Commonwealth v. Nutter

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13-P-918 Appeals Court
COMMONWEALTH vs. WAYNE NUTTER.
No. 13-P-918.
Hampden. September 8, 2014. - April 8, 2015.
Present: Berry, Kafker, & Maldonado, JJ.
Rape. Child Abuse. Privileged Communication. Evidence,
Privileged communication, Communication to clergyman,
Polygraph test, Business record. Witness, Privilege,
Polygraphic test. Constitutional Law, Polygraph test,
Confrontation of witnesses. Due Process of Law, Polygraph
test. Practice, Criminal, Mistrial, Conduct of prosecutor,
New trial. Registrar of Motor Vehicles, Records.
Indictments found and returned in the Superior Court
Department on February 10, 2011.
The cases were tried before Peter A. Velis, J., and a
motion for a new trial was heard by him.
William W. Adams for the defendant.
Katherine A. Robertson, Assistant District Attorney, for
the Commonwealth.
BERRY, J. A Superior Court jury convicted the defendant of
two counts of aggravated rape and abuse of a child, G. L.
c. 265, § 23A. In this appeal, the defendant claims that the
2
trial judge erred in: (1) admitting inculpatory statements the
defendant made to his former pastor during a telephone
conversation, because the statements were protected by the
priest-penitent privilege, G. L. c. 233, § 20A; (2) failing to
grant a mistrial after the defendant's wife testified that she
had asked the defendant to take a lie detector test; and (3)
admitting a certified copy of a record from the Registry of
Motor Vehicles in violation of the defendant's confrontation
rights under the Sixth Amendment to the United States
Constitution. The defendant also claims the judge abused his
discretion in denying the defendant's motion for a new trial.
In his motion for a new trial, the defendant claimed that there
was prosecutorial misconduct in deliberately eliciting
inadmissible testimony -- i.e., the defendant's wife's statement
that she had asked him to take a lie detector test. We affirm.
1. Background. The following is taken from the trial
record. There was trial evidence that in approximately 2000,
the defendant began sexually abusing his then six year old
stepdaughter (victim). According to the victim's testimony, the
abuse continued until approximately 2010, when she was almost
sixteen years old. In early October, 2010, the defendant met
his wife at a Dunkin' Donuts in Westfield for several hours to
3
discuss their pending divorce.1 During that meeting, the
defendant's wife asked the defendant if he had done anything
sexual to the victim. The defendant responded that he had gone
into her room two times between November, 2009, and January,
2010, and "touched her on the top and on the bottom and that he
didn't know if he had penetrated."
After this meeting, the defendant called Pastor Christopher
Hazzard, of St. John's Lutheran Church, who had previously
counseled the defendant and his wife. At trial, Pastor Hazzard
testified that the defendant had told him that the victim had
said her accusations of sexual abuse were not a dream, and that
he did not remember whether he had done it. The defendant also
admitted to Pastor Hazzard that he had told his wife "what he
thought [she] wanted to hear so that he could have a shot of
keeping the kids."
2. Priest-penitent privilege. The defendant argues that
the judge erred in denying his motion in limine to exclude
Pastor Hazzard's testimony, because the defendant's statements
to the pastor were made in the course of seeking spiritual
guidance, comfort, and counsel, and therefore were protected by
the priest-penitent privilege under G. L. c. 233, § 20A. That
statute states:
1
When divorce proceedings were commenced and by whom are
unclear from the record. At trial, the defendant's wife
testified that she was still legally married to the defendant.
4
"A priest . . . or ordained or licensed minister of any
church . . . shall not, without the consent of the person
making the confession, be allowed to disclose a confession
made to him in his professional character, in the course of
discipline enjoined by the rules or practice of the
religious body to which he belongs; nor shall a priest
. . . or ordained or licensed minister of any church . . .
testify as to any communication made to him by any person
in seeking religious or spiritual advice or comfort, or as
to his advice given thereon in the course of his
professional duties or in his professional character,
without the consent of such person."
