People v. Bragg

Decision Date08 May 2012
Docket NumberDocket No. 305140.
Citation296 Mich.App. 433,824 N.W.2d 170
PartiesPEOPLE v. BRAGG.
CourtCourt of Appeal of Michigan — District of US

OPINION TEXT STARTS HERE

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Toni Odette, Assistant Prosecuting Attorney, for the people.

Law Offices of Raymond A. Cassar, PLC, Farmington Hills (by Raymond A. Cassar), for defendant.

Before: GLEICHER, P.J., and METER and DONOFRIO, JJ.

GLEICHER, P.J.

Defendant, Samuel Dale Bragg, was bound over for trial on a first-degree criminal sexual conduct charge, based in part on the testimony of Pastor John Vaprezsan, who shared with the district court defendant's admission to having sexually assaulted defendant's then nine-year-old cousin. The circuit court quashed defendant's statement to the pastor under the cleric-congregant privilege,1 leading to the prosecution's interlocutory application for leave to appeal. Because defendant's communication to Vaprezsan was privileged and confidential under MCL 767.5a(2), we affirm the circuit court's exclusion of that evidence from defendant's trial. 2

It is important to note at the outset the limited nature of the issue before us for review. We are not faced with a pastor who learned of ongoing or future criminal activity and struggled over whether to report it to the authorities. We are not asked to consider whether a cleric may speak to the police concerning information conveyed with an expectation of privacy. Today, we consider only whether a cleric may reveal in court a congregant's statements made in confidence.

I. FACTUAL AND PROCEDURAL HISTORY

In the summer of 2007, the then nine-year-old victim spent a three-day weekend at the home of her aunt, K.,3 who lived there with her two children, then 15–year–old defendant and 10–year–old H. According to the victim, K. required her to spend the first night of her visit in the same bed as defendant. The victim awoke in the middle of the night when defendant pulled down her pants and underwear. He then penetrated her rectum with his penis. When the victim tried to yell, defendant allegedly pushed her face into a pillow and threatened to kill her if she told anyone. The second night of her visit, K. allowed the victim to share a bed with H. The victim alleged that defendant came into the room in the middle of the night while H. was sleeping. Defendant allegedly put his hand inside the victim's pants and fondled her buttocks and vaginal area. The victim told defendant to stop and moved closer to H., who did not awaken. In the morning, the victim informed K. that defendant had come into H.'s room. She asked if she could sleep in K.'s room that night. K. agreed and confronted defendant, who denied having gone into H.'s room the night before. The victim testified that defendant later reminded her of his earlier threat.

The victim told no one of these events until 2009, when she was 11 years old. After hearing a church sermon on purity, the victim revealed the 2007 assaults to her mother. The victim's mother shared the information with her husband, and the family reported the events to the Belleville Police Department. The victim's family then approached Vaprezsan, the pastor of the Baptist church they attended, for counseling and advice.

Defendant and his mother, K., were parishioners at the same church. Vaprezsan had known defendant since he was five years old, and K. was employed as the church secretary. After hearing the victim's story, Vaprezsan telephoned K. and asked her to bring defendant to the church as soon as possible for a meeting. K. and defendant arrived at the church at 11 p.m., after defendant's work shift ended. Vaprezsan met with defendant and K. in his office, where he allegedly elicited defendant's confession. Vaprezsan shared the content of defendant's statements with the victim's family, who then provided the statements to the police. A Belleville police detective later contacted Vaprezsan, who furnished a written statement detailing his conversation with defendant.

The prosecution ultimately charged defendant with first-degree criminal sexual conduct in violation of MCL 750.520b. At a preliminary examination conducted before 34th District Court Judge Brian A. Oakley, the prosecution sought to introduce the pastor's testimony regarding his conversation with defendant. Defendant objected, raising the statutory cleric-congregant privilege. Defendant contended that Vaprezsan heard defendant's statements while acting in his role as a pastor. He argued that K.'s presence did not vitiate the evidentiary privilege because defendant was a minor. The prosecutor responded that defendant's age at the time of the communication lacked relevance and the presence of a third party rendered the privilege inapplicable.

