*1 opportunity remedy default an the de- obligation.
fault and meet his Wickaho- Sewell, ney Sheep Company v. 273 F.2d (9th 1959). Cir. Second, this notice of rescission was not sent Priestley behalf of and Nuckols. opening sentence of that letter states (Corona, they representing Ltd.).
who were explanation given No letter they, what authority attorneys, could parenthetical make the para- statement graph “In accordance with Paragraph 6 Agreement, personal guarantees Priestley of Joe and Charles Nuckols on the promissory note are hereby declared to be
void”. Priestley Granted that and Nuckols Corona, Ltd.,
were the sole stockholders of they separate are entities. See Scott
Graphics, v. Mahoney, Inc. (Ct.App.1976). P.2d 623 my opinion It is Priestley and Nuck- parties agreement ols were of Febru- 18, 1977, ary and bound all its terms and conditions. The notice was ineffective be- comply
cause it did not with the terms of agreement, assuming arguendo that the attorneys authority had to act in behalf of
Priestley and Nuckols. The trial court’s
findings regard in this supported by were
substantial evidence.
I would affirm. Mexico, New
STATE of Plaintiff-Appellee, CARR, Defendant-Appellant. C. Gerson
No. 4376. Mexico. Appeals of New Court of Feb. 1981. Rehearing Denied March 1981. 2,1981. April Denied Certiorari *3 Farber, Fe,
Steven G. Santa for defend- ant-appellant. Gen.,
Jeff Bingaman, Atty. Eric Scott Lombardi, Jeffries, Attys. Asst. Walter Gen., Fe, plaintiff-appellee. for Santa used in A. As the Controlled Sub- OPINION Act, the: “traffic” means stances HERNANDEZ, Judge. Chief any controlled sub- 1. manufacture of forty-two Defendant convicted I stance enumerated in Schedules counts Controlled Substances V, through 30-31-40, Act, 30-31-1 to N.M.S.A.1978 §§ distribution, sale, giving 2. barter (1980 by the Repl.Pamph.). He was found any controlled substance enumerat- away dilaudid, guilty to be I or which is a narcotic ed in II Schedules 30-31-20, distributing bi- contrary to drug, or phetamine, contrary to * * *g intentionally posses- obtaining acquiring misrep- biphetamine by Except sion of dilaudid and as authorized the Con- B. resentation, fraud, subterfuge, Act, deception, or it is unlawful trolled Substances * * *4 * contrary to 30-31-20 and 30-31-25 intentionally §§ traffic* any person 30-28-2, C.S.A. N.M.S.A.1978 § drugs prohibited The distribution (1980 Cum.Supp.). We affirm. 30-31-22, which reads: § The issues we are: I. Whether a address Except as the Con- A. authorized * * * a physician prescription who writes a it is unlaw- trolled Act Substances substance, controlled not in the course intentionally any person distrib- ful for professional re- practice medical or a possess with to distribute ute or intent search, “distributing” un- “trafficking” or except a substance controlled substance C.S.A.; physician der the II. a who whether II which is enumerated in I or Schedules * ** gives away or sells patient to a controlled drug* a narcotic substance, profes- not in the course of his drug in (hydromorphone), Dilaudid research, practice sional medical or is “traf- was to have traf- which defendant found C.S.A.; ficking” under III. if those ac- ficked, drug is a narcotic listed Schedule proscribed, application tivities are whether 31—7(A)(2)(g), II. N.M.S.A.1978 Section 30— to the defendant the statutes under (amphet- (1980 Biphetamine Repl.Pamph.). unconstitutional; which he was convicted is amine), drug he found to have physician charged IV. whether a may be is a distributed in violation of § intentionally obtaining a controlled II substance. Sec- non-narcotic Schedule by misrepresentation he when 30-31-7(A)(3)(a), (1980 tion N.M.S.A.1978 writes a not course of his de- Repl.Pamph.). The state contends that research; professional practice medical or bipheta- “distributed” fendant dilaudid V. whether the conspiracy conviction can prescribed when he them for mine stand; VI. whether admission of certain Jones. The definitions of “distribute” error; evidence constitutes reversible VII. relevant terms used in the C.S.A. other as grand whether the jury indictments are val- are set out below. id; VIII. whether prosecutor misconduct other “[Djistribute” to deliver means occurred a fair tri- denied defendant dispensing a by administering than or al; whether IX. there was error in the controlled substancef.] instructions; X. II whether Count -31-2(J). 30 Section gave indictment defendant sufficient notice actual, construc- means the charged; “[D]eliver” of the offense and XI. issues of a per- attempted from one tive or transfer new trial and cumulative error. son to another of a controlled substance physician I. The state asserts that who agency rela- whether or not there is an issues in the course of tionship^] professional practice or research is -2(G). 30 31 Section distributing drugs in violation of 30-31- § prohibited applica- or 30-31-22. Trafficking 20 means the direct “[A]dminister” pertinent part by any 30-31-20. In that stat- tion of controlled substance body re- patient ute reads: means to the
759
subject by
practitioner
search
or his
conduct
transactions
in controlled sub-
agent[.]
stances,
Best,
294,
State v.
