Opinion
110,516.
04-17-2015
STATE of Kansas, Appellee, v. Justin ELNICKI, Appellant.
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.
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 discovery device. That is, a prosecutor may initiate an inquisition to gather information supporting the filing of criminal charges, as outlined in K.S.A. 22–3103. And K.S.A. 22–3103 also suggests the process isn't intended to compel otherwise reluctant witnesses to give pretrial statements to prosecutors after criminal charges have been filed. The Kansas Supreme Court has rejected the distinction and permits inquisitions to be used to interrogate uncooperative witnesses in pending cases. State v. Hobson, 234 Kan. 133, 142–44, 671 P.2d 1365 (1983). Without mentioning or discussing K.S.A. 22–3103, the Hobson court found “no support for the appellant's argument that the inquisition procedure can only be pursued before a defendant is charged and bound over for trial.” 234 Kan. at 144, 671 P.2d 1365. In that case, much as here, the State convened an inquisition and questioned four potential witnesses long after Hobson had been charged and shortly before trial. Unlike this case, however, none of the individuals actually testified at Hobson's trial. As a practical matter, the Hobson decision undercuts Elnicki's argument.
Moreover, Elnicki fails to show how he was prejudiced because Jenny Cobuluis, Adam Cobuluis, Spencer Allen, and Summer Cole were questioned in an inquisition a couple of weeks before trial. Their appearances at the inquisition didn't cause them to refuse to testify at the trial or to materially change their testimony. So Elnicki's defense was not impaired as a result of the State's use of the inquisition. Absent some demonstrable prejudice, Elnicki cannot lay claim to a new trial even if the State abused the inquisition process—a premise contrary to Hobson.
As we discuss later, Elnicki contends the prosecutor engaged in misconduct by questioning three of the four witnesses about appearing at the inquisition with lawyers. But that argument really deals with improper trial tactics, as Elnicki correctly frames the issue, rather than some misuse of the inquisition process itself. We consider it later in that context.
More broadly, Elnicki contends the State's use of an inquisition for discovery in a criminal case, especially to question likely defense witnesses who have chosen not to speak with law enforcement officers or to generate potential impeachment material for use at trial, amounts to a due process violation. The Hobson court rejected that sort of constitutional argument without much elaboration. 234 Kan. at 143, 671 P.2d 1365. Elnicki says an inquisition, as used here, provides the State with an extraordinarily powerful discovery device unavailable to a criminal defendant and the lack of a reciprocal mechanism violates the Fourteenth Amendment to the United States Constitution. Elnicki cites Wardius v. Oregon, 412 U.S. 470, 472, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973), as analogous authority.
The argument fails in two respects. First, Wardius isn't legally comparable. In that case, the Court held that an Oregon statute requiring criminal defendants to disclose witnesses supporting a claim of alibi before trial violated due process protections because the State, in turn, was not required to make a comparable pretrial disclosure of any witnesses who would rebut the alibi. 412 U.S. at 472. The constitutional vice lay in “require [ing] a defendant to divulge the details of his own case while at the same time subjecting him to the hazard of surprise concerning refutation of the very pieces of evidence which he disclosed to the State.” 412 U.S. at 476. Nothing like that happened here. Elnicki wasn't forced by statute to disclose part of his defense without learning how the State intended to counter that aspect of his case.
The Wardius Court speaks generally about due process requiring some “balance of forces between the accused and his accuser.” 412 U.S. at 474. Elnicki suggests the State's use of an inquisition in this case upsets that due process balance. But nothing indicates the Court directed its comment at general discovery devices in contrast to unequal disclosure of witnesses or facts bearing on the particular charges or possible defenses. And that leads into the second flaw in Elnicki's argument. Even assuming there were a valid due process issue, Elnicki hasn't shown prejudice or disadvantage. If a potentially key witness refused to discuss his or her knowledge of the facts with Elnicki's lawyer or investigator, his defense team would have no discovery tool comparable to an inquisition to secure that information. Elnicki doesn't suggest his defense was so hampered, seriously straining the analogy to Wardius or some gross imbalance of forces on the facts of this case.
