State v. CarrState v. Carr
Lead Opinion
Defendant was convicted of forty-two counts under the Controlled Substances Act, §§ 30-31-1 to 30-31-40, N.M.S.A.1978 (1980 Repl.Pamph.). He was found by the jury to be guilty of trafficking in dilaudid, contrary to § 30-31-20, of distributing biphetamine, contrary to § 30-31-22, and of intentionally acquiring or obtaining possession of dilaudid and biphetamine by misrepresentation, fraud, deception, or subterfuge, contrary to §§ 30-31-20 and 30-31-25 of the C.S.A. and § 30-28-2, N.M.S.A.1978 (1980 Cum.Supp.). We affirm.
The issues we address are: I. Whether a physician who writes a prescription for a controlled substance, not in the course of his professional medical practice or research, is “trafficking” or “distributing” under the C.S.A.; II. whether a physician who gives away or sells to a patient a controlled substance, not in the course of his professional medical practice or research, is “trafficking” under the C.S.A.; III. if those activities are proscribed, whether application to the defendant of the statutes under which he was convicted is unconstitutional; IV. whether a physician may be charged with intentionally obtaining a controlled substance by misrepresentation when he writes a prescription not in the course of his professional medical practice or research; V. whether the conspiracy conviction can stand; VI. whether admission of certain evidence constitutes reversible error; VII. whether the grand jury indictments are valid; VIII. whether prosecutor misconduct occurred which denied defendant a fair trial; IX. whether there was error in the jury instructions; X. whether Count II of the indictment gave defendant sufficient notice of the offense charged; and XI. issues of a new trial and cumulative error.
I. The state asserts that a physician who issues prescriptions not in the course of professional medical practice or research is distributing drugs in violation of § 30-31-20 or § 30-31-22. Trafficking is prohibited by § 30-31-20. In pertinent part that statute reads:
A. As used in the Controlled Substances Act, “traffic” means the:
1. manufacture of any controlled substance enumerated in Schedules I through V,
2. distribution, sale, barter or giving away any controlled substance enumerated in Schedules I or II which is a narcotic drug, or
g * * *
B. Except as authorized by the Controlled Substances Act, it is unlawful for any person to intentionally traffic* * * *
The distribution of drugs is prohibited by § 30-31-22, which reads:
A. Except as authorized by the Controlled Substances Act * * * it is unlawful for any person to intentionally distribute or possess with intent to distribute a controlled substance except a substance enumerated in Schedules I or II which is a narcotic drug* * * *
Dilaudid (hydromorphone), the drug in which defendant was found to have trafficked, is a narcotic drug listed in Schedule II. Section 30 — 31—7(A)(2)(g), N.M.S.A.1978 (1980 Repl.Pamph.). Biphetamine (amphetamine), the drug he was found to have distributed in violation of § 30-31-22, is a non-narcotic Schedule II substance. Section 30-31-7(A)(3)(a), N.M.S.A.1978 (1980 Repl.Pamph.). The state contends that defendant “distributed” dilaudid and biphetamine when he prescribed them for Niki Jones. The definitions of “distribute” and other relevant terms as used in the C.S.A. are set out below.
“[Djistribute” means to deliver other than by administering or dispensing a controlled substancef.]
Section 30 -31-2(J).
“[D]eliver” means the actual, constructive or attempted transfer from one person to another of a controlled substance whether or not there is an agency relationship^]
Section 30 31 -2(G).
“[A]dminister” means the direct application of a controlled substance by any means to the body of a patient or researchsubject by a practitioner or his agent[.]
Section 30-31-2(A).
“[Dispense” means to deliver a controlled substance to an ultimate user or research subject pursuant to a lawful order of a practitioner, including the administering, prescribing, packaging, labeling or compounding necessary to prepare the controlled substance for that delivery[.]
Section 30-31-2(H).
“[Djispenser”, means a practitioner who dispenses* * * *
Section 30-31-2(1).
“[Pjractitioner” means a physician, dentist, veterinarian or other person licensed to prescribe and administer drugs which are subject to the Controlled Substance Act* * * *
Section 30-31-2(S).
