Talking about your confidential confession to a priest, waives confidentiality.

State v. Crisco: Defendant was tried and convicted by a jury of murdering Carrie Welch in Fayetteville, Cumberland County, by beating her to death with a baseball bat.  He confessed his crime to a preacher.  He also told a third party that he confessed his crime to a preacher.  The preacher never testified, but the defendant’s statements about his confession were admitted at trial.

III. Clergy-Communicant Privilege
A. Standard of Review
This Court’s review of the trial court’s order denying a motion to suppress “is
strictly limited to determining whether the trial judge’s underlying findings of fact
are supported by competent evidence, in which event they are conclusively binding
on appeal, and whether those factual findings in turn support the judge’s ultimate
conclusions of law.” State v. Stanley, 175 N.C. App. 171, 174, 622 S.E.2d 680, 682
(2005) (citations omitted). The trial court’s conclusions of law are reviewed de novo.
State v. Campbell, 188 N.C. App. 701, 704, 656 S.E.2d 721, 724 (2008) (citation
omitted).
B. Application of Privilege
N.C. Gen. Stat. § 8-53.2, entitled “Communications between clergymen and
communicants,” provides:
No priest, rabbi, accredited Christian Science practitioner,
or a clergyman or ordained minister of an established
church shall be competent to testify in any action, suit or
proceeding concerning any information which was
communicated to him and entrusted to him in his
professional capacity, and necessary to enable him to
discharge the functions of his office according to the usual
course of his practice or discipline, wherein such person so
communicating such information about himself or another
is seeking spiritual counsel and advice relative to and
growing out of the information so imparted, provided,
however, that this section shall not apply where
communicant in open court waives the privilege conferred.
N.C. Gen. Stat. § 8-53.2 (2013).
Our Supreme Court has held that § 8-53.2 has two requirements for the clergy communicant
privilege to apply: (1) the defendant must be seeking the counsel and
advice of his minister; and (2) the information must be entrusted to the minister as a
confidential communication. State v. West, 317 N.C. 219, 223, 345 S.E.2d 186, 189
(1986). This statute expressly allows the communicant to waive the privilege in open
court. N.C. Gen. Stat. § 8-53.2.
The State did not call Pastor Roy to testify before the jury. However, the trial
court’s denial of Defendant’s motion to suppress and motion in limine allowed
evidence that Defendant had communicated with Pastor Roy to be admitted into
evidence through the testimony of other witnesses. Black testified as follows:
Q: During any conversation he – Mr. Crisco said what to
you about – you started to say a preacher?
A: Yeah, he said that he had met a preacher in Sanford and
that he had told the preacher about it and he was
uncomfortable that he had told the preacher about it, and
that — that the preacher wasn’t acting right about him
telling him, you know, like he would keep it to himself or
something. I don’t –
Q: Now, you said “it” a lot, like what you’re talking about;
he told the preacher about what?
A: The murder.
The trial court ex mero moto also asked Black about Defendant’s conversation
with Pastor Roy in front of the jury:
THE COURT: Can you tell me exactly what Mr. Crisco said
about any conversation with a preacher?
THE WITNESS: Yes, sir. He told me that he – the preacher
was helping him in Sanford get on his feet, and then he told
me that he had told the preacher about this murder, and
that he wished he wouldn’t had [sic] told him that, that the
preacher kind of – in other words, wasn’t going to — he
didn’t think he was going to keep it to himself, something
of that nature, that he was telling.
The State brought up the subject of the preacher again during its direct
examination of the lead detective, Detective Sondergaard, its last witness:
Q: Were you present in the courtroom when Matthew Black
during his testimony mentioned a phone call that he
received from Mr. Crisco and discussed talking to a
preacher, that Mr. Crisco spoke to a preacher; do you recall
that testimony?
A: Yes.
Q: Right now just answer with a yes or no: Throughout the
course of your investigation, were you contacted by a
preacher?
A: Yes.
Q: What was –
[DEFENSE COUNSEL]: Objection.

THE COURT: Overruled as to that.
BY [THE PROSECUTOR]:
Q: What was his name?
A: Ronnie Roy.
Q: Is he present in the courtroom?
A: Yes, he is.
By its plain and ordinary meaning, N.C. Gen. Stat. § 8-53.2, applies to the
competency of clergyperson’s testimony, and only applies to communications between
Defendant and Pastor Roy. Although Pastor Roy was not called and did not testify
before the jury at trial, Defendant argues the State circumvented Defendant’s
privileged communication to Pastor Roy by eliciting testimony from Black and
Detective Sondergaard about the privileged communication. Even without calling
the preacher to testify, Defendant argues the State was able to show the jury
Defendant had confessed to a preacher, and the preacher was real and present before
them, all in violation of the privilege.
A party who communicates and makes disclosures to his preacher does not
have “any reason to expect confidentiality” when the disclosures are made in the
presence of a third party. West, 317 N.C. at 223, 345 S.E.2d at 189 (holding the
defendant’s admissions to his preacher were not “entrusted” to the preacher in
pursuit of counsel and advice when the preacher’s wife was present). In the context

of the clergy-communicant privilege, our appellate courts have not considered
whether a disclosure made to clergy can be waived by an out of court, voluntary
disclosure of the substance of the communication to a third party.
However, “[i]t is well established in this state that even absolutely privileged
matter may be inquired into where the privilege has been waived by disclosure.”
Industrotech Constructors, Inc. v. Duke University, 67 N.C. App. 741, 743-44, 314
S.E.2d 272, 274 (1983) (holding any privilege of confidentiality in arbitration
transcripts had been waived by the university’s disclosure of the materials to a nonparty).
The plain language of the statute itself allows waiver in open court.
N.C. Gen. Stat. § 8-53.2 applies only to “confidential” communication between
clergy and communicant. The statute does not restrict the applicability of the
privilege based upon which party initiates the communication. Presuming Defendant
was seeking the counsel and advice of Pastor Roy when he confessed to Welch’s
murder, Defendant’s statements were “entrusted” to Pastor Roy under the privilege.
N.C. Gen. Stat. § 8-53.2.
Defendant told Black, a third party and not a pastor, that he had confessed to
“a preacher in Sanford” about the murder. West, 317 N.C. at 223, 345 S.E.2d at 189.
No recognized privilege exists between Defendant and Black. The statement by
Defendant to Black that Defendant had confessed to a preacher is not privileged. The
State was permitted to present evidence of statements Defendant made to Black
because N.C. Gen. Stat. 8-53.2, by its express terms, does not apply to or exclude
those statements.

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