With respect to the inquisition, we find that Elnicki has failed to demonstrate any prejudice to his right to a fair trial and, therefore, cannot establish a legal basis to reverse his conviction.
Prosecutorial Misconduct
Elnicki asserts the prosecutor engaged in misconduct during the trial in questioning some witnesses and in closing argument. After outlining the standards governing claims of prosecutorial misconduct, we discuss the specific points Elnicki raises.
Kansas courts use a well-recognized, two-step test for measuring the impropriety of closing arguments in criminal cases:
“ ‘First, the appellate court must decide whether the comments fall outside the wide latitude afforded a prosecutor in discussing the evidence and the law. Second, if the prosecutor has exceeded those bounds, the appellate court must determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury to the extent the defendant was denied a fair trial. State v. McReynolds, 288 Kan. 318, 323, 202 P.3d 658 (2009) (outlining mode of analysis); see State v. King, 288 Kan. 333, 351, 204 P.3d 585 (2009) (noting considerable range permitted advocates, including prosecutor, in arguing their causes in jury summations).’ “ State v. Franco, 49 Kan.App.2d 924, 938, 319 P.3d 551 (2014) (quoting State v. Schreiner, 46 Kan.App.2d 778, 793–94, 264 P.3d 1033 [2011], rev. denied 296 Kan. 1135 [2013] ).
If the argument falls outside what is proper, the courts then look at three factors to assess the degree of prejudice:
“ ‘(1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor's part; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. None of these three factors is individually controlling. Moreover, the third factor may not override the first two factors unless the harmless error tests of both K.S.A. 60–261 [refusal to grant new trial is inconsistent with substantial justice] and Chapman v. California, 386 U.S. 18, [22–24,] 17 L.Ed.2d 705, 87 S.Ct. 824 (1967) [conclusion beyond a reasonable doubt that the error ... changed the result of the trial], have been met. [Citations omitted.’]” State v. McReynolds, 288 Kan. 318, 323, 202 P.3d 658 (2009).
See also Franco, 49 Kan.App.2d at 938–39, 319 P.3d 551. The Kansas Supreme Court recently reiterated this test in State v. De La Torre, 300 Kan. 591, 608, 331 P.3d 815 (2014). The same analytical framework applies to improper questions posed to a witness during trial. See State v. Tosh, 278 Kan. 83, 93–94, 91 P.3d 1204 (2004) ; State v. Simmons, 45 Kan.App.2d 491, 496, 249 P.3d 15 (2011), aff'd on other grounds 295 Kan. 171, 283 P.3d 212 (2012).
First, Elnicki challenges parts of the cross-examination of Jenny Cobuluis, Adam Cobuluis, and Spencer Allen during which the prosecutor asked each of them if he or she had given a sworn statement to another assistant district attorney but only with his or her own lawyer also present. The prosecutor went on to ask Jenny Cobuluis if she had declined to talk to the assistant district attorney without a lawyer and Adam Cobuluis if he was reluctant to speak to the assistant district attorney even with a lawyer. Elnicki did not object to the prosecutor's questions at trial. Given the rule in State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009), the point has not been preserved for appellate review in the absence of a contemporaneous trial objection.
FN[1]The cross-examination appears to be improper. The prosecutor did not attempt to impeach the witnesses with statements they made at the inquisition that arguably conflicted with their trial testimony. In laying a foundation for an impeaching statement, the prosecutor likely would establish the circumstances under which the witness gave the earlier statement. See K.S.A. 60–422(b) (judge may exclude extrinsic evidence of prior contradictory statements unless witness given “opportunity to identify, explain or deny the statement”). That presumably could include, in passing reference, the presence of a lawyer representing the witness at the time the impeaching statement was made. Here, however, the prosecutor sought to introduce the fact that the witnesses appeared with lawyers when they were questioned by an assistant district attorney before trial as if it had some freestanding relevance. But that fact doesn't bear on the issue of Elnicki's guilt or innocence of the rape charge. The prosecutor seems to have elicited the information with the aim of impairing the credibility of the witnesses, implying their reliance on legal representation equates to untrustworthiness. The line of questioning seems wholly unwarranted and particularly suspect in light of the statutory right of a person subpoenaed to an inquisition to appear with a lawyer. Cf. State v. Foster, 259 Kan. 198, 205–06, 910 P.2d 848 (1996) (fundamentally unfair to impeach defendant with exercise of right to counsel and right to remain silent after Miranda warning, since warning implies no penalty for invoking those rights); United States v. Woolsey, 535 F.3d 540, 548 (7th Cir.2008) (“A jury may not draw any inference from an individual's decision to exercise his right against self-incrimination under the Fifth Amendment.”); see also Miranda v. Arizona, 384 U.S. 436, 469–71, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (noting the right to counsel and the right against self-incrimination are inextricably intertwined).
