State v. Bruesewitz

• Decision Date: 27 February 1973
• Docket Number: No. S,S
• Parties: STATE of Wisconsin, Respondent, v. Roger BRUESEWITZ, Appellant. tate 74.
• Court: Wisconsin Supreme Court

Page 514

204 N.W.2d 514

57 Wis.2d 475

STATE of Wisconsin, Respondent, v. Roger BRUESEWITZ, Appellant.

No. State 74.

Supreme Court of Wisconsin.

Feb. 27, 1973.

Thomas P. Guszkowski, Whyte, Hirschboeck, Minahan, Harding & Harland, S. C., Milwaukee, for appellant.

Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for respondent.

HEFFERNAN, Justice.

Heroin Conviction

In attacking the 1970 heroin conviction, the defendant asserts that a person who has reached the degree of heroin addiction and the resultant loss of self-control that the appellant had at the time of his use of heroin cannot be constitutionally adjudged guilty and imprisoned for the use of narcotics. The record shows that the defendant was first charged and found guilty of the use of narcotics in September of 1968. At that time he convinced the trial judge that he was addicted to the use of narcotics, and he was placed on probation for four years. He was placed on probation to permit him to enter a federal program for the treatment of narcotics addiction at Lexington, Kentucky. He was again arrested for the use of heroin on April 24, 1970. The 1968 conviction is not per se before us on this appeal, since more than one year had elapsed from the date of that conviction to the appeal to this court, sec. 958.13, Stats. 1967. Counsel on this appeal recognizes this court's lack of jurisdiction to review the 1968 conviction, but has included it in the record in an effort to show the course of the defendant's alleged addiction over a period of years. The appeal from the 1970 conviction is within the jurisdiction of the court.

On July 1, 1970, Bruesewitz pleaded guilty to the use of heroin, in violation of sec. 161.02(3), Stats.1969. He was represented by counsel. The trial judge carefully questioned the defendant to determine the voluntariness of the plea, satisfied himself that the defendant was aware of the constitutional rights he was waiving by a guilty plea, and conducted the evidentiary hearing prescribed by Ernst v. State (1969), 43 Wis.2d 661, 170 N.W.2d 713. After the prosecutor elicited a prima facie case from the testimony of police officers and following a stipulation that the substance in question was in fact heroin, Bruesewitz took the stand. He testified that he had used heroin the night before his arrest. He also stated that he had been addicted for six years prior to his most recent arrest, but that he no longer was 'physically' addicted. Later, in his statement to the court, he indicated that medical science did not understand the problems of those who were 'psychologically' addicted to drugs, as he was, as contrasted to those who were 'physically' addicted. On the basis of the evidence elicited at the hearing, the trial judge accepted Bruesewitz's plea of guilty, adjudged him guilty as charged, and sentenced him to a term in the Wisconsin state prison for a period of five years.

Immediately thereafter, the trial judge conducted a hearing to determine whether he should revoke the probation granted to the defendant following a 1963 burglary conviction and the probation granted following the 1968 conviction for the use of heroin. The probation periods previously granted were revoked and sentences were imposed.

On this appeal the defendant argues that it was a violation of the Eighth Amendment to the Constitution of the United States--that it was cruel and unusual punishment--to hold a narcotics addict criminally responsible for the use of heroin. He makes the same argument to set aside the order that revoked his probation for the narcotics offense of 1968. He also argues, under the Wisconsin law and relying upon State v. Shoffner (1966), 31 Wis.2d 412, 143 N.W.2d 458, that a person who is unable to understand the nature and quality of his actions or unable to distinguish between right and wrong with respect to such actions, or to conform his conduct to the requirements of law cannot be found guilty of a criminal offense and that he cannot be, and should not be, held criminally responsible for his involuntary use of narcotics. He argues that, under the circumstances, the trial court should not have accepted his guilty plea, and the finding of guilt and the subsequent conviction constituted a manifest injustice under the test of State v. Reppin (1967), 35 Wis.2d 377, 151 N.W.2d 9.

As a general proposition, defendant's principal thesis, that a person cannot be convicted for the involuntary use of an addictive drug, rests upon Robinson v. California (1962), 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758. That case, however, goes to the single proposition that a statute making it a crime to be 'addicted' to narcotics is invalid. Criminal liability could not be based on the mere status of addiction. The opinion in that case, however, drew a distinction between the constitutionally infirm law before the court which imposed liability for addiction and a legitimate state regulation of "the administration, sale, prescription and use of dangerous and habit-forming drugs." (Emphasis supplied.) Robinson, page 664, 82 S.Ct., page 1419.

Powell v. Texas (1968), 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254, sustained a Texas statute which made public drunkenness a crime. Powell claimed that he was a chronic alcoholic and, as such, was powerless to resist public drinking and drunkenness. The state conviction was affirmed by the United States Supreme Court. The court refused to extent the holding of Robinson to prevent states from punishing defendants who engaged in behavior which the state had an interest in preventing. The opinion of the court in Powell recognizes the Robinson rule as merely a prohibition against penalizing a status, rather than a prohibition against penalizing conduct, even though the conduct may arise from the very status which may not be considered criminal. Mr. Justice Fortas, writing for a minority of the court, dissented, contending that Robinson stood upon a principle fundamental to liberty. 'Criminal penalties may not be inflicted upon a person for being in a condition he is powerless to change.' Powell, page 567, 8 S.Ct., page 2171. Mr. Justice White, in a separate opinion, concurred in the affirmance of the conviction but stated:

'If it cannot be a crime to have an irresistible compulsion to use narcotics, Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758, rehearing denied, 371 U.S. 905, 83 S.Ct. 202, 9 L.Ed.2d 166 (1962), I do not see how it can constitutionally be a crime to yield to such a compulsion. Punishing an addict for using drugs convicts for addiction under a different name. Distinguishing between the two crimes is like forbidding criminal conviction for being sick with flu or epilepsy but permitting punishment for running a fever or having a convulsion. Unless Robinson is to be abandoned, the use of narcotics by an addict must be beyond the reach of the criminal law.' Pp. 548, 549, 88 S.Ct. p. 2162.

It is thus at least arguable, when Mr. Justice White's concurring opinion is considered, that had Powell been a drug case rather than an alcohol case, a majority of the court would have found a constitutional bar to the conviction of an addict for using narcotics under the compulsion of his disease.

The point which the defendant would argue on this appeal is not, however, in fact posed by this record. While the record is replete with evidence of narcotics use by Bruesewitz, he specifically testified that, at the time of the acceptance of his plea of guilty, he was not 'physically' addicted to the use of narcotics. Accordingly, even were we to find that the position taken by the defendant on this appeal--that it is unconstitutional to convict an addict for the use of a narcotic which he is powerless to resist--and we do not reach that conclusion herein--the facts before us show only a prolonged period of the use of narcotics and the statement of the defendant that he was not 'physically' addicted. There was no medical evidence to show the nature of Bruesewitz's addiction or any evidence of which this court can take notice to show that one who is 'psychologically' addicted was powerless to resist the use of narcotics.

What the record shows is a voluntary and knowledgeable plea of guilty by a person who at that time was in full control of his mental and physical faculties. Counsel contends that to take a plea of guilty where the record might indicate, arguably at least, that the defendant was addicted to the use of narcotics at the time of the...