People v. Thompson

• Decision Date: 01 July 1982
• Docket Number: Cr. 13024
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Dale Dean THOMPSON, Defendant and Appellant.

Page 72

184 Cal.Rptr. 72

133 Cal.App.3d 419

The PEOPLE, Plaintiff and Respondent, v. Dale Dean THOMPSON, Defendant and Appellant.

Cr. 13024.

Court of Appeal, Fourth District, Division 1, California.

July 1, 1982.

Quin A. Denvir, State Public Defender, under appointment by the Court of Appeal, Paul Bell, Deputy State Public Defender, and William Pabarcus, Panel Atty., San Diego, for defendant and appellant

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., A. Wells Petersen and Steven H. Zeigen, Deputy Attys. Gen., for plaintiff and respondent.

STANIFORTH, Acting Presiding Justice.

After an unsuccessful motion to suppress statements under the clergyman-penitent privilege (Evid.Code, § 1030), defendant Dale Dean Thompson was convicted by a jury of murder in the first degree for the 1977 killing of Dennis M. Duncan. There was a true finding as to a weapons use in the murder. (Pen.Code, § 12022.5). Thompson was sentenced to the term prescribed by law for the murder and firearm use. He appeals contending the trial court erroneously admitted into evidence the contents of Thompson's conversation with James A. Ward as well as a handwritten "confession" given to Ward. He asserts that his statements, as well as the handwritten confession, were protected by the clergyman-penitent privilege. He further argues that if not protected by the clergyman-penitent privilege, the communications were confidential and should be excluded as part of the counselor-counselee relationship. Thompson also contends the trial court improperly

restricted defense counsel's cross-examination of Ward.

FACTS

About 7 a. m. on August 5, 1977, Dennis M. Duncan was driving his motorcycle on Interstate 5 near H Street in Chula Vista. A dark-colored car occupied by two light-skinned persons approached Duncan's motorcycle. Something protruded out of the driver's window and several shots were fired. Duncan's motorcycle weaved and fell to the ground. The witness to the shooting, Mary Jane Delphenich, was unable to identify the assailants. Duncan suffered four gunshot wounds, including a fatal wound in the chest. The autopsy showed the bullets were .22 caliber, 39 grams and nonjacketed, and they were consistent with those operable in a 350 or 351 series Mosberg rifle.

Reginald J. Fritschle was Thompson's stepfather and owned a .22 semiautomatic Mosberg rifle with a telescopic sight. He noticed the rifle was missing in March 1979. Neither Thompson nor his brother had a key to the house. About the time Fritschle noticed the rifle missing, he saw the landlady take away some of his possessions.

Nearly three years after the shooting, in June of 1980, Thompson was employed as a water softener salesperson in Los Angeles. He had a series of conversations with James A. Ward who was counselor to the salespersons of the Miracle Water Company. Ward's function was to help them increase sales. Virtually all the employees of the Miracle Water Company were members of the Church of Scientology. Ward was introduced to the salespersons as a result of his training in Scientology.

Thompson told Ward he had committed a murder. Ward told Thompson he should write down a confession and turn himself in. Thompson wrote what he had told Ward and gave this written confession to Ward. The writing was introduced into evidence at trial. According to Thompson's written statement he had talked to Rose Duncan, decedent's wife, about her desire to have her husband killed in order to collect insurance monies. He told her he knew someone who could do it for $30,000-$600 in advance and the rest payable from the insurance proceeds. Thompson wrote further that he and his brother planned the shooting. After much practice with the rifle, Thompson and his brother drove past the motorcycle-riding Duncan. Thompson rapidly fired 11 shots, killing Duncan. He then telephoned Rose Duncan to tell her the act had been done. Rose Duncan received $132,105.19 in insurance proceeds. She never paid Thompson any additional monies. A year before the murder (1976) Rose Duncan was convicted of the crime of soliciting someone (other than Thompson) to kill her husband.

Thompson testified and denied personal involvement in the killing. He admitted making the oral and written statements to Ward but explained he did it to test Ward's claim that nothing he could say would upset or shock him. He admitted meeting Rose and Dennis Duncan about four months before Dennis' death; he learned about Duncan's death on the radio; the detailed information contained in his statement to Ward came from facts learned from a combination of television, radio and newspaper accounts and from talking to Rose Duncan.

