November 5, 2012
EMC, LLC, SUCCESSOR IN INTEREST TO EMIGRANT MORTGAGE COMPANY, INC., PLAINTIFF-RESPONDENT,
IVY ZOE COOPER AND VASHTI BROUWERS, DEFENDANTS-APPELLANTS, AND MR. COOPER, HUSBAND OF IVY ZOE COOPER, HENDRIKUS BROUWERS; VASHTI BROUWERS; JENNIFER WINGFIELD; AND JAMES U. ONWUNALIJ, DEFENDANTS.
On appeal from the Superior Court of New Jersey, Chancery Division, Burlington County, Docket No. F-46467-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 31, 2011
Before Judges A. A. Rodriguez, Sabatino, and Ashrafi.
After a two-day bench trial, plaintiff EMC, LLC, successor in interest to Emigrant Mortgage Company, Inc. ("Emigrant") obtained a judgment of foreclosure against defendants Ivy Zoe Cooper and Vashti Brouwers on a defaulted residential mortgage loan. The trial judge rejected defendants' claim that their signatures on the mortgage documents had been forged, instead adopting the opinion of Emigrant's handwriting expert that the signatures were authentic. Applying the cleric-penitent privilege, the judge excluded testimony proffered by defendants alleging that Cooper's son-in-law had admitted to a reverend that he had forged their signatures.
Defendants now appeal, contending that (1) the trial court's factual findings were contrary to the weight of the evidence and constitute a miscarriage of justice; (2) the court should have granted their motion for a new trial and entered judgment in their favor; and (3) the court misapplied the cleric-penitent privilege in barring evidence of the son-inlaw's alleged admission of forgery.
For the reasons that follow, we affirm.
The mortgaged property at issue in this case is a residence in Willingboro that Cooper initially purchased in 2004 for $150,000 in cash. Cooper is an ordained minister and has a master's degree in economics. Her daughter is Vashti Brouwers, who is married to co-defendant Hendrikus Brouwers.*fn1 Vashti, Hendrikus, their two children, and Cooper all resided at the property at issue. Hendrikus worked in an importation business.
In December 2006, Cooper executed a quitclaim deed that added Hendrikus to the title of the property. According to Cooper, she executed the deed as part of an agreement with Hendrikus, in which he reciprocally agreed to contribute to the household expenses. Cooper also contended that she had agreed to the conveyance as an inducement to Hendrikus to stop abusing Vashti.
Three months after Cooper's conveyance to Hendrikus, a mortgage on the property dated March 30, 2007 was executed in favor of Emigrant to secure a $110,000 loan. According to the mortgage documents, the listed borrowers were Hendrikus, Vashti, and Cooper. At closing, $6,110.63 from the loan proceeds were applied to an outstanding municipal tax lien on the premises. Eventually the note and mortgage went into default, as no payments were made after June 1, 2008.
The property was severely damaged in a July 2008 fire. According to Cooper, an insurance adjustor who came to the site after the fire explained to her that the property was subject to Emigrant's mortgage lien. Cooper contends this conversation was the very first time that she became aware of the existence of the mortgage.
According to Cooper and Vashti, Hendrikus must have stolen their identification papers at the time of the 2007 mortgage loan and presented them at the closing to the lender's title clerk. They further claimed that Hendrikus had forged their signatures on the mortgage documents, and that he used the loan proceeds for his own purposes.
Cooper filed a complaint in municipal court against Hendrikus based on his alleged forgery.*fn2 Hendrikus disappeared in August 2008, and the record suggests that he is out of the country. Hendrikus did not appear at trial and he has not participated in this litigation through counsel or otherwise.
In November 2008, Emigrant filed a foreclosure complaint against
Cooper, Vashti, Hendrikus, "the husband of Ivy Zoe Cooper,"*fn3
Jennifer Wingfield,*fn4 James U.
Onwunalij,*fn5 and "unknown occupants 1 through 5."
