Bernard Jere Member v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Clements and Senior Judge Hodges
Argued at Richmond, Virginia
BERNARD JERE MEMBER
MEMORANDUM OPINION* BY
v. Record No. 2125-02-2 JUDGE JAMES W. BENTON, JR.
SEPTEMBER 9, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
William H. Ledbetter, Jr., Judge
Mark S. Gardner (Gardner, Maupin & Sutton,
P.C., on brief), for appellant.
Virginia S. Theisen, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
A jury acquitted Bernard Jere Member, a physician, of
involuntary manslaughter and convicted him of unlawful
distribution of a controlled substance in violation of Code
§ 18.2-248. Member contends the trial judge erred (1) by not
ordering a separate trial for the distribution charge, (2) by
permitting evidence indicating that the Board of Medicine has
ruled the dispensing of a Schedule II controlled substance is
unlawful except by prescription, and (3) in not striking as
insufficient the evidence concerning distribution of a controlled
substance. We affirm the conviction.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I.
A grand jury indicted Member on charges of second degree
murder, involuntary manslaughter, and unlawful distribution of a
Schedule II controlled substance. See Code §§ 18.2-248 and
54.1-3448. Prior to the trial, Member filed a motion to separate
for trial the distribution charge from the homicide charges.
After considering the attorneys' arguments, the trial judge denied
the motion.
The evidence at trial proved Member and Laura Feury married
in 1995 and separated in February 1999. After the separation,
Feury worked in Member's medical office as a bookkeeper and
continued to work there after they were divorced in May 2001.
Member is a physician who is certified in psychiatry and maintains
a psychiatry practice in Spotsylvania County. He also is
certified as a pediatric oncologist and, in the past, practiced as
a pediatric oncologist for more than ten years.
Feury was found dead in her bed June 16, 2001. Feury's head
was on a pillow; a book was on the bed by her knee; an electronic
heating pad was under the small of her back or hip area.
Dr. William Gromley, the assistant chief medical examiner,
testified that he found four duragesic patches on Feury's back.
Each patch contained the active ingredient Fentanyl, which is an
opiate pain reliever, and each patch was labeled "twenty-five
micro-grams per hour" and designed to last seventy-two hours.
Dr. Gromley testified that Fentanyl primarily is used by
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terminal cancer patients requiring chronic pain medication. He
concluded that Feury died of Fentanyl poisoning.
A detective contacted Member by telephone and informed him
of Feury's death. After learning Dr. Gromley's conclusion, the
detective contacted Member again and told him they found some
patches on the small of Feury's back. Member said "oh, no,
please don't tell me that." Later in the conversation, when
Member was again questioned about the patches, he said, "I'm
fucked." The detective testified that he heard Member drop the
telephone and moan in the background. Member eventually
returned to the telephone and continued the conversation. In
this conversation and in a later conversation with the
detective, Member said he had visited his elderly mother in New
York several months earlier after he learned she had been
unsteady on her feet. He discovered that she was using Fentanyl
patches and became concerned about her use of the medication.
Believing it was improper for his elderly mother to use the
patches, Member took them and brought them to his home. Member
said Feury, who suffered from endometriosis and experienced
severe pain during her menstrual period, "had somehow seen the
patches and asked . . . about the patches." Member said he gave
the box containing three or four Fentanyl patches to Feury, had
encouraged Feury to use heating pads when she had severe
menstrual pain, and did not encourage her to use the heating
pads when she wore the Fentanyl patches.
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In his third conversation with the detective, Member said
he had taken the Fentanyl patches to his office, not his home.
In that same interview, Member said he directed Feury "only to
use one; if she was going to use one, to use one only, and
reiterated once again not to use a heating pad with this patch."
When asked of Feury's history, Member said she "had worked for
him in his office as a bookkeeper[,] . . . she recently had
complained of . . . soreness in her abdomen and rebound
tenderness," and she was seeing a doctor for a gallbladder
problem. Member indicated he was not Feury's doctor, but he had
prescribed Lortab to Feury in the past for menstrual cramping.
Member said he did not establish a medical file for Feury after
he gave her the Lortab prescription. Member became emotional
during the interview and said he had warned Feury of the potency
of the Fentanyl patches.
Julie Pearson, who has a Ph.D in pharmacology and
toxicology and is the toxicology supervisor for the Division of
Forensic Science, testified that Fentanyl is a synthetic opiate,
that it is the most potent opiate on the market, and that it is
about a hundred times more potent than morphine. Pearson
described Fentanyl as a "last ditch drug" that is used to treat
severe and chronic pain and given often to terminally ill
patients. Although Pearson testified that Fentanyl is not
recommended for patients who weigh less than one hundred twenty
pounds, she noted that Fentanyl may be used for an underweight
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patient who has experience with opiates. Pearson also testified
that Fentanyl should "really never ever be used in someone who
doesn't have some tolerance to opiates," that Fentanyl patients
need to be warned to wear one patch at a time, and that patients
must be warned heat can enhance the absorption of the drug.
