Opinion
No. 14–P–170.
08-02-2016
COMMONWEALTH v. Kevin UPSHAW.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted on three indictments for uttering, perjury by false written statement, and attempted larceny. On appeal, he argues that there were several errors: (1) the decedent's 1986 will was inadmissible hearsay or, in the alternative, a testimonial document admitted in violation of Crawford v. Washington, 541 U.S. 36 (2004) ; (2) admission of an additional eight notary seals seized from the defendant was prejudicial; and, (3) statements made by the prosecutor in her closing argument that the defendant was a “forger” were improper. He also raises several claims and argues them pursuant to Commonwealth v. Moffett, 383 Mass. 201 (1981). We affirm.
A mistrial was declared as to the three forgery charges; on July 25, 2013, the Commonwealth filed a nolle prosequi on each.
Background. Dr. Rose Jannini, of Winthrop, died on April 16, 1986; the executor of her estate probated her will in the Probate and Family Court in 1988, valuing Jannini's estate at roughly $1.24 million. , The executor did not take any further action, and the bulk of Jannini's estate eventually was turned over to the Unclaimed Property Division of the State Treasurer's Office located in One Ashburton Place in Boston (Treasurer's Office).
The will instructed that the “residue and remainder” of Jannini's property (after certain tangible personal property and cash were distributed to the executor and his wife, Jannini's cousin) be placed into the Jannini Foundation Trust; the only trust document included in this record is the disputed 1984 “Declaration of Irrevocable Trust of the Jannini Family Trust” presented by the defendant.
A redacted copy of the will was admitted in evidence at trial; the Probate Court's acknowledgment on the will accepting the instrument as genuine was redacted after partial allowance of the defendant's motion in limine.
On March 15, 2010, the defendant went to the Treasurer's Office to make a claim on property from Jannini's thirty year old estate. He asserted that he had been sent from the Probate and Family Court, although he did not provide any documentation from the court at that time. The defendant did present to the paralegal stationed at the counter of the public reception area, a document he alleged to be Jannini's 1984 last will and trust. According to that document, the trustee at the time of Jannini's death was Ruth Hamlin Greer; however, because Greer was deceased, the defendant had become the sole trustee and beneficiary of the remainder of Jannini's estate. The paralegal asked the defendant how he was related to Jannini and the response was “very vague. He said that he was nominated. Nothing very specific.” She thought that the defendant's presentation “didn't make much sense.” In addition, the defendant appeared agitated and complained about his parking fees, encouraging the paralegal to “speed ... up ... the process [and] give him claim forms.” As a result, the paralegal consulted Thomas McAnespie, Unclaimed Property Administrator for the Commonwealth. McAnespie instructed the defendant to return to the Probate Court to obtain appropriate documentation.
On April 6, 2010, the defendant petitioned the Probate Court to become successor trustee; on June 29, 2010, a judge of the Probate Court issued a decree making the appointment. In July, 2010, the defendant returned to the Treasurer's Office with that decree. Although he again asked for “claim forms,” he was not provided with them. McAnespie subsequently received a letter from the defendant, dated September 24, 2010, with a copy that purported to be the 1984 last will and testamentary trust of the testator Rose Jannini, and accompanying list of trust assets. The letter requested that the Treasurer compare the documents to determine that the unclaimed property held was, indeed, the same as the listed assets from Jannini's estate. The defendant also stated he would schedule a meeting at McAnespie's office once the assets had been confirmed, and after he had hired an attorney to assist with the reclaiming process. On October 28, 2010, the defendant was arrested on a warrant in the lobby of One Ashburton Place, presumably when he was on his way to meet with McAnespie.
At trial, State police Officer David Crowther testified that he executed a search warrant at the defendant's residence in Millbury; officers seized from a large plastic container located in the basement several notary seals engraved with various names and states of issue. One seal, in particular, was engraved with the name Marlene Siegel, the person who purportedly had notarized the 1984 will and trust document the defendant had presented to the Probate Court in connection with his successor trustee petition; he also presented the same document later in the Treasurer's Office. Crowther testified that, as part of his investigation, he had obtained from the State of Connecticut a copy of Siegel's application for appointment as notary public; it was dated June, 1988, four years after she appeared to have notarized the 1984 will.
Crowther also testified at the defendant's trial that the appraisal of trust assets contained in the Probate Court file of the 1988 will petition, which he personally obtained from the court, and the asset list attached to the defendant's September 24, 2010, letter sent to McAnespie, “appear to be exactly the same.”.
Discussion. a. 1986 will. The defendant first argues that the certified copy of Rose Jannini's redacted 1986 will was improperly admitted in evidence at trial because the document was hearsay. In response to the defendant's motion in limine, the prosecutor redacted from the document any indication that it had been accepted by the Probate Court as genuine; thereafter, the defendant did not object at trial to the admission of the will. Our review is therefore limited to whether admission of the will was error, and if so, whether that error created a substantial risk of a miscarriage of justice. See Commonwealth v. Pires, 453 Mass. 66, 74 (2009).
