IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 89,003
STATE OF KANSAS,
Appellee,
v.
JUSTIN D. ELNICKI,
Appellant.
SYLLABUS BY THE COURT
1. An appellate court exercises de novo review over a trial court's alleged erroneous admission of evidence when that alleged error is based on a question of law.
2. A witness may not express an opinion on the credibility of another witness. The determination of the truthfulness of a witness is for the jury.
3. A trial court has no discretion as to whether to allow a witness to express an opinion on the credibility of another witness; such evidence must be disallowed as a matter of law.
4. Under the facts of this case, it is error for a jury to be shown a videotape in which a law enforcement officer comments on the defendant's credibility by calling the defendant a liar, by saying that the defendant was "bullshitting" him and "weaving a web of lies," and by suggesting that he could tell the defendant was lying because the defendant's eyes shifted. The absence of a limiting instruction compounded the error.
5. A two-step analysis is applied to allegations of prosecutorial misconduct. First, the court decides whether the prosecutor's comments were outside the wide latitude allowed in discussing the evidence. Second, the court must decide whether the comments constitute plain error; that is, whether the statements are so gross and flagrant as to prejudice the jury against the defendant and deny him or her a fair trial, thereby requiring reversal.
6. A prosecutor should not comment on the credibility of his or her own witnesses.
7. An appellate court, when reversing and remanding a case for a new trial, must address allegations of insufficient evidence to support the convictions to determine whether retrial is permissible under the Double Jeopardy Clause of the United States Constitution.
Review of the judgment of the Court of Appeals in 32 Kan. App. 2d 266, 80 P.3d 1190 (2003). Appeal from Shawnee district court; MATTHEW J. DOWD, judge. Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed. Opinion filed February 18, 2005.
Patrick H. Dunn, assistant appellate defender, argued the cause and was on the brief for appellant.
Deborah L. Hughes, assistant district attorney, argued the cause, and Robert D. Hecht, district attorney, and Phill Kline, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by
NUSS, J.: A jury convicted Justin Elnicki of one count each of rape and aggravated criminal sodomy. The Court of Appeals affirmed in State v. Elnicki, 32 Kan. App. 2d 266, 80 P.3d 1190 (2003). This court granted Elnicki's petition for review under K.S.A. 20-3018(b).
Elnicki's six issues on appeal, and our accompanying holdings, are as follows:
1. Did the trial court err in allowing the jury to hear a detective's opinions about Elnicki's lack of credibility? Yes.
2. Did the prosecutor commit misconduct with her comments in closing argument? Yes.
3. Did cumulative error substantially prejudice Elnicki and deny him a fair trial? Yes.
4. Are Elnicki's convictions for rape and aggravated criminal sodomy supported by sufficient evidence? Yes.
5. Did the trial court err in using Elnicki's criminal history when sentencing for the nonbase offense? Moot.
6. Did the trial court err in using Elnicki's juvenile convictions to calculate his criminal history score? Moot.
Accordingly, we reverse Elnicki's convictions and remand for a new trial.
FACTS
J.A. reported to Topeka police that she had been raped and sodomized in and near a vehicle in north Topeka during the early morning hours of November 8, 2001. She sustained bumps, bruises, and scratches all over her body. Detective Karim Hazim of the Topeka police department was assigned to investigate. Later that day Justin Elnicki was arrested for the episode and interviewed by Hazim that evening at the police station. The interview lasted approximately 3 1/2 hours and was recorded on videotape.
Elnicki first told Hazim that he never met a girl that night. He said that he was drinking with friends and then went home. He explained that the scratch on his neck was from a fight with his friend.
When Hazim confronted him with identifying evidence from J.A., Elnicki next said that he was too drunk to remember what happened. He said that he could have had sex with a girl, but did not remember if he had.
When Hazim told Elnicki that there was likely to be physical evidence linking him to the crime, Elnicki then remembered going to the Kwik Shop to buy cigarettes for his girlfriend. He told Hazim he met a girl there and talked about getting some marijuana. Elnicki said that she got into his truck and they left to get marijuana. At some point, they started kissing, and the girl performed oral sex on him. Elnicki said he was unable to get an erection and he did not ejaculate. After the interview, Hazim collected saliva, fingernail scrapings, and hair from Elnicki.
