at the Olsen
decision, it seems that the court identified two elements within a “natural
physical force.” First, as the State
suggests through its argument, the reviewing court must gauge who or what set
the “force” in motion. For instance,
people cannot claim that violating the law is necessary to protect themselves
from some human (as in artificial) activity because our society has other means
of preventing this type of harm. Thus,
the Olsen court held that protecting society from the potential
hazards of radioactive waste was not covered by the necessity defense because
government provides us with any needed protection. See Olsen, 99 Wis.2d at 576, 299 N.W.2d at
634-35. Since Anthuber's decision to
engage in drug use was the primary cause of his addiction, this facet of Olsen
suggests that heroin addiction cannot be a “natural physical force” because
it arises out of conscious human activity.
However, the Olsen
court also suggested that wildfires and shipwrecks could constitute a “natural
physical force.” See id.
at 576, 299 N.W.2d at 634. Because
these events could as easily stem from human error (or an evil choice) just as
easily as they could arise from an act of God, the court added that whether the
“force” can be controlled must also be considered. Id. at 576, 299 N.W.2d at 635.
Applying these two factors,
we hold that the “force” affecting Anthuber was not a “natural physical force”
because he set it in motion when he made the decision to start using heroin and
there is no evidence that he had no control over whether to make this initial
choice.
Because Anthuber has
failed to meet the first prong of the Olsen test, we need not
address the other three elements. See
id. at 578-79, 299 N.W.2d at 635-36. We conclude that the trial court correctly declined to consider
this defense.
We observe, nevertheless,
that our analysis of § 939.47, Stats.,
does not preclude a person from asserting a medically-related necessity as a
defense. For example, had Anthuber
shown that he was not responsible for his addiction, then the biological effect
that withdrawal had on his mind and body could constitute a “natural physical
force.” Hypothetically, Anthuber could
have become addicted to opiates because of negligent medical treatment. In such circumstances, a necessity defense
might apply because he would not have been the responsible party for his
condition.
We next turn to whether
the State is guilty of outrageous government conduct. Here, Anthuber argues that the State abused its discretion when
it prosecuted him for conduct which arose out of its agency's mistaken decision
to place him at an institution where methadone treatment was unavailable. In essence, he urges this court to hold that
the State's decision to charge in such circumstances constitutes “outrageous government
conduct” and accordingly dismiss his conviction. See United States v. Russell, 411 U.S. 423, 431-32
(1973) (describing how Due Process Clause may bar prosecuting an offense
attributable to outrageous conduct by law enforcement agents). Whether the State's conduct is “outrageous”
is a question of constitutional fact that we review independently. See State v. Hyndman, 170 Wis.2d
198, 207-08, 488 N.W.2d 111, 115 (Ct. App. 1992).
Anthuber paints a
sympathetic picture. The evidence does
support his position that the DOC's refusal to provide him methadone was a
major factor leading to his return to illegal drug use. The trial court indeed acknowledged that
“[t]his man's had some problems and he's dealing with the problems.”
But for this court to
grant Anthuber's request, and interfere with the State's broad discretion in
choosing to prosecute a crime, we must be satisfied that the State was
“enmeshed in criminal activity.” See
State v. Gibas, 184 Wis.2d 355, 362, 516 N.W.2d 785, 787 (Ct. App.
1994), cert. denied, 115 S. Ct. 729 (1995). The evidence, even in the light most favorable to Anthuber, only
reveals that the State's conduct amounted to an administrative blunder. While we are hesitant to effectively excuse
the State's mistake because the mistake has resulted in some serious ramifications
for Anthuber, such conduct is not so egregious as to warrant our interference
in the State's law enforcement power. Compare,
e.g., Bray v. Peyton, 429 F.2d 500, 501 (4th Cir. 1970) (concluding
that the government's arrest of a defense witness immediately before trial
interfered with due process).
Finally, Anthuber
complains that the State has violated the Double Jeopardy Clause by
“prosecuting, convicting and sentencing” him for the same conduct that the DOC
relied on to extend his mandatory release date from Racine Correctional. See § 302.11(2), Stats.
He specifically relies on the concurring opinion to State v.
Fonder, 162 Wis.2d 591, 606, 469 N.W.2d 922, 929 (Ct. App.), cert.
denied, 502 U.S. 993 (1991), where Judge Sundby suggested that extension of
a mandatory release date could be a “punishment” for the purposes of a double
jeopardy analysis.
We hold, however, that
the State has not violated the Double Jeopardy Clause. We are bound by the majority opinion in Fonder
which held that inmates are not subject to double jeopardy when they are
criminally prosecuted for conduct which was also the basis for this type of DOC
administrative sanction. See id.
at 598-99, 469 N.W.2d at 926; accord Garrity v. Fiedler,
41 F.3d 1150, 1152-53 (7th Cir. 1994) (affirming denial of habeas corpus), cert.
denied, 115 S. Ct. 1420 (1995).
By the Court.—Judgment
affirmed.
[1] This jury instruction defines only three parts to the necessity defense. It combines the second element, prevention of great harm, and the third element, no alternative means, into the single question of whether the defendant believed that his or her act was the only means of preventing the great harm. See Wis JI Criminal 792 (emphasis added). While we find no substantive difference in the two tests, we nonetheless believe that the four-part test is simpler to understand and discuss.