Evers v. State

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: TYSON
• Citation: Evers v. State, 434 So.2d 804 (Ala. Crim. App. 1982)
• Decision Date: 20 April 1982
• Docket Number: 4 Div. 942
• Parties: H. Ray EVERS v. STATE of Alabama.

Page 804

434 So.2d 804

H. Ray EVERS v. STATE of Alabama.

4 Div. 942.

Court of Criminal Appeals of Alabama.

April 20, 1982.

Rehearing Denied May 18, 1982.

L. Drew Redden, William N. Clark and Gerald L. Miller of Redden, Mills & Clark, Birmingham, and John A. Henig, Jr., Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and George Hardesty, Jr., Sp. Asst. Atty. Gen., for appellee.

TYSON, Judge.

Dr. H. Ray Evers was indicted on two counts of "selling, furnishing or giving away" amphetamines in violation of § 20-2-70(a), Code of Alabama 1975. The jury found him guilty on both counts and the trial court set sentence at five years' imprisonment.

It is undisputed that on January 23, 1981, the appellant furnished Johnny Coley prescriptions for two different amphetamines (both categorized as Schedule II drugs) to help Coley combat fatigue while driving his automobile on an alleged round trip between Dothan, Alabama, and Tampa, Florida.

Coley had been hired by the appellant to manage the pharmacy and central supply at appellant's own Sealy Springs Health Services Clinic. Coley was a pharmacist but had lost his license to practice in Florida and had not yet obtained an Alabama license. He had worked at the clinic for about six weeks before the January 23, 1981, incidents.

Coley's assistance had been requested by Sergeant Charles Odom of the Houston County Sheriff's Department and Agent Bill Regness of the Alabama Bureau of Investigations in their investigation of the appellant, Dr. Evers. At their request, Coley consented to wear a "body-mike" while he solicited drugs from the appellant.

On the morning of January 23, 1981, at Coley's request, the appellant gave him a prescription for twenty Biphetamine 20 capsules. Eskatrol, Ridlin and Dexamyl were discussed as alternatives but Coley opted for Biphetamine 20 (R. 81-82 and 133-134). Late that afternoon Coley reported to the appellant that one of the Biphetamine 20 capsules had made his mouth too dry, so the appellant furnished him another prescription for fifteen Eskatrol capsules.

Both conversations between the appellant, Evers, and Coley, which prompted the appellant to furnish Coley the two amphetamine prescriptions, were transmitted via the "body-mike" and were received and recorded by Odom and Regness who were positioned in the vicinity of the clinic. The tape recordings of these conversations as well as the testimonies of Coley and Odom were presented to the jury as proof of the allegedly illegal transactions involving this appellant.

The prosecution also presented, as its medical expert, Dr. Sam C. West, Jr. Dr. West testified that prescribing amphetamines "for the purpose of keeping someone awake to take a trip" would not be "in the course of medical practice or legitimate medical practice." (R. 221). He further stated that to insure against undesirable "reactions", the minimum prerequisites for prescribing amphetamines would be a review of the patient's medical history and an examination to check his pulse and blood pressure. (R. 222). Dr. West also described some of the hazards of taking amphetamines for prolonged periods while driving, e.g. impaired judgment, confusion, delirium, paranoid delusions, and visual hallucinations, among others. (R. 226). Finally, after an extensive voir dire examination with reference the predicate for admitting an excerpt from The Physician's Desk Reference, and after an unrecorded bench conference, Dr. West was allowed to read warnings from that text that amphetamines should be used only in weight reduction programs and that they might "impair the ability of the patient to engage in potentially hazardous activities such as operating machinery or vehicles." (R. 233-234).

The appellant did not deny that he furnished the prescriptions to Coley for the sole purpose of combating fatigue during Coley's alleged trip. It was and is appellant's contention, however, that his actions did not violate § 20-2-70(a) as charged, nor any other Alabama statute.

Appellant's secretary, Doris Molliston, testified that Mr. Coley saw the appellant as a patient on January 19, 1981. (R. 289). She stated that she thought Coley was seeking treatment for a "cold" and that she, consequently, completed an "out-patient" identification form (which she identified at trial) and began an "out-patient" file for him. She further reported that Coley's visit on the afternoon of January 23, 1981, was again for the appellant's professional services. She stated that she pulled his file on that occasion, gave it to the appellant and returned it to the file at the conclusion of Coley's visit, after the appellant had made some notations with reference the visit. She stated that this record remained in her files "until it was pulled out for the purposes of this case." (R. 296).