Several months later Hazim received a letter from Elnicki's ex-wife which had been written by Elnicki on February 26, 2002. The letter provided yet another account:
"I stoped [sic] at Kwik Shop to get some ciggarettes [sic]. There was a girl on the phone and we started talking and I asked her if she new [sic] where to find some bud [marijuana] and she said ya. So I asked her if she wanted a ride to go get it. She said sure so we put her bike in the back of the truck and we went to some house and she came back out and said she couldn't get any so we drove off and I ended up parking in some parking lot and we did the rest of my meth. That's when I asked her if she wanted to get freaky. She said no so I said well I will give you $25.00 she said alright. Well we started fooling around and I started fingering her and I noticed she didn't have any pubic hair and I asked her why she shaved it and she said because her man liked it that way. Well anyway I got out to take a leak and when I got done peeing I told her to come here and she came to the drivers side of the truck and I asked her to give me head and she got on her knees and started sucking my penis but it would not get hard and I told her to get in the truck because I was scared someone might drive bye [sic] and she started sucking my penis in the truck and it still would not get hard so I played with it a little and then she played with it to. [sic] Well we tryed [sic] to have sex and my penis would not get hard so we said fuck it and we sat up and started talking and she asked me if I still wanted to find some bud. I told her no I needed to get home and she asked me for the money for the blowjob and I told her no because I didn't get nothing out of it and she said quit fucking around and give her the money. I told her to get her bike and get the fuck out of my truck. Then she grabbed my neck and I pulled away and she scratced [sic] the shit out of me. It made me real mad and I punched her a couple times and she ran so I chased her and hit her some more and she came after me so I put her in a head lock and she bit me so I punched her again and I ran to my truck and went home."
Evidence at trial demonstrated that the rape examination of J.A. and subsequent analysis revealed one of Elnicki's pubic hairs on her leg and his semen in her vagina. The blood stains discovered in his Blazer were determined to belong to J.A.. Among other things, the jury also was shown Elnicki's videotaped interrogation by Hazim from which references to Elnicki's criminal experience had been deleted.
Upon Elnicki's conviction for rape and aggravated criminal sodomy, the trial court sentenced him to a presumptive sentence of 618 months' incarceration for the rape and a concurrent sentence for the aggravated criminal sodomy.
ANALYSIS
Issue 1: Did the trial court err in allowing the jury to hear a detective's opinions about Elnicki's lack of credibility?
Standard of review
Elnicki claims that the trial court erred in allowing the jury to watch his videotaped interrogation in which Detective Hazim stated his opinions on Elnicki's credibility. The State suggests that our standard of review is for abuse of discretion based on the following:
"Admission of evidence is entrusted to the sound discretion of the trial court. Discretion is abused only where no reasonable person would take the view adopted by the trial court. Absent a clear showing of abuse of discretion, evidentiary findings of the trial court will not be set aside on appeal." State v. Parker, 277 Kan. 838, 844, 89 P.3d 622 (2004).
In State v. Carter, 278 Kan. 74, Syl. ¶ 1, 91 P.3d 1162 (2004), however, we held that "evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge's discretion, depending on the contours of the rule in question." When faced with the specific question of whether one witness may testify about another's credibility, arguably the district judge has little, if any, discretion. See State v. Plaskett, 271 Kan. 995, 1009, 27 P.3d 890 (2001) ("trial court erred in allowing Detective Langer to express his opinion as to whether A.W. was telling the truth").
Similarly, in Kuhn v. Sandoz Pharmaceuticals Corp., 270 Kan. 443, 456, 14 P.2d 1170 (2000), while we acknowledged that an abuse of discretion standard is used in most cases involving the admissibility of scientific evidence, we held de novo review was appropriate there because the district court failed to correctly apply the standard of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). We characterized the issue as a question of law. We cited, among other things, Koon v. United States, 518 U.S. 81, 100, 135 L. Ed. 2d 392, 116 S. Ct. 2035 (1996), which stated:
"Little turns, however, on whether we label review of this particular question abuse of discretion or de novo, for an abuse-of-discretion standard does not mean a mistake of law is beyond appellate correction. . . . The abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions."
