On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Ind. No. 00-06-778.
The opinion of the court was delivered by: Parker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Parker and Koblitz.
On leave granted, the State appeals from an order entered on December 10, 2007 granting defendant's motion to preclude the testimony of Glenford Brown pursuant to N.J.R.E. 511, [cleric]-penitent privilege. We reverse.
This appeal arises out of allegations that defendant sexually assaulted his daughters between 1996 and 2000. In 2000, the children reported to their mother that their father had sexually abused them. The mother then contacted her pastor, Glenford Brown, and reported the children's allegations. Brown knew defendant from their native Jamaica, although defendant, himself, did not attend Brown's church in New Jersey.
Believing he had a duty to protect defendant's wife and children, Brown called defendant at work to tell him he should not go back to his home. Brown arranged to meet defendant outside Brown's townhouse -- because Brown would not allow defendant into his house. They talked in a play area behind Brown's house where defendant, "without directly saying [he] sexually molested them, . . . acknowledged what he did" and asked Brown to persuade his wife to let him back in the house. Brown told defendant he would not do that. Defendant asked Brown "to counsel" him but Brown declined because he was too angry with defendant and defendant "needed real psychological help which [Brown] was not qualified to give." A few weeks later, defendant went to Brown's church where he talked with Brown and "acknowledged what he did." Defendant asked Brown to baptize him, but Brown told defendant he could not baptize him because Brown "thought he wanted cover for his actions." Brown urged defendant to turn himself in to the police.
After a hearing, during which Brown gave the testimony related above, the trial court rendered a decision on the record of October 25, 2007, granting defendant's motion to preclude Brown's testimony under the privilege. Relying on the three-part test articulated in State v. Cary, 331 N.J. Super. 236, 241 (App. Div. 2000), the court found that the statements made to Brown by defendant were privileged.
The State, in this interlocutory appeal, argues:
POINT ONE THE TRIAL JUDGE IMPROPERLY RULED THAT DEFENDANT'S MEETING AND CONVERSATION WITH GLENFORD BROWN WAS PROTECTED UNDER THE CLERIC-PENITENT PRIVILEGE.
The State contends that defendant's communications to Brown are not protected under the cleric-penitent privilege because the circumstances surrounding the communications did not demonstrate that they were made in confidence to Brown in his role as a spiritual advisor. The State contends that the trial court's ruling is contrary to both the evidence and the law. We agree.
Pursuant to both N.J.S.A. 2A:84A-23 and N.J.R.E. 511, under the cleric-penitent privilege [a]ny communication made in confidence to a cleric in the cleric's professional character, or as a spiritual advisor in the course of the discipline or practice of the religious body to which the cleric belongs or of the religion which the cleric professes, shall be privileged. Privileged communications shall include confessions and other communications made in confidence between and among the ...