State v. Elnicki

• Citation: 347 P.3d 239 (Table)
• Decision Date: 17 April 2015
• Docket Number: 110,516.
• Parties: STATE of Kansas, Appellee, v. Justin ELNICKI, Appellant.
• Court: Kansas Court of Appeals

347 P.3d 239 (Table)

STATE of Kansas, Appellee
v.
Justin ELNICKI, Appellant.

110,516.

Court of Appeals of Kansas.

April 17, 2015.
Review Denied October 7, 2015.

Kathleen Ambrosio, of Ambrosio & Ambrosio Chtd., of Topeka, for appellant.

Jodi Litfin, assistant district attorney, J. Todd Hiatt, senior assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.

Before ATCHESON, P.J., POWELL, J., and JOHNSON, S.J.

MEMORANDUM OPINION

ATCHESON, J.

A jury in Shawnee County District Court convicted Defendant Justin D. Elnicki of rape. On appeal, Elnicki alleges multiple errors that can be grouped in three general categories; The State's misuse of an inquisition to question defense witnesses shortly before the trial; prosecutorial misconduct during the trial; and constitutionally inadequate representation by his own lawyer. Elnicki also contends the cumulative effect of the errors deprived him of a fair trial. Although the criminal justice process may not have worked perfectly leading up to and during Elnicki's trial, we find no grounds for reversing the jury's verdict and, therefore, affirm. See State v. Cruz, 297 Kan. 1048, 1075, 307 P.3d 199 (2013) (“As we have recognized for decades, ‘[a] defendant is entitled to a fair trial but not a perfect one[.]” ’) (quoting State v. Bly, 215 Kan. 168, 178, 523 P.2d 397 [1974] ).

Factual and Procedural History

The prosecution of Elnicki has a long history—this is the third trial. We do not recount in detail either the facts of the encounter between Elnicki and J.A., the victim, or the procedural history. At each trial, a different lawyer represented Elnicki and a different prosecutor presented the State's case. The State and Elnicki are, however, well familiar with the circuitous path this case has taken. We offer an overview for context and direct the otherwise curious to the published decisions in this case for more particulars that don't bear on the issues in this appeal. State v. Elnicki, 32 Kan.App.2d 266, 80 P.3d 1190 (2003), rev'd 279 Kan. 47, 105 P.3d 1222 (2005) (Elnicki I), appeal after remand 43 Kan.App.2d 555, 228 P.3d 1087, rev. denied 290 Kan. 1097 (2010) (Elnicki II ).

Elnicki ran into J.A. at a convenience store in Topeka about 2 a.m. on a weekday in November 2001. Although the two did not know each other, they began talking. Elnicki offered to give J.A. a ride home. On the way, according to J.A., Elnicki stopped his truck in a relatively secluded parking lot, beat her, forced her to fellate him, and raped her. J.A. initially told police and friends that Elnicki had attacked her and forced her into the truck. J.A. later admitted she had voluntarily accompanied him.

The police fairly quickly identified Elnicki as a suspect and questioned him less than 24 hours after the incident. Elnicki gave varying accounts. He initially denied having anything to do with J.A. In the same police interrogation, however, he then admitted they had discussed getting some marijuana and began kissing in the truck. Elnicki then described a voluntary act of oral sex and denied anything else happened. Elnicki told the detective he didn't recall having sexual intercourse with J.A. but it might have happened. Some forensic evidence was consistent with sexual intercourse. Several months later, Elnicki's ex-wife gave detectives a letter he had written describing the encounter with J.A. as involving a search for marijuana, use of other illegal drugs, and J.A.'s consent to sex for money. The letter suggested Elnicki and J.A. had oral sex but not necessarily sexual intercourse. According to the letter, when J.A. asked for the promised payment, Elnicki got angry and beat her.

The State charged Elnicki with aggravated kidnapping, rape, and aggravated sodomy. During the first trial in 2002, the district court dismissed the kidnapping charge. The jury convicted Elnicki of rape and aggravated sodomy. The Kansas Supreme Court reversed the convictions, finding a videotape of the police interrogation unduly prejudicial in front of the jury because the detective repeatedly accused Elnicki of lying, the prosecutor made unsupported attacks on Elnicki's credibility in closing argument, and the combined effect of the detective's accusations and the prosecutor's remarks rendered the trial fundamentally unfair. Elnicki I, 279 Kan. at 67–68, 105 P.3d 1222.