Based upon this case law, and as more fully explained in issue one, we hold that the proper standard of review of Hazim's credibility comments on the videotape is de novo.
Discussion
Elnicki objected to the following statements by Hazim in the videotape played to the jury:
1. "I'm a real honest person. I'm not gonna sit here and bullshit with you. And I would hope you're not gonna bullshit with me; this is serious and you just told me a flat out lie."
2. "You didn't get into a fight. I can tell. When somebody lies, their eyes shift, did you realize that?"
3. Elnicki stated, "You called me a liar." Hazim replied, "I may have called you a liar."
4. "I'm not gonna sit here and yell at you, I'm not gonna scream at you. I might call you a liar, that's no big deal, but I'm not gonna disrespect you."
5. "Well what's gonna happen, you know, when you find yourself sitting in a courtroom or talking to your attorney and they pull up all this evidence and want to know where the hell it came from, you're going to look pretty stupid sitting there saying you don't know where it came from."
6. "You tell me what you remember. All this other bullshit is a waste of your time and my time. You're not doing yourself any justice at all."
7. When Elnicki stated that he did not remember what happened, but that his girlfriend told him, Hazim said, "Justin! Bullshit! You're sitting here bullshitting me."
8. When Elnicki talked about getting in a fight with friends, Hazim said, "Justin, listen, you know what you're doing? You're weaving. You're weaving a web of fucking lies, man." (Emphasis added.)
Elnicki moved to redact those statements from the videotape, which the trial court denied. The court stated:
"All right. Well, I think it's part and parcel of the statement, and I don't think it impedes the prerogative of the jury to make a finding one way or the other about who's lying. I think people call people liars all the time, and it happens every day. That's not binding on the Court, it is not binding on the jury, it is just an observation."
When asked to review the tape, the court stated: "I know what's on it, I know what's at issue. I don't need to look at it."
Elnicki notes that the videotape had already been redacted for other purposes, e.g., his criminal history, and argues it could easily have been redacted to eliminate these statements. The State counters that Hazim's statements are recommended interrogation techniques and that they provide context for Elnicki's answers, particularly the three different accounts about the episode he gave during the interrogation. The Court of Appeals agreed that the comments were admissible because they gave context; as a result, the trial court did not abuse its discretion in refusing to redact. State v. Elnicki, 32 Kan. App. 2d 266, 272, 80 P.3d 1190 (2003). The Court of Appeals did note, however, that it would "probably be the better practice to give a cautionary instruction to the jury that statements made by officers in the course of interrogation are not sworn testimony and that only the jury can make determinations of the veracity of witnesses." 32 Kan. App. 2d at 272-73.
The issue of whether to allow a jury to view a videotape containing law enforcement's comments on a defendant's credibility such as Detective Hazim's is one of first impression in Kansas.
We start our analysis with the well-known rule that a witness may not express an opinion on the credibility of another witness. State v. Jackson, 239 Kan. 463, 470, 721 P.2d 232 (1986). This is because the determination of the truthfulness of a witness is for the jury. Plaskett, 271 Kan. at 1009. Moreover, the overwhelming majority of our recent decisions do not invoke an abuse of discretion or other standard of review for this issue. This absence strongly indicates an absolute prohibition against admission of this type of evidence. See Plaskett, 271 Kan. at 1008-09 ("trial court erred in allowing Detective Langer to express his opinion as to whether A.W. was telling the truth"); State v. Manning, 270 Kan. 674, 698, 19 P.3d 84 (2001) ("[q]uestions which compel a defendant or witness to comment on the credibility of another witness are improper"); State v. Mullins, 267 Kan. 84, 97, 977 P.2d 931 (1999) (line of inquiry equivalent to asking one witness if another witness was telling the truth was improper, "and the trial court erred in allowing the question to be answered"); State v. Lash, 237 Kan. 384, 386, 699 P.2d 49 (1985) (question "clearly was improper" because it called for an expression of expert's opinion about the credibility of witnesses); cf. State v. Steadman, 253 Kan. 297, 304, 855 P.2d 919 (1993) ("[t]he admission of witnesses' testimony that in their opinion the defendant was guilty . . . deprived the defendant of his right to a fair trial"); cf. State v. Jackson, 239 Kan. 463, 470, 721 P.2d 232 (1986) ("we think it was error for the trial court to permit the witnesses to testify and tell the jury that in their opinions the defendant committed the acts of molestation with which he was charged"). Contra State v. Arrington, 251 Kan. 747, 753, 840 P.2d 477 (1992).