Cooper and Vashti filed an answer, denying that they executed a
mortgage with Emigrant. They also filed a counterclaim against
Emigrant alleging that their purported signatures on the mortgage
documents had been forged and that Emigrant was negligent in failing
to verify the authenticity of those signatures before disbursing the
funds at closing. The remaining defendants, including Hendrikus, did
not answer, and consequently default judgment was entered against
On the first day of trial, the judge ruled upon several motions in limine. In particular, the judge granted Emigrant's motion to preclude any evidence that Hendrikus had physically abused Vashti, finding that the allegation of abuse related only to the signing of the 2006 quitclaim deed and not the 2007 mortgage.*fn7 The judge preliminarily denied Emigrant's motion to bar testimony alleging that Hendrikus, in defendants' presence, had admitted to Reverend Emerson Deline that he had forged their signatures on the mortgage documents. Lastly, the judge denied a motion by defendants to exclude, as improper net opinion, the testimony of William J. Ries, a forensic document examiner retained by Emigrant as a handwriting expert.
Without apparent objection, the judge permitted defendants to present their witnesses at trial first. Both Cooper and Vashti testified in their own behalf. They also presented testimony from Reverend Deline and their own handwriting expert,
J. Wright Leonard, also a forensic document examiner.
During the course of her testimony, Cooper reiterated her position that her signature appearing on the mortgage documents had been forged. She adamantly denied ever signing a mortgage because she wanted to retire and would not have had the money to pay off a mortgage.
Cooper testified that after the July 2008 fire, an insurance adjustor met her and Hendrikus at the premises. According to Cooper, Hendrikus told the adjustor that they did not plan to repair the house, but that they wanted the insurance funds to purchase another one. Cooper disagreed and began arguing with Hendrikus. As Cooper recalled it, the adjustor then interrupted and stated that Emigrant Bank had a lien on the house. Allegedly surprised by this assertion, Cooper hired an attorney several days later to protect her interests.
Cooper did acknowledge in her testimony that prior to the day of the fire, a message had been left on her answering machine from Emigrant Bank calling about a mortgage. According to Cooper, she called Emigrant about the message, but its representative declined to speak to her because the mortgage was not in her name. However, after questioning Hendrikus, she felt certain that any mortgage that had been taken out was not on her property.
During her cross-examination, Cooper was questioned about the date that the mortgage was executed, March 30, 2007. Cooper said she had worked that day in New York City, and that her employer would have a record of that. Despite this contention, Cooper never obtained any proof from her employer confirming her attendance at work on that particular day. She also claimed that her driver's license, which was presented and photocopied at the closing, must have been stolen from her purse.
Vashti similarly testified that she first learned of the mortgage when the insurer's representative visited the property after the fire. She likewise denied signing any mortgage on the property.
Vashti admitted, however, that she had learned of Emigrant's involvement with the property before the fire. Specifically, in April 2008, Vashti's account balance at TD Bank was lower than what she thought it should be. When she had pressed TD Bank for an explanation, she was shown a copy of a check that had been written from her account to Emigrant.
During Vashti's cross-examination, Emigrant introduced the April 2008 check from Vashti's TD Bank account. The check was written to Emigrant and bore the mortgage number in the "memo" section. Although Vashti claimed that Hendrikus had forged her signature on this check, she declined to press charges against him when the bank offered her that option. According to Vashti, Hendrikus thereafter told her he had signed her name on that check because he needed to pay for a mortgage on a warehouse he used for his business.
Emigrant's counsel also confronted Vashti with a May 5, 2008 check drawn on her TD Bank account and written to Emigrant. Although Vashti acknowledged that this check was not a forgery, she contended that she had agreed to make the payment for the benefit of Hendrikus's business because he had "some hard times." Like her mother, Vashti blamed Hendrikus for allegedly stealing her identification and for forging her own signature on the mortgage documents.
Defendants' handwriting expert, Leonard, supplemented their claim that their signatures had been forged on the mortgage documents. To perform her analysis, Leonard examined several verified signatures from both Cooper and Vashti and compared them to the signatures appearing on the mortgage and on five riders that had been signed at the closing.
According to Leonard, the signatures for Cooper on the mortgage documents showed a "raft of unnatural stops and starts," which reflected that "the writer [had] paused to . . . decide what [he or she] wanted to do next." Because there were also irregularities in the text, Leonard believed that Cooper's signature was not genuine.
To analyze Vashti's handwriting, Leonard similarly reviewed twenty-five verified signatures, which she compared with the six disputed signatures. After this review, Leonard opined that someone "was trying to imitate [Vashti's] signatures." Leonard based this opinion on the presence of several irregularities in certain handwritten letters.
