Drugs and Death: Prosecutors Raise the Stakes for Dealers

The last thing Philip Alviso expected when he sold an eighth of an ounce of cocaine to his friend, Phillip Mikolajek, was that it would result in his conviction for second-degree murder and put him face to face with 15 years to life in prison.

But that’s just what happened.

Alviso, 28, a Stanton mechanic and admitted drug dealer, sold Mikolajek the cocaine at noon on Sept. 17, 1982. According to court testimony, the 22-year-old Garden Grove man hurried home with his cache, locked himself in his bathroom and probably injected the entire eighth of an ounce within half a day.

Later that night, he was seen at a party in his apartment, snorting someone else’s cocaine. By 11 p.m., he had lapsed into a coma, never to awaken. Six days later he was declared brain-dead at an Anaheim hospital.

Four years to the day after his last drug sale to Mikolajek, Alviso was convicted of second-degree murder by an Orange County Superior Court judge, who ruled that it was his cocaine that was responsible for the death. He has not yet been sentenced, and his lawyer says the case will be appealed.

Some Critical

The murder conviction of a supplier after a drug-related death is a rarity in California, and Alviso’s conviction has been lauded by anti-drug campaigners nationwide as sending a vital message: Sell drugs and, if someone dies, go to jail for murder. Some legal experts, however, are critical of the conviction.

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 ruled early in Alviso’s three-week trial that selling cocaine is such a felony.

It is not the first case in which someone has been charged with murder for supplying a fatal overdose of a drug. But according to legal experts, most of the handful of convictions in such cases in California involved heroin.

And in most, the experts say, the alleged criminal conduct went beyond just supplying the drugs; in the case of comedian John Belushi’s death, for example, Cathy Evelyn Smith was accused of actually injecting a mixture of cocaine and heroin into his body. Smith pleaded no contest to involuntary manslaughter and is serving a three-year state prison sentence.

No Previous Case

Spokesmen for the California attorney general’s office and the district attorney’s offices in Orange and Los Angeles counties said they know of no previous case in which a mere sale of cocaine resulted in a murder conviction.

“I don’t have any memory or knowledge of any case where that did happen,” said Scott Thorpe, supervising deputy attorney general. “I’ve never heard of it occurring . . . but I think it’s a good tool in the hands of the prosecutors to get at drug dealers.”

Gus Lee, a spokesman for the California District Attorneys Assn., said, “We know of no case similar to (that) one. . . .

“Not in anyone’s recall nor in a quick look through the (state attorney general’s office) computer banks. I think it’s a big step. It extends by existing law liability for the illegal commerce of dangerous drugs,” Lee said.

Felony Murder Rule

The conviction that could put Philip Alviso behind bars for the rest of his life is rooted in a legal doctrine called the felony murder rule, which dates back to English common law.

According to the California Penal Code, first-degree murder is homicide that is deliberate and premeditated, and first-degree felony murder is a homicide that occurs during the commission of one of six specific felonies, including rape, robbery and burglary.

Second-degree felony murder, which is not set out in the penal code, is a homicide that results from the commission of any other felony inherently dangerous to human life.

This is the classic felony-murder scenario: A masked gunman robs a bank and forces all the bank’s customers to lie on the floor while he escapes. In the scramble, an elderly woman falls, hits her head and dies. Even though the gunman did not directly harm the victim, he could be convicted of murder because armed robbery is a dangerous felony that is inherently life-threatening.

“There’s a gap between the act you’ve done and the cause,” said Julian N. Eule, a UCLA law professor specializing in criminal and constitutional law. “It’s not like shooting someone or beating up on someone. This has another purpose. You have done one act, and the consequence is not the goal of your act.”

Stretching Doctrine

Stretching this doctrine to define the sale of a small amount of cocaine as conduct that constitutes murder is troublesome to Joan Howarth, an attorney affiliated with the American Civil Liberties Union.