Defendant argues that under these definitions “distribute” and “dispense” are exclusive of one another. Consequently a person who dispenses drugs cannot, by the same act, be distributing them. “Dispense” includes the prescribing of a drug by a physician. Unlike the corresponding federal statute,
While some states have found that their statutory schémes embrace two parallel systems of drug enforcement, depending on whether or not the violator is registered to conduct transactions in controlled substances, State v. Best,
Defendant asserts that a registrant under the Act may be prosecuted only under § 30-31-24, which reads in part:
A. It is unlawful for any person:
(1) who is subject to Sections 30-31-11 through 30-31-19 NMSA 1978 to intentionally distribute or dispense a controlled substance in violation ofSection 30-31-18 NMSA 1978 ;
(2) who is a registrant, to intentionally manufacture a controlled substance not authorized by his registration, or to intentionally distribute or dispense a controlled substance not authorized by his registration to another registrant or other authorized person;
(3) to intentionally refuse or fail to make, keep or furnish any record, notification, order form, statements, invoice or information required under the Controlled Substances Act* * * *
(4) to intentionally refuse any entry into any premises for any inspection authorized by the Controlled Substances Act.
B. Any person who violates this section is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions ofSection 31-18-15 NMSA 1978 (1980 Repl.Pamph.).
A. No controlled substance listed in Schedule II which is a prescription drug as determined by the federal food and drug administration, may be dispensed without a written prescription of a practitioner, unless administered directly to an ultimate user. No prescription for a Schedule II substance may be refilled. No person other than a practitioner shall prescribe or write a prescription.
B. Prescriptions for Schedules II through IV shall contain the following information:
(1) the name and address of the patient for whom the drug is prescribed; and
(2) the name, address and registry number of the person prescribing the drug. The name of the pharmacist and the dispensing date of the drug shall be inscribed on the face of the prescription.
C. A controlled substance included in Schedules III or IV, which is a prescription drug as determined under the New Mexico Drug and Cosmetic Act [26-1 -1 to 26-1-26, 26-3-1 to 26-3-3 NMSA 1978], shall not be dispensed without a written or oral prescription of a practitioner, except when administered directly by a practitioner, to an ultimate user. The prescription shall not be filled or refilled more than six months after date of issue or be refilled more than five times, unless renewed by the practitioner and a new prescription is placed in the file. Prescriptions shall be retained in conformity with the regulations of the board.
We reject defendant’s argument that he may be punished only under § 30-31-24 for the following reasons: A. the overall scheme of the C.S.A. indicates that registrants could be punished under other sections; B. § 30-31-24 generally concerns technical violations with respect to registrants; and C. defendant’s interpretation of the Act results in an absurdity.
The C.S.A. is patterned after the Uniform Controlled Substances Act, which is similar to the federal act,
A. The overall scheme of the Act indicates registrants could be punished under other sections of the Act as well as § 30-31-24. First, the trafficking statute makes it unlawful for any person to intentionally traffic. Section 30-31-20(B). In construing a similar statute,
Second, § 30-31-20(B) does authorize “trafficking” (i. e. manufacture, distribution, sale, and possession) in certain circumstances. It says: “Except as authorized by the Controlled Substances Act, it is unlawful * * * to intentionally traffic.” (Emphasis added.) Authorization is found in § 30-31-12, which requires that every person who “manufactures, distributes or dispenses any controlled substance * * * must obtain annually a registration^]” Section 30-31-12(A). Registrants “may possess, manufacture, distribute, dispense, prescribe or conduct research with * * * [controlled] substances to the extent authorized by their registration and in conformity with the other provisions of the Controlled Substances Act[.]” Section 30-31-12(B). This latter subsection is similar to
Another reason for rejecting defendant’s argument that the Legislature has established parallel schemes for handling violations of the C.S.A. is that § 30-31-24, which
B. Sections 30-31-24 and 30-31-25 generally concern technical violations. This is clear both from a perusal of these sections and from a consideration of their penalties. A violation of either section is a fourth degree felony, §§ 30-31-24(B) and 30-31-25(B), whereas a violation of the trafficking statute is a second degree felony for the first offense. Section 30-31-20(B)(l). A comparison of the penalties under the alleged parallel systems is a factor to be considered in determining whether the Legislature did intend to establish parallel systems. In Moore the Court noted the less severe penalties under the statutes regulating registrants compared to the harsher penalties under the general statutes indicated that the former statutes covered more or less technical violations. It concluded that Congress had not established parallel systems of drug enforcement under the Federal Act. In Best, the Supreme Court of North Carolina noted that the penalties for violations of the general statute and violations of that statute purportedly applying to registrants were essentially the same, and concluded that the statute governing registrants covered more than technical violations. It found parallel systems regulating drug transactions. Under current law in New Mexico, a fourth degree felon is sentenced to eighteen months imprisonment, whereas a second degree felon receives a nine year sentence.
