State v. Evans

• Decision Date: 09 January 1991
• Docket Number: No. 72549,72549
• Citation: 802 S.W.2d 507
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Terry EVANS, Defendant-Appellant. Terry Lamont EVANS, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

Page 507

802 S.W.2d 507

STATE of Missouri, Plaintiff-Respondent, v. Terry EVANS, Defendant-Appellant.

Terry Lamont EVANS, Appellant, v. STATE of Missouri, Respondent.

No. 72549.

Supreme Court of Missouri En Banc.

Jan. 9, 1991.

Rehearing Denied Feb. 7, 1991.

Cheryl Rafert, Henry Robertson, St. Louis, for defendant-appellant.

William L. Webster, Atty. Gen., Robert V. Franson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

RENDLEN, Judge.

Consolidated appeals from defendant's conviction for rape and the overruling of his Rule 29.15 motion.

Reviewing the evidence in a light most favorable to the verdict, the record discloses that defendant, in January, 1987, spent several nights at the home of his aunt and her six children. On one of those nights, he went upstairs to the bedroom of his nine-year old cousin, M.E., where he raped the little girl and afterward instructed her to take a shower and threatened physical harm if she spoke to anyone of the incident.

A few days later M.E. noticed a brown discharge in her panties and when this was brought to her mother's attention on January 27, M.E. was taken to the emergency ward of a local hospital where she tested positive for vaginal and rectal gonorrhea. At first she refused to discuss what happened, but finally told her mother and hospital officials of the crime. Thereafter someone, apparently the hospital officials, contacted the work house where defendant was incarcerated (on an unrelated matter) advising of the likelihood that he was infected with gonorrhea. Though the medical staff of the work house informed defendant they would treat him for this disease, the record does not show that any testing or treatment occurred.

On January 29 and February 13, defendant's girlfriend (Curry) went to the Sexually Transmitted Disease Control Clinic in St. Louis where she was diagnosed and treated for gonorrhea. While supplying background information, she told health officials that her only sexual partner during this time was defendant.

From this and the other evidence adduced at trial, defendant was found guilty of raping M.E. with punishment assessed at fifteen years' imprisonment and his timely pro se Rule 29.15 motion seeking post-conviction relief was denied.

DIRECT APPEAL

(A)

Defendant first asserts the trial court erred allowing in evidence Curry's medical records revealing gonorrhea infection because she had not consented to their release. During direct examination Curry denied receiving treatment for gonorrhea but on cross-examination, the medical records were introduced indicating she had been so diagnosed and treated for that disease shortly after defendant's attack upon M.E. When confronted with those records she admitted they were correct.

Defendant insists Curry's records were inadmissible, relying on § 491.060(5), RSMo 1986 ¹, which provides:

The following persons shall be incompetent to testify:

. . . . .

(5) A physician or surgeon, concerning any information which he may have acquired from any patient while attending him in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or do any act for him as a surgeon.

While it is correct the privilege extends to criminal as well as civil proceedings State v. Beatty, 770 S.W.2d 387, 391 (Mo.App.1989), and to hospital records of the sort presented here, State ex rel. Benoit v. Randall, 431 S.W.2d 107, 109 (Mo.1968), defendant's reliance upon the physician-patient privilege is nevertheless misplaced.

Though the facts present a novel situation, it appears defendant is without standing to object to the introduction of these records. The physician-patient privilege is personal to the patient, Wells v. City of Jefferson, 345 Mo. 239, 132 S.W.2d 1006, 1010 (1939); Foerstel v. St. Louis Public Service Co., 241 S.W.2d 792 (Mo.App.1951), and generally no person (including the physician) other than the patient may so object. 97 C.J.S. Witnesses § 303 (1957). Here it was the patient's, not defendant's, right to assert the privilege. In re M---- P---- S----, 342 S.W.2d 277, 283 (Mo.App.1961); State ex rel. Williams v. Vardeman, 422 S.W.2d 400, 407 (Mo.App.1967). Similarly, a defendant in a criminal prosecution cannot claim physician-patient privilege to bar testimony from the victim's treating physician. 81 Am.Jur.2d Witnesses § 262 (1976).

