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State v. Chemlen

Court of Appeals of Connecticut

May 31, 2016

STATE OF CONNECTICUT
v.
KEITH CHEMLEN

          Argued March 14, 2016

         Appeal from Superior Court, judicial district of Waterbury, geographical area number four, Crawford, J.

          Jodi Zils Gagne, for the appellant (defendant).

          Lisa Herskowitz, senior assistant state’s attorney, with whom, on the brief, were Maureen Platt, state’s attorney, and Marc G. Ramia, senior assistant state’s attorney, for the appellee (state).

          LAVINE, ALVORD AND PRESCOTT, JS.

          OPINION

          PRESCOTT, J.

         The defendant, Keith Chemlen, appeals from the judgment of conviction, rendered after a jury trial, of forgery in the second degree in violation of General Statutes § 53a-139 (a) (3), and larceny in the third degree in violation of General Statutes § 53a-124 (a) (2). The defendant subsequently pleaded guilty to being a persistent serious felony offender in violation of General Statutes § 53a-40 (c), as charged in a part B information. On appeal, the defendant claims that (1) the trial court improperly excluded extrinsic evidence to impeach a state’s witness; (2) his constitutional rights to due process and a fair trial were violated by the prosecutor’s failure to correct the false testimony of a state’s witness; and (3) the court improperly denied his motion for a judgment of acquittal on the basis of insufficiency of the evidence. We affirm the judgment of the trial court.

         The jury reasonably could have found the following facts. Daniel Brenes is the owner and sole officer of Global International, Inc., which is registered in Connecticut under the name of National Credit Masters. National Credit Masters performs credit repair services, including reviewing a client’s credit report, analyzing any negative information contained therein, and developing a plan to remove any negative information. National Credit Masters does not negotiate or settle debt obligations to creditors.

         Brenes met the defendant in 2005 or 2006 at a business meeting. Subsequent to that initial encounter, Brenes and the defendant crossed paths at bars and in the surrounding area. Although Brenes’ knowledge of the defendant was limited-he only knew the defendant’s first name-he came to believe that the defendant was a great salesman. Thus, when the defendant applied for an open sales associate position at National Credit Masters in December, 2012, Brenes offered him an interview.

         During the interview, Brenes asked the defendant for identification so that he could perform a background check. The defendant provided Brenes with a state issued identification card on which was the name ‘‘Keith David.’’ Brenes made a copy of the identification card and then returned it to the defendant. Brenes subsequently hired the defendant, whom he believed to be Keith David. The defendant began working at National Credit Masters in February, 2013. Brenes gave the defendant a training manual and instructed him that the company e-mail account was the only e-mail account to be used to contact clients. Brenes also told the defendant that clients could not pay their fees in cash and that he was not to settle debt obligations with creditors.

         In June or July, 2013, several people began stopping by National Credit Masters’ office and claiming that they were clients, although Brenes had no knowledge of them. In one instance, Brenes received a telephone call from Michelle Garcia, who claimed to be a client of National Credit Masters. Garcia told Brenes that the defendant had arranged for Robert Nichols, an attorney and Brenes’ landlord, to represent her on a debt-defense case. Brenes arranged a meeting between himself, Garcia, and Nichols, during which Nichols informed her that he never had represented any of National Credit Masters’ clients and had not agreed to represent her.

         By the date of the meeting between Brenes, Garcia, and Nichols, the defendant had stopped coming into work and claimed to have a stomach virus. As time went on, the defendant failed to return Brenes’ telephone calls, and Brenes began to call clients to confer on the status of their credit repairs. Through these calls, Brenes discovered that the defendant had violated company procedures by charging clients for debt negotiation and settlement, and by offering legal advice. Brenes terminated the defendant’s employment and notified the police of these revelations.

         Detective Randy Watts of the Waterbury Police Department spoke with Brenes, Garcia, and nine other people who had been clients of the defendant. Through these interviews, it came to light that the defendant, in contravention of company policy, had accepted payments from clients, which National Credit Masters never received, in cash and through PayPal in his name. In exchange for these payments, the defendant had promised clients that he would negotiate and settle their debts and would remove negative information from their credit reports. Such promises often were not kept. In some instances, clients paid the defendant in cash or through a PayPal account linked to the defendant’s personal e-mail to remove negative information from their credit reports. The defendant sent these clients fake credit reports from a personal e-mail address, showing that their credit scores had been improved, but, in actuality, their credit reports remained the same. In other instances, clients paid the defendant in cash to settle their debts. The defendant told these clients that the debts had been settled and paid, but, in actuality, the defendant never negotiated the debt amounts or paid the creditors. Additionally, all of the clients knew the defendant as ‘‘Keith’’ or ‘‘Keith David.’’ The defendant’s real name was not ‘‘Keith David’’ but, rather, was ‘‘Keith David Chemlen.’’

