Butala v. State
| Decision Date | 02 March 1976 |
| Docket Number | No. 221,221 |
| Citation | 71 Wis.2d 569,239 N.W.2d 32 |
| Parties | Michael G. BUTALA, Plaintiff-in-error, v. STATE of Wisconsin, Defendant-in-error. State(1974). |
| Court | Wisconsin Supreme Court |
Henry A. Tessmer, Milwaukee, for plaintiff-in-error.
Michael R. Klos, Asst. Atty. Gen., with whom on the brief was Bronson C. La Follette, Atty. Gen., for defendant-in-error.
Upon this appeal the defendant does not challenge the sufficiency of the evidence but does contend the statute under which he was convicted, sec. 450.09, is unconstitutional because it is vague and overbroad. He also argues it was error not to grant severance of his case at the trial.
Sec. 450.09, Stats., provides:
The charges arose out of a plan to sell the prescription drug procaine which was represented to be cocaine. Butala allegedly served as a lookout while Picciolo 'dropped' the drug in a Milwaukee county park.
The state's chief witness at the trial was Robert Horbinski, an acquaintance of both Picciolo and Butala. In exchange for a promise to seek dismissal of a pending charge, Horbinski agreed, in February of 1973, to help authorities 'get' Picciolo on a drug-related offense. Horbinski testified Picciolo was in possession of what he professed to be a pound of cocaine. On the evening of May 29, 1973, Horbinski went to Picciolo's house to discuss plans for selling the drug. Both Picciolo and Butala were there. Horbinski told Picciolo that he had found a buyer and the three discussed the manner in which the sale was to be made. It was decided that Horbinski would meet the 'buyer' at a restaurant and call Picciolo if the buyer had the $7,000 purchase price. Butala agreed to accompany Picciolo to the dropsite to watch 'to make sure that nothing went wrong.' The three then went in Picciolo's car to look for a place to make the exchange. At Butala's suggestion, the trio decided on a location in Dineen Park, a public park, on the north side of Milwaukee at approximately 63rd and West Melvina.
Picciolo and Butala then dropped Horbinski off at the restaurant and returned to Picciolo's house to await Horbinski's call confirming the sale. At the restaurant, Horbinski met with a federal agent who made arrangements to apprehend Picciolo and Butala at the dropsite. Neither Butala nor Picciolo were aware that there was no real buyer for the drug. Horbinski called Picciolo and told him everything was set for the exchange.
Thomas McKale, a city of Milwaukee police detective assigned to the narcotics squad, testified that he was in the area of Dineen Park at approximately 7:30 on the evening of May 29, 1973. He observed a white and silver Cadillac stop at the curb in the 6400 block of West Melvina. The driver, later identified as Picciolo, got out and walked into the park about 25 feet to a large forked tree. He looked around, took a brown paper bag from under his jacket and placed it on the ground next to the tree. McKale stopped Picciolo as he was returning to the car and placed him under arrest.
James Hardke, an agent for the Wisconsin Department of Justice, was assigned to the surveillance unit in the park and instructed to watch for a lookout. Shortly before 7:30, Hardke was parked in an alley in the 6500 block of Capitol Drive near Dineen Park. He saw a black Pontiac arrive and park in mid-block in the 3900 block of North 64th Street. The driver, identified as Butala, remained in the car with his view directed to the area of the exchange. Following Picciolo's arrest, Butala was held for investigation and, although released the same evening, was later arrested and charged for his role in the scheme.
Special Agent Richard Tewes, a United States Treasury agent assigned to the project, substantiated McKale's testimony regarding Picciolo's arrival and arrest. Tewes performed a filed test on the contents of the paper bag. That test indicated that the substance might be cocaine. However, the chemist who later analyzed the substance testified that it was procaine, a synthetic drug with properties similar to cocaine. He also testified that procaine was not on the list of controlled substances.
The jury returned a verdict on October 4, 1973, finding Butala guilty on the charge of placing a drug in a public place, contrary to sec. 450.09, Stats.
An allegation that a statute is vague is based upon the rrocedural due process requirement of fair notice. 1 The primary issue raised by such a challenge is whether the statute taken as a whole is sufficiently definite to give reasonable notice of the prohibited conduct to those who wish to avoid its penalties and to apprise the judge and jury of standards for the determination of guilt. State v. Zwicker (1969), 41 Wis.2d 497, 507, 164 N.W.2d 512, 517, states:
". . . If the statute is so obscure that men of common intelligence must necessarily guess at its meaning and differ as to its applicability, it is unconstitutional."
Butala argues that sec. 450.09, Stats., does not define the conduct which is proscribed with the certainty which is required by due process. He points to a number of words and phrases in the statute which, he contends, render it vague. He argues that '(e)xcept as authorized by law' gives no indication of what 'law' is referred to; that the word 'put' is undefined and therefore susceptible of conflicting constructions; that the word 'drug' and the phrases 'medicine or chemical' and 'any compound or combination thereof' are so broad as to conceivably include any physical object in existence; and that it is not clear what is meant by a 'public place' as differentiated from 'private premises.'
The trial court considered these contentions in its decision on the defendant's motion to set aside the verdict and concluded that, while the statute is 'not as clear as may be hoped for,' it is constitutionally valid when measured against a test of 'common usage' and 'reasonable construction.' In so holding, the court placed considerable reliance on this court's decision in State v. Vlahos (1971), 50 Wis.2d 609, 184 N.W.2d 817. In that case the court stated at pages 616, 617, 184 N.W.2d at page 820:
It is clear from this analysis that the challenged provisions cannot be viewed apart from either the context in which they are used or the particular conduct to which they are sought to be applied. The words and phrases must be given a meaning which is consistent with their common usage and understanding with due regard to the apparent legislative intent.
Sec. 450.09, Stats., is contained within a chapter of the Wisconsin statutes which primarily regulates pharmacy and the dispensing of drugs. The section was originally created by ch. 366, Laws of 1907, and its present wording was adopted by ch. 448, Laws of 1923. Its history indicates that it was and is intended as a police measure designed to protect the public health and safety. Its general wording indicates an intent to prevent the leaving of drugs, medicines and chemicals in public places or on private premises where persons who are not aware of the potential danger might come in contact with them.
The plaintiff in error's vagueness arguments must fail because it cannot be said that he was without notice that his conduct was within the statutory prohibition. In Jones v. State (1972), 55 Wis.2d 742, 746, 200 N.W.2d 587, this court held, consistent with other authorities, that a defendant may not hypothesize fact situations which might raise a question as to the challenged statute's applicability where the conduct charged is so obviously within the zone of prohibited conduct that no reasonable man could doubt its criminal nature. 2
Butala argues that the phrase '(e)xcept as authorized by law' is vague because it requires a potential offender to guess as to whether the circumstances authorize him to put drugs, medicines or chemicals, etc., in a public place or on private premises. We believe that the commonly understood meaning of the phrase, when viewed in the context of the chapter in which the statute is contained, is that there must be some express statutory authorization for the otherwise-proscribed conduct. There is no contention that Butala had such authorization.
Butala also contends that he word 'put' is vague because it is not clear whether it requires intentional conduct or includes, also, inadvertence or accident. As commonly used, the word 'put' evinces some voluntary placing or setting of an object or substance in a particular position or in a particular relation with other objects. As such it would exclude inadvertent dropping or losing. Butala's assistance in the volitional act of placing the drug next to the tree is clearly conduct of the nature sought to be reached by the statute.
The categories 'drug, medicine or chemical, or any compound or combination thereof' are said to...
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