NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-1010
COMMONWEALTH
vs.
JOHN J. DONOVAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Essex Superior Court, the
defendant, John J. Donovan, appeals from the following twelve
convictions: forgery (seven counts), uttering, filing a false
document with the registry of deeds, obtaining a signature by
false pretenses, making a false statement under penalty of
perjury, and attempting to commit larceny. The trial judge
entered a required finding of not guilty on an indictment
charging witness intimidation. On appeal, the defendant raises
numerous claims of error. We affirm.
Background. The convictions relate to twenty-five
documents filed by the defendant on September 12, 2016, at the
Essex registry of deeds. A number of these documents (codicil, deeds, appointment of successor trustee, trustee certificate,
mortgages, and special power or attorney) included forged
signatures of the defendant's son, John, who died on April 25,
2015. Other documents included forged attestations of two
notaries and an affidavit obtained from one notary through false
pretenses. The documents also included the defendant's false
affidavit filed in connection with the forged power of attorney
and forged codicil. Simple in its objective but complex in its
execution, the scheme sought to grant the defendant broad powers
over his son's property while depriving the son's widow and
children of their interests in the property.
The scheme unraveled when Attorney Miranda Siemasko, who
previously represented the defendant's son, reviewed the twenty-
five documents filed by the defendant. During 2016, Attorney
Siemasko worked to carry out the son's wishes regarding the
disposition of 120 acres of land in Hamilton that the son had
controlled through Donovan Conservation, LLC. Upon review of
the twenty-five documents filed by the defendant in September
2016, Attorney Siamasko noted the following: (1) the
defendant's wife, not Donovan Conservation, LLC, owned the land
in Hamilton; (2) the defendant's wife mortgaged the property to
the defendant's friend, "which would have meant that there would
be no money going back to the [son's] estate"; (3) the son
discharged a $4.8 million civil judgment against the defendant;
2 (4) the son discharged a mortgage on 120 acres of land owned by
the defendant in Essex; (5) the defendant granted the defendant
a power of attorney; and (6) the son executed a codicil to his
will. The codicil represented an about-face from the son's will
and purported to appoint the defendant as additional personal
representative and executor with powers to carry out numerous
tasks. These documents filed by the defendant effectively
thwarted the son's plans for selling the Hamilton property, had
not been contemplated when the son made plans to settle his
affairs, and benefited the defendant.
At trial, two witnesses testified that while fresh out of
college they worked in the defendant's office and typed
documents at his direction. One of these witnesses testified,
under an immunity agreement, that the defendant stood over his
shoulder and dictated text to be typed into documents. He also
testified that the defendant maintained a database that
contained an image of the signature of the defendant's son. At
the defendant's direction the employee copied that image into
documents after the son's death. The employee, unhappy and
uncomfortable about carrying out these directives (particularly
adding the son's signature to documents after his death)
expressed his concerns to the defendant. A second employee
specifically identified numerous trial exhibits which had been
filed in the registry of deeds by the defendant, as those that
3 she typed as the defendant dictated the text (including exacting
details such as character spacing and tabs) in August and
September 2016. At times during dictation, the defendant
mimicked the voice of his son. She also accessed a database
that included images of the signature of the defendant's son as
well as a notary signature and notary stamp. She affixed the
images to documents at the defendant's direction. After
expressing concerns to an attorney who worked in the defendant's
office, she was never again asked to work with the defendant.
One notary public, Michael Givens, testified to
irregularities in his notary attestations on the trial exhibits
that had been filed by the defendant at the registry of deeds.
According to Givens, he notarized three of these documents
(confirmation and acknowledgment, power of attorney, and
codicil) for the defendant in 2016 on September 6 and 12. When
shown the power of attorney with whiteout covering some text,
Givens testified that he would not have notarized a document
with whiteout and would have required a clean copy. When shown
a copy of the two-page codicil with his standalone notary
signature on an otherwise blank page, Givens testified that he
would not have notarized a blank page. Givens also noted that
when he affixed his notary signature to the codicil, the
defendant appeared excited and made emotional, celebratory
gestures with his hands and arms.