We see no error. The will was a verbal act, not offered for the truth of what it asserted-that Jannini's property would in fact be distributed as it directed. See Commonwealth v. Morse, 468 Mass. 360, 375 n. 20 (2014). (“It is well established, however, that ‘operative words' bearing independent legal significance ... are not hearsay.”). Commonwealth v. Purdy, 459 Mass. 442, 452 (2011). Mass. G. Evid. 801(c) (2016). The Commonwealth offered the redacted will: 1) to demonstrate how Jannini intended to have her estate distributed upon her death, including the fact that she did not include the defendant as a beneficiary, and 2) to provide to the jury a signature comparison to the purported 1984 will the defendant presented to the Probate Court. While “[d]eclarations of a testator cannot be received to prove the execution of a will, [they] may be shown to show the state of mind or feelings of the testator.” Mass. G. Evid. § 803(3) B(iii) (2016). “Statements of a person as to his or her present friendliness, hostility, intent, knowledge, or other mental condition are admissible to prove such mental condition.” Mass. G. Evid. § 803(3)(B)(i) (2016).
There was expert testimony that Jannini's signature on the 1986 will did not match the signatures on the 1984 will and trust documents and, further, that the defendant had written all three of the signatures on the 1984 will and trust.
The defendant's argument that the will was testimonial under the Confrontation Clause of the Sixth Amendment to the United States Constitution also fails. See Crawford v. Washington, 541 U.S. 36, 59 (2004). “[T]he touchstone of the confrontation clause analysis is whether the primary purpose of a declarant's out-of-court statement is testimonial or nontestimonial—that is, whether the statement is intended to ‘prove past events potentially relevant to later criminal prosecution.’ “ Commonwealth v. Middlemiss, 465 Mass. 627, 634 (2013), quoting from Michigan v. Bryant, 562 U.S. 344, 356, 366 (2011) (emphasis original). In this case, the will was created to document Jannini's intentions as to the distribution of her estate upon her death, not to prove any past event or criminal charge.
b. Notary seals. There is no dispute that the admission in evidence of Siegel's notary seal was permissible. Although he did not object at trial, the defendant now argues that the admission of the other eight notary seals found at his residence was improper. We disagree. “Relevant evidence is admissible as long as the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.” Commonwealth v. Wall, 469 Mass. 652, 661 (2014). The defendant argues that the Commonwealth offered the notary seals to show prior or future bad acts and his likely propensity for having committed the charged crimes. While “prior or subsequent bad acts [evidence] is inadmissible for the purpose of demonstrating the defendant's bad character or propensity to commit the crimes charged ... such evidence may be admissible for some other purpose, for instance, ‘to establish motive, opportunity, intent, preparation, plan, knowledge, identity, or pattern of operation.’ “ Commonwealth v. Crayton, 470 Mass. 228, 249 (2014), quoting from Commonwealth v. Walker, 460 Mass. 590, 613 (2011) (citations omitted).
Here, the eight notary seals were admitted at trial, without objection, to show the defendant's intent and state of mind when he attempted to collect Jannini's estate. They were relevant to show that his intent was deception when he chose Siegel's notary seal from among the many in his possession to notarize the will he submitted. We see no abuse of discretion in the judge's determination that the probative value of the seals outweighed any prejudicial effect their admission would have on the defendant. See Wall, supra at 661. Even if we were to assume, and we do not, that the evidence was improperly admitted, the defendant has not demonstrated prejudice, as notary seals in themselves, unlike, say, weapons, are not particularly prejudicial; in addition, the forgery charges were nolle prossed after the jury could not agree on a verdict.
c. Closing argument. Finally, the defendant claims that the prosecutor, during closing argument, improperly branded the defendant with the epithet of “forger.” Because there was no objection to the closing argument, we again determine whether any error created a substantial risk of a miscarriage of justice. Commonwealth v. Jones, 471 Mass. 138, 148 (2015).
The prosecutor began his argument by stating, “That man, Kevin Upshaw, is a forger, and these are the tools of his trade[:][n]otary stamps from all over the country;” thereafter he continued to refer to the defendant as a forger—when speaking of his use of Siegel's notary seal on the 1984 will, and when summarizing the evidence found by police in the basement of his residence, specifically, the other eight notary seals. Referring to the defendant as a “forger” was not, as the defendant argues, an improper epithet, but, rather, a permissible characterization of the defendant who was being tried on three counts of forgery. See Commonwealth v. Wilson, 427 Mass. 336, 351–352 (1998) (prosecutor's remark that jurors were in the “rare company of a triple murderer” was proper where defendant was charged with three murders).
In addition, referring to the notary seals as “tools of the trade” was not improper, as the seals were relevant to show the defendant's intent to commit fraud. However, even if the prosecutor's description of the notary seals as “tools of the trade” could have been understood as a reference to the defendant's character or propensity to commit a crime, we would see no substantial risk of a miscarriage of justice. “The fact that the jury [was deadlocked on the forgery charge] suggests that they were not in fact swayed” by the prosecutor's remarks. Commonwealth v. Lassiter, 80 Mass.App.Ct. 125, 132 (2011).
We have carefully considered the issues raised by the defendant pursuant to Commonwealth v. Moffett, 383 Mass. 201, 208–209 (1981), and find them to be without merit.
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