38 Mass. App. Ct. 366 | Mass. App. Ct. | 1995
The defendant appeals from his conviction by a Superior Court jury on indictments charging larceny over $250 (sixteen counts) and securities fraud (one count). The
On appeal, the defendant claims the following reversible errors: (1) those portions of the Commonwealth’s opening statement and closing argument to the jury, in which the prosecutor stated that the defendant had been held in civil contempt and then imprisoned for two months in an earlier civil suit brought against him by the victim, together with evidence thereof, were improper; (2) the Commonwealth’s introduction of testimonial and documentary evidence obtained from the defendant under court order in the earlier civil suit was improperly admitted; and (3) the Commonwealth’s development of testimony from a witness concerning his impressions of the terms and possible legal effects of the 1987 agreement between the defendant and the victim was improperly admitted. In addition the defendant claims that the aggregate of the three errors just described rendered the entire proceedings against him fundamentally unfair.
We summarize the facts which the jury could have found from the evidence. The defendant was the principal of B.S.I. and provided financial planning services. The victim, Lillian DiCarlo, had known the defendant for many years and selected him to handle her financial affairs with respect to funds she received from the sale of real estate she had inherited as sole legatee under her late husband’s will.
On December 3, 1987, Lillian DiCarlo and three of her five children, Alice Cataldo DiCarlo, William DiCarlo and Peter DiCarlo, executed an agreement with the defendant, as principal of B.S.I.
Over the next two years, the victim received several monthly payments of $1,600. She also received statements from the defendant on B.S.I. stationery showing, among other transactions, the disbursement of gifts by Fallon of $10,000 to William and Dale DiCarlo, of $30,000 to William DiCarlo and of $40,000 each to Alice Cataldo DiCarlo, Peter DiCarlo and Lillian DiCarlo.
During pretrial discovery in the civil suit, the defendant was repeatedly asked to provide B.S.I. documents and records of the transactions involving the victim’s assets. Upon encountering resistance and occasional outright refusal, the victim finally sought and obtained an order from a Superior Court judge compelling the defendant to produce the re
In response, the defendant provided certain incomplete records which failed to comply fully with the judge’s November 1 order.
During the criminal trial in 1993, the Commonwealth introduced numerous bank records, charts and (over defense objections) portions of the defendant’s deposition testimony and testimony from a contempt hearing — all tending to show a series of complex, convoluted transactions that placed the victim’s funds beyond her reach. The Commonwealth introduced additional financial records to show a scheme on the defendant’s part to create misleading “paper trails” that
1. Reference to civil contempt and previous incarceration. On the first day of trial, prior to opening statements, defense counsel objected to the Commonwealth’s stated intention to refer to the defendant’s having been found in civil contempt and incarcerated as a result. Defense counsel also objected to any reference being made to the findings or rulings of the judge in the civil matter on the contempt issue. Both objections were based on claims of undue prejudice and the alleged absence of any probative value. The judge permitted the Commonwealth to inform the jury during its opening statement that, in response to the judge’s order in the civil suit, the defendant produced some documents but kept others, claiming they were confidential, and that, thereafter, the defendant was found in civil contempt and was imprisoned for two months.
The judge instructed the jury that opening statements and closing arguments are not evidence. The judge then explained that a lesser standard of proof is required in a civil trial. Next, the judge briefly explained the process of discovery in a civil case and stated that the judge in the civil case
We think the defendant was unfairly prejudiced by reference in the Commonwealth’s opening statement and closing argument to the defendant having been held in civil contempt and, in particular, to his having been incarcerated. Although the actual evidence of these matters was introduced by the defendant during his cross-examination of a Commonwealth witness, we believe that the defendant’s action was a legitimate trial tactic aimed at limiting the damage from the judge’s ruling permitting the Commonwealth to refer to the matter in its opening statement. The judge gave the Commonwealth a green light to develop evidence on the issue. Knowing not when, or how, the sharp axe of that evidence might fall, the defendant obviously believed he might soften the blow by setting the time and manner himself. On direct examination, the witness for the Commonwealth (the victim’s attorney at the contempt hearing) had testified in considerable detail about the civil contempt hearing itself. The defendant’s cross-examination of the witness completed the picture by establishing that the defendant had been found in civil contempt and later imprisoned.