4 A second notary public, Robert Clocher, testified that at
the defendant's request he signed an affidavit (prepared by the
defendant) on August 15, 2016. At trial, when shown the
affidavit recorded by the defendant at the registry of deeds,
however, Clocher testified that a handwritten line in the
affidavit was not present when he signed it, and he would not
have signed the affidavit with such language. The handwritten
line, bearing Clocher's encircled initials, referenced attached
documents also bearing the same initials. There were no
initials or attachments when Clocher signed the affidavit. When
shown sixteen of the twenty-five documents that the defendant
filed at the registry of deeds, Clocher denied notarizing any of
them despite the documents bearing what purported to be his
signature and notary stamp.
Another notary public, Gina Flynn, also denied that
exhibits filed by the defendant at the registry of deeds bore
her genuine signature. Flynn could not find the defendant's
name in her log entries of notary transactions and denied ever
previously seeing the defendant. Examining three exhibits
(instrument of appointment, discharge of mortgage, and discharge
and release of judgment), Flynn noted irregularities with
attestations and denied that she affixed her signature to the
documents.
5 Discussion. 1. Denial of motion for mistrial. "The
decision whether to declare a mistrial is within the discretion
of the trial judge." Commonwealth v. Bryant, 447 Mass. 494, 503
(2006). This discretion is so vested because the trial judge
"is in a better position than [this court is] to assess the
actual impact of particular testimony on the jury."
Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 343 (1994). We
disagree with the defendant's contention that the judge erred on
three occasions to declare a mistrial.
While the trial was replete with references to the civil
litigation (and related settlements) that plagued the family for
many years, the defendant now claims that the judge should have
granted a mistrial when three witnesses suggested "that an
arbitrator had already decided [the] [d]efendant's guilt."
Counsel first moved for a mistrial when one witness, referring
to a 2002 power of attorney, testified that "it was ruled that
it was not legitimate." The judge struck the testimony and
denied the motion while defense counsel declined a limiting
instruction. In an apparent effort to avoid future references
to rulings in the civil litigation, the judge instructed a
subsequent witness "not to mention the word, arbitration or
arbitrator" without authorization from the court. Later in the
trial, for the second time, defense counsel moved for a mistrial
when a different witness testifying about a settlement agreement
6 could not recall "whether Judge Martin was involved in it or
not." The judge struck the answer and denied a motion for a
mistrial primarily because "[n]o one knows who Judge Martin is."
Defense counsel made a third motion for a mistrial when a
different witness testified that she "recorded an order from the
arbitrator." Once again, the judge instructed jurors to
disregard the testimony and denied the motion.
We discern no abuse of discretion. To the extent any of
this testimony referred to an arbitration decision in the civil
case, the references were so vague and fleeting that it is
highly unlikely that jurors would make the inferential leap that
an arbitrator concluded the defendant forged the documents filed
in the registry of deeds. See Commonwealth v. Baptista, 86
Mass. App. Ct. 28, 32 (2014) (mistrial properly denied where
reference to inadmissible evidence vague and fleeting).
Especially given the length of the trial, which spanned
approximately one month, the number of witnesses, and the
complexity of the evidence presented, it is highly unlikely that
these passing references would have influenced the jury in the
manner the defendant now claims. Commonwealth v. Cunneen, 389
Mass. 216, 223-224 (1983) ("vague and fleeting comment, not
likely to influence, or even to seize the attention of the
jury"). We are also confident that the jurors followed the
judge's instructions and disregarded the testimony. See
7 Commonwealth v. Williams, 450 Mass. 645, 651 (2008) ("Jurors are
presumed to follow judge's instructions, including instructions
to disregard certain testimony"). We also note that a reference
to arbitration was not as taboo as the defense now claims
because at least two exhibits, a codicil and a discharge and
release of judgment, referenced arbitration in connection with a
civil action.
2. Denial of request for virtual testimony. The Sixth
Amendment guarantees a defendant's right to call witnesses to
testify on his behalf. See Commonwealth v. Durning, 406 Mass
485, 495 (1990). "However, the right to call witnesses is not
absolute; in the face of 'legitimate demands of the adversarial
system,' this right may be tempered according to the discretion
of the trial judge" (citation omitted). Id. "If a judge
exercises his or her discretion to limit the defendant's right
to call witnesses, the restriction cannot be arbitrary."
Commonwealth v. Drumgold, 423 Mass. 230, 247 (1996). Here, the
judge did not abuse his discretion in denying the defendant's
request to allow a witness to testify via Zoom given the ample
opportunity to procure live testimony, the jury's diminished
ability to assess the witness's credibility, and the cumulative
nature of his proffered testimony.
