Appeal by defendant from judgment of Godwin, J. entered at the 8 December 1980 Criminal Session of Superior Court, Alamance County, imposing a sentence of life imprisonment upon defendant's conviction of first degree arson.
Meyer, Justice. Justice Mitchell took no part in the consideration or decision of this case.
The basic question for review on this appeal is whether the physician-patient privilege against disclosure of confidential communications and information extends to optometrists. We conclude that it does not. Because of the trial judge's erroneous exclusion of testimony of the prosecuting witness's optometrist proffered by defendant, as privileged, defendant is entitled to a new trial.
The evidence in brief summary tended to show that on the late night and early morning of 22-23 September 1980 the defendant lived with his wife Glenda and three of her sister's children in the home of her father, Thomas Boswell, age 62. The home was a six-room wood frame single-family house rented by Mr. Boswell located at 645 Elizabeth Street in Burlington. While defendant had his personal possessions there, he stayed there sometimes and sometimes he did not. After the defendant and his wife retired to their bedroom on the night of 22 September, they became embroiled in a heated argument. The argument was so loud that Glenda's father, Mr. Boswell, was disturbed and went to their room, and finding them fighting on the bed, admonished them to be quiet so that he could sleep and so as not to disturb the neighbors. Boswell then went back to his bed, but in about five minutes Glenda started shouting again and continued to shout, asking her father to make the defendant leave her alone.
Mr. Boswell tried to ignore the shouting but finally got his single-barrel shotgun from beneath the head of his bed, went to Glenda's door and fired a shot into the floor. He then reloaded his
shotgun and threw Glenda's door open and told defendant to get out of the house. He then shut the door. While close to the door, he overheard defendant say to Glenda, "If I can't stay here, I'll fix this mother so can't nobody else stay here." He heard the front door slam and things got quiet. This occurred around midnight. About 12:30 a.m., the defendant came back and crept in through a window and was discovered in the kitchen. He came out of the kitchen with "one of these little box opener tricks with a blade on it" in his hand. Mr. Boswell, shotgun in hand, backed up and told defendant to "get out of here." After some discussion and further shouting, defendant sped away in his burgundy 1978 Thunderbird.
Mr. Boswell ordered one of the grandchildren to call the police and then went outside. He saw defendant's car come back up the street and park with its lights off in a church drive behind Boswell's home. About five minutes later defendant drove away with his lights off. Boswell, shotgun still in hand, then crept along the fence of the schoolhouse next door finally to a point about 36 to 40 feet from his back porch. He heard a neighbor's dog barking and saw someone at the porch strike a match which lit a gasoline trail that ran up on the back porch. Flames enveloped that area of the house. This was about 1:15 a.m. or a little before. Boswell testified that he could see the defendant there "just as plain as day" when defendant lit the fire. Defendant was facing him. Then defendant ran and disappeared into the darkness. Boswell testified that he was shocked to see defendant burning the house. Glenda and the children got out of the house. The police arrived. The whole back porch was in a blaze. Firemen arrived later. A one-gallon plastic container with gasoline in it was found at the scene. Other witnesses corroborated much of Boswell's testimony.
Boswell testified that he had no trouble with his vision in spite of being blind in his right eye. He wore glasses all the time and was wearing them at the time of the fire. He got them from Dr. Virgil Mewborn.
Burlington Police Officer John Gibson testified to the effect that from his home he saw a 1978 or 1979 Thunderbird pull into the church yard which adjoins Boswell's house with its lights off. The car door opened and the interior light came on. The occupant
of the car placed an object on the ground and drove away. The officer called headquarters and then investigated and found that the object was a one-gallon plastic container with an orange colored liquid in it that smelled like gasoline. He returned to his home and continued to watch it. He saw a black male walk to the container, pick it up, and walk off into the darkness. Within just two or three minutes, the fire began at Boswell's house. The container found at the fire scene was the one Officer Gibson saw in the church yard. The liquid in the container was subsequently analyzed and determined to be gasoline.
A Burlington Fire Department employee took samples of wood from the house and they were analyzed and found to have gasoline on them. There was evidence from several witnesses that wood on the porch and around the window had actually burned or was charred.
The defendant testified that he never threatened to burn the house, that he did not set the fire, had nothing to do with the incident, and was, in fact, some twenty or more miles away at the time of the fire. He also offered witnesses who corroborated his alibi evidence. The trial judge refused to allow the defendant to put on certain evidence concerning Boswell's eyesight by way of Boswell's optometrist as hereinafter set forth. The jury returned a verdict of guilty of arson in the first degree and defendant was sentenced to life imprisonment.
The defendant attempted to impeach Mr. Boswell's credibility through the testimony of Boswell's optometrist, Dr. Virgil Mewborn.*fn1 The pertinent part of the defendant's questioning of Dr. Mewborn, to which the State's objections were largely sustained, was as follows:
Q. Dr. Mewborn, in connection with your practice of optometry, did you have occasion to see as a patient one Thomas Lee Boswell?
Court: Aren't you going to run into some confidentiality?
Mr. Johnson: There would be an objection interposed at the appropriate time if he asks a question leading to that, your Honor.
Mr. Moseley: Well, your Honor, would you like to debate this issue then out of the presence of the jury?
Court: No, sir, I don't see anything to debate.
Q. Dr. Mewborn, did you have occasion to examine Thomas Lee Boswell?
Court: The Objection has been interposed and is Sustained.
Mr. Johnson: Move to strike the answer.
Court: You will not consider the witness's testimony that he has examined Thomas Boswell.
Mr. Moseley: May it please the Court I would like his testimony on the record.
Court: You may at a subsequent time. If you have concluded your examination of this witness, you may get his answer to that question on the record.
I am familiar with the frames marked Defendant's Exhibit No. 2. Those frames are made by Swank Optical Company. It is a frame we use occasionally in our practice. I could not tell you if the lenses contained in those frames were prescribed by me or not. I can tell you what the prescription is. It is a hyperopic lens. It's a plus lens. It's approximately three diopters in power with a crook-top bifocal. These glasses correct farsightedness.
Q. In -- layman's terms, I would ask how strong are the lenses?
Court: Can you say in layman's terms how strong or weak a lens is?
A. It's difficult, yes, sir.
Court: How strong is strong.
A. Right. 20/20 vision is considered normal. These lenses would correct someone that had vision of approximately 20/200.
Q. All right. Do you know if Thomas Lee Boswell had vision in his left eye of 20/200?
Court: The Objection is Sustained.
Q. Dr. Mewborn, I would ask you to assume these facts. I would ask you to assume that an individual sixty-two years of age was blind in his right eye and was wearing the lenses that are marked Defendant's Exhibit 1 and to assume that that individual was wearing those lenses and viewing an object at nighttime. Do you have an opinion ...