Commonwealth v. Perez

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11-P-2166 Appeals Court
COMMONWEALTH vs. GLORIA PEREZ.
No. 11-P-2166.
Essex. December 10, 2015. - February 3, 2016.
Present: Kafker, C.J., Milkey, & Sullivan, JJ.
Larceny. Bank. Constitutional Law, Confrontation of witnesses.
Practice, Criminal, Confrontation of witnesses. Evidence,
Hearsay, Verbal conduct, Business record, Authentication of
document.
Indictments found and returned in the Superior Court
Department on April 30, 2008.
The cases were tried before Leila R. Kern, J.
Andrew S. Crouch for the defendant.
Philip Anthony Mallard, Assistant District Attorney, for
the Commonwealth.
MILKEY, J. "[W]here's Phyllis?" A bank teller posed that
question to the defendant who was seeking to withdraw $300 from
the checking account of an absent bank customer. The defendant,
who worked as a customer service representative at the bank, had
presented a withdrawal slip purportedly signed by Phyllis Wall,
2
an elderly customer who relied on a walker and was well known to
the employees at that particular branch. In response to the
question, the defendant stated that Wall had signed the
withdrawal slip earlier that day and that she planned to give
the money to Wall later. The teller gave the defendant the
money, but then notified the branch manager about the
transaction.1 An internal investigation ensued, and the
defendant ultimately was indicted for twenty-six property
offenses, all related to alleged theft from customer accounts.
After trial, a Superior Court jury convicted the defendant of
six of those offenses: two counts of larceny over $250, one of
which was from a person sixty years or older (G. L. c. 266,
§ 30[1], [5]), two counts of forgery (G. L. c. 267, § 1), and
two counts of uttering (G. L. c. 267, § 5). On appeal, she
challenges the admission of various bank records, and she claims
that the evidence for one of the larceny charges was
insufficient in one respect. We affirm.
Background. The Phyllis Wall withdrawals. Five of the six
convictions involved Wall. The defendant frequently assisted
Wall with her transactions, such as obtaining money orders to
pay all of her bills. The five convictions related to Wall
involved two cash withdrawals, including the one described
1
Making cash withdrawals for customers who were not
physically present was a violation of bank policy.
3
above, which took place on July 21, 2006. As noted, the
withdrawal slip that the defendant presented during that
transaction was purportedly signed by Wall. Wall was not
available to testify as to whether the signature on the slip was
her own, because she had died by the time of trial. However,
the jury were able to compare that allegedly forged signature
against genuine signatures from Wall on other documents entered
in evidence.
The July 21, 2006, withdrawal slip purportedly signed by
Wall also bore the initials of the defendant beside the words
"ID only." That annotation signified that the teller could cash
the withdrawal slip without checking Wall's identification,
because the defendant had already done so. As documented by
other bank records, thirteen minutes after receiving the $300
cash from Wall's account, the defendant deposited $200 cash into
her own bank account through a different teller.
The other relevant transaction involving Wall was a
withdrawal of $1,000 from her checking account on June 5, 2006.
Like the other transaction, the withdrawal slip bore a signature
that did not appear to match Wall's, as well as the defendant's
initials alongside an "ID only" annotation. A minute after the
$1,000 was withdrawn from Wall's account, the defendant
deposited the same amount into the account of another customer,
Judson Silva. The Commonwealth's theory was that the defendant
4
used the $1,000 from Wall to replace $1,000 she previously had
taken from Silva.2
For each of the two withdrawals from Wall's account, the
defendant was convicted of forgery and uttering. She was also
convicted of one count of larceny over $250 from Wall, a person
over sixty years old.
The Hector Rodriguez withdrawals. The defendant's
remaining conviction was for larceny over $250 involving a
different customer, Hector Rodriguez. Rodriguez was a Spanish
speaker, and he regularly had sought the defendant's assistance
because she also spoke Spanish. The bank's internal fraud
investigator, Thomas Backstrom, scrutinized Rodriguez's
transactions because bank records revealed that the defendant
had spent an unusual amount of time accessing his accounts, and
those of Wall and a third individual.3 The bank's branch manager
later discovered signature cards from these three individuals in
the defendant's desk.