“There’s a concept of elementary fairness that (says) we should all be held responsible for the intended consequences of our actions and for the likely consequences of our actions,” Howarth said. “When we start charging the most serious possible crime, translating a cocaine sale into a murder, the danger is you’re really stretching the meaning of the law way beyond its real meaning.”

One major problem with charging a drug supplier with murder when a customer dies of an overdose is that it ignores the fact that the drug is taken voluntarily in an amount that cannot be controlled by the supplier, said Alex Landon, president of California Attorneys for Criminal Justice.

“I have problems with going overboard,” Landon said. “We shouldn’t be handling crimes because of a series of articles or statements by politicians that we should be concerned about this particular item. We should be concerned about it all the time.”

Attorney’s Claim

Alviso’s attorney, Greg W. Jones, contends that his client is being used as an example.

“I think he 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 at the time of the conviction.

But Orange County Deputy Dist. Atty. Thomas J. Borris had no qualms about using Alviso’s conviction as “a message.”

“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,” Borris said. “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.”

Embraced Concept

Anti-drug campaigners across the country agreed with Borris and embraced the concept behind Alviso’s conviction.

“I think it’s a wonderful thing to do,” said Lee Dogoloff, executive director of the American Council for Drug Education. “People have seen this as a supposedly victimless crime. They’re selling people drugs that can kill them, and they’re doing this without any sense of accountability and responsibility.

”. . .Not only is the legal principle sound,” Dogoloff said, “but the social principle is also extremely sound.”

Joyce Nalepka, president of the National Federation of Parents for Drug-Free Youth, also endorsed the threat of strong consequences for drug-related crimes.

“It looks to me as though the intent of the law is clear and there was nothing improper here,” Nalepka said. “It may be that the courts themselves are realizing the need to be less lenient in drug-related cases. Plea bargaining can have a purpose, but if everyone keeps letting people go, we have a merry-go-round of putting people back on the streets.”

Strict Penalties

Last month, the President and Nancy Reagan appeared on national television in an unprecedented address aimed at escalating the war against drugs and pushing for harsher penalties in drug-related offenses.

During the 20-minute address, the President laid special emphasis on the responsibilities of individuals and volunteer organizations: “If your friend or neighbor or a family member has a drug or alcohol problem,” he said, “don’t turn the other way. Go to his help or hers. Get others involved with you . . . and provide support and strength.”

Interviewed that same day on NBC’s “Meet the Press,” Nancy Reagan said that the death penalty should be given to “anybody who is proven to be responsible for a death” and that drug pushers should get “the maximum of penalty.”

The Reagan Administration came down strongly on the side of strict penalties after the address. A bill to beef up enforcement of drug laws was sent to Congress the next day.

The bill contains a series of amendments to the Controlled Substances Act, including mandatory prison terms for large-scale drug traffickers in cases in which death results from someone using drugs supplied by the trafficker, according to a White House spokeswoman.

The House since has approved a measure that would give the President 30 days to deploy military equipment and personnel to halt smugglers at the borders and arrest them when in hot pursuit. The Senate Tuesday approved a more moderate measure.

Some states also are trying to strengthen their drug laws.

In Wisconsin, for example, John L. Merkt, a Republican state assemblyman, is promoting a bill that would provide for stiff penalties in cases of drug-overdose deaths.

First, if someone died directly as a result of the furnishing of heroin, opium, cocaine or designer drugs, the proposed law would allow the supplier to be tried for second-degree murder. Second, the person who sold or provided the drug to the victim’s supplier also could be convicted of the same crime, Merkt said.

Merkt said his effort is partly in response to the June 19 death of basketball star Len Bias. Although the Prince Georges County, Md., Grand Jury investigating Bias’ death indicted three of the athlete’s friends, the men were charged only with offenses such as distribution and possession of cocaine, said Detective James Weisman of the Maryland state attorney’s office.

“We feel that people should always connect three words in their minds--cocaine, murder and death,” Merkt said. “Those three words should go together, and this bill will bring that about.”