State v. Efird

309 S.E.2d 228 (1983)

STATE of North Carolina
v.
William Franklin EFIRD.

No. 226A83.

Supreme Court of North Carolina.

December 6, 1983.

Rufus L. Edmisten, Atty. Gen. by George W. Boylan, Asst. Atty. Gen., Raleigh, for the State.

James C. Johnson, Jr., Concord, for defendant.

COPELAND, Justice.

The defendant presents four assignments of error. He first claims that his medical records maintained by the Cabarrus County Health Department were improperly allowed into evidence. The State offered testimony that the defendant was afflicted with gonorrhea for the purpose of corroborating the testimony of the child that the defendant was her assailant. The defendant argues that such introduction did not constitute an exception under N.C.Gen.Stat. § 8-53.3, and thus was a violation of the confidential communication privilege between patient and physician. We disagree.

First, we note that the defendant has mistakenly relied upon N.C.Gen.Stat. § 8-53.3, which concerns communications between a psychologist and his client. Obviously, such a relationship does not exist in the case sub judice. The applicable statute relating to the physician-patient privilege is N.C.Gen.Stat. § 8-53. However we have determined that N.C.Gen.Stat. § 8-53.1 is controlling here. This statute provides:

Notwithstanding the provisions of G.S. 8-53, the physician-patient privilege shall not be ground for excluding evidence regarding the abuse or neglect of a child under the age of 16 years or regarding an illness of or injuries to such child or the cause thereof in any judicial proceeding related to a report pursuant to the North Carolina Juvenile Code, Subchapter XI of Chapter 7A of the General Statutes of North Carolina.

This statute is read in pari materia with our Juvenile Code, in particular, N.C.Gen. Stat. § 7A-551 which states:

Neither the physician-patient privilege nor the husband-wife privilege shall be grounds for excluding evidence of abuse or neglect in any judicial proceeding (civil, criminal, or juvenile) in which a juvenile's abuse or neglect is in issue nor in any judicial proceeding resulting from a report submitted under this Article, both as said privileges relate to the competency of the witness and to the exclusion of confidential communications.

In essence, the physician-patient privilege, created by N.C.Gen.Stat. § 8-53, is not available in cases involving child abuse.

According to the evidence, the Child Welfare Unit of the Cabarrus County Department of Social Services received a complaint of child abuse involving Tammy Efird. Their investigations prompted initiation of the charges against the defendant. There was unequivocal evidence that the seven year old girl in this case had been sexually abused, which would invoke applicability of these statutes. Therefore, these medical records were admissible as evidence with regard to the cause or source of her disease.

It appears that the trial judge relied upon the exception to the physician-patient privilege of N.C.Gen.Stat. § 8-53, which grants a trial judge discretionary authority to compel disclosure if he finds such disclosure to be "necessary to a proper administration of justice." Although the trial court should have relied upon N.C.Gen.Stat. § 8-53.1, as we have stated earlier, it was not prejudicial error for it to use N.C.Gen.Stat. § 8-53. At trial and in his separate order dated 14 December 1982 (allowed as An Addendum to Record on Appeal by this Court), Judge Wood found the following; the alleged assault occurred on 5 June 1982; the defendant received treatment for gonorrhea on 7 June 1982; Tammy was determined to be afflicted with gonorrhea on 12 August 1982; Tammy had similar vaginal irritations which "could have been gonorrhea" on 18 June 1982; and that females generally contract gonorrhea through sexual intercourse with an infected man. The trial court then concluded that the medical records were relevant to a litigated issue. We hold that the trial court's findings and conclusions were sufficient to take these records out of the privileged communication rule of N.C. Gen.Stat. § 8-53.

The statute affords the trial judges wide discretion in determining what is necessary for a proper administration of justice. State v. Taylor, 304 N.C. 249, 271, 283 S.E.2d 761, 776 (1981); 1 Brandis on N.C. Evidence § 63 (1982). Justice Moore in Sims v. Charlotte Liberty Mutual Ins. Co., 257 N.C. 32, 39, 125 S.E.2d 326, 331 (1962) emphasized that "[j]udges should not hesitate to require the disclosure where it appears to them to be necessary in order that the truth be known and justice be done." We are satisfied that the trial judge did not abuse his discretion.

