                                                                2014 WI 93

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:              2011AP1467-CR
COMPLETE TITLE:        State of Wisconsin,
                                 Plaintiff-Respondent-Petitioner,
                            v.
                       Donyil Leeiton Anderson, Sr.,
                                 Defendant-Appellant.

                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                           Reported at 350 Wis. 2d 505, 838 N.W.2d 136
                                  (Ct. App. 2013 – Unpublished)

OPINION FILED:         July 30, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         April 8, 2014

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Rock
   JUDGE:              James P. Daley

JUSTICES:
   CONCURRED:          PROSSER, J., concurs. (Opinion filed.)
   DISSENTED:          ABRAHAMSON, C.J., BRADLEY, J., dissent. (Opinion
                       filed.)
  NOT PARTICIPATING:


ATTORNEYS:
       For      the    plaintiff-respondent-petitioner,   the   cause   was
argued by Sally Wellman, assistant attorney general, with whom
on the briefs was J.B. Van Hollen, attorney general.




       For the defendant-appellant, there was a brief by William
E. Schmaal, assistant state public defender, and oral argument
by William E. Schmaal.
                                                                               2014 WI 93
                                                                       NOTICE
                                                       This opinion is subject to further
                                                       editing and modification.   The final
                                                       version will appear in the bound
                                                       volume of the official reports.
No.   2011AP1467-CR
(L.C. No.   2008CF2428)

STATE OF WISCONSIN                                :               IN SUPREME COURT

State of Wisconsin,

             Plaintiff-Respondent-Petitioner,
                                                                            FILED
      v.                                                               JUL 30, 2014
Donyil Leeiton Anderson, Sr.,                                             Diane M. Fremgen
                                                                       Clerk of Supreme Court
             Defendant-Appellant.




      REVIEW of a decision of the Court of Appeals.                       Reversed.



      ¶1     MICHAEL      J.   GABLEMAN,    J.    This       is    a     review      of    an

unpublished     decision       of   the   court   of     appeals1        reversing        the

judgment of the Rock County Circuit Court2 convicting Donyil L.

Anderson, Sr., of one count of first-degree intentional homicide

and one count of attempted first-degree intentional homicide.

      ¶2     The question presented in this case is whether the

circuit court erred in instructing the jury that "[a] temporary


      1
       State v. Anderson, No. 2011AP1467-CR, unpublished slip op.
(Wis. Ct. App. Aug. 15, 2013).
      2
          The Honorable James P. Daley presided.
                                                                          No.     2011AP1467-CR



mental state which is brought into existence by the voluntary

taking of drugs or alcohol does not constitute a mental defect."

The State and Anderson both argue that this jury instruction was

erroneous, but for different reasons.                    Anderson argues that the

jury instruction was erroneous because it failed to distinguish

between prescription medication and illegal drugs.                              As a result,

the   jury    was   prevented     from       considering        whether         his    use   of

Strattera,     a    prescription       medication       used        to    treat      Attention

Deficit Disorder, supported an insanity defense.                                The State's

position      is   that   the   jury    instruction           was    erroneous         because

Anderson's defense was premised on his reaction to the mixture

of alcohol and Strattera.              Therefore, the instruction used the

wrong conjunction by referring to "drugs or alcohol," rather

than "drugs and alcohol."              However, the State argues that any

error   was    harmless    because      as       a   matter    of        law,   an    insanity

defense cannot be premised on a mental state arising from the

voluntary use of drugs and alcohol.

      ¶3      We conclude that the circuit court's instruction to
the jury was an accurate statement of the law.                             This court has

never determined that consumption of prescription medication can

give rise to a mental defect that would sustain an insanity

defense.       We decline to craft a new affirmative defense that

would incorporate elements of the involuntary intoxication and

insanity      defenses     simply      because        Anderson           cannot      meet    the

requirements of the involuntary intoxication defense statute.

Moreover, even if the circuit court had instructed the jury that
the consumption of "drugs and alcohol" cannot create a mental
                                             2
                                                                       No.    2011AP1467-CR



defect, Anderson would fare no better, because it is established

law that one who mixes prescription medication with alcohol is

responsible     for    any     resulting         mental     state.     Accordingly,     we

reverse the decision of the court of appeals.

               I.     FACTUAL BACKGROUND AND PROCEDURAL HISTORY

      ¶4     This case centers around an incident that arose in the

early     morning    hours   of     August       9,   2008,     when    the    defendant,

Donyil L. Anderson, Sr. ("Anderson"), arrived at a residence he

had   previously      shared    with       his    then-girlfriend,           Stacey   Hosey

("Hosey"), with whom he had a one-year-old son.                         Upon arriving,

Anderson saw the car of Hosey's new boyfriend, Branden Beavers-

Jackson ("Beavers-Jackson").                Anderson removed the car stereo

from his own car and used it to smash the windows of Beavers-

Jackson's car.        Anderson then proceeded to kick in the back door

of Hosey's home and enter the residence.                        A neighbor witnessed

Anderson's entry and called the police.

