Defendant loses argument for lesser-included offense in teenage drug overdose case

By Joe Forward, Legal Writer, State Bar of Wisconsin

Nov. 30, 2010 – A court may impose multiple punishments in the event that a defendant is charged with both “contributing to the delinquency of a child with a death as a consequence” and “reckless homicide by delivery of controlled substance.”

That is what the Wisconsin Supreme Court held in State v. Patterson, 2010 WI 130 (Nov. 17), a case in which the defendant, Patrick Patterson, was convicted on both charges after a jury found that he gave Oxycodone pills to his 17-year-old girlfriend, causing death by overdose.

In his post-conviction motion, Patterson argued that contributing to the delinquency of a child with death as a consequence is a lesser included offense of reckless homicide by delivery of a controlled substance, and thus he should not have been punished on both charges.

The supreme court – in an opinion written by Justice N. Patrick Crooks – explained that the Wisconsin Constitution prohibits “multiple punishments for charges that are identical in law and fact unless the legislature intended to impose such punishments.”

Patterson conceded the charges are different in law and fact, but argued that the legislature did not intend to impose multiple punishments when a defendant is convicted on both.

The supreme court did a four-pronged multiplicity analysis to determine that Patterson could be convicted and punished separately on both charges.

Multiplicity 

Patterson had to rebut the presumption that the legislature intended to permit multiple punishment on both charges because the charges are different in law and fact. To determine the legislature’s intent, the court reviewed all relevant statutes, legislative history, the nature of the proscribed conduct, and the appropriateness of multiple punishments.

Wis. Stat section 939.66(2) prohibits conviction of both a criminal homicide offense and a lesser-included offense of criminal homicide.

The state argued and the court of appeals held that under State v. Davison, 2003 WI 89, 263 Wis. 2d 145, 666 N.W.2d 1, section 939.66(2) permitted conviction for an offense and a lesser-included offense where both are charged. But the supreme court refused to affirm that holding.

Instead, the supreme court held that section 939.66(2) does not bar conviction on both charges because “contributing to the delinquency of a child with a death as a consequence” is not a type of criminal homicide that would preclude conviction as a lesser-included offense.

The supreme court noted that section 939.66(2) is silent on what types of offenses constitute “criminal homicides” and therefore the statute is ambiguous on that point.

However, the court took stock in the fact that section 948.40(1) – contributing to the delinquency of a child – is not located within chapter 940, the homicide statutes.

“The language of the relevant statutes suggests that the legislature did not intend contributing to the delinquency of a child with death as a consequence to be a type of criminal homicide,” Justice Crooks wrote. “The legislative history of these statutes further supports this conclusion.”

The court explained that the lesser-included offense provision suggests that only lesser included “criminal homicide” charges are subject to that provision and the legislative history of section 948.40(1) – the “contributing to the delinquency of a child with a death as a consequence” statute – determines that it is not a type of criminal homicide.

The court then analyzed the legislative history of section 948.40(1) and other relevant statutes to support its conclusion, focusing on the fact that all homicide statutes are grouped together in a different chapter than crimes against children.

Examining the third prong of the multiplicity analysis – nature of the proscribed conduct – the court noted that crimes against children statutes serve a different policy than homicide statutes, even if the same conduct violates both policies at once.

Reckless homicide by delivery of a controlled substance aims to prosecute those that provide fatal doses of drugs, while 948.40(1) aims to “protect children from those who would encourage them to become delinquent,” the court noted.

The court concluded that imposing multiple punishments was appropriate because “each statute addresses separate harms for which society has a significant interest in protecting.”

Further, the court rejected Patterson’s argument that he could not be convicted for contributing to the delinquency of a child because the 17-year-old victim was not considered a child.

Section 948.40(1) defines a “child” as someone who has not attained the age of 18 years, except that a “child” does not include 17-year-olds alleged to have violated a state or federal criminal law. The court dismissed Patterson’s argument because the 17-year-old victim was not being prosecuted for any state or federal crime.

Finally, the supreme court rejected Patterson’s argument that the jury instruction on “reckless homicide by delivery of a controlled substance” allowed the jury to find him guilty on less than proof beyond a reasonable doubt.

“[C]onsidering the jury instruction as a whole, it is not reasonably likely that the jury misunderstood the burden of proof,” the court concluded.

Attorneys  

Assistant Attorney General Michael Sanders represented the state. Defense attorney David R. Karpe represented Patrick Patterson.