C. Defendant’s interpretation of the Act would result in an absurdity. Under his interpretation, physicians are liable under §§ 30-31-24 and 30-31-18 rather than under the general statutes, §§ 30-31-20 and 30-31-22. If he is correct, a physician who wished to avoid prosecution altogether could deliver drugs indiscriminately to other persons, so long as he delivered them by issuing prescriptions, and his prescriptions conformed to the technical requirements of
Defendant’s argument that a dispenser cannot be punished under § 30-31-20, the trafficking statute, or under § 30-31-22, for distributing, because “dispensing” is not prohibited by those statutes, is not persuasive. We agree with defendant that “prescribing” is a method of “dispensing,” § 30-31-2(H), but we find that the act of prescribing is more than writing a technically
an order given individually for the person for whom is prescribed a controlled substance, either directly from the prescriber to the pharmacist or indirectly by means of a written order signed by the prescriber and in accordance with the Controlled Substances Act or regulations adopted thereto[.]
The Regulations of the New Mexico Board of Pharmacy further specify that:
[a] prescription for a controlled substance, may be issued only for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice, and who is registered under the Controlled Substances Act* * * * (Emphasis added.)
New Mexico Drug Laws and Board of Pharmacy Regulations, Reg.No. 20 § 913(A) (1980). Consequently, a physician is prescribing drugs only when he issues a prescription for a legitimate medical purpose and when acting in the usual course of his professional practice. When he so acts, he is “dispensing” under § 30-31-2(H). A physician who does not issue a prescription under these conditions would not be acting in a manner authorized by the Act.
As further support for the view that the Legislature intended to authorize only prescriptions issued for a legitimate medical purpose by a practitioner acting in the usual course of his professional practice, we note that the words “in the course of his professional practice” are used to limit prescription writing in other statutes of the C.S.A. Section 30-31-23 states:
A. It is unlawful for any person intentionally to possess a controlled substance unless the substance was obtained pursuant to a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by the Controlled Substances Act* * * * (Emphasis added.)
This statute would be incongruous in the C.S.A. if the view were adopted that the Act considered all prescriptions (as opposed to only those written in the course of professional practice) valid. If all prescriptions were valid, then anyone obtaining a controlled substance pursuant to a prescription should be in lawful possession. Section 30-31-23(A) specifies, however, that every possession pursuant to a prescription is not lawful. A similar argument with respect to the Texas statute was made by the dissent in Haney. See Moore, Alford, supra (both courts consider the effect of similar statutes in their statutory schemes). Pertaining to records of registrants, § 30-31-16 specifies:
E. A practitioner is not required to keep records of controlled substances listed in Schedules II through V which he prescribes or administers in the lawful course of his professional practice* * * * (Emphasis added.)
This provision is similar to
II. Count II of the indictment charges the defendant with trafficking in that he gave Niki Jones, not in the course of professional medical practice or research, a bottle of pills which was a Schedule II narcotic drug. The state claims this activity is in violation of § 30-31-20(A)(2), which defines the distribution of a Schedule II narcotic drug as “trafficking.” We do not believe the Legislature intended to outlaw the current practice of many physicians who hand out sample medications to their patients for a legitimate medical purpose and in the course of their professional medical practice or research. Such authorized activity would be “dispensing” because it would be delivery of a controlled substance to an ultimate user subject to the lawful
III. Defendant argues that application to him of the trafficking and distributing sections is an unconstitutional contravention of the Fifth and Fourteenth Amendments to the United States Constitution and of Article II, § 18 of the New Mexico Constitution. We disagree.
