State v. Elnicki
| Decision Date | 18 February 2005 |
| Docket Number | No. 89,003.,89,003. |
| Citation | 105 P.3d 1222,279 Kan. 47 |
| Parties | STATE OF KANSAS, Appellee, v. JUSTIN D. ELNICKI, Appellant. |
| Court | Kansas Supreme Court |
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
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.
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 3½ 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:
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.
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:
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) ().
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:
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.
Elnicki objected to the following statements by Hazim in the videotape played to the jury:
Elnicki moved to redact those statements from the videotape, which the trial court denied. The court stated:
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State v. Murray, No. 94,619.
...the questionable statements are provoked and made in response to prior arguments or statements by defense counsel. State v. Elnicki, 279 Kan. 47, 64, 105 P.3d 1222 (2005). Although defense counsel did not (understandably) mention Crossley-Brubaker's testimony during closing argument, it was......
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State v. Foster
...interview of Foster, which he characterized as inappropriate comment on Foster's credibility and inadmissible under State v. Elnicki , 279 Kan. 47, 105 P.3d 1222 (2005). He asked the State to redact any statements commenting on the credibility of the witnesses or Foster from any videos it i......
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State v. Jackson
...does not properly state the standard of review for this issue. We have recently clarified our standard of review in State v. Elnicki, 279 Kan. 47, 51, 105 P.3d 1222 (2005), and State v. Carter, 278 Kan. 74, 77, 91 P.3d 1162 (2004). In Carter, we "An appellate court's first consideration whe......
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State v. Boggs
...a denial of habeas corpus, that an officer's statements simply gave context to the defendant's answers). But see State v. Elnicki, 279 Kan. 47, 105 P.3d 1222, 1229 (2005) (holding that an officer's statements in a videotaped interrogation are inadmissible opinion evidence and noting that "c......
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§ 22.14 TESTIMONY ON CREDIBILITY
...F.3d 1247, 1268 (11th Cir. 2011) ("[I]t is improper to ask a testifying defendant whether another witness is lying."); State v. Elnicki, 105 P.3d 1222, 1228 (Kan. 2005) ("such evidence must be disallowed as a matter of law"; videotaped interview of defendant by police who accused him of lyi......
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§ 22.14 Testimony on Credibility
...F.3d 1247, 1268 (11th Cir. 2011) ("[I]t is improper to ask a testifying defendant whether another witness is lying."); State v. Elnicki, 105 P.3d 1222, 1227 (Kan. 2005) ("such evidence must be disallowed as a matter of law"; videotaped interview of defendant by police who accused him of lyi......
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Appellate Decisions
...but detective's tone and body language in this case did not constitute impermissible comment on Foster's credibility. State v. Elnicki, 279 Kan. 47 (2005), is distinguished. Foster's unpreserved constitutional challenge is not considered. Foster did not satisfy his burden of explaining why ......