State v. ClausingState v. Clausing
- Reporters:
- ,
- Before:
- Sweeney, Johnson, Madsen (en banc)
It is unlawful for any person to deliver a legend drug except upon prescription of a physician.
FACTUAL BACKGROUND
The essential facts here are undisputed.
The Washington State Board of Osteopathic Medicine and Surgery revoked the license of Dr. Vernon Clausing in April 1995 for violating
Undeterred, Dr. Clausing hired two licensed physicians to staff his clinic on an occasional basis. He then continued to purchase these drugs, using the prescription drug authorization numbers of the two licensed physicians. Dr. Clausing then continued to supply Soma and Nubain as refills of what he claimed were valid prescriptions issued prior to the revocation of his license to practice.
Sheryl Reynaga is a former patient and former volunteer employee of Dr. Clausing. In July 1995, she reported to the King County police that Dr. Clausing was still distributing legend drugs despite his license suspension. Police enlisted her support for a sting operation. She made three controlled buys from Dr. Clausing while fitted with a recording device. Dr. Clausing delivered Nubain and Soma to her.
Based on this evidence, police executed search warrants on Dr. Clausing‘s clinic and home. They seized large quantities of Nubain and several bulk bottles of Soma tablets. The State charged Dr. Clausing with numerous violations of the drug act. He was tried to a jury in 1997. The jury was unable to reach a verdict on three counts of unlawful delivery of a legend drug and one count of possession with intent to deliver a legend drug, all contrary to former
TRIAL
Former
Dr. Clausing conceded that he delivered Nubain and Soma, and that these were legend drugs as defined by the statute. He also conceded that he was not licensed as a physician or pharmacist and was not, therefore, a “practitioner” as defined in former
Donald Williams is the executive director of the Washington State Board of Pharmacy. He testified, over Dr. Clausing‘s objection, that a prescription issued by a physician became invalid when the doctor‘s license was revoked. The court instructed the jury that the director‘s opinion was not to be taken as a legal opinion, but only from the practical perspective of a pharmacist. RP (Feb. 11, 1998 morning) at 15.
The court first instructed the jury that:
It is a crime for any person to deliver a legend drug except upon the order or prescription of a licensed physician or osteopathic physician except as authorized by law.
Clerk‘s Papers (CP) at 200 (Instruction No. 7) (emphasis added). This modifies the pattern instruction. The word “physician” is not qualified by “licensed” in the pattern instruction. 11 WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 55.03, at 693 (2d ed. 1994) (WPIC). But it accurately states the substance of former
If the defendant asserts that a prescription exists, WPIC 55.03 directs the court to add the following burden of proof instruction found in WPIC 55.06:
It is not unlawful to deliver a legend drug upon the order or prescription of a physician or osteopathic physician and surgeon.
The State has the burden of proving beyond a reasonable doubt that the defendant did not deliver a legend drug upon the order or prescription of a physician or osteopathic physician and surgeon. But the court again modified the instruction by importing into WPIC 55.06 language from the professional licensing regulations of chapter 18.64 RCW (Pharmacists) and instructed the jury that:
It is not unlawful to deliver a legend drug if the legend drug either: 1) is dispensed by a licensed practitioner upon the order or prescription of a licensed physician or osteopathic physician; or 2) is delivered by a practitioner acting within the scope of his or her license.
The State has the burden of proving beyond a reasonable doubt that the legend drugs in Counts I, II, and III were not dispensed by a licensed practitioner upon the order or prescription of a licensed physician and that they were not delivered by a practitioner acting within the scope of his or her license.
CP at 210 (Instruction No. 17) (emphasis added). A corresponding instruction was given for the possession count. CP at 218 (Instruction No. 25).
Dr. Clausing objected to Instruction No. 17 arguing it was confusing and should be omitted from the instructions entirely: “I just think it confuses everybody. It‘s confused you, it‘s confused us, it‘s confused the jury. We‘re not able to argue about what the real facts of the case are if [sic] whether the patient had a prescription.” RP (Mar. 2, 1998) at 24. The court explained that the added language was necessary because the statute was “less than well written.” Id. at 21-22.
The jury found Dr. Clausing guilty as charged.
DISCUSSION
Dr. Clausing contends that the trial court‘s burden of proof instruction misstated the requirements of the statute under which he was charged. Specifically, he points out that former
STANDARD OF REVIEW
Jury instructions are sufficient if they are supported by substantial evidence, allow the parties to argue their theories of the case, and when read as a whole properly inform the jury of the applicable law. State v. Riley, 137 Wash.2d 904, 908 n. 1, 909, 976 P.2d 624 (1999). We review the adequacy of jury instructions de novo as a question of law. State v. Pirtle, 127 Wash.2d 628, 656, 904 P.2d 245 (1995). It is prejudicial error to submit an issue to the jury that is not warranted by the evidence. State v. Fernandez-Medina, 141 Wash.2d 448, 455, 6 P.3d 1150 (2000).