Elnicki next complains of the prosecutor's cross-examination of Summer Cole to the effect Bennett had paid her for her testimony. Before and during the trial, Cole was detained in the Shawnee County jail and Bennett put a modest amount of money in her jail account. The prosecutor asked Cole if she was being paid by the defense for her testimony and established that $40 had been put into her account. Jail officials diverted the money to pay medical bills Cole incurred. On redirect examination, Cole testified Bennett provided the money for the purchase of personal hygiene products from the jail commissary so she could look presentable at trial. Cole acknowledged Bennett offered to get her some more money when the $40 became unavailable. Again, Elnicki made no trial objection to this line of cross-examination. We, therefore, cannot consider the point on appeal. We do, however, return to those circumstances in assessing Elnicki's argument that Bennett provided constitutionally deficient legal representation.
FN[2]The good-faith basis for the prosecutor's questioning of Cole is, at best, debatable. See Tosh, 278 Kan. at 88, 91 P.3d 1204 (lawyer must have good-faith basis for factual suppositions underlying questions propounded to witness). The questions put to Cole imply that she would not have testified as she did had she not been “paid” by the defense. In other words, Cole was not credible because she received money from Elnicki's lawyer shortly before trial. The questioning also carries with it the exceptionally serious implication Elnicki's lawyer suborned perjury. Cole's testimony on redirect mitigated those pernicious implications to some degree. But the factual basis for the line of questioning remains difficult to fathom. Cole's testimony at trial was consistent with the testimony she gave at the Van Cleave hearing more than 2 1/2 years before Bennett put money in her jail account, largely undercutting the premise of the prosecutor's examination. See Tome v. United States, 513 U.S. 150, 156, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995) (prior consistent statement rebuts suggestion of “recent fabrication or improper influence or motive”); State v. Fouts, 169 Kan. 686, 698, 221 P.2d 841 (1950).
Elnicki asserts multiple challenges to the prosecutor's closing argument to the jurors. We take those up serially. Elnicki did not need to make objections during the argument to preserve those points for review on appeal. State v. Anderson, 294 Kan. 450, 461, 276 P.3d 200, cert. denied ––– U.S., –––– 133 S.Ct. 529 (2012).
In argument, the prosecutor sought to impugn the credibility of Jenny Cobuluis, Adam Cobuluis, Spencer Allen, and Summer Cole because at least three of them appeared at the inquisition several weeks before trial with lawyers. The prosecutor told the jurors:
“What's the credibility of these guys' testimony? Each of them said that this conversation where they say [J.A.] took it back was a three-to ten-minute conversation. Who does that? Every one of them was high when they heard. Every one of them had no details. They wanted an attorney before they talked to us. The people who can do something if the defendant didn't do it. Every one of them had multiple convictions for dishonesty. None of them told the police. In fact, Summer Cole said to Detective Hazim, ‘Stop harassing me.’ “ (Emphasis added.)
