434 So. 2d 804 | Ala. Crim. App. | 1982
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *806
Dr. H. Ray Evers was indicted on two counts of "selling, furnishing or giving away" amphetamines in violation of §
It is undisputed that on January 23, 1981, the appellant furnished Johnny Coley prescriptions for two different amphetamines (both categorized as Schedule II drugs) to help Coley combat fatigue while driving his automobile on an alleged round trip between Dothan, Alabama, and Tampa, Florida.
Coley had been hired by the appellant to manage the pharmacy and central supply at appellant's own Sealy Springs Health Services Clinic. Coley was a pharmacist but had lost his license to practice in Florida and had not yet obtained an Alabama license. He had worked at the clinic for about six weeks before the January 23, 1981, incidents.
Coley's assistance had been requested by Sergeant Charles Odom of the Houston County Sheriff's Department and Agent Bill Regness of the Alabama Bureau of Investigations in their investigation of the appellant, Dr. Evers. At their request, Coley consented to wear a "body-mike" while he solicited drugs from the appellant.
On the morning of January 23, 1981, at Coley's request, the appellant gave him a prescription for twenty Biphetamine 20 capsules. Eskatrol, Ridlin and Dexamyl were discussed as alternatives but Coley opted for Biphetamine 20 (R. 81-82 and 133-134). Late that afternoon Coley reported to the appellant that one of the Biphetamine 20 *807 capsules had made his mouth too dry, so the appellant furnished him another prescription for fifteen Eskatrol capsules.
Both conversations between the appellant, Evers, and Coley, which prompted the appellant to furnish Coley the two amphetamine prescriptions, were transmitted via the "body-mike" and were received and recorded by Odom and Regness who were positioned in the vicinity of the clinic. The tape recordings of these conversations as well as the testimonies of Coley and Odom were presented to the jury as proof of the allegedly illegal transactions involving this appellant.
The prosecution also presented, as its medical expert, Dr. Sam C. West, Jr. Dr. West testified that prescribing amphetamines "for the purpose of keeping someone awake to take a trip" would not be "in the course of medical practice or legitimate medical practice." (R. 221). He further stated that to insure against undesirable "reactions", the minimum prerequisites for prescribing amphetamines would be a review of the patient's medical history and an examination to check his pulse and blood pressure. (R. 222). Dr. West also described some of the hazards of taking amphetamines for prolonged periods while driving, e.g. impaired judgment, confusion, delirium, paranoid delusions, and visual hallucinations, among others. (R. 226). Finally, after an extensive voir dire examination with reference the predicate for admitting an excerpt from The Physician's Desk Reference, and after an unrecorded bench conference, Dr. West was allowed to read warnings from that text that amphetamines should be used only in weight reduction programs and that they might "impair the ability of the patient to engage in potentially hazardous activities such as operating machinery or vehicles." (R. 233-234).
The appellant did not deny that he furnished the prescriptions to Coley for the sole purpose of combatingfatigue during Coley's alleged trip. It was and is appellant's contention, however, that his actions did not violate §
Appellant's secretary, Doris Molliston, testified that Mr. Coley saw the appellant as a patient on January 19, 1981. (R. 289). She stated that she thought Coley was seeking treatment for a "cold" and that she, consequently, completed an "out-patient" identification form (which she identified at trial) and began an "out-patient" file for him. She further reported that Coley's visit on the afternoon of January 23, 1981, was again for the appellant's professional services. She stated that she pulled his file on that occasion, gave it to the appellant and returned it to the file at the conclusion of Coley's visit, after the appellant had made some notations with reference the visit. She stated that this record remained in her files "until it was pulled out for the purposes of this case." (R. 296).
Opieree Barbaree, appellant's nurse, testified that on January 19, 1981, she briefly participated in the appellant's examination of Coley and witnessed the appellant examine Coley's bare chest with a stethoscope and inspect his throat with the aid of a tongue depressor. She stated that the appellant let her go, after only a few minutes, because Mr. Coley only had a cold.
On cross-examination, Molliston stated that she had worked for the appellant in Montgomery, Alabama, and in the Bahamas prior to the move to Houston County, and Barbaree testified that she had worked for the appellant since 1959.
The appellant's medical expert was Dr. James Cooper, a friend of the appellant and one of his associates in Atlanta, Georgia, for several years. Dr. Cooper testified that it was "in the course of professional practice and for a legitimate medical purpose" for the appellant to furnish his employee, whom he had known and worked with for six weeks and who was himself a registered pharmacist, the two amphetamine prescriptions to combat fatigue while driving his automobile. (R. 334-335).