      ¶5     Upon entering the residence, Anderson stabbed Hosey

multiple     times    with   various        kitchen       knives.3       Anderson     also
stabbed     Beavers-Jackson         five    times      in    the   abdomen      and   hip.

Shortly     thereafter,        as    Officer          Richard      LeFeber      ("Officer

      3
       The criminal complaint filed against Anderson specifies
that he inflicted "13 individual stab wounds to Hosey's back, a
large laceration across the front of Hosey's neck near her
throat and voice box area which was approximately 4" to 5" wide,
a puncture wound below Hosey's left breast, several laceration
and possible puncture wound [sic] to Hosey's left arm, spanning
from her shoulder area all the way down to her wrist, one
laceration to Hosey's right forearm which was approximately four
inches long and several lacerations on both Hosey's hands which
appeared to be defensive wounds."

                                             3
                                                                  No.    2011AP1467-CR



LeFeber") of the City of Beloit police department approached the

scene,     he    saw    Beavers-Jackson    standing    in     his    boxer     shorts,

covered in blood and waving frantically.                    Officer LeFeber also

found Hosey leaning against a nearby garage door, while Anderson

lay motionless in Hosey's driveway.               Officer LeFeber called to

Anderson, and Anderson stood up, held a four-inch kitchen knife

above his head, and walked towards Officer LeFeber, asking to be

killed.     Officer LeFeber ordered Anderson to drop the knife, but

Anderson continued to approach, and Officer LeFeber subdued him

with a Taser.

      ¶6        At the hospital, Anderson admitted to police that he

had   a    few    beers   before    the   incident    but    stated      he    was   not

intoxicated.           Anderson also explained that he had been taking

Strattera,       a   prescription    medication      used    to   treat       Attention

Deficit Disorder, for about two months, and it been making him

"real edgy."4

      ¶7        Beavers-Jackson     survived   his     injuries,        but    Hosey's

wounds proved fatal.           Anderson was charged with one count of
First-Degree         Intentional   Homicide    and    one    count      of    Attempted

First-Degree Intentional Homicide in violation of Wis. Stat. §§

940.01(1)(a) and 939.32 (2007-08).5




      4
       During the trial, a psychologist for Anderson's counseling
center testified that Anderson was prescribed 80 milligrams of
Strattera, to be taken once per day.
      5
       All subsequent references to the Wisconsin Statutes are to
the 2007-08 version unless otherwise indicated.

                                          4
                                                                        No.    2011AP1467-CR



      ¶8    At trial, the State presented its case-in-chief, and

Anderson then entered an Alford plea on both counts.6                               Anderson

argued that he was not guilty by reason of insanity due to a

mental disease or defect under Wis. Stat. § 971.15.                              During the

insanity phase of the trial, Anderson called an expert witness,

Dr. Hugh Johnston ("Dr. Johnston").                   Dr. Johnston testified that

he believed Anderson suffered a temporary mental defect at the

time of the homicide that made him unable to control himself or

conform    his    conduct     to    the    requirements           of    the   law.         This

condition,       according     to        Dr.       Johnston,      was     caused         by    a

combination of four factors: (1) a lifelong impairment of the

ability    to     exert     self-control             in     emotionally       provocative

situations;      (2)    a   major        depressive         disorder      that      was       not

appropriately      treated;        (3)    the      impact    of   Strattera         on    brain

functioning; and (4) Anderson's ingestion of alcohol.7                                        Dr.

Johnston     explained        that,        while          all     of     these       factors

simultaneously played a role in Anderson's behavior, he believed

if   Anderson     had   not    been       taking      Strattera,        it    was    "highly


      6
       "An Alford plea is a guilty plea in which the defendant
pleads guilty while either maintaining his innocence or not
admitting having committed the crime."   State v. Garcia, 192
Wis. 2d 845, 856, 532 N.W.2d 111 (1995).
      7
       Dr. Johnston's written report recited the results of a
blood alcohol test taken by hospital staff following the
homicide as 0.176.   However, at trial, Dr. Johnston testified
that Anderson's blood alcohol concentration was 0.0176.      It
appears Dr. Johnston misspoke during trial, given that a later
blood sample of Anderson revealed a blood alcohol concentration
of 0.150——well above the 0.08 legal limit for driving in
Wisconsin.

                                               5
                                                                          No.     2011AP1467-CR



unlikely    that       Ms.    Hosey     would       have    been     killed."            In    Dr.

Johnston's opinion, Anderson's use of Strattera played "a very

important role" in the incident.