2
Silva had deposited a $48,000 foreign check into his
checking account, but the bank put a hold on his accessing those
funds. He approached the defendant about this problem, and she
informed him that the hold could be removed but that he would be
charged a $1,000 fee. As the branch manager during that time
period testified, there was no such fee under bank policy.
After the hold was removed, Silva pressed the defendant to have
the "fee" refunded.
3
The defendant was charged with, but acquitted of, various
offenses involving the third individual.
5
Rodriguez had credit problems, and the defendant assisted
him in addressing those problems and in paying his bills. The
Commonwealth introduced records that showed that Rodriguez made
significant withdrawals (or similar cash outs) on seven
occasions, and that many of the transactions bore the
defendant's initials.4 Rodriguez testified that he never
received any cash from those transactions. He also testified
that the defendant went to see him at his workplace and
unsuccessfully tried to get him to sign a letter stating that
bank officials had "forced [him] to sign the papers."5
The defendant's interview. On August 2, 2006 (that is,
less than two weeks after the "where's Phyllis?" incident),
Backstrom, the bank's investigator, interviewed the defendant.
According to Backstrom's testimony, the defendant admitted that
she -- not Wall -- had signed the withdrawal slip for the $300
withdrawal, but she claimed that she later brought the money to
Wall's home and left it in her mailbox. She admitted to making
the $1,000 withdrawal from Wall's account, but denied depositing
it into Silva's account (claiming she did not know who made that
deposit). She also denied having copies of the three signature
4
Some of the paperwork was in Rodriguez's handwriting and
some was not. The defendant was not charged with forgery or
uttering for any of the Rodriguez transactions.
5
The trial testimony never clarified which specific
"papers" were being referenced.
6
cards at her desk. Once the questioning became more pointed and
Backstrom began asking the defendant about customers claiming
that they had not received the money from withdrawals that she
had initiated, the defendant's demeanor changed. Then, during a
break in the interview, she abruptly left, stating "that she had
nothing else to say and that if she was fired, she was fired."
The introduction of bank records. At trial, the
Commonwealth proffered a number of documents in support of its
case, such as the withdrawal slip from the July 21, 2006,
transaction. It bears noting that some of those were compound
documents; that is, they included written information added by
different people (or by automated teller equipment) at different
points in time. For example, the withdrawal slip from the July
21 transaction included the underlying bank form, the
information added to the form by the person seeking to withdraw
the money (amount, signature, and date), the defendant's
initials and "ID only" annotation, and the ink "spraying" added
to the slip by a machine when the withdrawal was processed by
the teller (showing date, time, and teller number).
The prosecutor sought to introduce the bank documents
through the testimony of Backstrom. Although Backstrom had no
formal law enforcement background, he had worked as a fraud
investigator for the bank for eight years at the time of trial,
before which he had worked as a teller supervisor. His
7
testimony during a pretrial voir dire6 and at trial revealed his
extensive familiarity with how the diverse bank records are
created and electronically stored, as well as how such records
could be accessed and reproduced in hard copy format.
Additional facts regarding the introduction of the documents are
reserved for later discussion.
The defense. The defendant took the stand. She
acknowledged that she made both of the withdrawals from Wall's
checking account, but denied that she committed any offenses in
doing so. With respect to the $300 withdrawal, she testified
that Wall had presigned the withdrawal slip (in contrast to
Backstrom's testimony that the defendant had admitted to him
that she signed Wall's signature). The defendant also claimed
that she in fact hand-delivered the money to Wall later the same
day and that the $200 deposit that she made to her own account
directly after the withdrawal was from a different source. With
respect to the $1,000 withdrawal, the defendant acknowledged
that she transferred the money from Wall's account into Silva's
account, but she claimed that she simply was rectifying a
6
The Commonwealth filed a motion in limine seeking to
introduce "affidavits of forgery" that bank customers had
completed regarding the individual transactions. After hearing
Backstrom's voir dire testimony, the judge ruled that these
documents could not be introduced and that the Commonwealth
instead would have to offer the individual transactional records
and testimony from the relevant bank customers still living.
