{
  "id": 2987266,
  "name": "IN RE: THE INVESTIGATION OF THE DEATH OF ERIC DEWAYNE MILLER AND OF ANY INFORMATION IN THE POSSESSION OF ATTORNEY RICHARD T. GAMMON REGARDING THAT DEATH",
  "name_abbreviation": "In re the Investigation of the Death of Miller",
  "decision_date": "2004-05-07",
  "docket_number": "No. 303PA02-2",
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    "judges": [],
    "parties": [
      "IN RE: THE INVESTIGATION OF THE DEATH OF ERIC DEWAYNE MILLER AND OF ANY INFORMATION IN THE POSSESSION OF ATTORNEY RICHARD T. GAMMON REGARDING THAT DEATH"
    ],
    "opinions": [
      {
        "text": "ORR, Justice.\nThe primary issue presented to this Court is whether the trial court correctly determined that disclosure of certain communications between attorney Richard T. Gammon and his client Derril H. Willard, now deceased, was warranted pursuant to instructions in this Court\u2019s opinion,. In re Investigation of Death of Eric Miller, 357 N.C. 316, 584 S.E.2d. 772 (2003) [Miller I], The procedural history and background of this case are reported in detail in Miller I, 357 N.C. 318-21, 584 S.E.2d. 776-78; however, we nonetheless will summarize the basic procedural history and factual background to include events that have transpired since this Court issued its previous decision.\nOn 2 December 2000, Eric D. Miller (Dr. Miller) died in Raleigh, North Carolina, as a result of arsenic poisoning. Id: at 319, 584 S.E.2d at 776. During the course of the subsequent investigation, law enforcement officials determined that Dr. Miller\u2019s wife, Ann Rene Miller (Mrs. Miller), was involved in a relationship with her coworker, Derril H. Willard (Mr. Willard). Id. at 319-20, 584 S.E.2d at 777. Shortly after Dr. Miller\u2019s death, Mr. Willard sought legal counsel from Attorney Richard T. Gammon (respondent). Id. at 320, 584 S.E.2d at 777. Within days of meeting with Attorney Gammon, Mr. Willard committed suicide. Id.\nOn 20 February 2002, the State filed a petition in the nature of a special proceeding in Superior Court, Wake County, requesting that the trial court conduct a hearing, and if necessary, an in camera examination to determine whether Attorney Gammon should be compelled to disclose the communications between himself and Mr. Willard for the \u201cproper administration of justice.\u201d Id. On 7 March 2002, the trial court ordered Attorney Gammon to\npresent to the court forthwith a sealed affidavit containing all of the information provided to him by Darril [sic] Willard regarding any act committed by any person which was intended to cause harm to Eric Miller or which in fact caused harm to Eric Miller.\nThe order further provided that the trial court would conduct an in camera review of the sealed affidavit to determine if the \u201cinterest of justice\u201d required disclosure of the information to the State. Id. at 320, 584 S.E.2d at 778. Attorney Gammon immediately appealed the order to the North Carolina Court of Appeals. On 27 June 2002, this Court allowed the parties\u2019 joint petition for discretionary review prior to determination by the North Carolina Court of Appeals.\nThe question originally presented on appeal was \u201cwhether, during [the course of] a criminal investigation, there can be a legal basis for the application of an interest of justice balancing test or an exception to the attorney-client privilege which would allow a trial court to compel the disclosure of confidential attorney-client communications when the client is deceased.\u201d Id. at 321, 584 S.E.2d at 778.\nAfter a thorough analysis, this Court: (1) affirmed the trial court\u2019s decision to use an in camera review to determine whether the communications were protected, id. at 337, 584 S.E.2d at 787; (2) rejected the trial court\u2019s application of an \u201cinterest of justice\u201d balancing test, id. at 333, 584 S.E.2d at 785; and (3) instructed the trial court to determine whether \u201csome or all of the communications are outside the scope of the attorney-client privilege,\u201d id. at 343, 584 S.E.2d at 791. After a comprehensive review and discussion of the attorney-client privilege, including approval of the five-part test espoused in State v. McIntosh, 336 N.C. 517, 523-24, 444 S.E.2d 438, 442 (1994), this Court further stated:\n[W]e hold that when a client is deceased, upon a nonfrivolous assertion that the privilege does not apply, with a proper, good-faith showing by the party seeking disclosure of communications, the trial court may conduct an in camera review of the substance of the communications. To the extent any portion of the communications between the attorney and the deceased client relate solely to a third party, such communications are not within the purview of the attorney-client privilege. If the trial court finds that some or all of the communications are outside the scope of the attorney-client privilege, the trial court may compel the attorney to provide the substance of the communications to the State for its use in the criminal investigation, consistent with the procedural formalities set forth below. To the extent the communications relate to a third party but also affect the client\u2019s own rights or interests and thus remain privileged, such communications may be revealed only upon a clear and convincing showing that their disclosure does not expose the client\u2019s estate to civil liability and that such disclosure would not likely result in additional harm to loved ones or reputation.\nMiller 1, 357 N.C. at 342-43, 584 S.E.2d at 791. Thus, this Court affirmed in part, reversed in part, and remanded the case to the trial court.