Opinion
Court of Appeals No. A-9648 / 9649.
March 5, 2008.
Appeal from the Superior Court, Third Judicial District, Valdez, Daniel J.M. Schally, Judge Pro Tem, Trial Court Nos. 3VA-03-00083 CR, 3VA-05-00041 CR.
David D. Reineke, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Jeffrey T. Kelly was charged with forgery, theft, and criminal simulation after he presented two counterfeit checks to a bank in Valdez. At trial, Kelly's defense was that he had no intent to defraud the bank. He claimed he was the innocent victim of a Nigerian e-mail scam, and that he believed the checks were authentic. The jury rejected this defense and convicted Kelly. Based on these convictions, Superior Court Judge Pro Tem Daniel J.M. Schally found that Kelly had violated his conditions of probation.
Kelly appeals his convictions and his probation violation. He argues that Judge Schally should have granted his motion for a change of venue because of pre-trial publicity. He also argues that the court abused its discretion by refusing to admit e-mail communications between him and the Nigerians, which he claimed showed his innocent state of mind. For the reasons discussed below, we affirm Kelly's convictions and probation violation.
Factual and procedural background
Kelly went to the First National Bank Alaska in Valdez on March 10, 2005, and presented a check for $30,000. Kelly was told it would take a while for the check to clear because the check was drawn off of a Canadian bank. Kelly returned to the same bank on March 24, and presented a check for $9,960. The supervisor at the bank, Linda A. Goebel, approved the check for immediate deposit. According to Goebel, Kelly told her the check was good, that he had received it from a stock transaction, and that he had recently cashed a similar check at the bank. Goebel testified that she mistakenly thought the check was for approximately $900 and made the funds available for Kelly's immediate use. Kelly's account was credited for the full amount ($9,960), and he spent a large portion of the money within a short period of time.
Later, the bank discovered that the checks w ere counterfeit, and it put a hold on Kelly's account. On April 6, Goebel contacted Kelly about the situation. Kelly met with Goebel's supervisor on April 11, and he promised to pay back the money. Kelly signed a loan agreement and provided collateral for the amount he had already spent — approximately $6,452.
Goebel also contacted the Valdez Police Department and reported the incident. Investigator Daniel C. Mott contacted Kelly on April 16 and again on April 21. Kelly initially repeated his story about having received the checks from a stock transaction. But Kelly then changed his story — he said he received the checks from a woman who had e-mailed him from Nigeria requesting help in bringing her family to the United States.
Based on his conduct in presenting the counterfeit checks, Kelly was convicted of two counts of forgery in the second degree, one count of theft in the second degree, and two counts of felony criminal simulation. Kelly appeals his convictions.
AS 11.46.505(a)(1).
AS 11.46.130(a)(1).
AS 11.46.530(a), (b)(1).
Kelly's motion for change of venue
Prior to trial, Kelly filed a motion for a change of venue. Kelly asserted that he could not obtain an impartial jury in Valdez due to pretrial publicity from two newspaper articles published in the Valdez newspaper. Kelly complained that the articles indicated the case had international implications, omitted the fact that he had reimbursed the bank through the loan agreement, and failed to include his version of the facts. Kelly also asserted that Valdez was a small town, that the First National Bank was one of only two banks in town, and that many jurors would have accounts with the bank. Judge Schally denied the motion but stated that Kelly could renew the motion during jury selection.
Alaska law provides that a trial judge can choose to observe jury voir dire to determine the impact of pretrial publicity, instead of relying on speculation as to whether an impartial jury can be found. Alaska law is also clear that to preserve a motion to change venue, the defendant must renew his motion after the parties have observed the jury voir dire.
Mallott v. State, 608 P.2d 737, 746 (Alaska 1980); West v. State, 923 P.2d 110, 114 (Alaska App. 1996).
Alexander v. State, 838 P.2d 269, 273 (Alaska App. 1992) (citing Mallott, 608 P.2d at 748; Wylie v. State, 797 P.2d 651, 656 (Alaska App. 1990)).
