438 Mass. 658 | Mass. | 2003
Lead Opinion
The defendant, Ralph M. O’Connell, appeals from five convictions each of forgery (G. L. c. 267, § 1), uttering (G. L. c. 267, § 5), and larceny over $250 (G. L. c. 266, § 30) involving five checks cashed at two banks. On appeal, the defendant alleges that (1) his motion for required finding of not guilty should have been allowed; (2) certain information erroneously admitted in evidence had an unduly prejudicial effect on the jury; and (3) the prosecutor’s opening statement created a substantial risk of a miscarriage of justice. In a two-to-one decision, the Appeals Court concluded that the evidence was insufficient to support the convictions, and reversed. See Commonwealth v. O’Connell, 55 Mass. App. Ct. 100 (2002). Specifically, the Appeals Court concluded that “the evidence was not sufficient to prove beyond a reasonable doubt that the signatures [of the maker on the five checks] were unauthorized and that the defendant thereby acted with the intent to defraud.” Id. at 107. We granted the Commonwealth’s application for further appellate review. We conclude that the evidence was sufficient to find the defendant guilty of the crimes charged, and we affirm the convictions.
1. Facts. The jury could have found the following facts. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). In
Four of the checks were drawn on an account at Lee Bank, where Susan Brown, a bank vice-president, explained to Mr. O’Connell the bank’s procedure for recrediting his account. He notified the local police, then returned and signed a piece of paper that she witnessed and notarized.
Mr. O’Connell had also lodged a complaint at City Savings Bank regarding the fifth check. He filed an affidavit in compliance with that bank’s policy. The fifth check, in the amount of $2,000, and a bank surveillance photograph of the defendant at the bank taken at the time the check was cashed were admitted in evidence. The fifth check was endorsed by the defendant.
The jury had the signature of the defendant on the back of each of the checks, all of which had been admitted in evidence without objection, to compare with the handwriting on the face of each check.
2. Motion for required findings of not guilty. The defendant filed a motion for required findings of not guilty at the close of the Commonwealth’s evidence, and again at the close of all the evidence.
When deciding a motion for required findings of not guilty at the close of the Commonwealth’s evidence, the question is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt”
(a) Forgery. The offense of forgery (G. L. c. 267, § 1) requires proof, as one of its elements, that the defendant falsified or altered one or more significant parts of the check. See Commonwealth v. Boutwell, 129 Mass. 124, 124 (1880). The Commonwealth’s case on the indictments alleging forgery depends on a finding that the defendant forged the maker’s signatures on the checks, as it did not proceed on a joint venture theory. The defendant argues that, to prove forgery, the Commonwealth needed the testimony of Mr. O’Connell to the effect that he did not sign the checks. The defendant also argues that the Commonwealth could only show through expert testimony that he forged the five checks, and that, because there was no expert testimony that he authored the maker’s signature on each check, the evidence was insufficient to establish that he committed the crime of forgery.
There is no merit to the defendant’s claim that the Commonwealth needed the testimony of Mr. O’Connell to prove forgery. The defendant relies on Commonwealth v. Hutchinson, 1 Mass. 7, 8 (1804), where this court said that “it was, in the present case, impossible to prove the forgery” without the testimony of the person whose promissory note the defendant allegedly forged. That case is distinguishable because the note alleged to have been forged was not produced by the government. Here, the five checks the defendant was alleged to have forged were admitted in evidence. The Commonwealth did not need Mr. O’Connell’s testimony to prove that the maker’s signature on each check was forged. Although the testimony of the person whose signature was allegedly forged has relevance, and typically it is presented whenever available, it is not necessary in all cases.
The Commonwealth did not need expert testimony to prove forgery. Where signatures of the defendant have been admitted in evidence as genuine and submitted to the jury, they may be used as a standard against which the jury may compare the disputed signatures and decide the question of authorship without the need for expert testimony. See Commonwealth v. O’Brien, 254 Mass. 86, 90 (1925) (jury could make comparisons
The five checks, each with the defendant’s endorsing signature on the reverse side, were admitted in evidence without objection. The jury thus had five samples of the defendant’s signature to serve as standards against which they could compare the signature of the maker on each check. There was sufficient evidence from which the jury could reasonably conclude that the defendant forged the signatures of the maker on the five checks.
