Argued January 16, 2013.
Michael A. Delaney, attorney general ( Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State.
Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.
CONBOY, J. DALIANIS, C.J., and HICKS, LYNN and BASSETT, JJ., concurred.
The defendant, Ernest Willis, appeals his conviction, following a jury trial, on two counts of aggravated felonious sexual assault (AFSA) and one count of felonious sexual assault (FSA). See RSA 632-A:2 (2007); RSA 632-A:3, II (Supp. 2012). He alleges that the Superior Court ( Smukler, J.) erred by admitting at trial statements he made to his church pastor, which he asserts violated his religious privilege, and by admitting certain portions of a recording of a police interview of him. Although his notice of appeal referenced his conviction by plea on a second charge of FSA, his brief did not assert any error as to his plea. We affirm all four convictions.
The jury could have found the following facts. In 1997, fifteen-year-old C.A. and the defendant, then thirty-nine years old, both attended the Trinity Baptist Church in Concord (the Church). C.A. became close to the defendant and his family through their active attendance at the Church, and babysat for them on occasion. When C.A. approached driving age, the defendant gave her driving lessons. During one of these lessons, the defendant and C.A. had sexual contact for the first time. About one month later, they had sexual intercourse at C.A.'s home.
On October 7, 1997, C.A., appearing " extremely upset," confided to a trusted neighbor (and a member of the Church) that she was pregnant. The Church's pastor, Charles Phelps, and C.A.'s mother were notified. Phelps and his wife, Linda, met with C.A. and her mother that night, and C.A. reported that the defendant was the father of the child. The next day, [165 N.H. 210] Phelps met privately with the defendant, who acknowledged his relationship with C.A. Phelps reported this information to the police, after informing the defendant that he would do so, and reported it to the New Hampshire Division for Children, Youth and Families (DCYF) as well. Phelps and Linda met later that evening with the defendant and his wife.
For reasons disputed at trial, the police investigation stalled in 1997. It was reopened in 2010, when Detective Chris DeAngelis learned of the 1997 events and telephoned C.A. to investigate. He continued his investigation by speaking with Phelps, as well as the current pastor and Church members. In May 2010, he and Detective Sean Ford conducted an audio-recorded interview with the defendant.
The defendant was indicted on two sets of charges: one set included charges that intercourse had occurred in the defendant's car (car indictments); the other set included charges that intercourse had occurred in C.A.'s home (home indictments). The home indictments included an AFSA count alleging that he " overcame the victim through the actual application of physical force and/or superior physical strength." See RSA 632-A:2, I(a). Both sets of charges included an AFSA count alleging that C.A. " indicated by speech and/or conduct that she did not freely consent to the performance of the sexual act." See RSA 632-A:2, I(m). Both sets of charges also included an FSA count alleging statutory rape. See RSA 632-A:3, II.
Prior to trial, the defendant pleaded guilty to the FSA count alleging statutory rape in the home.
To decide the remaining counts, the jury had to resolve two questions: (1) whether the sexual contact was consensual or forced; and (2) whether the contact involved only one instance of intercourse, as the defendant claimed, or two, as the State claimed. The evidence included the audio-recorded police interview of the defendant, partially redacted at the defendant's request, and Phelps's testimony.
I. Religious Privilege
The defendant first argues that the court erred by denying his motion to preclude the testimony of his pastor, Phelps, about two conversations. One conversation was solely between the defendant and Phelps, during which the defendant told Phelps that he had been sexually involved with C.A. on two occasions (the " twice" statement). The other conversation included the defendant's wife and Phelps's wife, during which the defendant described his role in his relationship with C.A. as that of the " aggressor" (the " aggressor" statement). Before trial, following argument and voir dire of Phelps, the trial court ruled that the religious privilege under New Hampshire Rule of Evidence 505 did not protect either statement and denied the defendant's motion in limine to exclude them.
