IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 95,138
STATE OF KANSAS,
Appellee,
v.
VACCARO M. STANO,
Appellant.
SYLLABUS BY THE COURT
1. The admission or exclusion of hearsay evidence is within the sound discretion of the trial court. The abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions. Where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanically to defeat the ends of justice.
2. In some instances, the admission of an incriminating hearsay statement, coupled with the refusal to admit an exculpatory hearsay statement by the same declarant, is so fundamentally unfair as to be an abuse of discretion and a denial of due process. Where the State has introduced portions of the defendant's statement which are incriminating, the defendant may be allowed to introduce exculpatory portions of his or her statement, even though the defendant does not intend to testify and such evidence is barred by the hearsay rule.
3. Nothing in the Constitution gives an accused the privilege of proffering, through hearsay, his or her self-serving statements while denying the State access to the rest of the story that could be obtained by cross-examination.
4. Appellate court review of a defendant's claim that his or her constitutional rights were violated is undertaken without deference to the trial court's interpretation of the law.
5. The Confrontation Clause of the United States Constitution is implicated only when a hearsay statement is testimonial. Though the United States Supreme Court has not provided a comprehensive definition of testimonial evidence, the Court has explained that whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a formal trial, and to police interrogations.
6. Where the admission of testimonial evidence at a criminal trial is at issue, the Sixth Amendment to the United States Constitution demands what the common law required: unavailability of the witness and prior opportunity for cross-examination.
7. The hearsay exception of admitting preliminary hearing testimony has been explained as arising from practical necessity and justified on the ground that the right of cross-examination initially afforded provides substantial compliance with the purposes behind the confrontation requirement.
8. It is well established that this court reviews a trial court's failure to give an instruction by a clearly erroneous standard where the party neither requested the instruction nor objected to its omission. An instruction is clearly erroneous when a reviewing court reaches a firm conviction that if the trial error had not occurred, there is a real possibility that the jury would have returned a different verdict.
9. Ordinarily it is error to refuse to give a cautionary instruction on the testimony of a paid informant or agent where such testimony is substantially uncorroborated and is the main basis for a defendant's conviction. Where, however, no such instruction is requested or objection made to the court's instructions, and such testimony is substantially corroborated, the absence of a cautionary instruction is not error and is not grounds for reversal of a conviction.
10. Appellate review of an allegation of prosecutorial misconduct requires a two-step analysis. First, an appellate court decides whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, the appellate court decides whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial.
11. A prosecutor may not argue irrelevant evidence regarding the impact of a crime on a victim or a victim's family.
12. The fundamental rule for closing arguments is that the prosecutor must confine his or her remarks to matters in evidence. It is improper for the prosecutor to state facts that are not in evidence.
13. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
Appeal from Shawnee district court, MATTHEW J. DOWD, judge. Opinion filed June 8, 2007. Affirmed.
Reid T. Nelson, of Capital and Conflicts Appellate Defender Appeals Office, of Topeka, argued the cause and was on the brief for appellant.
Robert D. Hecht, district attorney, argued the cause, and Jamie L. Karasek, assistant district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
DAVIS, J.: Vaccaro Stano appeals from his conviction of first-degree, premeditated murder. The defendant contends before this court that his conviction must be reversed based upon the following claims of error: (1) the exclusion of his exculpatory statement to police; (2) the admission of preliminary hearing testimony at trial of an unavailable witness; (3) the trial court's failure to provide a cautionary instruction concerning informants' testimony; and (4) prosecutorial misconduct during closing argument. We have considered the defendant's claims, find no reversible error occurred, and affirm his conviction.
Duane Hayes was shot in the head in his own driveway in Topeka on the evening of February 26, 2003, and died from his wound. The defendant was charged with first-degree, premeditated murder in conjunction with Hayes' death.
