42 Mass. App. Ct. 1 | Mass. App. Ct. | 1997
The defendant, Bernardo Nadal-Ginard, was indicted on twenty-two counts of larceny of over $250 in violation of G. L. c. 266, § 30.
A jury found the defendant guilty of twelve counts of larceny. The trial judge declared a mistrial on the remaining ten counts, after the jury failed to reach a verdict thereon.
Despite the voluminous evidence and the intricate nature of the defendant’s challenged transactions, the essence of both the facts and the main legal issue before us is not complex. There is no question that the jury could have fairly inferred from the evidence that certain BCHF checks were drawn, by or at the direction of the defendant, by which BCHF funds either ended up in the defendant’s personal account or were used to pay the defendant’s personal obligations.
In other words, he contends, the only evidence of his culpability was that he may have misappropriated BCHF funds by one means that was properly charged and adequately proved at trial (embezzlement); but the jury were improperly allowed to consider that he may also have done so by another means (false pretenses) not so charged or proved. He thus relies on the unexceptionable principles that a defendant charged with one offense cannot be convicted upon proof of another; and that when a jury returns a general verdict after being allowed to consider a theory of guilt without foundation in the evidence, as well as a theory supported by the evidence, a defendant’s conviction must be reversed because it is impossible to determine whether the jury may have convicted him of an offense the Commonwealth failed to prove.
The defendant is not, however, entitled to that reliance. We
Since the defendant failed to preserve at trial the central issue he presses here, he may be deemed to have waived this argument.
The defendant’s challenge to the propriety of an instruction on larceny by false pretenses fails for several reasons. First, it is premised on a misapprehension as to his position as president. As noted earlier, without advancing any authority whatsoever, he pronounces that he had “rightful possession” of all BCHF funds, including the diverted and converted BCHF checks, “by virtue of his position and office.” Thus, he already possessed them and could not have obtained them by false pretenses or misrepresentation. Therefore, he argues, he could not be guilty of “larceny by false pretenses [because it] ‘differs from embezzlement . . . [where] the property is fraudulently appropriated by a person having rightful possession, whereas in obtaining money by false pretenses the property is acquired in the first instance by the false pretense.’ ”
It should be enough to refute the defendant’s argument simply to restate the clear words of the statute (see supra at note 1): “Whoever steals [etc.] . . . the property of another . . . whether such property is or is not in his possession at the time . . . .” See Commonwealth v. Chavis, 415 Mass. 703, 708 (1993) (“Where the legislative purpose is expressed in clear statutory language, we must construe the statute in accordance with its terms . . .”). The plain purpose of the statute (G. L. c. 266, § 30) merging the former discrete theft offenses was to prevent culpable defendants from escaping punishment because of the subtle distinctions that had been judicially developed, often by accident of history, among the several crimes. See Commonwealth v. Ryan, 155 Mass. 523, 527-530 (1892); Commonwealth v. King, 202 Mass, at 388-389; Commonwealth v. Corcoran, 348 Mass, at 440-441. Given this unmistakable legislative intent, it should be of no material consequence where “possession” technically lay, so long as the evidence enabled the jury to find — as they did here — that the defendant either “fraudulently converted” to his personal use property (here BCHF funds) subject to his control by virtue of his (here conceded) position of “trust or
Moreover, the factual situation regarding the “possession” and control of BCHF’s funds was not as clear-cut as the defendant would have it, but rather was sufficiently muddy and conflicting to justify the submission to the jury on alternative theories of culpability. On the one hand, the defendant’s assertion of automatic “possession” of all BCHF funds by virtue of his presidency is mere ipse dixit. No Massachusetts authority for this proposition is cited or, to our knowledge, exists. To the contrary, as a matter of general corporate law, it is the treasurer, not the president, who is the only proper officer with inherent possessory custody of corporate funds, in the absence of a by-law or directors’ resolution to the contrary. See Merchants Natl. Bank of Gardiner v. Citizens’ Gas & Light Co., 159 Mass. 505, 506-508 (1893); New Hampshire Natl. Bank v. Garage & Factory Equip. Co., 267 Mass. 483, 486-487 (1929); Lydia E. Pinkham Med. Co. v. Gove, 303 Mass. 1, 9 (1939); Cox, Hazen & O’Neal, Corporations § 8.10 (1995).
