420 So. 2d 299 | Ala. Crim. App. | 1982
The defendant was indicted and convicted for unlawfully obtaining or attempting to obtain Demerol "by the use of a forged prescription." Alabama Code 1975, Section
"Your Honor, the Defendant would make a motion to exclude State's evidence in that they have failed to prove a prima facie case. They have not proved that the controlled substance Demerol was in fact a controlled substance. That's all."
At trial, Dr. J.B. Clayton testified that "Demerol is a Class 2 narcotic." During Dr. Powell's testimony, the following occurred without objection.
"Q. And you say that's in schedule 2?
"A. I think so. I'm not sure.
"Q. Here's a Schedule 2 listing of controlled substances. Would you point to that in there?
"A. I see you've got all the generics there. I don't know what you asked me to do.
"THE COURT: He wants to know if you see it under Schedule 2. Look at 3 and so on.
"Q. Yes, sir, examine all the schedules.
"A. My book doesn't go like this. This is a listing of controlled substances over here. You've got amphetamines. I'm not getting anywhere with this.
"THE COURT: No wonder he can't find it, it's not in there.
"MR. MAHON (Assistant District Attorney): I'll have that marked.
"THE WITNESS: What is this?
"MR. MAHON: For the purpose of the record, I have just handed to the Court and the Court has handed to the witness a copy of the published scheduled controlled substances here in the State of Alabama, which also includes Schedule 2.
"THE COURT: If you can read that you can locate that generic term for Demerol on there. It's in the center column.
"THE WITNESS: Merperidine Hydrochloride. He refreshed my memory with that."
Pharmacist Debra Powell stated that Demerol or merperidine is "a schedule 2 *301 narcotic." She further testified that "(t)hey are all scheduled by the Federal Government, regulated by the Federal Government. They schedule it Schedule 2."
On appeal, the defendant argues that the State "failed to establish a prima facie case by failing to produce evidence that the statutory procedure had been followed in adding `Demerol' to the list of controlled substances." CompareMcCurley v. State,
The State did prove, in a somewhat haphazard manner, that Demerol or Merperidine Hydrochloride was in "the published scheduled controlled substances here in the State of Alabama, which also includes Schedule 2." The defendant's general motion to exclude because the State had not proven that Demerol was a controlled substance was properly overruled. If defense counsel had some objection to the manner in which such proof was made or that the proof was not the best evidence, specific objection should have been advanced to the trial judge on those grounds.
In the absence of a proper objection raising the specific issue, the State, in a prosecution involving a controlled substance, need not prove that the statutory procedure was followed in adding the drug to the list of controlled substances. "The trial court can properly take judicial notice of whether a substance is designated as a controlled substance and can so instruct the jury." Gilbert v. State,
The judgment of the circuit court is affirmed.
AFFIRMED.
All Judges concur. *771