White v. State, 55511
| Decision Date | 25 July 1978 |
| Docket Number | No. 55511,55511 |
| Citation | 247 S.E.2d 536,146 Ga.App. 810 |
| Parties | WHITE v. The STATE. |
| Court | Georgia Court of Appeals |
O'Berry & San Filippo, L. Lyn O'Berry, Douglasville, for appellant.
John T. Perren, Dist. Atty., Robert W. Pitts, Asst. Dist. Atty., for appellee.
Dr. White was convicted on six counts of prescribing controlled substances for other than legitimate medical purposes, in violation of § 21 of the Georgia Controlled Substances Act (Ga.L.1974, pp. 221, 251). We reverse the convictions on Counts 1 and 2 of the indictment because the trial court erroneously failed to charge on the law of entrapment applicable to those counts. As to the convictions on Counts 3 through 6, we affirm.
The facts constituting the basis for the six counts on which White was convicted occurred on June 13, 1977. On that date two undercover, GBI agents, posing as patients, visited White's office and, according to White, "pressured" him for drugs of all kinds. White further testified that, while he was sitting at his desk, one of the agents sat on the edge of the desk and tapped a letter opener in his hand, all the while demanding drug prescriptions. White also testified that at one point he tried to exit the office but one agent moved in front of the door while the other grabbed White's arm and demanded "more drugs." White stated that, in accordance with the agents' demands, he wrote out two prescriptions in the name of an absent person whom he had never seen. White admitted he had not written those two prescriptions for a legitimate medical purpose. Also in accordance with the agents' demands, White wrote out two prescriptions to each of the agents. The doctor claimed he wrote all six prescriptions because he feared the "patients," yet he declined to admit that he had not written the latter four for a legitimate medical purpose. White had treated these two "patients" and prescribed controlled substances for them on prior occasions. The agents denied they had pressured White into writing any of the prescriptions.
1. As to the two counts involving the prescriptions written for the absent person, White requested a charge on entrapment and objected to the trial court's failure so to charge. We believe the trial court erred, and the convictions on these two counts must be reversed. Jury questions were presented here as to whether the idea for committing the crimes originated with the agents and as to whether the agents induced White to write the prescriptions "by undue persuasion." Code § 26-905. As to the other four counts, however, White declined to admit he had written the four prescriptions there involved for other than a legitimate medical purpose, and thus a charge on entrapment was not authorized. Reed v. State, 130 Ga.App. 659(1), 204 S.E.2d 335 (1974).
2. Entrapment did not appear as a matter of law, and the court correctly overruled White's motion for directed verdict.
3. Contrary to White's contention, the mere fact that the undercover agents used aliases and posed as patients was no ground for the suppression of incriminating evidence they obtained thereby.
4. Just subsequent to the conclusion of the charge a juror asked the court about the "legal implication of duress." The court responded, White neither requested a charge on duress nor objected to the omission of instruction on duress. Furthermore, immediately following the court's comment quoted above, the court inquired whether there was any objection, and White's counsel raised none applicable to the treatment of duress. Appellant induced the alleged error and will not now be heard to complain that the court erroneously failed to charge on duress. Hill v. State, 237 Ga. 523(3),228 S.E.2d 898 (1976).
5. White asserts the trial court erroneously allowed certain testimony. However, he does not cite the portion of the 378-page transcript wherein the allegedly objectionable...
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