G. L. c. 233, § 20A, inserted by St. 1962, c. 372. See
generally Mass. G. Evid. § 510 (2014). Prior to trial, the
judge held an extensive voir dire hearing to determine the
applicability of the priest-penitent privilege.2
During the hearing, Pastor Hazzard explained that for a
time he had regularly met with the defendant and his wife and
counseled them on marital and parenting matters. However, after
the defendant's wife obtained a restraining order against the
defendant, Pastor Hazzard suggested that the defendant "seek
spiritual aid and counsel at a different congregation." The
defendant did so. After that date, Pastor Hazzard had limited
contact with the defendant, other than an occasional telephone
call.
Pastor Hazzard also testified that, in early October, 2010,
while attending a conference at a retreat center in Westfield,
2
The parties filed cross motions in limine regarding the
application of the priest-penitent privilege. See G. L. c. 233,
§ 20A.
5
he received a telephone call from the defendant. The defendant
was "pretty distraught," and there "seemed to be a lot of
remorse, a lot of sorrow, a lot of tears." During the telephone
call, the defendant admitted to Pastor Hazzard that he had told
his wife that he had touched the victim. The defendant
explained "he wanted to have the kids back, and [the defendant]
felt that if he said what [his wife] wanted to hear that maybe
the kids would be able to [come] back to him." However, the
defendant also told Pastor Hazzard that he did not remember
whether he had actually touched the victim.
Pastor Hazzard did not view the defendant's statements to
him during the telephone call as a pastoral confession.3 It
appeared to the pastor that the defendant's purpose in calling
him was to look for someone who could bring some influence to
bear on the situation and act as a middle man between the
defendant and his wife. The pastor's initial impression was
that the defendant was seeking "comfort," but in the sense that
he was seeking someone to show him sympathy and intervene on his
3
During the voir dire hearing, Pastor Hazzard testified
that there is a formal process for confession and absolution in
the Lutheran Church and that it would be extremely unusual for
him to take a confession and profess absolution over the
telephone. Although not dispositive, as the statute applies not
only to confessions, but to communications as well, we think it
relevant that the defendant's statements to Pastor Hazzard were
made outside the "rules or practice of the religious body to
which [the pastor] belong[ed]." G. L. c. 233, § 20A. See Mass.
G. Evid. § 510.
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behalf. Pastor Hazzard thought that "it could be manipulation
as well," on the theory that the defendant might have recognized
that his statements were incriminating and that the defendant
might have felt a "need to cover [his] tracks." The next day,
the judge ruled that Pastor Hazzard's testimony was not barred
by the priest-penitent privilege. The judge's ultimate finding
was "that the [defendant's telephone] call itself was not made
for the sole purpose of seeking spiritual advice and counsel and
not even for the main purpose of seeking spiritual advice and
counseling."
The priest-penitent privilege is "strictly construed and
applies only to communications where a penitent seek[s]
religious or spiritual advice or comfort." Commonwealth v.
Vital, 83 Mass. App. Ct. 669, 672 (2013), quoting from
Commonwealth v. Kebreau, 454 Mass. 287, 301 (2009). Whether the
defendant's communications are protected under the terms of the
statute is a question of law. Id. at 303. Part of the
analysis, however, involves factual determinations concerning
the defendant's intent. Such factual determinations are for the
trial judge. Ibid.
In Kebreau, the defendant attended a family meeting in a
Haitian Baptist Church classroom at the "urging of his wife and
his wife's pastor to discuss a 'family issue.'" Ibid. The
judge held that the defendant's inculpatory statements during
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the meeting were not privileged, as "the nature of the
defendant's participation in the meeting was not 'for the
purpose of seeking spiritual advice or comfort,' but rather to
avoid what the judge characterized as the 'train going right at
[the defendant's] forehead.'" Ibid. Similarly, in Vital, this
court held that a trial judge properly allowed a pastor to
testify as to his conversations with the defendant because he
had communicated with the pastor to ask him to convince the
victim and her family to settle the allegations of abuse in the
church instead of in court, rather than for religious or
spiritual advice. Commonwealth v. Vital, supra at 671-674.
Viewed in this light, here, the trial judge did not err in
admitting the defendant's statements to Pastor Hazzard. The
defendant in the instant case, like the defendants in Kebreau
and Vital, did not communicate with Pastor Hazzard to receive
"religious or spiritual advice or comfort." G. L. c. 233,
§ 20A. Pastor Hazzard's testimony established that the
defendant feared losing his children, may have suspected that
criminal charges were possible, and, according to the pastor,
was looking for "anyone that could bring to bear any kind of
influence on the situation" and act as a "middle man" between
the defendant and his wife. It seems clear that the defendant,
like the defendants in Kebreau and Vital, did not call Pastor
Hazzard to receive spiritual comfort, as the defendant urges,
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but rather sought to enlist the pastor's assistance in an
attempt to avoid the possible consequences of his admissions --
i.e., the "train going right at [the defendant's] forehead."
