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Parishioners who are going to confess to a crime and want to keep it confidential under the cleric-penitent privilege should take care their clergyman doesn’t wear any other secular hat. That’s the message of a New Jersey Appellate Division ruling Thursday in the case of a man who confessed to a Baptist deacon who is also a state trooper. The three-judge panel denied the privilege, finding that while the deacon played a spiritual role with the defendant, he also functioned as a law enforcement officer by issuing Miranda warnings, searching him and helping him surrender. “The uncontested evidence … reflects a dual role” played by John Perry in his relationship with murder suspect David Cary, Judge Steven Lefelt wrote in State v. Cary, A-3969-99. Perry “acted as both deacon and police officer.” The appeals court judges reversed Essex County, N.J., Superior Court Judge Harold Fullilove, who had applied the privilege to Cary’s statement to Perry that Cary had shot two people two days earlier. Fullilove granted a motion by Assistant Deputy Public Defender Yvonne Smith Segars to suppress that confession under N.J.R.E. 511, which renders communications made in confidence to a cleric privileged. The ruling, for publication, traces the tortuous course of the privilege, from its beginning with a 1947 statute, through a series of amendments and case law. Lefelt — joined by Judges Michael King and Jack Lintner — agreed that the privilege remained murky, particularly on the critical issue of the definition of a cleric. But in the end, the panel sidestepped the question of whether Perry fit the cleric definition, ruling that even if he did, he had simultaneously stepped into a police officer’s role. And because of that, the privilege must fall. The judges performed a balancing test, saying they must “protect the policy driving the privilege without too broadly impairing the trial’s search for the truth.” They cited the state Supreme Court’s 1969 decision in State v. Briley, 53 N.J. 498, which held that such privileges must be narrowly construed and “are accepted only because in the particular area concerned, they are regarded as serving a more important public interest than the need for full disclosure.” Therefore, quoting Briley, the appeals judges said privileges should always “be construed and applied in a sensible accommodation to the aim of a just result.” For the privilege to apply, the communication must be made (1) in confidence, (2) to a cleric and (3) to the cleric in his or her professional character or role as a spiritual adviser. The judges struck down the privilege on the third element, saying they need not address the ambiguities of the other two. Perry’s involvement in the case began shortly after Cary’s Feb. 7 attendance at Sunday services at the Second Baptist Church in Belleville. After the service, Cary visited privately with the pastor, Lucious Williams, seeking guidance about an altercation the previous Friday night in Newark, N.J. According to testimony at the suppression hearing, Perry first met with Williams, and learned that Cary had come “to turn himself in, because he got in trouble with the law.” The pastor brought in Perry, a recently ordained deacon, still in liturgical robes. The two clerics then met with Cary, at which point Perry divulged that he is a trooper. While the judges found some discrepancies between Perry’s police statement and later court testimony on the issue of when he gave Cary a Miranda warning — either at some undefined point or definitely after Cary’s request to surrender — there seems no dispute that the warning was given. The appeals panel made clear that it was not ruling on whether the statement was inadmissible under Miranda, leaving open the possibility for Cary to lodge a Miranda claim on the grounds that it was incomplete or given after his confession. Perry also said he frisked Cary in traditional police style, having him stand against a wall with arms and legs spread. Hillary Brunell, Essex County’s executive assistant prosecutor, argued before the court on May 10 that the search and Miranda warnings demonstrated that Perry was functioning as a police officer and that Cary had to have known that. After the warning, Cary continued to talk about the Friday night altercation, even though Perry was not interrogating him, and in fact spent part of the session in prayer with him, according to the opinion. Perry then called the police, and Newark police officers soon arrived to take Cary to headquarters. Perry accompanied Cary to headquarters. After initially balking, Perry told detectives that Cary admitted shooting a gun during the altercation and believed he killed someone. Of the two men shot, both bystanders, one had died. Judge Fullilove, citing N.J.S.A. 2A:84A-23 and N.J.R.E. 511, which both define the cleric-penitent privilege, found that Perry was a cleric under the statute and “as such is prohibited from waiving the privilege without defendant’s consent.” Lefelt focused on the Evidence Act of 1960, which expanded the privilege’s coverage by protecting confessions and confidential communications made to a clergy member in his or her “professional character” or as a spiritual adviser. N.J.S.A. 2A:84A-23, the 1947 act, had only applied to confessions to clergy members or ministers. A 1994 New Jersey Supreme Court ruling, State v. Szemple, 135 N.J. 406, conferred the privilege only on the clergy member, finding that the penitent had no power to preclude disclosure. That narrow interpretation prompted an immediate amendment by the Legislature, granting the privilege to penitent as well as clergy member. After citing a series of cases, the appeals court found that the law remained muddy as to what constitutes a cleric, but found merit to the defense position that Perry was a cleric — even though he had never preached a sermon — primarily because he backs up the pastor, visits the sick and administers spiritual guidance. Nevertheless, the judges then put the issue aside and concentrated on whether Perry was acting solely in his “professional character” as cleric on the morning of Feb. 7. In backing its position, the court cited a 1986 New York appellate case, State v. Drelich, 506 N.Y.S.2d 746, which struck down the privilege because the defendant went to a rabbi and confessed, though he primarily discussed retention of counsel and his negotiations with the prosecutor’s office. The defendant subsequently conceded that he went to this rabbi because of his “connections” in the secular world, not for spiritual help. The appeals panel also cited an Oklahoma case, Masquat v. Maguire, 638 P.2d 1105 (1981), where the court struck down the privilege because the cleric was also a hospital administrator and was approached in the latter capacity. “Given the fact that Cary knew Perry was a State Trooper and that Perry warned Cary of his right to remain silent and searched Cary, it is difficult to comprehend how Cary could have ‘reasonably expected’ that his communications with Perry would remain confidential,” Lefelt concluded.

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