A penal statute or regulation which either forbids or requires the doing of an act in terms so vague that men of common intelligence must guess at its meaning and differ as to its application lacks the first essential of due process of law. Connally v. General Construction Co.,
The Controlled Substances Act gives adequate notice of what is prohibited, and it gives a standard of culpability by which a physician can know he is acting illegally by issuing a prescription not in the course of his professional medical practice. Sections 30-31-20(B) and 30-31-22(A) establish a general prohibition against trafficking or distributing by “any person,” except as authorized by the Act. Exceptions authorized by the Act are the administering or dispensing of controlled substances by a physician or according to the physician’s lawful prescription. The prescription, as we have stated, must be for a legitimate medical purpose; this requirement, expressed by the C.S.A., is also inherent in the definition of “prescription.” A “prescription” is a written direction for “a medicine,” Webster’s Third New International Dictionary 1792, def. 5a(l) (1971), and “medicine” is “a substance or preparation used in treating disease.” Webster’s at 1402. Thus, by definition, if the written direction is not for a substance to be used in treating illness, it is not a prescription as that term is used in the C.S.A., and as men of common intelligence understand the term. As the Ninth Circuit Court of Appeals stated regarding the similar federal statute:
By definition, “dispense” expressly contemplates a “lawful order”; if the order is not such, the prescription is not lawful under21 U.S.C. § 829 [§ 30-31-18 , N.M.S. A.1978 (1980 Repl.Pamph.)]. If the prescription is not lawful, the “practitioner” does not dispense; rather, under § 802(11) [§ 30-31-2(J), N.M.S.A.1978 (1980 Repl. Pamph.)], he “distributes”—that is, he effects delivery “other than by dispensing.” In short, a “practitioner” who dispenses does not violate the Act.
United States v. Black,
Regarding the trafficking and distribution charges, defendant also claims that
IV. Defendant was convicted of intentionally obtaining dilaudid and biphétamine contrary to § 30-31-25(A)(3). That subsection in pertinent part reads:
A. It is unlawful for any person:
* * * * * *
(3) to intentionally acquire or obtain, or attempt to acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge[.]
The statute was applied to defendant on the theory that in writing a prescription for Niki Jones, he misrepresented to the pharmacy that the prescription was for a medical purpose.
Defendant argues that application of § 30-31-25(A)(3) to him is an unconstitutional violation of due process guarantees, because the standard of culpability is not sufficiently clear. Defendant’s argument is based on two points: (1) there is not fair notice that writing a prescription not for a legitimate medical purpose constitutes misrepresentation or fraud; and (2) there is not fair notice that a person may be held criminally liable for acquiring or obtaining possession of a controlled substance where the substance was not physically returned to his possession after the prescription was filled by a pharmacy.
As we stated previously, the C.S.A. does provide fair notice that effecting delivery through a prescription not for a legitimate medical purpose is prohibited as distribution or trafficking. We thus find no merit to defendant’s first allegation of unconstitutionality.
We also find no merit to defendant’s second point. “ ‘Possession’ may be actual or constructive. See U.J.I.Crim. 36.40. Constructive possession requires no more than knowledge of the narcotic and control over it; control, in turn, requires no more than the power to produce or dispose of the narcotic.” State v. Montoya,
After a thorough consideration of the authorities reviewed, we are of the opinion and hold that, in a prosecution for possession of narcotics, it is incumbent upon the state to prove that the defendant had physical or constructive possession of the object or thing possessed, coupled with knowledge of the presence and narcotic character of the object possessed.
Numerous cases since have held that constructive possession is sufficient. See State v. Maes,
Defendant also contends that the evidence is insufficient to support his convictions under § 30 -31 -25(A)(3). Proof of possession of a controlled substance may be through circumstantial evidence.
There is no requirement that the proof should be by direct or uncontradicted evidence. Rather, the evidence must be such as discloses some conduct, declarations or actions on the part of the accused from which the fact finder may fairly infer and which is sufficient to satisfy it beyond a reasonable doubt of knowledge in the accused of the presence and nature of the narcotics. Where this has been done the burden has been met.