    ¶9      Dr. Johnston also described the half life of Strattera

and explained that in most cases, a blood test administered

twenty hours after consumption of Strattera would likely show no

detectable       traces      of   the       medication.        Dr.       Johnston       further

concluded       that    Anderson's          ability    to    distinguish          right       from

wrong was not impaired by his "abnormal mental state" at the

time of the homicide.

    ¶10     The State called its own expert witness during the

trial, Dr. Christopher Tyre ("Dr. Tyre").                          Dr. Tyre opined that

Anderson    had    an     antisocial         personality       disorder          but    did    not

suffer from a mental disease or defect due to a major depressive

disorder    or     ingestion       of       alcohol    and    Strattera.               Dr.    Tyre

concluded that at the time of the incident, Anderson was able to

conform     his    conduct        to    the        requirements       of     the       law    and

appreciate the wrongfulness of his behavior.
    ¶11     The State also called a toxicologist who examined the

blood    test     administered         to    Anderson       when    he     was    taken       into

custody.     The toxicologist testified that the post-crime blood

test administered to Anderson showed no detectable levels of

Strattera in his blood.

    ¶12     In addition, the State presented evidence that shortly

before    Anderson's         arrival    at     Hosey's       residence,          he    had    been

arrested for striking someone in a bar.                        The arresting officer


                                               6
                                                                 No.    2011AP1467-CR



charged Anderson with battery but then released him because he

did not appear to be intoxicated.

      ¶13    At     the   close    of    evidence,      a      jury    instructions

conference was held, during which counsel discussed a modified

version of a proposed pattern jury instruction indicating that

the   voluntary       consumption       of     drugs   or   alcohol      does    not

constitute     a    mental   defect.          Anderson's    counsel      asked    the

circuit     court    to   insert   the       word   "street"    before    the    word

"drugs."      Instead, the circuit court instructed the jury as

follows:

      The first question is at the time the crime was
      committed, did the defendant have a mental defect?
      Mental defect is an abnormal condition of the mind
      which   substantially   affects  mental   or   emotional
      processes.    The term "mental defect" identifies a
      legal standard that may not exactly match the medical
      terms used by mental health professionals.      You are
      not   bound   by   medical   labels,   definitions,   or
      conclusions as to what is or is not a mental defect to
      which the witnesses may have referred.

      You should not find that a person is suffering from a
      mental defect merely because the person committed an
      act, committed a criminal act or because of the
      unnaturalness or enormity of the act or because a
      motive for the act may be lacking. Temporary passion
      or frenzy prompted by revenge, hatred, jealousy, envy,
      or the like does not constitute a mental defect. . . .
      An abnormally, an abnormality [sic] manifested only by
      repeated criminal or otherwise antisocial conduct does
      not constitute a mental defect.    A temporary mental
      state which is brought into existence by the voluntary
      taking of drugs or alcohol does not constitute a
      mental defect.




                                         7
                                                                        No.    2011AP1467-CR



(Emphasis added).                 The jury found that Anderson did not have a

mental defect at the time the crime was committed, and Anderson

was therefore convicted.

       ¶14    In an unpublished, per curiam opinion, the court of

appeals reversed and remanded to the circuit court for a new

trial on Anderson's insanity defense.                        The court concluded that

the real controversy in Anderson's case was not                                fully tried

because      the       jury    instruction      incorrectly       suggested         that    the

consumption of prescription medication is voluntary and cannot

give   rise       to    a     mental   defect.         According       to   the     court   of

appeals,      the      instruction         prevented     the    jury    from      addressing

whether Anderson's use of Strattera created a mental defect that

made him unable to conform his conduct to the requirements of

the law.

       ¶15    The State petitioned this court for review, which we

accepted on January 13, 2014.                  We now reverse.

                                     II.     STANDARD OF REVIEW

       ¶16    "'A       circuit      court    has    broad     discretion      in   deciding
whether      to    give       a    requested    jury     instruction.'"             State    v.

Hubbard, 2008 WI 92, ¶28, 313 Wis. 2d 1, 752 N.W.2d 839 (citing

State v. Coleman, 206 Wis. 2d 199, 212, 556 N.W.2d 701 (1996)).

We will not overturn a circuit court's decision to give or not

give a requested jury instruction absent an erroneous exercise

of discretion.           Id.       "However, we independently review whether a

jury instruction is an accurate statement of the law applicable

to the facts of a given case."                      State v. Fonte, 2005 WI 77, ¶9,
281 Wis. 2d 654, 698 N.W.2d 594 (citation omitted).                                 "'If the
                                                8
                                                                    No.    2011AP1467-CR



overall meaning communicated by the instructions was a correct

statement of the law, no grounds for reversal exist.'"                          Hubbard,

313 Wis. 2d 1, ¶27 (citing Fischer v. Ganju, 168 Wis. 2d 834,

850, 485 N.W.2d 10 (1992)).

