Kelly v. State

837 P.2d 416, 108 Nev. 545, 1992 Nev. LEXIS 117

Opinions

OPINION

By the Court,

Springer, J.:

The appellant, George Kelly (“Kelly”), was serving a fifteen-year sentence for attempted sexual assault when he filed a habeas corpus petition in federal court. In his habeas petition, Kelly included a letter, purportedly written by his trial counsel, guaranteeing him a maximum five-year sentence in exchange for pleading guilty to attempted sexual assault. Based upon this letter, Kelly was subsequently charged in state court with forgery and offering false evidence.

At trial, the State introduced evidence of Kelly’s prior conviction of attempted sexual assault and the circumstances surrounding this conviction, including evidence of the specific four charges brought against Kelly, the maximum sentences they carried, Kelly’s guilty plea (to attempted sexual assault), and the three charges subsequently dismissed. Kelly now contends that the district court committed prejudicial error in admitting evidence of his prior conviction and the dismissed charges. We disagree and affirm the judgment of conviction.

The Facts

Kelly was previously charged with four crimes: attempted sexual assault, sexual assault, attempted statutory sexual assault, and statutory sexual assault. All of these charges involved Kelly’s alleged molestation of his child. Because Kelly had confessed to the molestation and because the felonies of sexual assault and statutory sexual assault each carry a possible life sentence, Kelly’s trial counsel recommended a plea bargain. Thereafter, Kelly agreed to plead guilty to attempted sexual assault, which carries a maximum twenty-year sentence; in return, the State agreed to drop the remaining charges and to recommend a five-year sentence to the court. At no time, however, was Kelly told that he would receive a five-year sentence. In fact, Kelly was informed that although the court might adopt the State’s sentencing recommendation, the judge could sentence him to a maximum of twenty years in prison. The plea agreement that Kelly signed also states that the judge has discretion to determine Kelly’s sentence.

During the sentencing hearing, the State recommended a five-year sentence.¹ The judge asked Kelly if he understood that the maximum sentence for the crime of sexual assault is twenty years, and Kelly answered, “Yes.” The judge also asked if any promises other than those contained in the plea agreement had been made; Kelly answered, “No.” The judge then asked if other negotiations had occurred, and Kelly responded, “No.” When the judge asked Kelly what the maximum penalty could be, Kelly answered that the maximum penalty was twenty years and that the terms of sentencing were up to the judge. At no time during this hearing did Kelly state that he had been promised a five-year maximum sentence. At the conclusion of the hearing, the judge sentenced Kelly to fifteen years in prison.

Subsequently, Kelly filed a motion to withdraw his guilty plea; the district court denied this motion, and Kelly filed an appeal. In none of his pleadings did Kelly mention that he had received a five-year maximum sentence guarantee. Furthermore, at no time did Kelly question his trial counsel about breaching the promise of a five-year sentence.

Five years after he was convicted and sentenced, Kelly filed a petition for habeas corpus in the federal district court. In this petition, which Kelly signed under penalty of perjury, Kelly alleged that his guilty plea was involuntary and induced by promises from counsel. He stated that his trial counsel had guaranteed him a five-year sentence; specifically, Kelly stated that “[t]rial counsel absolutely guaranteed me that I would not receive more than five (5) years. Counsel coached me to give judge canvassing answers counsel desired given.”

Kelly attached to his habeas petition a letter, purportedly written by his trial counsel, which states that she had “made a negotiation with both the Court and the State” and that “[i]n exchange for your guilty plea ... the other three charges will be dismissed and you will receive a five (5) year sentence.” The letter also states the following:

A formal plea memorandum is being drawn by me and although it states in it that the Judge has the discretion to impose any sentence up to the maximum of twenty years — I want to assure you that I have already obtained the agreement of the Judge and the State that you will not be sentenced to more than five (5) years.

Kelly was subsequently charged in state court with forgery and offering false evidence. As mentioned, during the trial, the prosecutor and State’s witnesses explained the circumstances of Kelly’s prior conviction, including the charges brought against him, the maximum sentences they carried, his guilty plea, and the dropped charges. The court was careful to exclude any evidence that Kelly had molested his own child.