292 N.C.
233
(1977);
S.E.2d 544
State,
McLean v.
30-31-2(A).
Section
(Tenn.1975);
S.W.2d
see generally Ha-
“[Dispense” means to
deliver
con-
State,
ney v.
While some states fourth and have found that their statutory parallel pursuant schémes shall to the sys- provi- embrace two be sentenced drug enforcement, tems of depending on sions Section 31-18-15 NMSA 1978 whether registered (1980 or not the violator Repl.Pamph.). act, similar to the federal 21 U.S.C. by reg- §§ of which violation
Section Substances seq. et Uniform Controlled under 30-31- See prohibited § istrants Note, 9 Prefatory Act: Commissioners 24(A)(1), reads: interpreting In the New U.L.A. listed in A. controlled substance No Moore, to the guided Act we are Mexico drug prescription II which is a Schedule that our statutes are similar extent by the federal food as determined federal statutes. administration, may dispensed drug practi- a written without the Act indi- A. The overall scheme tioner, directly to an unless administered punished could be registrants cates prescription for ultimate user. No well as 30- of the Act as other sections may be refilled. II substance Schedule First, makes statute 31-24. practitioner shall person No other than a intentionally any person to it unlawful for prescription. prescribe or write a 30-31-20(B). In constru- traffic. Section II Prescriptions statute, 841(a)(1), B. for Schedules ing a U.S.C. § similar following through IV shall contain noted in Supreme Court the United States “any information: say does not Moore that the statute language person except registrants”, (1) patient address of the the name and used if it had wished to prescribed; Congress could have drug for whom the application registrants exclude from name, (2) registry address and reasoning ap- statute. We believe that person prescribing the number of the our statute. plies also to pharmacist drug. The name of drug shall be dispensing date of Second, 30-31-20(B) does authorize prescription. the face of the inscribed on manufacture, (i. distribu- “trafficking” e. included in A controlled substance tion, sale, C. possession) in certain circum- IV, prescrip- which is a III or “Except Schedules says: It as authorized stances. under the New drug Act, tion as determined it is unlaw- the Controlled Substances *6 * * * Act -1 Drug and Cosmetic (Em- Mexico intentionally [26-1 to traffic.” ful 26-1-26, 26-3-1 to 26-3-3 NMSA to added.) is found in phasis Authorization a dispensed not be without 1978], shall 30-31-12, every per- that requires which § practi- prescription of a written or oral “manufactures, son distributes or dis- who * * * tioner, directly except when administered must penses any controlled an ultimate user. by practitioner, a to annually registration^]” a Section obtain filled or shall not be prescription 30-31-12(A). “may possess, Registrants after date more than six months refilled distribute, manufacture, dispense, prescribe * * * five refilled more than of issue or be or conduct research with [controlled] times, by practitioner renewed unless extent authorized their substances to the prescription placed is new with the oth- registration conformity and in Prescriptions be retained file. shall in the Controlled Substances provisions er of regulations with the of the conformity 30-31-12(B). This latter Section Act[.]” board. 822(b) to subsection is similar 21 U.S.C. § be a which the Court in Moore found to reject argument We defendant’s regis- authorization of all acts blanket punished only under 30- may § that he be trants, qualified rather a authorization but A. the following reasons: 31-24 for Similarly, we believe of certain activities. that of the indicates overall scheme C.S.A. statute, 30-31-12(B), only that our punished § under other registrants could be sections; qualified authorization for certain activities generally concerns B. 30-31-24 § regis registrants. of respect to technical violations trants; interpretation of defendant’s and C. rejecting for defendant’s Another reason absurdity. in an the Act results Legislature has argument that estab- parallel handling schemes for viola- the Uni- lished patterned after
The C.S.A. Act, is that which is tions of C.S.A. § form Controlled Substances says registrants, 15(A), applies (1980 to does Cum.Supp.). N.M.S.A.1978 Be- not on to apply its face them. The cause this difference is so we great, believe per- “It begins, any statute is unlawful for that prohibit 30-31-24 and 30-31-25 §§ ” * * * added.) SOn* all (Emphasis Not essentially technical violations. This is a in that use term subsections statute further the Legislature indication did person.” “registrant” “any to limit use systems not intend to establish dual reg- “registrant” and omission of the term ulating drug depending transactions on the significant by found the United States Su- status the offender. preme Court in examining Moore interpretation C. Defendant’s the Act 842(a) 843(a), U.S.C. which are §§ absurdity. would result in an Under his pertinent part similar our 30- to sections interpretation, physicians are liable under 31-24(A) 30-31-25(A), respectively. 30-31-24 and 30-31-18 rather than un- §§ The Court concluded that the fact statutes, general der the 30-31-20 and §§ apply exclusively and 843 did not §§ to correct, 30-31-22. If he physician who registrants argument weakened the prosecution altogether wished to avoid Congress parallel systems. had established indiscriminately could deliver drugs to oth- We adopt reasoning respect persons, long er so as he delivered them our statutes. issuing prescriptions, and his B. gen- Sections 30-31-24 and 30-31-25 conformed requirements to the technical erally concern technical violations. This is 30-31-24(A). Only §30-31-18. See if he perusal clear both from of these sections handing drugs made error of out with- and from a penalties. consideration their subject out a would he be A violation of either section is a fourth liability criminal for violation of 30-31- degree 30-31-24(B) felony, and 30-31- §§ prohibits dispensing 18. This statute 