As we have suggested, the italicized part of the argument is an impermissible attack on the witnesses' credibility. So we turn to the second tier of analysis to gauge prejudice. The improper comment is a single sentence embedded in a more extended discussion of credibility. The they-showed-up-with-lawyers disparagement wasn't a theme of the State's closing argument—it really was almost an aside. This couldn't be characterized as gross or flagrant. We hesitate to brand it motivated by ill will, since the cases rejecting the attack don't appear to be legion. At the same time, however, a person's prudence in bringing a legal advisor to a criminal investigation shouldn't be treated as a tacit admission of wrongdoing or an implicit suggestion of mendacity. An experienced trial lawyer ought to understand as much without a string cite of authority—the proposition seems sufficiently plain that we suppose it would seldom be the subject of appellate review. But we fail to see sufficiently demonstrable prejudice to Elnicki to warrant relief. The prosecutor surrounded the impermissible comment with entirely appropriate suggestions as to why the jurors should discount the testimony from Jenny Cobuluis, Adam Cobuluis, Spencer Allen, and Summer Cole. The four brought a whole lot of baggage with them to the witness stand, and the jurors had ample proper reasons to dismiss their testimony as a concoction whipped up to aid Elnicki.
Next, Elnicki complains that the prosecutor referred to the defense witnesses as “humdingers” and the defense theory of the case—that J.A. lied about the rape—to be a “tangled web of humdinger witnesses.” Elnicki says the word “humdinger” was simply used as a substitute for “lie” or “liar,” terms the Kansas Supreme Court has found to be problematic in closing argument. See Elnicki I, 279 Kan. at 63–64, 105 P.3d 1222. On appeal, the State responds, in part, by pointing to the dictionary definition of “humdinger” as “a striking or extraordinary person or thing” and suggesting the remarks were not meant to refer to lies or lying. See Merriam–Webster's Collegiate Dictionary 605 (11th ed.2003) (defining “humdinger”). That much of the State' rejoinder is underwhelming. The prosecutor certainly didn't intend to convey to the jurors that the defense witnesses were of exceptionally good character or credibility. To the contrary, the prosecutor quite obviously meant to dismiss the defense as unworthy of credence—a web of untruths or (in a word) lies.
The court, however, has not banished the words “lie” and “liar” from the lexicon of closing argument. See State v. Anthony, 282 Kan. 201, 210, 145 P.3d 1 (2006). In Anthony, the court held that a prosecutor's characterization of the defendant as having “lie[d] about his whereabouts” at the time of the crime was “permissible” comment on the evidence in light of the defendant's inconsistent statements to law enforcement. 282 Kan. at 210, 145 P.3d 1. Similarly, in State v. Finley, 273 Kan. 237, 246, 42 P.3d 723 (2002), the court found the prosecutor properly explained to the jury the multiple inconsistencies in defendant's past statements and his testimony this way: “[T]he reason why people do that is because they can't keep all the lies straight.” The court pointed out that the argument was based on “an inference drawn from the nature of the defendant's conflicting stories.” 273 Kan. at 246, 42 P.3d 723.
Here, assuming “humdinger” to be linguistic proxy for “lie” or some close variant, we find the closing argument fair comment. Elnicki, of course, lied to the police about the nature and extent of his involvement with J.A. His versions are mutually incompatible, and their incompatibility could not reasonably be the product of faulty memory. Moreover, the fortuity of four acquaintances of Elnicki being present at different times and places after the first trial when J.A. purportedly boasted of falsely and successfully accusing him of rape seems either providential or too good to be true. The latter, of course, suggests Jenny Cobuluis, Adam Cobuluis, Spencer Allen, and Summer Cole came forward with false stories they engineered. Those circumstances, coupled with their other credibility problems, permit a closing argument of the sort the prosecutor made. The prosecutor did not inject her personal opinion on credibility or use the liar theme, even by proxy, as a bludgeon—vices that contributed to reversible error in the now notorious closing argument in State v. Pabst, 268 Kan. 501, 510–11, 996 P.2d 321 (2000).
