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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. O'Connell, 438
Present: Marshall, C.J., Greaney, Spina, Sosman, &
Cordy, JJ.
The cases were tried before Daniel A. Ford, J.
After review by the
Joseph A. Pieropan, Assistant District Attorney, for the Commonwealth.
Jon R. Maddox for the defendant.
SPINA, J.
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
1. Facts. The jury could have found the following facts.
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.[6] Brown compared the
signature of the maker on the checks with the signature she had just witnessed
Mr. O'Connell make, and determined that they were not similar. She also
compared the signature of the maker on the checks with the signatures of the
other two authorized signators on the account, Mr. O'Connell's other sons,
Stephen and Thomas O'Connell. She then recredited Mr. O'Connell's account
$9,000, the total of the four checks drawn on the account at Lee Bank. The
checks were admitted in evidence, as was a copy of Mr. O'Connell's signature
witnessed by Brown. The four checks had been endorsed by the defendant and, in
two cases, his driver's license number was written on the back of the check by
the teller who paid him after first verifying that he was the person depicted
on the license and the signature on the back of the check matched the signature
on the license. Bank surveillance photographs of the defendant at the bank
taken at the time the checks were cashed were admitted in evidence.
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.[7] The motions were denied.
The defendant argues that the evidence was insufficient to show that (a) he
forged Mr. O'Connell's signature as maker of the checks; (b) even if he had
signed the checks, that he had the requisite intent to injure or defraud; or
(c) he acted without the authority of any of the cosignators on the account
from the Lee Bank.
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" (emphasis in original). Commonwealth v. Latimore, supra at 677,
quoting
(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.
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
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 for themselves); Levi v. Rubin, 241
Mass. 40, 41 (1922) (expert testimony permissible but not necessary); Noyes v.
Noyes, 224 Mass. 125, 130 (1916) (opinion of jury is quite as good as witness
of ordinary experience); Buker v. Melanson, 8 Mass. App. Ct. 325, 330 (1979)
(jury competent to draw inferences as to authenticity). See also Proposed Mass.
R. Evid. 901, noting, in advisory committee note example 3, that comparison to
a genuine specimen by the trier of fact is accepted practice in Massachusetts;
2 J. Wigmore, Evidence § 570, at 790-791 (Chadbourn rev. ed. 1979) ("any
person able to read and write is competent to form and to express a judgment as
to the genuineness of handwriting . . . no special skill in judging of writings
is required . . . when the specimens . . . themselves [are] before the jury,
they may examine them to form an opinion as to the standard or type of
writing"); Annot., 80 A.L.R.2d 272 (1961).[8]
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.
(b) Intent to injure or defraud. The crimes of forgery and uttering both
require proof of an intent to injure or defraud.
(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.[9] However, authority may be raised as a defense, and, if so
raised, the Commonwealth then bears the burden of proving beyond a reasonable
doubt the absence of authority.
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).
The document that was admitted was neither the actual affidavit of forgery, nor
was it admitted as a business record. The only portions of the affidavit
admitted in evidence were the signatures of Mr. O'Connell and Susan Brown, who
witnessed and notarized the affidavit. It was within the judge's discretion to
admit this evidence as an exemplar of Mr. O'Connell's signature against which
the jury could compare the maker's signatures on the checks in evidence. See
Nunes v. Perry, 113 Mass. 274, 276 (1873). There was no error.
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.
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. O'Connell's signature. He
further argues that because Mr. O'Connell did not testify at trial, there was
no competent evidence that the signature of the maker was not that of Mr.
O'Connell.
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
Even if Brown had not given her opinion at trial, the jury had a genuine sample
of Mr. O'Connell's signature for purposes of making their own comparison,
without any need for the assistance of expert testimony. Although the jury did
not need expert testimony to determine that Mr. O'Connell did not sign any of
the checks, the judge had discretion to permit them to hear expert handwriting
testimony. See Levi v. Rubin, 241
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, but he did not appear. The
prosecutor had discussed the case with Mr. O'Connell several times prior to
trial. When Mr. O'Connell did not appear on the morning that trial was
scheduled to begin, the prosecutor sought a bench warrant for him. After it
became clear during trial that Mr. O'Connell would not testify, defense counsel
neither requested a curative instruction nor did he move for a mistrial based
on the prosecutor's opening statement.
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.
CORDY, J. (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
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 fraud. 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, an inference of intent to
defraud might be fairly drawn in circumstances where the forged checks have
been proved to be stolen, or the person forging the signature is proved to be a
stranger to the account holder. That is not this case, however. Such an
inference is of no more weight than an inference of permission, when the
alleged forger and the authorized signatories are immediate family members.
Where the evidence equally supports two inferences, one consistent with guilt
and the other with innocence, it is insufficient to support a verdict of guilt
beyond a reasonable doubt.
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.[13] The problem is that the only
evidence that the bank recredited the father's account as a reversal for
forgery derives from testimony concerning the bank's forgery procedures and
that the father signed an "affidavit of forgery," testimony that was
only admitted for the limited purpose of explaining the bank's actions in
recrediting the father's account.[14] Any use of this testimony to
establish that the checks were signed without the permission of the father (or
the brother) and that the defendant therefore acted with specific intent to
defraud would constitute a hearsay, and therefore impermissible use of the
evidence. Yet the Commonwealth admits that such evidence was necessary to
sustain its burden of proving that the defendant acted with specific intent to
defraud. For this reason alone, the defendant's convictions cannot stand.
Therefore, I respectfully dissent.
FOOTNOTES:
[1] Stephen O'Connell did not testify at trial.
[2] 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,
[3] See G. L. c. 106, § 4-406, "Customer's duty
to discover and report unauthorized signature or alteration."
[4] 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).
[5] 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
[6] Due to objections from the defense, Brown was not
allowed to testify that Mr. O'Connell had signed an affidavit of forgery, and
was permitted to testify only that he signed a piece of paper, which she
notarized.
[7] The defendant presented no evidence.
[8] 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").
[9] 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.
[10] Rule 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. . . ."
[11] 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.
[12] 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 employee competent to render opinion
on similarity of signatures); Rice v. State, 241 Ark. 570, 573 (1966) (bank
vice-president competent to testify as to comparisons of signatures); Spencer
v. State, 237 Ind. 622, 627 (1958) ("Bank employees experienced in
examining signatures fall within the classification of experts in that field
and are competent witnesses . . ."); State v. Streit, 248 Iowa 260, 262
(1957) (bank cashier, with five years' experience, accustomed to comparing
signatures is competent to testify as expert); Evans v. Commonwealth, 230 Ky.
411, 422-423 (1929) ("An experienced banker would be permitted to say
whether a document was genuine or forged . . ."); Riley v. State, 44 S.W.
498, 499 (Tex. Crim. App. 1898) (witness who had experience examining
signatures as bank cashier was competent to testify as expert); Wileman v. Commonwealth,
24 Va. App. 642, 647 (1997) (work experience sufficient to qualify banker as
expert witness as to authentication of signatures).
[13] 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
sufficient to go to the jury?"
The assistant district attorney: "Not on an indictment for uttering a
forgery because it would have lacked the specific intent to defraud, Your
Honor."
[14] "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 .