25(B), whereas a of the trafficking violation most controlled substances without writ- statute degree felony is a second prescription, ten unless direct- administered 30-31-20(B)(l). first offense. Section A ly user. a physician ultimate Thus comparison penalties al- drugs directly who handed out sold could leged parallel systems a factor prosecuted, accomplished but one who determining Leg- considered in whether through thing writing technically the same parallel sys- islature did intend to establish legal prescriptions Legisla- could not. The tems. In Moore the Court noted the less ture could not have intended that its laws penalties severe under the statutes regulat- not, could be circumvented so It is easily. ing registrants compared to the harsher therefore, reasonable to assume that *7 penalties general the under statutes indi- Legislature physicians to be intended liable cated that former statutes covered more only for violations of and im- 30-31-24 § or less technical violations. It concluded from prosecution general mune under the Congress that had not parallel established trafficking distributing statutes. The systems drug of enforcement under Legislature parallel sys- did not establish Best, Supreme Federal Act. In Court registrants tems —one for under Con- of penalties North Carolina noted that trolled Substances Act and another one for for general violations statute and everyone else. that purportedly apply- violations of statute dispenser same, argument Defendant’s that a ing registrants essentially to were 30-31-20, punished cannot be under governing § concluded the statute statute, or under registrants § covered more than technical vio- distributing, “dispensing” for is not systems because parallel regulat- lations. It found statutes, prohibited by per- ing drug law those transactions. Under current Mexico, agree We degree New suasive. fourth felon eighteen “prescribing” “dispensing,” is a method of imprison- sentenced to months ment, 30-31-2(H), degree re- we find that the act of whereas a second felon but § year writing ceives a than a techni- prescribing nine sentence. Section 31-18- is more pro- in the only to those written course drug. 30-31- cally legal for a Section order valid. If all practice) as: fessional 2(T) “prescription” defines valid, obtaining a con- anyone then were individually person for the given an order prescription to a pursuant trolled a controlled sub- prescribed whom is for 30- possession. Section be in lawful should prescriber stance, directly from the either however, every pos- 31-23(A) specifies, indirectly by means pharmacist or to is not prescription pursuant session signed by prescri- a written order respect argument A similar lawful. with the Controlled ber and in accordance made the dissent statute was adopted the Texas regulations Act or Substances Alford, (both Moore, supra Haney. See thereto[.] of similar statutes consider the effect courts New Mexico Board Regulations schemes). Pertaining statutory in their specify that: Pharmacy further specifies: 30-31-16 registrants, § records prescription for a controlled sub- [a] practitioner required is not E. A stance, only legiti- for a may be issued list- substances keep records of controlled purpose by an individual mate medical which he through II V ed in Schedules practitioner acting in the usual course of in the lawful or administers prescribes reg- professional practice, his and who is * * * professional practice* course of his Substances istered under Controlled * * * added.) (Emphasis added.) (Emphasis Act* to 21 U.S.C. provision This is similar of Phar- Drug New Mexico Laws and Board 827(c)(1)(A) in Moore Court 913(A) § Reg.No. 20 macy Regulations, § Congress as an indication that considered physician pre- Consequently, authorized medical intended to confine pre- when he issues a scribing drugs accepted We read within limits. practice purpose scription legitimate for a medical indication that the New our statute as an course of his acting and when usual acts, a similar intent. Legislature Mexico had When he so he professional practice. physi- When a 30-31-2(H). A view is correct. The state’s “dispensing” § legiti- prescription not for a not issue a cian writes physician who does nor in the usual acting purpose would not be under these conditions mate medical he is professional practice, the Act. in a manner authorized course of drugs. activity His in so do- “distributing” the view that the support As further may ing is not authorized C.S.A. only pre- authorize Legislature intended to 30-31-22. be a violation of 30-31-20 medical scriptions legitimate for a issued acting in the usu- purpose by practitioner II of the indictment II. Count we practice, professional al course of his trafficking in defendant with charges the course of his the words “in the note Jones, not in the course gave that he pre- limit professional practice” are used to research, professional practice scription writing in other statutes of which was a Schedule II pills a bottle of 30-31-23 states: C.S.A. Section this activi drug. narcotic The state claims any person in- unlawful for A. It is 30-31-20(A)(2), which ty is in violation of § possess a controlled sub- tentionally to II the distribution Schedule defines *8 the substance was obtained stance unless “trafficking.” not drug We do narcotic as pursuant prescription a valid or order to to outlaw Legislature intended believe acting in the practitioner of a while many physicians practice current of or ex- professional practice, course of his their sample medications to who hand out cept by authorized the Con- as otherwise legitimate purpose medical patients for a * * * (Empha- Act* trolled Substances medi professional in of their and the course added.) sis authorized practice or research. Such cal it activity “dispensing” be because incongruous in the would This statute would be delivery a controlled substance the would be of adopted if the view were that C.S.A. subject the lawful (as user to opposed to an ultimate Act considered all
763
practitioner.