Commonwealth v. Kebreau, supra at 303.
The judge permissibly found that the defendant had
"switched churches," and that as a consequence there was "a lack
of membership" at St. John's Lutheran Church. These findings
are supported by the record. Pastor Hazzard testified that he
had asked the defendant to seek spiritual guidance elsewhere,
that the defendant had done so, and that the pastor's
relationship with the defendant at that point was "very
ambiguous." While not dispositive, "since the statute plainly
applies to 'any person . . . seeking religious or spiritual
advice,'" the lack of an ongoing pastoral relationship between
the defendant and Pastor Hazzard, and the defendant's lack of
continued attendance at St. John's Lutheran Church, were
appropriate factors for the judge to consider in determining the
defendant's intent in calling Pastor Hazzard. See ibid.
(defendant's prior sporadic contact with pastors and lack of
regular attendance at church was relevant to determining purpose
in attending family meeting at church). These factors further
support the conclusion that the communications were not made to
Pastor Hazzard "in his professional character." G. L. c. 233,
§ 20A. See generally Mass. G. Evid. § 510.
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3. Polygraph reference and motion for mistrial. At trial,
the defendant's wife testified that during her conversation with
the defendant at Dunkin' Donuts in early October, 2010, she had
asked the defendant "if he would take a lie detector test."
Defense counsel objected and moved to strike. At a sidebar
conference, the judge admonished the prosecutor for failing to
comply with his prior ruling that that type of testimony should
not be mentioned.4 The defendant moved for a mistrial. The
4
On the previous day of trial, defense counsel had orally
moved to exclude any reference to a polygraph test. The
prosecutor contended that the defendant's statements were
admissible as admissions by a party opponent. See Mass. G.
Evid. § 801(d)(2)(A) (2014). A sidebar conference concerning
the polygraph test and the defendant's comment that he would
fail was not definitive, but the judge seemed to signal he would
exclude the conversation between the defendant and his wife.
Defense counsel: "[D]uring that conversation, [the wife]
asked him to take a lie detector test, and
he commented on that. I would ask that that
be excluded."
The court: "Do you want that in?"
Prosecutor: "Well, he said 'I would fail.' He didn't say
'I'm not.' He said, 'I would fail.'"
The court: "I'm not going to cloak her to the aura, the
crime element with the aura from the fact finder
or a credibility determined, A, she, 'You take a
lie detector test?' Do you want that type of
testimony in? You are not serious?"
Prosecutor: "Well, what I'm really trying to get in, Your
Honor, is the Defendant's statements . . . "
The court: "His statement is coming in. Did he say, 'Give
me a lie detector test?['] Do you want that? Do
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prosecutor explained that she had misunderstood the judge's
previous ruling and that she believed the statement was
admissible as a statement by a party opponent. Having found no
misconduct on the part of the prosecutor, the judge issued a
forceful curative instruction. Specifically, the judge
instructed the jury: "[Y]ou are to totally ignore, put out of
your minds, disregard, never consider any testimony that you may
have heard regarding a lie detector test. You are to totally
you want that? She asked him, 'Would you take a
lie detector test.'"
Prosecutor: "And he said, 'I would fail.'"
...
The court: "Well, she's [the prosecutor] doing it through
the evidence. When do we hear from [the
defendant's wife]? [She] is going to say what he
said, right? That's his statement, and his full
statement if she so requests, okay, so that it is
complete, but I guess I don't know why he said
that and I don't know if she intends to put in
his full statement."
...
Prosecutor: "And I have instructed her not to orchestrate
that part of what he said was involving his two
children which I have instructed her not to get
into, but through cross-examination, I don't
know. I don't know where that is going to go,
but I have made it clear and I take it to the
issue of the other kids."
The court: "But for tomorrow -- are we all set on how I have
ruled?"
Prosecutor: "Yes, Your Honor."