Opieree Barbaree, appellant's nurse, testified that on January 19, 1981, she briefly participated in the appellant's examination of Coley and witnessed the appellant examine Coley's bare chest with a stethoscope and inspect his throat with the aid of a tongue depressor. She stated that the appellant let her go, after only a few minutes, because Mr. Coley only had a cold.

On cross-examination, Molliston stated that she had worked for the appellant in Montgomery, Alabama, and in the Bahamas prior to the move to Houston County, and Barbaree testified that she had worked for the appellant since 1959.

The appellant's medical expert was Dr. James Cooper, a friend of the appellant and one of his associates in Atlanta, Georgia, for several years. Dr. Cooper testified that it was "in the course of professional practice and for a legitimate medical purpose" for the appellant to furnish his employee, whom he had known and worked with for six weeks and who was himself a registered pharmacist, the two amphetamine prescriptions to combat fatigue while driving his automobile. (R. 334-335).

On cross-examination, however, Dr. Cooper admitted that he had never prescribed amphetamines to combat fatigue, that he would not prescribe them for truck drivers and that he had occasionally refused specific requests for that very purpose. (R. 341-345). He stated that he would not furnish anyone, even a pharmacist, with "anything he wanted" (R. 345, 363) but might give someone amphetamines if that person insisted upon driving while fatigued. (R. 345).

Dr. Cooper also testified that he agreed with the warning in the Physician's Desk Reference that amphetamines might impair one's ability to operate an automobile but stated that he did not normally warn his patients accordingly and, in fact, he did not recognize the Physician's Desk Reference as a primary medical authority. (R. 349-351).

He agreed that "the smallest quantity [of drugs] feasible should be prescribed at one time in order to minimize the possibility of over dosage" and reported that one Biphetamine 20 capsule would "last" for about ten to twelve hours. (R. 347, 352).

Finally, in rebuttal to the appellant's evidence that Johnny Coley was seen as a patient by the appellant on January 19, 1981, and January 23, 1981, [which Coley had previously denied at trial (R. 111) ] the prosecution elicited testimony from Sergeant Odom that on January 25, 1981, he conducted a thorough search of the patient records at the Sealy Springs Health Services Clinic and did not find a patient record for Johnny Coley. After the search was completed the appellant, who had already been advised of his Miranda rights, told the authorities that those were all of his medical records. (R. 372).

I

The appellant was charged with and convicted of the violation of § 20-2-70(a), Code of Alabama 1975. The focus of this appeal is on the question of whether or not the appellant, a licensed physician, was lawfully prosecuted under this statute. In this regard, appellant challenges the applicability of the statute to a licensed physician, the use of § 13A-2-22, Code of Alabama 1975, in conjunction with it, the constitutionality of the statute, and the standard to be employed in determining whether or not a violation has in fact occurred.

A

Appellant contends that § 20-2-70(a) does not apply to licensed physicians. In support of this contention he presents a detailed analysis of the law in several other jurisdictions. We appreciate these attempted analogies with other jurisdictions with allegedly similar statutes, but we find them unpersuasive.

We need not look any further than our own Alabama statutes and cases to reach the conclusion that § 20-2-70(a) indeed applies to licensed physicians. In fact, § 20-2-70(a) proscribes certain illegitimate conduct irrespective of the apparent status of the perpetrator. [See State v. Bradford, 368 So.2d 317, 320 (Ala.Cr.App.1979) ].

In pertinent part § 20-2-70(a) states:

"(a) Except as authorized by this chapter, any person who ... sells, furnishes, gives away, ... controlled substances enumerated in schedules I, II, III, IV and V is guilty of a felony ...." (Emphasis added).

Appellant argues that a licensed physician is not "any person" as specified in this section but is rather one "who is subject to article 3 of this chapter" as identified in § 20-2-71(a)(1), Code of Alabama 1975. Section 20-2-71(a)(1) lists "Prohibited acts B" as follows:

"(a) It is unlawful for any person:

(1) Who is subject to article 3 of this chapter to distribute or dispense a controlled substance in violation of section 20-2-58." (Emphasis added).

We agree that a licensed physician is one "who is subject to article 3 of this chapter" as categorized in § 20-2-71(a)(1). However, the inclusion of a licensed physician in § 20-2-71(a)(1) does not necessarily exclude him from § 20-2-70(a).

Section 20-2-71(a)(1) prohibits a licensed physician (and all other registrants under the Alabama Uniform Controlled Substances Act) from "distributing" or "dispensing" controlled substances in violation of § 20-2-58, Code of Alabama 1975. The pertinent part of § 20-2-58...