Baker v. State , 276 Ark. 193 ( 1982 )

637 S.W.2d 522 (1982)

Theodis BAKER, Appellant,
v.
STATE of Arkansas, Appellee.

No. CR 81-132.

Supreme Court of Arkansas.

May 24, 1982. On Rehearing July 19, 1982.

William R. Simpson, Jr., Public Defender, and Kelly Carithers by Deborah R. Sallings, Deputy Public Defenders, Little Rock, for appellant.

Steve Clark, Atty. Gen. by Arnold M. Jochums, Asst. Atty. Gen., Little Rock, for appellee.

PURTLE, Justice.

The appellant was convicted of aggravated robbery and rape in the Pulaski County Circuit Court. The jury assessed punishment at 45 years for rape and five years for aggravated robbery. The court pronounced that the sentences would run consecutively. On appeal appellant urges that the trial court erred in admitting evidence that he had been treated for venereal disease while in the jail awaiting trial and that the court should have suppressed the line-up identification because he did not participate knowingly and intelligently. We agree it was prejudicial error to allow evidence of his treatment for venereal disease to be considered by the jury. However, the line-up, considered under the totality of the circumstances, is found to be nonprejudicial, though it was certainly not an ideal one.

The facts of the case reveal that the victim arrived at her place of work about 7:00 a.m. on October 9, 1980, and shortly thereafter someone threw a sheet or blanket over her head, forced her to go from room to room in search of her purse and took her upstairs where he raped her. For a few seconds the sheet fell from the victim's face and she was able to see her attacker. A witness who lived next door to the premises where the rape occurred observed a black male riding a bicycle back and forth between the two buildings prior to 7:00 O'clock on the date in question. The two women as well as a third were requested to view a line-up. The victim quickly isolated her identification to the only two men in the line-up who did not have facial hair, one of whom was appellant. She had previously told the officers her attacker did not have facial hair. However, she requested to hear the voices of the line-up participants and after hearing appellant, positively identified his voice as that of her attacker. On the other hand, the neighbor woman testified she could not identify the appellant in the line-up nor could she identify him in the courtroom as the man she saw riding the bicycle.

While appellant was being held in jail awaiting trial he contacted the jail nurse and sought treatment for what he thought was possible gonorrhea. The nurse subsequently supplied treatment to appellant. The record is not clear whether the jail's doctor specifically instructed the nurse to give this treatment based upon what she had told him or whether he saw the appellant at the jail. In any event, the nurse stated she was acting in accordance with the physician's direction in treating the patient.

The victim was examined by a physician on the date of the rape and during the course of the examination he obtained a culture for neisseria gonorrhea which proved positive. Therefore, the victim was treated immediately to prevent being infected with the disease.

We first consider the argument that the court erred in admitting the evidence that appellant was treated for gonorrhea while being held in the jail. Arkansas Uniform Rules of Evidence, Rule 503(b), states:

General Rule of Privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional condition, including alcohol or drug addiction, among himself, physician or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient's family.

Rule 503 has a number of exceptions stated but none of them are applicable to the case before us. Rule 503 is essentially the same as the previous statute which was Ark.Stat. Ann. § 28-607 (Repl. 1977). We interpreted the matter of medical privilege in the case of Ragsdale v. State, 245 Ark. 296, 432 S.W.2d 11 (1968). There we applied the privilege rule to a criminal case for the first time. We stated that the statute applied to criminal as well as civil cases relying on the plain wording of the statute. We stated that if the General Assembly had desired the statute to apply only to civil cases it would have been so worded. In Ragsdale the communication, the drawing of a blood sample, was held to be privileged because it was not done at the request of the state. The blood sample revealed the alcohol content of Ragsdale's blood. Certainly, the blood alcohol content is more relevant to a case charging a person with negligent homicide in the operation of his automobile than is the fact that an accused has a venereal disease, as in the present case. The appellant did not rely upon his physical condition as a defense nor did the state rely upon the communication as an element of the offense. The state simply sought to reinforce the identification by the victim.

A different result was reached in the case of Munn v. State, 257 Ark. 1057, 521 S.W.2d 535 (1975). In Munn it was the officer who requested the blood test and it was intended to be used as evidence in the case. No treatment or diagnosis was involved as in the present case. Ragsdale can be distinguished from Munn on the basis that in Munn the blood sample was taken for evidentiary purposes at the request of one of the investigating officers. On the other hand, the officers had not requested the blood sample taken from Ragsdale.

