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Lawyers argue: When shared drug kills, is it murder?

Hillsborough County prosecutors used a law to charge five people who shared or sold deadly drugs with first-degree murder last year.

Amy Wytiaz did not plan for Ismael Quinones to die of a heroin overdose.

She did not spike the drugs they shared at her Tampa apartment in September or force him to snort them. She simply gave him a small $40 packet of heroin, authorities said.

In the eyes of the law, Wytiaz might as well have shot him in the head.

In Florida, anyone 18 or older who distributes a dose of certain drugs to someone who later dies can be charged with first-degree murder. That includes injecting the drugs, selling them or simply handing them to the victim.

Prosecutors and drug-control advocates see the seldom-used law as a deterrent and a way to stem the increase in heroin-related deaths around the state. Users and dealers might think twice if they know the harsh punishment that awaits, prosecutors say.

Many of the defendants _ often addicts who are friends of the victims, rather than drug dealers _ are stunned to find themselves facing life sentences. Their attorneys question whether the punishment fits the crime and wonder whether the Legislature intended the law for cases in which friends give each other drugs.

On one thing they agree: As the number of drug-related deaths climbs, so does the use of the law.

"It's up to the Legislature to change it or the appeals court to strike it down," said Danny Tumarkin, chief Osceola assistant public defender. "Barring that, you could be seeing only the beginning of the tide."

The revision to the Florida statutes was one of dozens included in a lengthy bill introduced during a 1972 special legislative session. The revision allowed prosecutors to charge adult defendants with first-degree murder if they distributed heroin to someone who died as a result of taking the drugs.

In 1976, lawmakers expanded the category to include most forms of opium. In the years since, lawmakers added cocaine and several lesser-known drugs such as ecstasy to the statute.

After a few initial cases in the 1970s, prosecutors rarely used the law. They dusted it off about five years ago as heroin deaths rose dramatically in Florida, especially in the Orlando and Miami areas. Statewide, deaths from heroin more than doubled between 1993 and 1994 and have continued to increase.

Prosecutors filed charges in at least 20 cases.

The initial wave of cases included:

+ A 21-year-old Tampa man charged in 1994 with first-degree murder for selling ecstasy to a man who later gave it to a woman who died in Orlando.

+ A Sanford man charged in 1997 with providing heroin to his roommate, who overdosed and died.

+ A 20-year-old woman accused in the 1997 death of an addict who overdosed on heroin in a Kissimmee hotel room.

As the number of drug deaths rose, Orange-Osceola State Attorney Lawson Lamar had little tolerance and even less sympathy for the defendants accused of supplying the drugs.

"If we can't educate the consumers not to kill themselves, perhaps we can convince the people who profit from (a heroin) sale that we will pursue convictions on first-degree murder with only one of two results _ death in the electric chair or life in prison without parole," he said in 1996.

Hillsborough prosecutors last year used the law to charge five people, including Wytiaz, with first-degree murder. Sheriff's spokesman Sgt. Rod Reder said an increase in heroin deaths in the county _ from one in 1995 to an estimated 22 last year _ prompted them to take a look at the law.

"We are committed to investigating where the drugs came from in every heroin death," Reder said. "The Legislature gave us the tool and we will use it."

Pinellas County had less than half as many heroin deaths last year as Hillsborough, which might explain why prosecutors there have not used the law in recent memory, said Chief Pinellas Assistant State Attorney Bruce Bartlett.

"Would we use it? Absolutely," he said. "The law is clear."

Making arrests could be easy compared with winning a conviction at trial.

In most murder cases, someone beats, shoots or stabs someone to death; the victim plays little part in the crime other than being there. The killing must be planned or done while committing another serious crime to be considered first-degree murder.

In cases like Wytiaz's, the defendants did not plan to kill anyone. The victims also took the drugs of their own free will. Those are facts not easily ignored by jurors, especially if it means putting someone in prison for the rest of his or her life.

"Juries don't often buy a first-degree murder charge unless they feel the defendant is entirely to blame," said Hillsborough County Assistant Public Defender John Skye. "The victims took the drugs themselves. It could easily be viewed as a self-inflicted death."

It's also difficult for prosecutors to prove that drugs a defendant distributed were the ones that killed the victim. In a common defense tactic, Wytiaz's attorney, Lyann Goudie, argued at a recent hearing that Quinones, a drug addict, could have snorted or injected heroin obtained from someone else in the hours leading up to his death.

Most of the cases outside Hillsborough were pleaded down to lesser charges, such as manslaughter. Some defendants received time in prison, but nowhere near a life term.

The Tampa man who provided ecstasy to the woman he never met pleaded guilty to manslaughter and received a seven-year sentence. The Sanford man who gave heroin to his roommate received probation and community service. In the case of the Kissimmee woman, the judge said he could not senselessly destroy a life by sentencing her to prison. After she pleaded guilty to manslaughter, he gave her house arrest and four years of probation.

The plea deals had defense attorneys wondering whether prosecutors used the murder charge as a hammer to hold over the defendants' heads.

"The prospect of life in prison is tough to risk no matter what the circumstances of your case," public defender Tumarkin said.

Many of the defendants charged so far were friends or at least acquaintances of the victims, not hard-core drug dealers. They shared drugs or sold small amounts to one another. Several of the defendants, including Wytiaz, had no prior drug arrests. Some tried to help revive the victims after they overdosed and before paramedics arrived.

"It's a tragically misapplied statute," said Fred Haddad, who represented a man charged in Broward County. "The statute has good intent but was never meant for friends who exchange minor amounts of drugs. It's meant for drug dealers."

Some defense attorneys go a step further, calling the law draconian and much too severe regardless of its intent. Goudie argued that it would be like charging everyone who sells drugs to people who don't die with attempted first-degree murder.

"It's only by the grace of God that the person they sold to . . . is not dead," she said. "It's an idiotic statute."

The law may be extreme, but so too is Florida's drug problem, said Tim Bottcher, spokesman for the state's Office of Drug Control. To fight back, law enforcement needs tough laws that will make people think twice about getting started with drugs. He added that the law makes no distinction between veteran dealers and other people who distribute drugs. It's not the job of law enforcement to second-guess what the Legislature intended, he said.

"We all eventually get fed up when enough people die from this stuff," he said. "We encourage the use of the law and will continue to do so."

Ken Padowitz, an assistant state attorney in Broward County, said the law's severe consequences must be tempered by a sense of justice. Padowitz offered a plea agreement to a 21-year-old man who provided the liquid opium he shared with a friend. When the friend died, the man was charged with first-degree murder.

Padowitz examined the case carefully and determined that, while the facts fit the definition of first-degree murder, the defendant had no intention of killing his friend. It would have served no purpose to put him in prison, he decided. The defendant, who agreed to house arrest and probation, is now in medical school and has promised to call Padowitz after he saves his first life.

"It's beholden on prosecutors to ensure the punishment fits the crime," he said. "It's about dispensing justice. Not just handing out the longest sentence possible."

_ Information from the Orlando Sentinel was used in this report. Times staff writer Graham Brink covers courts in Hillsborough County and can be reached at (813) 226-3365 or via e-mail at brinksptimes.com.

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