State v. King, CR-07-0693.
Decision Date | 25 July 2008 |
Docket Number | CR-07-0693. |
Citation | 23 So.3d 72 |
Parties | Ex parte State of Alabama (In re: STATE of Alabama v. Janet KING). |
Court | Alabama Court of Criminal Appeals |
Troy King, atty. gen., and Robin D. Scales, asst. atty. gen., for petitioner.
Richard S. Jaffe, J. Derek Drennan, and H. Hube Dodd, Birmingham, for respondent.
Section 26-23A-7, Ala.Code 1975, provides: "Only a physician may perform an abortion." Section 26-23A-9(a), Ala.Code 1975, provides: "Any person who intentionally, knowingly, or recklessly violates this chapter is guilty on a first offense of a Class B misdemeanor, on a second offense of a Class A misdemeanor, and on a third or subsequent offense of a Class C felony."
It appears from the record that King, who is a certified registered nurse practitioner, was involved in the prescription and/or administration of medication that caused two women to have medical, or medicine induced, abortions. Her defense appears to be that she was allowed to be involved in the prescription and/or administration of such medication under a collaborative agreement with Dr. Deborah Levich at Summit Medical Center;1 that she did not perform the abortions; that she simply followed the doctor's protocols with regard to the prescription and/or administration of the medication; and that the doctor performed the abortions by supervising her actions.
King filed a motion to dismiss, arguing that she "acted at all times under the supervision of the Medical Director who was a physician and that, therefore, [she] was permitted by law to do exactly what she is accused of doing in this case." The State filed a motion in limine, seeking to prevent King from introducing evidence about the collaborative agreement during the trial. Specifically, it argued that such evidence was not relevant and would serve only to confuse the jury. The defense argued that such evidence was relevant because it supported King's defense that she did not actually "perform" the abortions. After hearing arguments, the trial court denied the State's motion in limine. Thereafter, the State filed a petition for a writ of mandamus, asking this court to compel the trial court to vacate its order denying the motion in limine. We ordered the respondents to answer the State's allegations and stayed further proceedings in the trial court pending our disposition of this petition.
Section 26-23A-7, Ala.Code 1975, clearly provides that only a physician may perform an abortion. A "[p]hysician" is defined as § 26-23A-3(7), Ala.Code 1975. The issues in the case are whether what King, who is a certified registered nurse practitioner, did constituted performing an abortion and, if so, whether she did so intentionally, knowingly, or recklessly. Whether or not she intentionally, knowingly, or recklessly violated § 26-23A-7, Ala. Code 1975, is irrelevant. Also, whether or not she had permission to do it, through a collaborative agreement with Levich, is not relevant. See § 13A-2-6(b), Ala.Code 1975 ( ). Therefore, evidence regarding the collaborative agreement is not relevant, would serve only to confuse the jury, and would not be admissible at trial.
Ex parte Sysco Food Servs. of Jackson, LLC, 901 So.2d 671, 674 (Ala.2004).
Ex parte Houston County, 435 So.2d 1268, 1271 (Ala.1983).
For the reasons set forth above, we conclude that evidence regarding the collaborative agreement is not relevant, and the trial court should have granted the State's motion in limine. Also, the defense affirmatively indicated that it would seek to introduce evidence about the collaborative agreement, and the trial court affirmatively indicated that it would admit such evidence. Therefore, the trial court's ruling on the motion in limine was absolute, rather than preliminary or conditional. See Ex parte Burch, 730 So.2d 143, 146 (Ala.1999) ) . Finally, if King is convicted, the trial court's ruling on the motion would be reviewable if she chooses to file a direct appeal. However, because the State has only a limited right to appeal, the trial court's ruling on the motion in limine would not be reviewable on appeal by the State. Cf. Ex parte Sysco Food Servs. of Jackson, LLC, 901 So.2d at 676 (...
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