Opinion
15-P-1656
06-20-2017
COMMONWEALTH v. Joseph P. BERNARDO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Over a six month period, the defendant, Joseph P. Bernardo, wrote numerous checks from the bank account of the victim, his mother, for his own benefit. After a bench trial in the District Court, he was convicted of larceny over $250 by a single scheme. On appeal, he contends that (1) the judge abused his discretion in admitting his mother's bank records; (2) the judge erred in denying the defendant's motion for a required finding of not guilty; and (3) the judge erred in failing to consider a claim of right "instruction." We affirm.
Discussion. 1. Admission of bank records. The defendant argues, as he did at trial, that the judge's admission of his mother's bank records was in error because they contained inadmissible hearsay. We disagree. The records were properly admitted pursuant to the business records exception to the hearsay rule. See G. L. c. 233, §§ 78, 79J ; Mass. G. Evid. § 803(6)(A) (2017). The defendant also contends that the records were inadmissible because they were not accompanied by an affidavit taken by a clerk of court or notary public as required under G. L. c. 233, § 77. He claims that because § 77 pertains specifically to bank records, it is the exclusive means by which to admit such records. The defendant's argument misses the mark. As this court recently held in Commonwealth v. Perez, 89 Mass. App. Ct. 51, 60-61 (2016), § 77 does not preclude the admission of bank records through other means. Here, the judge noted that the records did not comply with the requirements of G. L. c. 233, § 77, but ultimately admitted the records in his discretion under G. L. c. 233, §§ 78, 79J. See Poirier v. Plymouth, 374 Mass. 206, 210 (1978). We note that the records were certified by the keeper of records of the Pittsfield Cooperative Bank, and we discern no abuse of discretion by the judge.
In his brief the defendant acknowledges our holding in Perez, supra, but nonetheless urges that we reach a different conclusion, in part because further appellate review "has been applied for" in that case. However, after the defendant's brief was filed, further appellate review was denied in Perez, see Commonwealth v. Perez, 474 Mass. 1106 (2016). We shall follow our precedent and decline the defendant's request.
We are not persuaded by the defendant's claim that § 77 is the exclusive way to introduce bank records "if the Commonwealth is not to produce a live witness." This argument is not supported by legal authority in the defendant's brief, as mandated by Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975), and consequently does not rise to the level of proper appellate argument. See Cameron v. Carelli, 39 Mass. App. Ct. 81, 85-86 (1995).
2. Insufficient evidence. The defendant argues that the judge should have allowed his motion for a required finding of not guilty at the close of the Commonwealth's case because the evidence was insufficient to show either an unlawful taking or a specific intent to deprive his mother of the funds. We review under the familiar standard of Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979), and conclude that there was no error.
The defendant's argument rests, in part, on his assertion that the bank records were erroneously admitted. For the reasons stated supra, we conclude that the records were admitted properly. Moreover, the Commonwealth put forth evidence establishing that in the relevant time frame—August, 2012, to January, 2013—the defendant was a representative payee for his mother's account. It was not a joint bank account, as the defendant urges, but rather, viewed in the light most favorable to the Commonwealth, the account existed solely for his mother's benefit. The defendant would have been aware of this, as he instructed the bank to change his mother's account from a joint account to a representative payee account to enable her to participate in a Federal benefits program for surviving spouses of combat veterans. The bank records show that the defendant wrote checks from his mother's account, far in excess of $250, to pay for expenses that were his alone. Further, the judge heard testimony that the defendant was having financial difficulties. The bank statements displaying these transactions were sent directly to the defendant; his mother did not receive them. There was evidence that because of the defendant's withdrawals from the account for his own benefit, his mother was evicted from the assisted living facility where she resided. Upon her eviction, she was in "[d]isbelief." Viewing the government's evidence in the light most favorable to the Commonwealth, see Latimore, supra, a rational trier of fact could have found that the defendant unlawfully took funds from his mother's account and utilized them for his own benefit. Therefore, the motion for a required finding at the close of the Commonwealth's evidence was properly denied.
From August, 2012, to January, 2013, the defendant wrote checks payable to cash, AAA, FIA card services, the Board of Bar Overseers, Safety Insurance, Lahey Clinic, NStar, Faulkner Hospital, Premier Insurance, Bank of America, Capital One, AHL Phoenix, Harriet Fisher, Joseph Bernardo, West River Pharmaceutical, Family Practice, and Dr. Robert Brinsler. Not one of these checks was attributable to any expense of his mother.
3. Claim of right "instruction." The defendant argues that the judge erred in failing to consider a "self instruction" that a defendant's mistaken but honest belief that he has a right to the property at issue negates the intent to steal. See Commonwealth v. Liebenow, 470 Mass. 151, 157 (2014). Although the defendant did not request such an instruction at trial, he now claims that the lack of the instruction created a substantial risk of a miscarriage of justice. We disagree.
"A defendant's mistaken but honest belief that he has a right to the property negates the intent to steal." Commonwealth v. St. Hilaire, 470 Mass. 338, 348 (2015).
In a jury-waived case, the trial judge is presumed to have instructed himself properly on the law. See Commonwealth v. Milo M., 433 Mass. 149, 152 (2001). The defendant's argument ignores this principle.
The defendant's argument is further belied by his trial counsel's statement, at a posttrial hearing, that counsel "didn't think there was any confusion" regarding the judge's consideration of the elements of the offense.
In any event, the defendant has not demonstrated a substantial risk of a miscarriage of justice. Here, there was compelling evidence undermining the genuineness of the defendant's belief in his right to his mother's funds. The judge was permitted to assess the defendant's credibility and conclude from his testimony that he did not have an honest belief that he was entitled to pay himself for legal services out of his mother's account because, inter alia, he testified at length that she was incapable of consenting to any fee agreement. See Liebenow, supra at 161. Indeed, the judge could rightly have viewed the defendant's defense as asking him to "divorce [himself] of common sense." Ibid. (quotation omitted). Accordingly, we discern no substantial risk of a miscarriage of justice.
The defendant did not deny that he wrote checks for his own benefit from his mother's account. Rather, he claimed that he was entitled to do so because she purportedly "owed" him roughly $21,000 in legal fees and his "understanding" was that he acted with her consent. However, he admitted that he never executed a fee agreement or power of attorney with his mother because she could not "comprehend" such arrangements and it would be "unethical" to have her sign either because she was "incompetent."
To the extent we do not discuss other arguments made by the defendant, they "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
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Judgment affirmed.