Albert J. Kea v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2006-KA-01383-COA
ALBERT J. KEA
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
7/17/2006
HON. MARCUS GORDON
SIMPSON COUNTY CIRCUIT COURT
JULIE ANN EPPS
E. MICHAEL MARKS
WLM ANDY SUMRALL
OFFICE OF THE ATTORNEY GENERAL
BY: JOHN R. HENRY
EDDIE H. BOWEN
CRIMINAL - FELONY
CONVICTED OF PERJURY AND SENTENCED
TO EIGHT YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF
CORRECTIONS
REVERSED AND REMANDED - 07/01/2008
BEFORE KING, C.J., IRVING, CHANDLER AND CARLTON, JJ.
CARLTON, J., FOR THE COURT:
¶1.
Albert J. Kea was indicted for perjury by a Simpson County grand jury in October 2005 for
statements made during a civil suit he filed against Entergy Corporation after his house burned in
1998. Kea was convicted of perjury in 2006 and sentenced to serve eight years in the custody of the
Mississippi Department of Corrections. He now appeals his conviction and sentence.
FACTS
¶2.
In May 1998, Kea was involved in a car accident that left him hospitalized for approximately
ten days. He was released from the hospital on May 22, and his home in Magee, Mississippi burned
down the next day. Kea settled with his insurance company. He later filed suit against Entergy,
claiming that its faulty transformer was the cause of the house fire. Kea sought to recover damages
for the loss of various collectibles and antiques, and he provided a list of the items to Entergy in
discovery.
¶3.
Before the trial against Entergy, Kea’s son, Bob Key,1 contacted Entergy and told them that
the items that Kea claimed were lost in the fire were actually at Bob’s home in Colorado. Entergy
sent a representative to Colorado to investigate Bob’s claims and found that the items were in fact
not destroyed, but were in Bob’s home.
¶4.
Entergy did not disclose this information to Kea. Entergy called Bob as a witness at trial,
and the case was dismissed because the items had not been destroyed. Kea was charged with perjury
due to his testimony at the trial that the items had been destroyed. Bob claimed at trial that the items
had never even been in the Kea home and never belonged to the Keas. Bob claimed that all of the
items belonged to him and his wife, Lisa. Kea claimed that he and his wife had collected the items
over the years through Bob, who would purchase the collectibles for them when he traveled.
¶5.
Kea presented several witnesses at his perjury trial who identified individual items as having
been on display at the Kea home prior to the fire. Those witnesses included an employee of the pest
control company who serviced the Kea home regularly, a former neighbor, a relative, a family
friend, and others who were familiar with the Kea home. They all testified to seeing several of the
collectibles at issue in Kea’s home over the years. Other witnesses testified that they had seen Bob
taking things from his father’s home in Magee prior to the fire.
¶6.
Bob denied that he was in Magee prior to the fire or that he took the items from the home.
1
Bob Key admitted that he had several aliases. His passport, which was admitted into
evidence, was issued to Robert Keys. Bob also testified that his name was Robert John Kea.
2
He claimed that he was in Turkey with his wife prior to the fire; therefore, he could not have been
in Magee just before the fire. At the perjury trial, the prosecution presented the passports of Bob
and his wife, Lisa, showing the visa stamps to prove they had been out of the country prior to the
fire.
¶7.
Kea raises three issues on appeal and asserts that, taken together, the errors are cause for a
new trial. First, he contends that the trial court erred in not giving the jury a two-witness jury
instruction. Second, Kea argues that the trial court violated his right to confrontation by admitting
the unauthenticated passports of Bob and Lisa to prove they were in Turkey just before the fire.
Third, Kea claims that there was insufficient evidence to convict him or, alternatively, that the
verdict is against the overwhelming weight of the evidence. We find that Kea’s first two claims
constitute reversible error; therefore, these issues are dispositive of this appeal.
DISCUSSION
I. Whether the trial court erred in failing to give a “two-witness” instruction.
¶8.
“In determining whether error lies in the granting or refusal of various instructions, the
instructions actually given must be read as a whole. When so read, if the instructions fairly
announce the law of the case and create no injustice, no reversible error will be found.” Johnson
v. State, 823 So. 2d 582, 584 (¶4) (Miss. Ct. App. 2002) (citing Collins v. State, 691 So. 2d 918, 922
(Miss. 1997)).
¶9.
