In re Miller, No. 303PA02.

• Docket Nº: No. 303PA02.
• Citation: 357 N.C. 316, 584 S.E.2d 772
• Case Date: August 22, 2003
• Court: United States State Supreme Court of North Carolina

584 S.E.2d 772
357 N.C. 316

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

No. 303PA02.

Supreme Court of North Carolina.

August 22, 2003.

584 S.E.2d 776

Poyner & Spruill LLP, by David W. Long and Joseph E. Zeszotarski, Jr., Raleigh, for the respondent-appellant

Roy Cooper, Attorney General, by William B. Crumpler, Assistant Attorney General; and C. Colon Willoughby, District Attorney, Tenth Prosecutorial District, for the State-appellee.

LAKE, Chief Justice.

This case involves the attorney-client privilege and raises the primary question of whether, in the context of a pretrial criminal investigation, there can be a viable basis for the application of an interest of justice balancing test or an exception to the privilege which would allow a trial court to compel disclosure of confidential communications where the client is deceased, an issue of first impression for this Court.

On 2 December 2000, Eric D. Miller (Dr. Miller) died at Rex Hospital in Raleigh, North Carolina, as a result of arsenic poisoning. Investigation by law enforcement officials

584 S.E.2d 777

established the following: Dr. Miller was a post-doctoral research scientist and was married to Ann Rene Miller (Mrs. Miller). On the evening of 15 November 2000, Dr. Miller went bowling at AMF Bowling Center in Raleigh, North Carolina, with several of Mrs. Miller's co-workers. While at the bowling alley, Dr. Miller partially consumed a cup of beer given to him by Mrs. Miller's co-worker Derril H. Willard (Mr. Willard). Dr. Miller commented to those present that the beer had a bad or "funny" taste

On 16 November 2000, Dr. Miller was hospitalized at Rex Hospital in Raleigh with symptoms later determined to be consistent with arsenic poisoning. Five days later, Dr. Miller was transferred to North Carolina Memorial Hospital in Chapel Hill, North Carolina, where he remained until discharge on 24 November 2000. Dr. Miller was physically unable to return to work and remained at home under the care of Mrs. Miller and his parents. Dr. Miller slowly regained his physical strength until the morning of 1 December 2000, when he became violently ill and was again hospitalized. On 2 December 2000, Dr. Miller died from arsenic poisoning.

Within one week of Dr. Miller's death, law enforcement officials interviewed all of the persons present at the bowling alley the night Dr. Miller consumed the suspect beer, with the exception of Mr. Willard. The police were unable to interview Mr. Willard. Mrs. Miller was interviewed on the day of her husband's death and stated that she had no idea why anyone would have poisoned Dr. Miller. Shortly after the autopsy was completed on Dr. Miller's body, it was cremated at the direction of Mrs. Miller. All of the investigators' subsequent requests to interview Mrs. Miller were rejected.

During the course of the investigation, law enforcement officials concluded that Mrs. Miller was involved in a relationship with her co-worker, Mr. Willard. Investigators subpoenaed telephone records for Mrs. Miller's home, office, and cellular phones for a period of time before the initial hospitalization of Dr. Miller until the day he died. An analysis of telephone records showed several calls between Mr. Willard and Mrs. Miller, with a total of 576 total minutes of conversation. The evidence also showed an increase in the frequency and duration of these telephone calls immediately before and after the incident which occurred at the bowling alley. In addition, numerous e-mail messages between Mrs. Miller and Mr. Willard were found on Mrs. Miller's computer. During interviews with Yvette B. Willard (Mrs. Willard), the wife of Mr. Willard, investigators learned that Mr. Willard had acknowledged his romantic involvement with Mrs. Miller.

Shortly after Dr. Miller's death, Mr. Willard sought legal counsel from criminal defense attorney Richard T. Gammon (respondent), who, according to an affidavit of Mrs. Willard, advised Mr. Willard that he could be charged with the attempted murder of Dr. Miller. Within days after his meeting with respondent, Mr. Willard committed suicide. Mr. Willard left a will naming Mrs. Willard as the executrix of his estate.