The court's reversal in Elnicki I is similarly distinguishable. 279 Kan. at 67, 105 P.3d 1222. In the first trial, the prosecutor repeatedly referred to Elnicki's conflicting accounts as “ ‘yarns,’ “ “ ‘tall tales,” ‘ and “ ‘fairy tales' “ over the course of the closing argument. By clear and improper counterpoint, the prosecutor effectively vouched for J.A.'s credibility and touted the State's “ ‘truthful” ‘ evidence. All of that combined with the unedited recording of the police interrogation of Elnicki in which the detective repeatedly branded him a liar rendered the first trial unfair. 279 Kan. at 67, 105 P.3d 1222. We haven't the same confluence of errors here. And in the third trial, the defense expanded to the conveniently interlocking testimony from Jenny Cobuluis, Adam Cobuluis, Spencer Allen, and Summer Cole. The prosecutor here took no undue liberties with a much more targeted argument grounded in the evidence reflecting on their credibility and Elnicki's shifting accounts of the events. Because we find that aspect of the argument appropriate under the circumstances, we do not engage the secondary analysis assessing the impact of an improper argument.
For his third point about the prosecutor's closing argument, Elnicki claims a Doyle violation. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). A Doyle violation occurs when the government attempts to impeach a defendant's version of events offered at trial on the basis that the defendant remained silent after being advised of his or her Miranda rights and, thus, did not offer the information at an early point in the criminal investigation. Doyle, 426 U.S. at 617–19 ; State v. Kemble, 291 Kan. 109, 122, 238 P.3d 251 (2010).
Elnicki identifies two comments in the closing argument supposedly running afoul of Doyle. First, the prosecutor told the jurors, “Nine years later, the defendant still has never said he had sexual intercourse with [J.A.].” Later in the argument, she said, “Hey, we're still waiting, nine years later, for him.” Whatever problems there might be with that argument, a Doyle violation isn't among them. Only an exceptionally oblique interpretation of those statements and the evidence would even hint at a possible Doyle issue. This was not a situation in which police officers informed Elnicki of his right to remain silent or to speak with a lawyer and he invoked either or both of those rights. And the closing argument doesn't trade on that sort of situation. Rather, Elnicki spoke at some length with a detective and, as we have mentioned, gave shifting accounts of what happened. Elnicki was, at best, equivocal about whether he and J.A. had sexual intercourse, disclaiming any specific recollection to that effect. Forensic evidence strongly supported J.A.'s account that Elnicki had sexual relations with her.
The prosecutor's comments to the jurors seem to relate to the inconsistency in the accounts Elnicki actually gave the police and the lack of an acknowledgement of sexual intercourse despite compelling forensic evidence to the contrary. That's not a Doyle violation. See State v. Wood, 230 Kan. 477, 480, 638 P.2d 908 (1982). The prosecutor's reference to the 9–year lapse between the events and the trial might be questionable for other reasons, but it doesn't impugn Elnicki's credibility because he declined to talk to the police after receiving Miranda warnings, the essence of a Doyle violation. We needn't explore the point or that aspect of the closing argument further.
Elnicki next argues the prosecutor improperly vouched for J.A.'s credibility throughout the closing argument. Elnicki cites five specific instances of what he contends to be impermissible bolstering of J.A. as a truth-teller. We have carefully reviewed those portions of the closing argument but do not recite them here. As we have indicated, a lawyer may not express personal opinions about the credibility of a witness or a party in arguing a case to a jury. State v. Peppers, 294 Kan. 377, 396, 276 P.3d 148 (2012). But a lawyer properly may explain why jurors should disbelieve a given witness based on the trial evidence. Anthony, 282 Kan. at 210, 145 P.3d 1.
The prosecutor argued J.A. to be credible because she had been consistent in her statements to reliable witnesses that Elnicki raped her, consigning the defense witnesses to the unreliable category. Those propositions had support in the evidence. The prosecutor suggested to the jurors they could find J.A. truthful by looking at her as she testified and they should discount the testimony of Jenny Cobuluis, Adam Cobuluis, Spencer Allen, and Summer Cole because J.A. was a “reserved and private” person who would not have talked casually about the events or the criminal case. Those are proper lines of argument bearing on credibility, and the prosecutor did not otherwise inject improper personal opinion in making those arguments.
