People v. Alford
| Decision Date | 01 March 1978 |
| Docket Number | No. 8,Docket No. 59557,8 |
| Citation | 405 Mich. 570,275 N.W.2d 484 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Elvis S. ALFORD, Defendant-Appellant. Calendar, |
| Court | Michigan Supreme Court |
William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Larry L. Roberts, Asst. Pros. Attys., Detroit, for plaintiff-appellee.
Cyril Abramson, P. C., Cyril Abramson, Troy, for defendant-appellant.
Henry B. Rothblatt, New York City, Robert W. Carr, Peres, Carr, Jacques, Batchik & Schmidt, Pontiac, for amicus curiae on behalf of Albert Jack Berg, D.O.
We are presented with three issues. First is whether there is a delivery under the Michigan Controlled Substances Act (1971 P.A. 196, M.C.L. § 335.341; M.S.A § 18.1070(41)) when a physician gives a prescription or dispenses a box of pills. Second is whether a licensed physician can be prosecuted under M.C.L. § 335.341(1)(b); M.S.A. § 18.1070(41)(1)(b), for unlawful delivery of a controlled substance. The third is whether as a matter of law the defense of entrapment was established.
The appellant, Dr. Alford, was charged with two counts of unlawful delivery of a controlled substance. The first count was for giving prescriptions for 120 capsules containing amphetamines to an undercover police officer in the names of persons never examined by the doctor. The second count was for actually giving 103 capsules containing barbiturates to the same undercover police officer.
The trial court granted a pre-trial motion to quash the information finding (1) physicians dispensing and/or prescribing controlled substances are not subject to prosecution under M.C.L. § 335.341(1)(b); M.S.A. § 18.1070(41)(1)(b) and (2) the appellant was entrapped as a matter of law. The Court of Appeals reversed on both grounds, People v. Alford, 73 Mich.App. 604, 251 N.W.2d 314 (1977).
In People v. Kerwin, 56 Mich.App. 483, 224 N.W.2d 113 (1974), a panel of the Court of Appeals held physicians were not subject to prosecution under M.C.L. § 335.341(1)(b); M.S.A. § 18.1070(41)(1)(b). The opposite conclusion was reached by the court in Alford.
We granted leave to appeal August 31, 1977, 401 Mich. 804 (1977), to resolve a conflict in the Court of Appeals.
We agree with the holding of the Court of Appeals in Alford. Physicians not acting in good faith "in the course of professional practice or research" are prosecutable under M.C.L. § 335.341(1); M.S.A. § 18.1070(41)(1). We also agree with their determination that the defense of entrapment was not established as a matter of law.
We affirm the Court of Appeals in Alford.
On March 12, 1973, Justin Kukalis, an officer of the Department of State Police, Intelligence Division, Diversion Investigation Unit, visited Dr. Alford at his office. Kukalis posed as a patient and gave the name James Kase. He complained of being overweight. The doctor weighed him and took his blood pressure by placing the blood pressure cuff over his jacket on his arm. The doctor gave him medication 1 (92 small white and 30 small flat pink double-scored tablets (187a)) and a prescription for 30 amphetamine capsules. He did not tell him what the medication was, but gave him directions on dosage, one tablet a day. The doctor told him to return in two weeks. Officer Kukalis paid for the visit. 2
As noted by the trial court:
On June 1, 1973, Kukalis went to the doctor's office. The doctor informed Kukalis he had no amphetamines available and that he did not like writing prescriptions so often. The doctor then wrote a prescription for Kukalis for 30 amphetamine capsules. The doctor asked who else needed a prescription. Kukalis supplied the names and addresses of fictitious people, Neil Harris and Karen Kase. The doctor wrote prescriptions for them. Kukalis then supplied the name Donald Hollis and the doctor supplied an address as he wrote the prescription. Kukalis also requested and received a small white box of red capsules, 59, and some blue and clear capsules, 43.
The four prescriptions received by Kukalis from Dr. Alford on June 1, 1973 were filled by a drug inspector in the Department of Licensing and Regulation assigned to the Diversion Investigation Unit. The drug inspector was a pharmacist (Tr 273-279). The contents of each prescription were analyzed by the Michigan State Police Scientific Laboratory. Each prescription was for amphetamine sulphate, 30 capsules (Tr, 276), a schedule 2 controlled substance.