We do not think the fact that there is a law requiring physicians to report gun and knife wounds (Ark.Stat.Ann. § 42-501 [Repl. 1977]) has any relation to the present case. The statute simply is not broad enough to encompass a venereal disease. Even though venereal disease must be reported to the medical authorities under Ark.Stat.Ann. § 82-632 (Repl. 1976), the information is still confidential except for persons specifically authorized to view the information under Ark.Stat.Ann. § 82-635 (Repl. 1976). We do not think the fact that the physician or nurse was required to report the disease to the proper authorities destroyed the privileged communication given under Rule 503. In fact, there was never any direct proof that the appellant actually did have gonorrhea.

The state contends that there was no communication revealed by the testimony of the nurse in this case. "Communication" is defined in Webster's New Collegiate Dictionary, 2nd edition, as

1. Act or fact of communicating. 2. Intercourse by words, letters, or messages; interchange of thoughts or opinions. 3. That which is communicated; a verbal or written message. 4. Act, power, or means of communicating...

Communicating certainly is evidenced by many more methods than merely speaking to a person. Communication includes whatever means are used by a person to let the other person know what he desires or wants. In the present case it is undisputed that by some method the appellant let the nurse know that he thought he had gonorrhea. Regardless of the manner in which he communicated this information to her, we hold that it is privileged under Rule 503(b).

Since the case will be retried, we will discuss the line-up identification but briefly. The officers were aware that the appellant did not have facial hair. They were likewise aware that the suspect as described by the victim had no facial hair. Therefore, it appears it would have been better to have had more than two people without facial hair in the line-up. Nevertheless, the victim isolated the two men who had no hair on their face immediately. Subsequently she requested that each be required to speak and she had no hesitancy in recognizing the voice of the appellant. Considering the "totality of the circumstances" as required in Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972), we do not find the line-up to have tainted the in-court identification.

Appellant's main contention is that he was not informed that the victim in the present case was going to view the line-up in which he was requested to participate. He stated that he thought he was being viewed by another witness on another charge. The line-up form makes no specific statements about the line-up other than stating "persons who are witnesses to a crime in which you are a suspect will view this line-up for possible identification." The statement is certainly broad enough to include more than one crime and more than one witness. However, appellant argues that he was told that he was a suspect in a rape case and that he would be viewed by the victim. It was his understanding that he was participating in the line-up on the separate charge. We cannot see any harmful effect from the above-stated procedure. The United States Supreme Court held in Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972), that participation in a line-up, prior to charges being filed, did not entitle an accused to the assistance of counsel at the time. We have also held that there was no right to counsel at preindictment line-ups. Walters v. State, 266 Ark. 699, 587 S.W.2d 831 (1979).

Reversed and remanded.

ON PETITION FOR REHEARING.

HICKMAN, Justice.

We grant a rehearing on the issue of the doctor-patient privilege; and, finding no error was committed, affirm the conviction and sentence of Theodis Baker.

Theodis Baker, while in the Pulaski County jail, was treated for gonorrhea by the jail nurse. The trial court admitted into evidence the simple fact that he had been treated for gonorrhea. In our opinion in Baker v. State, (May 24, 1982), we held this was error because Baker had "communicated" this information to the nurse and under Ark.Stat.Ann. § 28-1001, Rule 503(b) (Repl. 1979), the information was privileged. Nothing Baker said to the nurse was admitted; in fact, she could recall no conversation whatsoever.

Rule 503 replaced Ark.Stat. § 28-607 (1947), which was a much stricter privilege. It read:

Hereafter no person authorized to practice physic or surgery and no trained nurses shall be compelled to disclose any information which he may have acquired from his patient while attending in a professional character and which information was necessary to enable him to prescribe as a physician or do any act for him as a surgeon or trained nurse. [Emphasis added.]

That essentially encompasses all conceivable information a physician could have about a patient, and it was so construed. National Benevolent Society v. Barker, 155 Ark. 506, 244 S.W. 720 (1922). But Rule 503(b) does not grant a privilege to "any information," only "communications" between the patient and doctor, and confidential ones at that. So Rule 503 is not in essence the same as the former law as we acknowledged in our opinion. It is decidedly different; it protects only confidential communications.

Rule 503 specifically includes psychotherapists and licensed psychologists in the category of "doctor." Obviously what is told to those doctors is more sensitive than that told to average practioners. So the real protection is aimed at preventing a doctor from repeating what a patient told him in confidence. But the privilege does not go to treatment and that is all the State offered as evidence. In Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979), a psychiatrist alerted police that a crime had been committed and indirectly enabled them to discover the defendant's identity. We found no breach of the privilege.