\nOn remand, in an order dated 11 September 2003, the Honorable Donald W. Stephens ordered Attorney Gammon to \u201cfile with the court under seal the aforesaid affidavit [containing certain information provided to him by Derril Willard] and any legal memorandum setting forth the basis for a claim of confidentiality or privilege which would preclude disclosure of this information to the District Attorney.\u201d Judge Stephens further authorized and requested the State \u201cto file a legal memorandum ... in support of any contention regarding the nature of information subject to disclosure under the Supreme Court\u2019s decision in this case.\u201d Attorney Gammon complied with the trial court\u2019s order and provided a seven-page sealed affidavit to Judge Stephens on 26 September 2003.\nOn 2 October 2003, after reviewing the sealed affidavit in camera, Judge Stephens entered an \u201cOrder [Sealed by the Court]\u201d containing findings of fact and conclusions of law, a copy of which was served upon Attorney Gammon. No other person was provided with a copy of this sealed order. On the same day, Judge Stephens issued a public order in which he summarized \u201cin a general way as appropriate\u201d his findings of fact which include the following:\nTo maintain the confidentiality of the specific information set forth in Mr. Gammon\u2019s affidavit, the Court will not, in this order, recite any specific information contained in such affidavit, except to characterize that information in a general way as appropriate to give public notice of the nature of the Court\u2019s ruling by separate order which is now under seal.\nA thorough review by the Court of the submitted affidavit reveals that all statements made by Derril Willard to Attorney Gammon were made in anticipation that such statements would be confidential and would never be revealed to anyone else, were made at a time that an attorney-client relationship existed, were made in the course of Willard seeking legal advice and for a proper purpose, and were made regarding a matter for which Attorney Gammon was being professionally consulted. Mr. Willard never waived the attorney-client privilege and never authorized any waiver or release of this information to anyone else, including this court.\nThe review of this affidavit reveals that no information provided to Attorney Gammon by Derril Willard incriminated Mr. Willard in any manner, directly or indirectly, in the death of Eric Miller.\nHowever, Derril Willard did provide to Attorney Gammon information concerning activities and statements of a third person regarding the death of Eric Miller. Such information concerning this third person did not reveal any collaborative involvement of Willard and did not implicate Willard in any way in the death of Eric Miller\nJudge Stephens then summarized his conclusions in the public order:\nUnder the rules announced by the Supreme Court opinion in this case, the information regarding the activities and statements of a third party are not privileged and are therefore subject to disclosure to the District Attorney in the interest of justice and are hereby ordered to be disclosed in a manner more particularly described in the sealed order signed and entered on this date. All other information in the affidavit is privileged and shall not be disclosed.\nThe order further stated:\nThe Court finds and concludes that disclosure of the information regarding a third party\u2019s activities and statements would not expose Derril Willard to criminal liability, even if he were living; would not subject Derril Willard or his estate to civil liability, and would not harm Derril Willard\u2019s reputation or harm Derril Willard\u2019s loved ones.\nAfter Attorney Gammon filed notice of appeal to the Court of Appeals from both orders entered by Judge Stephens, all parties petitioned this Court for discretionary review prior to determination by the Court of Appeals. We allowed the petition for discretionary review on 8 January 2004. We have reviewed the sealed affidavit, public order, and \u201cOrder [Sealed by the Court]\u201d and decide the issues presented as follows:\n(1) We affirm the trial court\u2019s finding in the \u201cOrder [Sealed by the Court]\u201d that \u201cno information provided to Attorney Gammon by Derril Willard incriminated Mr. Willard in any manner, directly or indirectly, in the death of Eric Miller.\u201d\n(2) We affirm the trial court\u2019s finding in the \u201cOrder [Sealed by the Court]\u201d that \u201cDerril Willard did provide to Attorney Gammon information concerning activities and statements of a third person regarding the death of Eric Miller. Such information concerning this third person did not reveal any collaborative involvement of Willard and did not implicate Willard in any way in the death of Eric Miller. This information is contained in paragraph number 12 on pages 5 and 6 of the affidavit.\u201d\n(3) The trial court concluded in part in the \u201cOrder [Sealed by the Court]:\u201d \u201c[T]he information regarding activities and statements of a third party are not privileged and are subject to disclosure to the District Attorney, if the interest of justice requires.\u201d As to this conclusion of law in applying the narrow legal standard set forth by this Court in Miller I, we affirm. However, the trial court\u2019s inclusion of the language \u201cif the interest of justice requires\u201d was unnecessary surplusage and contrary to this Court\u2019s disavowal of the use of an \u201cinterest of justice test\u201d in Miller I. See 357 N.C. at 333, 584 S.E.2d at 785.