UPDATE 2: TODAY: Twentieth Judicial Circuit Senior Judge Larry Andersonís CourtroomSandra Stokes Walden
Posted by: Sandra Walden
Date: Jun 26 2014 8:51 AM
HOUSTON COUNTY: Twentieth Judicial Circuit Senior Judge Larry Anderson’s Courtroom, 4th Floor Houston County Courthouse.
TODAY THE battle will be between Attorney Billy Joe Sheffield III and Douglas Albert Valeska. The battle will be in the case, State of Alabama vs. Andrew Osborne.
Osborne was convicted June 16, 2011 of Domestic Violence of his wife. Osborne has completed all sentences. However, Osborne has appealed that conviction and wants the chance to clear his name.
Osborne contends "ineffective assistance of counsel" on the part of Attorney Martin Adams. Osborne alsol contends that evidence that was to his favor was never turned over to his attorney by Twentieth Judicial Circuit District Attorney Douglas Albert Valeska.
Osborne contends that Valeska did not turn over medical records from Dothan ENT that reflected prior ringing in the ears of the victim. Osborne contends that medical records of Dr. Jacobs were blocked from the defendant receiving by Valeska. That after consulting with Dr. Jacobs the records were not turned over, Valeska objected to the defense having the records and the defense should have had those records.
Osborne contends Ineffective Assistance of Counsel in that Adams failed to get the medical records from Dothan ENT, Dr. Jacobs, SAMC and CARE Ambulance.
Osborne also contends newly discovered evidence which reflect pre-existing conditions on the part of the victim. Osborne contends the injuries he is alleged to have caused, he did not in fact cause and medical evidence supports his position.
THE FIGHT In the case of State of Alabama verses Andrew Osborne, a Dothan physician, there was a fight. Valeska even went into Dr. Osborne's bank account information after the incident.
After conviction, Osborne was sentenced to community corrections. Valeska constantly monitored Osborne.
Valeska sought to have Osborne community corrections revoked under allegations Osborne went way off path from Troy to Dothan to eat. Valeska unfairly portrayed a Ozark restaurant. That even prompted Ozark's "whose who" to call and ask RSN to do articles on the business. Valeska's portrayal of the restaurant was unfair to the business that is good to Ozark.
Valeska sought an order and had a witness picked up in the State of Florida, placed in jail, brought in handcuffs, leg irons and belly chains from Florida to Alabama. Valeska wanted the witness held in the Houston County Jail pending a hearing to answer (1) have you had dinner with Osborne at a restaurant (2) and was Osborne ever at your house. That witness had never been served a subpoena.
Valeska was successful in that a ankle monitor was put on the witness.
Judge Larry Anderson did place Osborne in the Houston County Jail for 24 or 48 hours.
WHY IS OSBORNE FIGHTING THIS?
Good question. The Alabama Medical Board did what they never have before. They had revoked Osborne's license to practice medicine. But after a full blown hearing, the Alabama Medical Board reinstated Osborne's license to practice.
As we understand, Osborne has completed all sentences and probation. However, Osborne wants to clear his name.
Twentieth Judicial Circuit District Attorney wants the death penalty for running a stop sign. Attorney Billy Joe Sheffield is a lot like Matlock from TV. He is very detailed.
Valeska jumps up and down and yells and calls people names. Sheffield does not care who he angers in the defense of his client. That includes everyone involved. He is going to defend his client.
Sheffield details everything. Valeska cannot keep up with anything. He is like Rickey, do not give him an original because he will lose it.
Judge Anderson, he maintains a level playing field. Neither side has an advantage over the other. Anderson holds the District Attorney and Defense Attorney to an equal standard.
Judge Anderson, if he gives a 5 minute break, at 4 minutes and 58 seconds you had better be in your chair and ready for the 5 minute bell. The attorneys better be prepared, know the business and ready to answer when he ask a question.
All any party can ask in court, is a level playing field. And with Judge Anderson, you will have a level playing field.
But understand, 50% will be unhappy with the Judge. Because he has to make a decision and that decision will anger 50% of the parties.