The by-laws of BCHF did not, contrary to the defendant’s assumption, alter, but rather confirmed, that basic principle. The president was indeed denominated the chief executive officer, with general power of supervision and control over corporate affairs and the expenditure of corporate funds. It was the treasurer, however, not the president, who was expressly given “general charge of the financial affairs of [BCHF]” and, more explicitly, entrusted with the “care and custody of all funds of [BCHF] except as the Directors may otherwise provide.”
On the other hand, any such authorization was not exclusive. The administrator of the department of cardiology, Jacqueline Yarian Harris — who was not a corporate officer — at some point received the authority (presumably from the directors, since the BCHF by-laws conferred check signing authority only upon the president or treasurer) to sign BCHF checks up to $50,000 herself. Checks above that amount required the signatures of both the treasurer and the president. All of the BCHF checks covered by the counts on which the jury returned verdicts of guilty were for amounts under $50,000 and were signed or prepared by Ms. Harris upon the defendant’s oral directions — which the evidence established to have been false or misleading — as to their purpose and destination.
Thus, the jury were confronted with a confusing factual sit
On the facts presented, therefore, there was no error in the judge’s challenged instruction, so there is no issue whether there might have been a miscarriage of justice. A properly instructed jury could rationally conclude that the Commonwealth’s proof was adequate to support both the charge of larceny by false pretenses and the charge of larceny by embezzlement. See Commonwealth v. King, 202 Mass, at 390-392; Commonwealth v. Corcoran, 348 Mass, at 442. Cf. Commonwealth v. Tuckerman, 76 Gray 173, 201-204 (1857); Commonwealth v. Langley, 169 Mass. 89, 95-96 (1897); Commonwealth v. Leland, 311 Mass, at 452.
The jury here were properly instructed on the theories of
In any event, the judge’s instructions, did in fact inform the
The Commonwealth has sufficiently responded to and refuted the defendant’s additional assignments of error, and we need not discuss them further. We do, however, pause to mention the defendant’s motion to strike the Commonwealth’s brief, or particular “offending passages” thereof, for alleged
Judgments affirmed.
General Laws c. 266, § 30, provides, in pertinent part: “Whoever steals, or with intent to defraud obtains by a false pretense, or whoever unlawfully, and with intent to steal or embezzle converts, or secretes with intent to convert, the property of another as defined in this section, whether such property is or is not in his possession at the time of such conversion or secreting, shall be guilty of larceny . . . .” There is no dispute" that the checks and funds at issue in this matter were “property” within the statute. There is also no dispute that those checks and funds were “property of another,” for the reason, if no other, that they belonged to someone other than the defendant. See Commonwealth v. Casale, 381 Mass. 167, 168 (1980); Commonwealth v. Donovan, 395 Mass. 20, 29 n.6 (1985); Commonwealth v. Souza, 397 Mass. 236, 238 (1986).
As to eight of those counts, the defendant had raised the defense of insanity.
The sentence imposed included a sentence as a “common and notorious thief’ because of the defendant’s conviction of at least “three distinct larcenies.” See G. L. c. 266, § 40.