During the 9 months before his death, Hayes had been a habitual user of crack cocaine. Steve Bell, one of Hayes' drug suppliers, sometimes acted as a "drug creditor" for Hayes, where Hayes would allow Bell to use his car in exchange for two or more pieces of crack. Bell testified that Hayes called him on the evening of the shooting and asked Bell if he wanted to borrow Hayes' car, according to their deal. Because Bell was already borrowing his girlfriend's car that evening, Bell testified that he asked the defendant, who was with him at the time, if he would be interested in using Hayes' car. The defendant said he would be interested, and the three men met at a gas station. The defendant and Hayes left the station in Hayes' car, and Bell went home.
According to Bell, the defendant called Bell shortly thereafter, told Bell he had been robbed, and told Bell to meet him and bring a gun. Bell called the defendant back to find out where he was; the defendant told him that he was at Hayes' house. Bell arrived and found the defendant and Hayes outside. Hayes was angry because the defendant had only given him one piece of crack instead of two. The defendant wanted the car and grabbed the gun from Bell's car. Hayes rushed at the defendant and the two men wrestled for a moment; when the defendant broke free, he shot Hayes in the head. He later shot Hayes a few more times. The defendant then wiped down Hayes' car and jumped into Bell's car with Bell, and the two men drove away. Bell testified that the defendant threatened to kill him and his mother if he ever told anyone about the incident.
The defendant's wife, Tanya, was awakened by the sound of gunshots. She testified that she found her husband dead at the end of the driveway. He had been shot once in the back, once in the shoulder, and once in the head. Tanya found a baseball cap, a lighter, and a pack of cigarettes lying nearby; the Hayes' car was parked down the street.
The defendant's palm print was found on the windshield of the Hayes' car. DNA testing revealed that there was 10 times more of the defendant's DNA on the baseball cap than that of the other two contributors.
In addition to Bell and Tanya Hayes, several other witnesses testified at trial regarding the events that evening. Four neighbors testified that they heard gunshots. Two neighbors testified that they saw two men drive away from the scene after they had heard gunshots.
Tishaun Berry testified that she had met Bell earlier that month at a gas station and had given him her phone number. Berry was going to meet Bell on the evening of February 26, but she wanted to know if Bell knew someone who could come along to go out with Berry's friend Siobhan Plunkett. Bell told Plunkett to call the defendant and gave her his cell phone number. Plunkett testified that she called the number on February 26 and was asked to hold on. While she was waiting, Plunkett, Berry, and Plunkett's cousin overheard an argument on the other end of the phone between two men about money and drugs, followed by loud noises. Plunkett's cousin, Aaron Quarles, testified that he thought the noises were gunshots.
In addition, three of the defendant's acquaintances testified that the defendant told them he murdered Hayes and provided details about the murder. DaMario Brooks and Terence Wilkins both testified to this effect at trial. Eugene Greene provided a written statement to the police regarding the defendant's comments to Greene concerning the murder and his interactions with the defendant after the night of the murder. Greene testified at the preliminary hearing; his statement was admitted into evidence and provided part of the basis for his direct and cross-examination at the preliminary hearing.
Greene could not be located to testify at trial. The trial court determined that he was unavailable as a witness and authorized the State to read his preliminary hearing statement and testimony at trial.
(1) The exclusion of the defendant's exculpatory statements to the police
The defendant did not testify at trial. The State called Detective Louis Randall, the officer who investigated Hayes' murder, as a witness. At no point on direct examination did the State question the detective regarding his interrogation of the defendant. However, twice during defense counsel's cross-examination of Detective Randall, counsel attempted to elicit testimony from him that the defendant told the detective during the interrogation that "he didn't know anything" about the murder. On both occasions, the trial court sustained the State's hearsay objection.
The defendant acknowledges that his statements to the detective were hearsay, but he argues that the court violated his right to a fair trial by excluding his hearsay statements to the detective when it allowed three other witnesses–Brooks, Wilkins, and Greene–to testify as to incriminating statements that the defendant made to them regarding his participation in the murder. Specifically, the defendant argues that the exclusion of his exculpatory hearsay statements to Detective Randall and the admission of his inculpatory statements to Brooks, Wilkins, and Greene violated his constitutional right of due process as articulated in Chambers v. Mississippi, 410 U.S. 284, 302, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973), and State v. Brickhouse, 20 Kan. App. 2d 495, 890 P.2d 353, rev. denied 257 Kan. 1093 (1995). In the alternative, the defendant argues that the statements should have been admitted under K.S.A. 60-462.