Discussion

Kelly asserts that the district court committed prejudicial error in allowing the State to introduce evidence of his prior conviction and the three dismissed charges.² We disagree, however, and conclude that the district court did not err in determining that the evidence was relevant and not more prejudicial than probative. In addition, we conclude that the evidence falls within the scope of NRS 48.045(2).

First, the evidence was relevant. The State could hardly discuss the circumstances of Kelly’s plea agreement, which relate directly to Kelly’s knowledge of the forged letter and false information on the habeas petition, without bringing in evidence of the dropped charges. Two of the dropped charges carried possible life sentences, and these were the charges that Kelly sought to avoid with his plea agreement. His plea agreement simply would not make sense to a jury if the jury were only informed that he was charged with attempted sexual assault, which carries a maximum sentence of twenty years. In fact, his allegation that he was promised a maximum five-year sentence for his guilty plea might have sounded reasonable if the evidence of other charges had been precluded. It is also worth noting that an important piece of evidence in this case, the forged letter attached to Kelly’s habeas petition, discusses the “other charges.” The fact that the State dropped these “other charges” was ostensibly the most important part of the plea agreement at issue.

In his habeas petition, Kelly included a letter discussing a “secret deal” between his counsel, the prosecutor, and the court. In his petition, and at trial, Kelly asserted that he was promised a maximum five-year sentence, was misled by his trial counsel, and that some sort of misbehavior occurred during the plea negotiations. Thus, to determine whether Kelly’s allegations had merit, the circumstances behind the plea agreement and sentencing hearing necessarily had to be explained. As the district court stated, the charges of sexual assault were germane to the plea negotiations — sexual assault is a special type of assault and authorizes a life sentence; it thus warrants a careful approach by counsel. In other words, the serious nature of the charges directly related to whether or not Kelly could have been promised a five-year maximum sentence and whether or not any “secret deal” had been made. The dropped charges also related to the reasonableness of Kelly’s plea agreement. The circumstances of the plea negotiations were thus intimately related to the false allegations made by Kelly in his petition for habeas corpus. Therefore, this evidence was relevant in that it shows that there was no “secret deal,” that Kelly struck the best deal he could under the circumstances, and that Kelly participated in the forgery and knew that the allegations in his habeas petition were false.

Further, we have recognized that

While Nevada’s Evidence Code prohibits the use of other crimes, wrongs, or acts as evidence of an accused’s character in order to prove that he acted in conformity therewith on a particular occasion, such evidence may, however, be admissible for other purposes . . . where its probative value is not substantially outweighed by the danger of unfair prejudice. The decision to admit such evidence rests with the sound discretion of the trial court and will not be disturbed on appeal absent a showing that the ruling was manifestly wrong.

Brackeen v. State, 104 Nev. 547, 552, 763 P.2d 59, 63 (1988) (citations omitted); accord Kazalyn v. State, 108 Nev. 67, 825 P.2d 578 (1992). As discussed above, in the present case, the evidence of Kelly’s charges and guilty plea is probative of Kelly’s knowledge of the actual terms of his plea agreement and whether Kelly could reasonably have believed that he was promised a five-year maximum sentence. Although admitting evidence of prior charges always involves the danger of prejudice, the district court determined that the probative value of this evidence outweighed any potential prejudicial effect.³ In addition, the court was careful to admonish the prosecutor not to explore the specific facts underlying the charges, and the court refused to admit a portion of the prior proceedings that would have revealed that Kelly had molested his own child. Because the evidence of Kelly’s charges was relevant and probative, and because the district court’s decision to admit the evidence was not manifest error, the decision should not be disturbed.

Moreover, in Brackeen, 104 Nev. at 553, 763 P.2d at 63, this court recognized that “[w]e have adopted the rule that the State is entitled to present a full and accurate account of the circumstances surrounding the commission of a crime, and such evidence is admissible even if it implicates the accused in the commission of other crimes.” In the present case, the underlying plea agreement constitutes part of the circumstances surrounding Kelly’s charges of forgery and offering false evidence. Thus, the State was entitled to present evidence of the underlying charges and plea agreement to give the jury a “full and accurate” picture of the circumstances involved in Kelly’s present charges.

