State v. Elnicki

• Decision Date: 31 December 2003
• Docket Number: No. 89,003.,89,003.
• Citation: 80 P.3d 1190,32 Kan.App.2d 266
• Parties: STATE OF KANSAS, Appellee, v. JUSTIN D. ELNICKI, Appellant.
• Court: Kansas Court of Appeals

32 Kan.App.2d 266

80 P.3d 1190

STATE OF KANSAS, Appellee, v. JUSTIN D. ELNICKI, Appellant.

No. 89,003.

Court of Appeals of Kansas.

Opinion filed December 31, 2003.

Patrick H. Dunn, assistant appellate defender, for the appellant.

Deborah Hughes, assistant district attorney, Robert D. Hecht, district attorney, and Phill Kline, attorney general, for the appellee.

Before PIERRON, P.J., GREENE, J., and JONES, S.J.

PIERRON, J.:

Justin D. Elnicki appeals his conviction by a jury of one count of rape and one count of aggravated criminal sodomy. Elnicki challenges the sufficiency of the evidence, submission of certain evidence, prosecutorial misconduct, and sentencing. We affirm.

According to testimony presented at trial, at approximately 2 a.m., J.A. rode a bike to a Kwik Shop in north Topeka to use the pay phone. While J.A. spoke on the phone, Elnicki arrived in a Chevrolet Blazer. J.A. commented to Elnicki about his tattoos and they engaged in small talk. Elnicki pointed out that the tire on J.A.'s bike was flat and offered her a ride. J.A. told Elnicki she did not know him and that she was only a couple blocks from her friend's house anyway. Elnicki persisted and J.A. eventually accepted the ride.

J.A. testified she had Elnicki stop in the church parking lot behind her friend's house because her friend did not like strange people coming to his house. As J.A. attempted to get her bike out of the Blazer, Elnicki grabbed her hair and said, "Bitch, take off your clothes." J.A. screamed for help and Elnicki hit her with his fists, threw her to the ground, kicked her, and choked her until she could no longer scream. J.A. testified she blacked out. After J.A. regained consciousness, Elnicki grabbed her by the hair and dragged her toward an open door of the Blazer. Elnicki removed J.A.'s shoes, pants, and underwear. Elnicki grabbed J.A. by the hair and forced her to perform oral sex on him while she knelt on the pavement.

Elnicki then forced J.A. into the Blazer, telling her he would kill her if she did not get in. Elnicki closed the door and laid on top of J.A. He rubbed his penis against her vagina and anal area in an attempt to get an erection. Elnicki forced J.A. to perform oral sex again. Elnicki was able to get an erection and forcibly had sex with her. J.A. said Elnicki ejaculated. Elnicki pulled J.A. out of the Blazer and told her he would kill her if she told anyone. He removed J.A.'s bike from the Blazer, threw it on the ground, and drove away. J.A. ran to her friend's house and reported the rape. Her friends took her to another house where she called her parents and they took her to the hospital for a sexual assault examination. J.A. had bumps, bruises, and scratches all over her body.

J.A. testified she told the police and several other people that Elnicki had followed her from the Kwik Shop and attacked her from behind in the church parking lot. She was embarrassed that she had gotten into the Blazer with Elnicki and she did not want her parents to know she had accepted a ride from a stranger. J.A. admitted to drinking alcohol and smoking marijuana earlier in the evening. The next day, J.A. told Detective Hazim that she had actually accepted a ride from Elnicki before the rape.

Elnicki was arrested and interviewed by Detective Hazim. The interview was videotaped. Elnicki first said he had not met a girl on the night in question or had sex with anyone. He said he had been drinking at a bar at the relevant time and then went home. He explained the scratches on his neck as a result of a fight with a friend. After Detective Hazim confronted him with some of the information given by J.A., Elnicki said that he was too drunk to remember what happened and that he could have had sex with a girl but he did not remember.

Detective Hazim then confronted Elnicki with more information. Elnicki then stated he had gone to the Kwik Shop to buy cigarettes for his girlfriend. He met a girl and they talked about getting some marijuana. They got in his Blazer and at some point they started kissing. He said she gave him oral sex as he was sitting with the door open and she was on her knees. He was unable to get an erection, he never ejaculated, and that was all that happened.

The rape examination and subsequent analysis revealed a pubic hair identified as Elnicki's. The vaginal swabs came back positive for semen belonging to Elnicki. The blood stains discovered in the Blazer were determined to be blood from J.A.

