Opinion
110,684.
11-21-2014
STATE of Kansas, Appellee, v. Salvador ARAUJO–GUTIERREZ, Appellant.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.
Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before POWELL, P.J., LEBEN, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Salvador Araujo–Gutierrez, who goes by the name “Chava,” appeals from his convictions by a jury of rape and indecent liberties with a child. He argues that he should receive a new trial because the trial court erred in admitting a recording of his interrogation by police officers without redacting the officers' comments regarding Chava's lack of credibility and expressing personal opinions about the victim's credibility.
We find that there was no error in the admission of the recording of the interview, and, accordingly, we affirm the convictions.
Factual Background
A brief recap of evidence presented at trial is necessary to provide context for the issue raised by Chava.
In March 2012, the State charged Chava, in the alternative, with a total of six counts of rape and aggravated indecent liberties with a child. The victim of the crimes was Chava's cousin, E.B.N., who was born in June 1999. The charges resulted from allegations that first came to the attention of State officials after a friend of E.B .N. told a school counselor what E.B.N. had told her concerning sexual encounters with Chava. A social worker trained in conducting sexual abuse evaluations of minors interviewed E.B.N.. During the videotaped interview, which was played for the jury, E.B.N. described in detail three specific sexual encounters with Chava, the most recent of which occurred in the basement of E.B.N.'s home in early January 2011, when she was 11 years old and Chava was 23 years old.
Shortly after that interview, Police Lieutenant John Taylor went to E.B.N.'s home for further investigation. While he was in the home, E.B.N. directed Taylor to an area of the carpet in the basement, where a dried substance consistent with semen was found. A cut out sample of the carpet was sent to the Kansas Bureau of Investigation (KBI) for forensic testing.
Two weeks later, Taylor and Officer Scott Carlton interrogated Chava about E.B.N.'s allegations. During that recorded interrogation, which was played for the jury, Chava did admit that he went to the basement alone with E.B.N. in early January 2011 to check on the progress of his uncle's remodeling project. He denied having sex with E.B.N. and insisted that there was no way the semen on the carpet could be his.
Taylor took oral swabs from the inside of Chava's mouth, which were sent to the KBI for DNA testing and for comparison with any DNA found in the seminal fluid from the carpet cutting. Results of that testing indicated that the DNA in the seminal fluid extracted from the carpet was consistent with Chava's DNA profile to a high degree of statistical probability.
Chava testified in his own defense and again denied that he ever touched E.B.N.. He also suggested for the first time that his semen was found on the carpet in the basement as a result of a sexual relationship with E.B.N.'s mother, Andrea. Andrea, however, also testified and denied ever having touched Chava in a sexual way or ever having sexual intercourse with him.
The jury deliberated for approximately 10 hours before returning a verdict finding Chava guilty only on the charges related to the incident in the basement of E.B.N.'s home. A motion for new trial, based in part on the failure to fully redact the recording of his interrogation, was denied by the trial court. Chava was sentenced to life imprisonment with no parole eligibility for 25 years. He timely appeals.
The Issue on Appeal
In his sole issue on appeal, Chava challenges the admission of the recording of his interrogation, claiming that it included improper comments by the officers regarding his and E.B.N.'s credibility. He further argues that the admission of these comments cannot be considered harmless error. The State disagrees on both points.
Just prior to the start of voir dire, the State informed the district court that it had redacted the audio recording of Chava's police interrogation to remove what it considered to be objectionable comments. Chava's counsel moved for further redaction. The trial judge asked defense counsel to let him know specifically which portions were in dispute so that the court could listen more closely to those portions over the noon recess. Although the record indicated that defense counsel provided the court with written notes identifying the portions which were considered objectionable, his notes are not found in the record on appeal. However, neither party disputes that defense counsel objected to the portions of the interrogation which are set forth in Chava's brief on appeal:
• When Chava was confronted with E.B.N.'s allegations and asked why she would say something like that, Taylor replied:
“That's my question. Why would [E.B.N. ] say something like that if it wasn't true? I mean, was she mad at you? ... Why would she make up a story like that if it's made up? ... Do you know any reason why she would say something that was untrue about you ?” (Emphasis added.)
• As Chava continued to deny the allegations, Officer Carlton explained:
“ ‘If it did happen though it'd be good to be truthful now, cause if that DNA stuff, I mean they can, they went, the KBI came down and took the carpet and did all their testing and put their glasses on.... I mean you know what we put in our report, we document everything that took place and we say here we come and the[n] you denied it and it didn't happen and the stuff comes back and it comes back being yours and then you know it just doesn't look good. When they read the reports, there's conflicting stuff. So I know it's a tough thing. A real tough thing. But if it did happen we just need to get you help. You know get you some help. I'm here to explain that you're not under arrest. But I'm just trying to help. But if you did do it, it'd be good to talk about it right now and get it done and over with. And you're gonna walk out of here just as we explained to you and we're not going to arrest you. But it looks better on your part being truthful with us, than it coming back and saying well it's [your] DNA. I mean, they're going to find it. The KBI is awesome at that kind of stuff, their testing. So it just looks better on your part to be truthful. ” (Emphasis added.)
• Officer Carlton later again stressed, “It's important to tell the truth.”
• Taylor asked Chava, “Has she ever been a liar that you know of? Does this girl tell the truth usually? Has she been somebody that's deceitful?
