Commonwealth v. John J. Donovan.

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;

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(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

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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.

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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"

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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.

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