UPDATE : THE APPEAL..9 AM, 4th Floor Houston County Courthouse.
Court has been called to order. Judge Anderson is on the bench. Rule 32 Evidentiary Hearing. Probably a few preliminary matters we need to address. Sheffield filed a motion to amend that had to do with newly discovered evidence. Judge Anderson says the law is such that the defendant can amend Rule 32 Hearing up to trial.
What is it that you truly intend to go forward on? Sheffield says that a lot of the case has to do with newly discovered evidence and evidence not given to defendant during trial.
Any issue regarding Dr. Jacobs is abandoned? Sheffield said at this time.
Judge Anderson has a certain way of thinking about things and the lawyers need to follow his thought process.
Custodian of Records, ENT Care, David Halcomb is first witness. Sheffield: Records concerning Osbourne, yes sir. Electronic records the Doctor will go into and enter info after he sees patient. Other doctors dictate into Dictaphone and they are then transcribed. 48 – 72 hour turn around.
Certified records are entered into records. Valeska says he has not seen, but he does not object to entering into evidence.
Oct 22, 2010 12 pm, date of appointment.
Dec. 2, 2010 11:18 am, date of appointment.
Jan 10, 2011 records entered June 7, 2011 entered 5 AM and 4:53 am. That is not according to your procedure? No sir. Physical Therapist entered records, he works early and late hours, not uncommon for him to be there.
Feb 3, 2011, when patient was discharged from resolved vertigo? Valeska objects, Sheffield withdraws.
July 28, 2011 Electronic signature 3:48
Entered without objections. Valeska asks to see documents. Judge tells witness to put records back in envelope and hand to Valeska.
Valeska Mr. Sheffield asked you to look at records when stamped. Joe Frank Smith enters his own records? Yes sir.
Others are transcribed.
Joe Frank Smith put time on his records, yes sir. When Smith leaves patient he goes into his office and he enters his stuff in records and it is entered in real time.
The ones done by Dr. Gannon. Do you show anything in your records that Ms. Osborne was in the office at least 15 times before that? I would say less than that.
Feb 3, 2011 records: What did Dr. Frank’s notes indicate? Resolved initial vertigo, 30%+ of continued issues.
6/4/2010: the diagnosis of Dr. Gannon wrote would be in his report, correct? Yes sir
Was there a request for subpoena from courts or defense for records you would honor that request? Yes sir
Was Ms. Osborne subsequently treated after June 13 2011 for Vertigo and ears? Objection up to trial of June 11 her issue was resolved as to vertigo. At time of the trial did the defendant have the records that the issue was resolved? They would not have had the records up to June 11, 2011. Any records after that would not be relevant. Valeska is arguing that what they are representing that she went to ENT saying I am cured. She did not.
Judge: MR. Sheffield’s argument that nothing existed June 13, 2011 because those were all the records that existed. You can’t look at existed after that. Valeska is arguing that the documents after June 13, 2011 show that she had continuing problems and that is admissible.
Judge is asking Sheffield if he is making the argument that if the defense had these documents indicating that the problem was resolved at that time? Sheffield, I am mainly focusing on records prior to trial. Issue resolved about problems with her ear subsequent to trial date.
Valeska go forward with questions, no questions.
Sheffield redirect: Dr Gannon’s records. When is electronic signature for June 4 visit? June 8. That is for her having ringing in the ear? That is what it says.
Judge: Jan 10, 2011, Feb 3, 2011 Dr. Joe Frank Smith’s records, Why entered June 7,2011. Why a 6 month gap being entered? Why long delay? Looks like the delay was due to physical therapy, my guess. Treating physician those two dates: Dr. Smith. Records signed by physical therapy, Chris Wash. Physical Therapy records entered 6 months later.
Sheffield: Feb 3, 2011 records, when she came in Jan she completed those tests on Jan 10? Yes sir. So if she completed those tests on Jan 10 they should have been entered then? I have no answer to that.
Sheffield’s Next Witness: Dr. Hagler’s Records
Brent Murray, Administrator for Women’s Health Care PC
4 pages of records, accurate copy of those records, I am responsible for the records for practice. Sheffield offers as defense exhibit 2. Valeska is looking at them. Any objections to admissibility? No sir.