State v. Garcia,
V. The jury returned a verdict of guilty on Count I of the indictment, which charged defendant with conspiring with Niki Jones to commit the felony of intentionally obtaining possession of dilaudid by misrepresentation, fraud, deception or subterfuge, and/or trafficking dilaudid. The jury was instructed that to return a conviction, it had to find that the parties both agreed and intended to commit the crime of intentionally obtaining possession of a controlled substance by misrepresentation, fraud, deception or subterfuge, or the crime of trafficking. From the phrasing of these charges and the jury’s general verdict, it is impossible to know if the jury found the defendant had conspired to illegally acquire possession of a controlled substance or conspired to traffic.
Under the C.S.A., as we interpret it, a physician could be charged with either conspiracy to traffic or conspiracy to acquire possession by misrepresentation. Conspiracy is defined as “knowingly combining with another for the purpose of committing a felony * * * *” Section 30-28-2, N.M.S.A.1978 (1980 Cum.Supp). A physician who intended and agreed to act with another to commit a felony could be found guilty of conspiracy. As discussed before, a physician can be charged with crimes under all three sections of the C.S.A.: by writing prescriptions not for a legitimate medical purpose, the physician can be distributing, trafficking, or acquiring possession by misrepresentation, all felonies under the Act. The jury could properly find that defendant conspired with Niki Jones to commit either the felony of trafficking or the felony of acquiring possession by misrepresentation.
A general verdict of guilty in a criminal case must be set aside where it can be supported on one ground but not on another and it is impossible to tell which ground the jury selected. Yates v. United States,
Defendant also argues that the conspiracy charge should have been dismissed, because under the facts of this case it violates Wharton’s Rule. We disagree.
This Court’s prior decisions indicate that the broadly formulated Wharton’s Rule does not rest on principles of double jeopardy * * * * [Citations omitted.] Instead, it has current vitality only as a judicial presumption, to be applied only in the absence of legislative intent to the contrary. The classic Wharton’s Rule offenses — adultery, incest, bigamy, duelling — are crimes that are characterized by the general congruence of the agreement and the completed substantive offense. The parties to the agreement are the only persons who participate in commission of the substantive offense, and the immediate consequences of the crime rest on the parties themselves rather than on society at large. [Citation omitted.] Finally, the agreement that attends the substantive offense does not appear likely to pose the distinct kinds of threats to society that the law of conspiracy seeks to avert.
Iannelli v. United States,
The conduct involved in the conspiracy charge here is not like those offenses to which Wharton’s Rule traditionally applies. The harm involved in the substantive offense — trafficking in controlled substances or acquiring possession by misrepresentation — is not restricted to the parties to the agreement. The parties to the agreement to traffic are usually not the only persons who participate in commission of the substantive offense: the controlled substances are passed on, as happened here, to other purchasers. The agreement that attends the substantive offense does seem to pose those, threats to society that the law of conspiracy seeks to avert. An agreement to commit trafficking may very well produce agreements to engage in a more general pattern of criminal conduct as the controlled substances are diverted from their legitimate medical uses. Because of these differences between the agreement here and traditional Wharton’s Rule offenses, we decline to give significant weight to the Rule’s presumption in this case. The district court committed no error in failing to dismiss the conspiracy charge.
Defendant also argues that the conspiracy conviction is not supported by substantial evidence. The evidence regarding the conspiracy consisted of testimony of Niki Jones and the prescriptions that defendant wrote. “The coconspirator rule does not apply to the in-court testimony of a conspirator who testifies about his own activities.” State v. Jacobs,
VI. Defendant argues that admission of evidence relating to “sex, death, and drugs” was so prejudicial as to deny his rights of due process and a fair trial. Defendant argues that this evidence should have been excluded because “its probative value is substantially outweighed by the danger of unfair prejudice” under
The admission of testimony by Kurt Denis and Gary Jackson is challenged by defendant. The Denis/Jackson testimony was admitted as prior consistent statements under
Defendant contends that evidence regarding Mary Gennari and Martha Hamilton was improperly admitted because it was
Defendant contends that the prejudice from the Gennari/Hamilton evidence outweighs its usefulness in establishing his intent, and so should have been excluded under
Defendant claims the district court erred in admitting defendant’s medical notes on Gennari into evidence. Evidence Rule 106 states that when a writing is introduced by a party, an adverse party may require the introduction of “any other part of any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.” Defendant sought to require introduction of all his notes on Gennari. The purpose of Rule 106 is to permit the introduction of recorded statements that place in context other writings admitted into evidence which, viewed alone, may be misleading. United States v. Jamar,
Defendant contends that evidence regarding indictment of another doctor for distribution was so prejudicial as to be reversible error. The state offered this evidence to corroborate Niki Jones’ testimony that she had obtained drugs from that doctor; the judge instructed the jury that this testimony did not relate to defendant’s guilt or innocence of the acts charged. Because of the judge’s admonition, we find no prejudicial error.