THE STATUTE
First, it is important to remember that we are not charged with passing on the social or moral propriety of Dr. Clausing‘s activities. Conduct may well be harmful, offensive, immoral, or just plain wrong. But whether it is also criminal is a judgment left to the legislature. In re Welfare of Colyer, 99 Wash.2d 114, 139, 660 P.2d 738 (1983). The legal question before us is a narrow one—did the court‘s instructions inform the jury of the elements of the crime of unlawful delivery of a legend drug as set out in former
Dr. Clausing conceded that he delivered a legend drug. He also conceded that he was not a practitioner. The only factual question before the jury was, therefore, whether Ms. Reynaga had a valid prescription for these drugs. The absence of a physician‘s prescription was the single essential element of the offense of unlawful delivery, which the State had to prove beyond a reasonable doubt. Dr. Clausing did not have to prove that Ms. Reynaga did have a prescription. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (prosecution must prove the essential elements of the crime and the nonexistence of any defense which by its terms asserts that one of those elements was not present).
THE INSTRUCTIONS
But the court‘s instructions fail to identify this essential factual dispute for the jury. Instead, the court required the jury to determine whether the legend drugs were dispensed by a licensed practitioner. The net effect was to require both a prescription and a license to practice as conditions for the lawful delivery of legend drugs. Former
Instructional error is presumed to be prejudicial unless it affirmatively appears to be harmless. State v. Wanrow, 88 Wash.2d 221, 237, 559 P.2d 548 (1977).
The second prong of the court‘s instruction, that a legend drug can be lawfully delivered by “a practitioner acting within the scope of his or her license” is superfluous. CP at 210. Dr. Clausing conceded that he was not a practitioner.
He did testify that he never delivered legend drugs without a prescription. It was up to the jury to accept or reject that assertion. But, given the wording of the instruction, the jury may not have reached that question. Once the jury concluded he was not a practitioner, it could find Dr. Clausing guilty without further inquiry. The result was to relieve the State of the burden of proving an essential element of these crimes. And this requires reversal.
OPINION TESTIMONY ON QUESTION OF LAW
Dr. Clausing next complains that the court improperly allowed the executive director of the Board of Pharmacy to tell the jury that a physician‘s prescriptions were no longer valid after the revocation of the physician‘s license. This, he says, is a legal opinion. We agree. And, in fact, there are three distinct problems with the testimony.
For an expert to testify to the jury on the law usurps the role of the trial judge. Ball v. Smith, 87 Wash.2d 717, 722-23, 556 P.2d 936 (1976). “Each courtroom comes equipped with a `legal expert,’ called a judge, and it is his or her province alone to instruct the jury on the relevant legal standards.” Burkhart v. Wash. Metro. Area Transit Auth., 112 F.3d 1207, 1213 (D.C.Cir.1997). A contrary rule would confuse the jury because “`each party would find an expert who would state the law in the light most favorable to its position.‘” Harvey Brown, Eight Gates for Expert Witnesses, 36 HOUS. L.REV. 743, 771-72 (1999) (quoting Askanase v. Fatjo, 130 F.3d 657, 672-73 (5th Cir.1997)).
Second, as the Court of Appeals noted: “The State concedes that this opinion `does not appear to be explicitly supported in statutory law,’ and indeed, there is no Washington authority for Williams’ statement.” State v. Clausing, 104 Wash.App. 75, 86, 15 P.3d 203 (2001).
Third, after overruling an objection to the testimony, the court told the jury that:
[T]he question should not elicit and it‘s not intended to elicit—and the answers should not be considered by you as a legal opinion—an opinion as to what the law is or what the law is that you would apply in this case.
It‘s being offered as an opinion from this witness from the perspective of a pharmacist or an employee of the Board of Pharmacy.
RP (Feb. 11, 1998 morning) at 15. But the testimony is a legal opinion, no matter what the court said, and an erroneous one at that. The evidence was, then, improperly admitted. And the court‘s cautionary instruction to the jury was not curative.
The significance of this legal opinion was highlighted by the prosecutor‘s jury argument: “The head of the Board of Pharmacy, the man who in this station is responsible for the regulations of these drugs says, “When you lose your license to practice medicine, your prescriptions are void.‘” RP (Mar. 2, 1998) at 101. The court sustained Dr. Clausing‘s objection to the prosecutor‘s remark as a misstatement of the facts. But the opinion nonetheless supported the prosecutor‘s argument.