Valeska asks if the records indicate why she went to the office? Yes, one was a visit she requested, the others were phone calls. You are the custodian of records, yes sir.
Judge asks for defendants exhibit 2 to be given to him, the four pages. Mr. Murray says those were accurate as of the day they were printed. Mr. Murray is dismissed.
Next: Dr. Joe Frank Smith, Judge is swearing him in. Sheffield asks him to state his name. He is a physician, ENT. Do you recall testifying in Dr. Osborne’s care in 2011? I did. Also during divorce and civil case? I did.
Your wife is close friends with Dr. Osborne’s first ex-wife? Yes sir. You and your wife came to the sentencing hearing? Yes sir. The ex Ms. Osborne came to you after the sentencing? Yes sir.
Oct 22 , 2010 First time she came to see you? Yes, self referred. Electronic signature Oct 22, 2010 12:00.
Did you put her on any med for dizziness? Antivert
Dec 2, 2010 next visit, did she say she was improving? Patient stated her symptoms were improving, patient reports continued issues with vertigo when she turns her head
Jan 10, 2011, When she came in there she was improving wasn’t she? This was Chris Wash, physical therapist, dictating this.
Back page, you are the DR that is responsible for this? You would have had knowledge of these tests? When they were completed? Yes sir. Did she have a normal balance tests? There are different parts to balance tests.
Jan 10, last page of records, electronic signature, June 7, 2011, yes sir. The orders prescribed to here on Jan 10 were entered into her records June 7, 2011? Yes sir. Is that normal procedure? Dr. Smith says he has no idea.
All of the records go into her file on the computer? Yes sir, if the medical records that are not electronic are scanned in.
Feb 3, dismissed and instructed to return to office is she needs. Patient requests to return to office to thank us for resolving vertigo. Patient discharged and instructed to return to office if any further difficulties. Maybe 30% chance of recurring, chronic condition. Signed on 6-7-2011, 5 am. Do you realize that was 6 days before trial? I do now.
Go back to June 4, 2010. Smith has it. Dr. that provided service, not electronic medical record, Dr. Gannon. She had headache, taking advil, ringing in the ear, swelling in the face.
Did Mr. Valeska receive those records from June, 2010 and up until June 11, 2011? Our office sent the records to Mr. Valeska. Valeska objects, he can only say we subpoenaed not that we got them? Sustained
Prior to trial the last record you have is that her problem had been resolved. Trial was June 2011. Date of assault 10-19-2010, Last record is the Chris Wash record from Jan 11 and Feb 3. She did not come back to see y’all between Feb 3 and June? Not to my knowledge.
You testified in the trial that the ringing in the ear was a chronic condition? Let me look. Which trial? Criminal trial.
Judge Anderson: Criminal trial, appeal of criminal trial, divorce trial, appeal of the divorce trial, medical licensing trial, criminal trial. Now an appeal? Yes sir. Lot of litigation.
Sheffield: Criminal trial: Did you testify that you took the history from Susette Armstrong? I did. Did you see her prior records? I did not. So you were not aware of prior tinnitus? I wasn’t.
You also stated based on these representations, did you have Mr. Wash records at the time you testified? I can’t remember.
Did you testify that her condition of vertigo had been resolved? Down at the bottom, you testified that vertigo was a permanent condition?
Dr. Smith: Vertigo is a big term, different types of vertigo. Dr. Smith is explaining in medical terms her condition….
Dr. Smith testified that there is no resolution with medication. You have to try to drown it out.
The injuries, ringing in the ear and vertigo, ….her main complaint was tinnitus and vertigo when she came to you? On page 98 are you talking about ringing in the ear and it can be permanent and you said it can? Yes.
The permanent condition I am taking about is the BPBT (?)
Hearing test 2010, 10-22. You testified hearing was with not in normal limit? Within normal range but slight loss. Not totally normal.
You have a website don’t you? Yes
Defense Exhibit 3: Patient education on ENT website.. It has a list of all types of patient education? Yes. Sheffield has copies of patient education on website.