It would be privileged information if Baker had told the nurse in confidence who he had sexual intercourse with, but that is not the question before us. The only issue is whether treatment for gonorrhea is privileged information.

There is no element of self-incrimination involved because Baker voluntarily sought the treatment and thereby subjected himself to the privilege, its protection as well as its limitations. See Munn v. State, 257 Ark. 1057, 521 S.W.2d 535 (1975).

In our original opinion we construed Rule 503 so that it has exactly the same practical effect as the repealed statute; that is, it protects any information the physician collects regarding a patient by incorrectly characterizing it as communication. The legislature made a significant change by adopting a more sensible rule and on rehearing we recognize that change. The rule not only applies to criminal cases but civil as well. See Ragsdale v. State, 245 Ark. 296, 432 S.W.2d 11 (1968).

Actually there has long been serious opposition to the existence of any such privilege. As McCormick says: "More than a century of experience with the statutes [of the states granting the privilege] has demonstrated that the privilege in the main operates not as a shield of privacy but as the protector of fraud." McCormick's Evidence § 105 (2d ed. 1972). Wigmore's criticism is in the same vein: "From asthma to broken ribs, from influenza to tetanus, the facts of the disease are not only disclosable without shame, but are in fact often publicly known and knowable by everyone—by everyone except the appointed investigators of the truth," which, in this case were the jurors. See VIII Wigmore on Evidence § 2380a (McNaughton rev. 1961).

Since we find the trial court made no error in admitting the evidence, the decision on rehearing is affirmed.

ADKISSON, C.J., concurs.

PURTLE, J., dissents.

PURTLE, Justice, dissenting.

I strongly disagree with the granting of a rehearing and the destruction of the physician-patient privilege. I agree with the majority that the original statute was entirely too broad. It did, in effect, prevent a physician from testifying about any information he had obtained through the doctor-patient relationship. The original rule was justifiably seen as being overly broad. Uniform Rules of Evidence, Rule 503 is a very long and detailed rule. The rule's first sections define "patient," "physician" and "psychotherapist." Then section (4) reads as follows:

A communication is "confidential" if not intended to be disclosed to third persons, except persons present to further the interest of the patient in the consultation, examination, or interview, persons reasonably necessary for the transmission of the communication, or persons who are participating in the diagnosis and treatment under the direction of the physician or psychotherapist, including members of the patient's family.

(b) General Rule of Privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional condition, including alcohol or drug addiction, among himself, physician or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient's family.

Section (d) sets out the exceptions to the foregoing rule. For example, there is no privilege under this rule for communications relevant to an issue in proceedings to hospitalize the patient for mental illness or examinations by order of a court or when the condition is claimed as an element of a defense. Therefore, it is plain all privilege relating to criminal matters and institutionalization for mental illness is excluded from the rule. The rule, of course, can be waived by the patient himself.

We really have under consideration here the old statute involving "any information" against the new rule which relates to "confidential communication." The appellant is the person who requested the treatment in this case. It would have been impossible for him to make a request without communicating in some manner with the party from whom he was requesting treatment. The myopic narrowness with which the majority now views confidential communications in fact destroys the rule in its entirety. If a medical technician is allowed to testify as to the description of the injuries or ailment or disease, even though the patient had requested it to remain confidential, it would in effect present a situation where there could be no "confidential communication." The situation existing here is one of the most personal types of cases that can be involved in a physician-patient relationship. To allow the state to poke its nose into the privilege existing between the appellant and the person treating him for his condition would render the privilege meaningless. The purpose of the rule is to allow diagnosis and treatment of persons who can be confident that the intimate details of their physical or mental condition are not made public. I cannot see where the abrogation of this rule would enhance either the public interest or the criminal justice system.

The rules were very carefully thought out and were studied over a long period of time and were formulated specifically for the purpose of allowing privileged communications except for instances set out as exceptions in the rule. I feel that the sole reason for allowing in this particular communication was to enhance the state's probability of conviction. The state never claimed the matter was relevant to the defense of the crime or probative of any issue. This is not the purpose for which the rule was intended, and the state had as good a chance of conviction without this information as with it. I feel the original opinion was absolutely correct and if the present majority opinion prevails, then the rule may as well be stricken from the book. Therefore, I would deny the rehearing.