COMMONWEALTH v. MITCHELL (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

A District Court jury convicted the defendant of two counts of larceny over $250 by a single scheme in violation of G. L. c. 266, § 30 (1). The convictions were based on evidence that the defendant, a server at two restaurants, stole cash receipts from each restaurant over the course of three years. On appeal, the defendant claims that the evidence supporting his convictions was insufficient, that the judge abused his discretion in admitting certain evidence against him, and that a defense witness was improperly excluded. We affirm.

1. Sufficiency of the evidence. The defendant first argues that the evidence was insufficient to prove beyond a reasonable doubt that he intentionally took and carried away cash receipts, which belonged to the restaurants. “In determining whether the evidence was sufficient to survive a motion for a required finding, we [ask] whether, after viewing the evidence in the light most favorable to the Commonwealth, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Arce, 467 Mass. 329, 333 (2014), quoting Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). To prove larceny, the Commonwealth was required to prove beyond a reasonable doubt that the defendant unlawfully took and carried away the restaurants' property with the specific intent to deprive the restaurants of the property permanently. See Commonwealth v. Mills, 436 Mass. 387, 394 (2002). Larceny may be proved by circumstantial evidence and the reasonable inferences drawn from that evidence. See Commonwealth v. Caparella, 70 Mass. App. Ct. 506, 510 (2007).

Here, the jury heard evidence that the servers at the restaurants were required to deliver all cash receipts (except tips) to the restaurant at the end of each shift. At that time, each server completed and signed a “cash out sheet,” which recorded all of the server's customer transactions. If a customer used a restaurant gift card as a form of payment, the gift card number and the amount of the gift card were recorded on the server's cash out sheet. The computerized point of sale system generated a printout called a summary report, which showed the amount of cash the server owed the restaurant for that shift. The server then delivered the cash to the restaurant manager before leaving the restaurant.

An examination of the defendant's cash out sheets, the summary reports, the restaurant receipts, and the gift card records, all of which were admitted in evidence, revealed a pattern of transactions in which the defendant reported that he had received a gift card from a customer as payment when, in fact, (1) the gift card recorded had never been sold by the restaurant, (2) the gift card had already been redeemed for its full face value, or (3) the gift card was used in an amount that exceeded its face value. For example, the records show that the defendant reported payment by gift card number 3464 twelve different times. After gift card number 3464 was redeemed for its face value of $150, the defendant reported receiving the same gift card as payment eleven additional times for a total of $890. We need not describe in detail the evidence supporting each fraudulent gift card transaction reported by the defendant. Suffice it to say that based on the jury's verdicts and the evidence submitted at a restitution hearing, the judge ordered that the defendant pay restitution in the amount of $3,589.76.

This pattern of bogus gift card transactions reported by the defendant gave rise to a reasonable inference that he fraudulently reported gift card transactions in a scheme designed to balance the restaurants' records and to conceal the fact that he was taking cash received from restaurant customers for himself. The documentary evidence, albeit circumstantial, was sufficient to prove beyond a reasonable doubt that the defendant intentionally took and carried away cash receipts, which were the property of the restaurants.²

2. Summary spreadsheets. The Commonwealth filed a motion in limine seeking to admit summary spreadsheets for each of the eleven binders of records related to the defendant's transactions. The binders, which were admitted in evidence, included cash out sheets, summary reports, guest checks, gift cards, and other payment information. A judge other than the trial judge allowed the motion in limine over the defendant's objection, reasoning that the spreadsheets were admissible as an “index” for each binder of exhibits.³ The defendant claims that the trial judge abused his discretion in admitting the spreadsheets because many of the entries in the spreadsheets were inaccurate.⁴

“Summary charts of voluminous evidence are permissible if they are accurate and fair, although ‘care must be taken to insure that summaries accurately reflect the contents of the underlying documents and do not function as pedagogical devices that unfairly emphasize part of the proponent's proof’ ” (citations omitted). Commonwealth v. Mimless, 53 Mass. App. Ct. 534, 538 (2002). Here, it is undisputed that the underlying records were voluminous and that a summary or chart would assist the jury. See Mass. G. Evid. § 1006 (2019). The defendant claims that the spreadsheets should not have been admitted because the summaries contained ninety-seven errors. The Commonwealth concedes that there were mistakes in the summary spreadsheets, but disagrees regarding the number and the significance of those mistakes.⁵

