People v. Lawrence Johnson , 111 Mich. App. 383 ( 1981 )

111 Mich. App. 383 (1981) 314 N.W.2d 631

PEOPLE
v.
LAWRENCE JOHNSON

Docket No. 54021.

Michigan Court of Appeals.

Decided November 17, 1981.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Frank R. Del Vero, Prosecuting Attorney, and Thomas C. Nelson, Assistant Attorney General, for the people.

Richard R. Robinson, for defendant.

Before: J.H. GILLIS, P.J., and BASHARA and K.N. SANBORN,^[*] JJ.

K.N. SANBORN, J.

On July 23, 1980, defendant was convicted of knowingly or intentionally acquiring or obtaining possession of a controlled substance (pentazocine) by misrepresentation, fraud, forgery, deception, or subterfuge, contrary to MCL 333.7407(1)(c); MSA 14.15(7407)(1)(c). Defendant was sentenced to one year in prison. He appeals as of right.

Defendant had gone to Dr. Run Y. Gu, a physician in Brighton, Michigan, seeking treatment for a cough and headaches. Dr. Gu diagnosed defendant's condition as acute bronchitis. Dr. Gu prescribed medication to treat the bronchitis and, at defendant's request, also prescribed fifteen 50 mg. tablets of Talwin (pentazocine), and fifteen 10 mg. tablets of Valium. Defendant claimed he had taken Talwin, an analgesic, on previous occasions because it was the only medication that would relieve his headaches.

These prescriptions were presented to Edwin Dintsch, a registered pharmacist at the K-Mart store in Brighton. Mr. Dintsch testified that he filled the defendant's prescriptions, and that the Talwin prescription was for 45 tablets. Mr. Dintsch also stated that Talwin's generic name is pentazocine and that it is a controlled substance.

Defendant moved before the trial court to exclude the testimony of Dr. Run Y. Gu. This motion was based on the physician-patient privilege as provided in MCL 600.2157; MSA 27A.2157. Defendant contended that Dr. Gu was incompetent to testify about his conversations with the defendant at the time of treatment. It was also contended that Dr. Gu could not testify as to the alleged alteration of the prescription. The trial judge denied this motion on the ground that defendant had waived the privilege by failing to object to Dr. Gu's testimony at the preliminary examination.

The first issue raised on appeal is whether or not the defendant had waived the physician-patient privilege by failing to spcifically assert it at the preliminary examination. A motion in limine was made by defense counsel after impanelment of the jury, but prior to opening statements.

By its very nature, a preliminary examination is inquisitional and requires that the examining magistrate have wide discretion as to evidence submitted in order to satisfy his finding of probable cause. People v Zaleski, 375 Mich. 71; 133 NW2d 175 (1965). Generally, any objection based on errors or irregularities at the examination must be raised when the opportunity first arises. Michigan law requires that these objections be made before trial and that a failure to object in a timely manner constitutes a waiver of the claimed error. People v Sutton, 36 Mich. App. 604; 194 NW2d 3 (1971), People v Childrey, 65 Mich. App. 276; 237 NW2d 288 (1975). In a jury milieu, trial commences upon impanelment of the jury. Sutton, supra.^[1]

Our rationale for denying untimely motions is to prevent their use as tactical devices. In People v Brott, 163 Mich. 150, 159; 128 N.W. 236 (1910), the Court stated this proposition in its discussion of motions to quash:

"The motion to quash for want of testimony before the justice on the examination was properly overruled. Upon that question, also, the magistrate was permitted to act without his attention being called to this claim, which was first raised at circuit after the jury was sworn, and when a discharge on a technical point might be final, by reason of the defendants having been in jeopardy."

Likewise, had defense counsel objected to Dr. Gu's testimony at the preliminary examination, and had it been sustained, the defendant might well have been discharged for lack of probable cause. At such time no jeopardy would have attached and the prosecution would have been free to bring charges later if it chose to do so. However, since the objection was raised after jeopardy attached, the case may well have been lost if the doctor's testimony were suppressed and the defendant would have been immune from prosecution.

The above reasoning seems particularly pertinent when one considers the results of holding otherwise. To do so would require prosecutors to anticipate and raise defenses which were not raised at the preliminary examination to insure against just such a move as we see in the instant case. This would also allow use of the element of surprise, which is generally disfavored in our jurisprudence. The motion by defense counsel did preserve our consideration of the physician-patient privilege,^[2] though the motion was properly denied for consideration in the trial court.

The second issue on appeal is whether the communications between Dr. Gu and the defendant regarding the Talwin prescription was privileged under MCL 600.2157; MSA 27A.2157. The statute reads, in pertinent part:

"No person duly authorized to practice medicine or surgery shall be allowed to disclose any information which he may have acquired in attending any patient in his professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or do any act for him as a surgeon * * *."

The purpose of the statute is to protect the confidential nature of the physician-patient relationship. Gaertner v Michigan, 385 Mich. 49; 187 NW2d 429 (1971). This privilege was not recognized at common law, and, therefore, this statute controls the scope of the privilege in Michigan. Eberle v Savon Food Stores, Inc, 30 Mich. App. 496; 186 NW2d 837 (1971). The privilege belongs to the patient and can only be waived by him. Gaertner, supra.

Defendant argues on appeal that Dr. Gu's testimony regarding the Talwin prescription is privileged. Defendant claims that this privilege extends not only to conversations regarding his ailments but, in effect, to anything which transpired during the office visit. We believe that the defendant construes the privilege too broadly in this case and that admission of the doctor's testimony was proper.