We also conclude that evidence of the dropped charges falls within the ambit of NRS 48.045(2). This statutory provision states that

[ejvidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

NRS 48.045(2) (emphasis added). In the present case, evidence of Kelly’s dropped charges (and conviction) was not introduced to show his character or that he acted in conformity therewith; instead, it was introduced to explain the circumstances of the plea negotiations, and Kelly’s knowledge pursuant to these negotiations. Kelly’s knowledge of his possible life sentences, his knowledge that the most serious charges would be dropped if he pled guilty, his knowledge that he faced a maximum twenty-year sentence for the remaining charge, and his knowledge that the court had sentencing discretion is directly relevant to his knowledge that the letter was forged, and that he knew that his statements in the habeas petition were false. Thus, the evidence of Kelly’s other charges and his plea negotiations falls squarely within the scope of NRS 48.045(2).⁴

Furthermore, because Kelly testified, evidence of his prior conviction was also admissible for impeachment purposes. NRS 50.095 explains that “[f]or the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime is admissible but only if the crime was punishable by death or imprisonment for more than one year.” Additionally, the type of felony of which Kelly was convicted was admissible evidence. In Givens v. State, 99 Nev. 50, 54, 657 P.2d 97, 99 (1983), overruled on other grounds, Talacon v. State, 102 Nev. 294, 721 P.2d 764 (1986), we held that “[t]he trial court has discretion to admit or exclude the number and names of prior felony convictions.” In Givens, the defendant had been previously convicted of assault with attempt to commit rape; in his subsequent trial on kidnapping and multiple sexual assault charges, the district court allowed the prosecution to name his prior conviction. We concluded that the court had not abused its discretion. Similarly, in this case, the district court did not abuse its discretion in admitting evidence concerning the type of felony of which Kelly was convicted.

The only possible error in Kelly’s trial occurred when the district court admitted evidence of the nature of Kelly’s dismissed charges. We conclude, however, that the district court did not err. And, moreover, even if the admission of this evidence constitutes error, we believe that the error was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18 (1967); Rice v. State, 108 Nev. 43, 824 P.2d 281 (1992). First, the jury was informed that the other charges had been dropped after Kelly pled guilty to attempted sexual assault. In addition, all of Kelly’s charges related to sexual assault; because evidence that Kelly had been convicted of attempted sexual assault was clearly admissible and admitted, we conclude that the evidence of dropped charges involving the same conduct was not prejudicial. Further, the jury was not allowed to hear evidence on the facts of the underlying assault charges because the district court concluded that this evidence was too prejudicial. Moreover, Kelly’s attorney asked, during his cross-examination of Kelly’s former trial counsel, if it would “be fair to state that it’s a difficult thing for a man to walk into court and plead guilty to the crime with which Mr. Kelly was charged.” Thus, Kelly’s own counsel made inferences about the nature of Kelly’s prior charges. Finally, Kelly himself admitted that he was charged with four crimes and that the charges involved two life sentences and two twenty-year sentences. Under these circumstances, we conclude that the evidence of the names of the charges did not affect the jury’s decision.

Additionally, “[wjhere the evidence of guilt is great. . . error [in admitting evidence] will be deemed harmless.” McMichael v. State, 98 Nev. 1, 4, 638 P.2d 402, 403 (1982); see Robins v. State, 106 Nev. 611, 798 P.2d 558 (1990), cert. denied, 111 S.Ct. 1608 (1990). Our review of the record reveals an abundance of evidence supporting the jury’s finding of guilt. First, the State introduced the prison recordkeeper, who testified that Kelly had signed the “record review log” after reviewing his legal file.⁵ In addition, Kelly stipulated that the signature on his habeas petition, stating that he had been “absolutely guaranteed” a five-year sentence, was his and that he had read the habeas petition before signing it.⁶ Further, Kelly’s former trial counsel testified that she had not written the letter, and that she had told Kelly that he faced a possible twenty-year sentence for sexual assault. Kelly’s former trial counsel also testified that it is not possible for a plea bargain to bind the court to a particular sentence and that she was certain that Kelly decided to forge the letter.

