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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.
                                                                     6


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
                                                                     7


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,
                                                                   8


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.
                                                                   9


     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
                                                                   10


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."
                                                                     11


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
                                                                     12


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
                                                                  13


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
                                                                  14


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.
