MURDER CONVICTION BASED ON '70s DRUG LAW

TAMPA - The Defendant, Accused Of Causing An Overdose, Wept After The
Verdict, Then Was Sent To Prison For Life

It's a law that was passed a generation ago to head off what state
lawmakers saw as a rising tide of heroin addiction.

Under it, if someone dies of a drug overdose and the supplier can be
identified, then the supplier can be convicted of murder.

The epidemic passed, but the law stayed. And for the first time in
Hillsborough County on Tuesday, it was used to win a first-degree murder
conviction in the case of a recreational drug death.

Jose Francisco "Apache'' Pena, 30, who stood accused of giving a fatal drug
cocktail to a waitress he wanted to have sex with, wept when the verdict
was returned. Hillsborough Circuit Judge Daniel L. Perry immediately
sentenced Pena to life in prison - the only sentence possible under Florida
law in the case of a noncapital first-degree murder conviction.

The case was the fourth of its kind brought in Hillsborough County since
investigators took the law out of mothballs to fight a heroin resurgence in
the late 1990s. Two of the others ended in plea bargains. The third
resulted in a third-degree murder conviction. None of the earlier
defendants got prison time.

Pena's trial lasted only one day. The prosecution's witnesses told this story:

Mirranda Fernandes, 22, a waitress who lived alone with her dog, said to a
neighbor one day in September 1999 that she wanted ``to roll,'' street
slang for taking the drug ecstasy.

The neighbor, Bridget Spicer, then 17, said she knew just the person to see
- - "Apache.'' Spicer called him. Pena told them to come over.

"Our intent was to party and do drugs,'' Spicer said. They did.

The next day, Spicer said, Fernandes said she wanted to "roll some more.''
Back they went to Pena's.

There was more ecstasy, Spicer said. Then things got steamy.

Fernandes began undressing and dancing provocatively. Pena wanted to have
sex. Fernandes refused. Pena gave her heroin, thinking that would make her
willing. But Fernandes fell asleep; soon Pena did the same. Spicer left.

In the morning, Pena awoke and called to an acquaintance asleep in another
room, Anthony Batista, "Yo, man, this girl isn't breathing.''

After trying unsuccessfully to revive her, Pena borrowed a car so he and
Batista could take Fernandes to the hospital.

On the way, however, Batista testified that Pena stopped and said, ``I
can't deal with this.'' Then he opened the car door, dumped Fernandes' body
on the curb and drove off.

They went to a market on the way back to Pena's apartment, Batista said,
and got food for breakfast. Pena began to cook when they got home. Batista,
who was not charged in the death, left, shocked.

Pena's lawyer, Assistant Public Defender Mike Connell, argued that
Fernandes might have died from other substances found in her system by lab
tests. But Vern Adams, Hillsborough County's chief medical examiner, said
those were byproducts of mixing heroin and ecstasy, and the cause of death
was drug intoxication.

"The defendant gave this little girl heroin so he could get sex,''
Assistant State Attorney Curt Allen told the jury. "He screwed up and
killed her instead. Did he call police? Did he call paramedics? No. He
drove out and dumped her like garbage. Then he went and bought some
groceries.''

The jury deliberated for almost four hours.

"This type of murder is typically more difficult to prove because you have
an individual who was voluntarily taking recreational drugs,'' Allen said
afterward. ``But I'm very happy the jury saw it this way.''

The law under which Pena was convicted was passed in the 1970s but had
seldom been used. Of the other cases prosecuted so far under the statute here:

- -- James Rouleau, 20, of Riverview was convicted of third-degree murder in
May for supplying a friend and co-worker, Ricky Shouse, 22, of Valrico,
with the heroin that killed him. Rouleau could have been sentenced to as
much as 15 years in prison, but Hillsborough Circuit Judge Cynthia Holloway
instead gave him two years of community control and four years of probation.

- -- Amy Wytiaz, 19, a former exotic dancer, pleaded guilty in an agreement
with prosecutors in September to manslaughter for giving heroin to a
friend, Ismael Quinones, 20, of Carrollwood, who was found dead - possibly
after taking more drugs. Holloway sentenced Wytiaz to six years of probation.

- -- Amber Adkins, 22, and Janine Tillemans, 27, pleaded guilty last month to
reduced third-degree murder charges in the heroin-overdose death of
Tillemans' husband, Daniel. Prosecutors accused Tillemans of injecting her
husband with heroin purchased from Adkins. They are to be sentenced March 14.

Defense attorneys have said the law was intended originally to target major
drug traffickers, not small-time dealers who are addicts themselves, and
accuse prosecutors of misapplying it.

But sheriff's detectives said that with heroin deaths increasing, it was
time to send a message. Thirteen people died from heroin overdoses in
Hillsborough County in 1998; 10 died in 1999.