order
ing
Section 30-31-
controlled
by
physician
substances
a
2(H).
already
For
similar
reasons
to those
according
the physician’s
pre-
lawful
mentioned, we
the Legislature
believe
scription.
prescription,
The
as we have
did intend that
the C.S.A. would
stated,
authorize
legitimate
must
for a
be
medical
dispensing by
physician
a
which
purpose;
requirement, expressed by
this
legitimate
for a
purpose
done
medical
C.S.A., is also inherent
in the definition of
and
professional
course
his
prac-
“prescription.”
“prescription”
A
is a writ-
Activity
tice or research.
which exceeded
medicine,”
ten direction for “a
Webster’s
these limits would not
dispensing,
be
but
1792,
Third New International Dictionary
distributing.
trafficking
unauthorized
5a(l) (1971),
def.
and “medicine”
“a
sub-
statute was
to a
apply
physician
intended
stance or preparation
treating
used in
dis-
gives
drugs
who
something
out
other
Thus, by
ease.” Webster’s at 1402.
defini-
legitimate
Thus,
than a
medical purpose.
tion, if the written direction is not for a
Count II of the
properly charged
indictment
illness,
used in treating
it is
with “trafficking.”
a prescription
not
as that
term
is used
C.S.A.,
as men
and
of common intelli-
argues
III. Defendant
application
gence understand the term. As
Ninth
trafficking
him the
distributing
Appeals
regarding
Circuit Court of
stated
sections is an unconstitutional contraven-
the similar federal statute:
tion
Fifth and Fourteenth Amend-
definition,
ments
United States Constitution
By
“dispense” expressly con-
II,
and of Article
18 of the New
order”;
Mexico
templates
“lawful
a
if the order
disagree.
Constitution. We
such,
is not
is not lawful
under 21
829
U.S.C. §
N.M.S.
[§
penal
regulation
A
statute or
which
(1980
A.1978
Repl.Pamph.)].
pre-
If the
requires
either forbids or
doing
of an
scription
lawful,
“practitioner”
is not
act
vague
in terms so
that men of common
rather,
dispense;
802(11)
does not
under §
intelligence
guess
must
at its meaning and
30-31-2(J),
(1980 Repl.
N.M.S.A.1978
[§
application
differ as to its
lacks the first
Pamph.)],
is,
he “distributes”—that
he ef-
essential of
process
Connally
due
of law.
v.
delivery
fects
dispensing.”
“other than
Co.,
General Construction
269 U.S.
46
short,
“practitioner”
In
dispenses
a
who
(1926);
S.Ct.
70
322
L.Ed.
Bokum Re
does not
violate
Act.
Corp.
sources
v.
Quality
New Mexico Water
Comm’n,
Black,
(9th
Control
93 N.M.
United
285
States
directed verdicts
entered, and that there is not substan-
been
provide
effecting delivery
fair notice that
support
the convictions.
tial evidence to
through
prescription
legitimate
a
not for a
witness,
Jones, the state’s chief
testi-
Niki
purpose
prohibited
as distribution
with de-
agreement
had an
fied
she
We
find no
trafficking.
or
thus
merit to
prescrip-
he
write
whereby
fendant
would
allegation
defendant’s first
of unconstitu-
then sell.
tions
her which she would
for
tionality.
gave
that on
occasion she
She said
one
$2,000.00
split
of the
doctor
as
one-third
find no merit to
We also
defendant’s
testimony
drug sales. Her
money from
“
may
point.
second
‘Possession’
be actual
alone,
that of others who corrobo-
without
constructive.
U.J.I.Crim. 36.40.
or
See
testified as to “other
rated elements and
possession requires no more
Constructive
wrongs,”
support
is sufficient to
the convic-
the narcotic and control
knowledge
than
tions, viewing
light
the evidence in the
most
it; control,
turn, requires no more
over
resolving
to the state and
all con-
favorable
power
produce
dispose
or
of the
than
indulging
permissible
all
inferenc-
flicts and
734,
Montoya,
narcotic.”
v.