In light of our prior decisions, we conclude the trial court has no discretion on whether to allow a witness to express an opinion on the credibility of another witness; such evidence must be disallowed as a matter of law.
While Kansas courts have not specifically addressed admissibility of a police officer's statements about a defendant's credibility in a videotaped interrogation, other jurisdictions have, with mixed views.
In Dubria v. Smith, 224 F.3d 995 (9th Cir. 2000), the Ninth Circuit Court of Appeals considered a habeas petition from an inmate who claimed that he was denied a fair trial because of the admission of an unredacted tape from his police interview. In that tape, officers repeatedly told the petitioner that no judge or jury would believe him if he stuck to his story. 224 F.3d at 1000. The court found that the tape was of an "unremarkable interview" and did not present evidence or theories of the case that were not presented at trial. The statements were questions that gave context to petitioner's answers, "not the types of statements that carry any special aura of reliability." 224 F.3d at 1001, 1002. Furthermore, the court stated, any error was cured by two cautionary instructions given by the court, e.g., cautioning that the detective's statements "are not to be considered for the truth, they are only to be considered as how they may give meaning to the answers." 224 F.3d at 1002. The court concluded the statements did not violate Dubria's fundamental right to due process. 224 F.3d at 1002. However, the court did not decide whether the admission of the statements violated the rules of evidence.
In a split decision, a majority of the Washington Supreme Court found the admission of such videotapes to be error, but a separate majority found any error to be harmless. State v. Demery, 144 Wash. 2d 753, 30 P.3d 1278 (2001). Similar to the court in Dubria, a majority of the Demery court stated that when the trial court admits third-party statements to provide context to a defendant's responses, the trial court should give a limiting instruction to the jury, explaining that only the defendant's responses, and not the third party's statements, should be considered as evidence. The court observed, however, that no such instruction was required in that case because "the jury clearly understood from the officer's testimony that the statements were offered solely to provide context to the defendant's relevant responses." 144 Wash. 2d at 762.
Missouri appellate courts appear to take an even more lenient view in allowing admission of this evidence. In State v. Palmes, 964 S.W.2d 241, 243-44 (Mo. App. 1998), the Missouri Court of Appeals found no error whatsoever in the trial court's admitting an audiotape containing an officer's opinions on credibility because it was part of the give-and-take of an interrogation trying to elicit a response from the defendant, not expert opinion at trial. (citing State v. O'Brien, 857 S.W.2d 212 [Mo. 1993]); cf. State v. Kluck, 968 S.W.2d 206, 208 (Mo. App. 1998) (no error in allowing detective to testify that he did not believe the defendant because each time he would tell defendant he did not believe him, defendant would tell him a different version of what occurred; detective was merely recounting the "give-and-take" of the interview).
Pennsylvania appellate courts appear to take the opposite view. In Commonwealth v. Kitchen, 730 A.2d 513, 521 (Pa. Super. 1999), the Superior Court of Pennsylvania agreed with the trial court that comments where the police, either directly or indirectly, accused Kitchen of lying "must be redacted from the videotapes" of his interrogation. The court stated:
"When the troopers stated to Appellee, 'You're lying,' or 'We know that you're lying' or phrases to that effect, their statements were akin to a prosecutor offering his or her opinion of the truth or falsity of the evidence presented by a criminal defendant, and such opinions are inadmissible at trial. [Citation omitted.] The troopers' statements could also be analogized to a prosecutor's personal opinion, either in argument or via witnesses from the stand, as to the guilt or innocence of a criminal defendant, which is inadmissible at trial. [Citations omitted.]" 730 A.2d at 521.
