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MEMBER v. COMMONWEALTH




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MEMBER

v.

COMMONWEALTH


COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Clements and Senior Judge Hodges

Argued at Richmond, Virginia

Record No. 2125-02-2

BERNARD JERE MEMBER

v.

COMMONWEALTH OF VIRGINIA

 

MEMORANDUM OPINION[1]
BY JUDGE JAMES W. BENTON, JR.

SEPTEMBER 9, 2003

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.

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

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.

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

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

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

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

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.

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

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

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

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.

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not

designated for publication.


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