Standard of Review
"This court has previously recognized that under the state and federal Constitutions a defendant is entitled to present the theory of his or her defense and that the exclusion of evidence that is an integral part of that theory violates a defendant's fundamental right to a fair trial. [State v.] Mays, 254 Kan. [479,] 486[, 866 P.2d 1037 (1994)] (quoting State v. Bradley, 223 Kan. 710, Syl. ¶ 2, 576 P.2d 647 [1978]); State v. Gonzales, 245 Kan. 691, 699, 783 P.2d 1239 (1989). '"Few rights are more fundamental than that of an accused to present witnesses in his own defense."' Gonzales, 245 Kan. at 699 (quoting Chambers v. Mississippi, 410 U.S. 284, 302, 35 L. Ed. 2d 297, 93 S. Ct. 1038 [1973]). The right to present a defense is, however, subject to statutory rules and case law interpretation of rules of evidence and procedure. State v. Bedford, 269 Kan. 315, 319, 7 P.3d 224 (2000); State v. Davis, 256 Kan. 1, 11, 883 P.2d 735 (1994); Bradley, 223 Kan. at 714." State v. Evans, 275 Kan. 95, 102, 62 P.3d 220 (2003).
The admission or exclusion of hearsay evidence is within the sound discretion of the trial court. See State v. Thomas, 252 Kan. 564, 572, 847 P.2d 1219 (1993). "'The abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.'" State v. White, 279 Kan. 326, 332, 109 P.3d 1199 (2005) (quoting Koon v. United States, 518 U.S. 81, 100, 135 L. Ed. 2d 392, 116 S. Ct. 2035 [1996]). Nevertheless, "[w]here constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanically to defeat the ends of justice." State v. Hills, 264 Kan. 437, Syl. ¶ 2, 957 P.2d 496 (1998). In some instances, "'[t]he admission of an incriminating hearsay statement, coupled with the refusal to admit an exculpatory hearsay statement by the same declarant, is so fundamentally unfair as to be an abuse of discretion and a denial of due process.'" DuMars, 33 Kan. App. 2d 735, 739, 108 P.3d 448, rev. denied 280 Kan. 986 (2005) (quoting State v. Brickhouse, 20 Kan. App. 2d at 503). In such cases, "'[t]he question of whether the exculpatory [hearsay] statement is reliable is overriden by the inherent unfairness that will occur if that statement is excluded while [an incriminating] hearsay statement . . . is admitted.'" DuMars, 33 Kan. App. 2d at 739.
Discussion and Analysis
Before discussing the defendant's arguments and the case law resolving this issue, we note that under time-honored rules of evidence, the defendant's exculpatory hearsay statements to Detective Randall were inadmissible. A criminal defendant is present at trial and has an absolute right to testify in his or her own behalf. Therefore, the defendant in this case could have taken the stand and testified about what he told Detective Randall. However, the defendant elected not to testify. In spite of this decision, the defendant now claims that the court erred by excluding the detective's testimony regarding the defendant's exculpatory hearsay statements.
The inculpatory statements admitted by the trial court that form the basis of the defendant's claim–statements that he made to his acquaintances that he committed the murder–were clearly admissible as party admissions under traditional rules of evidence. See K.S.A. 2006 Supp. 60-460(g). The defendant was present and could have taken the stand to deny he made such statements or to attempt to show that the statements were not true for whatever reason. However, the defendant elected not to testify. The question must be asked: "What, according to the law, makes this situation constitutionally unfair?" We have been unable to find any case to support the defendant's claim under the facts of this case.
Nevertheless, an apt answer to the above question is found in an opinion by the Court of Appeals for the Seventh Circuit in Gacy v. Welborn, 994 F.2d 305 (7th Cir.), cert. denied 510 U.S. 899, reh. denied 510 U.S. 1006 (1993), which involved a similar argument to that raised by the defendant in this case. Gacy filed a petition for federal habeas corpus relief from his murder conviction. In the underlying trial, Gacy did not testify but instead presented his insanity defense through the testimony of six expert witnesses. The court ruled that these witnesses could not relay Gacy's statements to them verbatim because such statements were inadmissible hearsay; however, the judge did allow the expert witnesses to "recount the substance of what Gacy had said." 994 F.2d at 315. In addition, the court allowed the prosecutor to question these witnesses about Gacy's incriminating statements and admitted such statements as admissions of a party opponent.