92 N.M.
State
Parker,
of the verdict.
v.
es in favor
State
(Ct.App.1979). Application of
765 (Ct.App.1977), citing charged P.2d 1270 United conspiring defendant with with felony v. Minerals & Niki to commit States International Chemical Jones the of inten- 1697, Corp., tionally obtaining possession 91 29 of by U.S. S.Ct. dilaudid fraud, (1971). misrepresentation, deception L.Ed.2d 178 or sub- terfuge, trafficking and/or dilaudid. The also Defendant contends that jury was instructed that to return a convic- to support evidence insufficient his con tion, it had to the parties find that both -25(A)(3). victions under 30 -31 Proof of agreed and intended to commit the crime of possession may substance controlled intentionally possession obtaining of a con- through circumstantial evidence. by misrepresentation, trolled There requirement proof is no fraud, deception subterfuge, or or the crime by should be or evi- direct uncontradicted trafficking. of From phrasing of these Rather, dence. the evidence must be charges verdict, and the jury’s general it is conduct, such as discloses some declara- impossible jury to know if the found the tions or the part actions of on the accused conspired defendant had to illegally acquire from which fact may fairly finder possession of a controlled substance or con- infer satisfy and which is sufficient it spired to traffic. beyond a knowledge reasonable doubt of C.S.A., Under the as we presence interpret accused of nature it, a physician charged could be with of the either narcotics. Where this been has conspiracy conspiracy to traffic done to ac has been burden met. quire possession misrepresentation. Garcia, N.M. State Conspiracy is “knowingly defined as com (1966). proof In of addition defendant’s bining purpose another for the of com knowledge presence of character * * * *” mitting felony Section possessed, the item the state show must (1980 Cum.Supp). N.M.S.A.1978 A physi right “the immediate to exercise dominion agreed cian who intended and to act with and control over the narcotics” to establish felony another to commit a could be found possession. Bauske, constructive before, guilty conspiracy. of As discussed supra. There is substantial in this evidence physician can charged crimes under case on all elements posses- constructive all three sections of the writing C.S.A.: sion. Defendant himself pre- wrote the legitimate not for a substances, scriptions the controlled fdr purpose, physician can be distributing, gave those prescriptions to Niki The Jones. trafficking, acquiring possession by mis evidence shows that Jones three made representation, all felonies under Act. dilaudid, trips to sell money and shared the jury properly could find that defendant she obtained from one sale with defendant. conspired with Niki to commit Jones either Jones encountered difficulties on the other felony or the felony of arose, trips; two when these difficulties she acquiring possession misrepresentation. called tell him hap- defendant what had A general guilty pened. verdict in a sup- This is substantial evidence’ criminal case must aside be set where it can porting the jury convictions. The could be supported ground on one but not on reasonably infer from this evidence that impossible another and it is to tell which knowledge had presence ground the jury selected. Yates v. United substances, and character of the and that he States, U.S. S.Ct. right had immediate to exercise control ground L.Ed.2d 1356 Either will them, reported over since Jones to him support the jury’s general verdict in this trips. her about It was not error for case, so verdict stands. court to refuse enter directed verdicts acquittal, and the supported convictions are argues Defendant also that the con by substantial evidence. dismissed, charge been spiracy should have
V.
guilty
returned
verdict of
because under the facts of this case it vio
indictment,
on Count
I
disagree.
lates Wharton’s Rule. We
*11
well
trafficking
very
produce
agree-
may
an
commit
provides
Rule
that
Wharton’s
general
in a more
particular
engage
a
to
by
persons
agreements
ment
to commit
two
prosecuted
conspiracy
as
as
con-
a
conduct
the
pattern
crime cannot
of criminal
is
a na-
particular
when
crime
of such
are
their
the
diverted from
trolled substances
require
participa-
the
necessarily
ture as to
Because of these
legitimate medical uses.
1 R.
persons
tion
two
for its commission.
agreement
the
here
differences between
Anderson,
Criminal Law
Wharton’s
offenses,
Wharton’s Rule
we
and traditional
(1957). The United
States
Procedure §
significant weight
the
give
to
to
decline
Supreme
nature and
has clarified the
Court
in this case. The dis-
presumption
Rule’s
in modern
application of Wharton’s Rule
failing
error in
to
trict court committed no
law.
criminal
conspiracy charge.
dismiss the
indicate
prior
This
decisions
Court’s
argues that the
Defendant also
con
broadly
Wharton’s
the
formulated
supported
is
spiracy
conviction
not
sub
principles
Rule does not rest on
of double
The evidence regarding
* * *
stantial evidence.
*
jeopardy
omitted.]
[Citations
conspiracy
testimony of
the
consisted of
Instead,
vitality only
it has
as
current
the
Jones and
that de
judicial
applied only
to
in
presumption,
coconspirator
fendant wrote.
“The
rule
to the
legislative
the absence of
intent
not
apply
testimony
does
to
in-court
of-
contrary. The
Wharton’s Rule
classic
conspirator
who
about
testifies
his own
incest,
adultery,
duell-
bigamy,
fenses —
Jacobs,
activities.”
ing
crimes that are characterized
—are
(Ct.App.1978).
credibility
575 P.2d
The
agreement
general congruence
testimony
deter
to
completed
offense.
substantive
and the
40.20,
mine. U.J.I.Crim.