Kelly did not renew his motion for a change of venue during jury selection. Kelly argues that it was not necessary to renew the motion because during jury selection Judge Schally told him he could raise his motion again and that venue would be changed if an impartial jury could not be had. But Judge Schally was merely stating the law; Kelly still had an obligation to clearly and affirmatively renew his motion for a change of venue. Since Kelly did not renew the motion, we review the change of venue issue only for plain error.
Having reviewed the jury voir dire, we do not see any basis for finding plain error. Most of the facts in Kelly's case were undisputed. The primary issue was whether Kelly had an intent to defraud when he presented the counterfeit checks. Therefore, the fact that many of the jurors knew Kelly and the witnesses in the case was not particularly prejudicial. This familiarity is to be expected in a small town. Nothing in the jury voir dire indicated that the panel would be prejudiced against Kelly or would be prejudicially partial to any of the State's witnesses. There was no indication that Kelly would be prejudiced by the fact that many of the jurors used the bank where Kelly presented the checks.
Also weighing against a finding of plain error is the fact that the most recent of the two newspaper articles that Kelly claims caused pretrial publicity was published four months before jury selection began. Nothing in jury voir dire suggested that the articles might have prejudiced the jurors against Kelly. Moreover, Kelly did not utilize most of his peremptory challenges. In West v. State, we concluded that the defendant's failure to exercise all his peremptory challenges was "not conducive to a finding of plain error, even assuming [the defendant's] failure to renew the change of venue motion was not tactical." In Kelly's case we find no plain error.
Id.
Kelly's motion to admit the e-mails
Kelly's defense at trial w as that he was the victim of an Internet scam. Kelly did not testify, but sought to admit his version of the facts through e-mail communications with the Nigerian scammer. Specifically, Kelly asserted that he had been contacted through e-mail by a woman claiming to be from Nigeria who needed his help in bringing her family and money to the United States. The e-mail scammer promised that if Kelly would assist her, she would let him have a share of the money. The woman sent Kelly some official looking documents and the two checks that he later presented to the First National Bank.
Kelly admitted that, by the time of trial, everyone knew that this was a common Internet scam. But he pointed out that, at the time he received the e-mail, the scam was not as widely known. He argued that he was not very smart, that he was defrauded, and that he was a victim of the scam. He claimed that, at the time he presented the checks, he had no intent to defraud the bank.
Judge Schally allowed Kelly to admit into evidence the e-mails that he sent and received up until April 6, the date when the bank confronted Kelly with the fact that the checks were counterfeit. Kelly argues that it was error for Judge Schally to not admit e-mails sent and received after April 6 into evidence.
Kelly asserts that the e-mails after the 6th were admissible to show his innocent state of mind regarding the validity of the checks. Specifically, Kelly argues that "[t]he post-April 6 e-mails were important to [Kelly's] defense because they would have established that, even after he was in criminal trouble, he still believed the checks were genuine and was seeking assurances and explanations from the Nigerians."
There are two answers to Kelly's contention that Judge Schally erred in refusing to admit the post-April 6 e-mails. First, "[a] defendant's self-serving statements are hearsay and cannot be admitted into evidence unless they qualify under some exception to the hearsay rule or are used for a non-hearsay purpose." Judge Schally did not abuse his discretion in finding that Kelly's later e-mails were self-serving hearsay statements that had little probative value. The essential question in the case was whether Kelly, at the time he presented the counterfeit checks, had an intent to defraud. Kelly's state of mind after he was confronted with the fact that the checks were counterfeit was not relevant. Even if Kelly did not know at the time he passed the checks that they were counterfeit, it proves very little that Kelly made statements professing his innocence after he was confronted with the fact that the checks were counterfeit.
Brannen v. State, 798 P.2d 337, 340 (Alaska App. 1990) (citing State v. Agoney, 608 P.2d 762, 764 (Alaska 1980); Stumpf v. State, 749 P.2d 880, 899 (Alaska App. 1988)).