Hearing loss: Normal hearing loss, will you look at this. The range between 40 and 50 on your website you can have normal hearing loss? Yes sir you can have hearing loss within normal limits? Yes sir. After age 30 you can begin having some hearing loss normally? I can’t answer that
Normal range 25 decibels or less in hearing test? This is on your website? Yes sir.
Sheffield: If I come into your office for a check-up and my hearing test has a 20 decibels that I have a hearing loss… It depends on the patient
Tinnitus is ringing of the ears, it can be a symptom of hearing loss and it cannot be a symptom of hearing loss.
Smith: We do not always go by the “charts”, we listen to what our patient is telling us.
10 minute break.
Sheffield continues: Are you saying today that the tinnitus, hearing loss and vertigo is what you testified at trial? Only on the vertigo, the only permanent injury. Dr. Smith believes the vertigo is the permanent injury. Permanent does not mean it is there all of the time. The rocks roll in and out and cause the vertigo. Judge asking clarification? At that time it was resolved.
Unilateral and bilateral? Unilateral is one ear, bilateral is two. Ms. Suzette had bilateral. It can go back and forth.
Is a common cause of bilateral vertigo a medicine interaction? You are using to general of a term. Dr. Smith says it can occur spontaneous, most of the time it is trauma. This is the first time in my career that I have seen bilateral occurrence of BPPV and that was this one.
Anderson is asking what caused this? Trauma to both ears.
June 4, 2013, two years after the trial, page 87 (deposition)
Line 5, did you tell them the 57% of the time this is likely to go away? Let me look at the records.
BPPV: What was your response in the deposition to the question are you a expert in BPPV? No. There is a specialist that does extra training in the ear.
There is one, a neuroontologist who is a ENT that specializes in just ear issues that is more experienced than me. When they asked you the question you just said no, yes sir.
Line 21: Where did you learn that this was a permanent condition? If you look in ENT literature. I had to research this issue and I had thrown all of the literature away.
Where did you get the literature? Today you could probably go to google. What did you answer in the deposition on line 20? In some patients yes and in some no. So in some patients it is a permanent injury and some not? Yes sir. So what did you answer on line 23, how do you know if permanent or not? Yea, you just don’t know.
As you sit here today you can’t remember any particular piece of literature? No
Page 95 Civil Trial, Line 5, Did you testify that you have seen over 200 patients with this condition? BPPV? One ear, not bilateral.
Did you go to Grand Jury to testify? I don’t think so, not to my memory.
When did you speak to Mr. Valeska about this case? I don’t remember. Do you know when you met with Mr. Valeska and he told you that Dr. Osborne said he was going to kill you? I don’t remember when..I was told. You knew going into the trial it had to be a permanent injury? I can’t remember.
Page 96. What is seared in your memory? Cause it was just not a good experience, I had never testified in a criminal trial before, just not a good experience. Disrupted your life and you had had your life threated? Who? Dr. Osborne? In a phone conversation, from phone conversation to his daughter he made the threat. That was heresay? On the record.. But you have not seen that on the record? Doug Valeska told me. So when you testified in the court the only way you knew that there was a threat was from Doug Valeska? You did not hear the threat? No sir
It is a unknown isn’t it? Correct
The drug lunesta, are you familiar with that drug? Sleep medication.. Is one of causes of vertigo sleep medication? I have never heard of a medication causing BPPV. It can cause fluid in the ear. One of the causes of BPPV is fluid on the ear…Did you know that she had just started taking Lunesta? No. Did you know when she stopped taking Lunesta? Sheffield gives dates..Could the BPPV have been caused by fluid from taking Lunesta? No. No correlation with her stopping Lunesta and Vertigo going away? No the physical therapy with Chris Wash is what helped.
Anderson: Per Hagler’s records, Suzette Osborne was taking Lunesta. Can Lunesta cause a fluid build up in the ear? I do not know. Can fluid build up in the ear cause vertigo? Yes sir. And that vertigo is that BPPV vertigo? Maybe
Oct 22, 2010…Advil, Ambian….medical history. Is vertigo one of the side effects of Ambian. Dr. Smith testified that Ambian can cause anything, I don’t know. Dr. Smith states that he knows it doesn’t cause BPPV.