N.M.S.A.1978.
agreement
to the
are
parties
The
support
There
substantial evidence to
persons
participate in commission of
who
conspiracy conviction.
offense, and
immedi-
the substantive
on the
consequences
ate
of the crime rest
argues
VI. Defendant
that admission of
society
parties
rather than on
themselves
death,
“sex,
relating
drugs”
evidence
to
Finally, the
large.
at
omitted.]
[Citation
prejudicial
deny
was so
as
his rights
to
agreement
that attends the substantive
process
due
fair trial. Defendant
appear likely
pose
to
offense does not
argues that this evidence should have been
society
to
kinds of threats
distinct
probative value is
excluded because “its
to avert.
conspiracy
the law of
seeks
outweighed by
danger
substantially
States,
v. United
U.S.
Iannelli
prejudice” under N.M.R.Evid. 403.
unfair
(1975) (footnotes
1284,
7^7
prejudicial.
highly
irrelevant and too
Evi Rule 106 states that when a writing
in
404(b) permits the
dence Rule
admission of
an
party,
party
troduced
adverse
may
show, among other
wrongs
things,
require
other
“any
introduction of
part
other
plan.
any
defendant’s intent and
The district
writing
other
or recorded statement
*12
testimony
ought
court admitted
from Michael which
in fairness
be
considered
Sedbrook,
Jones, George Boyce,
Dr.
contemporaneously with it.” Defendant
Proffitt,
Disher,
J.
Derbyshire, Roy
sought
R.
Dr.
require
introduction
all his
of
Gogel,
Spaulding
Howard
and Dr. Charles
notes on
purpose
Gennari. The
of Rule 106
about defendant’s actions and relationship
permit
is to
the introduction of recorded
Mary
The
place
Gennari.
district court ad
statements
in
that
context other writ
testimony
Mary
which,
mitted
from
ings
Hamilton and
admitted into evidence
viewed
Mary
alone, may
Wilson about defendant’s
misleading.
actions
be
United States v.
relationship
Jamar,
(4th
1977).
Martha Hamilton. This
cal issues
involved and
deference and
VII.
that he
Defendant
asserts
respect
ordinarily
given
which would
to was denied
process
due
law acts of the
physician’s opinion.
Because intent must
Attorneys
Assistant
General and the Depu
usually
proved circumstantially,
prej
ty
Attorney
the grand jury.
District
before
impact
udicial
of this evidence did not out
persons
properly
presence
Those
were
in the
weigh
Libero,
its usefulness. State v.
grand jury
“persons required
as
or
N.M.
(Ct.App.1978).
Defendant claims district court resulted from a conflict of interest be admitting acting erred they partisans, defendant’s medical cause as were “bent notes on Gennari into upon obtaining evidence. Evidence an indictment.” See State present Hill, (Ct.App. when such conduct can there is reason to be-
1975).
attorneys
question
disa-
whether
The mere fact that
jury’s
lieve
influenced
verdict
jury’s presence,
that it
gree
grand
appropriate steps
presented
to take
have
failure
attorneys
defense
would
warrant
a reversal.
grand jury,
to remove it will
advice to the
legal
different
indictment.
does not invalidate the
States,
(10th
traffic
Niki
the
to
I believe the
solely
defendant can
tried
whom
charged
giving
defendant was
traffic,
charge
conspiracy
on the
of
to
under
drugs,
that
the
testified
she
recall
could not
the
Act
Controlled Substances
30-31-1
§§
the exact date
of
occurrence.
30-31-40,
(Repl.Pam.1980).
to
N.M.S.A.1978
necessary
“It is
for an- Information
writing
prescriptions
Because
of
allege
give
to
such facts as are
to
necessary
legitimate
do
purpose
not have
medical
is
defendant
crime
notice
Act,
in
prohibited
application
not
* * *
charged*
Every accused has the
30-31-20, 30-31-22, and 30-31-25 to
§§
Dr.
right
to
be informed
the crime with
A
Carr is unconstitutional.
new trial
is
which he -is
in
charged
sufficient detail to
required
charge
on the conspiracy
because
enable him
prepare
defense.” State
ambiguous
is
highly
verdict
and because
Foster,
155,
(Ct.
v.
87 N.M.
define
activity.
Hines v.
Legislature
422
delegate
cannot
authori-
(10th
1970);
Prince,
ty
agency
F.2d 1002
Cir.
v.
to an
to make
State
substantive law.
See,
O’Toole,
303,
15,
Montoya v.
94 N.M.
(1948).
52 N.M.
in the Controlled Substances Act
itself. misrepresentation.
The conviction was
See,
30-31-2(T) (Repl.Pam.1980).
I
that,
re-
theory
based on the
in writing
pre-
a
gard the absence of
Jones,
this limitation as fatal.
scription to Niki
he misrepresented
penal
A
statute
vague
pharmacy
cannot be so
to the
prescription
was
men of
intelligence
guess
purpose.
common
for a medical
specifi-
must
at
This statute
whole,
meaning.
cally,
its
and the Act as a
Connally;
give
Bokum
fails to
Resources
adequate
Corp.
notice that
any
writing
pre-
Absent
other
definition in the
Act,
scription by
physician
misrepre-
could be
a man
intelligence
of common
would
sentation.
