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A drug shared brings lender a murder charge

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 wonder whether the Legislature intended the law for cases in which friends share 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."

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 the years since, lawmakers have added other drugs 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 began to rise dramatically in Florida.

The cases included a 21-year-old Tampa man charged in 1994 for selling ecstasy to a man who later gave it to a woman who died in Orlando.

Hillsborough prosecutors last year used the law to charge five people, including Wytiaz, with first-degree murder.

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

Pinellas County had fewer 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 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 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.

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 used heroin obtained from someone else.

Frequent plea deals have defense attorneys wondering whether prosecutors use 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."

_ Information from the Orlando Sentinel was used in this report.