State v. Etheridge

• Decision Date: 03 February 1987
• Docket Number: No. 141A86,141A86
• Citation: 352 S.E.2d 673,319 N.C. 34
• Parties: STATE of North Carolina v. Curtis Edward ETHERIDGE.
• Court: North Carolina Supreme Court

Page 673

352 S.E.2d 673

319 N.C. 34

STATE of North Carolina v. Curtis Edward ETHERIDGE.

No. 141A86.

Supreme Court of North Carolina.

Feb. 3, 1987.

Lacy H. Thornburg, Atty. Gen. by James Peeler Smith, Asst. Atty. Gen., Raleigh, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender, by Geoffrey C. Mangum, Asst. Appellate Defender, Raleigh, for defendant.

MARTIN, Justice.

On charges involving his daughter, ¹ defendant was convicted of four counts of rape in the first degree, four counts of taking indecent liberties with a child, and four counts of incest. On additional charges involving his son, defendant was convicted of single counts of crime against nature, taking indecent liberties with a child, and sexual offense in the second degree. Defendant appealed from consolidated judgments imposing two life sentences for the crimes against his daughter and a twelve-year sentence for the crimes against his son, all sentences to run consecutively. For the reasons set forth below, we deem defendant's assignments of error to be uniformly meritless and hold that he received a fair trial, free of prejudicial error.

Briefly summarized, the state's evidence tended to show that defendant began engaging in sexual activity with his daughter and son when they were six and eight years old, respectively. The most recent incidents, from which the criminal charges at issue arose, consisted of the following acts: On 10 April 1985 defendant drove his daughter, then aged twelve, to an isolated area in Perquimans County known as Bear Swamp. Defendant stopped his truck about halfway into the swamp and told the child to open the door of the truck, remove her clothes, and lie down on the seat. She complied with these demands. Defendant then unzipped his pants and had vaginal intercourse with her. Afterward defendant warned her not to tell anyone, admonishing that "we'll both get in trouble." Other episodes of intercourse, perpetrated in an essentially identical manner, occurred in Bear Swamp on 21 December 1984 and 5 January 1985 and in the child's room at home on 15 February 1985.

The state's evidence further tended to show that on 28 April 1985 defendant was at home alone with his son, then aged thirteen. Defendant told the boy to go upstairs and, having followed him to his room, directed him to remove his clothes. At first the child refused. However, when told to "[d]o it anyway," he obeyed defendant's order. Defendant then took off his own pants and had anal intercourse with his son. He threatened to hurt the boy if anyone found out what had transpired between them.

A friend to whom the boy later confided details of the incident informed the Department of Social Services (DSS), and defendant's children were removed from the home. This friend and Debbie Spence of the DSS testified as to what the children had told them about defendant's abuse. These statements were consistent with the children's testimony at trial. Public health nurse Louise Ervin provided additional corroboration, testifying that she had interviewed defendant at Perquimans Health Department on 21 May 1985 because he was concerned about symptoms of a sexually transmittable disease. Defendant stated to Ms. Ervin that he had had sexual contact with his son and daughter.

Defendant did not testify on his own behalf but presented evidence tending to show that his daughter vaguely remembered telling her mother when she was six years old that defendant had touched her breasts. Otherwise she had never complained of sexual abuse to friends or family members until DSS workers began asking questions about her father in May of 1985. Defendant's son learned about sexual abuse from a film at school and knew defendant would get into trouble if accused of molesting his children. He admitted that defendant had previously threatened to send him to training school because of disciplinary problems at home. Both children had gone over their testimony with the prosecutor, a police officer, and Debbie Spence a number of times prior to trial. Medical examinations of the children on 4 May 1985 revealed no bruising or tearing of the tissues or other physical evidence of sexual abuse.

