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Commonwealth v. Nutter

Appeals Court of Massachusetts, Hampden

April 8, 2015

Commonwealth
v.
Wayne Nutter

Argued September 8, 2014.

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.

Judgments affirmed. Order denying motion for new trial affirmed.

Page 261

William W. Adams for the defendant.

Katherine A. Robertson, Assistant District Attorney, for the Commonwealth.

Present: Berry, Kafker, & Maldonado, JJ.

OPINION

[28 N.E.3d 2] 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 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 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, [28 N.E.3d 3] 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 counselled 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, ...


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