Of Drugs and Death: Prosecutors Raise the Ante : Cocaine Seller's Second-Degree Murder Conviction Sparks Debate

Times Staff Writer

The last thing Philip Alviso, 28, expected when he sold an eighth of an ounce of cocaine to his friend, Phillip Mikolajek, 22, 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 is just what happened.

Alviso, a Stanton mechanic and admitted drug dealer, sold Mikolajek the cocaine at noon Sept. 17, 1982. According to court testimony, the 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, witnesses told the court. 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 said the case will be appealed.

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 involve heroin.

And in most, the experts say, the alleged criminal conduct went beyond the mere sale of 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.

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

'It's a Big Step'

Gus Lee, a spokesman for the California District Attorneys Assn., said, "We know of no case similar to (that) one. . . . I think it's a big step. It extends by existing law liability for the illegal commerce of dangerous drugs."

Interpreting the law 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.

'Elementary Fairness'

"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."

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

"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 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."

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

'It's a Wonderful Thing'

"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."

Alviso's conviction came just three days after the President and Nancy Reagan appeared on national television in an address aimed at escalating the war against drugs and pushing for harsher penalties in drug-related offenses.

Interviewed that same day on NBC's "Meet the Press," Nancy Reagan said 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."

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