In addition to the issue of the judge’s instructing the jury on the theory of larceny by false pretenses and the related issue of her failing to give an unrequested specific unanimity instruction, discussed below, the defendant has challenged the judge’s: (a) refusing to dismiss nine counts (representing nine separate larcenies over a nine-month period) that the defendant claimed (well after trial was underway) were “duplicitous” (eight of which were placed on file with his consent); (b) excluding as irrelevant evidence regarding contributions of its own funds to a Cleveland art museum by the Rosenthal Foundation, which had also donated funds to BCHF that the defendant was accused of misusing by, among other things, contributing them to a Boston art museum in satisfaction of his personal pledge; (c) denying his motions for a required finding of not guilty at the close of the Commonwealth’s case and after all the evidence was in (see notes 7 & 10, infra); (d) refusing to give a requested “missing witness” instruction as to a witness who was equally available to both sides and not shown to have been more favorable to one side or the other; (e) substituting (in compliance with G. L. c. 234A, §§ 67 & 68) an alternate juror for a deliberating juror dismissed for good cause (with proper instructions to begin deliberations anew); and (f) imposing an allegedly excessive (though neither unlawful nor disproportionate) sentence (an issue raised for the first time on appeal). None of these additional contentions has merit or merits discussion.
The specific checks as to which the defendant was found guilty were the following: (1) A check for $12,000 drawn on BCHF payable to the Institute of Contemporary Art. The defendant was a trustee of the Institute and as such agreed to donate money. He instructed the BCHF business manager, Jacqueline Yarrian Harris, to issue the checks, giving as the reason — a false one — the alleged BCHF corporate decision to do so in order to “prime the pump” to solicit reciprocal donations for BCHF; (2) A BCHF check for $32,000 payable to the Cardiovascular Surgical Foundation (CSF), which the defendant told Harris — falsely — to issue to reimburse CSF for the salary of Debra Kirby, a CSF employee, which created bookkeeping confusion resulting in an exchange of $32,000 checks between BCHF and CSF, one of which the defendant ended up depositing into his personal account; (3) A BCHF check for $1,777.50 payable to CSF to reimburse it for Carl Zeiss Company laboratory equipment, which represented the difference between a separate $19,777.50 CSF check to Carl Zeiss Company that the defendant obtained from CSF for the same equipment
See art. 12 of the Massachusetts Declaration of Rights; Commonwealth v. Fickett, 403 Mass. 194, 198-199 (1988); Commonwealth v. Vinnicombe, 28 Mass. App. Ct. 934, 935 (1990); Commonwealth v. Kickery, 31 Mass. App. Ct. 720, 724-725 (1991). The principle that a jury verdict cannot stand when one theory would support it but another would not and a general verdict prevents our ascertaining on which theory the jury relied, is also applicable in civil cases. See Davis v. Allard, 37 Mass. App. Ct. 508,
The defendant had earlier made motions for required findings of not guilty, which had been denied, but he did not base such motions on the supposed lack of evidence of larceny by false pretenses. The defendant’s objection to the proposed charge was prompted by the fact that instructions on both theories were requested by the Commonwealth.
General Laws c. 277, § 41, states, “In an indictment for criminal dealing with personal property with intent to steal, an allegation that the defendant stole said property shall be sufficient; and such indictment may be supported by proof that the defendant committed larceny of the property, or embezzled it, or obtained it by false pretenses.”
The defendant has not contended, in any event, that his defense would have been any different had the indictments and bills of particulars explicitly mentioned larceny by false pretenses. See Commonwealth v. King, 202. Mass, at 390; Commonwealth v. King, 387 Mass. 464, 468-469 (1982).
The defendant did finally allude to the argument that the evidence did not support a theory of larceny by false pretenses in his postverdict motion to set aside the guilty verdicts and enter findings of not guilty. It was, however, only in a footnote, conclusorily asserting that the Commonwealth’s proof had failed to establish any such crime. Not only did that somewhat cryptic, cursory contention come too late; it also had not been made in support of the defendant’s motions for required findings of not guilty prior to submission of the case to the jury. The defendant’s failure to make purported lack of proof of false pretenses culpability a basis for his challenge to the proposed instruction is especially striking in that: (a) the judge, in denying the motions for required findings, had explicitly opined that the Commonwealth had introduced sufficient proof of both larceny by false pretenses and embezzlement to send the case to the jury on both theories; and (b) the prosecutor had defended her request for a charge on both theories by asserting that they were both supported in the evidence. The defendant said nothing to controvert those statements, either before or after the instructions were given.
