Opinion
13-P-1555
06-11-2015
COMMONWEALTH v. DELL LEATHERS BUFORD (and one companion case).
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Codefendants Dell Leathers Buford (Ms. Buford) and Kevin Buford (Mr. Buford) were tried together on indictments arising out of Ms. Buford's administration of the estate of her mother, Shirley Leathers. Ms. Buford appeals from her convictions of larceny, G. L. c. 266, § 30 (two counts); embezzlement by a fiduciary, G. L. c. 266, § 57 (two counts); perjury, G. L. c. 268, § 1; and perjury by written statement, G. L. c. 268, § 1A. Mr. Buford appeals from his conviction of receiving stolen property, G. L. c. 266, § 60. We affirm.
The only asset of the estate was the settlement of a medical malpractice lawsuit that Shirley Leathers initiated before she died, which was subsequently pursued as a wrongful death claim under Ms. Buford's name as administrator. We refer to "the proceeds of the settlement" and "the estate" interchangeably.
Ms. Buford's appeal. 1. Larceny and embezzlement. We reject Ms. Buford's general claim that the evidence at trial failed to show that her three siblings had any property interest in Shirley Leathers's estate, of which Ms. Buford was the administrator. Taken in the light most favorable to the Commonwealth, the evidence showed beyond a reasonable doubt that Ms. Buford's three siblings each had a one-quarter interest in the initial disbursement of $553,579.84 and in the later disbursement of $16,160.50 of the settlement proceeds; that none of them received more than $60,000; and that Ms. Buford took at least $200,000 of the initial disbursement and the entire second disbursement for her own purposes, without the agreement of her siblings.
Mr. Buford joins in Ms. Buford's arguments with respect to these charges pursuant to Mass.R.A.P. 16(j), 365 Mass. 860 (1974).
See Commonwealth v. Latimore 378 Mass. 671, 677 (1979); Commonwealth v. Caparella, 70 Mass. App. Ct. 506, 509-510 (2007).
Nothing in the law or the evidence at trial supports Ms. Buford's assertion that her "possessory right was superior to that of any other." Although Ms. Buford rightly took possession of the proceeds of the settlement as administrator of the estate, she wrongly converted the proceeds for her personal use, permanently depriving her siblings of money to which they were entitled. "To prove the element of 'the property of another,' the Commonwealth need not prove exact ownership. Rather its burden is to establish beyond a reasonable doubt that the property belonged to someone other than the defendant." Commonwealth v. Caparella, 70 Mass. App. Ct. 506, 513 (2007), quoting from Commonwealth v. Souza, 397 Mass. 236, 238 (1986). The Commonwealth carried its burden.
Nor did Ms. Buford, in her capacity as administrator, have "the legal right or authority" to do whatever she liked with the settlement proceeds. The fiduciary embezzlement statute "contemplates a formal fiduciary relationship and a correlatively heightened duty of loyalty." Commonwealth v. DeGennaro, 84 Mass. App. Ct. 420, 430 (2013). The jury could have rationally found that, having taken control of the funds in trust for all of the siblings, Ms. Buford failed to faithfully execute her duties. See Commonwealth v. Corcoran, 348 Mass. 437, 439, 442 (1965). See also Comstock v. Bowles, 295 Mass. 250, 258 (1936) (administrator's "primary responsibility was to protect the trust committed to his charge. No self interest can be allowed to conflict with this obligation. He cannot derive any personal advantage at the expense of the trust" [quotations and citation omitted]).
We further observe that the judge instructed the jury, with respect to both the larceny and fiduciary embezzlement charges, that the Commonwealth had the burden to prove that Ms. Buford did not have "an honest and reasonable belief" that she had a legal right to the money. The evidence supported the jury's rejection of this defense.
The convictions of larceny and fiduciary embezzlement of the same funds are not legally inconsistent. It is well established that a single transaction can result in multiple criminal convictions where, as here, "each crime requires proof of an element that the other does not." Commonwealth v. Vick, 454 Mass. 418, 431 (2009) (citation omitted).
The crime of larceny, G. L. c. 266, § 30, requires the intent to permanently deprive another of property, which is not an element of fiduciary embezzlement. Commonwealth v. DeGennaro, 84 Mass. App. Ct. at 429. Fiduciary embezzlement, G. L. c. 266, § 57, requires a formal fiduciary relationship, which general larceny does not. Id. at 427-428.
The case the defendant relies on, Commonwealth v. Carson, 349 Mass. 430, 434-436 (1965) (Carson), holds that convictions of both stealing shares of stock and then stealing the proceeds of the sale of those shares are "inconsistent" and amount to "two convictions for a single crime." The scenario in Carson is similar to the hornbook example of legally inconsistent convictions for both stealing property and receiving the same stolen property. See, e.g., Commonwealth v. Haskins, 128 Mass. 60, 61 (1880); Commonwealth v. Nascimento, 421 Mass. 677, 683 (1996). Having already stolen the shares, the defendant in Carson could not then sell them and steal the proceeds from himself any more than a person who steals money can receive it from himself.