VII. Defendant asserts that he was denied due process of law by acts of the Assistant Attorneys General and the Deputy District Attorney before the grand jury. Those persons were properly in the presence of the grand jury as “persons required or entitled to assist the grand jury” under § 31-6-4, N.M.S.A.1978. Defendant does not assert that the attorneys’ disagreement resulted from a conflict of interest or because they were acting as partisans, “bent upon obtaining an indictment.” See State
A second contention by defendant is that the indictment charging trafficking or distribution is invalid. Each count of that indictment states that defendant “did intentionally distribute (unlawfully dispense, prescribe, or administer), sell, barter, or give away * * * this done not in the course of professional medical practice or research.” Defendant argues that this insertion may have misled the grand jury so that it indicted defendant under an inapplicable statute.
We have held that a physician’s actions in prescribing or administering drugs must be within the course of his professional practice in order to fall within the Act’s exceptions for prescribing and administering. The language which was added to the indictment merely specifies how the state contends defendant trafficked in controlled substances. The trial court did not usurp the Legislature’s function in defining crimes and penalties, State v. Shop Rite Foods, Inc.,
VIII. Defendant contends that various actions at trial were prosecutor misconduct which so “inflamed the jury” that defendant was denied due process and a fair trial. We have previously held that the evidence regarding the circumstances under which defendant wrote prescriptions was admissible as tending to show his intent. Most of the questions and statements defendant raises here were part of the questioning regarding that intent.
It is not all misconduct or improper argument that will require granting a new trial or a reversal on appeal. It is only when such conduct can present a question whether there is reason to believe that it influenced the jury’s verdict that the failure to take appropriate steps to remove it will warrant a reversal.
Marks v. United States,
Finally, defendant contends that the district court failed to exercise proper control over the prosecution’s presentation of evidence. We disagree. The district court, faced with a long trial involving many witnesses, made every effort to see that unduly prejudicial evidence was excluded and carefully applied the balancing test of
IX. Defendant contends there is reversible error in the district court’s jury instructions. We find that there was sufficient evidence to support the giving of instructions on Counts I and II, for conspiracy and trafficking in narcotics, based upon the testimony of Niki Jones. Use of the language in U.J.I.Crim. 36.10 is challenged because it does not include the statute’s exact terms. Use of that instruction was proper in instructing the jury on the essential elements of the crime, even though the language
X. Defendant contends that he was denied due process because the state did not provide him with sufficient information to prepare a defense to Count II of the indictment. The indictment states in Count II “that on or between the 1st day of July, 1977, and the 31st day of August, 1977, in Bernalillo County, New Mexico, the Defendant, Gerson C. Carr, did intentionally traffic ****” Niki Jones, the person to whom defendant was charged with giving the drugs, testified that she could not recall the exact date of the occurrence.
“It is necessary for an- Information to allege such facts as are necessary to give the defendant notice of the crime charged* * * * Every accused has the right to be informed of the crime with which he -is charged in sufficient detail to enable him to prepare his defense.” State v. Foster,
XI. Defendant contends that the district court abused its discretion in refusing to grant a new trial, and that cumulative error in the trial denied him due process and a fair trial. We do not agree. The trial court, as we have said, acted fairly and practically in resolving evidentiary issues and in managing the course of this lengthy trial. It was not an abuse of discretion to deny defendant’s motion for a new trial. Neither do we agree that there is cumulative error. “We have held that the points raised are not error. Therefore, the doctrine of cumulative error has no application here.” State v. Míreles,
The judgment of the district court is affirmed.
IT IS SO ORDERED.