Without objection, Pearson additionally testified that
Fentanyl is a Schedule II drug in Virginia and that a Schedule
II drug is the most potent drug that may be prescribed by a
doctor. She explained that a Schedule I drug is always illicit
and that a Schedule II drug, although equally dangerous, has
medicinal purposes.
Vicky Gwaltney-Garrison, a pharmacist and the pharmacy
inspector for the Department of Health Professions, testified
that she investigated Member's prescribing of medication for
Feury. Member told her he had prescribed Adderall, Lortab,
Tylenol III with codeine, and Prozac. During her conversations,
Member "admitted . . . he did not prescribe [Fentanyl]" for
Feury and that when he gave the patches to Feury he failed to
provide her with dosing instructions. He said he told Feury,
however, that Fentanyl was a very strong drug.
Gwaltney-Garrison also testified Member had a "very brief
record" of his treatment of Feury that did not document the
prescriptions.
Member testified that he treated Feury's psychiatric
problems while she was working for him and prescribed various
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types of drugs for those problems. He said he accompanied Feury
on several visits to her doctor when she sought treatment for
her painful endometriosis disease. Member explained that he
"temporarily took over the management of [her] recurrent pain"
after her gynecologist relocated; he said he could appropriately
manage the pain she was experiencing.
Member testified that Feury, who weighed less then one
hundred twenty pounds, was not experiencing pain when he gave
her the Fentanyl patches in March. He testified, however, that
he instructed her to follow the printed instructions exactly and
that Feury has never taken more pain medication than indicated
by the prescription. Member admitted that he never wrote Feury
a prescription for Fentanyl and that the rules and regulations
of the Department of Health prohibit a doctor from prescribing
or administering medication to a family member unless in an
emergency. He likened his actions to giving away sample drugs
and said he had a conversation with Feury after he gave her the
patches and told her not to use them. Member also testified
that Fentanyl is not limited to the treatment of chronic
terminal cancer patients.
At the conclusion of the evidence, the trial judge struck
the second degree murder charge against Member. The jury then
acquitted Member of involuntary manslaughter, convicted him of
drug distribution, as an accommodation, and recommended a fine
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of $2,500. The trial judge entered the conviction order
according to the jury's recommendation.
II.
"The court may direct that an accused be tried at one time
for all offenses then pending against him, if justice does not
require separate trials and . . . the offenses meet the
requirements of Rule 3A:6(b)." Rule 3A:10(c). In pertinent
part, Rule 3A:6(b) provides that "[t]wo or more offenses . . .
may be charged . . . if the offenses are based on the same act
or transactions, or on two or more acts or transactions that are
connected or constitute parts of a common scheme or plan."
Applying these rules the Supreme Court has held that "[w]hether
different offenses should be tried separately is a matter that
rests within the sound discretion of a trial court," and the
Supreme Court further held that "a trial court's ruling on the
matter will not be reversed absent a showing that the court
abused its discretion." Cheng v. Commonwealth, 240 Va. 26,
33-34, 393 S.E.2d 599, 603 (1990).
Member "concedes that the evidence of the distribution of
Fentanyl was essential to the trial of the homicide charges,"
but contends "the reverse . . . is not true." Thus, he argues
justice required a separate trial for the distribution charge.
The trial judge found, however, that "the Commonwealth can, and
in fact, may have to get into the facts that there is a person
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who is dead in order to prove the distribution, under the
peculiar facts of this case."
The record supports the trial judge's finding. The
evidence proved the Fentanyl patches were on Feury's body at her
death. Obviously, Feury could not testify concerning the source
of the Fentanyl. No person other than Member was present when
the distribution occurred. Thus, the Commonwealth's proof of
the source of the Fentanyl was Member's admission to the
detective. "[A]s a general principle of law, an accused cannot
be convicted solely on his uncorroborated extrajudicial
admission or confession." Watkins v. Commonwealth, 238 Va. 341,
348, 385 S.E.2d 50, 54 (1989). Moreover, as the Supreme Court
has ruled, "[w]here a course of . . . conduct is . . .
interwoven, . . . the perpetrator has no right to have the
evidence 'sanitized' so as to deny the jury knowledge of all but
the immediate crime for which he is on trial." Scott v.
Commonwealth, 228 Va. 519, 526, 323 S.E.2d 572, 577 (1984).
The record established that the events were connected by
the same transaction and, therefore, were sufficiently
interwoven. Indeed, the presence of the patches on Feury's body
was a circumstance that corroborated Member's admission that he
gave her the drug. The trial judge did not err in concluding
that the facts of this case established that Feury's death was a
link in the proof of the distribution and that justice did not
require separate trials.