The testimony presented by Dr. Gu went primarily to showing that the prescription was altered.^[3] The prescription could only be verified by the physician who issued it. Without the doctor's testimony, convictions for forgeries of prescriptions would be well-nigh impossible. The privilege is to be used for preserving legitimate confidential communications, not for suppressing the truth. Further, where the evidence sought is "demonstrably relevant" to the case at issue, a generalized claim of privilege must yield to the specific need for evidence. People v Emanuel, 98 Mich. App. 163, 187; 295 NW2d 875 (1980).^[4] As mentioned above, crimes of this nature are difficult to prove at best, and, in the case at bar, Dr. Gu's testimony regarding the Talwin prescription is "demonstrably relevant" to the case at issue.

Support for the above view can be found in Dean Wigmore's treatise on evidence. Dean Wigmore speaks of several ways that one might impliedly waive the physican-patient privilege. 8 Wigmore, Evidence (McNaughton Rev), § 2388 et seq., p 853. A portion of that analysis is pertinent here:

"A waiver is to be predicated not only when the conduct indicates a plain intention to abandon the privilege, but also when the conduct (though not evincing that intention) places the claimant in such a position, with reference to the evidence, that it would be unfair and inconsistent to permit retention of the privilege. It is not to be both a sword and a shield (in Lord Mansfield's phrase concerning an infant's exemption from liability)." Id., 855.

Defendant seeks to use the privilege herein as both a sword and a shield. On the one hand, defendant sought out the benefits of the relationship and, in doing so, obtained the prescription now in dispute. Defendant then breached the spirit of this relationship by taking it upon himself to "prescribe his own treatment". Now he seeks protection of the privilege to insulate himself from criminal prosecution, knowing full well that only he and Dr. Gu know the original contents of the prescription. To prevent Dr. Gu from testifying even as to the rudimentary question of the number of tablets prescribed is inherently unfair, and we see no reason to allow the use of this privilege under such conditions.

Although Michigan has not spoken to the issue here presented, it is generally held that "[c]ommunications between physician and patient, however confidential they may be, are held not to be privileged if they have been made in the furtherance of an unlawful or criminal purpose". 3 Jones, Evidence (6th ed), § 21.29, p 823. Though the defendant was obviously in need of treatment for bronchitis when he visited Dr. Gu, there is no evidence, other than defendant's assertions, that he needed the Talwin or the Valium. It seems reasonable to conclude that defendant's request for these drugs was made in furtherance of a criminal purpose.

In State v Treadway, 69 Ohio Op 2d 507; 328 NE2d 825 (1974), that court was faced with circumstances similar to those in the case at bar. In Treadway, the defendant was convicted of altering a prescription for 30 tablets of biphetamine 20 to 90 tablets. The court held that the history and contents of the prescription were not privileged by the physician-patient relationship. The court apparently believed that the communications involved had never reached the status of confidentiality adhering to communications truly needed for treatment.

Defendant's final argument on appeal is that the trial judge erred in charging the jury that Talwin was a controlled substance. Defendant contends that this should have been a factual question because there was allegedly no evidence adduced at trial to prove it.

During the trial, Mr. Dintsch, the pharmacist, testified that pentazocine was the generic name for Talwin and that it was a controlled substance. Dintsch was unable to locate the drug on any of the schedules of controlled substances provided by defense counsel. Dintsch stated that he was relying on labeling and visual recognition of the drugs in making his determination.

At the close of the people's case, the trial judge stated, "Now, I further charge you that Talwin does contain pentazocine and is a controlled substance under the laws of the State of Michigan". No objection was made to this instruction. The absence of a request or objection precludes appellate review unless there is manifest injustice. People v Milton, 81 Mich. App. 515; 265 NW2d 397 (1978), modified 403 Mich. 821 (1978), People v Peoples, 75 Mich. App. 616; 255 NW2d 707 (1977), lv den 400 Mich. 857 (1977). No manifest injustice occurred since pentazocine is in fact a controlled substance. 1979 AC R 338.3120(2)(a), effective April 25, 1979. The offense in the present case occurred on March 15, 1980. Therefore, in view of Dr. Dintsch's testimony and the foregoing argument, we find there was no manifest injustice and that the trial judge did in fact make an accurate statement of the law.

Defendant's conviction is affirmed.

BASHARA, J., concurs in the result only.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] See also Crist v Bretz, 437 U.S. 28; 98 S. Ct. 2156; 57 L. Ed. 2d 24 (1978).

[2] People v Carter, 101 Mich. App. 529; 300 NW2d 624 (1980). The raising of an objection or motion at trial preserves the right to assert the issue on appeal.

[3] Part of the testimony of Dr. Gu regarding defendant's appearance and medical condition was erroneously admitted. This information did not constitute reversible error since the jury would have found defendant guilty beyond a reasonable doubt even without the erroneously admitted evidence. People v Norwood, 70 Mich. App. 53, 57-58; 245 NW2d 170 (1976), lv den 397 Mich. 884 (1976).

This information may even have helped defendant since it reflected a genuine reason for seeking medical attention. We believe that the doctor's testimony should have been limited to (1) communications concerning defendant's request for Talwin, (2) issuance of the prescription for 15 tablets, and (3) the fact of alteration from 15 to 45 tablets.

[4] See also United States v Nixon, 418 U.S. 683; 94 S. Ct. 3090; 41 L. Ed. 2d 1039 (1974), where the Supreme Court, in a discussion of executive privilege, balanced the competing interests of the parties and held that a generalized assertion of privilege must yield to the demonstrated specific need for evidence in a pending criminal trial.