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Univ. of South Carolina School of Law

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Wednesday, March 4, 2009

Badly Preserved?: Court Of Appeals Of Texas Finds Appellant Failed To Preserve Confrontation Clause Issue In Forgery Appeal

I disagree with the conclusion of the Court of Appeals of Texas in its recent opinion in Velu v. State, 2009 WL 471344 (Tex.App.-Waco 2009), that Brinjit Velu did not preserve his Confrontation Clause objection at trial.

In Velu, Brinjit Velu was convicted of forgery based upon different variations of the following facts being presented at trial:

Velu, an Indian national and master's student, met Lizzy Kelly on an internet dating website. Kelly claimed to be a Pennsylvania resident studying in Nigeria. Velu became interested in Kelly. At some point, Velu agreed to cash a check for Kelly and wire her the money. Velu received the cashier's check from Kelly's aunt. In India, cashier's checks are the "most secure financial instruments," so Velu did not suspect that the check might be counterfeit. He took the check to Bank of America, where he maintained an account. The bank accepted the check, but later returned the check with a letter advising Velu that the check was counterfeit. The bank closed Velu's account.

Kelly told Velu that her aunt had stopped payment on the check. Velu believed Kelly and agreed to cash a second check from Kelly's aunt. Kelly instructed Velu to take the check to a check-cashing point and send her the money. Velu took the check to Mr. Payroll, believing that Mr. Payroll was in a better position to verify the check's authenticity and tell him whether the check was "genuine or fake."

Dorothy Johnson received the check from Velu. Johnson noticed that the check contained handwriting instead of machine printing and omitted the payor's telephone number. Velu told Johnson that he was cashing the check for a friend and needed to wire the money. Johnson, aware of a Nigerian check-cashing scam, became suspicious. Upon further questioning, Velu motioned for Johnson to "quiet down." He then told Johnson that an aunt had asked him to cash the check and wire the money to her niece in Nigeria. After contacting the bank, Johnson discovered that the check was counterfeit and contacted police.

Now, I'm not sure that Velu could have been convicted based upon the above facts alone, but his problem was that, as I noted, there were different variations of those facts, with most of those variations coming from Velu himself (A detective also recovered a chat log between Kelly and Velu from his computer in which she told him that the first check was not cancelled).

One of Velu's other problems was that the trial court allowed the prosecution to admit a business records affidavit which was accompanied by one of the counterfeit checks and two letters. In one of the letters, a manager of the credit union from which they check allegedly came stated, "[T]his is not our check, we did not issue this check and will not honor." The letter, however, erroneously stated that the $3,000 check was for $5,000.

Outside the jury's presence, Velu objected to admission of the affidavit:

(1) "It's not made at or near the time of the occurrence; and also, it's swearing to a check that's a 5,000-dollar check and the check in this case is a $3,000-dollar check"; (2) "[I]t's prejudicial and irrelevant"; and (3) "[The manager's] not subject to cross-examination. It's a sworn declaration that she looked at the check, and it's-I can't cross-examine her. I think it's prejudicial against my client. It's misleading to the jury."

The trial court, however, overruled the objections, "noting that the affidavit had been on file for more than fourteen days. See TEX.R.EVID.902(10)."

On appeal, Velu claimed that admission of the affidavit violated the Confrontation Clause because he was unable to cross-examine the affiant regarding the discrepancy in the amount of the check, but the State countered that Velu failed to preserve this claim for appeal. The Court of Appeals of Texas agreed with the State, citing several previous cases for the proposition that "[w]hen a defendant's objection encompasses complaints under both the Texas Rules of Evidence and the Confrontation Clause, the objection is not sufficiently specific to preserve error."

But each of the cited cases dealt with a hearsay objection combined with a Confrontation Clause/cross-examination objection. And those cases make sense to me because hearsay objections frequently involve Confrontation Clause/cross-examination issues, and it makes sense for courts to require litigants to make clear that they are making a Confrontation Clause objection in addition to a hearsay objection.

Conversely, based upon the language cited above, it is clear that the trial court treated Velu's objection as an authentication objection. In overruling Velu's objection, the court did not cite to any hearsay rule but instead cited to TEX.R.EVID.902(10), an authentication rule. Authentication objections frequently do not involve Confrontation Clause/cross-examination issues, so I don't see why the Court of Appeals of Texas found that Velu needed to provide any additional clarification.

-CM

http://lawprofessors.typepad.com/evidenceprof/2009/03/badly-preserved.html

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