State v. Willis, 165 N.H. 206

Background

In 1997 defendant Ernest Willis (then 39) had sexual relations with C.A. (then 15) while both attended the Trinity Baptist Church; allegations included intercourse in a car and in C.A.’s home.
The pastor, Charles Phelps, learned of the relationship in 1997; Phelps reported it to police and DCYF. The police investigation stalled and the matter was reopened in 2010. Willis was interviewed (audio-recorded) by police in May 2010.
Willis was indicted on multiple counts: two aggravated felonious sexual assault (AFSA) counts and felonious sexual assault (FSA) counts (statutory rape). He pleaded guilty to one FSA (home) count; the remaining counts were tried to a jury.
At trial the State introduced (a) testimony from Pastor Phelps describing two statements by Willis — that he had sex with C.A. “twice” and that he was the “aggressor”; and (b) a partially redacted audio recording of Willis’s 2010 police interview. Willis moved to exclude both on privilege and Rule 403 grounds.
The trial court admitted Phelps’s testimony (finding the communications not privileged or waived) and most of the recorded interview (with redactions and a limiting instruction). Willis was convicted; he appealed arguing erroneous admission of the pastor’s statements (religious/clergy privilege) and portions of the police interview. The New Hampshire Supreme Court affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether pastor Phelps could testify about Willis’s statement that Willis was the “aggressor” (made in presence of pastor’s wife and Willis’s wife)	State: statement not privileged because it was not confidential (third party present)	Willis: communication was privileged clergy-penitent communication	Held: No privilege — presence of an extraneous third party (pastor’s wife) destroyed confidentiality; admission affirmed
Whether Willis’s statement to Phelps that he had sex with C.A. “twice” (one-on-one) was protected by the clergy privilege	State: not protected because child-abuse mandatory-reporting statute and Rule 505 mean statements indicating child abuse are not objectively confidential	Willis: statement was a confidential “confidence” to clergy in professional character	Held: No privilege — because statutes require clergy to report suspected child abuse, communicant cannot reasonably expect confidentiality; admission affirmed
Whether portions of the 2010 police interview (officers’ statements implying C.A. had no motive to lie) were inadmissible under Rule 403 / impermissible credibility vouching	State: officers’ statements provided context for Willis’s responses and were legitimate interrogation technique	Willis: statements unduly prejudicial/opinion on witness credibility and should have been excluded	Held: Admissible — officers’ motive-to-lie questions provided context and probative value; danger of unfair prejudice not substantial; admission affirmed
Whether officers’ references to an anonymous 1997 DCYF report (implying forcible rape and the case reopening) were unduly prejudicial and should have been excluded	State: references gave necessary context for Willis’s evasive, shifting answers and showed consciousness of guilt	Willis: references improperly suggested unadmitted corroborating evidence boosting victim credibility and prejudiced jury	Held: Statements should not have been admitted, but error was harmless — the trial court’s prompt, clear limiting instructions cured the prejudice; conviction affirmed

Key Cases Cited

State v. Melvin, 132 N.H. 308 (N.H. 1989) (third-party presence destroys clergy privilege; privilege narrowly construed)
Trammel v. United States, 445 U.S. 40 (U.S. 1980) (purpose of clergy privilege: encourage confidential spiritual counseling)
State v. J.G., 990 A.2d 1122 (N.J. 2010) (clergy-penitent privilege analysis focuses on objectively reasonable expectation of confidentiality)
Dubria v. Smith, 224 F.3d 995 (9th Cir. 2000) (police interrogation comments provide context; limiting instructions often cure admission errors)
State v. Cordova, 51 P.3d 449 (Idaho Ct. App. 2002) (distinguishes acceptable interrogation accusations from officer statements creating an aura of special reliability)
State v. Yates, 152 N.H. 245 (N.H. 2005) (limiting instructions may be insufficient where most probative content is inadmissible and remaining material is cumulative)
State v. Lopez, 156 N.H. 416 (N.H. 2007) (broad prohibition on witness testimony opining on other witnesses’ credibility)