On appeal, Judge Easterbrook recognized that "the prosecutor used the hearsay objections to prevent Gacy from getting the more favorable portions of his story before the jury indirectly." 994 F.2d at 315. Nevertheless, the appellate court found no error in the trial court's exclusion of Gacy's statements. As the court explained:
"Beyond explicit rules such as the privilege against self-incrimination and the confrontation clause, none of which applies here, the Constitution has little to say about rules of evidence. Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991). The hearsay rule and its exception for admissions of a party opponent are venerable doctrines; no serious constitutional challenge can be raised to them.
"A challenge would lie if a state used its evidentiary rules to blot out a substantial defense. See Chambers v. Mississippi, 410 U.S. 284, 298-303, 93 S. Ct. 1038, 1047-50, 35 L. Ed. 2d 297 (1973); Green v. Georgia, 442 U.S. 95, 99 S. Ct. 2150, 60 L. Ed. 2d 738 (1979). These cases hold that states must permit defendants to introduce reliable third-party confessions when direct evidence is unavailable. No court has extended them to require a state to admit defendants' own out of court words. A defendant is available to himself as a witness. Nothing in the Constitution gives an accused the privilege of proffering, through hearsay, his self-serving statements while denying the state access to the rest of the story that could be got at by cross-examination." (Emphasis added.) 994 F.2d at 316.
A similar result was reached by the Illinois Court of Appeals in People v. Barnwell, 285 Ill. App. 3d 981, 675 N.E.2d 148 (1996). In that case, Barnwell was convicted of aggravated criminal sexual assault, kidnapping, and robbery. On appeal, Barnwell argued that the trial court erred by excluding police reports that contained exculpatory statements made by the defendant to the police at the time of the arrest. Barnwell claimed that the failure to admit the reports containing these statements violated his constitutional rights under Chambers because the introduction of his statements was critical to his defense. The appellate court disagreed and upheld the trial court's exclusion of the statements, reasoning:
"Under Chambers, a state's hearsay rule may under proper circumstances be required to yield to the right of a defendant to defend himself when the hearsay is critical to the presentation of his defense. [Citations omitted.] However, a hearsay statement is neither critical nor even necessary to a defendant's defense where the defendant is the declarant of the statement and is available to testify in his own behalf. Under such circumstances, the statement is properly excluded under the prevalent hearsay rules. [Citation omitted.] Moreover, under Chambers, in addition to being critical, the hearsay must also be reliable. [Citations omitted.] Here, where the defendant himself is the declarant, it is difficult to conceive how his unverified, uncross-examined, self-serving statements to the police could meet the test of reliability which Chambers clearly requires. [Citation omitted.] Therefore, defendant cannot hope to use his statements to the police in place of becoming an in-court witness on his own behalf." (Emphasis added.) 285 Ill. App. 3d at 990.
In Chambers, 410 U.S. at 302, the United States Supreme Court explained that state hearsay rules, even when constitutionally valid in and of themselves, "may not be applied mechanistically to defeat the ends of justice." There, a third party had orally confessed to three people that he had committed the murder for which the defendant was charged. At trial, the court excluded evidence of these previous "confessions" under Mississippi's hearsay rule; the court also held that the defendant could not cross-examine the third party (whom the State did not call as a witness) under the rationale that a party may not impeach his or her own witnesses. The United States Supreme Court held that the combination of these two rules deprived the defendant of his constitutional right to a fair trial. 410 U.S. at 302-03.