Finally, Elnicki contends the prosecutor impermissibly tried to gin up sympathy for J.A. in arguing the case to the jurors. He cites several ways the argument purportedly evoked sympathy—rather than relying on the law and the evidence-to induce a guilty verdict. A prosecutor may not couch an appeal to the jurors to convict using sympathy as a substitute for evidence, since the verdict would then rest on passion and not proof. See State v. Holt, 300 Kan. 985, 992–93, 336 P.3d 312 (2014) ; State v. Adams, 292 Kan. 60, 68, 253 P.3d 5 (2011).
Throughout the argument, the prosecutor referred to J.A. as a “kid” or an “18–year–old kid.” We fail to see an especially calculated pitch to sympathy in that characterization of J.A. By the time of the third trial, J.A. was in her mid–20s. So the jurors fairly could be reminded that she was indeed a teenager at the time of the encounter with Elnicki. The word “kid” is not of such precise meaning we find it misused here. The phrase “college kid” is a common expression applied to young people older than J.A. at the time of the charged offense.
At one point in the closing argument, the prosecutor referred to the crossexamination of J.A. as “[h]umiliating” but did not elaborate on or explain the characterization. We found nothing in the cross-examination to be especially untoward or unprofessional. At the same time, many victims of sexual assaults likely find the experience of testifying in public and in the presence of their abusers to be upsetting, if not humiliating. See Merriam–Webster's Collegiate Dictionary 605 (11th ed.2003) (defining “humiliating” as “extremely destructive to one's ... dignity”); see also “Violence Against Women,” National Crime Victim Law Institute Bulletin, 1–2 & nn. 15–18 (September 2011) (“Testifying in court can be particularly traumatic for rape victims.”) (accessed March 25, 2015, at https://law.lclark.edU/live/files/ 1 1775–allowingadult–sexual–assault–victims–to–testify) (hardcopy of paper has been included in the appellate court file). The single reference to J.A.'s possible humiliation did not amount to a prejudicial plea for juror sympathy.
On direct examination, J.A. briefly explained that she had suffered nightmares and flashbacks related to the rape. The prosecutor mentioned that testimony in closing argument in explaining how the crime had affected J.A. Elnicki brands the comment as an impermissible appeal to jurors based on the “impact” the charged crime has had on the victim. J.A.'s testimony was of some relevance in supporting her contention the rape actually happened. That is, J.A. had continuing psychological effects from the crime, thereby suggesting it actually happened. But, of course, both the occurrence of the crime and those effects ultimately depend upon J.A.'s credibility. So the testimony couldn't be described as decisive or even particularly persuasive on its own. The prosecutor's passing reference to the nightmares wasn't tied to a detailed credibility argument. Nor was it offered as an emotional pitch for sympathy. We see no particular problem with the brief mention of that testimony in closing argument.
Elnicki also contends the cumulative prejudice of the prosecutorial misconduct deprived him of a fair trial. Appellate courts will weigh the collective impact of trial errors and may grant relief if the overall result of the imperfections deprives the defendant of a fair hearing even when the errors considered individually could be considered harmless. State v. Smith–Parker, 301 Kan. 132, 167–68, 340 P.3d 485 (2014). Unpreserved trial error cannot be resurrected and weighed in assessing cumulative prejudice. See, e.g., State v. Leaper, 291 Kan. 89, 106–07, 238 P.3d 266 (2010) ; see also State v. Knight, No. 105,092, 2012 WL 2325849, at *7 (Kan.App.2012) (unpublished opinion), rev. denied 296 Kan. 1133 (2013). We have found only a single preserved error reflecting improper trial conduct on the prosecutor's part, so there is nothing to aggregate. In short, cumulative error does not come into play. State v. Foster, 290 Kan. 696, 726, 233 P.3d 265 (2010).
Ineffective Assistance of Trial Counsel
In the district court, Elnicki argued for a new trial on numerous grounds, including the constitutionally ineffective assistance of Bennett. As we have noted, the district court appointed a new lawyer for Elnicki and held an evidentiary hearing on his ineffective assistance claim. The district court denied relief, and Elnicki appeals that ruling as his third issue here.
As provided in the Sixth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights, a criminal defendant is entitled to the effective representation of counsel. Constitutionally deficient representation renders the prosecution and any conviction fundamentally unfair.
