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State v. Cary

June 01, 2000


Before Judges King, Lefelt and Lintner.

The opinion of the court was delivered by: Lefelt, J.S.C., (temporarily assigned).

Argued May 10, 2000 - Decided June 1, 2000

On appeal from the Superior Court of New Jersey, Law Division, Essex County.

The issue presented in this interlocutory appeal is whether the cleric-penitent privilege, N.J.S.A. 2A:84A-23; N.J.R.E. 511, applies when a defendant confesses to a Baptist deacon who is also a New Jersey State Trooper. We conclude that the privilege does not apply to the communication in this case between the defendant and the deacon-trooper, and we reverse the motion judge's suppression of the statement.

We recount the pertinent facts. Allegedly, on February 5 or 6, 1999, an altercation occurred between defendant David Cary and at least one other individual near a Country Fried Chicken restaurant in Newark. After this altercation, the State claimed that defendant returned to the Country Fried Chicken and fired several gun shots into the store, striking two bystanders, Andre Dean and Salvatore Johnson. Johnson survived, but Dean died from his injuries.

On Sunday, February 7, 1999, Cary visited the Second Baptist Church in Belleville to speak with his pastor, Lucious Williams. After attending the morning service, Cary met privately with Pastor Williams, apparently to seek spiritual guidance regarding the altercation and how he should proceed. After meeting with the pastor, Cary indicated that he wanted to surrender to the police. Therefore, Pastor Williams summoned a recently ordained deacon, John Perry, because Perry was also a state trooper and the pastor needed assistance in "what should we do about trying to help [Cary] and what [Cary] asked us to help him to do."

Before meeting with Cary, Perry met with Pastor Williams. During this conversation, Perry learned that Cary had come "to turn himself in, because he got in trouble with the law." Perry and Williams discussed some "minor details" of the incident during this brief conversation.

Perry and Pastor Williams then met with Cary in the pastor's study. Perry testified that he "introduced [himself] as a deacon in the church and I also mentioned that I was a state trooper." During this meeting, Cary related certain events that had occurred in Newark, and "at a certain point in [Cary's] statement to [Perry], [Perry] reminded [Cary] of his right to remain silent." After receiving this warning, Perry testified that Cary continued to talk about the incident, but Perry never interrogated him. At some point in the meeting all three men prayed together.

Additionally, during the meeting, Perry testified that he searched Cary by having him stand against the wall and spread his arms and legs in a traditional search posture. When Cary finished his statement, Perry called the Newark and Belleville police departments. Once Perry had called these authorities, he testified that Cary was no longer free to leave.

The Newark police arrived and transported Cary to the Newark Police Department. Shortly thereafter, both Pastor Williams and Perry arrived at the Newark Police Department. Cary refused to speak to the police following his arrest, so Detective Michael DeMaio of the Newark Police Department asked Perry to give a statement regarding his knowledge of the incident that led to the shooting of Andre Dean.

In his police statement, Perry's version of the meeting with Cary varied slightly from his suppression hearing testimony. For instance, rather than stating "at a certain point" he informed Cary of his right to remain silent, Perry stated that after Cary informed Perry that he wanted to surrender to the police, Perry "advised [Cary] of his rights per Miranda and he waived [them] . . . and expressed to me in little detail about a[n] incident that he was involved in on February 5, 1999." Moreover, in his suppression hearing testimony, Perry testified that he told defendant he had the right to remain silent and "that was pretty much it[,]" whereas his statement indicated that he advised defendant of his rights "per Miranda."

Nevertheless, when the Newark police asked Perry what defendant had said after Perry advised him of his Miranda rights, Perry initially responded, "[a]t this point I don't want to divulge that information. Because of my deacon responsibilities and to my congregation but if so ordered or compelled to by law then I [will] tell what has to be told." After speaking with a Newark police official, an assistant prosecutor and a superior officer at the state trooper barracks, Perry decided to complete his statement. Perry then revealed that Cary admitted shooting a gun during an altercation and that Cary believed he had killed someone. This statement is the focus of Cary's appeal.

The motion judge concluded that the cleric-penitent privilege applied to Cary's statement to Perry because Perry was a cleric pursuant to N.J.S.A. 2A:84A-23 and "as such is prohibited from waiving the privilege without defendant's consent." The judge noted that a "deacon of the Baptist faith is ordained" and cited Robert E. Naylor, The Baptist Deacon (1955), a manual or handbook for deacons, for the proposition that a deacon's responsibilities "range from handling business affairs of the church and visiting the sick, to conducting services in the absence of ...

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