SCOW: Taking prescription medication can never support NGI defense

State v. Donyil Leeiton Anderson, 2014 WI 93, 7/30/14, reversing an unpublished per curiam court of appeals decision; majority opinion by Justice Gableman; case activity

Without explaining its reasoning, the supreme court declares that while the consumption of prescription medication in accordance with a physician’s advice may give rise to an involuntary intoxication defense under § 939.42, it can never create a mental defect that would sustain an insanity defense under § 971.15. The court also holds that mixing prescription medication with any amount of alcohol precludes a defendant from using either defense.

Anderson raised an insanity defense to intentional homicide charges. He claimed he suffered a temporary mental defect that impaired his self-control, and that the defect was the result of a combination of factors, the primary one being the side effects of Strattera, a prescription medication he was taking. The other factors were a preexisting impairment in his ability to exert self-control; a major depressive disorder that was not appropriately treated; and ingestion of alcohol. (¶¶7-10).

Relying on State v. Gardner, 230 Wis. 2d 32, 41, 601 N.W.2d 670 (Ct. App. 1999), which held a person may raise a § 939.42 involuntary intoxication defense when a prescription drug renders the person unable to distinguish right from wrong, Anderson argued the use of a prescription medication in accordance with a physician’s advice should likewise allow a § 971.15 defense based on side effects of the medication. But the trial court’s instructions to the jury about the meaning of “mental defect” said 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 argued this instruction was erroneous in two ways: 1) it failed to distinguish between the voluntary use of illegal drugs and (per Gardner) the essentially involuntary use of prescribed medication; and 2) it improperly precluded a finding of mental defect if any amount of alcohol, no matter how minimal, was involved. (¶¶13, 17).

The state agreed with Anderson on his first complaint about the instruction, and so conceded the instruction was erroneous. But the state also argued the instruction should have said “drugs and alcohol” instead of “or” because, based on Gardner, State v. Kolisnitschenko, 84 Wis. 2d 492, 494, 498-99, 267 N.W.2d 321 (1978), and Loveday v. State, 74 Wis. 2d 503, 506, 247 N.W.2d 116 (1976), the ingestion of any alcohol precludes the use of the defense, and because Anderson drank he can’t raise the defense. (¶¶18-19, 33).

The court begins by rejecting the state’s concession of error and holding that an insanity defense can never be based on prescription drug use:

¶27  We disagree with both parties regarding the accuracy of the jury instruction. … 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. … 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 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. … [T]his 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. …

¶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. …

Whether a condition is a “mental disease or defect” is not a medical question, State v. Esser, 16 Wis. 2d 567, 586, 115 N.W.2d 505 (1962), but a “moral issue,” Brook v. State, 21 Wis. 2d 32, 47, 123 N.W.2d 535 (1963), and a “policy question,” Gibson v. State, 55 Wis. 2d 110, 116, 197 N.W.2d 813 (1972), and is decided on a case-by-case basis, Kolisnitschenko, 84 Wis. 2d at 500. So to criticize Anderson for making “essentially nothing more than a policy argument that is wholly unsupported by our case law” (¶27) is doubly bizarre: Policy arguments are necessary and appropriate, and the court’s position is the one unsupported by case law, which it doesn’t even bother to cite, much less discuss.

Furthermore, while Gibson and Kolisnitschenko held that the voluntary use of illegal drugs couldn’t be a basis for an insanity defense, Gardner makes clear (albeit in a case involving § 939.42) that taking medication at direction of physician isn’t voluntary in the way taking illegal drugs is; unlike illegal drugs, the point of the prescription drugs is medical treatment, not intoxication, so the person is not seeking or intending the mind-altering effects of the drug that impair the ability to distinguish right from wrong. But if Gardner is right that prescription medications may cause a person to be unable to distinguish right from wrong, why can’t those medications cause a person to be unable to conform his or her behavior to the law? The majority opinion doesn’t say; instead, we get only the ipse dixit quoted above that Gardner is an involuntary intoxication case and that no case recognizes that prescription medications can give rise to an insanity defense. That is no explanation at all, which may be why the dissent (Chief Justice Abrahamson, joined by Justice Bradley) finally, and aptly, phrases its objections in the form of questions, all of which are left unanswered by the majority. (¶48).

Lack of reasoning aside, note that the court’s holding doesn’t mean a person taking prescription medications can’t raise an NGI defense; it just means the defense must be based on something other than the side effects of the medication—e.g., a  more commonly recognized mental disorder, like schizophrenia. (¶31 n.11).

The court then goes on to adopt the state’s position that even if prescription medication could be the basis for an insanity defense, the use of any alcohol precludes raising defense. (¶¶33-35).

The court bases this conclusion on what it says is “the established rule” of Gardner and Kolisnitschenko and City of Waukesha v. Godfrey, 41 Wis. 2d 401, 406, 164 Wis. 2d 314 (1969) (“[a] person who consumes an intoxicant along with medication, does so at his own peril”). The court declares that Gardner and Kolisnitschenko created a blanket rule that any use of alcohol makes the insanity or the involuntary intoxication defense unavailable, but again it provides no support for its conclusion. In marked contrast, the court of appeals decision (¶¶20-23, 25-28) provided a careful explanation for why those cases don’t create that blanket rule. As for Godfrey, the court’s reliance on that case is fallacious. The case has nothing to do with either affirmative defense, but with an instruction defining intoxication in an OWI case by reference to both alcohol and medication. Alas, bald assertions and apples-and-oranges comparisons have given us a new blanket rule where one shouldn’t exist, for the very good reasons set forth in Anderson’s brief (at 21-26).