State v. Barlow

WELLS, Judge.

Defendant brings forward seventeen assignments of error from the order of the trial court. We have reviewed these assignments and view the two crucial questions for our consideration to be whether the trial court erred in failing to suppress the statements made by defendant to the hospital employee, and whether the trial court erred in failing to suppress the videotaped confession. We reverse.

N.C. Gen. Stat. § 8-53 provides, in pertinent part:

No person, duly authorized to practice physic or surgery, shall be required to disclose any information which he may have acquired in attending a patient in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon, and no such information shall be considered public records. . . . Any resident or presiding judge in the district, either at the trial or prior thereto . . . may, subject to G.S. 8-53.6, compel disclosure if in his opinion disclosure is necessary to a proper administration of justice.

Pam Chance was a registered nurse working at the hospital. Defendant contends that the trial court erred in making findings and concluding that her statements to Chance were not privileged. Assuming arguendo that these statements were privileged, this privilege is qualified. N.C. Gen. Stat. § 8-53 affords trial courts wide discretion in compelling disclosure if there is a finding that such disclosure is necessary for the proper administration of justice. State v. Efird, 309 N.C. 802, 309 S.E.2d 228 (1983); Sims v. Charlotte Liberty Mut. Ins. Co., 257 N.C. 32, 125 S.E.2d 326 (1962). Trial courts should not hesitate to require disclosure where it appears to them to be necessary in order that truth be known and justice done. Sims, supra. N.C. Gen. Stat. § 8-53.3, creating a psychologist-patient privilege, grants the same discretion to the trial court.

The trial court stated in its order that it “concludes as a matter of law that the proper administration of justice requires the disclosure of this statement and that any privilege should be waived by the Court in accordance with N.C.G.S. 8-53 et seq." The general rule is that where a court is given discretion, but “rules as a matter of law, without the exercise of discretion, the offended party is entitled to have the proposition reconsidered and passed upon as a discretionary matter.” Capps v. Lynch, 253 N.C. 18, 116 S.E.2d 137 (1960). Despite the language of the order, the record indicates that the trial court was not under any mistaken impression that it was required to rule a particular way as a matter of law. See Lemons v. Old Hickory Council, Boy Scouts of America, 322 N.C. 271, 367 S.E.2d 655, reh’g denied, 322 N.C. 610, 370 S.E.2d 247 (1988). The judge made the following comments in rendering his decision:

I don’t see how that’s a privilege. She wasn’t a patient, wasn’t being treated, and just came out there. But even if there was one, in 1983, under the statutes of the legislature, this state determined what privileges or alleged privileges that the superior court judge could, in the interest of the administration of justice, and those are the words, could dissolve whenever the court thought that justice would be served in doing so.

And so, this court holds that it does not feel that in relationship on this first phase in her conversation to this lady, Nurse Chance, that there was a privilege. But if it is, the court’s going to dissolve it because it finds in the interest of justice to do so. There would be no reason not to.

We hold that this language indicates that the trial court recognized its discretionary authority, and exercised it. Defendant has demonstrated no abuse of this discretion, and we perceive none.

Defendant next contends that the trial court erred in failing to suppress the videotaped confession as the “fruit of the poisonous tree.” The trial court concluded that the doctrine did not apply since defendant had already confessed the crime to Chance. We disagree. Regardless of whether an individual has confessed to a third party, a previous confession to a police officer may have some effect on a decision regarding whether to confess again. The proper analysis is set out in State v. Edgerton, 86 N.C. App. 329, 357 S.E.2d 399 (1987):

When evidence before the court tends to show a defendant made a confession prior to the confession to which he objects, the court is required to determine whether the defendant made a prior confession and whether it was voluntary. State v. Silver, 286 N.C. 709, 213 S.E.2d 247 (1975). If the court finds there was a prior confession and it was not voluntary, then the court must determine whether the second confession was made under the “same prior influence” which made the first confession involuntary. State v. Edwards, 284 N.C. 76, 199 S.E.2d 459 (1973); State v. Edwards, 282 N.C. 201, 192 S.E.2d 304 (1972); State v. Fox, 274 N.C. 277, 163 S.E.2d 492 (1968). The State must overcome the presumption of “same prior influence” by showing something akin to surrendering the signed written confession to the defendant or informing him that his prior confession will not be used against him. State v. Edwards, 284 N.C. at 79, 199 S.E.2d at 461. When there is conflicting evidence on any of the issues, the trial court is required to make findings; although the better practice is to always make findings. State v. Biggs, 289 N.C. 522, 529-30, 223 S.E.2d 371, 376 (1976).

This analysis is consistent with the principles set out in Oregon v. Elstad, 470 U.S. 298, 84 L.Ed.2d 222 (1985). The fruit of the poisonous tree analysis presupposes the existence of a constitutional violation. Id. A failure to Mirandaize an individual is not, in and of itself such a violation. Id. The trial court failed to make the necessary findings and conclusions for us to determine whether the three separate statements to the police officers were simply not properly Mirandaized, or whether any of defendant’s constitutional rights were violated. With regard to defendant’s statements to Deputy Chief Collins, we are unable to determine adequately whether they in fact constituted a confession. Therefore, we must reverse.

The defendant’s plea of no contest is stricken, the judgment entered is vacated, and the cause is remanded to the superior court for further proceedings consistent with this opinion. See State v. Forrest, 41 N.C. App. 160, 254 S.E.2d 194 (1979).

Reversed and remanded.

Chief Judge HEDRICK and Judge ORR concur.