Accord Commonwealth v. Bolish, 381 Pa. 500, 525-26, 113 A.2d 464 (1955) (admission of tape recording, in which among other things the district attorney several times accused defendant of lying, deprived defendant of a fair trial).
In an analogous situation, where the officer testified he had told the defendant during the interrogation that he did not believe him, the Washington Court of Appeals in State v. Jones, 117 Wash. App. 89, 91-92, 68 P.3d 1153 (2003), addressed the State's argument that the officer was simply explaining his "interrogation technique" to the jury. The court disagreed:
"We find no meaningful difference between allowing an officer to testify directly that he does not believe the defendant and allowing the officer to testify that he told the defendant during questioning that he did not believe him. In either case, the jury learns the police officer's opinion about the defendant's credibility. And clothing the opinion in the garb of an interviewing technique does not help. As five of the justices determined in [State v. Demery, 144 Wash. 2d 753, 30 P.3d 1278 (2001)], an officer's accusation that a defendant is lying constitutes inadmissible opinion evidence. [Demery, 144 Wash. 2d at 765 (concurrence), 767 (dissent)]. Here, the jury heard that [Officer] Wilken did not believe Jones' comment that the gun was not his and that he did not know it was under the seat. This was a comment on Jones' credibility." 117 Wash. App. at 92.
The Jones court held that allowing the officer's comment was error and that a limiting instruction would not have cured the harm. It reversed and remanded.
Finally, in State v. Cordova, 137 Idaho 635, 51 P.3d 449 (Ct. App. 2002), the Court of Appeals of Idaho first found that an officer's statement on videotape that he was an expert in deception detection was improperly admitted, stating:
"As opposed to the 'unremarkable interview' observed in Dubria [v. Smith, 224 F.3d 995 (9th Cir. 2000)], the second officer's comments regarding his training and experience gave him the same aura of superior knowledge that accompanies expert witnesses in other trials. Accordingly, the second officer's assertions that Cordova was not being truthful appeared to be the comments of an expert, rather than the comments of a lay person investigating a crime. Although we agree with the court in Demery, that the tactics employed in Cordova's interrogation are acceptable interrogation tactics, we do not agree that certain comments, which may be permissible for purposes of interrogating a defendant, are also admissible in court for consideration by the jury." (Emphasis added.) Cordova, 137 Idaho at 641.
The Cordova court next found that this officer's comments did not give context to Cordova's answers, since they were not connected to a question, but instead made as to a statement to Cordova. The court did find, however, that other statements by the police indicating that they believed Cordova was lying gave context to Cordova's inculpatory statements and were therefore admissible. It also found trial court error in admitting the statements without a limiting instruction informing the jury that the police questioning was relevant only for the limited purpose of providing context to the defendant's answers and should not be considered for the truth of the officer's statements made therein. Cordova, 137 Idaho at 641-42. Because of other evidence in the case, however, the court concluded that both errors were harmless. Cordova, 137 Idaho at 642.
A synthesis of the referenced case law leads us to conclude that it was error for Detective Hazim's comments disputing Elnicki's credibility to be presented to the jury. The jury heard a law enforcement figure repeatedly tell Elnicki that he was a liar; that Elnicki was "bullshitting" him and "weaving a web of lies." The jury also heard the same law enforcement figure suggesting he could tell Elnicki was lying because Elnicki's eyes shifted. A jury is clearly prohibited from hearing such statements from the witness stand in Kansas and likewise should be prohibited from hearing them in a videotape, even if the statements are recommended and effective police interrogation tactics. As far as context for Elnicki's answers are concerned, the State could have safely accomplished its goal simply by having Detective Hazim testify and point out the progression of Elnicki's various stories as the tape was played – minus Hazim's numerous negative comments on Elnicki's credibility. The absence of a limiting instruction merely compounded the already serious problem, misleading the jury into believing that Hazim's negative comments carried the weight of testimony.
The full impact of the error in allowing Hazim's statements on Elnicki's credibility to be played to the jury is analyzed – together with the question of the impact of the prosecutor's similar statements to the jury – in our discussion of issues two and three.