                                     III. DISCUSSION

      ¶17    The question before us is whether the circuit court's

instruction to the jury that "[a] temporary mental state which

is brought into existence by the voluntary taking of drugs or

alcohol     does   not    constitute     a       mental   defect"    was   erroneous.

Anderson argues that the jury instruction failed to distinguish

between     the    use   of   prescription         medication    and      the    use   of

illegal drugs, and as a result, the jury was prevented from

considering whether Anderson's use of Strattera could give rise

to a mental defect.           Anderson relies on State v. Gardner, 230

Wis. 2d 32, 601 N.W.2d 670 (Ct. App. 1999), for the proposition

that the consumption of prescription drugs is not "voluntary"

for   purposes      of   an   insanity       defense.        Gardner      involved     an

involuntary intoxication defense under Wis. Stat. § 939.42, as
opposed to an insanity defense under Wis. Stat. § 971.15, but

Anderson maintains that the rationale applies equally to both

defenses.

      ¶18    The State concedes that the jury instruction was "not

legally correct" because Anderson's defense was premised on his

consumption        of    Strattera     and        alcohol,    whereas       the    jury

instruction discussed the taking of drugs or alcohol.                        According

to the State, an insanity defense would not be precluded by a
defendant's consumption of prescription medication alone, but
                                             9
                                                                No.   2011AP1467-CR



the   defense       is   unavailable        if    the     defendant   mixes    the

prescription medication with alcohol.               However, the State argues

that any error in the instruction was harmless, because even if

the instruction had used "and" instead of "or," Anderson would

still be ineligible for an insanity defense, because he admits

he voluntarily consumed alcohol while taking Strattera.

      ¶19   Although the State concedes that the jury instruction

was incorrect, we are not bound by a party's concession of law.

Bergmann v. McCaughtry, 211 Wis. 2d 1, 7, 564 N.W.2d 712 (1997).

Moreover, we independently review whether a jury instruction is

an accurate statement of the law.                 Fonte, 281 Wis. 2d 654, ¶9.

The State and Anderson both maintain that the jury instruction

was erroneous, but as we discuss below, nothing in our case law

supports the proposition that the consumption of prescription

medication    may    form     the   basis   for    an   insanity   defense.     We

therefore hold that the circuit court's jury instruction was a

proper articulation of the law.

      ¶20   We begin our discussion in Part A by reviewing the
statutory and procedural requirements under Wis. Stat. § 971.15,

the   insanity      defense    statute,     and    Wis.    Stat.   § 939.42,   the

involuntary intoxication defense statute.                  In Part B, we apply

these requirements to the facts of this case and conclude that

the circuit court's insanity defense instruction was an accurate

statement of the law.

             A. Insanity and Involuntary Intoxication Defenses

      ¶21    A criminal defendant may raise an affirmative defense
of not guilty by reason of mental disease or defect, also known
                                        10
                                                             No.     2011AP1467-CR



as an "insanity" or "NGI" defense.                Wis. Stat. § 971.15.            The

defendant bears the burden of establishing the defense "to a

reasonable    certainty     by   the   greater      weight   of    the    credible

evidence."    Wis. Stat. § 971.15(3).          Wisconsin Stat. § 971.15(1)

provides that the defendant may establish an insanity defense by

demonstrating that he lacked substantial capacity either to (1)

appreciate the wrongfulness of his conduct, or (2) conform his

conduct to the requirements of the law.

    ¶22     In contrast to an insanity defense under Wis. Stat.

§ 971.15, an involuntary intoxication defense is established if

a defendant's intoxicated or drugged condition is involuntarily

produced and either: (1) "Renders the [defendant] incapable of

distinguishing between right and wrong;" or (2) "[n]egatives the

existence of a state of mind essential to the crime."                            Wis.

Stat. § 939.42.

    ¶23     An insanity defense under Wis. Stat. § 971.15 has been

described    as   "coextensive"    with     the     involuntary     intoxication

defense in Wis. Stat. § 939.42, although each contains distinct
elements.     See Gardner, 230 Wis. 2d at 38.                For instance, a

defendant capable of distinguishing between right and wrong may

not assert an involuntary intoxication defense but may still be

able to raise an insanity defense.

    ¶24     Beyond   the    defenses'       distinct    elements,        each    has

unique    procedural       requirements      that      correspond        to     their

respective substantive purposes.            For instance, when an insanity

defense is asserted, the trial is bifurcated into two phases: a
"guilt" phase and a "responsibility" or "insanity" phase.                        Wis.
                                       11
                                                               No.     2011AP1467-CR



Stat. § 971.165(1); State v. Langenbach, 2001 WI App 222, ¶16,

247 Wis. 2d 933, 634 N.W.2d 916.              During the guilt phase of the

trial, the State must prove all the elements of the offense

beyond a reasonable doubt.             State v. Randall, 192 Wis. 2d 800,

809, 532 N.W.2d 94 (1995).              If the insanity defense succeeds,

the defendant will be found "not responsible" for the criminal

conduct, but is still subject to commitment and treatment.                       See

Wis. Stat. §§ 971.15, 971.17.

