March 14, 2016
from Superior Court, judicial district of Waterbury,
geographical area number four, Crawford, J.
Zils Gagne, for the appellant (defendant).
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.
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.
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.
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.
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.
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
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.
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.’’
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),
one count of larceny in the third degree in violation of
§ 53a-124 (a) (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.
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 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
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
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
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.
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.
the state rested, the defendant attempted, in an often
confusing fashion,  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.
documents that the defense sought to offer into evidence were
marked for identification only as defense exhibits G, H, I,
J, K (exhibits). 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.
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.
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.
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.
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.
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
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.
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.
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.
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).
initial matter, we address the defendant’s contention
that the exhibits were extrinsic evidence of prior
inconsistent statements. To be admissible as extrinsic evidence
of a prior inconsistent statement under § 6-10 of the
Connecticut Code of Evidence,  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 ...