The defendant made four requests for witnesses to testify
via Zoom. On November 22, 2021, when the matter was scheduled
8 for trial, defense counsel asked whether James McEniry could
testify via Zoom. The judge addressed this issue and other
issues that had been raised and decided to continue the trial to
another date: "And you can let Mr. McEniry know, you can let
Mr. Neiman know. I mean there's plenty of time here, so we
don't -- I don't want to fiddle around with zooming in from
Ireland or -- there's plenty of time there I think to
accommodate all of these things if I give you this continuance
and we go to April." Months later, on April 22, 2022, the tenth
day of trial, defense counsel notified the judge that one
witness from Vermont and one from Ireland (James McEniry) wished
to testify remotely "[d]ue to travel difficulties." The judge
denied the request because he believed it was crucial for jurors
to "evaluate the testimony and the demeanor of witnesses." On
the twelfth day of trial, defense counsel asked the judge to
reconsider "electronic testimony" because McEniry told him
earlier in the morning that he had been hospitalized and could
not fly. The judge denied the request and once again noted his
concern with the ability of jurors to evaluate the credibility
of witnesses especially "given the nature of this case." On the
fifteenth day of trial, defense counsel announced that McEniry
had been released from the hospital and asked once again that
testimony be allowed via Zoom. This time, counsel produced some
medical records regarding McEniry's dire condition. The judge
9 examined all the documents and denied the motion after
concluding that the defense "had every opportunity" to present
this witness but did not do so, and the proffered testimony had
"tenuous relevance."
We discern no abuse of discretion given the posture of the
case. The defense had ample opportunity to secure the testimony
of McEniry. The grand jury returned indictments almost five
years before trial in 2017. Continuing the trial date for the
fifth time on November 22, 2021, the judge noted that the
continuance would provide time to secure the testimony of
McEniry. Despite having tools available to preserve the
testimony of McEniry, who was seventy-two years old and living
in a foreign country, defense counsel waited until the tenth day
of trial to spring the Zoom request on the judge. See, e.g.,
Mass. R. Crim. P. 23, 471 Mass. 1501 (2015) (stipulations of
parties); Mass. R. Crim. P. 35, 378 Mass. 906 (1979) (deposition
to perpetuate testimony). Given the allegations of widespread
fraud in the case and the failure to secure McEniry's testimony
in a timely fashion, the judge was well within his discretion in
denying the request for Zoom testimony.
We also note that McEniry's expected testimony was largely
cumulative of the testimony offered by the defendant's tax
expert. Through a rather complicated theory, the defendant
attempted to show that his son secretly asked him to take steps
10 to avoid devastating tax liability for his estate. The
defendant expected McEniry would testify in support of this
theory by telling jurors that a particular trust was not a "true
foreign grantor" trust for tax purposes. As it turned out, the
defendant's tax expert testified to this very fact when he
opined that the trust in question was not a legitimate foreign
grantor trust because McEniry "was not really a foreign grantor"
for tax purposes. Thus, the defense presented the technical
evidence about the trust through the tax expert without exposing
McEniry to cross-examination.
3. Bad act evidence. The prosecution may not introduce
evidence of prior bad acts "for the purposes of showing his bad
character or propensity to commit the crime charged, but such
evidence may be admissible if relevant for some other purpose."
Commonwealth v. Helfant, 398 Mass. 214, 224-225 (1986).
"Whether evidence is relevant in any particular instance, and
whether the probative value of relevant evidence is outweighed
by its prejudicial effect, are questions within the sound
discretion of the judge" (citation omitted). Commonwealth v.
Smiley, 431 Mass. 477, 484 (2000). Here, the defendant contends
that the judge erred by admitting evidence that (1) the
defendant published under his own name life lessons that his son
had prepared for his children and (2) during an audit of the
11 defendant's company a forensic accountant observed modifications
to certain documents.
Over the defendant's objection, evidence showed that the
defendant tried to publish a book containing life lessons that
the defendant's son had created for his children. The judge
admitted this evidence because it spoke to the defendant's
overall intent in his elaborate scheme to profit from his
deceased son. See Commonwealth v. Gollman, 436 Mass. 111, 114
(2002) ("evidence of the defendant's prior bad acts was
admissible as evidence of his intent at the time of the crimes
charged"). Thus, there was a "'logical relationship' between
the prior bad act and the crime[s] charged" (citation omitted).