The district court adjourned the examination and requested that the parties supplement their arguments. When the hearing continued two weeks later, defendant reiterated his argument that K.'s presence in Vaprezsan's office did not eliminate the privilege. Defendant noted that Vaprezsan had summoned both K. and defendant to his office, leaving defendant no opportunity to challenge her participation. Defendant further noted that K.'s attendance was essential because he was a minor at the time of the meeting. Defendant cited Bassil v. Ford Motor Co., 278 Mich. 173, 178, 270 N.W. 258 (1936), overruled in part on other grounds by Serafin v. Serafin, 401 Mich. 629, 634 n. 2, 258 N.W.2d 461 (1977), for the proposition that “the presence of one sustaining an intimate family relation” during an otherwise confidential meeting does not waive the evidentiary privilege. Defendant also raised a public policy argument premised on the danger of court invasion into religious relationships.

The prosecutor responded by referring to MCL 600.2156, which prohibits ministers from disclosing confessions. Although the prosecutor conceded that Vaprezsan was a religious minister to whom the privilege would apply under the correct circumstances, she contended that defendant's statements were not “confessions” protected by the statute because they were made in front of a third party. The prosecutor argued that by allowing K. to attend the meeting, defendant essentially waived the privilege, negating that defendant's statements to Vaprezsan had been made in the course of discipline enjoined by the church as contemplated by MCL 600.2156. The prosecutor insisted that Vaprezsan had summoned defendant; defendant did not “seek out [Vaprezsan] to unburden his soul, to seek penance.”

The district court admitted the evidence, stating:

I don't think who ... initiates the conversation is the end all and be all. But, I think it's an indication that this was not a communication between the defendant and his pastor, uh, where there was any discipline involved, which is required under [MCL] 600.2156. Or, that it was the type of communication that is necessary for the pastor to be a pastor, which is the definition of [MCL] 757.5a(2) [sic]. Um, the pastor's statement is; that after repeated questioning, the defendant quote, end quote, broke down. That doesn't sound like the defendant was there for, uh, any kind of forgiveness, any kind of, uh, religious counseling, or anything else.

Um, quite simply, I don't think this case meets the definition of a confession in the ... generally accepted religious, uh, definition of the word. And, as such, I'm going to allow the pastor ... to testify today.

The pastor then took the stand and testified that he called defendant and K. into his office without forewarning them of the topic for discussion. Vaprezsan admitted that defendant and K. likely believed that they were being summoned for counseling on some issue. In response to defense counsel's inquiry, the pastor explained that he requested K.'s presence during the meeting even though it was not required because defendant was a minor and it was “the right thing to do.”

Once inside his office, Vaprezsan shared the information he had learned from the victim “to find out ... from [defendant] ... if this did occur” and, if so, “to deal with ... the aftermath.” During the conversation, Vaprezsan was “upset” and “very controlling” because he “was angry at the sin and what sin causes.” Vaprezsan denied “screaming” at defendant, claiming that he approached the situation as “a loving broken hearted pastor.” The first step “to get[ting] some help” was to uncover the truth. Vaprezsan testified that defendant initially denied the allegations. Vaprezsan “reasoned with” defendant, asking him why his cousin would fabricate such a story. Defendant allegedly broke down, began to weep and admitted the accuracy of the details provided by the victim. Vaprezsan consoled defendant “with [his] spirit, with [his] attitude, with [his] love for [defendant].” During this interview, K. remained in the room, [q]uiet and weeping.” When the interview was over, Vaprezsan prayed with defendant and K., and “asked God to—to help us through this and help [defendant].”

Defense counsel questioned the pastor about the Baptist Church's position on “keeping confidences.” Vaprezsan, who had been a pastor for 38 years, replied that he was taught that [t]here's no need in others knowing personal matters, that are discussed with me.” Vaprezsan stated that confidentiality is a key to promoting communications between clergy and congregants and that he had preached his duty of confidentiality from the pulpit. The prosecutor inquired, [U]nder the Baptist doctrine, under your church rules, would this communication that you had with him, and the nature how the communication came about, would that be ... considered a confidential communication?” Vaprezsan responded, “I'm sure it would.” He immediately qualified his statement, indicating that disclosing the “confidential” communication with...

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    ...precludes a cleric from revealing the covered statements to anyone , not simply before a court of law." People v. Bragg , 296 Mich.App. 433, 824 N.W.2d 170, 181 (2012) (emphasis added). Further, although Defendant cites the Michigan invasion of privacy tort to argue that Michigan tort law r......
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