State v. McKeon

• Decision Date: 24 January 2002
• Docket Number: No. 1 CA-CR 00-0297.,1 CA-CR 00-0297.
• Citation: 38 P.3d 1236,201 Ariz. 571
• Parties: STATE of Arizona, Appellee, v. Gary Martin McKEON, Appellant.
• Court: Arizona Court of Appeals

38 P.3d 1236

201 Ariz. 571

STATE of Arizona, Appellee, v. Gary Martin McKEON, Appellant.

No. -0297.

Court of Appeals of Arizona, Division 1, Department D.

January 24, 2002.

Janet Napolitano, Attorney General By Paul J. McMurdie, Chief Counsel, Criminal Appeals Section and John L. Saccoman, Assistant Attorney General, Phoenix, Attorneys for Appellee.

James Haas, Maricopa County Public Defender, By James H. Kemper, Deputy Public Defender, Phoenix, Attorneys for Appellant.

OPINION

FIDEL, Judge.

¶ 1 Appellant Gary Martin McKeon, convicted of two counts of first-degree murder and one count of first-degree burglary, claims on appeal that the trial court erred in instructing the jury that his asserted intoxication from the use of prescribed medication was "not a defense for any criminal act or requisite state of mind."

¶ 2 The trial court, in our opinion, improperly stated the law because involuntary intoxication, when it arises from the non-abusive use of prescribed medication, may be relevant to the question whether a person accused of a criminal act had the requisite state of mind. We affirm McKeon's conviction and sentence, however, after finding the error harmless in the context of the evidence.

BACKGROUND

¶ 3 In the fall of 1996, after McKeon's wife, Kerry, left him and their children, McKeon became acutely depressed. His depression subsided somewhat when his psychiatrist prescribed Zoloft, an anti-depressant, and Klonopin, an anti-anxiety medication. McKeon attempted a reconciliation, but Kerry divorced him and married George Hild in the summer of 1997.

¶ 4 On August 16, 1997, McKeon killed Kerry and George at the home of Kerry's sister and brother-in-law. The next day, he turned himself in to the police.

¶ 5 Tried before a jury, McKeon defended in part on the ground that a combination of prescribed medications had rendered him unaware of his actions. He testified that on the day of the shootings, he had taken Zoloft and Klonopin, drugs prescribed by his psychiatrist, and Roxicet, a pain medication prescribed for complications from a hernia operation. He also testified that, with the exception of "little snippets or Polaroids or whatever of my memory," he could not remember where he was, what he did, or whom he was with that day. These "snippets," which McKeon described as things that his memory "told," "said," or "would have said" to him, included little more than being in his former in-laws' backyard, "seeing [George] pull a gun and shoot at me," and shooting back. McKeon also testified that he decided to turn himself in when a television news broadcast caused him to realize what had occurred.

¶ 6 According to the testimony of three medical witnesses, including McKeon's psychiatrist, McKeon's medications in combination could cause delirium or severe cognitive impairment. The medical witnesses also testified that McKeon's medications should be taken regularly. McKeon admitted that he took the medications only intermittently but testified that he had not been advised that he must take them regularly. ¶ 7 At the close of evidence, the trial court gave the jury the following instruction:

Temporary intoxication resulting from the voluntary ingestion or consumption of Zoloft, Klonopin, or Roxicet, or any other drug is not a defense for any criminal act or requisite state of mind; nor is the abuse of any prescribed medication. Requisite state of mind includes intentionally, knowingly, premeditation, or with intent to.

You may not consider any evidence of defendant's drug use in determining whether he acted intentionally, knowingly, or with premeditation.

¶ 8 The jury returned guilty verdicts on two counts of first-degree murder, for which the trial court sentenced McKeon to consecutive terms of incarceration for his natural life. The jury also found him guilty of one count of first-degree burglary, for which the trial court sentenced him to prison for seven and one-half years, to be served concurrently with the first of his two natural life terms. McKeon timely appealed.

¶ 9 We independently review whether a trial court has properly instructed the jury on the law. State v. Orendain, 188 Ariz. 54, 56, 932 P.2d 1325, 1327 (1997). When a jury instruction has incorrectly stated the law, we consider whether the error was harmless. Error is harmless if we can conclude beyond a reasonable doubt that it did not influence the verdict. State v. Rodriguez, 192 Ariz. 58, 63, ¶ 27, 961 P.2d 1006, 1011 (1998).

