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Court of Appeals: Aiding buyer in drug sale can lead to Len Bias liability because it also aided dealer

State v. Terry L. Hibbard, 2022 WI App 53; case activity (including briefs)

In a decision that allows for a sweeping expansion of aiding and abetting prosecutions in Len Bias cases, the court of appeals holds that a person assisting only a buyer a drug transaction could also be prosecuted for reckless homicide if the buyer dies from using the drug because any act aiding the buyer in getting the drugs also necessarily aids the seller in making the delivery.

Hibbard drove his adult daughter Taralyn to a rendezvous with Poe, a drug dealer, knowing she was going to buy heroin and that she’d give him a bit for his own use. She later died after using the heroin she bought. Once Poe was convicted of first degree reckless homicide under § 940.02(2)(a), the state charged Hibbard with aiding and abetting Poe in committing the crime of delivering drugs that caused death. (¶¶2-5). The court of appeals rejects Hibbard’s argument that the evidence was insufficient to prove he was a party to Poe’s crime because he was only assisting his daughter’s purchase of the drug.

Under § 939.05(1), a person who “[i]ntentionally aids and abets the commission” of a crime “is a principal and may be charged with and convicted of” that crime as if he committed it directly. But as Hibbard aptly notes, determining which crimes the participants in a drug deal have committed, either directly or as a party to a crime, can be difficult. Buyers and dealers necessarily cooperate to make drug transactions happen; so does their cooperation implicate them in each other’s crimes? And friends who are using may work together to get drugs; do their acts in aiding the collective effort mean that they are all liable as dealers if one of them dies of an overdose? The court of appeals’ answer is “yes,” despite Hibbard’s pointed arguments to the contrary.

As Hibbard points out, the legislature has established a policy of treating simple personal possession as a less serious offense than delivery, § 961.001(2), and two supreme court cases bearing on the question, State v. Hecht, 116 Wis. 2d 605, 342 N.W.2d 721 (1984), and State v. Smith, 189 Wis. 2d 496, 525 N.W.2d 264 (1995), support using that policy to draw party-to-a-crime liability lines.

In Hecht, the defendant wasn’t the buyer or the dealer in the drug deal at issue; he wasn’t even present for the deal. But after selling a small amount of cocaine to an undercover agent who then asked to buy a bigger amount, he had helped connect the agent with a supplier who could provide the larger amount. For his role in arranging the deal, Hecht was convicted of possession of cocaine with intent to deliver as a party to a crime. The supreme court held he aided and abetted the supplier by engaging with both the buyer and the supplier, by “put[ting] into motion the wheels of a mechanism that would ultimately lead to” a transaction between the two, and by keeping “those wheels turning.” 116 Wis. 2d at 624.

In Smith, the defendant agreed to deliver a small amount of cocaine to a buyer for her personal use, but before the deal could take place the buyer called the police. Smith was convicted of conspiracy to deliver cocaine, but the supreme court held that a standard “buy-sell agreement” can’t be a conspiracy, which must involve “at least two people, with each member subject to the same penalty”; the legislature has prescribed different penalties for the crimes that buyers and dealers commit, so when a dealer delivers drugs to a buyer for her personal use, the two cannot be prosecuted as co-conspirators without flouting legislative intent. 189 Wis. 2d at 501-02.

Unlike Hecht, Hibbard had no role in connecting his daughter with Poe or put the deal into motion; rather, he was more like Smith, seeking to possess and aid in the possession of a drug, not to deliver it. The court of appeals is not persuaded that Hecht and Smith support Hibbard’s claim, so they open the door to a whole new swath of PTAC liability:

¶20     Hibbard’s repeated characterization of his actions as “buyer-side conduct” is inaccurate. It rests on the fundamentally incorrect premise that his conduct could only aid Poe or Taralyn, but not both. In picking up Taralyn—who could not drive—and driving her to meet Poe, Hibbard assisted both Poe’s delivery of heroin and his daughter’s acquisition of it. That Hibbard did not communicate directly with Poe, and may have wanted to obtain some of the drugs for his own use, does not change the fact that his conduct assisted Poe in delivering the drugs to Taralyn. Hibbard’s conduct falls within the text of the statutes.

¶21     We are not convinced that the legal authorities upon which Hibbard relies compel a contrary conclusion. Wisconsin Stat. § 961.001(2)’s declaration of legislative intent that the sentences for drug traffickers and drug users be informed by different goals—retribution and deterrence for traffickers, rehabilitation for users—bears little relevance here because Hibbard’s conviction does not stem from his drug use, but rather from his efforts to facilitate a drug sale that resulted in a fatality. Similarly, Smith neither controls nor meaningfully informs our analysis of this case. The defendant in Smith was not charged with aiding and abetting under Wis. Stat. § 939.05(2)(b), and the Smith court’s expression of concern about our state’s criminal laws being used to excessively punish buyers who purchase drugs for their personal use is of no import here. If anything, Hibbard’s role in the drug deal and conduct are more analogous to that of the defendant in Hecht. Neither Hibbard nor Hecht bought or sold drugs, but both took action that facilitated sales and did so intending that they be completed.

Hibbard argues in the alternative that if the evidence was sufficient to convict him, then § 940.02(2)(a) is unconstitutionally vague as applied to aiders and abettors because it doesn’t sufficiently describe what conduct is prohibited and provide for objective standards for enforcement. The court isn’t persuaded on this claim either. Citing the language of §§ 939.05 and 940.02(2)(a), it holds the statutes clearly identify and define the conduct proscribed. (¶¶28-33). In particular:

¶31     …[T]he phrase “[i]ntentionally aids and abets” in Wis. Stat. § 939.05(2)(b) is not unduly vague as applied in this case. To be sure, the concept of aiding and abetting is potentially applicable to a broad swath of conduct. Our supreme court has recognized that “aiding and abetting” can fairly describe any “verbal or overt action.” Hecht, 116 Wis. 2d at 620 …. But that breadth did not leave Hibbard or law enforcement without guidance in determining when the statute applies in the context of a drug transaction that ultimately proves fatal, for two reasons.

¶32     First, Wis. Stat. § 939.05(2)(b) requires that the conduct at issue have a specific purpose—assisting another in committing a criminal offense. Applying that general purpose to this case, the statutes informed Hibbard that any conduct he undertook to assist Poe in the manufacture, distribution, or delivery of heroin exposed him to liability for first-degree reckless homicide if someone died as a result of using it. Second, § 939.05(2)(b) applies only to assistance that is “intentionally” rendered—that is, only if the person who engages in the assisting conduct knows that another person is committing a crime or intends to do so, and intends their conduct to assist in the commission of the crime. See Wis. J.I.—Criminal 400. As applied here, the statutes informed Hibbard that, because he knew Poe intended to sell heroin to Taralyn, anything he did to facilitate that sale with the intent that the sale occur could subject him to liability for a homicide resulting from a person’s use of the drugs that were sold.

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