      ¶25    In contrast, an involuntary intoxication defense does

not   result    in   a    bifurcated    trial;     rather,   the     entire    trial

consists of a "guilt" phase, at the end of which a prevailing

defendant is found "not guilty" due to involuntary intoxication.

See Christine M. Wiseman & Michael Tobin, 9 Wisconsin Practice

Series: Criminal Practice and Procedure § 17.25 (2d ed.) ("If

the [involuntary intoxication] defense is successfully applied,

the result will be an acquittal on the charge . . . .").

                B. The Circuit Court's Instruction to the Jury

      ¶26    The jury instruction at issue in this case explained
that "[a] temporary mental state which is brought into existence

by the voluntary taking of drugs or alcohol does not constitute

a mental defect."          Anderson stresses that the instruction failed

to    distinguish        between    prescription     medication      and   illegal

drugs.      As a result, Anderson argues the jury was prevented from

considering whether his use of Strattera, in conjunction with

his consumption of a moderate amount of alcohol, supported an

insanity      defense.        The    State    does   not     dispute    that    the


                                         12
                                                                         No.     2011AP1467-CR



instruction was erroneous, but instead takes the position that

any resulting error was harmless.

      ¶27       We disagree with both parties regarding the accuracy

of   the    jury    instruction.8            This      court     has     never    held      that

consumption of prescription medication may give rise to a mental

defect that would sustain an insanity defense, and Anderson has

failed     to    cite    to   any     Wisconsin       case      law    that    supports     the

conclusion that it does.                  The jury instruction was an accurate

recital of the law.            We have never distinguished between the use

of   prescription         drugs     and    the      use    of   illegal       drugs    in   the

context of an insanity defense, and see no reason to do so now.

Anderson's        attempt      to     shoehorn        an     involuntary       intoxication

defense     under       the   insanity      statute,         Wis.     Stat.    § 971.15,      is

essentially nothing more than a policy argument that is wholly

unsupported by our case law.

      ¶28       In general, when a defendant argues that prescription

medication       contributed         to    criminal         conduct,     the     defense     is

raised under the involuntary intoxication statute, Wis. Stat.
§ 939.42.          However,         Anderson        cannot      assert    an     involuntary

intoxication       defense      because      his      own    expert      witness      concedes

that he was capable of distinguishing right from wrong at the

time of the crime.             See Wis. Stat. § 939.42(1).                     Consequently,

Anderson is stuck with raising an insanity defense, which is not

      8
       Because we conclude that the circuit court's instruction
to the jury was an accurate recital of the law, we need not
address the State's argument that the court of appeals
erroneously exercised its discretion in granting a new trial
under Wis. Stat. § 752.35.

                                               13
                                                                     No.     2011AP1467-CR



precluded by his expert's testimony.                  To succeed on his defense,

Anderson must invoke the second prong of the insanity defense,

which asks whether he was able to conform his conduct to the

requirements of the law.9          As explained above, this latter prong

is   available      only   as    an   insanity        defense       and    not    as    an

involuntary intoxication defense.

     ¶29    Anderson argues his use of Strattera should be able to

form the basis of his insanity defense.                         Anderson correctly

points out that in Gardner, the court of appeals determined that

the use of prescription medication can form the basis of an

involuntary       intoxication    defense       under        Wis.    Stat.     § 939.42.

Gardner, 230 Wis. 2d at 40.           However, Anderson ignores the fact

that this holding has never been extended to an insanity defense

raised under Wis. Stat. § 971.15.               The involuntary intoxication

defense focuses on the mental state of the defendant at the time

of the crime and provides clear-cut requirements for the level

of intoxication necessary to invoke the defense.                       See Wiseman &

Tobin, supra ¶25 ("The defendant's intoxicated mental state is a
defense     only     if    it    rendered       him     or     her     incapable        of

distinguishing       between     right    and     wrong        when    the      act     was

committed.").        In State v. Strege, 116 Wis. 2d 477, 486, 343

N.W.2d    100    (1984),   we    explained      that     a    defendant       raising    a

voluntary       intoxication    defense       "must    come     forward       with     some

     9
       Much like the involuntary intoxication defense, the first
prong of the insanity defense asks whether the defendant was
able to appreciate the wrongfulness of his conduct.          The
testimony of Anderson's expert precludes him from raising a
defense under this prong.

                                         14
                                                                  No.     2011AP1467-CR



evidence of the degree of intoxication which constitutes the

defense. An abundance of evidence which does not meet the legal

standard for the defense will not suffice."                     This rationale was

applied to an involuntary intoxication defense in Funmaker v.

