Opinion
16-P-211
02-28-2017
COMMONWEALTH v. Jason FUMO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Jason Fumo, appeals from his conviction of larceny over $250, in violation of G. L. c. 266, § 30(1). On appeal, the defendant argues that the judge improperly admitted evidence that did not satisfy the business records exception to the hearsay rule. We affirm.
Background . Colonial Air is a business, located in New Bedford, that performs services required for aircraft including storing, fueling, and maintaining airplanes, as well as warehousing airplane parts. The defendant was employed by Colonial Air as a lineman, where he performed various maintenance duties such as moving equipment, fueling airplanes, plowing snow and mowing grass.
Chris Cunningham, the general manager of Colonial Air, occasionally asked the defendant to assist him with "scrap[ping]" or selling aircraft materials that were no longer useful to Colonial Air. Cunningham and the defendant would load the materials into a Colonial Air dump truck. Cunningham would then send the defendant to A.W. Martin, Inc. (A.W. Martin), for the materials to be scrapped. Cunningham maintained the sole authority to direct any employee to scrap metal belonging to Colonial Air.
A.W. Martin used the following process when a customer arrived with scrap material: (1) the customer drove its truck full of materials onto a scale to be weighed; (2) an A.W. Martin employee used a time-recording camera, which was mounted over the scale, to manually photograph the truck filled with materials; (3) the materials were emptied in a scrap yard and the truck was weighed for a second time to ascertain the net weight of the materials; (4) an A.W. Martin employee generated a ticket that identified several aspects of the transaction including the time, vehicle, net weight of the materials, price, and confirmation of cash paid; and (5) an A.W. Martin employee took a photograph of the customer's driver's license on the generated ticket. A.W. Martin retained a printed record of three items for each transaction: the computer generated ticket, the photograph of the ticket and license, and the photograph of the scrap materials.
The New Bedford police department also maintained a copy of the ticket for each of these transactions by A.W. Martin as a normal course of business.
The computer generated ticket and photograph of the ticket and license were kept as a hard copy in a file organized by month and date. The photograph of the scrap materials was stored electronically in A.W. Martin's computer files.
On July 25, 2013, between 9:14 a.m. and 9:19 a.m., the defendant brought materials from Colonial Air to be scrapped at A.W. Martin without authorization from Cunninghman. The materials included twelve aircraft cylinders, each worth between $100 and $200, and landing gear legs, worth "more than $5,000."
When Cunningham discovered that the materials were missing, he went to A.W. Martin and spoke with Melissa Cournoyer, an employee who oversaw the records at A.W. Martin. Cunningham was provided with three digital printouts from A.W. Martin's records (A.W. Martin's records). The first document was a ticket with the description of a blue dump truck, as well as the time and weight of the materials that were delivered to be scrapped. The second document was a photograph of Colonial Air's blue dump truck containing aircraft cylinders and landing gear legs. The third document was a computer-generated photograph of the transaction and the defendant's license.
Cunningham identified the dump truck that was used by Colonial Air to bring scrap metal to A.W. Martin as well as the materials from the photographs.
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The Commonwealth introduced all three documents in evidence under the business record exception to the hearsay rule.
Discussion . We review a judge's evidentiary rulings for an abuse of discretion. See N.E. Physical Therapy Plus, Inc . v. Liberty Mut. Ins. Co ., 466 Mass. 358, 363 (2013). See also L.L . v. Commonwealth , 470 Mass. 169, 185 n.27 (2014) ("[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made ‘a clear error of judgment in weighing’ the factors relevant to the decision ..., such that the decision falls outside the range of reasonable alternatives" [citation omitted] ).
The defendant argues that A.W. Martin's records were improperly admitted by the Commonwealth under the business records exception because they were not reliable or trustworthy. The defendant's main contention is that the records were obtained by the Commonwealth from the complaining victim, Colonial Air, and not from A.W. Martin.
In order for evidence to be admitted under the business records exception, pursuant to G. L. c. 233, § 78, the judge must find the following facts: the record must have been made (1) in good faith, (2) in the regular course of business, (3) before the action was begun, and (4) that it was the usual course of business to make the record at the time of the event recorded or within a reasonable time thereafter. Beal Bank, SSB v. Eurich , 444 Mass. 813, 815 (2005).
We disagree with the defendant's argument that because Colonial Air received the documents from A.W. Martin before this litigation commenced, and provided them to the Commonwealth, the records are unreliable. See McLaughlin v. CGU Ins. Co , 445 Mass. 815, 819 (2006) ("The foundation for the admissibility of a business record does not need to be established through the testimony of the preparer nor, in this case, the transmitter of the record"). This is not a case where the evidence at issue was authenticated by a third party who received, and was relying on, the records from another business. See NationsBanc Mortgage Corp . v. Eisenhauer , 49 Mass. App. Ct. 727 (2000).
Here, Cournoyer, an employee of A.W. Martin at the time of the incident, testified to the authenticity of records that were generated and maintained by A.W. Martin. The witness stated that she supervised the process of maintaining A.W. Martin's records as part of her employment. She also testified to A.W.'s business process of keeping the records, stated that she recognized the three documents and identified that these records were kept in the normal course of A.W. Martin's business.
At trial, the defendant objected to the admission of A.W. Martin's records on several occasions. The judge properly sustained the defendant's objections when the Commonwealth had not yet met the requirements of G. L. c. 233, § 78. However, once the Commonwealth established proper grounds for the admissibility of the evidence under the business records exception, the judge properly overruled the defendant's objection and entered the documents in evidence. The judge properly found that "there was a sufficient basis laid" by Cournoyer, as the testifying witness, to satisfy the business records exception. See Beal Bank, SSB v. Eurich , supra at 815-820; Commonwealth v. Siny Van Tran , 460 Mass. 535, 548-549 (2011), quoting from Wingate v. Emery Air Freight Corp ., 11 Mass. App. Ct. 982, 983 (1981), S.C ., 385 Mass. 402, 406 (1982) ("[T]he business records exception ‘should be interpreted liberally to permit the receipt of relevant evidence’ "). Therefore, there was no abuse of discretion.
Since there was no error, the defendant did not endure any inappropriate prejudice and consequently the judge's admission of the records did not rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Gray , 80 Mass. App. Ct. 98 (2011) ; Commonwealth v. McLaughlin , 79 Mass. App. Ct. 670, 674 (2011).
Judgment affirmed .