The facts and issues underlying the civil contempt finding and incarceration were closely intertwined with, yet different from, the facts and issues in the criminal trial. The defendant’s incarceration for civil contempt resulted not from larceny of the victim’s assets, but rather from his failure to provide a satisfactory accounting of those assets. Nevertheless, the danger was high that individual jurors might not have appreciated that distinction and, therefore, could have inferred guilt if they believed the incarceration arose from the same transactions covered by the larceny indictments. A similar problem arose in Commonwealth v. Gallarelli, 372
Furthermore, evidence, even where highly relevant, may be excluded as within the judge’s sound discretion, if its probative value is outweighed by the risk of unfair prejudice. Liacos, Massachusetts Evidence § 4.3, at 130 (6th ed. 1994), and cases cited. Balancing the probative value of particular evidence against the danger of uncorrectable prejudice is a determination to be made by the trial judge, and, absent abuse of discretion or “palpable error,” will not be reversed on appeal. Commonwealth v. Robertson, 408 Mass. 747, 750 (1990). Liacos, supra at 132. Here, however, we think there was palpable error in allowing references to, and evidence of, the contempt finding and the defendant’s incarceration, especially in the absence of any cautionary or limiting instructions. Had the evidence been accompanied by a forceful instruction, the effect of the error might have been neutralized. See Commonwealth v. McGeoghean, 412 Mass. 839, 842 (1992) (a limiting instruction “tends to offset any improper prejudicial effect of evidence that might be thought to show the defendant’s bad character . . . and focuses the jury’s attention on the proper application of the evidence”). See also
On this basis, we think the situation here stands in marked contrast to Commonwealth v. Helfant, 398 Mass. 214, 224-229 (1986), where evidence of the defendant’s acts of prior misconduct with two female patients — he injected them with a drug and then sexually molested them — was admitted as relevant to his disputed criminal intent. In Helfant, the judge instructed the jury that they could consider that evidence only on the drugging indictment, not on the rape indictment, and only for the limited purpose of proving the defendant’s possible plan, scheme, or state of mind. Id. at 226.
We believe that the same considerations should apply when weighing prejudicial effect against probative value, whether, as in Helfant, the evidence is of prior conduct, similar or identical in character to that being tried or, as here, is directly connected to the criminal matter at hand. See Commonwealth v. Gallarelli, 372 Mass. at 580. The dangers are the same: namely, that the jury may be unduly swayed by the extraneous evidence and may improperly use it to convict.
Reference beyond the civil contempt finding to the defendant’s incarceration may well have left the jury with the distinct impression that, because the defendant had already been jailed in connection with the civil matter, he likely was guilty in the criminal matter as well. Admission of evidence of the civil contempt finding and of the defendant’s subsequent incarceration, without cautionary or limiting instructions, was error requiring reversal of the convictions.
2. We briefly take up the defendant’s other claims in the event the issues arise in a subsequent trial.
Testimonial and documentary evidence obtained from the defendant under court order in the civil case was properly
3. The testimony of the Commonwealth’s expert witness, William Baldwin, was also properly admitted. Notwithstanding the defendant’s contention, Baldwin was properly qualified as an expert, and the subject of his testimony (construing the terms and likely effects of the defendant’s agreement with the victim) legitimately could have assisted the jury in their understanding of the complex issues in the case and in making their ultimate factual determinations. See Commonwealth v. Lanigan, 419 Mass. 15, 25 (1994). Opinions offered by the witness, including that the defendant engaged in self-dealing and conflict of interest, were relevant as to the issue of an over-all scheme on the defendant’s part to defraud the victim.
The judgments are reversed, the convictions are set aside, and the case is remanded for a new trial.
So ordered.
The victim’s other two children, Joseph DiCarlo and Michael DiCarlo opposed their mother’s sale of the real estate and did not join in the agreement with the defendant. Each elected to take his share of the proceeds outright as a $336,000 cash payment.
Lillian DiCarlo testified that, in fact, she never received $40,000 from the defendant.
The order required the defendant to produce all relevant documents and a complete accounting of what had been done with the victim’s funds including (1) whether any of the funds had been disbursed and, if so, to whom and for what reason; (2) where the funds were invested or reinvested; and (3) to whom the proceeds from any investments or reinvestments had been distributed. The defendant was also required to appear for a deposition to be arranged by the victim’s counsel.
For example, the defendant supplied copies of the faces of checks drawn on the victim’s account, many of which had been made out to multiple payees, but failed to supply copies of the backs of the checks, thus making it impossible to identify the endorsements.
As reasons for refusing to disclose information, the defendant reasserted certain confidentiality provisions contained in his agreements with other third-party investors, provisions which he claimed precluded him from revealing the identity of these parties, in whom he had made investments out of the victim’s funds.
In its opening remarks, the Commonwealth stated: “[T]he defendant was held in contempt because he wouldn’t tell [the victim] where the
The following exchange took place between defense counsel and the witness:
Defense Counsel: “Now, ultimately, after all these depositions, and after the contempt hearing with [the civil trial judge], the bottom line was that [the judge] found Mr. Fallon in contempt, is that right?”
The Witness: “That’s correct.”
Defense Counsel: “Sent him to jail for sixty days, is that right?” The Witness: “Correct.”
Defense Counsel: “And Mr. Fallon said I’ll gladly go, didn’t he?” The Witness: “I don’t think he said that.”
Defense Counsel: “Did he say: I’m standing up for a principle and, by God, I’ll go for as long as I have to?”
The Witness: “He never said that.”
Defense Counsel: “You never heard him say that?”
The Witness: “I never heard him say that.”
Defense Counsel: “I’ve no further questions [at this time.]”
The Commonwealth stated: “And under what principle is it that he’s allowed to not tell [the victim] where the money is when a Civil Judge says give it back? This defendant went to jail for two months for one and only one reason. [B]ecause he had a million and a half of [the victim’s money] and he didn’t want to give it back. That’s why he went to jail.”
On defense request, the judge instructed the jury that, because there was no evidence in the civil case that the defendant had been ordered to give the victim’s money back, the jury was not to consider that statement.
See also Helfant, supra at 229 n.14, where the court again highlighted “the clarity and forcefulness of the judge’s thrice-repeated instructions” and her “careful and conservative approach to the evidence.”