Litscher, No. 00-C-625-C, 2001 WL 34377571, at *5 (W.D. Wis.

Sept. 20, 2001).

      ¶30    Because Anderson cannot demonstrate that he possessed

the   requisite         mental   state     for   an    involuntary       intoxication

defense, he attempts to bypass the defense's requirements by

framing     his    argument      as   an   insanity        defense.      In    essence,

Anderson asks us to create a new affirmative defense that would

absolve a defendant whose use of prescription medication makes

him unable to conform his conduct to the requirements of the

law.10

      ¶31    At the same time, Anderson's argument would require us

to    ignore      our    existing     precedent       by    holding     that   a   jury

instruction that provided for no such defense was in error.                          In

other words, Anderson asks us to change the law and make this
change retroactively apply to the time when the circuit court

      10
       In fact, Anderson asks us to do even more. In spite of
Gardner's caveat that the use of prescription medication will
not give rise to an involuntary intoxication defense when the
defendant "mixes a prescription medication with alcohol or other
controlled substances," Anderson asserts that only "excessive"
consumption of alcohol, as opposed to "moderate" drinking,
should prevent a defendant from raising an insanity defense.
State v. Gardner, 230 Wis. 2d 32, 42, 601 N.W.2d 670 (Ct. App.
1999). Anderson does not explain how "moderate," as opposed to
"excessive," drinking should be gauged by this court, but as he
provides no support for his proposed rule, the omission is of no
consequence.

                                           15
                                                                No.        2011AP1467-CR



issued its jury instruction.              We decline to undertake such a

gross overreaching of our judicial mandate.11

      ¶32      The circuit court properly declined to amend the jury

instruction        to   include     an   implied      involuntary     intoxication

defense.      However, we note that even if the law provided for an

insanity defense arising from a defendant's use of prescription

medication, it would have been inappropriate for the circuit

court to instruct the jury that consumption of Strattera could

create a mental defect under the facts of this case.                        The basis

of Anderson's insanity defense was not his use of Strattera

alone; rather, he argued that the drug, in combination with

three      other   factors——including         his    consumption      of     alcohol——

created a mental defect.

      ¶33     The State maintains that the circuit court erred by

instructing the jury regarding the effects of drugs or alcohol,

rather     than    drugs    and    alcohol.         The   State's   proposed       jury

instruction would read as follows: "[a] temporary mental state

which is brought into existence by the voluntary taking of drugs
and   alcohol      does    not    constitute   a     mental   defect."         Because

Anderson's argument is founded in part on his consumption of


      11
       We do not suggest that a defendant who takes prescription
medication as directed is barred from raising an insanity
defense.    The circuit court instructed the jury that "[a]
temporary mental state which is brought into existence by the
voluntary taking of drugs or alcohol does not constitute a
mental defect."   (Emphasis added).   This instruction explained
that use of prescription medication cannot create a mental
defect, but it in no way precludes a defendant from asserting an
insanity defense on other grounds.

                                         16
                                                           No.    2011AP1467-CR



alcohol along with Strattera, it is unquestionable that he would

not prevail on his insanity defense regardless of whether the

circuit    court's   instruction   had     used   the   term    "and   alcohol"

instead of "or alcohol."       Assuming arguendo that the rationale

in Gardner——which holds prescription drugs can form the basis of

an involuntary intoxication defense——is also applicable to an

insanity defense, any limitations to that defense would apply

with equal force to this case.             And, as the court of appeals

explained in Gardner, one who "mixes a prescription medication

with alcohol or other controlled substances" is not eligible for

the involuntary intoxication defense.12             Gardner, 230 Wis. 2d at

42; see also City of Waukesha v. Godfrey, 41 Wis. 2d 401, 406,

164 N.W.2d 314 (1969).

     ¶34    Gardner's reasoning is in keeping with the generally

accepted principle that an individual is responsible for the

consequences   that   result   from    voluntary      consumption      of   mind-

altering substances.     For instance, in State v. Kolisnitschenko,

84 Wis. 2d 492, 499, 503, 267 N.W.2d 321 (1978), we explained
that an insanity defense cannot be premised on the interaction

between    alcohol    and   illegal        drugs,     because     "[o]ne      who


     12
       Gardner also explained that the involuntary intoxication
defense is available only to a defendant who takes his
prescription medication as ordered. Gardner, 230 Wis. 2d at 42.
As the State points out, Anderson did not testify that he took
his Strattera as prescribed, and at the time of the crime, there
was no trace of Strattera in his bloodstream. Anderson's friend
testified at trial that he had once observed Anderson taking an
unidentified medication three times a week, but the Strattera
was prescribed as a daily medication.