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disregard any testimony that you may have heard regarding a lie
detector test."
The defendant contends that the prosecutor deliberately
failed to follow a clear directive from the judge and the
judge's curative instruction to the jury to ignore the testimony
was insufficient to cure the prejudice caused, and that, as a
consequence, reversal is compelled and the judge abused his
discretion in denying the defendant's motion for a mistrial. We
reject these contentions.
First, from all that appears, the prosecutor did not act in
bad faith, or knowingly attempt to violate the judge's ruling.
Indeed, the judge stated that he accepted the prosecutor's
explanation that she had misunderstood his statements and final
position at the sidebar conference concerning exclusion of the
defendant's admission to his wife that he would fail a
polygraph. Consistent with the prosecutor's misunderstanding,
there does seem to be some ambiguity in the ultimate rulings at
the sidebar conference. See note 4, supra.
Second, while "polygraph evidence is inadmissible for any
purpose in a criminal trial," Commonwealth v. Martinez, 437
Mass. 84, 88 (2002), an isolated reference to a polygraph test
does not, per se, constitute reversible error, nor warrant a
mistrial. See Commonwealth v. Corcione, 364 Mass. 611, 620
(1974). "Where a party seeks a mistrial in response to the
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jury's exposure to inadmissible evidence, the judge may
'correctly rel[y] on curative instructions as an adequate means
to correct any error and to remedy any prejudice to the
defendant.'" Commonwealth v. Kilburn, 426 Mass. 31, 37-38
(1997), quoting from Commonwealth v. Amirault, 404 Mass. 221,
232 (1989). "Generally, as long as the judge's instructions are
prompt and the jury do not hear the inadmissible evidence again,
a mistrial is unnecessary." Kilburn, supra at 38. Here, the
judge's curative instructions were prompt, forceful, and fully
instructed the jury to completely ignore the singular and brief
reference to the polygraph test. See Commonwealth v. Williams,
450 Mass. 645, 651 (2008) ("Jurors are presumed to follow a
judge's instructions, including instructions to disregard
certain testimony").
4. Registry of Motor Vehicles (RMV) record. Equally
unpersuasive is the defendant's contention that the introduction
of a certified copy of a record from the RMV showing his image,
license status, and demographic information, including his date
of birth, violated his confrontation rights under the Sixth
Amendment. See Melendez-Diaz v. Massachusetts, 557 U.S. at 309-
329. The certified record contained information maintained by
the RMV in the ordinary course of business and for the
administration of the RMV's affairs, and not for the purpose of
proving some fact at trial. As a result, the admission of the
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RMV record did not violate the defendant's confrontation rights.
See Commonwealth v. McMullin, 76 Mass. App. Ct. 904, 904 (2010).
A clerk's certificate authenticating the RMV record does not
change this result. See Commonwealth v. Parenteau, 460 Mass. 1,
9 (2011). "Unlike the certificates at issue in Melendez-Diaz,
which are created solely to prove an element of the
prosecution's case, RMV records are maintained independent of
any prosecutorial purpose and are therefore admissible in
evidence as ordinary business records." Commonwealth v. Ellis,
79 Mass. App. Ct. 330, 335 (2011).
5. Motion for a new trial. Finally, the defendant claims
the judge abused his discretion in denying the defendant's
motion for a new trial. In his motion for a new trial, the
defendant alleges prosecutorial misconduct -- i.e., the
prosecutor deliberately elicited testimony from the defendant's
wife that she had asked the defendant if he would take a
polygraph test. "A motion for a new trial is addressed to the
sound discretion of the judge, and the judge's disposition of
the motion will not be reversed unless it is manifestly unjust,
or unless the trial was infected with prejudicial constitutional
error." Commonwealth v. Moore, 408 Mass. 117, 125 (1990)
(citations omitted). As previously discussed, the judge found
no prosecutorial misconduct and accepted the prosecutor's
assertion that she had misunderstood his previous ruling. From
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all that appears in the record, that finding is well supported.
"Reversal for abuse of discretion is particularly rare where [as
here] the judge acting on the motion was also the trial judge."
Commonwealth v. Schand, 420 Mass. 783, 787 (1995). The motion
for a new trial was properly denied.
Judgments affirmed.
Order denying motion for new
trial affirmed.