Defendant presents four assignments of error for our consideration. He first attacks the competency of nurse Louise Ervin's testimony insofar as it disclosed defendant's admission of sexual contact with his children. Ms. Ervin testified as follows:

Q. Mrs. Ervin, at the time that you--after you asked the defendant what, if anything, you could do for him, did you later in your discussion with him ask him the question who he had had sexual contacts with?

MR. HALSTEAD: Objection. Leading.

THE COURT: Overruled.

Q. You may answer the question.

A. Yes, I did.

Q. And when you asked him the question, who he had had sexual contacts with, what did he tell you?

A. He said he had had contacts with his wife, his son, his daughter, and a girl in Edenton.

Q. His wife, his son, his daughter, and a girl in Edenton?

A. Uh-huh.

Q. And whenever you--when he told you that, did you ask him or specify to him again, or did you ask the question of him again or specify what you meant to him?

A. Yes, I did.

Q. And in what way did you do that?

A. I told Mr. Etheridge that this was sexual contact we were talking about.

Q. All right. And whenever you did that, did he make some--make an additional response and say something else to you?

A. He repeated what he had said.

Q. And what exactly did he repeat?

A. He said that he had had contact with his wife, his son, his daughter, and a girl in Edenton.

At trial defendant sought to invoke the protections of the physician-patient privilege under N.C.G.S. § 8-53 to bar the admission of this testimony. That statute provides, in part:

§ 8-53. Communications between physician and patient.

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 under G.S. 132-1.

Defendant correctly notes that this privilege applies to communications with a nurse acting under the direction of a physician. State v. Efird, 309 N.C. 802, 309 S.E.2d 228 (1983). Defendant insists that the prosecutor's statement during voir dire that "a licensed public health nurse working under the supervision of the Health Department would certainly come under the physician/patient privilege from my understanding of it," is sufficient to bring Ms. Ervin's testimony within the purview of the statute. However, we find it wholly unnecessary to resolve the issue of whether Ms. Ervin in this instance acted under the direction of a physician. Any privilege of confidentiality to which defendant might possibly have been entitled by section 8-53 was nullified by N.C.G.S. §§ 8-53.1 and 7A-551 under the facts of this case.

Section 8-53.1 qualifies section 8-53 as follows:

§ 8-53.1. Physician-patient privilege waived in child abuse.

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.

Section 8-53.1 is to be read in pari materia with section 7A-551. Efird, 309 N.C. at 805, 309 S.E.2d at 230. Section 7A-551 provides:

§ 7A-551. Privileges not grounds for excluding evidence.

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.

We agree with this Court's succinct assessment of the implications of N.C.G.S. §§ 8-53.1 and 7A-551 as stated in Efird: "In essence, the physician-patient privilege, created by N.C.Gen.Stat. § 8-53, is not available in cases involving child abuse." 309 N.C. at 805, 309 S.E.2d at 230. Defendant attempts to distinguish his situation from that in Efird in order to avoid application of this general rule. In Efird, the perpetrator had been treated for a sexually transmitted disease some months before he was actually implicated in the rape of his young stepdaughter. Here, on the other hand, defendant only sought treatment after he had been charged with sexual crimes and taken into custody. Defendant urges, based upon this discrepancy in timing, that his case should not be controlled by the provisions of sections 8-53.1 and 7A-551. Defendant premises this argument upon the notion that one of the primary objectives of the section 8-53 privilege is to encourage free disclosure of medical information which can curb the spread of communicable disease. To remove the privilege after an accused has already been charged, defendant claims, undermines this policy and endangers public health by deterring accused persons with sexually transmitted diseases from naming their sexual contacts. Defendant contends that such an effect was not contemplated by the legislature when it enacted sections 8-53.1 and 7A-551.

We find nothing in our examination of the statutes to support defendant's view. The language of each is all-inclusive. Section 8-53.1 allows evidence of abuse "in any judicial proceeding related to a report pursuant to the North Carolina Juvenile Code," while section 7A-551 allows such evidence "in any judicial proceeding ... in...