The trial judge asked Leonard during her testimony whether she could determine whether the persons who had signed the mortgage documents were left-handed or right-handed. Leonard responded that there was insufficient evidence from the signatures to make such a determination.
Defendants also proffered testimony from Reverend Deline, the pastor of the same church where Cooper is an assistant pastor. Reverend Deline has known Cooper almost all of his life, having first met her in Liberia, where they both were born.
Emigrant's counsel repeated his objection to the reverend's testimony, based upon the cleric-penitent privilege. After considering that objection further, the judge sustained it, finding that any admission made by Hendrikus to the reverend was privileged. The judge ruled that "as long as Hendrikus [was] confessing or telling [Deline] he did something and he's sorry, I would say yes, [Deline] cannot testify." The court allowed the reverend, however, to testify as to conversations unrelated to any "confession[s] of wrongdoing."
Given this ruling, the reverend took the stand and provided only limited testimony for defendants. The reverend essentially confirmed that Cooper had been upset about the potential loss of the house, but he did not divulge any statements made to him by Hendrikus.
In its own case-in-chief, Emigrant presented testimony from Linda Kohl, the title clerk who performed the closing on the mortgage. Although Kohl had no independent recollection of the March 2007 closing, she explained that she customarily would have verified two forms of identification for each of the parties signing a mortgage before she would have notarized the transactional documents. In addition, the signatures on the documents would have had to have been made in her presence.
Ries, Emigrant's handwriting expert, testified that all six contested signatures were indeed signed respectively by Cooper or Vashti. According to Ries, "those signatures that appear on those documents were [written] in a disguised fashion. They were done intentionally and changed with the intention of denying it at some later date." Ries noted that he had previously seen such disguised signatures in more than two hundred cases.
Ries identified two principal forms of attempted disguises appearing in Cooper's signatures on the mortgage documents. First, he noted that although Cooper's disputed signature was smaller and more condensed than her exemplar signatures, it nevertheless retained the internal characteristics of her genuine signature. Second, Ries noted that the disputed signature used a different form of the letter "Z" as Cooper's middle initial.
Ries offered the same conclusion as to the authenticity of Vashti's signature. Her disputed signature included a very unusual capital "S" placed in the middle of the name "Vashti," which also was written with less of a slant than her normal signature. Ries also noted a "speed R" in Vashti's last name, "Brouwers." Because of these obvious errors, he concluded that Vashti's signature on the mortgage documents was an intentional disguise.
On cross-examination, Ries admitted that it is difficult for a person to use disguised writing. Nevertheless, he explained that repeating a disguised signature numerous times, as he believed had happened here, becomes easier because the writer can refer back to and replicate the previous version of the signature. He noted that it would be more difficult, by contrast, to write with disguised writing for an entire paragraph of non-repetitive text.
Upon considering this testimony, the trial judge issued an oral decision on August 12, 2010 in favor of Emigrant. The judge rejected Cooper's testimony that she had not been aware of the mortgage until the fire in July 2008, because she had admitted previously receiving a communication from Emigrant in April 2008. The judge also found that Vashti's testimony professing her own ignorance of the mortgage before the fire likewise was not credible because she had written and had been aware of checks to Emigrant in April and May 2008.
The judge observed that the testimony of Emigrant's title clerk, Kohl, significantly undermined defendants' credibility. The judge accepted Kohl's testimony that at every closing she normally collects two forms of identification from the signatories and then compares their appearance.
The judge specifically adopted the expert testimony of Ries over that of Leonard. The judge agreed with Ries that defendants, in essence, had gone "out of their way" to make obvious differences in their signatures. Even so, the signatures reflected certain immutable and genuine writing habits that revealed defendants' failed attempt to disguise their signatures. In sum, the judge concluded that the signatures were genuine and that defendants had unsuccessfully attempted to disguise them as forgeries.
Final judgment was thus issued in favor of Emigrant on September 7, 2010. The court thereafter denied defendants' motion for a new trial. This appeal ensued.
