Opinion
13-P-325
12-04-2014
COMMONWEALTH v. DARLENE THOMAS NEUFELL.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Defendant Darlene Thomas Neufell appeals from her convictions of six counts of larceny over $250, G. L. c. 266, § 30, from her employer, Rule Broadcast Systems, Inc. (company).
Documentary evidence. The admission of the defendant's credit card records in evidence did not fully comply with G. L. c. 233, § 79J, as they were not delivered to the clerk of the Superior Court. The credit card records were in all other respects admissible. They met the requirements of the business records exception to the hearsay rule, G. L. c. 233, § 78, they were certified by the custodian's affidavit required under G. L. c. 233, § 79J, and the defense had a prior opportunity to review them. The purpose of § 79J's requirement that subpoenaed business records be delivered to the clerk is twofold: to ensure the integrity of the records and to give the parties an opportunity to examine them before they are introduced in evidence. The records in question here were the defendant's own credit cards records, and she had ample opportunity and ability to verify their content. We are quite confident that the deviation from the statutory procedure had little or no effect. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994); Mason v. Coleman, 447 Mass. 177, 188 (2006).
Although the circumstances of this case render the error harmless, this decision should not be read to encourage skirting the rules in this manner. The Commonwealth was not responsible for the defect and moved for a continuance of the trial so it could fully comply with the statute. The judge denied the motion.
The judge properly admitted the company's bank statements. The testimony of John Rule, the company's CEO, established the factors necessary for their admission under the business records exception, and he personally authenticated them in court as his company's records, not the bank's records. The authentication requirements in G. L. c. 233, §§ 77 and 79A, do not apply. The judge acted within her discretion to admit these records. Beal Bank, SSB v. Eurich, 444 Mass. 813, 815 (2005). See Commonwealth v. Duddie Ford, Inc., 28 Mass. App. Ct. 426, 435 (1990).
The company's bookkeeper, Susan Hanahan, later testified that she personally selected which of the company's bank statements were included in the exhibit. She also identified some of the handwritten notations and marks on the statements as hers. In the context of Hanahan's and Rule's testimony, we do not perceive that the notations prejudiced the defendant, let alone created a substantial risk of a miscarriage of justice.
Susan Hanahan's summary chart was also properly admitted. See Commonwealth v. Carnes, 457 Mass. 812, 825-826 (2010) (summaries admissible "provided that the underlying records have been admitted in evidence and that the summaries accurately reflect the records"). Except for the column listing the names of the vendors that had been entered in the company's electronic accounting system, evidence of each of the transactions on the chart had been admitted. With respect to a few of the transactions, Hanahan testified that she had personally consulted the electronic accounting system and found that the vendors entered did not match the company's bank records, which showed payments to the defendant's credit card and checking accounts. Hanahan could have remained on the stand to go painstakingly through each transaction to lay the rest of the foundation for the vendor column on the summary chart. "The exhibit was admissible, in the discretion of the judge, as a matter of convenience." Dyecraftsmen, Inc. v. Feinberg, 359 Mass. 485, 487 (1971). See Commonwealth v. Baker, 368 Mass. 58, 84-85 (1975) (clarifying summary testimony properly admitted; "[t]he jury were still free to examine the monthly reports themselves to see whether [the questioned transactions] were included thereon").
On appeal, the defendant argues for the first time that the chart should not have been admitted because the foundation for the vendor column was hearsay and violated the best evidence rule. Hanahan's testimony was not hearsay, as it was not offered to prove the truth of the content of the electronic records, that is, that payments were made to certain vendors. Nor did the Commonwealth offer this evidence to prove the precise contents of the records. See Moy v. Jack Madden Ford Sales, Inc., 4 Mass. App. Ct. 102, 106 n.3 (1976). The evidence was offered only to show the fact that false entries had been made to disguise the defendant's receipt of the funds.
Trial counsel objected on hearsay grounds the first time Hanahan testified about how a transaction appeared in the electronic accounting system and later objected that another reference to the content of the accounting system was not in evidence. When the Commonwealth moved to admit the summary chart, however, counsel objected to the chart on numerous other grounds, none of which is advanced on appeal.
Moreover, the defendant was not prejudiced by any errors in proving the transactions because she admitted that each payment was made to her and disguised exactly as the Commonwealth asserted. We are sensitive to the defendant's argument that had the erroneously admitted materials been excluded, she would not have been "compelled to defend herself against the charges." She concedes, however, that this would be the case only if, without these materials, "there would not have been evidence to support the convictions." Here, the properly admitted canceled checks, the company's bank statements, the defendant's bank records (as opposed to her credit card records), and the testimony of Rule and Hanahan were sufficient to prove each count and to survive motions for required findings.