We need not resolve the dispute regarding the number of mistakes in the summaries because we discern no prejudice from their admission. First, the jury had an opportunity to examine all of the underlying exhibits. Second, many of the omissions in the summary sheets inured to the benefit of the defendant. Third, the restaurant manager who prepared the summaries was vigorously cross-examined regarding the errors, and defense counsel emphasized the inaccuracies in both her opening statement and closing argument. Finally, the judge twice instructed the jury that the summaries were prepared by the restaurant manager, that the jury were free to consider any discrepancies between the summaries and the underlying records, and that they were free to accept or reject the summary sheets. In these circumstances, we conclude that the errors in the summary sheets did not prejudice the defendant because they “did not influence the jury, or had but very slight effect” (citations omitted). Commonwealth v. Cruz, 445 Mass. 589, 591 (2005).

3. Exclusion of defense witness. The trial judge refused to allow defense counsel to call his paralegal as a witness to opine on the accuracy of the Commonwealth's summary spreadsheets. The judge reasoned that the witness was not qualified to testify on that subject because she had no expertise in forensic accounting and no experience with the restaurants' recordkeeping system. The defendant claims that the judge's decision infringed on his constitutional right to present a defense. We disagree.

A defendant has a constitutional right to call witnesses in defense of a criminal charge. See Commonwealth v. Durning, 406 Mass. 485, 494-495 (1990). “However, the right to call witnesses is not absolute ․” Id. at 495. “[A] trial judge has the discretion to control the scope of the examination of witnesses, ․ and can exclude witnesses whose testimony is cumulative, repetitive or confusing ․” Id. Here, the defendant sought to call defense counsel's paralegal to testify regarding her analysis of the Commonwealth's summary spreadsheets and the errors she perceived in those spreadsheets. We see no abuse of discretion in the judge's reasoning that such an analysis required some experience in forensic accounting. Because the paralegal had no technical or other specialized knowledge, her lay opinion was inadmissible. See Mass. G. Evid. §§ 701(c) and 702(a).⁶

4. Admission of work schedules and sales summaries. Over the defendant's objection, the trial judge admitted Cook employee work schedules and the defendant's sales summaries. The defendant claims the judge abused his discretion because the prejudicial impact of these records substantially outweighed their probative value. We disagree.

Whether “evidence is relevant and whether its probative value is substantially outweighed by its prejudicial effect are matters entrusted to the trial judge's broad discretion and are not disturbed absent palpable error.” Commonwealth v. Spencer, 465 Mass. 32, 48 (2013), quoting Commonwealth v. Sylvia, 456 Mass. 182, 192 (2010). Here, the work schedules showed that the defendant was one of ten servers at Cook restaurant and the defendant's sales summaries demonstrated that he was responsible for approximately forty percent of all gift card transactions. This disproportionately high number of gift card transactions processed by the defendant supported the Commonwealth's theory that the defendant reported false gift card transactions to conceal his theft of cash receipts from the restaurants. We see no palpable error in the judge's balancing of the probative value and the prejudicial impact of this evidence.

Judgments affirmed.

FOOTNOTES

2.   We are not persuaded by the defendant's argument that the evidence was insufficient to prove “traditional larceny,” rather than embezzlement. The defendant's lawful custody of the cash ended when he misrepresented the payments received, so that he could take and carry away the restaurants' cash. In these circumstances, the defendant most likely could have been prosecuted under either theory.

3.   We have reviewed the transcript of the hearing on the motion in limine, which was submitted after argument by agreement. There is no further explanation of the motion judge's reasoning, or why the motion was not addressed in the first instance by the trial judge.

4.   As examples, the alleged inaccuracies included (1) gift card transactions omitted from the summaries; (2) information in the summaries that did not appear in the binders; and (3) inflated values for certain gift card transactions.

5.   It should go without saying that the prosecutor, who was aware of many of the errors before trial, should have corrected the summaries before they were offered in evidence. Cf. Commonwealth v. Ware, 482 Mass. 717, 725 (2019) (Commonwealth should not allow false evidence to go uncorrected).

6.   The paralegal's proposed testimony would also have been cumulative of other evidence already before the jury regarding the errors in the Commonwealth's summary spreadsheets.