Finally with regard to this first assignment of error, the physician-patient privilege statute does not require exclusion unless defendant's communication is with a "person duly authorized to practice physic" (i.e. medicine). This privilege has been interpreted to include entries in hospital records made by or under the direction of physicians and surgeons. Sims, at 38, 125 S.E.2d 326. However, this statute does not include "nurses, technicians and others; unless they were assisting, or acting under the direction of a physician or surgeon." Id.

In this case nothing in the record before us indicates that Nurse Janice Odell had prepared the medical records in question under the direction of a physician. Thus, the testimony of Nurse Odell was not privileged information under N.C.Gen.Stat. § 8-53. The records offered through Nurse Odell were relevant and competent evidence, which were properly admitted.

Defendant's next two assignments of error concern the questioning of the State's witness by the trial court. The defendant contends that Judge Wood, in asking the victim's physician certain questions, elicited answers to matters material to the State's case that "otherwise would not have come in against the defendant." Further, he argues that the judge implied an opinion favorable to the State regarding this testimony, which prejudiced the jury against the defendant. The two pertinent exchanges appear below:

THE COURT: When did you see her previously?

A. It was in July. I can look at the date. She was seen in the Emergency Room July 18. Her complaint at that time was going to the bathroom a lot, burning when she passed her water, and lower abdominal pain.

Q. Could that have been gonorrhea at that time, looking back on it now?

A. Retrospectively, I'm sure it could have been.

Q. Now what is the normal course of conduct for the disease?

A. Well—

THE COURT: That was July when?

A. July 18.

Several minutes later the court then inquired:

THE COURT: Let me ask a question to try to clarify this thing in my mind. Is there any way you can tell or do you have an opinion after examining this little girl on the 12th of August, 1982, as to how long she had had gonorrhea?

A. Well, looking at the amount of infection she had, I would say she had had it a fair amount of time. I do have a time from July when I saw her until August, and I would say that more than likely, she had it in July when I saw her in the Emergency Room, and that progressed rather extensively from that time.

THE COURT: It is your opinion she probably had it in July when you saw her in the Emergency Room?

A. More than likely. She didn't have it enough when I examined her, didn't have enough discharge for me to consider the diagnosis. It's a diagnosis that more and more we're beginning to consider in any child that has urinary symptoms. We're beginning to look at it more and more.

THE COURT: You didn't run a test on her in July?

A. Did not. Just the urine.

THE COURT: Right, just the urine test. Now, gonorrhea untreated would just go on and on?

A. It could go on and on, but usually, like in her case, it would come to a head. It would get so bad that somebody—some obvious treatment would be indicated. I think she was brought in because the mother couldn't handle the discharge.

THE COURT: So much discharge the mother couldn't handle it?

A. Yes.

After careful scrutiny, we have determined that Judge Wood's inquiry did not adversely prejudice the defendant. Numerous cases recognize the well established rule that the judge may, on his own prerogative, participate in the examination of witnesses. State v. Pearce, 296 N.C. 281, 250 S.E.2d 640 (1979); 1 Brandis on N.C. Evidence § 37 (1982). In fact the trial judge has a duty to question a witness in order to clarify the testimony being given, State v. Norwood, 303 N.C. 473, 279 S.E.2d 550 (1981); State v. Hunt, 297 N.C. 258, 254 S.E.2d 591 (1979), or "to elicit overlooked, pertinent facts." State v. Monk, 291 N.C. 37, 50, 229 S.E.2d 163, 171 (1976). However, the trial judge must carefully scrutinize his questioning to insure that it does not impermissively suggest an opinion as to the guilt or innocence of a criminal defendant, the credibility of a witness, or any other matter which must be determined by a jury. Hunt, 297 N.C. at 263, 254 S.E.2d 591.

In the first section of the challenged inquiry, Judge Wood attempted to elicit the date upon which an event occurred. The trial court's second intervention clearly reveals an attempt to clarify and promote a better understanding of the doctor's testimony. Further, we find nothing in either exchange which the jury could reasonably interpret as an expression of the court's opinion.

Finally, defendant asserts that the trial court erred in denying his motion to dismiss at the close of the State's evidence. Tammy Renee Efird testified unequivocally as to the assault upon her by the defendant. This testimony alone, when considered in the light most favorable to the State, as we must do, is sufficient to overcome defendant's motion for nonsuit.

We hold that the defendant received a fair trial, free from prejudicial error.

NO ERROR.