In re M---- P---- S----, supra, involved a mother, accused of child abuse, who attempted to raise the physician-patient privilege on behalf of her son, the victim of her neglect. At trial, the mother successfully objected to the child's treating physician's testimony. The appellate court, reversing, noted that in normal circumstances a parent would have the right to claim the privilege on behalf of her child, but that right exists only when it is in the child's best interests. Id. at 283. It was to the mother's benefit to prevent the physician's testimony, but contrary to the interests of the child and where the interests so conflict, the parent may neither raise nor waive the privilege. Id. In the case at bar, the medical records related only to Curry and she, not defendant, had the right to invoke the privilege and the record demonstrates she made no such objection.

This action is distinguishable from the line of cases holding that even in the absence of waiver by the patient, the physician may in certain limited circumstances assert the privilege on behalf of the patient. St. Louis Little Rock Hospital, Inc. v. Gaertner, 682 S.W.2d 146, 151 (Mo.App.1984); see also State ex rel. Lester E. Cox Medical Center v. Keet, 678 S.W.2d 813, 815 (Mo. banc 1984). In those cases, the physicians had been sued by former patients alleging malpractice, who during discovery requested that the physicians furnish records regarding other patients. In State ex rel. Lester E. Cox Medical Center, supra, this Court held that in the interest of justice the privilege could be slightly modified to allow in camera review of such documents to protect the identity of the other patients. Id. at 815. In St. Louis Little Rock Hospital, Inc., the court of appeals held that records regarding attempted suicides at a particular hospital for the previous five years were privileged, interpreting narrowly the in camera review exception. Id. at 152. The facts here are clearly distinguishable from the unique setting in which a physician-party is requested to furnish records of other patients and the physician, asserting the privilege, makes objection on behalf of the non-party patients. In the case at bar defendant was not involved in the confidential relationship between the patient and her treating physician. Further, when the patient was testifying under oath it was she who had standing to assert or waive the privilege. For the reasons now discussed, the question was set to rest by Curry's waiver of the privilege in the following exchange occurring during direct examination:

Q: [Defendant's attorney] To the best of your knowledge from what you know, have you ever had gonorrhea from, like, January on?

A: [Curry] No.

Q: Have you ever shown any of the symptoms of gonorrhea?

A: No.

Q: You had a discharge?

A: Yeah, probably from being pregnant, that's about it.

Q: So you never received any type of treatment for gonorrhea?

A: No.

The privilege can be waived by the patient, State ex rel. McNutt v. Keet, 432 S.W.2d 597, 600 (Mo.1968), in numerous ways. Klinge v. Lutheran Medical Center of St. Louis, 518 S.W.2d 157, 165 (Mo.App.1974). Here, the patient chose a time-honored mode of waiver, i.e., by placing her medical condition at issue through her own testimony. Wells v. City of Jefferson, supra, 132 S.W.2d at 1010.

In his brief, defendant who protested the admission of Curry's records during her subsequent cross-examination argues, "[t]he state was bound by Ms. Curry's answer that she was not treated for gonorrhea ... The medical records were collateral evidence because they were not material to the present case." This demonstrates a misunderstanding of the cross-examination and misses the purpose for which the records were introduced. Wide latitude is allowed on cross-examination in criminal cases and the trial court is invested with broad discretion in determining the extent of such inquiry. State v. Lue, 598 S.W.2d 133, 138 (Mo. banc 1980). In this instance the prosecution's inquiries fell within an acceptable range concerning the witness' medical history because of her testimony in direct examination to such matters. State v. Revard, 341 Mo. 170, 106 S.W.2d 906, 910 (1937); Ransom v. Adams Dairy Co., 684 S.W.2d 915, 918 (Mo.App.1985). Impeachment by use of conflicting medical records was proper and defendant mistakenly relies on State v. Beck, 785 S.W.2d 714 (Mo.App.1990), for the proposition that the medical records were immaterial. In that instance, evidence introduced by the prosecutor during rebuttal was "collateral evidence interjected by the prosecutor" to improperly attack "defendant's credibility." Id. at 717. Such is not this case. The fact of Curry's possible infection by defendant was relevant to the issue of guilt or innocence. While the girlfriend's credibility became suspect by the introduction of the medical records which conflicted with her testimony on direct, this was incidental to the main purpose for the record's introduction, that of proving a fact material to the issue of guilt.

Defendant's final attack upon the introduction of the records is premised upon a federal statute, 42 U.S.C. § 247c(d)(5) (Supp.1989), providing that "[a]ll information obtained in connection with the examination, care, or treatment of any individual ... shall not, without such individual's consent, be disclosed except ... as may be required by a law of a State or political subdivision of a State." This applies to those institutions which treat sexually transmitted diseases and receive federal grants and assistance for...