\n(4) The trial court found and concluded in the \u201cOrder [Sealed by the Court]\u201d that \u201cdisclosure of the information regarding a third party in paragraph number 12 above would not expose Derril Willard to criminal liability, even if he were living; would not subject Derril Willard or his estate to civil liability, and would not harm Derril Willard\u2019s reputation or harm Derril Willard\u2019s loved ones.\u201d While not disagreeing with the trial court\u2019s findings and conclusions just quoted, we note that such a determination would only be necessary under Miller I where \u201cthe communications relate to a third party but also affect the client\u2019s own rights or interests and thus remained privileged.\u201d Miller I, 357 N.C. at 343, 584 S.E.2d at 791. Because the trial court\u2019s findings and conclusions do not reveal such a situation in this case, it was unnecessary for the trial court to have so determined.\n(5) Further, the \u201cOrder [Sealed by the Court]\u201d finds and concludes \u201cthat the non-privileged information concerning a third party which is specifically set forth in numbered paragraph 12 of Attorney Gammon\u2019s affidavit should be disclosed to the District Attorney for the 10th Judicial District in its entirety.\u201d We affirm this finding and conclusion. In addition, the trial court found and concluded \u201cthat all other information contained in the affidavit is privileged and should not be disclosed.\u201d We likewise affirm this finding and conclusion.\n(6) Finally, Attorney Gammon argues that the trial court erred in ordering any form of production to the State other than merely producing a copy of the relevant portions of Mr. Gammon\u2019s sealed affidavit. In the \u201cOrder [Sealed by the Court],\u201d Judge Stephens ordered that \u201cAttorney Richard Gammon shall, on or by 5:00 p.m. on Friday, October 10th, 2003, provide to the District Attorney for the 10th Judicial District all information regarding a third person, as set forth in numbered paragraph 12 of his affidavit.\u201d (Stayed by order of Judge Stephens in the public order.) It is not clear from this language exactly how the information is to be conveyed to the District Attorney. Counsel for Attorney Gammon argues that \u201c[t]o the extent that the sealed order may require, or the State may contend, that Mr. Gammon must submit to an interview with the State, such a requirement is contrary to the law.\u201d Since we do not read Judge Stephens\u2019 order as requiring anything more than a disclosure of the contents of paragraph 12 to the District Attorney, it is unnecessary to reach this issue. To the extent there is disagreement over the method of disclosure, any such dispute is for the trial court to determine initially. However, we add as a cautionary note that this very narrow exception to the attorney-client privilege should be appropriately limited both as to its scope and method of disclosure.\nFor the reasons previously stated, the trial court\u2019s orders are affirmed as modified and this matter is remanded for such other action as is consistent with this opinion.\nAFFIRMED AS MODIFIED.",
        "type": "majority",
        "author": "ORR, Justice."
      }
    ],
    "attorneys": [
      "Poyner & Spruill LLP, by Joseph E. Zeszotarski, Jr., for respondent-appellant.",
      "Roy Cooper, Attorney General, by William B. Crumpler, Assistant Attorney General, and G. Colon Willoughby, Jr., District Attorney, Tenth Prosecutorial District, for the Stateappellee."
    ],
    "corrections": "",
    "head_matter": "IN RE: THE INVESTIGATION OF THE DEATH OF ERIC DEWAYNE MILLER AND OF ANY INFORMATION IN THE POSSESSION OF ATTORNEY RICHARD T. GAMMON REGARDING THAT DEATH\nNo. 303PA02-2\n(Filed 7 May 2004)\nEvidence\u2014 attorney-client privilege \u2014 information regarding third party\nThe trial court correctly ordered that some of the statements made by a now-deceased client to an attorney be revealed where those statements concerned a third party, did not implicate the client, and were not privileged. The information was provided to the trial court in a sealed affidavit, which the court reviewed under the mandate of a prior Supreme Court opinion. Portions of the trial court\u2019s order were modified: the use of \u201cinterest of justice\u201d language was unnecessary and contrary to the prior opinion, the trial court did not need to determine the harm to this client in this case, and any dispute over whether the attorney may be interviewed is to be determined by the trial court, with the cautionary note that this is a very narrow exception to the attorney-client privilege.\nOn a joint petition for discretionary review pursuant to N.C.G.S. \u00a7 7A-31(b), prior to a review by the Court of Appeals, of two orders (a summary published order and a detailed sealed order) requiring disclosure of certain communications between attorney and client entered 2 October 2003 by Judge Donald W. Stephens in Superior Court, Wake County. Calendared for argument in the Supreme Court on 17 March 2004; determined on the briefs without oral argument pursuant to N.C. R. App. P. 30(f)(1).\nPoyner & Spruill LLP, by Joseph E. Zeszotarski, Jr., for respondent-appellant.\nRoy Cooper, Attorney General, by William B. Crumpler, Assistant Attorney General, and G. Colon Willoughby, Jr., District Attorney, Tenth Prosecutorial District, for the Stateappellee."
  },
  "file_name": "0364-01",
  "first_page_order": 396,
  "last_page_order": 402
}