Commonwealth v. Perez (Lawyers Weekly No. 11-014-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 11-P-2166 Appeals Court COMMONWEALTH vs. GLORIA PEREZ. No. 11-P-2166. Essex. December 10, 2015. – February 3, 2016. Present: Kafker, C.J., Milkey, & Sullivan, JJ. Larceny. Bank. Constitutional Law, Confrontation of witnesses. Practice, Criminal, Confrontation of witnesses. Evidence, Hearsay, Verbal conduct, Business record, Authentication of document. Indictments found and returned in the Superior Court Department on April 30, 2008. The cases were tried before Leila R. Kern, J. Andrew S. Crouch for the defendant. Philip Anthony Mallard, Assistant District Attorney, for the Commonwealth. MILKEY, J. “[W]here’s Phyllis?” A bank teller posed that question to the defendant who was seeking to withdraw $ 300 from the checking account of an absent bank customer. The defendant, who worked as a customer service representative at the bank, had presented a withdrawal slip purportedly signed by Phyllis Wall, an elderly customer who relied on a walker and was well known to the employees at that particular branch. In response to the question, the defendant stated that Wall had signed the withdrawal slip earlier that day and that she planned to give the money to Wall later. The teller gave the defendant the money, but then notified the branch manager about the transaction.[1] An internal investigation ensued, and the defendant ultimately was indicted for twenty-six property offenses, all related to alleged theft from customer accounts. After trial, a Superior Court jury convicted the defendant of six of those offenses: two counts of larceny over $ 250, one of which was from a person sixty years or older (G. L. c. 266, § 30[1], [5]), two counts of forgery (G. L. c. 267, § 1), and two counts of uttering (G. L. c. 267, § 5). On appeal, she challenges the admission of various bank records, and she claims that the evidence for one of the larceny charges was insufficient in one respect. We affirm. Background. The Phyllis Wall withdrawals. Five of the six convictions involved Wall. The defendant frequently assisted Wall with her transactions, such as obtaining money orders to pay all of her bills. The five convictions related to Wall involved two cash withdrawals, including the one described above, which took place on July 21, 2006. As noted, the withdrawal slip that the defendant presented during that transaction was purportedly signed by Wall. Wall was not available to testify as to whether the signature on […]