                                      17
                                                                              No.       2011AP1467-CR



intentionally consumes drugs should be held to have intended all

the consequences of the resulting intoxicated condition," since

"individual      volition        played       a     major     part      in     producing         that

condition."        In Gardner, we extended this rationale to cases

involving      the      interaction          between        alcohol          and       prescription

medications.

       ¶35    Anderson's         claim         shares         similarities              with        the

defendant's argument in Godfrey, 41 Wis. 2d 401.                                       In Godfrey,

the defendant consumed prescription codeine and alcohol and was

charged with driving while intoxicated.                          The defendant contested

the    circuit         court's        jury     instruction             that        a    driver      is

intoxicated "when his ability to operate a motor vehicle is

appreciably or materially impaired because of his consumption of

an     alcoholic        beverage        or        other     intoxicating                substance."

Godfrey, 41 Wis. 2d at 405 (emphasis added).                                   Godfrey argued

that    the   instruction         confused         the    jury        regarding         whether     to

consider his codeine consumption and its effect when mixed with

alcohol.      We disagreed, explaining: "We fail to see how these
assertions could favorably affect the plight of the unfortunate

defendant.         A    person    who        consumes       an    intoxicant            along    with

medication,      does     so     at    his    own      peril."          Id.    at       406.        Our

reasoning     in       Godfrey    equally         applies        in    the     context         of    an

insanity      defense.            The        established              rule     from        Gardner,

Kolisnitschenko,          and    Godfrey          is   that      one    who        mixes    drugs——

prescription or otherwise——with alcohol does so at his or her

own risk and is responsible for any consequences that result.


                                               18
                                                                    No.   2011AP1467-CR



                                   IV.     CONCLUSION

    ¶36     We conclude that the circuit court's instruction to

the jury was an accurate statement of the law.                        We have never

held that consumption of prescription medication can give rise

to a mental defect that would sustain an insanity defense.                            We

decline     to   craft    a   new     affirmative           defense       that     would

incorporate      elements     of    the        involuntary      intoxication         and

insanity    defenses     simply     because          Anderson    cannot     meet     the

requirements of the involuntary intoxication defense statute.

Moreover, even if the circuit court had instructed the jury that

the consumption of "drugs and alcohol" cannot create a mental

defect, Anderson would fare no better, because it is established

law that one who mixes prescription medication with alcohol is

responsible for any resulting mental state.                     For these reasons,

the decision of the court of appeals is reversed.

    By     the   Court.—The    decision         of    the   court    of   appeals     is

reversed.




                                          19
                                                          No.    2011AP1467-CR.dtp




    ¶37       DAVID T. PROSSER, J.            (concurring).      The defendant

admitted to police that he had a few beers before he killed

Stacey Hosey and stabbed Branden Beavers-Jackson.                 Majority op.,

¶¶5-7.        Two blood tests taken after the homicide showed his

blood alcohol concentration to be at least 0.15.                  Id., ¶8 n.7.

Anderson did not consume alcohol involuntarily.                   Consequently,

Anderson's      claim   of    a   temporary    mental    state    brought    into

existence by the voluntary taking of a prescription drug could

not prevail unless Anderson alleged and proved that his drinking

had no effect on his allegedly drug-induced mental state.                       His

own expert testified otherwise.                Id., ¶8.       Accordingly, any

error    in    the   jury    instruction    would   be    harmless     beyond    a

reasonable doubt.

    ¶38       For the foregoing reasons, I respectfully concur.




                                        1
                                                              No.    2011AP1467-CR.ssa


      ¶39     SHIRLEY S. ABRAHAMSON, C.J.                (dissenting).       I agree

with the court of appeals that the jury instruction incorrectly

conveyed      to    the     jury     that   the      voluntary      consumption     of

prescription medication cannot give rise to a defense of not

guilty by reason of insanity (NGI).1

      ¶40     I disagree with the majority opinion's creation of a

new rule that            the effects of         prescription medicines       used as

directed can never be the basis of an NGI defense.2

      ¶41     I start with the statutes, the one governing NGI and

the   other    governing       involuntary        intoxication.       The    two   are

closely related.           They have distinctive features but also share

certain legal similarities; violation of each might be proven by

similar facts.3

      ¶42     The    NGI     statute    provides      that    a     person   is    not

responsible        for    criminal     conduct     if,   at   the    time    of    such


      1
       The case raises numerous issues, including preservation of
objections in the circuit court and the power of the court of
appeals under Wis. Stat. § 752.35 to grant a new trial.       The
court of appeals' per curiam opinion addressed several of them.
I address only the issue of the instruction.