Because the evidence was sufficient to support a conviction of forgery as to each check, it was also sufficient to show, for purposes of the crime of uttering (G. L. c. 267, § 5), both that the checks were forged, and that at the time the defendant cashed the checks, he knew or believed that the checks were forged. See Commonwealth v. Analetto, 326 Mass. 115, 118 (1950).
(c) Authority. Contrary to the defendant’s assertion, lack of authority is not an essential element of any of the offenses for which the defendant was indicted.
The defendant’s reliance on Commonwealth v. Kepper, 114 Mass. 278 (1873), is misplaced. In that case the court said it is permissible to ask a witness whose signature was alleged to have been forged whether he signed the instrument, and whether he authorized anyone to sign it. The court did not hold that lack of authority is an element of forgery.
The motion for required findings of not guilty was correctly denied.
3. The defendant contends that it was prejudicial error for the judge to admit in evidence any portion of the affidavit of forgery signed by Mr. O’Connell. He argues that the affidavit was inadmissible hearsay and did not qualify as a business record under G. L. c. 233, § 78, because the bank official who witnessed the customer’s signature had no personal knowledge of the truthfulness of the statements made in the affidavit and thus the affidavit could not qualify as a business record. See Wingate v. Emery Air Freight Corp., 385 Mass. 402, 406-407 (1982).
4. The defendant argues that the admission of the bank official’s testimony concerning an “affidavit of forgery” used in the bank procedure to recredit a customer’s account had a prejudicial impact on the jury because there was no evidence as to the details of what Mr. O’Connell told bank officials, and the jury would not be able to resist inferring from evidence of Mr. O’Connell’s compliance with bank procedures that he told them that he did not sign the checks.
The testimony about the affidavit of forgery was admitted for the limited purpose of explaining the actions of the bank officials, to show that they followed a certain procedure resulting in the recrediting of Mr. O’Connell’s account. The judge clearly and emphatically instructed the jury that Mr. O’Connell’s statements to bank officials could not be considered as proof that the checks were not properly payable, but only to explain why the bank officials thereafter acted as they did. A jury are presumed to follow the judge’s instructions. See Commonwealth v. Girouard, 436 Mass. 657, 669 (2002).
Moreover, the inference that the defendant claims was unavoidable, namely, that Mr. O’Connell told bank officials that he did not sign the checks, could not have been prejudicial. Such an inference does not establish that the defendant forged the checks, nor does it establish that the defendant knew the checks were forged, facts that the Commonwealth was required to prove. The necessary proof on those elements came from other sources, namely, the checks themselves and the bank surveillance photos. There was no error.
5. The defendant argues that Brown was not qualified to give opinion testimony to the effect that the signature of the maker of the checks “doesn’t compare” and was “not similar” to Mr.
The judge permitted Brown to testify that the signature of the maker on the four checks drawn on Lee Bank was not similar to the signature of Mr. O’Connell as she remembered having witnessed it once. “A witness who is familiar with a person’s handwriting may give an opinion as to whether the specimen in question was written by that person.” Commonwealth v. Ryan, 355 Mass. 768, 770-771 (1969). The question of a witness’s qualifications to give such testimony is committed to the sound discretion of the trial judge, and the judge’s decision will not be disturbed “unless it is made clearly to appear that it was based upon some erroneous view of legal principles, or that the ruling was not justified by the state of the evidence as presented to the judge at the time.” Id. at 111. The defendant contends that the judge’s decision to permit Brown to give opinion testimony based on her familiarity with Mr. O’Connell’s signature was clearly erroneous because she had witnessed his signature only once, and ordinarily that is not sufficient to qualify a person to be sufficiently familiar with a person’s handwriting for purposes of giving opinion testimony. Id. However, where a witness has seen the person write only once but also has experience comparing handwriting samples over a considerable period, the witness may qualify as an expert. See Commonwealth v. Nefus, 135 Mass. 533 (1883). Here, although Brown had seen Mr. O’Connell make his signature only once, she also had twenty years of experience in the banking business comparing signatures first as a teller, then as a customer service representative, and, at the time of trial, as vice-president of the bank in charge of security. The judge’s decision to permit Brown to give opinion testimony was not clearly erroneous.
