Commonwealth v. Vital (Lawyers Weekly No. 11-068-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑845 Appeals Court COMMONWEALTH vs. DANIEL VITAL.[1] No. 12‑P‑845. Plymouth. March 6, 2013. ‑ May 31, 2013. Present: Katzmann, Meade, & Sullivan, JJ. Indecent Assault and Battery. Abuse Prevention. Intimidation of Witness. Witness, Intimidation, Privilege. Privileged Communication. Evidence, Privileged communication, Testimonial privilege. Practice, Criminal, Trial of complaints together. Complaints received and sworn to in the Plymouth Division of the District Court Department on July 3 and July 25, 2008. The cases were tried before Christopher D. Welch, J. Katherine Godin for the defendant. Laurie Yeshulas, Assistant District Attorney, for the Commonwealth. KATZMANN, J. A District Court jury found the defendant guilty of (1) indecent assault and battery on a child under the age of fourteen, G. L. c. 265, § 13B, (2) violation of an abuse prevention order, G. L. c. 209A, § 7, and (3) intimidation of a witness, G. L. c. 268, § 13B. The defendant now appeals. The principal issue before us is whether the defendant’s pastor violated the priest-penitent privilege, G. L. c. 233, § 20A, when he testified as to inculpatory statements made by the defendant. See generally Mass. G. Evid. § 510 (2013). A secondary issue before us is whether joinder of the offenses for trial was proper. We affirm. Background. A jury could have found as follows. In the summer of 2008, the defendant was living with the victim’s grandparents. The defendant was a friend of the grandparents. The victim, who was twelve years old at the time, was also living in the grandparents’ home, along with her parents and her brother. On the evening of July 3, 2008, the victim was asleep in the living room, which is where she slept at night, and awoke to find the defendant lying on top of her. The defendant had lifted up the victim’s shirt and began to pinch her breasts with his fingers and lips. The defendant then used his mouth to suck on the victim’s breasts. In all, the defendant touched the victim for about twenty to twenty-five minutes. The victim, who testified at trial that she was frightened during the incident, did not speak while the defendant touched her. Once he had finished, the defendant told the victim that “this isn’t fair” and “promise you won’t tell anybody.” After the victim agreed not […]