         On August 13, 2014, in anamended long form information, the defendant was charged with two counts of forgery in the second degree in violation of § 53a-139 (a) (3), [1] and one count of larceny in the third degree in violation of § 53a-124 (a) (2).[2] In the amended information, the state alleged that the defendant committed forgery in the second degree by altering a state issued identification card with the intent to defraud and deceive Brenes, and by possessing a state issued identification card that he knew to be altered with the intent to deceive Brenes. The state further alleged that the defendant committed larceny in the third degree by wrongfully obtaining money from clients by false promises to repair credit scores and settle debts.

         On August 19, 2014, a jury found the defendant guilty of all three counts. He subsequently pleaded guilty to being a persistent serious felony offender in violation of § 53a-40 (c), pursuant to a part B information. On October 10, 2014, at sentencing, the court vacated the verdict on the second count[3] of forgery in the second degree and imposed a total effective sentence of fifteen years of incarceration, execution suspended after seven years, followed by five years of probation with special conditions. This appeal followed. Additional facts will be set forth as required.

         I

         The defendant first claims that the court improperly excluded extrinsic evidence that would have impeached Brenes by contradicting his statement that he did not know the defendant’s last name at the time that he hired him. Specifically, he argues that he should have been allowed to impeach Brenes’ testimony with extrinsic evidence of prior inconsistent statements because it related to a noncollateral matter, namely, whether he had the intent to deceive Brenes, as required to prove forgery in the second degree, if Brenes knew his last name at the time he hired him. The state responds that the court properly excluded the evidence at issue because it was unreliable, lacked authenticity, and would have confused the jury. We agree with the state.

         The following additional facts and procedural history are relevant to this claim. At trial, Brenes testified for the state that although he had met the defendant as early as 2005 or 2006, he did not know that the defendant’s last name was ‘‘Chemlen’’ at the time that he hired him. Rather, he believed, on the basis of the identification card shown to him by the defendant, that the defendant’s last name was ‘‘David.’’

         On cross-examination, Brenes testified that he had a post office box, but he had not authorized the defendant or DK Management, LLC, a limited liability company of which the defendant was the agent, to use it. Defense counsel showed Brenes two documents, which were marked for identification purposes only, in an attempt to establish that the defendant and Brenes had been in business together as early as 2008. The first document, defense exhibit A, was the articles of organization for DK Management, LLC. The articles of organization purported to show that both the defendant, whose full name was listed, and Brenes were members of DK Management, LLC, on March 24, 2008. The document, however, was signed only by the defendant, and Brenes testified that he had never been a member of DK Management, LLC. The defendant did not offer the articles of organization into evidence as a full exhibit.

         The second document, defense exhibit B, consisted of two applications for a post office box. On one of the post office box applications, dated January 29, 2008, both DK Management, LLC, and Brenes’ name appeared. Brenes testified that he did not place DK Management, LLC, on the 2008 application. Only Brenes’ name appeared on the second post office box application, dated February 13, 2009. The defense did not ask Brenes whether he filled out either post office box application or whether his handwriting was contained on either application. The defendant did not offer the two applications into evidence as a full exhibit at this time.

         After the state rested, the defendant attempted, in an often confusing fashion, [4] to establish that Brenes knew the defendant’s correct last name at the time that he hired him. According to the defendant, if Brenes knew his last name, he could not have intended to deceive Brenes by providing him with an identification card containing an alias, as required to prove forgery in the second degree. The defendant sought to establish this fact by offering the testimony of Paul Bianca, a postmaster, and, through him, several documents relating to Brenes’ post office box. The state initially objected to the admission of the documents on the grounds of relevancy and the inadmissibility of extrinsic evidence to impeach a witness. In an attempt to lay a foundation as to the admissibility of the documents, the defendant offered the testimony of Bianca outside the presence of the jury.

         The documents that the defense sought to offer into evidence were marked for identification only as defense exhibits G, H, I, J, K (exhibits).[5] Defense exhibit G is identical to defense exhibit B. Defense exhibit J is only the 2008 application to open a post office box. The 2008 application states that the post office box is assigned to DK Management, LLC, and was applied for by Brenes. It is allegedly signed by Brenes.

         Defense exhibit K is the 2009 application for a post office box. The 2009 application states that the post office box is assigned to Brenes and was applied for by Brenes. It purports to be signed by Brenes. The signature on the 2009 post office box application is drastically different from the signature on the 2008 post office box application.

         When questioned concerning the two different post office box applications, Bianca testified that he was not the clerk who handled either application, and he could assume only that the 2009 application was actually an application to change the lock on the post office box, not an application to open anew post office box. Bianca, however, conceded that nothing in exhibit K supported this assumption or established who filled out the application or signed it. Bianca also stated that an application to open a post office box has two pages, and both the 2008 post office box application and the 2009 post office box application were missing their second page.