“prescription”
think that
was used in its
ordinarily accepted meaning. That
is set
respect
conviction,
With
conspiracy
out in Webster’s as “a written direction for
I agree with
majority
physician
that a
preparation,
compounding, and adminis-
charged
could be
under
Act with con-
tration of a medicine.” Webster’s Third
traffic,
spiracy to
knowingly provid-
if he is
New International Dictionary
def.
ing drugs
trafficking.
to someone who is
5a(l), (1961).
accepted usage,
Under
the However,
I do not believe he could be
“prescription”
word
does not
include the
charged
conspiracy
with
to commit the felo-
idea that it
legitimate
is “issued
for a
ny of acquiring possession of a controlled
purpose.”
by misrepresentation.
The Act
construed, constitutionally,
did
her
cannot be
as
statement
not corroborate
testimo-
making
writing
Rather,
ny
selling
mis-
it
drugs.
about
added
here,
representation.
is,
Further,
When there
entirely
as
new
sex.
element of
technical
with
and
compliance
30-31-24
§§
about
was
cross-examined
(Repl.Pam.1980),
physi-
N.M.S.A.1978
required by
statement
as is
N.M.R.Evid.
cian who writes
cannot be
N.M.S.A.1978,
801(d)(1),
presumably be-
charged
conspiracy
acquire posses-
with
to
deny
cause the
knew she would
it.
by misrepresentation.
sion
hearsay,
prop-
The statement was
was not
erly
prior
admitted as
consistent state-
I
Since
believe
Dr. Carr
could
ment,
very prejudicial
was
and inflam-
traffic,
charged
conspiracy
but
403, 801(d)(1),
matory, N.M.R.Evid.
§§
charged
could not
with conspiracy
802, N.M.S.A.1978.
acquire possession of a controlled substance
by misrepresentation,
I
con-
find that
admitting
The trial court also
erred
spiracy
must
A
conviction
also be reversed.
activities,
concerning
evidence
the sexual
impossi-
conviction cannot stand when it is
habits,
drug
and deaths of two of Dr. Carr’s
ble to tell on
basis
what
the defendant was
patients.
former
This evidence on collater-
possi-
convicted
jury,
and one of the
prior
al
was
issues
intended to show
bad
ble
Stromberg
bases was unconstitutional.
highly preju-
acts
Carr. Being
of Dr.
both
California,
283 U.S.
S.Ct.
dicial,
irrelevant,
inflammatory
its ad-
L.Ed. 1117
I cannot tell from the
deprived
mission
Dr. Carr of his constitu-
verdict,
wording
general
process
tional
to due
law and a fair
right
instructions,
indictment,
or the
whether
objectionable
trial. The
concerned
evidence
jury found that
conspired
Dr. Carr
to traf- Mary Genarri and Martha Hamilton. Sev-
conspired
fic or
acquire posses-
that he
concerning Mary
eral witnesses testified
by misrepresentation.
sion
Genarri,
her
drugs
her use of
relation-
ship
I would remand the case
on
Roy
for trial
to the defendant.
Profitt testified
charge of
conspiracy
concerning
traffic. Because
an
he
incident where
the other
Mary
statutes
which Dr. Carr
couple
Genarri and a
others one
*16
charged
applied
was
with-
cannot
to him
night
she
when
called Dr. Carr and he came
out violating the United
and New
States
over to the house. She had said she needed
Constitutions, I
Mexico
his
would reverse
pain
Roy
stay
some
killer.
She told
in
convictions
other
on all
counts.
the
livingroom
the
and she and
defendant
went
the
They
into
den.
closed the door
Evidence.
and were
the room for
one and a
over
objection,
Over
the
evi-
State offered
Roy
half hours. After a while
Profitt went
(Kurt
through
Denay)
dence
Kirk Dennis
through
outside and
he saw Dr.
window
Jones,
principal
Niki
the state’s
wit-
apparently
Mary
an
Carr lead
dazed
Genar-
ness, had
that she
sex
told him
had had oral
got
top
ri
the
on
over to
bed where he
with Dr. Carr in his office in return for
Afterwards,
her
intercourse.
to have
she
testified,
drugs.
