Com. v. O'Connell

• Decision Date: 12 February 2003
• Citation: 783 N.E.2d 417,438 Mass. 658
• Parties: COMMONWEALTH v. Ralph M. O'CONNELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

783 N.E.2d 417

438 Mass. 658

COMMONWEALTH v. Ralph M. O'CONNELL.

Supreme Judicial Court of Massachusetts, Berkshire.

Argued December 5, 2002.

Decided February 12, 2003.

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Joseph A. Pieropan, Assistant District Attorney, for the Commonwealth.

Jon R. Maddox for the defendant.

Present: MARSHALL, C.J., GREANEY, SPINA, SOSMAN, & CORDY, JJ.

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 Appeals Court concluded that the evidence was insufficient to support the convictions, and reversed. See Commonwealth v. O'Connell, 55 Mass. App.Ct. 100, 769 N.E.2d 331 (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, 769 N.E.2d 331. 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, 393 N.E.2d 370 (1979). In April, 1998, the defendant cashed five checks payable to himself and drawn on his father's accounts at City Savings Bank and Lee Bank, both in Lee. The following month, his father, Stephen O'Connell (Mr. O'Connell)¹ went to the banks and complained that checks drawn on his accounts were "not properly payable." For purposes of this case, a check is "not properly payable" if it is stolen or forged² When a customer makes such a complaint the banks implement a procedure that the customer must follow before his or her account is recredited the amount of a stolen or forged check.³ First, the bank requires the customer to go to the local police department to report the incident. The bank awaits notification by the local police department that such a report has been filed. The customer then returns to the bank and signs an affidavit of forgery, certifying to the bank that the customer did not sign the check and that it was unauthorized.⁴ Finally, the bank recredits the customer's account.⁵

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, 393 N.E.2d 370, quoting Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

(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, 149 N.E. 600 (1925) (jury could make comparisons for themselves); Levi v. Rubin, 241 Mass. 40, 41, 134 N.E. 234 (1922) (expert testimony permissible but not necessary); Noyes v. Noyes, 224 Mass. 125, 130, 112 N.E. 850 (1916) (opinion of jury is quite as good as witness of ordinary experience); Buker v. Melanson, 8 Mass.App. Ct. 325, 330, 393 N.E.2d 436 (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. See Commonwealth v. Analetto, 326 Mass. 115, 118, 93 N.E.2d 390 (1950).

(b) Intent to injure or defraud. The crimes of forgery and uttering both require proof of an intent to injure or defraud. See Commonwealth v. Analetto, supra; Commonwealth v. Boutwell, supra. The Commonwealth need not show that the defendant intended to injure or defraud a particular person. It is sufficient that he intended to injure or defraud someone. See ...