No such legal or logical infirmity exists in this case. Ms. Buford simultaneously stole from her siblings and violated a formal fiduciary relationship in the process.
2. Perjury. The evidence permitted the jury to conclude that Ms. Buford submitted an "administrator account" to the Probate and Family Court, which she signed "under the penalties of perjury," that contained information she knew to be false. She now claims, for the first time, that the form she signed was not "required by law . . . to be verified by oath or affirmation." G. L. c. 268, § 1A, as amended by St. 1947, c. 106. She also claims that the judge erred by failing to instruct the jury that this was an element of the crime, although she did not request such an instruction or object to its absence.
We are skeptical at the outset of Ms. Buford's assertion that purposely submitting false information to a court, in a document signed under the penalties of perjury, does not amount to perjury. In any event, G. L. c. 206, § 3, specifically authorizes the court to examine an administrator "on oath before the court upon any matters relative to his accounts." The form Ms. Buford signed and submitted, Form CJ-P 30, was duly promulgated by the Probate and Family Court under G. L. c. 215, § 30, and Rule 29C of the Rules of the Probate Court, Mass. Ann. Laws Court Rules, at 917 (LexisNexis 2009-2010), to facilitate such accountings. These statutes and rules satisfy the "required by law" element. See Commonwealth v. Cerveny, 373 Mass. 345, 353-354 (1977).
Had Ms. Buford timely raised her current claim concerning the necessity to charge the jury on this element, the judge could have properly instructed that the element had been satisfied as a matter of law. See Commonwealth v. McDuffee, 379 Mass. 353, 366 (1979). Ms. Buford's conviction of perjury by written instrument thus has a solid foundation in law and fact.
Ms. Buford's testimony in the Probate and Family Court, under oath, about the disposition of $200,000 of the estate's funds was material to those proceedings. The evidence at trial included testimony of one of Ms. Buford's brothers that he hired an attorney to represent the siblings in the probate proceedings because when he attempted on his own to request an inventory of the estate, Ms. Buford "got . . . ugly." The attorney testified that he appeared at a hearing in Probate and Family Court for the purpose of finding out "what [she] did with the assets." The jurors also heard a recording of the hearing. When Ms. Buford represented to the judge the money was "all divvied out," counsel asked that she be placed under oath. After Ms. Buford was sworn, both counsel and the Probate and Family Court judge questioned her about what she had done with the funds. The jury were warranted in concluding that Ms. Buford's statements "might tend in reasonable degree to affect some aspect or result of the inquiry" to account for the funds. Commonwealth v. McDuffee, supra at 360, quoting from Commonwealth v. Giles, 350 Mass. 102, 110 (1966).
Mr. Buford's appeal. 1. Receiving stolen property. Mr. Buford contends that the evidence was insufficient to prove that he knew the money he received from Ms. Buford was stolen from the estate. Having reviewed the trial transcript, we conclude that the Commonwealth introduced ample evidence from which the jury could infer that Mr. Buford was sufficiently involved in the receipt and distribution of the settlement funds to possess the "guilty knowledge" that Ms. Buford had misappropriated money from the estate that belonged to her siblings. See Commonwealth v. Dellamano, 393 Mass. 132, 138 (1984). In addition, the evidence showed that Mr. Buford took actions to make it difficult to trace the stolen funds.
2. Restitution. Mr. Buford claims that the judge ordered him to pay restitution without regard to his ability to pay. Mr. Buford's counsel did not raise this claim at the restitution hearing. To the contrary, Mr. Buford's counsel suggested a precise figure for restitution, which the judge accepted. Moreover, at the preceding sentencing hearing, Mr. Buford's counsel discussed his client's steady job, which paid "well enough" to support the family and pay the mortgage. Based on this record, we conclude that "[t]he procedure used to determine the amount of restitution or reparation [was] reasonable and fair." Commonwealth v. Nawn, 394 Mass. 1, 6-7 (1985).
By contrast, counsel for Ms. Buford mentioned the issue of her ability to pay.
Ms. Buford purports to incorporate by reference Mr. Buford's arguments with respect to the restitution proceedings. Because the facts underlying this claim as it relates to Ms. Buford, and the potential prejudice, are distinct, a bare reference to Mass.R.A.P. 16(j), 365 Mass. 860 (1974), does not rise to the level of appellate argument within the meaning of Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). See Commonwealth v. Vieira, 401 Mass. 828, 831 n.4 (1988). We decline to address this claim as it pertains to her.
Judgments affirmed.
By the Court (Milkey, Brown & Massing, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 11, 2015.