8
ministerial error she had made earlier.7 With respect to the
Rodriguez transactions, the defendant testified that Rodriguez
in fact authorized all the withdrawals and received the cash.
Discussion. The bank records. The defendant challenges
the introduction of the relevant bank records on two different
statutory grounds, which we will address in turn. Before doing
so, however, we frame the nature of the evidentiary disputes
before us. The defendant claims that the introduction of the
documents allowed hearsay into evidence, and that this in turn
violated her rights pursuant to the confrontation clause of the
Sixth Amendment to the United States Constitution. However, she
does not identify any out-of-court statements contained in the
documents that were admitted for their truth. See Commonwealth
v. Siny Van Tran, 460 Mass. 535, 550 (2011), citing Mass. G.
Evid. § 801(c), at 230 (2011) ("The hearsay rule prohibits the
admission only of out-of-court assertions offered to prove the
truth of the matter asserted"). For many of the records, such
as the underlying withdrawal and deposit slips, the statements
contained therein were "not offered to prove the truth of the
matter [they] asserted, but rather only for the fact that [they
were] made." Commonwealth v. Sullivan, 410 Mass. 521, 526
(1991). Indeed, such embedded statements did not constitute
7
According to the defendant, she had put $1,000 aside from
Silva's account to cover potential fees and mistakenly had
deposited that into Wall's account.
9
"factual assertion[s] at all," Williams v. United States, 458
U.S. 279, 284 (1982), but were instead "legally-operative verbal
acts" with legal significance independent of the truth of any
statement contained in them. United States v. Pang, 362 F.3d
1187, 1192 (9th Cir. 2004). The "verbal acts" doctrine also
encompasses the initials and "ID only" annotations that the
defendant added to the withdrawal slips before they were
processed.8 See United States v. Bowles, 751 F.3d 35, 39-40 (1st
Cir. 2014) (false signature endorsements on checks "recognized
as verbal acts that are not hearsay"); Commonwealth v. Purdy,
459 Mass. 442, 452-453 (2011) ("operative words" bearing
"independent legal significance" such as those "used to
effectuate the commission of a crime" are not hearsay). See
also Mass. G. Evid. § 801(c), at 263 (2015).
Other records were generated automatically by the bank's
computerized data management system when the transactions were
processed (memorializing such information as the date and time
of the transaction and which teller processed the transaction).
Examples include the "cash out credit" slip that accompanied the
July 21, 2006 withdrawal,9 and the ink "spraying" that was added
8
This is also of course true of signature cards and other
signature exemplars the bank had on file.
9
Indeed, the defendant herself testified that "[a] cash out
credit is basically generated automatically when the teller does
a transaction of any sort of withdrawing cash from any
10
to withdrawal slips when they were processed. Any content
included in these records does not raise hearsay concerns. See
Commonwealth v. Thissell, 457 Mass. 191, 197 n.13 (2010)
("Because computer-generated records, by definition, do not
contain a statement from a person, they do not necessarily
implicate hearsay concerns"). See also Mass. G. Evid. § 801(a),
at 260 ("'Statement' means a person's oral assertion, written
assertion, or nonverbal conduct" [emphasis added]).
In sum, the defendant has not identified any out-of-court
statements included in the relevant records that were admitted
for their truth. As a result, the evidence did not raise a
confrontation clause issue. See Tennessee v. Street, 471 U.S.