Prior bad acts. Rule testified that he first discovered the defendant's larcenies when he happened to review the company's credit card statements and noticed some irregular charges. He fired the defendant and told her that he expected her to reimburse the company for the charges, which she did. Although the Commonwealth did not base any larceny charges on this conduct, the evidence was properly admitted to set the stage for the discovery of the larcenies that were charged, and its probative value exceeds any undue prejudicial effect. See Commonwealth v. Marrero, 427 Mass. 65, 67-68 (1998).
Likewise, evidence adduced on cross-examination of the defendant that she did not report as income or pay taxes on the $275,000 she received from the company was properly admitted. The thrust of this evidence was not to show that the defendant misbehaved because she did not pay her taxes -- it was used to question the veracity of her testimony that she received the money legitimately. See Commonwealth v. Jacobson, 19 Mass. App. Ct. 666, 680 (1985).
Though a closer question, evidence of the defendant's conduct that led to her being fired from her prior job was also properly admitted as showing a "common scheme" or "pattern of operation." Commonwealth v. Fleury-Ehrhart, 20 Mass. App. Ct. 429, 430 (1985). See Cambridge Trust Co. v. Commercial Union Ins. Co., 32 Mass. App. Ct. 561, 564 (1992). The Commonwealth's evidence showed that on sixteen occasions the defendant took blank checks that Rule had signed and left in her care and, without permission, wrote "commission" checks payable to herself. In her prior job at EK Media, the defendant took a payroll check that her employer had left in her care and, similarly exceeding her authority, signed the boss's name and paid herself an extra check. With respect to the EK Media incident, she testified that she misunderstood the boss's instructions; he testified that she disobeyed them. Where the defendant contended that it was Rule, and not she, who made the blank checks out to her, the Commonwealth could properly argue that her similar conduct, and similar denials, at EK Media signified a common scheme or pattern of operation.
In addition, this evidence was relevant "for the purpose of showing intent, motive, state of mind, or some other relevant issue at trial." Commonwealth v. DelValle, 443 Mass. 782, 790 (2005). Significantly, the Commonwealth first raised the EK Media incident during cross-examination of the defendant and then through a rebuttal witness. The evidence was submitted to contradict the defendant's testimony that the transactions were authorized and that she lacked intent to misappropriate the company's funds. "Such evidence may also be admissible if it 'rebut[s] the defendant's contentions' made in the course of trial." Commonwealth v. Anestal, 463 Mass. 655, 665 (2012), quoting from Commonwealth v. Magraw, 426 Mass. 589, 595 (1998).
The trial judge did not abuse her discretion in admitting this evidence based on her implicit finding that its probative value outweighed its prejudicial impact. In addition, the judge repeatedly instructed the jury, both as this evidence was admitted and in her final instructions, that it was introduced for the limited purpose of showing "motive, opportunity, [the defendant's] state of mind, her intent, a common scheme, or the absence of mistake or accident" and that the jury should not consider it to demonstrate the defendant's "bad character" or for the proposition that "if she did it on an earlier time that it's more likely that she did it again."
As the evidence of the EK Media transaction was properly admitted for these purposes, the prosecutor's discussion of the evidence during summation was fair comment. Commonwealth v. Delong, 60 Mass. App. Ct. 122, 133 (2003). The prosecutor argued that the defendant's conduct at her prior job showed that she habitually abused positions of trust. The trial judge overruled the defendant's objection to this argument, "satisfied overall that it goes to opportunity."
Comment on defendant's pretrial silence. The prosecutor's cross-examination of the defendant regarding whether she tried to resist Rule's "assaults," whether she filed a complaint about "this supposed sexual harassment," and whether she ever told Rule to stop, were proper. The defendant's direct testimony about her sexual encounters hardly suggested that Rule's advances were welcome. Significantly, defense counsel did not object to this line of questioning, and during her summation, defense counsel argued that Rule got the defendant in his office, "locked the door, and she serviced him with oral sex. . . . I would suggest to you he bought her silence too."
The defendant testified that, aside from the sexual encounters, she and Rule otherwise "got along very well."
In his summation the prosecutor argued, "It is easy to change these thefts into allegations of gifts due to sexual services" and suggested that the defendant's testimony in this regard was not credible because she "never complained of it before, never mentioned it apparently to anyone before. Apparently you people and maybe her attorney are the first people to hear anything about her complaints [of] being sexually abused." This argument was improper. "[A] prosecutor may not argue that the jury should draw a negative inference from the fact that the defendant remained silent until [s]he testified," Commonwealth v. Person, 400 Mass. 136, 140 (1987), and there was no evidence to suggest that the defendant had changed her account of the events to conform to the evidence, see Commonwealth v. Moore, 408 Mass. 117, 130-131 (1990).
Defense counsel did not object to this argument, however, and the prosecutor did not belabor the point. In the context of the trial and the entire argument, the prosecutor's improper comment did not create a substantial risk of a miscarriage of justice. Commonwealth v. Dodgson, 80 Mass. App. Ct. 307, 313-314 (2011).
Judgments affirmed.
By the Court (Rapoza, C.J., Fecteau & Massing, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 4, 2014.