Dr. Clausing‘s defense was that he delivered legend drugs only upon a physician‘s prescription—including prescriptions issued by him before his license was revoked. The legal validity of these prescriptions was, therefore, critical to his defense. The jury should, therefore, have received instruction on this point, rather than being asked to decide the question as a matter of fact.
CONCLUSION
The conviction is reversed.
ALEXANDER, C.J., SMITH, SANDERS, CHAMBERS, JJ., and KURTZ, J.P.T., concur.
OWENS, J. (dissenting).
Under Vernon Clausing‘s interpretation of the unlawful delivery statute, former
A closer look at the genesis of Jury Instruction 17 is warranted. The starting point is former
It shall be unlawful for any person to sell, deliver, or possess any legend drug except upon the order or prescription of a physician under chapter 18.71 RCW, an osteopathic physician or an osteopathic physician and surgeon under chapter 18.57 RCW, ...: PROVIDED, HOWEVER, That the above provisions shall not apply to ... any practitioner acting within the scope of his or her license,....
Accordingly, the trial court instructed the jury that “[i]t is a crime for any person to deliver a legend drug except upon the order or prescription of a licensed physician or osteopathic physician except as authorized by law.”1
The court thus gave the following “to convict” instruction:
To convict the defendant, Vernon Clausing, of the crime of unlawful delivery of a legend drug as charged in Count I, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 27th day of July, 1995, Vernon Clausing unlawfully delivered a legend drug; and
(2) That the acts occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty as to Count I.
On the other hand, if, after weighing all the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty as to Count I.[2]
But plainly, this instruction, which tracks the pattern jury instruction does nothing to define
the crime of unlawful delivery. See 11 WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 55.04, at 694 (2d ed. 1994) (WPIC). Here, the first “element” of the crime of “unlawful delivery of a legend drug” is proof beyond a reasonable doubt that the defendant “unlawfully delivered a legend drug.”3
To clarify the circular first element of the “to convict” instruction, the trial court turned to WPIC 55.06:
It is not unlawful to deliver a legend drug upon the order or prescription of a physician.
The State has the burden of proving beyond a reasonable doubt that the defendant
But this pattern instruction has the same limitation as the “to convict” instruction-it says nothing new or enlightening. The instruction merely transforms the statute‘s positive statement (already set forth in instruction 7) into a negative one and reiterates that the State has the burden of proof, a fact the court had made plain in instruction 6. See Clerk‘s Papers (CP) at 199. Nevertheless, Clausing‘s advisory attorney proposed WPIC 55.06 virtually verbatim, see CP at 163, and Clausing himself proposed only a slightly expanded version: “It is not unlawful for an unlicensed person to possess or deliver a legend drug upon an order or prescription from a licensed physician in the line of his legitimate employment.” CP at 182.
Faced with pattern jury instructions saying little more than that an unlawful delivery requires proof of an unlawful delivery and that a lawful delivery is not an unlawful delivery, the trial court modified WPIC 55.06 to set forth for the jury just what constitutes a lawful delivery and what precisely the State must prove:
It is not unlawful to deliver a legend drug if the legend drug either: 1) is dispensed by a licensed practitioner upon the order or prescription of a licensed physician or osteopathic physician; or 2) is delivered by a practitioner acting within the scope of his or her license.
The State has the burden of proving beyond a reasonable doubt that the legend drugs in Counts I, II, and III were not dispensed by a licensed practitioner upon the order or prescription of a licensed physician and that they were not delivered by a practitioner acting within the scope of his or her license.
CP at 210 (Jury Instruction 17). Responding to Clausing‘s objection, the trial court emphasized the necessity of this instruction: “If I were to take [instruction 17] out altogether, there would [be] no guidance to the jury on the issue of what is lawful or unlawful,....” Report of Proceedings (RP) (Mar. 2, 1998) at 24.
