Converted WP file 050754-1

Appeal by Defendant from judgments entered 19 January 2005 by Judge Richard D. Boner in Superior Court, Caldwell County. Heard in the Court of Appeals 6 March 2006.

Attorney General Roy Cooper, by Special Counsel Isaac T. Avery, III and Assistant Attorney General Patricia A. Duffy, for the State.

Leslie Carter Rawls, for defendant-appellant.

WYNN, Judge.

    A motion to suppress evidence must be granted if: (1) the evidence's exclusion is required by the United States or North Carolina Constitutions, or (2) if the evidence is obtained by a substantial violation of the provisions of Chapter 15A of the North Carolina General Statutes. N.C. Gen. Stat. § 15A-974 (2005). In this case, Defendant argues that his motion to suppress should have been granted because his medical records were obtained in violation of his physician-patient privilege. Because the trial court did not rule on this issue, but instead reserved it for trial, the issue is not properly before us; accordingly, we affirm the trialcourt's denial of Defendant's motion to suppress.
    The facts of this case are as follows: After Defendant Brien Dean Laws was injured in a two-car collision and transported to Caldwell Memorial Hospital, the State filed a motion with the district court seeking the release of Defendant's medical records from the hospital. The district court entered an ex parte order directing the hospital to produce Defendant's medical records, which the hospital released. Defendant was subsequently charged with two counts of second degree murder, two counts of assault with a deadly weapon inflicting serious injury, driving while impaired and failing to yield right of way and was notified of aggravating factors.
    Upon being charged, Defendant moved to suppress his medical records. Defendant asserted that the ex parte order was illegal because: (1) it failed to show probable and sufficient cause to justify the issuance of the order; (2) it violated Defendant's doctor/patient privilege pursuant to section 8-53 of the North Carolina General Statutes; (3) it was entered in violation of his right to be given notice and to be heard; and (4) the State's motion seeking disclosure was filed in violation of section 15A-951 of the North Carolina General Statutes. Defendant also filed a motion to suppress and in limine to prohibit “making any mention, either directly or indirectly, of the urine specimen or the alleged drug test results of said specimen.”
    After conducting a hearing, the superior court entered an order, in which it made findings of fact and conclusions of law. The superior court concluded that the district court order did not violate any of Defendant's rights under Chapter 15A or any of his constitutional rights; and that Defendant was not entitled to suppression of his medical records or test results. The superior court further ordered that a determination of whether the medical records should be excluded based upon the physician-patient privilege be made upon Defendant's objection at trial. Defendant subsequently pled guilty to the charges while reserving his right to appeal the denial of his motion to suppress. Pursuant to a plea agreement, the superior court sentenced Defendant to 156 to 197 months imprisonment for the second-degree murder and assault with a deadly weapon inflicting serious injury charges and twenty-four months imprisonment for the impaired driving charge.
        ___________________________________________

    On appeal, Defendant contends the trial court erred in denying his motion to suppress.     A motion to suppress is governed by section 15A-974 of the North Carolina General Statutes, which provides that upon timely motion, evidence must be suppressed if: “(1) Its exclusion is required by the Constitution of the United States or the Constitution of the State of North Carolina; or (2) It is obtained as a result of a substantial violation of the provisions of this Chapter.” N.C. Gen. Stat. § 15A-974.
    Here, the trial court denied Defendant's motion to suppress after it concluded that the medical records were not obtained in violation of Defendant's constitutional rights or in violation of Chapter 15A. Defendant does not argue that his medical recordswere obtained in violation of his constitutional rights or in violation of the provisions of Chapter 15A. Rather, Defendant argues that his medical records should have been suppressed because they were obtained in violation of the physician-patient privilege under section 8-53 of the North Carolina General Statutes. Section 8-53 of the North Carolina General Statutes, however, governs the admissibility of evidence at trial and is not a ground upon which the trial court must suppress evidence under section 15A-974 of the North Carolina General Statutes. Moreover, the superior court did not reach the physician-patient privilege issue, but reserved ruling until trial. Because this issue was not adjudicated by the trial court, this issue is not properly before us and we do not address it. See State v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991) (“This Court will not consider arguments based upon matters not presented to or adjudicated by the trial tribunal.”). Accordingly, the trial court's order denying Defendant's motion to suppress is affirmed.
    Affirmed.
    Judges MCGEE and HUNTER concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***