[165 N.H. 211] Following the defendant's conviction, the trial court issued a written order explaining its denial of the defendant's motion in limine. The trial court found that the religious privilege did not apply because " the statements were neither 'confessions' nor made to Pastor Phelps in his 'professional character.'" As to the " aggressor" statement, the court found no privilege because it occurred in the presence of third parties. As to the " twice" statement, the trial court found no privilege because Phelps had initiated the conversation for the purpose of investigating " whether or not members of the church had broken any church rules." The court further found that, even if the statements had initially been privileged, the defendant waived the privilege during a subsequent interview with the police. See N.H. R. Ev. 510. Finally, the trial court observed that the religious privilege is a qualified one under New Hampshire Rule of Evidence 505, which may yield to countervailing considerations, such as that reflected by the disclosure requirement under the Child Protection Act. See RSA 169-C:29, :32 (2002). The court noted, however, that it " need not decide this issue."
Generally, ascertaining the existence of a privilege, including the religious privilege, rests within the sound discretion of the trial court. N.H. R. Ev. 104(a); see State v. Pelletier, 149 N.H. 243, 247, 818 A.2d 292 (2003) (marital privilege); State v. Gordon, 141 N.H. 703, 705, 692 A.2d 505 (1997) (attorney-client privilege). We generally review such rulings for an unsustainable exercise of discretion, Desclos v. S. N.H. Med. Ctr., 153 N.H. 607, 610, 903 A.2d 952 (2006), and defer to the trial court's factual findings as long as they are supported by the evidence and are not erroneous as a matter of law. Franklin v. Callum, 146 N.H. 779, 781, 782 A.2d 884 (2001). However, we review questions of law -- including the interpretation of a statute or rule of evidence -- de novo. Lillie-Putz Trust v. Downeast Energy Corp., 160 N.H. 716, 721-22, 8 A.3d 65 (2010).
Our religious privilege is codified by statute and set forth in New Hampshire Rule of Evidence 505. The statute provides: " A priest, rabbi or ordained or licensed minister of any church or a duly accredited Christian Science practitioner shall not be required to disclose a confession or confidence made to him in his
professional character as spiritual adviser, unless the person confessing or confiding waives the privilege." RSA 516:35 (2007). The language of Rule 505 is essentially the same.
Because the religious privilege did not exist at common law, the protections conferred by the privilege are therefore based upon the statute and the rule of evidence adopting it. See Mitchell, Must Clergy Tell? Child Abuse Reporting Requirements Versus the Clergy Privilege and Free Exercise of Religion, 71 Minn. L. Rev. 723, 737 (1987) (" clergy privilege was not part of the common law ... most American courts and commentators [165 N.H. 212] have announced that the privilege, if it exists, must rest on statute" ); see also, e.g., Seidman v. Fishburne-Hudgins Educ. Foundation, Inc., 724 F.2d 413, 415 (4th Cir. 1984).
" It is well settled that statutory privileges should be strictly construed." State v. Melvin, 132 N.H. 308, 310, 564 A.2d 458 (1989). When interpreting a rule of evidence, as with a statute, we will first look to the plain meaning of the words. State v. Holmes, 159 N.H. 173, 175, 978 A.2d 909 (2009). We are the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole. DaimlerChrysler Corp. v. Victoria, 153 N.H. 664, 666, 917 A.2d 209 (2006).
A. " Aggressor" statement
We first consider whether the privilege applied to the " aggressor" statement. Relying upon Melvin, the trial court found that it did not because the statement was made in the presence of the defendant's wife and Phelps's wife. Melvin, 132 N.H. at 310. We agree that the privilege did not apply because of the presence of Phelps's wife, whom the trial court found to be an " 'extraneous' third party."