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III.
Member contends the trial judge erred in allowing the
prosecutor to prove the Board of Medicine's rules and
regulations prohibiting the dispensing of Schedule II drugs
except by prescription.
On direct examination Pearson testified as follows:
Q: . . . Now, is Fentanyl always prescribed
or is it sometimes given as a sample in line
a doctor's office?
A: Never as a sample. Always has to be
prescribed.
Member objected and contended Pearson was not being asked to
express an opinion on toxicology but rather about a legal issue.
Specifically, Member argued that the prosecutor's question
required Pearson to opine whether it is legal to give Fentanyl
without prescription. The trial judge sustained Member's
objection. The prosecutor then asked, "All right, so it's a
drug that needs to be prescribed?," and the witness answered,
"Yes." When Member objected again, the trial judge noted that
the witness had earlier testified "[w]ithout objection . . .
that it's a [Schedule II] controlled substance . . . that must
be prescribed by a physician."
Member waited until after Pearson completed her testimony
to make a motion for mistrial. The trial judge refused to
declare a mistrial but cautioned the jury as follows:
I wanted to caution you that the last
witness that you heard on the stand, she
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said a lot of things and, as I will tell you
later in the trial, you certainly have the
right to accept or reject those things for
various reasons, but one thing that you need
to understand and that is the legalities
surrounding the distribution of what has
been told to you -- called for you a
schedule two controlled substance. The
legalities of all that are issues of law
that I will instruct you about it at the end
of the case.
As the Supreme Court has noted "error arising from an
improper question . . . may usually be cured by prompt and
decisive action by the trial court without granting a motion for
a mistrial." Black v. Commonwealth, 223 Va. 277, 286, 288
S.E.2d 449, 454 (1982). The record in this case does not show
the contrary. Although Member did not make a timely motion for
a mistrial, the trial judge cautioned the jury promptly after
the motion. Because the record does not contain any contrary
indications, we "presume[] that the jury followed an explicit
cautionary instruction promptly given." LeVasseur v.
Commonwealth, 225 Va. 564, 589, 304 S.E.2d 644, 657 (1983).
The record also indicates that when responding to a
question about Schedule I and II drugs, Gwaltney-Garrison said
"you have to have a written prescription" to obtain a Schedule
II drug. The trial judge sustained Member's objection. The
prosecutor also asked Gwaltney-Garrison whether the Board of
Medicine has rules or guidelines concerning a doctor's
dispensing of drugs. The trial judge sustained Member's
objections to this question. Nevertheless, Member contends on
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appeal that the comment and the question served to inject
improper issues into the trial.
When the trial judge sustained the objection to
Gwaltney-Garrison's testimony and to the prosecutor's question,
this testimony ipso jure did not become a part of the evidence
for the jury's consideration. "[T]he admissibility of testimony
is decided by the judge's sustaining or overruling objections to
questions." 1 J. Strong, McCormick on Evidence § 51, at 216
(5th ed. 1999). Furthermore, the trial judge had earlier
cautioned the jury that he would instruct them at the end of the
case concerning legalities of the distribution. Member did not
ask for a further caution. We cannot say "there is a manifest
probability that the evidence or statement has been prejudicial"
to Member. Saunders v. Commonwealth, 218 Va. 294, 303, 237
S.E.2d 150, 156 (1977). The events he complains of were not
admitted as evidence, and the trial judge cautioned the jury.
Thus, we hold that Member's contention that the trial judge
erred lacks merit.
IV.
In pertinent part, Code § 18.2-248(A) provides that
"[e]xcept as authorized in the Drug Control Act (§ 54.1-3400 et.
seq.), it shall be unlawful for any person to . . . give or
distribute a controlled substance." Germane to this appeal,
Code § 54.1-3408 provides that "[a] practitioner of medicine
. . . shall only prescribe, dispense, or administer controlled
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substances in good faith for medicinal or therapeutic purposes
within the course of his professional practice."
"Where the sufficiency of the evidence is challenged after
conviction, it is our duty to consider it in the light most
favorable to the Commonwealth and give it all reasonable
inferences fairly deducible therefrom." Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). The
evidence is undisputed that Member distributed the Fentanyl to
Feury. The jury found that Member "distributed Fentanyl" and
that as "a licensed practitioner of medicine, [he] did not
dispense the controlled substance in good faith for medicinal or
therapeutic purposes within the course of his professional
practice." The evidence was sufficient for the jury to find
beyond a reasonable doubt that Member was not Feury's physician,
that he distributed the Fentanyl to her without instructions as
to its use, and that he did not prescribe the Fentanyl within
the course of his professional practice.
Accordingly, the evidence was sufficient to support the
conviction.
Affirmed.
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