Dissenting Opinion
(dissenting).
I respectfully dissent.
I believe the defendant can be tried solely on the charge of conspiracy to traffic, under the Controlled Substances Act §§ 30-31-1 to 30-31-40, N.M.S.A.1978 (Repl.Pam.1980). Because the writing of prescriptions which do not have a legitimate medical purpose is not prohibited in the Act, the application of §§ 30-31-20, 30-31-22, and 30-31-25 to Dr. Carr is unconstitutional. A new trial is required on the conspiracy charge because the verdict is ambiguous and because highly prejudicial evidence was erroneously admitted at trial.
Consti t u tionali ty.
Much convoluted and intricate reasoning is required to arrive at the conclusion that a physician may be prosecuted for trafficking and distributing under §§ 30-31-20, and 30-31-22(A) N.M.S.A.1978 (Repl.Pam.1980), although I agree that that is what the Legislature did intend. Yet it is not enough for the Legislature to intend to make an activity criminal; it must clearly
Both § 30-31-20 and § 30-31-22(A) prohibit unauthorized distributing of certain drugs, but neither of them mentions that dispensing might in some circumstances also be unauthorized. The writing of prescriptions is clearly dispensing. § 30-31-2(H), N.M.S.A.1978 (Repl.Pam.1980). On the face of §§ 30-31-20 and 30-31-22(A), “dispensing” is not a criminal activity. The federal law, in contrast, specifically includes “dispense” in the list of activities proscribed in the trafficking statute.
The majority reaches its conclusion that some types of dispensing are criminal by reading the regulations of the board of pharmacy. New Mexico Drug Laws and Board of Pharmacy Regulations, Reg.No. 20 § 913(AX180), in effect defines “prescription” as an order “issued only for a legitimate medical purpose”. This limitation on the meaning of “prescription” is not found in the Controlled Substances Act itself. See, § 30-31-2(T) (Repl.Pam.1980). I regard the absence of this limitation as fatal. A penal statute cannot be so vague that men of common intelligence must guess at its meaning. Connally; Bokum Resources Corp. Absent any other definition in the Act, a man of common intelligence would think that “prescription” was used in its ordinarily accepted meaning. That is set out in Webster’s as “a written direction for the preparation, compounding, and administration of a medicine.” Webster’s Third New International Dictionary 1792, def. 5a(l), (1961). Under accepted usage, the word “prescription” does not include the idea that it is “issued only for a legitimate medical purpose.”
The Legislature cannot delegate authority to an agency to make substantive law. See, Montoya v. O’Toole,
Because the Controlled Substances Act does not give adequate notice to physicians that they are distributing illegally when they issue prescriptions which are not for a legitimate medical purpose, the Act cannot constitutionally be applied to them. Similarly, the Act fails to give adequate notice that a physician who hands out drugs to his patients for other than legitimate medical purposes is distributing rather than dispensing.
Dr. Carr was also convicted under § 30-31-25(AX3), N.M.S.A.1978 (Repl.Pam.1980) of intentionally obtaining certain drugs by misrepresentation. The conviction was based on the theory that, in writing a prescription to Niki Jones, he misrepresented to the pharmacy that the prescription was for a medical purpose. This statute specifically, and the Act as a whole, fails to give adequate notice that the writing of a prescription by a physician could be misrepresentation.
With respect to the conspiracy conviction, I agree with the majority that a physician could be charged under the Act with conspiracy to traffic, if he is knowingly providing drugs to someone who is trafficking. However, I do not believe he could be charged with conspiracy to commit the felony of acquiring possession of a controlled substance by misrepresentation. The Act
Since I believe that Dr. Carr could be charged with conspiracy to traffic, but could not be charged with conspiracy to acquire possession of a controlled substance by misrepresentation, I find that the conspiracy conviction must also be reversed. A conviction cannot stand when it is impossible to tell on what basis the defendant was convicted by the jury, and one of the possible bases was unconstitutional. Stromberg v. California,
I would remand the case for trial on the charge of conspiracy to traffic. Because the other statutes under which Dr. Carr was charged cannot be applied to him without violating the United States and New Mexico Constitutions, I would reverse his convictions on all other counts.
Evidence.