This jury instruction adeptly synthesizes former
These requirements are reinforced in the statutory definition of “deliver“: “`Deliver’ or `delivery’ means the actual, constructive, or attempted transfer from one person to another of a legend drug, whether or not there is an agency relationship.” Id. at subsection (2) (emphasis added). Further insight into the meaning of “deliver” is afforded in the contrasting definition of “distribute“: “`Distribute’ means to deliver other than by administering or dispensing a legend drug.” Id. at subsection (6) (emphasis added). That delivery of a legend drug is here equated with either “dispensing” or “administering” the legend drug reinforces
In sum, former
Clausing‘s initial criticism of Jury Instruction 17 betrays his entirely erroneous assumption that he was entitled to dispense legend drugs. He described the instruction as “a little garbled, because it isn‘t the physician who dispenses it. It is his employees, see?” RP (Mar. 2, 1998) at 21. Thus, in Clausing‘s account of the transaction, he was merely functioning as an employee handing the legend drugs to the patient, but this convenient view eliminates the crucial intermediate step between the presentation of the prescription and the ultimate act of transferring the legend drugs to the patient. Clausing plainly does not accept that legend drugs must be dispensed by a practitioner (that is, by a licensed physician or pharmacy) before any unlicensed employee of that practitioner may legitimately transfer the legend drugs to the patient. Clausing has to express that belief because the facts unequivocally establish that he took pills from his stock of “bootleg rum,” as he called it, and turned them over in plastic sandwich baggies to Sheryl Reynaga, a former patient working as a police agent. Ex. 9, at 34; see also RP (Feb. 3, 1998) at 32, 37. The majority‘s extraordinary unwillingness to apply to former
I also agree with the conclusion of the Court of Appeals that any error in the trial court‘s admission of expert opinion testimony under ER 401 was harmless. An evidentiary error requires reversal if it results in prejudice—that is, if it can be reasonably said that “the outcome of the trial would have been materially affected had the error not occurred.” State v. Tharp, 96 Wash.2d 591, 599, 637 P.2d 961 (1981); see also State v. Bourgeois, 133 Wash.2d 389, 403, 945 P.2d 1120 (1997). The State called Donald Williams, the executive director of the Washington State Board of Pharmacy, and asked him whether a prescription written by a doctor whose license is revoked the following day would be a valid prescription. Clausing objected, the jury was excused, and the matter discussed; the trial court then instructed the jury that Williams‘s “answers should not be considered by you as a legal opinion—an opinion as to what the law is or what the law is that you would apply in this case.” RP (Feb. 11, 1998) at 15; see State v. Hanna, 123 Wash.2d 704, 711, 871 P.2d 135 (1994) (stating that “[j]uries are presumed to heed the court‘s instructions.“). Williams then expressed his belief that preexisting prescriptions of a doctor whose license is revoked are no longer valid and may not be refilled.
I agree with the Court of Appeals that the opinion testimony served no relevant purpose “because Clausing never introduced any prescriptions or medical records to corroborate his claim of preexisting authority” for the prescriptions. State v. Clausing, 104 Wash.App. 75, 87, 15 P.3d 203 (2001). More importantly, the presentation of this irrelevant testimony did not prejudice Clausing. The validity of Sheryl Reynaga‘s allegedly preexisting prescriptions was irrelevant to
Similarly, Clausing‘s claim of prosecutorial misconduct is unavailing. To prevail on a claim of prosecutorial misconduct, a defendant bears the burden of showing that the prosecutor‘s comments were improper and that there is a substantial likelihood that the comments affected the jury‘s decision. State v. Reed, 102 Wash.2d 140, 145, 684 P.2d 699 (1984); State v. Russell, 125 Wash.2d 24, 85, 882 P.2d 747 (1994). In closing argument, the prosecutor told the jury that “[t]he head of the Board of Pharmacy, the man who in this station is responsible for the regulations of these drugs[,] says, `When you lose your license to practice medicine, your prescriptions are void.‘” RP (Mar. 2, 1998) at 101. The trial court sustained Clausing‘s objection that the prosecutor‘s remark misstated the facts. However, the court overruled a subsequent objection when the prosecutor went on to say that “[t]he fact remains there was no valid prescription in this case.” Id. at 101-02. As to this second statement, the Court of Appeals correctly observed that the prosecutor had fairly characterized the facts, given that no prescriptions were placed in evidence. Clausing, 104 Wash.App. at 87, 15 P.3d 203. Regarding the prosecutor‘s first comment, Clausing cannot show that there was a substantial likelihood that the comment affected the jury‘s decision; the trial court sustained Clausing‘s objection, and for the same reasons that the expert opinion testimony was not prejudicial, the allusion to that testimony in closing argument did not constitute prejudicial prosecutorial misconduct.
In sum, I would affirm the decision of the Court of Appeals on all points. The Court of Appeals correctly concluded that the jury instructions had not misstated the law regarding the unlawful delivery of a legend drug, that any error in the admission of opinion testimony had been harmless, and that Clausing had not shown prejudicial prosecutorial misconduct.
JOHNSON and MADSEN, JJ., concur.