Even if Brown had not given her opinion at trial, the jury had
6. The defendant alleges that the comment by the prosecutor in his opening statement that Mr. O’Connell would testify that he had not signed the checks in question was overly prejudicial in light of the fact that Mr. O’Connell did not, in fact, testify. The defendant contends that the prosecutor’s opening statement “must have materially influenced the jury in reaching a guilty verdict,” and the judge should have given a curative instruction. The issue is raised for the first time on appeal, so we review to determine if any error created a substantial risk of a miscarriage of justice.
There is no evidence that the prosecutor made the statement other than in good faith, with the expectation that Mr. O’Connell would, in fact, testify as anticipated. See Commonwealth v. Thomas, 429 Mass. 146, 157 (1999) (“A prosecutor in his opening may explain the facts that he expects to prove during the trial, so long as he has a good faith expectation that he will be able to do so with relevant and admissible evidence”). Mr. O’Connell had been served, in hand, with a subpoena for trial,
The judge had instructed the jury before the opening statements, and again in his final instructions, that opening statements are not evidence. And, as mentioned in part 4 above, the judge emphasized to the jury that evidence of Mr. O’Connell’s statements to the bank could be used only as background explanation for the bank’s actions, not as evidence that the checks were not properly payable. That limiting instruction, given in connection with Brown’s testimony about her interaction with Mr. O’Connell, would apply equally to any reference to that interaction made in the opening statement. There was no error.
Judgments affirmed.
Stephen O’Connell did not testify at trial.
A check presented under an unauthorized signature is not “properly payable” within the meaning of G. L. c. 106, § 4-401. First Nat’l Bank v. Hovey, 10 Mass. App. Ct. 715, 721 (1980).
See G. L. c. 106, § 4-406, “Customer’s duty to discover and report unauthorized signature or alteration.”
See H. Lemelman, Uniform Commercial Code § 4-406 — Form 1.5, “Forged Check Signature Affidavit” (2d ed. 1984 & 2002 Supp.) (a form affidavit similar to the one described at trial).
A customer who makes a timely complaint that a check drawn on his or her account was not authorized is entitled to have the bank recredit the account. See Stone & Webster Eng’g Corp. v. First Nat’l Bank & Trust Co., 345 Mass. 1, 9 (1962). See also G. L. c. 106, §§ 4-401 (a), 4-406 (f).
Due to objections from the defense, Brown was not allowed to testify that Mr. O’Connell had signed an affidavit of forgery, but rather was permitted to testify only that he signed a piece of paper, which she notarized.
The defendant presented no evidence.
See also Parker v. State, 12 Md. App. 611, 616 (1971) (“The genuineness of the writings . . . could be determined by the trier of the facts, and the aid of expert opinion evidence on the point was not required”); State v Owen, 130 N.C. App. 505, 509 (1998) (“a jury may compare a known sample of a person’s handwriting with the handwriting on a contested document without the aid of either expert or lay testimony”); State v. LeDuc, 306 N.C. 62, 73 (1982) (giving history of common-law rule and stating that, once judge has determined that signature for comparison is genuine, then disputed signature and known one can be submitted to jury who may “in the discretion of the court, be permitted to resolve the issue of forgery without expert assistance”).
The elements of the crime of forgery, G. L. c. 267, § 1, are (1) falsely making all or part of a document or instrument; (2) with the intent to defraud. See Commonwealth v. Apalakis, 396 Mass. 292, 295-296 (1985). The elements of the crime of uttering, G. L. c. 267, § 5, are “(1) offering as genuine; (2) an instrument; (3) known to be forged; (4) with the intent to defraud.” Commonwealth v. Levin, 11 Mass. App. Ct. 482, 496 (1981). The elements of the crime of larceny over $250 by false pretenses, G. L. c. 266, § 30, are (1) knowingly making a false statement of fact; (2) with the intent that the person to whom the statement is made should rely on it as true; (3) reliance by such person; (4) as a result, the person parts with personal property or money worth more than $250. See Commonwealth v. Mills, 436 Mass. 387, 396-397 (2002).