Principles of corporate governance with respect to the powers of officers are essentially the same for profit and nonprofit corporations. Cf. Assessors of West Springfield v. Eastern States Exposition, 326 Mass. 167, 169 (1950). If anything, the powers of officers of charitable corporations, like BCHF, are even more strictly confined. See Boston Athletic Assn. v. International Marathons, Inc., 392 Mass. 356, 364-365 (1984).
In instructing the jury on larceny by embezzlement, the judge in fact gave a single illustration, that of corporate treasurer, of the type of individual entrusted with property the conversion of which can support a finding of embezzlement. The defendant testified that he believed he had “sole responsibility” for the BCHF budget and funds and, indeed, appeared to regard BCHF itself as a mere mechanism for his administration of the cardiology department at the Children’s Hospital rather than an actual separate corporate entity. In closing arguments, his counsel essentially argued that the evidence revealed BCHF to be the defendant’s creature and alter ego. At least some of the BCHF funds (the Rosenthal Foundation grants) were regarded as “belongpng] to” and were distributed by the defendant at his direction for specific departmental purposes.
These were the checks that ended up either deposited in the defendant’s personal bank account or used to discharge his personal liabilities. See supra at note 5.
Those were the November, 1992, “Debra Kirby” check for $32,000 to the Children’s Hospital’s Cardiovascular Surgical Foundation and the
As noted in note 5, supra, there was evidence that the defendant had made a false representation as to all of the checks on account of which the defendant was found guilty. Even if error of the sort the defendant alleges occurred, it presents no substantial risk of a miscarriage of justice. The Commonwealth’s case on the counts that resulted in guilty verdicts was
The defendant does not contend that the judge erred in defining either larceny by false pretenses or larceny by embezzlement, or in failing to set forth their requisite elements. Indeed, by instructing the jury that the Commonwealth was required to prove an intent to deprive BCHF permanently of its property, the judge gave the defendant a more favorable charge than he was entitled to. See Commonwealth v. Hildreth, 30 Mass. App. Ct. 963, 965 (1991).
The argument additionally fails to rise to the required level of reasoned appellate argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). It consists of the following: “In the absence of sufficient evidence upon which the jury could find beyond a reasonable doubt that the Commonwealth had proved its case, it is likely that the jury verdict would have been different had the trial court given the [specific] unanimity instruction.” The defendant does not explain this conclusoiy assertion or supply
This case did not raise a problem of “factual unanimity,” contrast Commonwealth v. Conefrey, 420 Mass. 508, 511-512, 513 n.9 (1995), because each count upon which the defendant was found guilty presented only one set of facts, not alternate sets of facts or episodes, on which he could be convicted. The defendant’s reliance on Commonwealth v. Berry, 420 Mass. 95 (1995), for his “unanimity” argument, is of no avail because he failed to cite it until his reply brief. See Assessors of Boston v. Ogden Suffolk Downs, Inc., 398 Mass. 604, 608 n.3 (1986). In addition, Berry applies only prospectively, only to first degree murder cases, and only when the defendant has requested a specific unanimity instruction. 420 Mass, at 111-112.
Subsequent to oral argument, the Supreme Judicial Court decided Commonwealth v. Plunkett, 422 Mass. 634 (1996), and Commonwealth v. Accetta, 422 Mass. 642 (1996), which established a new procedural rule that where evidence would warrant a verdict on more than one theory, separate verdicts on each theory, reflected on separate verdict slips, should be obtained. Those cases do not assist the defendant’s cause, however, because the rule is only of prospective application, and he did not preserve the issue at trial. See Commonwealth v. D’Agostino, 421 Mass. 281, 284 (1995).