Opinion
11-P-300
12-14-2011
JOSEPH BRAUNSTEIN, trustee in bankruptcy [FN1] v. GLOBALWARE SOLUTIONS, INC.
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
Evidence of the witness's past signing of false documents was inadmissible to demonstrate action in conformity with that prior conduct. See Maillet v. ATF-Davidson Co., 407 Mass. 185, 188 (1990) ('[P]rior acts may not be admitted to prove that a person acted in a similar fashion in the case at hand'), quoting from Lataille v. Ponte, 754 F.2d 33, 35 (1st Cir. 1985). There was no abuse of discretion, or other error of law, in the trial judge's refusal to allow the defendant to vitiate that rule and introduce that evidence for purposes of 'impeachment' by the simple expedient of asking the witness if it was his 'unwavering custom and practice to only sign truthful documents.'
Next, even assuming the computer printout that the defendant sought to introduce was admissible as a business record, a question on which we express no opinion, the defendant -- who neither marked the printout for identification nor made an offer of proof -- has failed to demonstrate any prejudice arising from its erroneous exclusion, particularly in light of the other evidence with regard to payments made to the plaintiff, the mechanisms by which those payments were made, and the invoices submitted by the plaintiff.
Finally we see no abuse of discretion in the judge's denial of the defendant's motion for a new trial. There was sufficient evidence to support the verdict and, beyond what appears on a special verdict form, we will not go behind the verdict to attempt to determine the basis upon which the verdict was reached. See, e.g., Casamasse v. J.G. Lamotte & Son, Inc., 391 Mass. 315, 317-319 (1984); Latino v. Crane Rental Co., 417 Mass. 426, 429-430 (1994). In any event, even were we to conclude that the verdict rested upon a jury determination, consistent with the instruction given by the judge in response to the single question propounded by the jury, that this was a backdated contract, the record demonstrates no objection by the defendant to the submission to the jury of that instruction on the ground that there was insufficient evidence of backdating to support it (or on any other ground). Rather, the only indication in the record concerning the defendant's position is a statement of counsel for the defendant that it was 'satisfied with the [court's] answer' to the jury's question. The judgment is affirmed.
The defendant contends that it objected, or at least that it requested an additional instruction that there was no evidence to support the instruction, but that its objection was unrecorded. The defendant, however, never attempted to reconstruct the transcript to reflect this. See Commonwealth v. Woods, 419 Mass. 366, 371 (1995) ('The burden is on the appellant to ensure that an adequate record exists for an appellate court to evaluate'); Mass.R.A.P. 8(c), (e), as amended, 378 Mass. 932 (1979).
Further, were we to reach the issue, the defendant offers no support for its theory that the jury could not conclude that the contract was backdated because the plaintiff introduced no evidence of backdating, and because it was the plaintiff's theory -- supported by testimony given in his case-in-chief -- that the contract was signed on the date indicated on its face. It was the defendant's theory of the case that the contract was, indeed, backdated, and the defendant has provided no reason the jury could not so find in reliance upon the evidence the defendant itself presented. The unobjected-to instruction allowed a finding that a backdated contract was valid. In order to find for the plaintiff, it was not necessary that the jury find credible all the testimony presented on his behalf.
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So ordered.
By the Court (Graham, Rubin & Wolohojian, JJ.),