On cross-examination, however, Dr. Cooper admitted that he had never prescribed amphetamines to combat fatigue, that he would not prescribe them for truck drivers and that he had occasionally refused specific *808 requests for that very purpose. (R. 341-345). He stated that he would not furnish anyone, even a pharmacist, with "anything he wanted" (R. 345, 363) but might give someone amphetamines if that person insisted upon driving while fatigued. (R. 345).
Dr. Cooper also testified that he agreed with the warning in the Physician's Desk Reference that amphetamines might impair one's ability to operate an automobile but stated that he did not normally warn his patients accordingly and, in fact, he did not recognize the Physician's Desk Reference as a primary medical authority. (R. 349-351).
He agreed that "the smallest quantity [of drugs] feasible should be prescribed at one time in order to minimize the possibility of over dosage" and reported that one Biphetamine 20 capsule would "last" for about ten to twelve hours. (R. 347, 352).
Finally, in rebuttal to the appellant's evidence that Johnny Coley was seen as a patient by the appellant on January 19, 1981, and January 23, 1981, [which Coley had previously denied at trial (R. 111)] the prosecution elicited testimony from Sergeant Odom that on January 25, 1981, he conducted a thorough search of the patient records at the Sealy Springs Health Services Clinic and did not find a patient record for Johnny Coley. After the search was completed the appellant, who had already been advised of his Miranda rights, told the authorities that those were all of his medical records. (R. 372).
We need not look any further than our own Alabama statutes and cases to reach the conclusion that §
In pertinent part §
"(a) Except as authorized by this chapter, any person who . . . sells, furnishes, gives away, . . . controlled substances enumerated in schedules I, II, III, IV and V is guilty of a felony. . . ." (Emphasis added).
Appellant argues that a licensed physician is not "any person" as specified in this section but is rather one "who is subject to article 3 of this chapter" as identified in §
"(a) It is unlawful for any person:
(1) Who is subject to article 3 of this chapter to distribute or dispense a controlled substance in violation of section
20-2-58 ." (Emphasis added).
We agree that a licensed physician is one "who is subject to article 3 of this chapter" as categorized in §
Section
Section
Therefore, the issue must focus on whether or not the licensed physician's conduct in a particular instance was "authorized".
In this instance the appellant is accused of writing prescriptions for controlled substances either outside the course of his professional practice, or for non-medical purposes or both. Looking to the specific provisions of the Alabama Uniform Controlled Substances Act, we can find noauthority for such conduct.
Section
"(b) Persons registered by the certifying boards under this chapter to manufacture, distribute, dispense or conduct research with controlled substances may possess, manufacture, distribute, dispense or conduct research with those substances to the extent authorized by their registration and in conformity with the other provisions of this article." (Emphasis added.)
Under this section a licensed physician is "authorized" to "distribute" or "dispense" any substance listed on his registration as long as he does so "in conformity" with other provisions of §§
One section of "this article" which clearly describes "non-conforming" behavior (i.e. unauthorized conduct) is §
"(5) Has, in the opinion of his certifying board, excessively dispensed controlled substances for any of his patients. A registrant may be considered to have excessively dispensed controlled substances if his certifying board finds that either the controlled substances were dispensed for no legitimate medical purpose, or that the amount of controlled substances dispensed by the registrant is not reasonably related to the proper medical management of his patient's illnesses or conditions." (Emphasis supplied.)
As used here "dispensing" includes the act of "prescribing." Section
Therefore, reading §§
Based on the accusations against him, this appellant was, therefore, properly charged and convicted under §
[For a similar analysis with reference the application of §
Having reviewed the record, we find nothing in this charge that could be considered harmful to this appellant. As noted above we have determined that a licensed physician's act of "prescribing" controlled substances in an unauthorized manneris included in the "selling, furnishing, or giving away" language of §
Appellant also asserts that the indictments, which were based on §
We disagree with appellant's vagueness challenges to the statute and the indictments. As pointed out above, the statute clearly proscribes only the "unauthorized" selling, furnishing, or giving away of controlled substances. We find nothing constitutionally infirm in requiring a licensed physician to examine the Alabama Uniform Controlled Substances Act in its entirety to determine what conduct is or is not authorized.