     The legal concept of "voluntary intoxication" is not at
issue here.    Voluntary intoxication cannot form the basis of
NGI.   State v. Kolisnitschenko, 84 Wis. 2d 492, 495, 503, 267
N.W.2d 321 (1978).    Yet simply because a defendant's use of
prescription drugs as directed is "voluntary" in common parlance
does not mean that it causes "voluntary intoxication" as a legal
concept.
      2
          Majority op., ¶29-32.
      3
       See State v. Gardner, 230 Wis. 2d 32, 38, 601 N.W.2d 670
(1999) (citing Wis JI——Criminal 755, cmt for the proposition
that    "[t]he   involuntary    intoxication    standard . . . is
coextensive with the mental responsibility test").

                                            1
                                                                   No.    2011AP1467-CR.ssa


conduct, as a result of mental disease or defect, the person

lacked the capacity either to appreciate the wrongfulness of his

or her conduct or conform to the requirements of the law.                                  Wis.

Stat. § 971.15(1).

       ¶43    The    involuntary        intoxication        or     drugged           condition

defense provides that a person is not responsible for criminal

conduct if, at the time the act is committed, the intoxicated or

drugged      condition      is   involuntarily          produced       and     renders       the

actor incapable of distinguishing between right and wrong in

regard to the alleged criminal act.                 Wis. Stat. § 939.42(1).

       ¶44    A    person    who    attempts       to    rely     on     an     involuntary

intoxication defense under Wis. Stat. § 939.42 can often meet

the standard of possessing a "mental disease or defect" under

Wis.       Stat.    § 971.15.       "[I]n       regard     to      the       effect        which

involuntary intoxication must produce in order to be considered

a   defense,       the   same    test    applies    as    in     the     case    of     mental

disease or deficiency as a defense."                       State v. Gardner, 230

Wis. 2d 32, 38, 601 N.W.2d 670 (Ct. App. 1999) (emphasis added,
quoted source omitted).             In sum, the facts giving rise to an

involuntary         intoxication        defense    can     also        support        an    NGI

defense.

       ¶45    An involuntary intoxication defense can be based on

prescription        medicine,      when    used     as    directed        by     a    medical

professional.4           The majority opinion accepts this premise.                          "It




       4
           Majority op., ¶29 (citing Gardner).

                                            2
                                                                             No.   2011AP1467-CR.ssa


is clear that the effects of prescription medication can form

the basis of an involuntary intoxication defense."5

       ¶46       In contrast, according to the majority opinion, under

no     circumstances             may    prescription          medicine,            when        used   as

directed         by   a    medical      professional,         be       the    basis       of    an    NGI

defense.

       ¶47       I disagree with the majority opinion.                              I agree with

both       parties        in   the      instant       case    that       based       on    Gardner,6

Kolisnitschenko,7 and Gibson,8 a temporary mental state that is

brought into existence by the taking of a prescription medicine

as directed can qualify as a mental defect for purposes of an

NGI defense.

       ¶48       I reach this conclusion not only on the basis of these

specific cases but also on the basis of the underlying statutes,

which      demonstrate           that    the    defenses          of    NGI    and    involuntary

intoxication are closely related in the law.                                  If the effects of

prescription medicines used as directed can form the basis of

involuntary intoxication, why cannot the effects of prescription
medicines used as directed form the basis of an NGI defense,

when the two defenses overlap?                         Why does the majority opinion

create       a    new      per    se     rule     that       is    inconsistent            with       the




       5
           Gardner, 230 Wis. 2d at 40, 41-42.
       6
           Gardner, 230 Wis. 2d 32.
       7
           Kolisnitschenko, 84 Wis. 2d 492.
       8
           Gibson v. State, 55 Wis. 2d 110, 197 N.W.2d 813 (1972).

                                                  3
                                                                   No.    2011AP1467-CR.ssa


overlapping      aspects   of    the    NGI      and    involuntary           intoxication

defenses?9

     ¶49     I   am    unpersuaded      by       the   majority          opinion,     which

reaches what on its face appears to be a conclusion contrary to

the statutes and case law.

     ¶50     In any event, the real dispute between the parties

focuses    on    whether   the    defendant's          use    of     a   combination     of

prescription drugs and alcohol may constitute the basis of an

NGI defense.          The State urges that a temporary mental state

brought into existence by the voluntary taking of prescribed

medicine as directed in combination with alcohol (no matter how

small an amount) cannot be the basis of an NGI defense.

     ¶51     The majority opinion need not grapple with this issue

because it holds that a defendant who consumes only prescription

drugs is not eligible for an NGI defense.                          Under the majority

opinion,     whether     the    defendant        consumed      alcoholic         beverages

along with the prescription medication is irrelevant.

     ¶52     Because    the    majority         opinion      fails       to   provide   any
reason why the use of prescription drugs as directed cannot form

the basis of an NGI defense when our case law already recognizes

that such use can form the basis of an involuntary intoxication

defense, I dissent.

     ¶53     I   am    authorized      to    state      that       Justice      ANN   WALSH

BRADLEY joins this dissent.




     9
         Majority op., ¶29.

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    No.   2011AP1467-CR.ssa




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