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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.