State v. Szemple

• Court: United States State Supreme Court (New Jersey)
• Writing for the Court: GARIBALDI; CLIFFORD; O'HERN; WILENTZ
• Citation: 640 A.2d 817,135 N.J. 406
• Decision Date: 12 May 1994
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Craig SZEMPLE, Defendant-Appellant.

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135 N.J. 406 640 A.2d 817 STATE of New Jersey, Plaintiff-Respondent,
v.
Craig SZEMPLE, Defendant-Appellant. Supreme Court of New Jersey. Argued Oct. 12, 1993.
Decided May 12, 1994.

George T. Daggett, argued the cause for appellant (Daggett & Kraemer, attorneys).

Joseph Connor, Jr., Asst. Prosecutor, argued the cause for respondent (W. Michael Murphy, Jr., Morris County Prosecutor, attorneys).

J. Michael Blake, Asst. Deputy Public Defender, argued the cause for amicus curiae Public Defender (Zulima V. Farber, Public Defender, attorney).

[640 A.2d 819] Catherine A. Foddai, Deputy Atty. Gen., argued the cause for amicus curiae Atty. Gen., of New Jersey (Fred DeVesa, Acting Atty. Gen., attorney).

Ronald K. Chen and Sally Frank submitted briefs on behalf of amicus curiae The American Civil Liberties Union of New Jersey.

Alan L. Zegas submitted a letter brief on behalf of amicus curiae Ass'n of Criminal Defense Lawyers of New Jersey.

The opinion of the Court was delivered by

GARIBALDI, J.

This case involves the reach of two separate evidentiary privileges: the marital-communications privilege and the priest-penitent privilege. First, we address whether the marital-communications

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privilege, Evidence Rule 28, ¹ N.J.S.A. 2A:84A-22, prevents the admission of an inculpatory letter that defendant sent to his wife and that the wife's father then took without permission. Second, we consider who holds the priest-penitent privilege, Evidence Rule 29, N.J.S.A. 2A:84A-23. If the clergyperson or the penitent, alone, holds the privilege, then that person can waive it unilaterally. If, however, both the clergyperson and the penitent hold the privilege, both must consent to its waiver. I

Defendant, Craig Szemple, was charged in Morris County with first-degree murder, unlawful possession of a thirty-two caliber handgun, and murder while armed with that handgun. He was also indicted for murder in Warren and Hudson Counties. The Morris County indictment alleged that defendant shot a sixteen-year-old boy, Nicholas Miroff, to death in 1975. After the State had rested its case in the jury trial on that charge, it sought to reopen its case to present two admissions of guilt that defendant had allegedly made. The first admission was contained in a letter written to his wife that her father had discovered. The second admission was a confession defendant had made while in jail to a Minister of Visitation.

After an Evidence Rule 8 hearing, the trial court determined that neither the marital-communications privilege nor the priest-penitent privilege protected the admissions. The trial court granted the State's motion to reopen its case to present the two admissions. Rejecting defendant's argument that the new evidence

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caused unfair surprise, the trial court denied defendant's motion for a mistrial.

On interlocutory appeal, the Appellate Division reversed the trial court's denial of defendant's motion for mistrial and granted leave to appeal to review the trial court's ruling that the evidentiary privileges did not apply. The Appellate Division, with one judge dissenting, upheld the trial court's evidentiary rulings. 263 N.J.Super. 98, 622 A.2d 248 (1993). We granted leave to appeal pursuant to Rule 2:2-1(a)(2) and now affirm.

A

The facts related to defendant's claim of the marital-communication privilege are as follows. Early in 1991, after defendant was arrested, Theresa Boyle, defendant's wife, asked her father, Michael Boyle, to help her move. In the process of sorting through numerous boxes that Theresa had packed, Michael Boyle discovered some folded sheets of white paper that he identified as a letter from defendant to Theresa. He "said to [himself,] I don't know nothing about this guy and this looks like its going to be something for me to look at," so he kept the letter. At that time Mr. Boyle was worried about his daughter and did not know anything about defendant, other than that he was in jail on a murder charge. Mr. Boyle concealed the letter from his daughter by sticking it under his shirt. He carried it out to his pickup truck and placed it there in a plastic bag.

[640 A.2d 820] Mr. Boyle took the letter back with him to his home in North Carolina and "forgot about it." Several weeks later, he discovered the letter and finally read it. After deciphering defendant's handwriting, Mr. Boyle came to the conclusion that the letter was "dynamite," specifically page eight, which contained the following description of a murder that defendant had committed:

My first hit was an act of treachery, the ultimate deceit. 4 Bullets in the back 1 in the neck and a broken promise made at the parting of the oncoming river. I never did tell his mother what happened to him. The second I pulled that trigger, I became larger than death to all of my associates.