On 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 needed, an in camera examination to determine whether the attorney-client privilege should be waived or whether compelled disclosure of communications between respondent and Mr. Willard was warranted for the "proper administration of justice." On the same day, upon consideration of the petition and affidavit of Mrs. Willard filed therewith, the Honorable Donald W. Stephens, Senior Resident Superior Court Judge, entered an order requiring respondent to respond and appear before the Wake County Superior Court for a hearing on the petition. Respondent filed a motion to dismiss the petition asserting that the court lacked jurisdiction, which motion was denied.

On 7 March 2002, after a hearing, the trial court entered an order granting the State's petition and requiring respondent to provide the trial court with a sealed affidavit containing information relevant to the murder investigation into the death of Dr. Miller that was obtained from his attorney-client relationship with Mr. Willard. The order provided that the trial court would conduct an in camera review of the information contained in respondent's

584 S.E.2d 778

affidavit to determine if the interest of justice required disclosure of the information to the State. On 13 March 2002, the trial court entered an order staying compliance with the 7 March 2002 order pending appeal. The trial court's order designated the matter as immediately appealable. Respondent filed a notice of appeal to the Court of Appeals. On 27 June 2002, this Court allowed the parties' joint petition for discretionary review prior to determination by the Court of Appeals

In essence, this case presents the question of whether, during 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. The State asserts basically two propositions in support of disclosure: (1) that a deceased client's personal representative may waive the confidentiality of the communications, and (2) that in the interest of justice a trial court has the inherent authority to hear the State's petition and to apply a balancing test to determine by in camera review whether any disclosure should be made.

Respondent asserts that the trial court first erred in denying his motion to dismiss on the ground that the court has no jurisdiction to hear this proceeding because of the manner in which it was instituted by the district attorney. Respondent contends that the only proper procedure for presenting this issue was before a grand jury, where, upon the assertion of the privilege, the issue would have to proceed further to a judge of the superior court for resolution. N.C.G.S. § 15A-623(h) (2001). We turn first to this consideration.

The parties agree that the State has initiated this matter as a cause in the nature of a special proceeding, N.C.G.S. § 1-2 (2001); N.C.G.S. § 1-3 (2001), and we note that while this action was not commenced in strict accord with the usual process as set forth in the North Carolina General Statutes, N.C.G.S. § 1-394 (2001); N.C.G.S. § 1A-1, Rule 3 (2001), it was initiated in the proper forum for special proceedings, the superior court, N.C.G.S. § 7A-246 (2001). Jurisdiction presupposes the existence of a court that has "control over a subject matter which comes within the classification limits designated by the constitutional authority or law under which the court is established and functions." Jones v. Brinson, 238 N.C. 506, 509, 78 S.E.2d 334, 337 (1953); see also Perry v. Owens, 257 N.C. 98, 101-02, 125 S.E.2d 287, 290 (1962); State v. Hall, 142 N.C. 710, 713, 55 S.E. 806, 807 (1906). Subject matters of privilege and protected information, such as the Fifth Amendment privilege against self-incrimination and issues arising out of discovery motions, are subjects which are routinely addressed within the jurisdiction of the superior court.

Although this proceeding was not initiated in strict accord with statutory procedures as set forth in N.C.G.S. § 1A-1, Rule 3, or by convening an "investigative grand jury," N.C.G.S. § 15A-622(h) (2001), our common law, as reflected throughout its development, demonstrates a practical flexibility and ingenuity to accommodate exigent circumstances where required in the interest of justice. This flexibility, as a virtual rule of necessity, will permit the superior court to assume jurisdiction in proceedings of an extraordinary nature that do not fit neatly within statutory parameters. This premise is well stated by former Judge (later Chief Justice) Burley Mitchell in the following language:

Within the guidelines of our Constitution, the legislature is charged with the responsibility of providing the necessary procedures for the proper commencement of a matter before the courts. Occasionally, however, the proscribed procedures of a statutory scheme fail to embrace the unanticipated and extraordinary proceeding such as that disclosed by the record before us. In similar situations, it has been long held that courts have the inherent power to assume jurisdiction and issue necessary process in order to fulfill their assigned mission of administering justice efficiently and promptly. We believe that this is one of those extraordinary proceedings and that our rules of procedure should not be construed so literally as to

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