Commonwealth v. West, 487 Mass. 794, 805 (2021). The probative
value of this evidence that spoke to the defendant's overall
intent outweighed any risk that jurors would convict the
defendant merely because he attempted to appropriate his son's
ideas. Accordingly, we conclude there was no error in the
admission of this evidence.
Next, attempting to show others had access to the
defendant's computer, defense counsel extensively cross-examined
a witness about the internal processes of the defendant's
business known as Send It Later (SIL) and the hostility of two
particular people directed at the defendant. The defendant then
objected to testimony of a forensic accountant who found
12 modifications to documents during a financial audit of SIL.
Overruling the objection, the judge believed this testimony was
relevant because the defense raised issues about the potential
bias of persons connected with SIL. On appeal, the defendant
contends that the accountant's testimony was not relevant. We
need not resolve the relevance issue because we do not perceive
any prejudice. The accountant's testimony was brief, the audit
included documents provided by many people connected with SIL,
the modifications were not tied to the defendant in any way, and
two other SIL employees (the recent college graduates) testified
that the defendant was responsible for making modifications to
documents that were at issue in this case.
4. Duplicative convictions. We disagree with the
defendant's contention that the two convictions for forging the
notary attestations should be dismissed as duplicative of the
convictions for forging the signature of the defendant's son.
These convictions are not duplicative because the forged notary
attestations were not limited to the documents containing forged
signatures of the defendant's son. Clocher's forged notary
attestation appeared in connection with three other documents,
and Flynn's forged notary attestation appeared on two other
documents. The verdict slips indicate that the forged notary
attestations stand independently from the forged signatures of
the defendant's son. Therefore, jurors could have convicted the
13 defendant of distinct and unrelated acts of forging his son's
signature as well as forging the notary attestations. Given our
conclusion, we need not address the defendant's contention that
a forged document consists of a single prosecution unit that is
not susceptible to multiple forgery indictments.
5. False pretense regarding written instrument. Finally,
we disagree with the defendant's contention that the judge
should have entered a required finding of not guilty on the
indictment that charged obtaining a signature by false pretense.
This charge related to Clocher's notary signature affixed to an
affidavit. He argues that there was no evidence that the
defendant made any representations to Clocher about the
affidavit, false or otherwise, and the affidavit was not a
written instrument within the meaning of G. L. c. 266, § 31.
Based upon the evidence presented, jurors could reasonably
infer that the defendant obtained Clocher's signature on the
affidavit through a false pretense. "The statutory elements of
this crime consist of (1) obtaining the signature of a person to
a written instrument (2) the false making whereof would be a
forgery (3) by a false pretense (4) with intent to defraud."
Commonwealth v. Levin, 11 Mass. App. Ct. 482, 495 (1981). The
defendant presented one version of the affidavit to Clocher,
obtained his signature, then materially altered the document
without Clocher's knowledge. Clocher testified that he would
14 not have signed the affidavit as altered. Implicit in
presenting an affidavit for a signature is that the contents of
the affidavit are complete and not subject to change after being
signed by the affiant because the signature serves to affirm the
averments. See Commonwealth v. Morrison, 252 Mass. 116, 122-123
(1925) ("misrepresentation as to a person's present intention
may be a false pretense" without direct evidence of false
statement). Thus, the evidence was sufficient to submit the
question to the jury.
Additionally, the affidavit constituted a "written
instrument" under G. L. c. 266, § 31. While the statute does
not define the phrase, we construe words and phrases "according
to the common and approved usage of the language." G. L. c. 4,
§ 6. An affidavit may be considered a "written instrument" as
that phrase is commonly understood. See, e.g., Commonwealth v.
Aronson, 312 Mass. 347, 350 (1942) ("power of attorney"
considered instrument); Commonwealth v. Hutchison, 114 Mass.
325, 326 (1873) ("agreement of copartnership" considered
instrument); Levin, 11 Mass. App. Ct. at 488-489, 493, 495
(insurance "application" and "medical examination forms"
15 considered instruments). Thus, the judge properly submitted the
issue to the jury.
Judgments affirmed.
By the Court (Vuono, Englander & Hodgens, JJ.1),
Clerk
Entered: January 16, 2025.
1 The panelists are listed in order of seniority.