• After Chava commented, “This is really serious,” Taylor responded:
“You're right this is really serious. But it's really serious also for an eleven-year-old little girl. Is she lying? Or are you lying? That's where I'm at now. She says it happened, you said it didn ‘t. There's only one truth there right? ... And my job is to find out who's telling the truth. ” (Emphasis added.)
Standard of Review
Neither party questions the relevance of the contested evidence. They further agree that the appellate court conducts de novo review of a trial court's conclusion as to which rules of evidence or other legal principles apply to allow admission of evidence. See State v. Hilt, 299 Kan. 176, 188–89, 322 P.3d 367 (2014).
Analysis
The parties expressly agree that this court's resolution of the issue should be governed by the decision in State v. Elnicki, 279 Kan. 47, 53–54, 105 P.3d 1222 (2005), wherein our Supreme Court held that trial courts have “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.” Their dispute concerns how the Elnicki decision applies to the facts of this case.
The Elnicki court found that the question of admissibility of a police officer's repeated statements that impugned a defendant's credibility during a videotaped interrogation was a matter of first impression in Kansas. 279 Kan. at 51–52, 54. To resolve that issue, the court analyzed how other jurisdictions had approached the issue. 279 Kan. 54–57.
Based on a “synthesis” of the various cases reviewed, the Supreme Court held under the facts before it that it was error for the detective's direct comments on the defendant's credibility to be presented to the jury via a recording of the detective's interrogation. 279 Kan. at 57. Those comments included the detective “repeatedly tell[ing] [the defendant] that he was a liar” and that the defendant was “ ‘bullshitting’ him and ‘weaving a web of lies.’ “ 279 Kan. at 51–52, 57. The detective also suggested he could tell the defendant “was lying because [the defendant's] eyes shifted.” 279 Kan. at 57. Our Supreme Court held that “[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.” 279 Kan. at 57. Our Supreme Court further observed that “[t]he absence of a limiting instruction merely compounded the already serious problem, misleading the jury into believing that [the detective's] negative comments carried the weight of testimony.” 279 Kan. at 57.
Chava suggests that the statements made by Taylor and Collins during his interrogation are closely analogous to those found objectionable and inadmissible in Elnicki. In particular, Chava focuses upon Taylor's questions about whether Chava or E.B.N. was lying and the officers' implied comments on their thoughts about what impact the DNA match would have on Chava's credibility. Chava argues that these comments would not be admissible through trial testimony, but the State was able to get them in by playing the audio recording of the interrogation without these questions and statements redacted.
The State on the other hand contends the officers' statements that Chava complains should have been redacted “were substantially different in character than the officer's statements in Elnicki. ” According to the State, the officers were merely explaining the importance of telling the truth, questioning the motivation for someone else to make false claims, and explaining “the reality behind resolving conflicting statements.” According to the State, this represents “an entirely different matter” than directly stating a personal opinion that the suspect is lying, as the detective did in Elnicki.
In State v. Swann, No. 102,023, 2011 WL 1344728, at *18–20 (Kan.App.2011) (unpublished opinion), rev. denied 293 Kan. 1113 (2011), a panel of this court took an approach similar to that advanced here by the State. There, the defendant argued eight comments made by officers during a video recording of the defendant's interrogation that was played for the jury should have been redacted. Though the specific comments are not reflected in the opinion, this court generally discussed their subject matter in rejecting the defendant's arguments as follows:
“The first two instances are admonitions by the officers that Swann should be honest with them. They are not references to anything he has specifically said and are not the equivalent of calling Swann a liar. In the next instance, a detective asks Swann if he believes it was likely that all four of the other participants [in the robbery for which Swann was being tried] made up a story. The fourth instance refers to a detective telling Swann he can make a case against him without his cooperation. The fifth instance is the detective's comment that Swann could not talk himself out of trouble.
“Swann complains of another instance where he said, ‘I didn't know they were going to take it,’ and the detective replies, ‘Oh Bullshit, you [inaudible].’ The seventh instance is a detective's comment on Swann's lack of cooperation. The final instance is an exchange between Swann and a detective in which the detective states, ‘Unfortunately your first foray into the world of robbery was not a good one.’ Swann replies, ‘I'm not a robber,’ and the other detective replies, ‘[T]hat was a robbery.’
....
“In Elnicki, there were repeated instances where the detective directly called the defendant some derivation of a liar. Our Supreme Court found that the error of not redacting the videotape combined with other instances of prosecutorial misconduct resulted in cumulative error that denied the defendant a fair trial. 279 Kan. at 68.
“With the exception of the sixth instance, we conclude the detectives' references were not direct comments on Swann's lack of credibility. With regard to the sixth instance, our independent review of the redacted DVD confirms the trial court's finding that after the detective's expletive there is an inaudible portion and individuals talking over one another. While this expletive should have been redacted, we agree with the district court that in the context of a lengthy interview and considerable incriminating evidence, this brief reference does not merit reversal of the jury's verdict.” (Emphasis added.) 2011 WL 1344728, at *19–20.
We find Swann to be persuasive support for our determination that the officers' comments of which Chava complains are distinguishable from those disallowed in Elnicki. They are not direct comments on Chava's lack of credibility, nor are they direct expressions of personal opinions about E.B.N.'s credibility. They contain none of the repeated personal invective or name calling noted by the court in Elnicki. Accordingly, we find that Elnicki does not support Chava's contention that the district court erred in refusing his request to have these comments redacted from the recording of the interrogation.
Since we find no error, we need not address the harmless error arguments.
Affirmed.