RuIe 14 (b) (3) of the Massachusetts Rules of Criminal Procedure, 378 Mass. 874 (1979), states, in relevant part: “If a defendant intends to rely upon a defense based upon a . . . claim of authority ... he shall [in a timely fashion] notify the prosecutor in writing of such intention and file a copy of such notice with the clerk. If there is a failure to comply with the requirements of this subdivision, a . . . claim of authority . . . may not be relied upon as a defense. . . .”
The judge did not instruct the jury on the question of authorization; the defendant had requested no such instruction. There has been no claim of error with respect to the judge’s instructions.
Although we have not had occasion to decide this precise question, courts in other jurisdictions have held that, based on their experience looking at and comparing signatures in the course of the banking business, bank officials may be qualified to make comparisons of signatures and offer their opinions as to the similarity or lack thereof between signatures. See State v. Riggs, 186 Ariz. 573, 576 (1996), vacated on other grounds, 189 Ariz. 327 (1997) (bank
Dissenting Opinion
(dissenting). I agree with the court that the evidence admitted at trial, viewed in the light most favorable to the Commonwealth, was adequate to support a jury’s finding that the defendant forged his father’s (or brother’s) name to the checks in question and then cashed them. However, with respect to the element of specific intent to defraud, I am of the view, as was the Appeals Court, that the Commonwealth failed to meet its burden.
If the defendant’s father or his brother, who shared his father’s name and was an authorized signatory on the account on which four of the five checks were drawn, had permitted the defendant to sign their name to the checks, there would be no intent to defraud. Neither testified at trial. The lack of such permission and the consequent intent to defraud can, of course, be proved circumstantially in a forgery case, even if the authorized signatory does not testify, albeit with some difficulty. Certainly,
Without additional evidence on the issue of intent to defraud, the case fails. The Commonwealth recognizes this in its brief and in its oral argument, and points to additional evidence that it argues supports a finding of intent to defraud. Specifically, it directs us to the evidence of the bank’s “forgery reporting procedure,” the fact that pursuant to those procedures the father came to the bank, reported the checks as forged and filled out an “affidavit of forgery,” and to the evidence that one of the banks recredited the father’s account on the basis of its investigation. Indeed, at oral argument, the critical importance of the evidence that the bank recredited the account based on its forgery investigation crystalized. In a colloquy with a member of the quorum, the assistant district attorney acknowledged that evidence of the defendant’s specific intent to defraud would have been inadequate without the evidence that the bank recredited the father’s account as a reversal for forgery.
The Justice: “If in this case the evidence had simply been that there is a bank check reversal policy without saying that it was a fraud policy, if it was just presented as a general reversal of transaction policy, would the evidence have been sufficient to get this case to the jury?”
The Assistant District Attorney: “I would suggest not, Your Honor, because we would still have to prove specific intent to defraud.”
The Justice: “And the way you did it was by identifying this as a general reversal policy based on fraud, based on forgery?”
The Assistant District Attorney: “As well as the evidence that the other signatories, at least to the satisfaction of the bank . . . .”
The Justice: “But my question is limited to the one piece here. If this had been identified as a general check reversal policy without identifying it as a policy for forgery, a reversal for forgery, would the evidence have been suf
The Assistant District Attorney: “Not on an indictment for uttering a forgery because it would have lacked the specific intent to defraud, Your Honor.”
“The testimony about the affidavit of forgery was admitted for the limited purpose of explaining the actions of the bank officials, to show that they followed a certain procedure resulting in the recrediting of Mr. O’Connell’s account. The judge clearly and emphatically instructed the jury that Mr. O’Connell’s statements to bank officials could not be considered as proof that the checks were not properly payable, but only to explain why the bank officials thereafter acted as they did.” Ante at 666.