409, 413-414 (1985); Commonwealth v. Hurley, 455 Mass. 53, 65
n.12 (2009). With no hearsay concerns raised by the records,
the defendant is left to argue that they were inadequately
authenticated.10
account. . . . [a]nd it would give you the date, time, the
branch number and the amount and the teller number."
10
Theoretically, the records also would have to satisfy the
best evidence rule to the extent that it applies, but the
defendant does not press such a claim. "The best evidence rule
provides that, where the contents of a document are to be
proved, the party must either produce the original or show a
sufficient excuse for its nonproduction." Commonwealth v.
Ocasio, 434 Mass. 1, 6 (2001). See Mass. G. Evid. § 1002.
Where, as here, the entity keeping the records has a system in
place to maintain accurate electronic copies of paper documents,
the production of the original is expressly excused by statute.
See G. L. c. 233, § 79E. See also Mass. G. Evid. § 1003, at
11
General Laws c. 233, § 78. At trial, the prosecutor
treated the relevant documents as business records admissible
pursuant to G. L. c. 233, § 78, a statutory exception to the
hearsay rule. To invoke that statute, the party proffering the
document must demonstrate
"that (1) the entry, writing, or record was made in good
faith; (2) in the regular course of business; (3) before
the beginning of the civil or criminal proceeding in which
it is offered; and (4) it was the regular course of such
business to make such memorandum at the time of such act,
transaction, occurrence, or event, or within a reasonable
time thereafter."
Siny Van Tran, 460 Mass. at 548. The defendant argues that
these prerequisites cannot be met for those documents that the
Commonwealth claimed were forged, such as the withdrawal slips
for the Wall withdrawals. As the defendant puts it in her
brief: "the Commonwealth could not both purport to the court
that the documents were forged in bad faith and records of
fraudulent transactions not part of the bank's ordinary
353. To the extent that any original records were in electronic
format, "[t]he best evidence rule does not forbid the use of
'copies' of electronic records (including e-mails and text
messages and other computer data files), because there is no
'original' in the traditional sense." Commonwealth v. Salyer,
84 Mass. App. Ct. 346, 356 n.10 (2013), citing Commonwealth v.
Amaral, 78 Mass. App. Ct. 671, 675–676 (2011); G. L. c. 233,
§ 79K.
12
business[,] and that they were exempted from the hearsay
exclusionary rule as reliable business records."11
The defendant's argument is correct up to a point. To the
extent that the Wall withdrawal slips were forged, they cannot
qualify as business records made in good faith in the regular
course of business.12 See Commonwealth v. Williams, 63 Mass.
App. Ct. 615, 618-619 (2005). However, the fact that some of
the admitted documents did not qualify as business records
within the meaning of G. L. c. 233, § 78, does not mean that
they could not be admitted on a different basis. See Williams,
supra. Here, as in Williams, the documents were being offered
for nonhearsay purposes; whether they fell within the ambit of
§ 78 is beside the point so long as they otherwise could be
authenticated properly. See id. at 619.
As far as authentication goes, Backstrom's demonstrated
knowledge of the bank's record keeping system, together with the
nature and circumstances of the withdrawal slips at issue,
11
The defendant argues that this issue was preserved by
various objections that touched on the application of the
business records statute. The Commonwealth counters that no
objections were raised with the specificity necessary to
preserve the issue. Finding no error, we need not resolve the
question.
12
Had the withdrawal slips been made out by an actual
customer, then they still, strictly speaking, would not have
been business records, because a writing received by a business
is not itself a record "made" by the business. See Wingate v.
Emery Air Freight Corp., 385 Mass. 402, 409 (1982) (Liacos, J.,
concurring).
13
provided ample support for authenticating those documents.13 See
Commonwealth v. Duddie Ford, Inc., 28 Mass. App. Ct. 426, 435
(1990), S.C., 409 Mass. 387 (1991) ("documents were sufficiently
authenticated to be admitted to show what was on record at the
bank" where an officer of the bank provided testimony
identifying the bank's records and described their function).