To demonstrate Bennett provided constitutionally ineffective assistance in handling the case, Elnicki must show the representation fell below an objective standard of reasonableness resulting in legal prejudice, meaning there probably would have been a different outcome had the representation been adequate. Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; see Chamberlain v. State, 236 Kan. 650, Syl. ¶¶ 3, 4, 694 P.2d 468 (1985) (adopting and stating Strickland test for ineffective assistance); see also Haddock v. State, 282 Kan. 475, 512–13, 146 P.3d 187 (2006) (stating Strickland test and Chamberlain standard of review). As both the United States Supreme Court and the Kansas Supreme Court have observed, review of the representation should be deferential and hindsight criticism tempered lest the evaluation of a lawyer's performance be unduly colored by lack of success notwithstanding demonstrable competence. See Strickland, 466 U.S. at 689–90 ; Holmes v. State, 292 Kan. 271, 275, 252 P.3d 573 (2011). Rarely should counsel's representation be considered substandard when he or she investigates the client's circumstances and then makes a deliberate strategic choice among multiple options. Strickland, 466 U.S. at 690–91.
In general, the courts look at a lawyer's overall performance in representing a criminal defendant in determining whether the Sixth Amendment right to counsel has been satisfied, meaning that a minor mistake or even a number of minor mistakes do not breach that duty. See Harrington v. Richter, 562 U.S. 86, 110–11, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) ; Kimmelman v. Morrison, 477 U.S. 365, 386, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986) ; Bland v. Hardy, 672 F.3d 445, 450 (7th Cir.2012) (“[T]he question under Strickland is not whether the lawyer made a mistake, even a serious one; it is whether the lawyer's overall performance was professionally competent.”). But a single error causing sufficiently substantial legal harm to the defendant to call into question an adverse outcome at trial will suffice. See Miller, 298 Kan. at 938–39, 318 P.3d 155 (discussing error by appellate counsel).
First, Elnicki contends Bennett failed to adequately investigate J.A.'s credibility and presented no evidence suggesting she had a reputation for being untruthful. The claim falters in several respects. First, of course, Jenny Cobuluis, Adam Cobuluis, Spencer Allen, and Summer Cole presented a direct assault on J.A.'s credibility in that they recounted purported instances in which she supposedly admitted lying about the rape. And Bennett cross-examined J.A. in detail about inconsistencies in her descriptions of the encounter with Elnicki. The jurors, in fulfilling their unique role as factfinders, ultimately chose to credit J.A. An adverse outcome, however, doesn't equate to substandard representation. The record from the posttrial hearing doesn't establish that Bennett failed to investigate other aspects of J.A.'s credibility. He wasn't asked to detail the work he or his investigator did in that regard in preparing for trial.
Even if we were to assume Bennett didn't vigorously look for other evidence to impeach J.A., Elnicki's contention founders on a basic level. Elnicki hasn't demonstrated any prejudice. To do so, he would have had to come forward with evidence that could have been admitted at trial to further challenge J.A.'s credibility and to then explain how that evidence might have changed the result. But Elnicki hasn't called our attention to any such evidence. The point, therefore, fails.
Next, Elnicki says Bennett sufficiently mishandled the dealings with Summer Cole as a witness to compromise his right to constitutionally adequate representation. We disagree.
Nonetheless, lawyers do start down a risky path in giving even comparatively nominal amounts of money to independent fact witnesses. The practice commonly invites the sort of implication the prosecutor raised in this case—the payment has influenced the witness' testimony. Here, however, Summer Cole's earlier testimony at the Van Cleave hearing belies the implication of bought-and-paid-for evidence. Retained experts present a different situation, since they are paid for their work. But there is also a reason they are dismissively termed “hired guns.”