Over objection, the State offered evidence through Kirk Dennis (Kurt Denay) that Niki Jones, the state’s principal witness, had told him that she had had oral sex with Dr. Carr in his office in return for drugs. After this witness testified, the state declined to call Niki Jones to ask her about the statement, so she was called by the defense. She testified that she had given a sworn statement to the Assistant Attorney General in which she denied having sex with the doctor. The statement that Niki told Denay she had oral sex with Dr. Carr was admitted as a prior consistent statement, since the defendant had, on cross-examination, challenged Niki’s story that she sold drugs for the doctor as a recent fabrication. However, the hearsay statement did not corroborate her testimony about selling drugs. Rather, it added the entirely new element of sex. Further, Niki was not cross-examined about the statement as is required by
The trial court also erred in admitting evidence concerning the sexual activities, drug habits, and deaths of two of Dr. Carr’s former patients. This evidence on collateral issues was intended to show prior bad acts of Dr. Carr. Being both highly prejudicial, inflammatory and irrelevant, its admission deprived Dr. Carr of his constitutional right to due process of law and a fair trial. The objectionable evidence concerned Mary Genarri and Martha Hamilton. Several witnesses testified concerning Mary Genarri, her use of drugs and her relationship to the defendant. Roy Profitt testified concerning an incident where he was with Mary Genarri and a couple of others one night when she called Dr. Carr and he came over to the house. She had said she needed some pain killer. She told Roy to stay in the livingroom and she and the defendant went into the den. They closed the door and were in the room for over one and a half hours. After a while Roy Profitt went outside and through a window he saw Dr. Carr lead an apparently dazed Mary Genarri over to the bed where he got on top of her to have intercourse. Afterwards, she appeared stoned. Profitt slapped her and, she told him she and the doctor had had sex. The next day, she tried to commit suicide by slashing her wrists.
George Boyce said that Mary Genarri was his girl friend on and off until right before she died. He testified about Mary’s use of drugs. He said that one night the defendant came over to her home and the two of them went in the bedroom for a few minutes. Before the doctor came, she was sick and nervous; afterwards, she was stoned.
Mary Wilson, Martha Hamilton’s sister, testified that she knew Martha Hamilton got her prescriptions, such as Darvon, from Dr. Carr, and talked about Martha’s illnesses and behavior before she died, including a suicide attempt. She said that Martha had been in love with the defendant and had had a sexual relationship with him.
Mary Hamilton, Martha Hamilton’s aunt, testified about times the defendant had visited Martha at her house. One time in particular, he came with his medicine bag and they went in the bedroom and closed the door. She thought she heard them arguing so she opened the door with her fingernail file. She discovered Martha Hamilton and the defendant making love.
The evidence concerning defendant’s patients, Mary Genarri and Martha Hamilton was held admissible under
Other crimes, wrongs or acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.
See, State v. Lopez,
I would conclude that evidence showing that the defendant acted outside the course of medical practice in prescribing narcotics to addicts was relevant. However, the evidence presented was not limited to the area of past prescription of drugs to narcotic addicts. There was abundant evidence of sexual relations that the defendant had with Mary Genarri and Martha Hamilton. The evidence of sexual relations had no relevance to the showing that Dr. Carr dispensed narcotics outside the course of medical practice to others than Niki Jones. The State also introduced evidence that the two women died, that Genarri’s physical condition deteriorated, that her bones showed when making love, and that both women tried to commit suicide. The implication was that defendant was responsible for all of this, although the State could not show that he was. In addition, the evidence was overwhelmingly prejudicial and inflammatory, so that any possible relevance was far outweighed by the prejudicial value under
The purpose of the testimony appears to have been to show the jury that the defendant was a sex maniac and drug dealer who caused the addiction and death of his patients. The purpose of the Rules of Evidence is to insure that the jury bases its verdict on relevant and material facts and not on collateral information which leads the jury to believe the defendant is of bad character and therefore more likely than not to be guilty of the charge at issue. State v. Ross,
Admission of the graphic evidence regarding the defendant’s sexual relationships with Mary Genarri and Martha Hamilton, the suicidal tendencies and deaths of these women, and the explicit descriptions of the deteriorating physical condition of Mary Genarri was improper. The constitutional