People v. Ham-Ying

• Decision Date: 30 August 1989
• Docket Number: HAM-YING,Docket No. 104083
• Citation: People v. Ham-Ying, 444 N.W.2d 529, 178 Mich.App. 601 (Mich. App. 1989)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Russell, a/k/a Dr. J. Russell Ham-Ying, Defendant-Appellant. 178 Mich.App. 601, 444 N.W.2d 529
• Court: Court of Appeal of Michigan

Page 529

444 N.W.2d 529

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.John Russell HAM-YING, a/k/a Dr. J. Russell Ham-YingDefendant-Appellant.

Docket No. 104083.

178 Mich.App. 601, 444 N.W.2d 529

Court of Appeals of Michigan.

Submitted Oct. 4, 1988.

Decided Jan. 24, 1989.

Leave to Appeal Denied Feb. 28, 1989.

Released for Publication Aug. 30, 1989.

[178 MICHAPP 603]Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol.Gen., Paul Maloney, Pros.Atty., and Nancy A. Bogren, Asst. Pros.Atty., for the People.

Keller, Keller & Creager by Bennett S. Schwartz, St. Joseph, for defendant-appellant.

Before DANHOF, C.J., and HOOD and OLZARK, ^* JJ.

PER CURIAM.

Defendant, John Russell Ham-Ying, appeals as of right from his bench trial conviction of two counts of delivering a controlled substance, phentermine, contrary to M.C.L. Sec. 333.7401(1) and (2)(c);M.S.A. Sec. 14.15(7401)(1) and (2)(c), and one count of practicing medicine without a license, contrary to M.C.L. Sec. 333.16294;M.S.A. Sec. 14.15(16294).Defendant was then convicted of being a subsequent offender, contrary to M.C.L. Sec. 333.7413;M.S.A. Sec. 14.15(7413).Defendant was sentenced to three to eight years imprisonment on both delivery convictions and two to four years imprisonment for practicing medicine without a license, with both sentences to run concurrently.We affirm.

On January 19, 1982, defendant was convicted for delivery of a controlled substance for other than legitimate and professionally recognized therapeutic[178 MICHAPP 604] or scientific purposes, contrary to M.C.L. Sec. 333.7401(1);M.S.A. Sec. 14.15(7401)(1).Defendant was forbidden to hold a controlled substance license during his probation.

After his 1982 conviction, defendant made arrangements for Dr. Leonard Fouche to continue defendant's practice during his suspension.Dr. Fouche brought with him his Drug Enforcement Administration license which allowed him to prescribe controlled substances.Dr Fouche informed defendant that he would not carry any amphetamines at all.Instead, Dr. Fouche carried the diet medication phentermine.

On April 25, 1983, Dr. Fouche delegated authority to the office staff and defendant to refill maintenance prescriptions to patients who were still overweight, but with no particular problems and who had been previously prescribed a maintenance dosage by a licensed physician.The written authorization delegating authority was given pursuant to Sec. 16215 of the Public Health Code,M.C.L. Sec. 333.16215(1);M.S.A. Sec. 14.15(16215)(1).According to the written, as well as oral, delegations of authority, the office staff and defendant regularly dispensed phentermine, a schedule 4 drug, to patients who had been previously prescribed that drug by a licensed physician and who had no side effects or problems with the medication.If a patient complained of any problem at all or something irregular was noted, Dr. Fouche saw that patient.There was no question in Dr. Fouche's mind that defendant was acting as Dr. Fouche's agent during the period of suspension and particularly on July 26, 1983, the date on which the crime occurred which led to the instant prosecution.

Berrien County Sheriff's Department Narcotics OfficerMilford Russell, together with a confidential police informant contacted two of defendant's [178 MICHAPP 605] longtime patients, James West and James Wells.Arrangements were made with West and Wells so that Officer Russell would provide the money and transportation to defendant's office if Wells and West would agree to refill their prescription for diet pills and split the pills with Officer Russell and the informant.Neither West nor Wells knew Russell or the informant were associated with the sheriff's department in any way.

On July 26, 1983, both Wells and West entered defendant's office, where defendant weighed them, checked their heart rate and blood pressure, and asked them how they were doing on the medication.Defendant did not confer with Dr. Fouche before refilling West's and Wells' prescriptions for phentermine.After Officer Russell received his share of the pills from both West and Wells, the pills were turned over to police Detective Stephen Marschke who transported the pills to Metro Narcotics.The laboratory reports identified the pills as containing phentermine, a schedule 4 controlled substance.

Before trial in the instant case, the circuit court decided that "the issue of whether a suspended physician could be delegated authority pursuant to state statute to dispense controlled substances was a question of fact for the jury."People v. Ham-Ying, 142 Mich.App. 831, 834, 371 N.W.2d 874(1985).The state was granted an interlocutory appeal, and this Court held that "the issue of delegation is properly a question of law for the court."Id.The Ham-Ying Court reviewed the applicable statutes and determined that the legislative intent was that "the function of prescribing or dispensing controlled substances could not be delegated to him [defendant] as a matter of law."Ham-Ying, supra at 836, 371 N.W.2d 874.

This Court has stated:

[178 MICHAPP 606] A question of law decided by an appellate court will not be decided differently on a subsequent appeal in the same case where the facts remain materially the same.The reason for the rule is the need for finality of judgment and the want of jurisdiction in an appellate court to modify its own judgments except on rehearing.Johnson v. White, 430 Mich. 47; 420 N.W.2d 87(1988).Our Supreme Court has also held that this rule applies without regard to the correctness of the prior determination.Gourlay v. Ins. Co. of North America, 189 Mich. 384, 386; 155 N.W. 483(1915);Damon v. DeBar, 94 Mich. 594; 54 N.W. 300(1893).A party seeking relief from an incorrect appellate decision may either request a rehearing or appeal to the Supreme Court.Damon, supra.[Muilenberg v. Upjohn Co., 169 Mich.App. 636, 640-641, 426 N.W.2d 767(1988).]

After this Court handed down its first opinion in this case, People v. Ham-Ying, 142 Mich.App. 831, 371 N.W.2d 874, defendant brought a motion for rehearing that was denied on July 5, 1985.Defendant then applied for leave to appeal to our Supreme Court, which was denied.People v. Ham-Ying, 424 Mich. 861(1985).There has not been a material change in the facts since this Court published its opinion in 1985.

The trial court was bound by this Court's decision that defendant could not dispense controlled substances.The rule of the law of the case applies in this matter and prevents us from reconsidering whether defendant can legally dispense controlled substances.This Court has previously decided this exact question, and defendant exhausted his appellate possibilities.We hold that the trial court correctly ruled that defendant did violate state law when he dispensed controlled substances.

Defendant argues that the issue of whether the ability to dispense controlled substances can be delegated to defendant should be determined by an [178 MICHAPP 607] appropriate administrative board of "primary jurisdiction."The statute cited by defendant, M.C.L. Sec. 333.16215(2), M.S.A. Sec. 14.15(16215)(2), allows an administrative board to "promulgate rules to further prohibit or otherwise restrict delegation of specific acts, tasks, or functions to a ... unlicensed...