Before trial, Elnicki's ex-wife gave Detective Hazim a letter written by Elnicki. In the letter, Elnicki gave another account of the events on the evening in question. Elnicki said that he picked up J.A. at the Kwik Shop and they were unsuccessful in buying some marijuana.

Elnicki said they ended up in a parking lot and used methamphetamine. Elnicki said he offered J.A. $25 to "get freaky" with him and they started fooling around. He noticed she had a shaved vagina and she told him "her man liked it that way." He said she gave him oral sex outside of the driver's side door as she knelt on the pavement. He was unable to get an erection and told her to get in the truck because he was afraid they would be seen. In the truck, J.A. gave him more oral sex.

He said they tried to have sex, but he never got an erection and they gave up. Elnicki said J.A. asked for her $25 but he would not pay her because nothing happened. They argued and he told her to get out of his truck. She grabbed his neck and scratched him. Elnicki said he was mad and punched her a couple times. She ran but he caught her. Elnicki had J.A. in a headlock and she bit him in the side. Elnicki said he punched her again and then drove away.

Elnicki was charged with rape, aggravated sodomy, and aggravated kidnapping. The trial court dismissed the charge of aggravated kidnapping during the trial. A jury convicted Elnicki on both counts of rape and aggravated sodomy. Elnicki was sentenced to a presumptive sentence of 618 months' incarceration for the rape and a concurrent sentence for the aggravated sodomy.

Elnicki first claims the trial court abused its discretion in refusing to redact portions of evidence from the videotaped interrogation because Detective Hazim commented on Elnicki's veracity during the interrogation and this invaded the province of the jury in determining guilt.

Elnicki complains of several incidents. Approximately 7 minutes into the interrogation, Detective Hazim told Elnicki, "You just told me a flat out lie." Detective Hazim told Elnicki that a person's eyes shift when they are lying and that his eyes had shifted. Detective Hazim later called Elnicki a liar and asserted that he was "weaving lies." Detective Hazim also repeatedly asserted that Elnicki was "bullshitting" him and that "all this bullshit is a waste of my time." Detective Hazim also told Elnicki, "Bullshit, you're sitting here bullshitting me" and "Let's not bullshit anymore."

A witness may not testify about the credibility of another witness. The jury is the sole factfinder in a criminal case and a witness cannot give an opinion on the guilt or innocence of the defendant. See State v. Steadman, 253 Kan. 297, 304, 855 P.2d 919 (1993). Determining the veracity of a witness' statements is a function of the jury. See Jackson v. Denno, 378 U.S. 368, 386-87 n. 13, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964) ("Just as questions of admissibility of evidence are traditionally for the court, questions of credibility, whether of a witness or a confession, are for the jury.").

Elnicki argues the videotape should have been redacted because Detective Hazim could not have taken the stand and made the same comments. He argues there would be no prejudice to the State or hindrance of the State's case if the videotape was redacted.

Several other jurisdictions have struggled with the issue of whether credibility statements made by an interrogating officer in the course of a videotaped interrogation should be played for the jury. A plurality opinion on the subject comes from the Washington Supreme Court, which affirmed the conviction of a man for robbery and kidnapping. State v. Demery, 144 Wash. 2d 753, 30 P.3d 1278 (2001). The Demery court confronted the issue of whether officers' statements during a videotaped interrogation accusing Demery of lying were admissible at trial.

During the interrogation, officers asked Demery whether he intended to stick to his version of events and Demery replied that he did because he was telling the truth. Officers then asked Demery whether they had treated him well during the interrogation. Demery replied that they had, but that the officers were looking at him like he was lying. The officers stated that they were looking at Demery like that because he was lying. The statements were not redacted from the videotape that was played for the jury.

On appeal, Demery asserted the officers' statements constituted inadmissible lay opinion testimony regarding his credibility. Four justices of the Washington court disagreed, concluding that because the officers' statements were not made under oath at trial, they did not constitute testimony. Rather, the four-justice plurality opinion explained that the statements were a common interview technique employed to see if Demery would change his story. 144 Wash. 2d at 764. The court also observed that the trial court's purpose in admitting the statements was to provide context for Demery's responses and not to impeach his credibility. However, five justices of the Washington court concluded that it was error to admit the statement. Those five justices agreed that the officers' statements constituted impermissible opinion testimony. 144 Wash. 2d at 772-73. Although the majority agreed that the statements were error, the four dissenting justices believed the error was reversible, while one concurring justice believed it was harmless. Thus, the majority affirmed Demery's conviction.

The Ninth Circuit Court...