See also Mass. G. Evid. § 901(a), at 333 (authentication
requirement met if testimony is "sufficient to support a finding
that the item is what the proponent claims it is"). There was
no requirement that the Commonwealth produce an eyewitness to
the creation of the records. See Williams, supra at 619-620(lack of direct testimony concerning the production of or
signature on a document not a bar to admissibility). Nor was
there any requirement that the witness through whom the
documents were admitted formally be designated a keeper of the
records (a designation that would have added little to
Backstrom's demonstrated knowledge of the bank's record keeping
system). Compare Bowles, 751 F.3d at 40; Beal Bank, SSB v.
Eurich, 444 Mass. 813, 818-819 (2005) (testimony of bank manager
provided sufficient authentication even though he lacked
"personal knowledge regarding the maintenance of the
predecessors' business records").
13
Further, the defendant has failed to put forward any
reason to doubt the authenticity of the records that she
challenges.
14
None of this is to say that the documents were introduced
in a model manner. However, a "defendant is entitled to a fair
trial, not a perfect one." Commonwealth v. Lodge, 431 Mass.
461, 476 (2000), citing Commonwealth v. Graves, 363 Mass. 863,
872-873 (1973). In this regard, we note that the defendant
grossly overstates the role that the documentary evidence played
here. For example, that the defendant used a withdrawal slip to
obtain $300 cash from Wall's checking account was independently
established by the teller's live testimony as well as by the
defendant's admissions to Backstrom (and eventually through her
trial testimony). Moreover, her defense consistently was that
she gave the money to Wall, not that she did not take it in the
first place.
General Laws c. 233, § 77. The defendant's other appellate
argument is based on G. L. c. 233, § 77, an evidentiary statute
specific to bank records. That section states that copies of
bank records
"shall be competent evidence in all cases, equally with the
originals thereof, if there is annexed to such copies an
affidavit . . . stating that the affiant is the officer
having charge of the original records, books and accounts,
and that the copy is correct and is full so far as it
relates to the subject matter therein mentioned."
15
G. L. c. 233, § 77. Because the bank records introduced here
were unaccompanied by any keeper of the records affidavit, the
defendant argues that their admission was improper.14
This issue was not preserved at trial. Although the
defendant raised various objections to the introduction of the
documents, at no point did she ever reference G. L. c. 233,
§ 77, or object on the ground that a required affidavit was
absent. Our review is therefore limited to whether the
admission of the documents was error creating a substantial risk
of a miscarriage of justice. Commonwealth v. Irene, 462 Mass.
600, 608 n.16 (2012).
In any event, we discern no violation of the statute, much
less a substantial risk of a miscarriage of justice. The focus
of § 77 is to ease the admission of copies of bank records by
obviating the need for the proponent of the records either to
call a live witness through whom the documents had to be
introduced or to produce the original records (as might be
deemed necessary under a strict application of the best evidence
14
Section 77, unlike some other sections included within
G. L. c. 233, does not require that the documents be submitted
to court prior to trial and be made available for inspection.
See, e.g., G. L. c. 233, § 79. The defendant makes no claim
that she lacked notice of what documents the Commonwealth was
going to offer at trial.
16
rule).15 See Mass. G. Evid. §§ 901(b)(7)(A) & 1003, at 337-338,
353 (classifying § 77 as a statute that "deal[s] with
authentication" and "equalize[s] duplicates and originals"). We
do not view the statute as providing an exclusive means of
authenticating bank records, or as precluding a party from
authenticating a bank record through a live witness.16 See Mass.
G. Evid. § 902(d), at 341-342, 345 (describing § 77 as a means
of "[s]elf-[a]uthenticating" bank records to relieve the
necessity of showing "[e]xtrinsic evidence of authenticity").