Defendants first argue that the trial court's factual findings were against the weight of the evidence and comprise a miscarriage of justice. Most fundamentally, defendants challenge the trial judge's finding that they had intentionally disguised their signatures on the mortgage documents so as to appear forged. As part of this argument, defendants contend that the trial judge mistakenly construed Leonard's expert testimony as advancing an opinion that the same person forged both Cooper and Vashti's signatures. Defendants also submit that the judge erroneously criticized Leonard for not focusing upon whether the alleged forgerer was left-handed or right-handed. Defendants also take issue with the judge's factual finding that Cooper and Vashti must have been aware of the mortgage prior to the July 2008 fire.
Before addressing these specific points, we first consider the broader subject of disguised handwriting. We also consider the insights that expert testimony can provide concerning whether a particular signature is forged or, conversely, is a deliberate attempt to make a genuine signature appear to be forged.
As a general matter, handwriting analysis by a witness, performed by making comparisons between handwriting exemplars and disputed writing, is a commonly-accepted method of authentication. See N.J.S.A. 2A:82-1 (authorizing witnesses and factfinders to perform handwriting comparisons to determine authenticity); see also, State v. Carroll, 256 N.J. Super. 575, 593-94 (App. Div.) (allowing a jury to make such comparisons), certif. denied, 130 N.J. 18 (1992); In re D'Agostino, 6 N.J. Super. 549, 555-56 (Ch. Div. 1949) (rejecting testimony by lay witnesses who were unfamiliar with the signatures involved and had no expertise in handwriting analysis), aff'd, 9 N.J. Super. 230 (App. Div. 1950); State v. Skillman, 76 N.J.L. 464, 466-67 (Sup. Ct. 1908) (upholding a conviction for falsifying a will and sustaining the admission of expert testimony concerning a traced signature), aff'd, 77 N.J.L. 804 (E. & A. 1909). In addition, courts have recognized that the fact-finder may make the comparison with or without the aid of handwriting experts. See, e.g., Moore v. United States, 91 U.S. 270, 273-74, 23 L. Ed. 346, 347 (1875).
A disguised signature typically is written by someone who is signing his or her own true name but who wants to make the signature appear forged, so that the signer can later deny having signed the document. See generally, Roger Park, Signature Identification in the Light of Science and Experience,
59 Hastings L.J. 1101, 1122-23 (2008) (providing an overview of the process of signature authentication, highlighting the various proficiency tests and studies that have compared different authentication methodologies).*fn8 One common technique to disguise handwriting is for the author to write in a slow manner that can change the forms of the letters, thereby allowing the author "to later deny the validity of the signature should the need arise." George S. Pearl, The Stopwatch Method of Disguised Signature Identification, 7 J. Forensic Document Examination 65 (1994). Other common methods to disguise handwriting include deliberate changes in writing slant and letter sizes. Ibid.
Courts have recognized the concept of disguised handwriting, which is usually revealed by expert testimony, for over a century. For example, in In re Brown's Estate, 145 P. 591, 602 (Wash. 1915) the Washington Supreme Court, relying upon a treatise by a handwriting expert, observed how "[a] person who sets out to imitate another's handwriting or to disguise his own is likely to be careless about . . . little marks and to make slips which will be sufficient to prove his identity." Similarly, in another early case, McGarry v. Healey, 62 A. 671, 671-72 (Conn. 1905), the Connecticut Supreme Court of Errors upheld the admission of expert testimony that addressed the question of whether a defendant who had denied writing two anonymous letters was indeed the author of those letters. The Court in McGarry permitted such an expert to comment upon whether the "peculiarities [which] mark the handwriting of an individual" could still be manifested, even in a disguised writing. Id. at 672.
Modern cases have similarly acknowledged the field of expertise relating to disguised handwriting. See, e.g., In re Special Fed. Grand Jury Empanelled Oct. 31, 1985, 809 F. 2d 1023, 1027-28 (3d Cir. 1987) (upholding an order compelling a grand jury witness to provide an exemplar of disguised handwriting by writing in a backward slant contrary to his normal writing style); State v. Cashen, 544 So. 2d 1268, 1271 (La. App. 4 Cir. 1989) (in which a forensic document examiner testified that handwriting exemplars given by the defendant looked like they had been made by someone trying to disguise his handwriting).*fn9
The concept of disguised handwriting has been recognized in decisional law in our own State for at least fifty years. In Morrone v. Morrone, 44 N.J. Super. 305, 312 (App. Div. 1957), a divorce action, this court considered a wife's denial that she had written certain letters accusing her husband of infidelity. The trial judge had admitted testimony from three handwriting experts, one retained by the husband, one appointed by the court, and another retained by the wife. The husband's and the court's experts opined, based on comparisons of the writing and the standards within the profession, that the letters had been written in the disguised hand of the wife. Ibid. The judge adopted those experts' conclusions and rejected the competing opinion of the wife's expert that the disputed letters had, in fact, been written by the husband. Ibid.