This court applied the Chambers rationale in Hills, 264 Kan. 437. Hills was convicted of possession of cocaine, possession of drug paraphernalia, and transporting an open container. Hills' initial interview with the police at the time of his arrest was videotaped and contained both inculpatory and exculpatory statements. At trial, the State called the police officer who interrogated the defendant at the time of his arrest to testify as to the defendant's inculpatory statements. On cross-examination, Hills' defense counsel questioned the interrogating officer regarding Hills' exculpatory statements. The State objected on the basis that it was inadmissible hearsay and beyond the scope of direct examination. The trial court sustained the objection and excluded evidence of Hills' exculpatory statements, ruling that because the exculpatory statements were "self-serving" hearsay they could not be admitted unless Hills testified. 264 Kan. at 442-43.
The Court of Appeals reversed in State v. Hills, 24 Kan. App. 2d 1, 7, 941 P.2d 404 (1997), and this court affirmed. State v. Hills, 264 Kan. 437, 443-48, 957 P.2d 496 (1998). We concluded:
"It is simply not permissible to admit an incriminating hearsay statement by the defendant while denying the admission of exculpatory portions of the same hearsay statement through the use of the hearsay rule. Where the State has introduced portions of the defendant's statement which are incriminating, the defendant is allowed to introduce exculpatory portions of his or her statement, even though the defendant does not intend to testify and such evidence is barred by the hearsay rule." 264 Kan. at 448.
In reaching this conclusion, we relied on this court's previous opinion in Reed, 213 Kan. 557, 561, 516 P.2d 913 (1973), and on the Kansas Court of Appeals' opinion in Brickhouse, 20 Kan. App. 2d 495. In Reed, the trial court allowed a witness for the State to testify concerning a conversation she had with the defendant, but the court refused to permit the defendant to introduce other evidence of the same conversation that supported his theory of the defense. The Reed court held that this selective admission of evidence regarding the conversation was a reversible error, reasoning that "[w]hen a witness testifies to some part of an oral conversation with the defendant, the defendant may introduce evidence showing his version of the conversation." 213 Kan. at 561.
In Brickhouse, the defendant was convicted of the distribution of marijuana, possession of methamphetamine, and possession of marijuana. On appeal, Brickhouse argued that the admission of hearsay statements by Cardello, the other person involved in the drug transaction that gave rise to Brickhouse's convictions, violated his constitutional rights. Cardello made several conflicting statements to the police during the course of the investigation regarding Brickhouse's involvement in the subject drug sale. Some of these statements implicated Brickhouse in the sale, while others tended to exonerate him. Cardello refused to testify at Brickhouse's trial, invoking his right against self-incrimination under the Fifth Amendment to the United States Constitution. Though all of Cardello's statements to the police were offered for admission into evidence at trial, the court admitted Cardello's inculpatory hearsay statements against Brickhouse but excluded the exculpatory statements.
The Court of Appeals reversed, finding the trial court's selective admission of Cardello's statements to the police to be an "uneven application of the hearsay rule" and therefore "an abuse of discretion." 20 Kan. App. 2d at 502. In particular, the Brickhouse court noted that "admitting hearsay evidence from an absent witness that is incriminating while denying admission of hearsay evidence from that same witness which is exculpatory is so unfair as to amount to a denial of due process." 20 Kan. App. 2d at 500. The court held that such an error was reversible because "the testimony was directly exculpatory, was not available through the testimony of other witnesses, and was contrary to an admitted incriminating statement by the same witness." 20 Kan. App. 2d at 502.
This rule regarding the even-handed application of hearsay rules has been applied not only to the defendant in criminal proceedings, but also to the State. See State v. Johnson, 258 Kan. 475, 482, 905 P.2d 94 (1995) (finding that "[o]nce the defendant addressed the telephone conversation and the note . . . during cross-examination, the State was entitled to rehabilitate McGill by introducing details of the conversation and note").