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Mr. Boyle returned to New Jersey several months later, and gave a copy of the letter to his former wife, Theresa Boyle's mother. Mr. Boyle's ex-wife communicated with an attorney to inquire whether the letter would be helpful to the prosecutor, but was informed that the prosecutor did not need the letter because the State already had enough evidence against defendant. Based on that advice, neither Mr. Boyle nor his ex-wife disclosed the existence of the letter to the authorities.

Almost a year later, Mr. Boyle asked his daughter about the status of defendant's cases. When his daughter told him the charges were being dropped, Mr. Boyle drove to New Jersey from North Carolina and gave the letter to the Morris County prosecutor's office. Mr. Boyle had never told his daughter that he had the letter. When Theresa Boyle discovered he had the letter and had given it to the prosecutor, she became very angry. He testified that his "daughter won't have nothing to do with [Michael Boyle] now."

The prosecutor presented evidence that tied the statement in the letter to the murder. The trial court ruled that the letter was admissible. Although the letter would have been privileged under Evidence Rule 28 if Theresa had retained possession, the court held that the privilege no longer applied once Mr. Boyle, without Theresa's aid, consent, or connivance, obtained possession of the letter.

B

The facts regarding the priest-penitent privilege are as follows. While in prison, defendant confessed his guilt to Paul Bischoff, a Minister of Visitation. Mr. Bischoff, a retired Newark firefighter, served with Trinity Baptist Church in Montville. He became a deacon in the church in 1974. According to Mr. Bischoff, the church elders, feeling that he had the gift to minister to those of God's people who are in need of the gospel, ordained him as a Minister of Visitation. The elders signed a "certificate of ordination" recognizing Mr. Bischoff's position. As a Minister of Visitation,

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Mr. Bischoff visited members of the congregation and persons in hospitals, psychiatric wards, penitentiaries, and nursing homes, to comfort them and discuss their religious needs and concerns.

In his capacity as a visiting minister Bischoff met with defendant in jail about nineteen times between April 1991 and January 1992. In October 1991, defendant admitted to Bischoff that he had killed "not one but three." Bischoff, who had known defendant's family for at least twelve years, reported defendant's admission to defendant's sister and brother-in-law. One of defendant's family members related the admission to the prosecutor's office.

II

We begin our analysis by reviewing well-established principles regarding evidentiary privileges. As a general proposition, privileges are to be narrowly construed. United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039, 1065 (1974); State v. Schreiber, 122 N.J. 579, 582-83, 585 A.2d 945 (1991). That rule of construction stems from the fact that privileges "contravene the fundamental principle that ' "the public ... has a right to every man's evidence." ' " Trammel v. United States, 445 U.S. 40, 50, 100 S.Ct. 906, 912, 63 L.Ed.2d 186, 195 (1980) (quoting United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884, 891 (1950)). They "are obstacles in the path of the normal trial objective of a search for ultimate truth." State v. Briley, 53 N.J. 498, 506, 251 A.2d 442 (1969); see also State v. Dyal, 97 N.J. 229, 237, 478 [640 A.2d 821] A.2d 390 (1984) (holding that because testimonial privilege "precludes admission of relevant evidence, it is restrictively construed"); State v. Bodtmann, 248 N.J.Super. 100, 101, 590 A.2d 259 (Law Div.1990) (noting that privilege that "obstructs the search for truth ... must be construed restrictively").

Because privileges may often "undermine the search for truth in the administration of justice," Dyal, supra, 97 N.J. at 237, 478 A.2d 390, they are accepted only to the extent that they

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outweigh the public interest in the search for truth. Trammel, supra, 445 U.S. at 50, 100 S.Ct. at 912, 63 L.Ed.2d at 195. "They 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." Briley, supra, 53 N.J. at 506, 251 A.2d 442. Thus, privileges should always "be construed and applied in sensible accommodation to the aim of a just result." Ibid. III

The marital-communications privilege, Evidence Rule 28, N.J.S.A. 2A:84A-22, prevents disclosure by a spouse of confidential communications made during marriage except under specified circumstances. At the time of defendant's trial, Evidence Rule 28 provided in pertinent part:

No person shall disclose any communication made in confidence between such person and his or her spouse unless both shall consent to the disclosure.

The Legislature amended the marital-communications privilege by Act of November 17, 1992, L.1992, c. 142. Evid.R. 28, N.J.S.A. 2A:84A-22. The amendment substantially relaxes the privilege to permit...