In deposition did you state that you came back in the courtroom for sentencing because you wanted to see him sentenced after you were told about a threat on your life? Page 66….line 22..Did you have any hope or expectation of what his sentence was going to be? I hoped he would be found guilty and the Judge would sentence him to what he felt he should get. It was all a bad experience.
You testified at criminal that you did not have any of the records..at Civil trial you testified that you had not reviewed Dr. Gannon’s records? I had not.
On pg 42, line 5: This is the records they gave me at the deposition. That is the first time in 2013 that you became aware of Dr. Gannon’s record? That is correct.
Pg 63 line 15…What did you say Mr. Valeska discussed with you…He discussed the difference between permanent injury and non permanent. Did he explain the difference? Yes. And the fact that he had to prove there was a permanent injury? Correct. This was the same time he told you about the threat on your life? Yes sir. You never listened to the phone record? Correct
Valeska: You did examine Ms. Osborne and dictated the records…I enter my records as I see the patient…The one that you had some tests done..why was it signed 5 to 10 days
The document was not created 5 to 7 days before trial. He might have signed it 5 to 7 days, some health care professionals are not good at signing.
Is there anything that shows her BPPV was cured forever and would not ever come back? No.
Did she ever come back for treatment? Yes sir…
Ringing of the ear, sinus infection, visit with Dr Gannon, if you had any information on that visit would it have changed your testimony in any way? No sir.
Did the information about a death threat change your testimony in any way? No sir.
If you had that information about Lunesta or Ambian, would that have changed you diagnosis and testimony? No sir.
What can cause her condition, her face was red and swollen wasn’t it? Yes sir. From being struck in the head? Yes sir.
Who did you know first, Suzette or his first wife? Probably Andy and his first wife.
Wash made the decision as to what type therapy and I agreed.
30% chance of it flaring up is even more with it being in both ears.
Did you change or inflate your testimony to improve legal terms in any way? No. You are not a lawyer are you? No sir
Could lunesta or ambian cause any of the symptoms you treated her for? No sir
Sheffield: You were neighbors with Suzette Osborne and her previous husband weren’t you? Yes sir.
1-10-11 Balance Test.. Before trial. Next month 2-3-11 is when it was resolved. Has she had any medical testing after Feb 3 did she having any testing for vertigo?
4-30-2012. She is complaining about dizziness but on exam you did a study, negative vertigo in relation to spinning. But she is complaining of it. It also tested for another symptom that she was complaining of and the test was negative.
Are you aware that this is just before civil case? No. I did not see her at this time.
Valeska: Can you still have the condition no matter what the test shows? Yes. Can you cure the BPPV? No you can treat symptoms but not BPPV.
Sheffield: All of the records and you website say that it can be resolved? Episodes can be resolved. Sheffield says isn’t it true that 70% of these patients resolve itself? I don’t know what literature he was referring to.. She came in and said this matter is resolved? Yes sir at that time. When y’all are doing this discussion you are talking about a 70% chance of this coming back? Yes sir.
In the civil trial you testified you are not a expert in BPPV? Your response was no. I did not know what he was asking. When he asked you if you were a expert in BPPV you said no? Yes sir.
Valeska: Is this a permanent condition of BPPV? Yes sir
Dr. Smith dismissed.
Next Witness: Martin Adams, Attorney, self employed.
Did you represent Mr Osborne did you represent Mr. Osborne in 2011? Myself and one other attorney.
Did you ever have the records of Dr Gannon from June 2010, did you every have possession of those records? I do not recall that document specifically? I can’t answer yes or no.
In your memory what elevated this to a felony was vertigo, ringing in the ear and hearing loss? Yes.
Would it have been important for you to know that 4 months prior to the trial that she had already been treated for ringing of the ear? Yes sir.
Discovery: We go to DA and he provides what evidence he has.
