Issues (composed by On Point)
Did the trial court err in instructing the jury that voluntary consumption of any drug precludes a finding of “mental defect” under § 971.15, where the defendant claimed he suffered from a temporary mental defect based in part on his use of a prescription drug as directed by a doctor?
Did the court of appeals erroneously exercise its discretion in granting a new trial in the interest of justice?
The state’s petition complained only about the court of appeals’ application of its power to grant a new trial in the interest of justice based on an instructional error, but the supreme court’s order granting review specifically directs the parties to address the issue of whether the instruction was legally correct and, if not, whether the error was harmless. Thus, the decision in this case could be significant on two fronts: It will tell us whether voluntary use of a prescription medication as directed by a physician precludes recourse to a mental defect defense based on the effects of that medication; and it may be another shot across the bow to the court of appeals regarding the application of the interest of justice standard by the court of appeals. Here’s the background:
Anderson raised an NGI defense to intentional homicide charges. He claimed his self-control was impaired by a temporary mental defect arising from a combination of four factors: his own preexisting mildly impaired ability to exert self-control; a major depressive disorder that was not appropriately treated; a side effect of Strattera, a prescription medication he was taking; and his ingestion of alcohol. (¶2).
When instructing the jury about the meaning of “mental defect” the trial court included the following language: “A temporary mental state which is brought into existence by the voluntary taking of drugs or alcohol does not constitute a mental defect.” (¶3). Anderson argued this was erroneous because it failed to distinguish between the voluntary use of illegal drugs and the use of prescribed medication. That distinction matters, Anderson argued, because the use of a prescription medication in accordance with a physician’s advice shouldn’t preclude a mental defect claim based on the effects of the medication given State v. Gardner, 230 Wis. 2d 32, 41, 601 N.W.2d 670 (Ct. App. 1999), which held a person may have recourse to an intoxication defense when a prescription drug renders the person unable to distinguish right from wrong, even if the person was forewarned of the prescription drug’s intoxicating effect. (¶¶4-5). Anderson also argued that the instruction failed to distinguish between minimal or moderate drinking and excessive use of alcohol leading to intoxication, which matters because the cases holding that alcohol use precluded a mental defect defense–e.g., State v. Kolisnitschenko, 84 Wis. 2d 492, 494, 498-99, 267 N.W.2d 321 (1978); Loveday v. State, 74 Wis. 2d 503, 506, 247 N.W.2d 116 (1976)–involved excessive drinking and didn’t establish a bright-line rule that consuming any alcohol makes the defense unavailable. (¶¶3, 38; see also Anderson’s brief-in-chief, available here).
The court of appeals concluded Anderson had forfeited these objections to the instruction because at the instructions conference he didn’t articulate with enough specificity the basis for his objection to the inclusion of “drugs” and made no objection to the inclusion of “alcohol.” (¶¶6-11, 38). But the court went on to conclude the claim of instructional error as to the “drugs” reference entitled Anderson to a new trial in the interest of justice. First, the court rejected the state’s argument that Gardner and Kolisnitschenko hold that a mental defect defense is not available if the defendant’s mental state was the result, even in part, of his ingestion of alcohol, which means Anderson couldn’t raise the defense because his own evidence showed his mental state was partly due to drinking alcohol. (¶¶13-19, 24). The court concludes neither case adopted a broad, blanket rule of law that any use of alcohol makes the defense unavailable. (¶¶20-23, 25-28). Further, the court concludes, those cases show the instruction’s general reference to “drugs” resulted in the real controversy not being tried:
¶37 …. On its face, the “voluntary taking of drugs” instruction told the jury that, to the extent Anderson’s defense was based on the taking of Strattera, the jury must reject that defense if Anderson took the Strattera voluntarily, in the sense that he voluntarily consumed the pills. That sensible interpretation of the instruction is contrary to case law holding that the use of prescription drugs, in keeping with medical directions, is generally not voluntary. We are unable to say with confidence that such an understanding of the instruction did not lead the jury to bypass the central controversy in this case, namely, whether Anderson took Strattera pursuant to his doctor’s advice and whether such prescribed consumption of Strattera caused Anderson to have a qualifying mental defect, as advanced by Anderson’s expert witness.
The supreme court’s decision, then, will resolve the availability of a mental defect defense for a defendant claiming his mental status resulted from the use of a drug as prescribed by a doctor and responsible alcohol consumption.
As for the interest of justice issue, just last term the supreme court stressed that interest of justice reversals should be limited to “exceptional” cases. State v. Avery, 2013 WI 13, ¶55 n.19, 345 Wis. 2d 407, 826 N.W.2d 60. (See our post for more details.) This case gives the supreme court another opportunity to clarify (or criticize) the court of appeals’ application of the standard, so lawyers asking the court to grant relief in the interest of justice will want to keep an eye on this case, as it may affect how you make your argument. In particular, note that even though it granted relief, the court of appeals said Anderson’s mental defect defense was “weak.” (¶39). The state argues it’s so weak any instructional error is harmless, and that a new trial should not be ordered in the interest of justice when the error was harmless. If the supreme court follows that line of thinking, it will be a sea-change; the current test for ordering a new trial in the interest of justice based on the real controversy not being tried doesn’t require a finding that a different result would probably occur on retrial. Vollmer v. Luety, 156 Wis. 2d 1, 19-20, 456 N.W.2d 797 (1990).