We upheld in Morrone the trial judge's finding of disguised handwriting, noting that the wife's denial of authorship had been "effectively demolished" by the two experts whom she had not retained. Ibid. We noted that the testimony of those two handwriting experts was "clearly admissible" and was properly accorded evidential weight by the judge in his fact-finding role. Ibid. Indeed, as an historical note, we pointed out in Morrone that the testimony of a handwriting expert had similarly "proved to be a crucial element in the State's case" in the famous Lindbergh kidnapping trial. Ibid. (citing State v. Hauptmann, 115 N.J.L. 412, 432-35 (E. & A.) cert. denied, 296 U.S. 649, 56 S. Ct. 310, 80 L. Ed. 461 (1935)).
In the present case, the trial judge likewise had the benefit of opinion testimony from defendants' handwriting expert, Leonard, and from Emigrant's own handwriting expert, Ries. The trial judge ultimately found Ries's opinion -- that defendants had signed the mortgage documents and had attempted to disguise their handwriting -- to be more credible than that of Leonard, who had offered a contrary view. Among other things, the judge found persuasive Ries's identification of the "internal features" of the contested signatures, which revealed their authenticity.
Where qualified experts present opposing opinions on disputed issues, the trier of fact may accept the testimony or opinion of one expert and reject the other. Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 85-86 (App. Div. 1961). This principle flows out of the well-known proposition that jurors, or a judge in a bench trial, have the best "opportunity to hear and see the witnesses and to get a feel for the case that the reviewing court [cannot] enjoy." Twp. of W. Windsor v. Nierenberg, 150 N.J. 111, 132 (1997) (internal quotation marks omitted); see also Becker v. Baron Bros., 138 N.J. 145, 160-62 (1994) (in which the Supreme Court instructed the judge on remand to allow the jury to weigh the "hotly disputed" opinions of two medical causation experts). Consequently, our appellate courts are "reluctant" to interfere with a judge's decision, where the "error asserted is largely a matter of how much weight should be accorded [to] competing expert opinion." Peer v. Newark, 71 N.J. Super. 12, 31 (App. Div. 1961), cert. denied, 36 N.J. 300 (1962).
Applying these principles here, we decline to second-guess the trial judge's conclusion that the expert opinion offered by Ries on the pivotal issue of disguised signatures was more credible than that of Leonard. The judge articulated sufficient grounds to find Ries's analysis more persuasive than Leonard's analysis. Ries's testimony reflects a host of cogent analytic reasons for his ultimate conclusion that Cooper and Vashti had tried to make their signatures on the mortgage documents appear to be forgeries. Moreover, the judge had a unique opportunity to see and hear the two competing experts and to develop a "feel" for their individual credibility, which also warrants our deference. Nierenberg, supra, 150 N.J. at 132 (internal quotation marks omitted).
Defendants criticize the trial judge for misconstruing certain aspects of Leonard's testimony. First, they point out that the judge was under the misimpression that Leonard had opined that the signatures of Cooper and Vashti had been forged by the same individual. The judge cited this point as a reason to reject Leonard's opinions because the title clerk, Kohl, had testified that three persons attended the closing with her, and in light of Kohl's testimony, two of those persons would have done nothing at the closing if the third person had signed all the documents. The record reflects, however, that Leonard actually testified that the disputed signatures for each respective signatory were signed by one person -- not that the combined disputed signatures of both purported signatories were signed by a singular individual. Thus, on this point, the judge was mistaken. We do not regard this discrete mistake sufficient to undermine the judge's overall fact-finding. The judge considered many factors in weighing the credibility of the experts and, indeed, all of the witnesses who testified. This isolated mistake does not render the judge's overall credibility assessments invalid. See Pellicer ex rel. Pellicer v. St. Barnabus Hosp., 200 N.J. 22, 55 (2009) (recognizing that "even a large number of errors, if inconsequential, may not operate to create an injustice" and require a civil judgment to be set aside).