Our analysis is not inconsistent with Irene, the principal
case upon which the defendant relies. In that case, at issue
was a hospital report from a treating physician that included a
statement that "[t]he patient [the defendant] states that he was
minding his own business while he was in a taxicab when he got
shot." Irene, supra at 608. The trial judge ruled that the
hearsay statement would have to be redacted if the physician's
report were admitted pursuant to the hospital records statute,
15
Section 77 dates to 1885, a time when bank records were
kept by hand and producing accurate copies acceptable as
evidence may well have been a nontrivial task. See St. 1885,
§ 92.
16
Nor do we view the statute as setting forth the only way
that the best evidence rule can be satisfied. See note 10,
supra.
17
G. L. c. 233, § 79.17 See Irene, supra at 608. However, the
judge allowed in evidence an unredacted version of the report
under the business records statute, G. L. c. 233, § 78. See
Irene, supra at 606. The Supreme Judicial Court ruled that this
was improper. Id. at 616. The court reasoned that where the
Legislature had placed specific limitations on the introduction
of hearsay contained in hospital records, the Commonwealth was
not free to avoid those limitations by recharacterizing the
hospital records as general business records. Id. at 615-616.
The defendant before us argues that the bank records statute,
G. L. c. 233, § 77, is a specific statute analogous to the
hospital records statute, and that the Commonwealth cannot avoid
complying with it by having the documents admitted pursuant to
the general business records statute. This analogy breaks down
under scrutiny.
The concern in Irene was over hearsay, not authentication.
With the Legislature having addressed the admissibility of
hearsay contained in hospital records in a particular fashion,
the court in effect ruled that § 79 occupied the field to the
exclusion of other hearsay statutes. See Irene, 462 Mass. at
612-614 (explaining how § 79 addressed concerns different from
other hearsay exceptions, such as business records). Section
17
General Laws c. 233, § 79, allows the admission of
hospital records only "so far as such records relate to the
treatment and medical history of such cases."
18
77, by contrast, does not address hearsay issues and instead
serves a more limited function than § 79.18 We do not view § 77
as precluding the admission of bank records through other means.
Sufficiency. The defendant additionally argues that the
Commonwealth's evidence that she committed a larceny against
Wall was legally insufficient in one respect. In assessing such
a claim, we consider "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." Commonwealth v. Latimore, 378 Mass. 671,
677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318-
319 (1979).
To make out a case of larceny, the Commonwealth must prove
inter alia that a defendant possessed "the specific intent to
deprive the person of the property permanently." Commonwealth
v. Donovan, 395 Mass. 20, 25-26 (1985), quoting from
Commonwealth v. Johnson, 379 Mass. 177, 181 (1979). Because
Wall had died before trial, she was not available to testify to
18
As the Commonwealth acknowledges, to the extent that a
bank record included hearsay, § 77 would not itself provide an
exception allowing such hearsay to be admitted. Far from
addressing the admissibility of bank records in a comprehensive
fashion, § 77 is not even the only evidentiary statute that
specifically references such records. See G. L. c. 233, § 77A
(applicable to certain bank statements of account); G. L.
c. 233, § 79A (applicable to copies of bank records in a similar
fashion as § 77). The defendant has not touched on either of
these statutes.
19
whether she received the $1,000 from the June 5, 2006,
withdrawal or the $300 from the July 21, 2006, withdrawal. The
defendant argues that, absent such affirmative proof (and in the
face of her claim that Wall eventually did receive the money),
the evidence was legally insufficient that she permanently
intended to deprive Wall of the money. This argument requires
little discussion. There was ample circumstantial evidence that
would allow rational jurors to conclude, beyond a reasonable
doubt, that the defendant intended to steal the money she took
from Wall's account. For example, with regard to the July 21,
2006, incident, there was evidence that the defendant had forged
Wall's signature, lied to Backstrom about doing so, and
deposited $200 cash into her own account directly after
receiving the $300 cash from Wall's. From such evidence, a
rational trier of fact could have drawn the reasonable inference
that the defendant intended to permanently deprive Wall of the
money she withdrew.
Judgments affirmed.