An Orange County Superior Court judge Wednesday convicted an admitted supplier of cocaine of second-degree murder for selling the drug to a man who later died of an overdose.
Philip Alviso, 28, had admitted to an undercover narcotics agent that he had sold one-eighth of an ounce of cocaine to Phillip Mikolajek in 1982, 11 hours before Mikolajek was taken to an Anaheim hospital in a coma.
He was convicted of the crime, which carries a penalty of 15 years to life in a state prison, four years to the day after Mikolajek's overdose.
Under California law, a person can be convicted of second-degree murder for committing an inherently dangerous felony that results in another's death. Judge Phillip E. Cox had ruled earlier that selling cocaine is an inherently dangerous felony.
Jury Trial Waived
Wednesday, at the end of a three-week trial, Cox found that the sale by Alviso had led to Mikolajek's death. Alviso had waived a jury trial, believing it would be difficult to find an open-minded jury amid an anti-narcotics spirit sweeping the country.
Orange County Deputy Dist. Atty. Thomas J. Borris said the conviction is the first murder conviction in the county based solely on a sale of drugs. A spokesman from the Los Angeles County district attorney's office said there has been no similar conviction in his territory either.
"Hopefully, it's sending a message," Borris said in an interview.
Al Albergate, spokesman for the Los Angeles County district attorney's office, said the highly publicized Cathy Evelyn Smith case--involving the 1982 drug-overdose death of comedian John Belushi--is the only case he can remember in which someone was tried for murder or manslaughter for supplying drugs.
That case was different, however, because Smith was accused of injecting drugs into Belushi's bloodstream, not merely selling him the drugs. Although Smith was charged with second-degree murder in Belushi's death, prosecutors in that case agreed to drop the murder charge in exchange for Smith's guilty plea to a charge of involuntary manslaughter.
"In most overdose cases," Albergate said, "you hardly ever know who gave them the drugs and they are hardly ever found. In the famous cases, like Belushi or Don Rogers, then sometimes the supplier is found. But in most cases, they are not ever found."
Said Borris: "One way to fight drug dealing is to send the message out that if you sell drugs and someone dies from your drugs, you are going to be prosecuted for murder and could go to prison for life. The bottom line is deterrence. If we can make you think that you'll go to jail for murder, it's hopefully going to reduce the amount of drugs on the street."
Alviso, an automobile mechanic who lived in Stanton, was under investigation for a sale of cocaine unrelated to the Mikolajek death when he confessed to selling the lethal dose.
He has been serving a state prison sentence for forgery and selling drugs. Cox ordered him released on his own recognizance, pending an appeal in the murder conviction, as soon as his prison sentence is over.
Cox told the court Wednesday that witnesses testifying in Alviso's defense--rather than evidence presented by the prosecutor--caused him to find Alviso guilty.
During the course of the trial, Mikolajek's roommate, James Keedy, testified that Mikolajek was an intensive, daily user of cocaine, a man who would buy several grams, lock himself in the bathroom and inject himself with the drug until he had no more. He was a man, Keedy said, who could go through an eighth of an ounce in half a day.
According to testimony at the trial, Mikolajek bought the cocaine from Alviso at noon on Sept. 17, 1982, went home and injected himself with an unknown amount. At a party later that night, he snorted some more of the drug and went into a coma about 11 p.m. He was declared brain dead six days later.
"This is not the district attorney's testimony," Cox said. "It's evidence that's produced by the defense that influences me. . . . I don't see how he could have used the eighth (of an ounce) over half a day and say it's not a proximate cause of death. It's so logical to me.
"That's the reason I find the defendant guilty of murder in the second degree in the death of Mr. Mikolajek."
But Greg W. Jones, Alviso's court-appointed attorney, said after the trial that the conviction was a "travesty" and that there was no way that Cox could know if it was actually Alviso's cocaine that caused Mikolajek's death.
"I think he (Alviso) has been used as a vehicle of the district attorney to try to deter others from using and selling cocaine, to keep all those 'mindless dopers' on the street from 'involuntarily' using cocaine," Jones said.
"The judge's conclusions are totally unsupported," he said. "It's a travesty. It's like he decided he wanted to reach the conclusion and jumped over boulders to do so."
Jones said Alviso will file an appeal. According to Cox, there is a good chance of overturning the conviction.
"I am very firm in my interpretation of the facts," Cox said as he rendered his decision. "But with the law, Mr. Jones probably has the upper hand in getting it (the conviction) thrown out."
Times staff writer Ray Perez contributed to this story.