Defendants further criticize the judge for his expressed concerns about whether the signatories were left-handed or right-handed. To be sure, the judge did pose a question to Leonard about Cooper's dominant hand during Leonard's testimony, to which Leonard replied that she could not tell conclusively which hand was dominant from the signatures. In contrast, Ries offered an opinion that Vashti's handwriting had a "normal right-hand slant." In his oral decision, the judge commented on this difference, citing it as another reason to find Leonard's expert opinion less persuasive than that of Ries.
We agree with defendants that the judge's focus on handedness was misplaced, in the absence of foundational expert testimony establishing that whether the document signer is left-handed or right-handed is relevant to an analysis of whether a signature is a disguised forgery. Even so, it is clear from the opinion that the judge's interest in this particular question was not the linchpin of the ultimate ruling. Defendants have overstated the importance of this subsidiary point in the judge's overall analysis. We are not persuaded to set the court's decision aside on this basis.
A third challenge to the trial court decision raised by defendants is the judge's finding that both Cooper and Vashti knew about the mortgage prior to the month of July 2008 when the house was damaged by a fire. There is ample credible evidence in the record, including their own testimony, to support this finding.
With respect to Cooper, the judge found significant her testimony regarding her unsuccessful attempt to investigate a message from Emigrant Mortgage concerning a lien on her property in April 2008, about three months before the fire. Cooper claimed that the Emigrant representative she spoke with would not discuss the mortgage with Cooper because it was not in her name. Nevertheless, because Cooper admitted that she gave the Emigrant representative her name, and because her name was on the mortgage, we determine it was reasonable for the judge not to believe that Emigrant would have refused to speak to her.
The record also supports the judge's finding that Vashti knew of the mortgage before July 2008. Vashti testified that she found a check, allegedly signed by Hendrikus, made payable to Emigrant, that had been drawn on her account in April 2008. Vashti admitted speaking to her bank about this transaction. She also admitted to writing a check payable to Emigrant in May 2008, although she contended she did not include the handwritten reference to the mortgage number. There is ample support for the judge's finding that Vashti, in fact, knew about the mortgage and the judge's rejection of her contrary assertions.
In sum, despite the few minor errors in the trial judge's decision identified by defendants, the record more than adequately contains substantial credible proof to support the judge's ultimate conclusion that defendants' signatures on the mortgage documents were genuine, and that they were bound by those instruments. See C.B. Snyder Realty, Inc. v. BMW of North America, Inc., 233 N.J. Super. 65, 69 (App. Div. 1989) (instructing that appellate courts should not disturb a trial judge's factual findings and credibility assessments unless they are "so wide of the mark" to warrant relief) (internal quotation marks omitted), certif. denied, 117 N.J. 165 (1989).
Defendants further argue that the trial court should have granted their motion for a new trial after the court rendered its decision on the merits. We disagree. The new trial motion was essentially predicated on the same arguments now being raised on appeal. A new trial is warranted where there has been a "miscarriage of justice under the law." R. 4:49-1(a). See also Bender v. Adelson, 187 N.J. 411, 435 (2006). Defendants have not surmounted this high bar. There was no such demonstrated miscarriage of justice here. In essence, the judge reasonably found Emigrant's witnesses and proofs more credible than those of defendants, something that the judge was entitled to do as the trier of fact. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974).
The last issue we address is defendants' claim that the trial court should not have excluded the alleged confession of forgery that Hendrikus made to Reverend Deline at the meeting convened by Cooper. We reject this contention of error, given the circumstances of that meeting as described in the trial record.
N.J.S.A. 2A:84A-23, also codified at N.J.R.E. 511, directs that "[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." The statute broadly defines "cleric" to include any "person or practitioner authorized to perform similar functions of any religion." Ibid.
Both the penitent and cleric must agree to waive the statutory privilege unless the confession has to do with a "future criminal act." Ibid. There is no evidence that Hendrikus provided such a waiver in this case, regardless of the cleric's willingness to testify. Moreover, the criminal act in question -- forgery -- concerned past, not future, conduct.