The medication directly received by Kukalis on June 1, 1973 was also analyzed by the Michigan State Police Scientific Laboratory. The 59 orange capsules contained secobarbital, a schedule 3 controlled substance. The 44 blue and clear capsules contained amobarbital, also a schedule 3 controlled substance.
Based on the drugs received on June 1, 1973, a two-count information was filed against Dr. Alford charging that he (1) "did unlawfully deliver a controlled substance, to-wit: 120 capsules containing Amphetamine, Contrary to the provisions of M.C.L.A, Section 335.341(1)(b);" and (2) "did unlawfully deliver a controlled substance, to-wit: 103 capsules containing Barbituates (Sic ) Contrary to the provisions of M.C.L.A., Section 335.341(1)(b)" (6a).
After the preliminary examination the defendant was bound over for trial on both counts. The defendant filed a motion to quash the information which was granted by the trial court. The judge held that writing prescriptions was not a delivery or constructive delivery within the meaning of M.C.L. § 335.341(1) (b); M.S.A. § 18.1070(41)(1)(b). The judge also held:
" * * * that this statute either frees licensed physicians, without qualification, to hand out barbiturate drugs, or it permits them to hand out such drugs to people who come to their offices for professional consultation regardless of whether the physicians' conduct falls short of the standards of skill, care and ethics customarily employed by their co-professionals." (90a)
In conclusion the judge found:
"* * * as a matter of law, that the defendant was entrapped." (79a)
The Court of Appeals reversed the decision of the trial court holding
73 Mich.App. 604, 614, 251 N.W.2d 314, 319.
The court also found that
"The facts in the case at bar do not indicate the government conduct was of such a nature as to give rise to a finding of entrapment." 73 Mich.App. 604, 615, 251 N.W.2d 314, 319.
M.C.L. § 335.341; M.S.A. § 18.1070(41) establishes the basic penalties for violation of the Controlled Substances Act of 1971 and provides in pertinent part:
"(1) Except as authorized by this act, it is unlawful for any person to manufacture, deliver or possess with intent to manufacture or deliver, a controlled substance. Any person who violates this subsection with respect to:
"(b) Any other controlled substance classified in schedules 1, 2 or 3, except marihuana, is guilty of a felony and upon conviction may be imprisoned for not more than 7 years or fined not more than $5,000.00, or both." 3 Specific definitions are provided for the terms used in this section:
" 'Person' means an individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, or any other legal entity." M.C.L. § 335.307(1); M.S.A. § 18.1070(7)(1).
" 'Deliver' or 'delivery' means the actual, constructive or attempted transfer from 1 person to another of a controlled substance, whether or not there is an agency relationship." M.C.L. § 335.304(1); M.S.A. § 18.1070(4) (1).
These provisions must be considered in light of other sections relating to physicians:
" 'Practitioner' means:
"(a) A physician, dentist, veterinarian or pharmacist as defined in subdivisions (o), (p), (q) and (w) of section 1 of Act No. 151 of the Public Acts of 1962, as amended, being section 338.1101 of the Compiled Laws of 1948, scientific investigator as defined by rule of the administrator, or other person licensed, registered or otherwise permitted to distribute, dispense, conduct research with respect to or to administer a controlled substance In the course of professional practice or research in this state." (Emphasis added.) M.C.L. § 335.307(3); M.S.A. § 18.1070(7)(3).
" 'Dispense' means to deliver or issue a controlled substance to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, including the prescribing, administering or compounding necessary to prepare the substance for that delivery or issuance." M.C.L. § 335.304(2); M.S.A. § 18.1070(4)(2).
"(1) Every person who manufactures, distributes, prescribes or dispenses any controlled substance within this state or who proposes to engage in the manufacture, distribution, prescribing or dispensing of any controlled substance within this state, shall obtain annually a registration issued by the administrator in accordance with its rules.
"(2) Persons registered by the administrator under this act to manufacture, distribute, prescribe, dispense or conduct research with controlled substances may possess, manufacture,...
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