State v. Chemlen

• Decision Date: 31 May 2016
• Docket Number: No. 37429.,37429.
• Citation: 140 A.3d 347,165 Conn.App. 791
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Keith CHEMLEN.

165 Conn.App. 791

140 A.3d 347

STATE of Connecticut

v.Keith CHEMLEN.

No. 37429.

Appellate Court of Connecticut.

Argued March 14, 2016.

Decided May 31, 2016.

Jodi Zils Gagne, Bristol, 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.

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 an amended 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 count³ 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...