In State v. J.G., 201 N.J. 369, 383 (2010), the Supreme Court recently interpreted the cleric-penitent privilege. The Court held that to invoke the privilege "the communication must be made (1) in confidence, (2) to a cleric, [and] (3) in the cleric's professional character or role as a spiritual advisor." Ibid. There is no bright-line test to determine whether adequate proof has been presented as to each of these elements. Rather, the Court in J.G. adopted an "objective reasonableness standard that allows for consideration of all the facts . . . ." Ibid.
Here, it is undisputed that Reverend Deline qualifies as a cleric within the meaning of N.J.S.A. 2A:84A-23 and N.J.R.E. 511. Cooper testified that after allegedly discovering the mortgage, she "asked for a meeting with the reverend and [Vashti and Hendrikus] because now it was not easy in our house.
The fighting, the yelling, the screaming, the crying I mean there was no peace . . . ." Because of that discord, Cooper arranged to have the reverend meet with her and the two family members at the hotel room where they were staying in order "to bring some kind of peace or talk to see how [Hendrikus] would pay the bank back."
Cooper's testimony supports the judge's finding that she had summoned the reverend to speak in confidence about their family difficulties. As Cooper herself phrased it, she had turned to the reverend "to bring some kind of peace," a role typical for a spiritual advisor. Moreover, Hendrikus, Cooper, and Vashti were all members of Deline's church, and Cooper herself was an associate pastor there. The religious nexus is clear.
Defendants have not shown that the trial judge abused his discretion in concluding that any confession made by Hendrikus in this setting was privileged under N.J.S.A. 2A:84-23 and N.J.R.E. 511. See Twp. of W. Windsor v. Nierenberg, 345 N.J. Super. 472, 479 (App. Div. 2001) (applying an abuse of discretion standard in reviewing of evidentiary rulings on appeal), certif. denied, 171 N.J. 443 (2002); see also Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010); Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999).
The judge did not prevent the reverend from taking the witness stand altogether. In fact, the reverend was permitted to and did testify about other interactions that he had with the parties, apart from the meeting at which Hendrikus allegedly confessed. Although, in an ideal world, it would have been useful for the court to have the benefit of foundational testimony from Hendrikus explaining his personal understanding of the purpose of the meeting, that possibility did not exist here because Hendrikus had disappeared. Even so, the described context of the meeting with the reverend is one that the trial judge reasonably regarded as one in which a cleric had been called upon to give spiritual advice.
If, as defendants posit, Hendrikus had indeed forged their names on the mortgage documents, his confession of such a wrongful act to a cleric would provide an occasion for potential spiritual guidance and redemption. There was an ample basis for the trial judge to deem such proof privileged, and to consequently exclude it.
The trial court also had the discretion to exclude the sonin-law's alleged hearsay confession as failing the elements of an admissible statement against interest under N.J.R.E. 803(c)(25). The record does not establish that Hendrikus would have been aware that his confession to the reverend at a family meeting arranged by his mother-in-law would be non-privileged and could subject him to civil or criminal liability. See State v. McGuire, 419 N.J. Super. 88, 138 (App. Div.) (affirming the exclusion of an alleged statement against interest where the record failed to show the declarant's awareness of potential legal consequences), certif. denied, 208 N.J. 335 (2011).
Even if, for the sake of argument, we assume the privilege did not apply and the reverend had testified about Hendrikus's alleged confession, it is by no means clear that such testimony would have been so weighty as to overcome the evidential force of Emigrant's proofs, including the expert testimony of its handwriting analyst, Ries. Given that Cooper, Vashti, and Hendrikus were all relatives, the probative value of the supposed confession by Hendrikus could have been readily questioned as a possible contrivance, one designed to protect Cooper and Vashti from personal liability on the mortgage. This prospect of intra-family bias clearly lessens the evidential significance of this excluded proof. Cf. United States v. Abel, 469 U.S. 45, 52, 105 S. Ct. 465, 469, 83 L. Ed. 2d 450, 457 (recognizing the relevance of bias in assessing "the accuracy and truth of a witness's testimony").
In addition, there was no other competent proof corroborating Hendrikus's supposed oral confession. For example, defendants' expert, Leonard, did not compare the disputed signature samples of Hendrikus's signature and identify any common characteristics. Defendants have not established that the judge's exclusion of the alleged confession was so harmful to their interests as to warrant a new trial. See Nicosia v. Wakefern Food Corp., 136 N.J. 401, 412 (1994) (declining to order a new trial in a civil case where the trial court's errors were not shown to be harmful).