Although Kelly attempted to blame the forgery on a fellow inmate, Randal Wiideman, at trial, an expert documents examiner concluded that the letter was an altered document and that only part of the forged letter may have been typed on Wiideman’s typewriter. In addition, the State introduced evidence that Kelly had access to typewriters and copying machines. The State also showed that the written plea agreement did not guarantee Kelly a five-year sentence, that it explained that the judge had sentencing discretion, and that it stated that Kelly’s crime carried a maximum twenty-year sentence.

The State also demonstrated that at the sentencing hearing, Kelly was asked if he was involved in any other promises other than those contained in the plea agreement; Kelly answered, “No.” Also, at this hearing, Kelly acknowledged that his maximum sentence was twenty years and that the terms of sentencing were up to the judge.

Importantly, although given an opportunity, Kelly never told the sentencing judge about the alleged “secret” plea agreement; nor did Kelly complain about the alleged breach of this agreement for five years, even though he filed numerous pleadings. When asked about the forged letter, Kelly replied that he did not remember receiving the letter, even though it states that it was “hand delivered.” Kelly did testify that he was “dumbfounded” when he “learned” of the letter. Most importantly, during cross-examination, Kelly admitted that his trial counsel had not promised him a five-year sentence. Kelly was then asked, “So [the letter] isn’t true, is it?” Kelly answered, “I guess not.”

We conclude that the district court did not err in admitting evidence of Kelly’s prior conviction or evidence that Kelly had been charged with other crimes. Because the evidence of Kelly’s guilt is overwhelming, the references to the nature of the dropped charges, if error at all, were harmless, and Kelly’s substantial rights were not affected.⁷ See Stickney v. State, 93 Nev. 285, 287, 564 P.2d 604, 605 (1977). After reviewing the record, we conclude that Kelly’s other contentions are without merit. We therefore affirm the district court’s judgment of conviction.

Rose and Steffen, JJ., concur.

1 The State first recommended “at least” a five-year sentence, then changed its recommendation to a five-year sentence. On Kelly’s direct appeal, we determined that the State conformed to its promise under the plea agreement.

2 Kelly initially argues that Nevada courts lack subject matter jurisdiction over this matter because his acts constituted offenses only against the federal government. We disagree. Nevada courts have jurisdiction over crimes committed in this state unless the offense is, by law, “cognizable exclusively in the courts of the United States.” NRS 171.010. Because forgery is prohibited by Nevada law, a defendant may be tried in Nevada courts for the crime.

3 We have recognized that

[t]he use of uncharged bad acts to convict a defendant is heavily disfavored in our system of criminal justice. Such evidence . . . forces the accused to defend himself against vague and unsubstantiated charges. Evidence of uncharged misconduct may unduly influence the jury, and result in a conviction of the accused because the jury believes he is a bad person. The use of specific conduct to show a propensity to commit the crime charged is clearly prohibited by Nevada law.

Berner v. State, 104 Nev. 695, 696-97, 765 P.2d 1144, 1145 (1988) (citations omitted).

In the present case, however, unlike the Berner case, evidence of Kelly’s charged bad acts was introduced, and evidence of these acts did not force Kelly to defend himself against vague and unsubstantiated charges.

4 The dissent cites Beck v. State, 105 Nev. 910, 784 P.2d 983 (1989). In Beck, we determined that evidence of alleged, uncharged misconduct that occurred sixteen years prior to the current charged crime was not admissible because it was not relevant. Thus, Beck is factually distinct from the present case.

5 Kelly stipulated that his signature was, in fact, on this document.

6 Kelly testified that he had read the letter and habeas petition, but that he did not have his glasses.

7 In Honkanen v. State, 105 Nev. 901, 902-03, 784 P.2d 981, 982 (1989), we explained that to find the admission of evidence of prior uncharged acts harmless error, we had to be certain that “the jury did not convict the appellant of the [prior] uncharged . . . incident under the pretext of the [subsequent] charged offense, or use the [prior] incident to conclude appellant ‘acted in conformity’ with the prior ... act when he committed the [subsequent] charged act.” In the present case, we are certain that the evidence of Kelly’s prior charged acts did not lead the jury to convict him of these acts, as he had already pled guilty to one of the charges, and his forgery/false evidence charges were not similar to the assault charges. In addition, we believe that the jury did not conclude that Kelly, in forging the letter and offering false evidence, acted in conformity with the dropped assault charges.