Furthermore, the standards espoused by the state and the trial court, though not word for word recitals of the statutory standards, are definitely covered in §
We find no evidence of record to support appellant's insufficient indictment challenges. Appellant was aware of the two transactions with which he was charged and the indictments and convictions based thereon are sufficient to protect him against double jeopardy. Summers v. State,
Appellant agrees with the use of the "in the course of professional practice" standard also explained to the jury. Any prescribing of controlled substances done "in the course of professional practice" would certainly be "for a legitimate medical purpose." The former would be the more difficult standard for appellant to meet, such that the inclusion of "for a legitimate medical purpose" would not add to his burden.
Moreover, after objection to the use of this standard in the trial court's oral charge, appellant, himself, requested and was granted five written jury charges which included the "for a legitimate medical purpose" language. [See charges 1A, 17A, 19A, 20A and 24A at (R. 462-464)].
We understand that this issue has been decided in appellant's favor in other jurisdictions. However, the prevailing view in Alabama, which is in accord with the most recent United States Supreme Court decisions, is that a search warrant is not required where, as here, the person wearing the "body-mike" consents to the taping of his conversations. Hammond v. State,
An accused must assume the risk that his confidant, in this case a "bugged" informant, might be reporting to the police,Hoffa v. United States,
We see no constitutional reason to distinguish, for admissibility purposes, between the "bugged" informant's testimony which reveals the details of a certain conversation and an accurate recording of that same conversation made with the informant's consent.
Furthermore, as a practical matter, we fail to see the harm to this appellant in admitting these recordings. Appellant does not challenge the admissibility of Coley's testimony. He does not contend that Coley erred as to any of the pertinent details of the two recorded conversations. Appellant's secretary and his nurse each testified that the appellant had examined Coleyas a patient before the prescriptions were written, and his medical expert stated that prescribing amphetamines for combating fatigue might be legitimate under certain circumstances. These testimonies, though there was evidence to dispute all three, were offered to prove that appellant's conduct, as evidenced by Coley's testimony and the recordings, was "in the course of his *812 professional practice" and for a "legitimate medical purpose." Thus a jury question was presented.
To the contrary, excerpts from scientific works and treatises are admissible if said texts are properly authenticated.Franklin v. State,
Appellant's medical expert testified that he would not necessarily use this text as a primary authority but he did agree with the warnings read therefrom. He stated that he did not customarily give said warnings to all patients receiving amphetamines.
There was no error in admitting this evidence from thePhysician's Desk Reference.
Ms. Barbaree was allowed to relate what she observed on January 19, 1981, in appellant's examination room. She stated that she saw the appellant examine Coley's chest with a stethoscope and saw him use a tongue depressor to examine Coley's throat. The trial court by sustaining the state's objections would not, however, permit her to state "what the appellant's basic examination consisted of."
For aught that appears, the trial court sustained the state's objection because "what the appellant's basic examination consisted of" was not relevant to the issue of whether or not the appellant had conducted a sufficient examination of Coley to meet the requirements of prescribing amphetamines "in the course of his professional practice" and for a "legitimate medical purpose." Such a relevancy determination was within the trial court's sound discretion and we see no abuse thereof.Hill v. State,
Appellant stated to the trial court that the sole purpose of this inquiry of Ms. Molliston was to impeach Coley, who had previously denied that he had seen the appellant as a patient on January 19, 1981. From our reading of the record, it appears that such impeachment was completed before the trial court's alleged error. Since appellant cites no evidence to the contrary, any error in this regard was harmless. Rule 45, Alabama Rules of Appellate Procedure.
Furthermore, although the trial court did not clarify its reasons, it appears that the state's objection might have been properly sustained on either hearsay or relevancy grounds. *813
In summary, the underlying theme of this appeal, as presented by appellant in brief and in oral argument, is that he did nothing illegal in prescribing amphetamines to an employee for the sole purpose of combating fatigue while driving. Cognizant of this assertion, we have thoroughly examined each reviewable issue that appellant has presented and have studied this record carefully. We have determined that this appellant was properly charged, that any errors committed during the course of the trial were properly dealt with, and that the jury was correctly instructed with reference to the standards to apply in determining whether or not appellant's conduct was illegal. Although the appellant proffered evidence to the contrary, including testimony from a medical expert, the record contains sufficient evidence for the jury to conclude that the appellant violated §
Therefore, this cause is due to be and is hereby affirmed.
AFFIRMED.
All the Judges concur.