Issues 2 and 3: Did the prosecutor commit misconduct with her comments in closing argument and did cumulative error substantially prejudice Elnicki and deny him a fair trial?
Elnicki next contends that, just as it was error for the jury to hear Hazim's negative comments on Elnicki's credibility, it was prosecutorial misconduct for the prosecutor during closing argument to express her personal opinion on Elnicki's credibility, J.A.'s credibility, and the truth of the State's case. Elnicki made no objection to these statements at trial.
We recently stated our standard for reviewing such circumstances in State v. Tosh, 278 Kan. 83, 85, 91 P.3d 1204 (2004):
"A two-step analysis is applied to allegations of prosecutorial misconduct. First, the court decides whether the prosecutor's comments were outside the wide latitude allowed in discussing the evidence. Second, the court must decide whether the comments constitute plain error; that is, whether the statements are so gross and flagrant as to prejudice the jury against the defendant and deny him or her a fair trial, thereby requiring reversal. The facts of each case must be scrutinized in determining whether a prosecutor's remarks deny the defendant a fair trial. If the prosecutor's statements rise to the level of violating a defendant's right to a fair trial and deny a defendant his or her Fourteenth Amendment right to due process, reversible error occurs without regard to a contemporaneous objection. State v. McHenry, 276 Kan. 513, 522, 78 P.3d 403 (2003)."
Elnicki complains that the following italicized prosecutorial statements in closing argument were improper comment on his credibility:
"The defendant's story of what happened lacks plausibility and credibility. And I think you can see that most clearly and in the fascinating way that it progresses from a total lack of any memory and ever being anywhere and totally being with his friends to the final yarn that explains away each and every cut, bruise, and piece of physical evidence.
. . . .
". . . And did you notice how certain he is during that period of time when Hazim continues to challenge this fairy tale? He is certain he was nowhere but with his friends and his girlfriend. He proclaims clearly that he did not have sex with anyone that night. He is with Josh Martin until 4:30 when he goes home.
"But that is not accurate. That is a story. It's a fabrication of this defendant that he devised to protect himself. You know it, and Detective Hazim knew it that night.
"The second phase of his story is I know nothing. It's a change. His tall tale isn't working, so you got to have an alternate version. . . .
. . . .
"The third part of this yarn, it's really a miraculous memory recovery, it's a miracle, the fog is lifting. . . . He told Detective Hazim that in this recall over and over again that this was consensual oral sex. He is clear in this fabrication, though, that he never got an erection and he never ejaculated.
. . . .
"Do you suppose if his wife hadn't turned this [the 2002 letter] over to Detective Hazim you would have ever gotten this version of the truth? And what is he trying to do even with this version? What he is trying to do is spin it. You have all heard spin. The spin is this. Focus here, which explains everything away, and maybe you will all forget that previous four hours and all the other three versions. Maybe you will forget that if he spins this correctly. . . .
. . . .
"The injuries had to have come after any – any sexual content – contact in this case. They had to come afterward, in defendant's yarn, because otherwise it looks forced. . . .
. . . .
"Ladies and gentlemen, as you listen to the defense, you will hear that it is [J.A.] who is fabricating. You will hear that she made everything up. But consider if you will the yarn spun here, the four-part yarn. . . .
. . . .
"Don't let the defense poo-poo the defendant's four-part statement to you saying, well, it's the State's burden of proof, so it doesn't really matter if he lied. . . .
. . . .
"Ladies and gentlemen, beyond a reasonable doubt the State has proved its case. [J.A.] may have been immature, she may have been stupid, but she was raped and she was forced to suck his dick, and he did it and he didn't care. And, ladies and gentlemen, the truth shows you beyond a reasonable doubt the defendant is guilty of the crimes with which he is charged. Thank you." (Emphasis added.)
The State responds that these statements were fair comment on Elnicki's four versions of the events – (1) that Elnicki had been drinking at a bar and then went home and that the scratches were from a fight with a friend; (2) that Elnicki was too drunk to remember what happened and that he could have had sex with a girl, but did not remember; (3) that Elnicki went to the Kwik Shop to buy cigarettes for his girlfriend and met a girl there; that at some point they got in his Blazer, started making out, and that she v