You were not aware that she had previous ringing of the ear? No sir
Are you aware that Dr. Smith was not testifying to any ringing in the ear or hearing loss? Valeska objects. Rephrase your question
Four things state alleged. Dr. Smith testified to 3 of those conditions? What he said is what he said, I don’t remember.
Mr. Valeska and you showed me these documents and I don’t recall ever seeing these documents. According to testimony today, June 4,2010 (Dr. Gannon), Jan 10, 2011 and Feb 3, 2011 Wash records…would those documents have benefited your case? Yes sir I would have like to have had those documents for my case..
You would not have had access to GYN records? Absolutely not. Have you ever seen the medical records where she was prescribed Lunesta? Not that I recall. She was prescribed Lunesta on 9-7-2010 by Dr. Hagler. On Dec 15 she requested to Dr. Hagler that she come off of Lunesta because she was having problems with it and placed her on Ambian.
Dr Osborne made a lot of allegations and after discovering these documents if you had had those records those allegations would not have existed would they? No sir. You would have used those records wouldn’t you? Yes sir
On June 4, 2010 record, Dr. Gannon, What are the other issues? Headache all week, nasal conjestion, lot of stress, facial swelling.
Did you ever receive the balance test the day of trial? I did receive a document that day, I felt comfortable proceeding. How long did you prepare for the trial? We met several times with Mr. Osborne, myself and Mr. Parkman. Mr. Parkman was tied up in another case when the case came up. I felt prepared to try the case myself. I have never tried a case that I did not feel prepared to handle.
If you had known that there were these medical records out there you would have subpoenaed them? Yes sir.
And you have had dealings with the DA’s office and you know he has a open door policy for records? He has always been very cooperative and been very honest with us.
Did you have any discovery from Dothan ENT about scratches on her face? No sir
You met with Mr. Osborne several times and discussed her medical conditions? We discussed her medical conditions and records a lot. Did you discuss the sinus infection?
Let me say this Mr. Valeska, if Dr. Osborne had asked me to subpoena any of her records I would have subpoenaed them.
Valeska is asking Adams about the trial and whom he cross-examined. Who told you Ms. Osborne was taking lonest and Ambien? It was Dr. Osborne correct? Yes sir.
Dr. Enselett testified about the medicine she was taking. It is in the transcripts. What I am asking Mr. Adams is that I can show you the transcript and you would rely on what the transcripts say? Adams says of course I would.
Valeska is showing Adams Dr. Enselett’s testimony in the trial. Valeska’s direct examination. He told you she was prescribed Lunesta and Wilburton.. Yes sir..
My cross I asked her if he was familiar with Lunesta and he said it was a sleep aide. So you started asking one of the first witnesses the state put up about Lunesta.
You put on other doctors in relation to her broken arm. Yes sir. You also recall Dr. Feagin testified for the state…you mean for the defense…yes I remember.
Mr. Parkman made the decision to go forward with you and Julie Dowling? Yes sir. I asked him to get a continuance and he did not want to.
The defendant took the stand in his own behalf and stated his view of how things occurred.
You told Mr. Sheffield that you would have liked to have the information about sinus infection. You did have info about Lunesta and Ambian.
The day defendant got out of jail he called Dr. Lolley to discuss her injuries? I can’t say for certain but if it is in the records I agree.
Objection: Sustained Let’s not retry the criminal trial.
Dr. Osborne agreed to keep the doctor on the jury? Yes sir. I do recall discussing this and we felt that the doctor should stay on jury.
Would you say your were not prepared for trial? Absolutely not.
Would you say that Osborne was very involved in the trial? Yes sir.
Are you saying that you were prepared for the trial and ready to go forward? Yes sir. Then why did you ask for continuance? I like to try cases with MR Parkman, he is very experienced and I learn from him. I did not know anything about Ms. Dowling’s trial experience.
Judge Anderson: One of Osborne’s complaints is that Adams did not request continuance once he was presented with hearing test day of trial? Did you feel that you needed to request a continuance? I did not.
Foreperson of Jury was a doctor. You felt that he would understand medical jargon? Yes.
Do you have further need of Mr. Adams? No sir.. he is free to go.