At the second trial about 3 years after the first, the State used a redacted version of Elnicki's police interrogation. The second jury convicted Elnicki of rape and acquitted him of aggravated criminal sodomy. After Elnicki filed his appeal, this court remanded the case to the district court for an evidentiary hearing on whether his lawyer at the second trial had provided constitutionally inadequate representation. See State v. Van Cleave, 239 Kan. 117, Syl. ¶ 2, 716 P.2d 580 (1986) (permitting remand to district court during direct appeal for hearing on claim of ineffective assistance of trial counsel).

The Van Cleave hearing, held in January 2008, figures in the issues before us now, so we pause to discuss that proceeding. At the hearing, Jenny Cobuluis, Adam Cobuluis, Spencer Allen, and Summer Cole testified that on separate occasions after the first trial and before the second trial, each of them had heard J.A. state she had falsified the rape allegation against Elnicki and had gotten him convicted. They testified they knew Elnicki and would have been witnesses at the second trial. The evidence at the Van Cleave hearing showed that an investigator for the public defender's office had spoken with them and had placed a memo in the file outlining their potential testimony before the second trial. The public defender then withdrew from the case and forwarded the file to substitute appointed counsel before trial. Based on the evidence at the Van Cleave hearing, the district court found the new lawyer reviewed the memo but did nothing further with the information—he neither spoke with any of the four nor considered them as witnesses at the second trial. The district court ruled the lawyer's performance fell below the standard of constitutionally adequate representation and Elnicki was materially prejudiced by the failure. The district court, therefore, found Elnicki had been denied a fair trial. The State attempted to appeal that ruling.

In Elnicki II, this court determined the State could not appeal the district court's finding that the second trial was constitutionally unfair and rejected Elnicki's argument that he had been denied his statutory right to a speedy trial, a claim that if correct would have required dismissal of the case. 43 Kan.App.2d at 560, 562, 228 P.3d 1087. The court didn't consider Elnicki's claimed errors in the second trial because they were either moot or abandoned on appeal. 43 Kan.App.2d at 562–63, 228 P.3d 1087.

That sets the stage for Elnicki's third trial in late September 2010. The 8–day trial culminated with the jury finding Elnicki guilty of rape. Following the conviction, both Elnicki and Mark Bennett, his lawyer at the third trial, filed various motions for a new trial. Some of the issues necessitated an evidentiary hearing and testimony from Bennett, so the district court appointed yet another lawyer for Elnicki. After denying the motions, the district court sentenced Elnicki in February 2013 to a prison term of 267 months with postrelease supervision for 36 months.

Elnicki has timely appealed. So we have his direct appeal from the third trial before us. We take up the issues on appeal as they fit in the categories we have identified and add facts as necessary.

Legal Analysis

Misuse of Inquisition

Elnicki contends the State violated his due process rights and deprived him of a fair trial when it convened an inquisition about 2 weeks before the third trial and subpoenaed Jenny Cobuluis, Adam Cobuluis, Spencer Allen, and Summer Cole to testify. Before trial, the State provided Elnicki with transcripts of their inquisition testimony. In dealing with this issue, we make several key assumptions to Elnicki's benefit, affording him what is almost certainly an overly generous review. Nonetheless, the argument comes undone because Elnicki cannot show that any purported misuse of the inquisition process compromised his right to a fair trial.

By statute, a prosecutor may open an inquisition to investigate potential criminal activity upon a showing under oath to a district court that he or she has been “informed or has knowledge of any violation” of Kansas law. K.S.A. 22–3101(1). The prosecutor can then issue subpoenas to persons identified in the filing with the district court requiring them to appear and answer questions under oath “touching the matters under investigation.” K.S.A. 22–3101(1), (3). The inquisition testimony is to be recorded, typically by a court reporter, and transcripts establishing probable cause that particular individuals have committed crimes may be submitted to the district court with a complaint or information to get arrest warrants. K.S.A. 22–3103. Persons testifying at an inquisition have the right to appear with counsel and may not be compelled to incriminate themselves. K.S.A. 22–3102 ; K.S.A. 22–3104.

Standing alone, the statutory scheme suggests inquisitions function as an investigatory tool rather than as a...