After
this witness
and,
slapped
stoned.
her
appeared
Profitt
state
call Niki
her
declined to
Jones to ask
she
she told him
and the doctor had had sex.
statement,
about the
so she was called
day,
The next
she tried to commit suicide
the defense.
testified that she had
She
by slashing her wrists.
given a
sworn statement
the Assistant
Attorney
George Boyce
Mary
in which
hav-
General
she denied
said that
Genarri was
ing
girl
right
sex with
doctor. The
on
statement
his
friend
and off until
before
Denay
that Niki told
she had oral
Mary’s
sex
she died. He testified about
use of
prior
Dr. Carr
as a
drugs.
was admitted
consistent
He said that one
night
defend-
statement,
had,
since
on
ant
over to her
came
home and
two of
cross-examination, challenged
story
a few
Niki’s
them went
the bedroom for
min-
drugs
came,
that she sold
for the
as a
doctor
utes. Before the doctor
she was sick
nervous;
However,
hearsay
afterwards,
recent fabrication.
and
was stoned.
she
her The evidence of sexual relations had no
her addiction and how
George discussed
showing
condition had deteriorated.
She
that Dr. Carr dis-
physical
relevance
her;
later she
was
when he met
the course of
pensed
beautiful
narcotics outside
medi-
sick, thin,
had bruised arms
was
practice
cal
to others than
Jones. The
marks;
showed while
needle
and her bones
introduced evidence that the two
State also
they
love.
made
died,
physical condi-
women
that Genarri’s
deteriorated,
that her bones showed
tion
Wilson,
sister,
Hamilton’s
Mary
Martha
love, and that both women
making
when
knew Martha Hamilton
testified
she
implication
The
tried to commit suicide.
Darvon,
such as
from
got
prescriptions,
her
responsible for all
that defendant was
Carr,
illness-
Dr.
and talked about Martha’s
this, although the
could not show
State
died,
including
before she
es and behavior
addition, the evidence was
that he was.
In
attempt.
suicide
said that Martha had
She
and inflamma-
overwhelmingly prejudicial
been in love with the defendant and had
relevance was far
tory,
any possible
so that
relationship
had a sexual
with him.
prejudicial
value under
outweighed by
Hamilton,
aunt,
Mary
Martha Hamilton’s
Rule 403.
testified about times the defendant had vis-
time in
purpose
testimony appears
ited Martha at her house. One
particular,
bag
he came with
medicine
jury
been to show the
that the defend-
have
they
went in the bedroom and closed
drug
dealer who
ant was
sex maniac
thought she heard them ar-
the door. She
pa-
of his
caused the addiction and death
opened the
with her fin-
guing so she
door
of Evi-
purpose
of the Rules
tients.
gernail file.
discovered Martha Hamil-
She
jury
is to insure that
bases its
dence
making love.
ton and the defendant
and material facts and
verdict on relevant
not on collateral
information
leads
concerning
pa-
defendant’s
The evidence
to believe the defendant
is of bad
tients,
Hamilton
Mary Genarri and Martha
likely
more
than
character and therefore
under N.M.R.Evid.
was held admissible
guilty
charge
to be
at
issue.
403, N.M.S.A.1978,
404(b)
on the issue
Ross,
P.2d
404(b)
Rule
of intent. Evidence
reads:
(evidence that
(Ct.App.1975)
defendant was
crimes, wrongs or acts. Evidence
Other
overly prejudicial). Even
prostitute
held
crimes, wrongs or acts is not
of other
where evidence is admissible under Rule
prove
admissible to
character
404(b),
Rule 403 is af-
prejudice
person in order to show he acted in con-
fected
the amount of such evidence.
however,
may,
formity therewith.
It
spent
most of trial time is
on collat-
Where
purposes,
for other
such as
admissible
the matters
eral matters rather
than on
motive,
intent,
proof
opportunity,
indictment,
emphasis
at
*17
covered
preparation, plan, knowledge, identity or
distorted, resulting in unfair
trial becomes
of mistake or accident.
absence
See,
jury.
prejudice
misleading
See,
Lopez,
v.
516 P.2d
Jones,
(8th
v.
inflammatory, prejudicial and irrelevant ev-
idence was reversible error. At the new
trial I traffic, would order on conspiracy to
this evidence would not be admitted. SWEENHART,
Paul Rep- as the Personal Gary resentative of the Estate of L. Sweenhart, deceased, Plaintiff-Appel- lant, CO-CON, INC. and Mountain States
Constructors, Defendants-Appellees.
No. 4799. Court Appeals of New Mexico. Paul Wainwright Gregory Pelton, V. Robinson, Wainwright, Stevens & Albu- Feb. 1981. querque, plaintiff-appellant. 1,1981.
Certiorari April Denied Johnson, Modrall, L. Sperling, Thomas
Roehl, Sisk, Harris & Albuquerque, for de- fendants-appellees.
OPINION
WALTERS, Judge. case, wrongful
In this death the trial granted court defendant’s motion for sum- mary judgment grounds on of decedent’s contributory negligence. reverse be- .We cause a material issue of fact exists relative proximate cause. Since the case must be trial, remanded for we also an discuss evi- dentiary by appellant. matter raised judgment Summary 1. should granted genuine where “there is no issue *18 any as to material fact and [where] moving party judgment is entitled to a as a 56(c), matter of law.” N.M.R.Civ.P. N.M.S. (1980 Repl.Pam.); A.1978 Oschwald v. Christie, N.M., burden is on defendant to show the absence fact, genuine issue of and once he has