Monday, January 4, 2010
Bless Me Father: Court Of Appeals Of Mississippi Seemingly Errs In Finding Priest-Penitent Privilege Applied To Conversation In Church Hallway
Mississippi Rule of Evidence 505(b), Mississippi's priest-penitent privilege, indicates that
A person has a privilege to refuse to disclose and prevent another from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual advisor.
As the language of the Rule makes clear, there are two requirements for invocation of the privilege: (1) the subject communication must have been confidential, and (2) the subject communication must have been made to a clergyperson in his professional character as spiritual advisor. In its recent opinion in Williams v. State, 2009 WL 4808181 (Miss.App. 2009), the Court of Appeals of Mississippi seemingly confused these two requirements.
In Williams, David Jackson Williams was convicted of murder based upon his alleged killing of Demetria Bracey. According to Williams, however, Demetria killed herself pursuant to a mutual suicide pact. Specifically, he claimed that, pursuant to that pact,
he and Demetria each consumed substantial amounts of alcohol and that they each swallowed ten Klonopin tablets. Williams stated that Demetria then stabbed herself with one of his kitchen knives. Williams stated that he was supposed to stab himself at the same time. According to Williams, he tried to stab himself, but his knife did not go in far enough, and he lost consciousness because of the pain, alcohol, and prescription drug he had taken.
To corroborate his claim, Williams sought to introduce the testimony of Father Ollie Rencher, the Assistant Rector at St. Peter's Episcopal Church in Oxford, which Demetria had attended. At trial, defense counsel began asking Father Rencher about a discussion he had with Demetria on Good Friday, and Father Rencher answered, "I'm not comfortable with this" when asked whether he advised Demetria "to seek medication." Thereafter, "[o]utside of the jury's presence, the circuit court asked Father Rencher whether he was of the opinion that his response would be subject to the priest-penitent privilege. The following exchange then transpired:"
A. I do. We did not have a confidential conversation on that day. I did see her that day as do many people pass through [sic] the church property on that day but we did not have any sort of counseling as it were as Priest Penitent like other people who made their confession on that day in a Priest Privilege way.Q. But you did advise her to seek medication on that day did you not?A. When I saw her in passing she was very anxious as she had been on occasion and I asked her[, “]are you seeing a counselor[”] and she said she was at times and I said[, “]I hope that that continues to improve.[”]Q. But that doesn't answer my question. I asked if you told her, let me quote you.... Did you state to the investigator Mr. Moore[, “]I think I even asked her are you taking medication and she said no, I'm not. I said, you might look into it.[”]A. That sounds like something I would have said based on that moment, yes.BY MR. FRANKS: And, judge, I did not ask him what she said to him and the [R]ule 505 says it applies to confidential communication by the person to a clergy man. [sic]BY THE COURT: Did this occur at the church let me ask you that question, were you at the church[?]A. In a hallway at the church.BY THE COURT: I'm going to allow the witness not to answer that question any further and instruct you not to ask him about it in the presence of the jury as falling within the confidential relationship.
Williams's attorney asked, “[d]id she advise you at any time that she had considered suicide?” Father Rencher answered, “I cannot under privilege disclose that.” The circuit court allowed Father Rencher to claim the privilege.
After Williams was convicted, he appealed, claiming, inter alia, that the trial court improperly permitted Father Rencher to invoke the priest-penitent privilege. The Court of Appeals acknowledged that Father Rencher himself said that his communication with Demetria was not confidential but concluded,
Despite Father Rencher's statement, we find that the circuit court was entitled to find that the conversation was confidential based on the circumstances under which it occurred. Namely, Demetria sought the advice and counseling of a priest at her church, and she did so after Good Friday services while still at church.
Here is where the court seemingly erred. The fact that Demetria sought the advice and counseling of a priest at her church after Good Friday services while still at church goes to the issue of whether the subject communication was made to a clergyperson in his professional character as spiritual advisor. It does not go to the issue of whether the communication was confidential. On that issue, the court should have focused on whether the communication took place in private, where other people likely would not have overheard the conversation, or in public, where other people easily could have overheard the conversation. Here, Father Rencher clearly indicated that the communication took place in a church hallway after Good Friday services and that the conversation was not confidential.
This plainly showed that the communication was not confidential. Instead, one of the "many people pass[ing] through" the church after Good Friday services easily could have heard the conversation. Thus, the Court of Appeals should have reversed.
According to the court, though, even if the privilege did not apply, any error by the trial court was harmless because
Nothing in the proffer of Father Rencher's testimony indicated that Demetria mentioned suicidal thoughts during her encounter with Father Rencher on Good Friday 2005. Father Rencher merely stated that Demetria appeared "stressed out” at that time. Based on that observation, Father Rencher advised Demetria to seek counseling and medical treatment, including the possibility of prescription medication. That evidence did not tend to prove that it was more likely that Demetria committed suicide more than six months later. We find that, based on the record at trial, Williams was not prejudiced by the circuit court's decision to allow Father Rencher to claim the priest-penitent privilege regarding the events that transpired on Good Friday 2005. Accordingly, any error in allowing Father Rencher to claim the priest-penitent privilege was harmless.
What? Of course nothing in the proffer of Father Rencher's testimony indicated that Demetria mentioned suicidal thoughts during her encounter with Father Rencher. He invoked the priest-penitent privilege. The question is what Father Rencher would have said if the court did not allow him to invoke the privilege, not what he said after the court found that the communication was privileged. Heck, the Court of Appeals even acknowledged that "[p]resumably, Demetria had mentioned suicidal thoughts at some point, and Father Rencher considered that discussion to be covered by the privilege." That being the case, how could the court find harmless error?