         Defense exhibit H is the second page of an electronic document from the United States Postal Service that lists additional names that have access to a particular post office box. The names listed are Keith Chemlen, Brenes Industries Group, DK Management, LLC, and National Credit Masters. The document does not indicate with which post office box the information is associated. It does indicate, however, that it is the second of two pages, and the first page was not provided.

         Defense exhibit I is a handwritten note that was in a post office file concerning Brenes’ post office box. The handwritten note states that Keith Chemlen is not permitted access to Brenes’ post office box. The note is not dated, and the parties agreed that it was not written by Brenes. Bianca assumed, without firsthand knowledge, that it was written by a clerk.

         Brenes never testified on direct or cross-examination that he had signed either post office box application or had the lock changed on his post office box. Additionally, Brenes was never shown or questioned about the handwritten note in his post office file or the electronic document from the United States Postal Service. During the defendant’s attempt to have these documents admitted into evidence, however, the defendant argued that the 2008 post office box application, which listed DK Management, LLC, as the assignee of the post office box, could be linked to the articles of organization for DK Management, LLC, which listed both Brenes and the defendant by full name as members, and, thus, established that Brenes knew the defendant’s last name before he hired him.

         Throughout the defendant’s lengthy attempt to have these exhibits admitted into evidence, the state made numerous objections and arguments concerning the inadmissibility of the exhibits. The state noted multiple authenticity concerns with the exhibits. For example, Bianca testified that he had no knowledge or documentation that could establish who filled out the 2008 and 2009 post office box applications or when the handwritten note was added to Brenes’ post office file. Both post office box applications were missing their second page. There was no evidence that the signatures on the post office box applications belonged to Brenes. The electronic printout from the United States Postal Service, defense exhibit H, contained no information linking it to Brenes’ post office box.

         The state further argued that even if the applications were authentic, there was no evidence admitted in the record that linked DK Management, LLC, to both the defendant and Brenes. Although DK Management, LLC, is listed on the 2008 post office box application, the defendant’s name is not. The only document that links DK Management, LLC, to the defendant is the articles of organization (defense exhibit A), which was never offered by the defendant as a full exhibit and was only signed by the defendant, and, thus, does not prove that Brenes and the defendant were both associated with DK Management, LLC.

         The court sustained the state’s objection to the admission of the exhibits. Although the court agreed with the defendant’s argument that the court had discretion to admit extrinsic evidence of a prior inconsistent statement pursuant to Connecticut Code of Evidence § 6-10, it, nevertheless, held that the exhibits were inadmissible because they were too confusing and lacked authenticity and reliability. The court based its holding on the fact that there were ‘‘too many gaps, too many question marks, too may assumptions that would have to be made to reach a conclusion’’ that Brenes knew the defendant’s last name in 2008.

         We begin by setting forth our standard of review. ‘‘[I]t is well settled that the trial court’s evidentiary rulings are entitled to great deference. . . . The trial court is given broad latitude in ruling on the admissibility of evidence, and we will not disturb such a ruling unless it is shown that the ruling amounted to an abuse of discretion. . . . When reviewing a decision to determine whether the trial court has abused its discretion, we make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.’’ (Citation omitted; internal quotation marks omitted.) Chief Information Officer v. Computers Plus Center, Inc., 310 Conn. 60, 97–98, 74 A.3d 1242 (2013).

         As an initial matter, we address the defendant’s contention that the exhibits were extrinsic evidence of prior inconsistent statements.[6] To be admissible as extrinsic evidence of a prior inconsistent statement under § 6-10 of the Connecticut Code of Evidence, [7] the proffered evidence must be a prior statement made by the witness that contradicts something that the witness has testified to at trial. See State v. Ward, 83 Conn.App. 377, 393–94, 849 A.2d 860, cert. denied, 271 Conn. 902, 859 A.2d 566 (2004). Our Supreme Court ‘‘[has] stated that [t]he impeachment of a witness by extrinsic evidence [of a prior inconsistent statement pursuant to § 6-10 of the Connecticut Code of Evidence] is somewhat limited. Not only must the inconsistent statements be relevant and of such a kind as would affect the credibility of the witness . . . but generally a foundation should be laid at the time of cross-examination.’’ (Emphasis omitted; internal quotation marks omitted.) Chief Information Officer v. Computers Plus Center, Inc., supra, 310 Conn. 118. To be relevant, the inconsistent statement must relate to a noncollateral matter, otherwise the statement must be excluded. See State v. Diaz, 237 Conn. 518, 548, 679 A.2d 902 (1996) (extrinsic evidence is not admissible to impeach witness ‘‘by contradicting his or her testimony as to collateral matters, that is, matters that are not directly relevant and material to the merits of the case’’ [internal quotation marks omitted]); State v. Dudley, 68 Conn.App. 405, 419, 791 A.2d 661 (‘‘[a] matter is not collateral if it is relevant to a ...


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