INTOXICATION DUE TO PRESCRIBED MEDICATION

¶ 10 In 1993, the legislature changed the law regarding the defense of voluntary intoxication. See 1993 Ariz. Sess. Laws, ch. 256, § 3. Before this change, the law read:

No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition, but when the actual existence of the culpable mental state of intentionally or with the intent to is a necessary element to constitute any particular species or degree of offense, the jury may take into consideration the fact that the accused was intoxicated at the time in determining the culpable mental state with which he committed the act.

A.R.S. § 13-503 (1989).

¶ 11 Section 13-503 now reads:

Temporary intoxication resulting from the voluntary ingestion, consumption, inhalation or injection of alcohol, an illegal substance under chapter 34 of this title or other psychoactive substances or the abuse of prescribed medications does not constitute insanity and is not a defense for any criminal act or requisite state of mind.

A.R.S. § 13-503 (2001) (emphasis added).

¶ 12 Despite substantial differences, each version of the statute addresses intoxication resulting from the consumption of prescribed medications, and each, by different means, implicitly distinguishes between medically authorized consumption and misuse.

¶ 13 Before the 1993 amendment, the 1989 version of § 13-503 addressed these subjects in conjunction with a related definitional statute. Section 13-503 itself provided, as we have indicated, that an act was not less criminal by reason of having been committed "in a state of voluntary intoxication." "Voluntary intoxication" was defined as "intoxication caused by the knowing use of drugs, toxic vapors or intoxicating liquors by a person, the tendency of which to cause intoxication the person knows or ought to know, unless the person introduces them pursuant to medical advice or under such duress as would afford a defense to an offense." A.R.S. § 13-105(38) (emphasis added). By reasonable implication, the abusive consumption of prescription medication would not qualify as consumption "pursuant to medical advice." Thus, the two statutes, read in tandem, excluded intoxication arising from the non-abusive use of prescription drugs from the definition of voluntary intoxication and permitted a defendant to assert such a state as one of involuntary intoxication that might be considered to negate the requisite state of mind for committing a crime.

¶ 14 The more recent version of § 13-503 approaches the subject of prescription medication from a different angle, but arrives at the same end. It provides that temporary intoxication is not a defense for a criminal act or requisite state of mind if it results from the abuse of prescribed medications. The statute by implication does not preclude a criminal defendant from asserting temporary intoxication arising from the non-abusive use of prescription medication—a use pursuant to medical advice—to negate a requisite state of mind.

¶ 15 Before settling on this interpretation, we address an ambiguity that arises from the differential use of overlapping categories in § 13-503. The statute, as now worded, speaks preclusively of temporary intoxication that results from the voluntary consumption of "an illegal substance ... or other psychoactive substances or the abuse of prescribed medications." The statute uses the qualifying words "abuse of" to narrow its provision concerning prescribed medications but does not use these qualifying words to narrow its provision concerning psychoactive substances. Yet "prescribed medications" include some "psycho-active substances." A "psychoactive" substance is one "affecting the mind or behavior." Webster's Ninth New Collegiate Dictionary (1985). And some prescription drugs obviously have that purpose and effect.

¶ 16 The question thus arises whether (1) the consumption of a prescription drug, if also a psychoactive drug, is statutorily precluded as a basis for a defense without regard to whether the prescription was properly taken or abused, or (2) whether the consumption of a psychoactive drug, if pursuant to medical prescription, is only precluded as a basis for a defense if the prescription drug was abused.

¶ 17 In our view, the second interpretation gives meaning and purpose to the statute. This is so because the statute applies only to substances that have a capacity to induce a state of temporary intoxication. Thus, any prescribed medication that could fall within the scope of the statute must necessarily have such a capacity, and any medication with the capacity to induce a state of temporary intoxication is by definition a psychoactive substance, one that can affect the mind or behavior. To hold that a defense may not arise from the consumption of a prescribed psychoactive medication, even one properly taken and not abused, would render superfluous the statutory provision regarding the abuse of prescription medication. Whenever possible, we construe statutes so as not to render any clause, sentence, or word superfluous. State v. Johnson, 171 Ariz. 39, 42, 827 P.2d 1134, 1137 (App.1992). The legislature plainly sought to distinguish abuse of prescribed medication from the proper, non-abusive consumption of such medication pursuant to medical advice. We can only give meaning to this distinction by concluding that the legislature intended by its reference to...