Kea claims that the trial court erred in not instructing the jury on the proof necessary to
convict him of perjury. Kea did not request such an instruction at trial, but he claims that the trial
court, on its own initiative, should have instructed the jury regarding the quantity of proof required.
The State argues that any error that may be found in the trial court’s failure to instruct the jury on
this point is harmless error. The State argues that because Kea testified that the collectibles were
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destroyed in the house fire and because it is uncontested that the items were not destroyed, Kea’s
conviction was inevitable. We disagree and find that Kea was entitled to have the jury instructed
as to the level of proof required to convict him.
¶10.
Our supreme court explained in Nash v. State, 244 Miss. 857, 865-66, 147 So. 2d 499, 502
(1962) as follows:
This Court has held in a long line of decisions that, although the other allegations of
the indictment may be proved by a single witness, the falsity of the allegedly
perjured statement must be established by the testimony of at least two witnesses or
by one witness and corroborating circumstances and a conviction for perjury may not
be secured and sustained on the uncorroborated testimony of one witness to the
falsity of the allegedly perjured statement on which the perjury is assigned.
(Citations omitted). The State relies on Gordon v. State, 158 Miss. 185, 128 So. 769 (1930) for the
proposition that the failure to give the two-witness jury instruction was harmless error. In Gordon,
the supreme court held that the failure to give the instruction was harmless because the evidence in
that case measured up to the requirements of the rule regarding the level of proof necessary to
sustain a conviction. Gordon, 158 Miss. at 187, 128 So. at 769. The supreme court stated:
In the case at bar, on the evidence, the verdict of the jury was correct; and, although
the jury should have been advised as to the quantum of evidence required in a perjury
case, it is manifest that the want of it in this case did not harm this appellant, for the
reason that the evidence measures up to the requirement of the rule as to the quantum
thereof necessary to sustain a conviction.
Id. (emphasis added). The supreme court has held more recently that “[t]he fact that on appeal the
verdict of the jury can be supported by the evidence does not automatically excuse failure to give
the required two[-]witness rule[.]” Hale v. State, 648 So. 2d 531, 537 (Miss. 1994). Thus, our
opinion as to Kea’s guilt or innocence is immaterial. In Hale, the supreme court held that:
The jury convicted without being instructed that more than the testimony of a single
witness was required to justify their verdict. This was no mere "technical" error
relating to the "formalities and minutiae" of the trial. (citation omitted). We are not
authorized to look at the printed record, resolve conflicting evidence, and reach the
conclusion that the error was harmless because we think the defendant was guilty.
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That would be to substitute our judgment for that of the jury and, under our system
of justice, juries alone have been entrusted with that responsibility.
Id. (quoting Weiler v. United States, 323 U.S. 606, 611 (1945)). Further, the State should have
instructed the jury as to the proof required in a perjury case regardless of whether or not the defense
requested such an instruction. Id. at 537-38. The trial court’s failure to instruct the jury in
accordance with the two-witness rule as required in perjury cases constituted reversible error. Id.
at 538.
II. Whether the trial court erred in admitting the passports of Bob and Lisa.
¶11.
Several of Kea’s witnesses testified that they saw Bob taking boxes out of Kea’s home the
week before the fire. Bob and Lisa claimed that they were in Turkey at the time, and Bob could not
have been in Magee at that time taking items from Kea’s home. The prosecution offered Bob’s and
Lisa’s passports, and the visa stamps within, as evidence that they were in Turkey at the time that
the witnesses claimed to have seen them at Kea’s home. At trial, Kea objected to the admission of
the passports into evidence based upon their authenticity.
¶12.
This Court has articulated the standard of review for the admission or exclusion of evidence
in a criminal case:
This Court's standard of review for the admission or exclusion of evidence by the
trial court is very limited. The trial judge has a great deal of discretion in evaluating
the relevancy and admissibility of evidence. Jefferson v. State, 818 So. 2d 1099,
1104 (¶6) (Miss. 2002). "Unless the judge abuses this discretion so as to be
prejudicial to the accused, the Court will not reverse" the trial judge's rulings. Id.
(citing Hughes v. State, 735 So. 2d 238, 270 (¶134) (Miss. 1999)).
Turner v. State, 950 So. 2d 243, 246 (¶5) (Miss. Ct. App. 2007). “However, the discretion of the
trial judge must be exercised within the boundaries of the Mississippi Rules of Evidence.” Stubbs
v. State, 878 So. 2d 130, 134 (¶7) (Miss. Ct. App. 2004).
¶13.