In Melvin, we noted that " [g]enerally, the presence of an 'extraneous' third party during a privileged conversation operates to destroy the privilege." Melvin, 132 N.H. at 310; see also, e.g., State v. West, 317 N.C. 219, 345 S.E.2d 186, 189 (N.C. 1986) (communication made in presence of minister's wife not confidential). We rejected the defendant's argument that the presence of the clergyman's wife did not invalidate the privilege because the privilege applied to communications made in the presence of an assistant to the clergyperson. Melvin, 132 N.H. at 309-10. We contrasted our religious privilege, which does not protect communications to clergy assistants, with the privileges granted by New Hampshire Rules of Evidence 502 and 503, which provide that the privileges applicable to communications to an attorney, physician, psychologist, or certified pastoral counselor are also applicable to communications to persons assisting or working under the supervision of the attorney, physician, psychologist or certified pastoral counselor. See Melvin, 132 N.H. at 310; N.H. R. Ev. 502, 503. We noted that " [t]he absence of such a provision in the express language of the religious privilege of Rule 505 thus becomes even more conspicuous," Melvin, 132 N.H. at 310, and that " [i]f this court in approving the rules had intended the coverage of the religious privilege to be as broad as that of the physician-patient and the attorney-client privileges, it could easily have provided for the presence of third party 'assistants' within the express language of Rule 505." Id. The defendant does not contend that Phelps was a certified pastoral counselor.
[165 N.H. 213] We are not persuaded by the defendant's attempt to distinguish Melvin on the grounds that Phelps's wife allegedly played a role in any spiritual counseling given by Phelps. The defendant relies
upon State v. Martin, 137 Wn.2d 774, 975 P.2d 1020 (Wash. 1999), and In re Grand Jury Investigation, 918 F.2d 374 (3d Cir. 1990). In Martin, the court held that " the presence of a third person may vitiate the privilege unless that person is another member of the clergy or the person's presence is necessary for the communication." Martin, 975 P.2d at 1029. In In re Grand Jury Investigation, the court analogized the religious privilege to the attorney-client privilege and held that " the presence of third parties, if essential to and in furtherance of the communication, does not vitiate the clergy-communicant privilege." In re Grand Jury Investigation, 918 F.2d at 377. Even if we were to adopt the reasoning of these cases, however, the defendant has not cited any facts that demonstrate that Phelps's wife's presence was " necessary for the communication" or " essential to and in furtherance of the communication." We conclude that the trial court did not err in admitting the " aggressor" statement because it was not made in confidence. We therefore need not address the trial court's additional reasons for admitting the " aggressor" statement.
B. " Twice" statement
We next consider the admission of the " twice" statement, which the defendant made to Phelps alone. The trial court found that the religious privilege did not apply because the statement was " neither [a] 'confession[ ]' nor made to Pastor Phelps in his 'professional character.'" The trial court further found that, in any event, the defendant waived any privilege.
We first note that the defendant does not appear to contest the trial court's finding that the defendant's statement was not a " confession." The defendant instead cites the Note of the Advisory Committee that drafted a similarly worded proposed Federal Rule of Evidence, which provides that
[t]he choice between a privilege narrowly restricted to doctrinally required confessions and a privilege broadly applicable to all confidential communications with a clergyman in his professional character as spiritual adviser has been exercised in favor of the latter.
See Advisory Committee's Note to Proposed Fed. R. Ev. 506, 56 F.R.D. 183, 248 (1973). We agree: RSA 516:35 and Rule 505 explicitly protect both confessions and " confidence[s]" made to clergy in their professional character. We therefore understand the defendant's argument to be that, in accordance with the trial court's findings, the statement was a protected confidence, and not a " confession."
[165 N.H. 214] The purpose of the religious privilege, as articulated by the United States Supreme Court, is the recognition of " the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return." Trammel v. United States, 445 U.S. 40, 51, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980); see also Keenan v. Gigante, 47 N.Y.2d 160, 390 N.E.2d 1151, 1154, 417 N.Y.S.2d 226 (N.Y. 1979) (noting that ordinarily, " statutes bestowing an evidentiary privilege should be construed in furtherance of their policy to encourage uninhibited communication between persons standing in a relation of confidence and trust" (quotation omitted)). Thus, " the cleric-penitent privilege applies when, under the totality of the circumstances, an objectively reasonable penitent would believe that a communication was secret, that is, made in confidence to a cleric in the cleric's professional character or role as ...