Thompson testified Ward told him he had reached the level of "operating thetan" ¹ in Ward testified he was trained as an "ethics officer" but he did not hold himself out as an ethics officer. He had not been ordained as an "auditor" or minister of the Church of Scientology. After Thompson orally confessed the murder to Ward, Ward told him it would be better to write it down. Ward told Thompson to turn himself in and if he did not do so, Ward would. Thompson was told this before he wrote out the confession. Ward does not recall telling Thompson his statements were confidential.

the Church of Scientology. Thompson said Ward had assured him that Ward was a minister and anything he told Ward would go no further.

William Smith, owner of Miracle Water, said Ward offered his services as an ethics officer in order to improve sales. The day Thompson talked to Ward, Thompson asked Smith if his statements would be protected from anyone outside Scientology. Smith said yes. Both the magistrate at the preliminary hearing and the trial court held the clergyman-penitent privilege was inapplicable.

DISCUSSION

I

Thompson contends the trial court erroneously admitted the contents of his conversation with Ward as well as his handwritten confession given to Ward.

A penitent has a privilege to refuse to disclose and to prevent another from disclosing a communication made in confidence to a clergyman, who in the course of the discipline or practice of his church, denomination or organization is authorized or accustomed to hear such communications and, under the discipline or tenets of his church, has a duty to keep such communications secret. (See Evid.Code, §§ 1033, 1032; People v. Johnson, 270 Cal.App.2d 204, 208, 75 Cal.Rptr. 605.) A clergyman is broadly defined as a "priest, minister, religious practitioner, or similar functionary of a church or of a religious denomination or religious organization." (Evid.Code, § 1030.) While the privilege is present, there is little guidance to its understanding in the case law or the statute here involved.

Some light comes from out of state authorities. ² In Reutkemeier v. Nolte, 179 Iowa 342, 161 N.W. 290, the court held the unordained elders of the Presbyterian church were subject to the clergyman-penitent privilege. It so held, however, because such elders were responsible for the spiritual life of the church and its members. In In re Murtha, 115 N.J.Super. 380, 279 A.2d 889, a Catholic nun was held not subject to the privilege since the Catholic church did not allow the nun to perform the function of taking confession. In In re Verplank (C.D.Cal., 1971) 329 F.Supp. 433, the federal court pointed out there was no federal law establishing such a privileged communication but declared a communication to a nonprofessional draft counselor confidential. The court reasoned that since a religious leader had been chosen to head the draft counseling services provided by Claremont Colleges, it was anticipated such decisions involving the draft were of a spiritual nature and thus confidential. (Id., at p. 435.) The court found, just as nonprofessional representatives aiding attorneys were subject to the attorney-client privilege, those counselors working directly with the Protestant minister heading the counseling services for draftees were also subject to the privilege because their duties involved in large measure those of the clergyman.

These cases teach that a threshold question must be determined before any privilege applies: What is the nature of the function being performed by the person who received the statement?

People v. Johnson, supra, 270 Cal.App.2d 204, 75 Cal.Rptr. 605, provides some insight on this point. In Johnson, the defendant, following an armed robbery, was chased by police. He crashed the getaway car, ran into a church, and explained his situation to John Piper, the minister. When the defendant approached Piper the latter was in his office, dressed in a business suit, and not in the vestments of the church. Piper suggested the defendant turn himself in and in defendant's presence Piper told police his statement. The court concluded that not every statement made to a clergyman was privileged. (Id., at p. 207, 75 Cal.Rptr. 605.) Rather, it is necessary to show that the statement was made in confidence or in the course of the required relationship. There was no evidence to demonstrate that Piper was authorized or accustomed to hearing such communications nor was it shown he had a duty to keep such statements confidential. (Id., at pp. 207-208, 75 Cal.Rptr. 605.)

In applying these rules to the case at bench, it appears Ward testified he was aiding the Miracle Water Company in an attempt to increase poor sales. While Ward did have training as an ethics officer under the tenets of Scientology, he was not hired as an ethics officer nor was he an auditor of the church authorized to take confidential statements. Ward stated he had studied some teachings of the church; but he was also a Catholic and at no time a staff member of the church. His function with Miracle Water Company was solely as a business consultant whose purpose was to help to improve sales.

Contrary to Thompson's statement, there was no assurance...