Kea claims that the passports and the stamps on them were not properly authenticated as
5
required by Mississippi Rules of Evidence 901 and 902(3), which deprived him of the right to
confront the witnesses against him. Mississippi Rule of Evidence 901(a) provides:
General Provision. The requirement of authentication or identification as a
condition precedent to admissibility is satisfied by evidence sufficient to support a
finding that the matter in question is what its proponent claims.
¶14.
The State argues that the passports needed no authentication because they are authentic on
their face. The State concedes that the passport of Robert Keys was obtained through a fraudulent
application because Bob used an alias to obtain the passport.2 We do not agree that a fraudulently
obtained passport could be considered authentic on its face for the purposes of establishing the
information contained within as factual. See Weiss v. United States, 491 F.2d 460, 466 (2nd Cir.
1974) (holding that a passport is not competent evidence to prove the defendant was not in Thailand
absent proof by Thai authorities that if the defendant had entered or exited Thailand, an entry would
have been placed on his passport); Gulotta v. United States, 113 F.2d 683, 685 (8th Cir. 1940)
(holding that a passport which was not authenticated or identified was not competent evidence to
prove the facts stated therein). The State argues that the passports were authenticated by Bob and
Lisa themselves, who testified that the passports were theirs and that they traveled to Turkey in May
1998. Under Rule 901(b)(1), a piece of evidence can be authenticated by testimony of a witness
with knowledge that a “matter is what it is claimed to be.” M.R.E. 901(b)(1). While the witnesses’
testimonies may satisfy the authentication requirement for the passports, they do not effectively
authenticate the visa stamps within the passport.
¶15.
Kea argues that the visa stamps, not just the passports themselves, should have been
2
Bob admitted in his testimony that he had a number of prior convictions, including one for
making a false statement on a passport. Bob also testified at trial that his name was Robert John
Kea. However, his passport was issued to Robert Key, then “corrected” to reflect the name Robert
Keys.
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authenticated. Mississippi Rule of Evidence 902, which describes the types of evidence that are
self-authenticating and, thus, not required to be authenticated through extrinsic evidence states, in
part:
(3) Foreign public documents. A document purporting to be executed or attested
in his official capacity by a person authorized by the laws of a foreign country to
make the execution or attestation, and accompanied by a final certification as to the
genuineness of the signature and official position (A) of the executing or attesting
person, or (B) of any foreign official whose certificate of genuineness of signature
and official position relates to the execution or attestation or is in a chain of
certificates of genuineness of signature and official position relating to the execution
or attestation. A final certification may be made by a secretary of an embassy or
legation, consul general, consul, vice consul, or consular agent of the United States,
or a diplomatic or consular official of the foreign country assigned or accredited to
the United States. If reasonable opportunity has been given to all parties to
investigate the authenticity and accuracy of official documents, the court may, for
good cause shown, order that they be treated as presumptively authentic without final
certification or permit them to be evidenced by an attested summary with or without
final certification.
The trial judge admitted the passports, over Kea’s objection, holding that he did not accept the
passports as official documents of the United States or a foreign government, but as notations
concerning arrivals and departures. However, the notations of arrivals and departures were
purportedly made by an agent of the Turkish government.
The stamps should have been
accompanied by a final certificate in accordance with Mississippi Rule of Evidence 902(3). See
Overseas Trust Bank Ltd. v. Poon, 181 A.D.2d 762, 763 (N.Y. App. Div. 2d 1992) (holding that it
was not error for the trial judge to refuse to admit the passport as evidence that defendant could not
have been served with process in New York because she had been in Hong Kong. The defendant
“offered no attestation or testimonial authentication by the Hong Kong authorities who had affixed
the stamps on her passport.”).
¶16.
The passports should not have been admitted to prove that Bob and Lisa were traveling in
Turkey at the time witnesses claimed to have seen Bob removing items from his father’s home.
7
CONCLUSION
¶17.
Because we find error in the trial court’s failure to give a two-witness jury instruction and
in the trial court’s admission of the passports to prove that Bob and Lisa were out of the country, we
reverse Kea’s conviction and sentence and remand the case for a new trial consistent with this
opinion.
¶18. THE JUDGMENT OF THE CIRCUIT COURT OF SIMPSON COUNTY IS
REVERSED AND REMANDED FOR A NEW TRIAL CONSISTENT WITH THIS
OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SIMPSON COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES,
ISHEE AND ROBERTS, JJ., CONCUR.
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