We have clarified our holding in Hills, noting that it does not lead to a conclusion that a court must admit any exculpatory statement, even if hearsay, so that a defendant may present his or her defense. State v. Humphery, 267 Kan. 45, 56, 978 P.2d 264 (1999) (finding that Hills "does not support the conclusion that the trial court's rulings regarding the admission of hearsay evidence [from an anonymous TIPS call] were erroneous in the present case"). Instead, courts generally have limited the holding of Hills to its facts–that the trial court erred when it excluded exculpatory hearsay statements made by the defendant in an interview but admitted incriminating portions of the same interview. See Humphery, 267 Kan. at 56; State v. Mercer, 33 Kan. App. 2d 308, 313, 101 P.3d 732 (2004), rev. denied 279 Kan. 1009 (2005); State v. Rodriguez-Garcia, 27 Kan. App. 2d 439, 445, 8 P.3d 3 (1999), rev. denied 269 Kan. 939 (2000). This reading is wholly in keeping with the Court of Appeals' decision in Brickhouse, where the court held that it was error to admit only the incriminating statements made by a witness to the police when the witness also made exculpatory statements to the police. See Brickhouse, 20 Kan. App. 2d at 498-502.
Contrary to the defendant's contention, neither Chambers nor the Kansas appellate court decisions in Hills and Brickhouse support his contention of unconstitutional unfairness. The two conflicting statements in this case were made in different contexts to different people at different times. Moreover, the State did not attempt to offer any evidence relating to Detective Randall's interrogation of the defendant. Rather, defense counsel attempted to elicit the only testimony regarding this interview during the detective's cross-examination. The evidence therefore was not presented to impeach any testimony by the detective relating to the conversation but, instead, was as an attempt to offer the exculpatory hearsay statements by the defendant into evidence without allowing the State an opportunity to cross-examine the defendant with regard to those statements. As noted in Barnwell, a defendant's "unverified, uncross-examined, self-serving statements to the police" are inadmissible. 285 Ill. App. 3d at 990.
As indicated above, we have held that in some instances a court may (and sometimes must) allow a defendant's exculpatory statements by way of another witness' testimony over a valid hearsay objection when the State introduces incriminating statements of the defendant made in the same conversation. See Hills, 264 Kan. at 448. Under such circumstances, it would be unfair to permit what might be considered a distortion of the whole truth of a statement or conversation, and a trial court should therefore act to eliminate such unfairness. These circumstances simply did not exist in this case, and the trial court did not err in sustaining the State's objection and excluding evidence of defendant's exculpatory statements made during his interrogation by Detective Randall.
The defendant also argues that the trial court should have allowed evidence of his exculpatory hearsay statements under K.S.A. 60-462, which deals with a hearsay declarant's credibility. This statute provides:
"Evidence of a statement or other conduct by a declarant inconsistent with a statement received in evidence under an exception to K.S.A. 60-460, is admissible for the purpose of discrediting the declarant, though he or she had no opportunity to deny or explain such inconsistent statement. Any other evidence tending to impair or support the credibility of the declarant is admissible if it would have been admissible had the declarant been a witness."
The defendant argues that once the prosecution presented testimony of his alleged confessions to his acquaintances, the defense could then admit his statements to Detective Randall to support his credibility under K.S.A. 60-462. However, this argument by the defendant misconstrues the scope of the statute and the types of statements or other evidence that may be admitted thereunder.
K.S.A. 60-462 allows a party to impeach a declarant's out-of-court statement by offering evidence of a prior inconsistent statement by the declarant. See State v. Watie, Heard and Heard, 223 Kan. 337, 345, 574 P.2d 1368 (1978). The second clause in the statute provides that evidence relating to the declarant's credibility should be treated the same way and should be assessed under the same rules as if the declarant had been a witness. Contrary to the defendant's assertions in this case, he did not attempt to offer his exculpatory statements to Detective Randall for the purpose of "supporting his credibility." Instead, the defendant clearly attempted to offer evidence of those statements for the truth of the matter stated–that he did not know anything about the murder.
It is equally apparent that the defendant did not seek to have his exculpatory statements admitted for the purpose of "discrediting the declarant." The defendant was the declarant, and it was clearly his hope that if his statements to Detective Randall were admitted, the jury would find these exculpatory statements credible. Likewise, he could not have offered evidence of the statements to bolster the credibility of his statements to the other witnesses, which were quite incriminating. Instead, the defendant attempted to offer his exculpatory statements in order to counter the impact of incriminating statements made by other witnesses at trial. K.S.A. 60-462 is inapplicable. The trial court did not err when it sustained the State's objection and exclud