Second, Kelly was able to fully establish his defense through the e-mails sent and received before April 6, which were admitted. These e-mails tended to show that Kelly was contacted by the Internet scammer. And the e-mails tended to establish the scammer's method of operation. The question at trial was whether Kelly was actually fooled by the scam and had no intent to defraud the bank when he presented the checks. The e-mails that the court allowed into evidence permitted Kelly to present this defense. Therefore, even if Judge Schally had erred in refusing to allow Kelly to admit the later e-mails, any error would be harmless. Kelly's probation violation
Judge Schally found that Kelly violated his probation because he committed the crimes at issue in this case. Kelly argues, and the State concedes, that if we overturn his convictions, the probation revocation should also be vacated and remanded for reconsideration by the judge. Because we affirm Kelly's convictions, we likewise affirm his probation revocation.
Conclusion
We conclude that Judge Schally did not abuse his discretion in denying Kelly's pretrial motion for a change of venue. Nor did the court commit plain error in failing to change venue after observing jury voir dire. We also conclude that Judge Schally did not abuse his discretion in refusing to allow Kelly to admit into evidence the e-mails that he sent and received after the bank confronted him with the fact that the checks he deposited were counterfeit. Accordingly, we affirm Kelly's convictions and probation violation.
The judgment of the superior court is AFFIRMED.
I write separately to address the issue of whether Kelly should have been allowed to introduce the e-mails that he wrote to the supposed woman in Nigeria and her supposed attorney after April 6, 2005 — that is, after the bank officials confronted Kelly with the information that the checks he had presented to the bank were forged.
In these post-April 6th e-mails, Kelly repeatedly told the woman and her attorney that he had trusted them, that he had believed that the monetary transactions they asked him to participate in were legitimate, and that they needed to help him now that he found himself in legal difficulties.
Of course, the underlying question that the jury had to decide was not Kelly's state of mind in the days after April 6th — i.e., after the falseness of the checks was discovered. Rather, the jury had to determine Kelly's state of mind on the days that he presented the two false checks to the bank. Nevertheless, Kelly's post-April 6th protestations of innocence were at least conceivably relevant on the issue of Kelly's pre-April 6th state of mind.
However, these e-mails were hearsay. They were Kelly's out-of-court assertions about his state of mind, offered to prove the truth of the matter asserted ( i.e., that he had acted innocently when he presented the checks to the bank).
Kelly argues that this hearsay was admissible under Evidence Rule 803(3), the hearsay exception that covers statements concerning a person's state of mind or belief.
In his lead opinion, Judge Coats rejects this argument on the basis that it would have been very easy for Kelly to fabricate statements about his state of mind — to make false after-the-fact protestations of innocence. But as I explained in my concurring opinion in Kelly v. State, 116 P.3d 602, 605-612 (Alaska App. 2005), most courts — and all of the major commentators on the law of evidence — agree that the possibility of self-serving fabrication is not a proper basis for rejecting hearsay evidence if that evidence falls within Rule 803(3)'s exception for statements concerning state of mind or belief.
Nevertheless, Judge Schally made the proper ruling in Kelly's case — because the e-mails that Kelly offered did not fall within Rule 803(3)'s exception for statements concerning state of mind or belief.
To qualify for admission under Rule 8 03(3), the out-of-court statement must be an assertion about the declarant's "then existing state of mind" — i.e., the declarant's contemporaneous state of mind at the time the statement was made, and not the declarant's state of mind at some prior time. Kelly, 116 P.3d at 604 (lead opinion) and at 605, 612 (Mannheimer, J., concurring).
To the extent that Kelly's post-April 6th e-mails contained assertions about his state of mind, all of these assertions concerned Kelly's state of mind at an earlier time — to wit, his state of mind on the days that he presented the false checks to the bank. And Kelly's avowed purpose in introducing these e-mails was to prove his state of mind at those earlier times. Thus, the post-April 6th e-mails were hearsay, and they did not fall within Evidence Rule 803(3)'s exception for assertions about the declarant's contemporaneous state of mind or belief. Judge Schally properly refused to admit this evidence.