Bennett's decision to give Summer Cole money—a total of between $35 and $50, according to his testimony at the posttrial hearing—for an essentially benign purpose amounted to a miscue. The issue boils down to prejudice to Elnicki at trial. We do not see the corrosive prejudice that would deprive Elnicki of a fair trial. Although the prosecutor questioned Summer Cole in a way that implied she had fabricated her testimony in exchange for the money given to her, Bennett carefully rebutted that unfounded implication on redirect examination. On redirect, Summer Cole explained she asked for the money to purchase hygiene items at the jail. In response to Bennett's further questioning, she also told the jurors she had related the same account of J.A.'s supposed statement in a court hearing long before she had received the money. The redirect defused much of the impact of the prosecutor's questions.
In addition, however, there were ample proper reasons for the jurors to disbelieve Summer Cole. She had several convictions for crimes of dishonesty. She had a long relationship with Elnicki's brother and had, at one time, planned to marry him. She had only a vague recollection of the particulars, such as time and place, of J.A.'s supposed statement that she had made up the rape. Moreover, as we have mentioned, Elnicki's credibility, especially about his encounter with J.A., was checkered. He had given multiple inconsistent accounts to the police that couldn't be reconciled with strong forensic evidence. So Elnicki's defense had other substantially more significant obstacles to overcome-obstacles that had nothing to do with Bennett's representation. Given the overall record, we cannot say the money given to Summer Cole created some turning point in the case in which an otherwise strong defense crumbled. The outcome would have been the same with or without Bennett's decision to put money in the jail account and the resulting examination of Summer Cole in front of the jurors.
Finally, Elnicki contends Bennett failed to adequately cross-examine Jennifer Tetuan. Tetuan had a 10–year relationship with Elnicki, and they have two children together. She did not testify at the first or second trial. At the third trial, Tetuan testified as a witness for the State. She related that just before the rape, Elnicki had come home after being out with several friends. Tetuan rebuffed his sexual advances, and they argued until Elnicki walked out. According to Tetuan, Elnicki said he was going to the Kwik Shop to get cigarettes and added, “ ‘I'll just go rape some bitch.’ “
On cross-examination, Bennett brought out that Tetuan had never before testified to the statement she attributed to Elnicki. Bennett also established from Tetuan that Elnicki's mother had recently initiated proceedings to have the children removed from Tetuan's custody and, as a result, Tetuan relinquished her parental rights in favor of her own mother. In addition, Bennett questioned one of the detectives investigating J.A.'s accusations to show he had five conversations with Tetuan during which she never mentioned Elnicki's inculpatory exclamation as he left for the convenience store.
On appeal, Elnicki contends Bennett failed to demonstrate Tetuan's motive to fabricate as a result of her animosity over “their contentious child custody matters.” But the record shows Bennett did exactly that. Elnicki doesn't suggest what more should have been done with the child custody issue or how Tetuan might otherwise have been impeached.
Having reviewed the bases on which Elnicki contends he received constitutionally inadequate representation leading up to and during the third trial, we find insufficient grounds to warrant relief. Bennett's overall performance satisfied the standards required under the Sixth Amendment and § 10 of the Kansas Bill of Rights. Any misstep on Bennett's part—mostly the dustup over giving money to Summer Cole—didn't prejudice Elnicki's right to a constitutionally fair trial.
Cumulative Error
As his last issue on appeal, Elnicki submits that all of the trial errors collectively deprived him of a fair hearing. We have already outlined the cumulative-error principle. An appellate court looks at the entire trial record to assess the aggregate effect of multiple trial errors. Smith–Parker, 301 Kan. at 168, 340 P.3d 485. We have identified only two preserved errors raised on appeal: the brief mention in the prosecutor's closing argument about the witnesses appearing at the inquisition with lawyers; and the kerfuffle over Summer Cole. The combined impact of those problems was insufficient to deprive Elnicki of a fair trial. Taking account of the trial record, we recognize J.A. had some credibility issues. But they were not nearly so pronounced as the credibility problems that plagued the defense. The forensic evidence bolstered J.A.'s version of her encounter with Elnicki. Although Elnicki did not testify, the jurors could evaluate the worth of the statements he gave the police. And the juors could measure the veracity of the defense witnesses who said J.A. had boasted of falsely accusing Elnicki.
We are not persuaded the identified errors so compromised the jurors' ability to perform their factfinding function properly that there was any measurable chance they reached a tainted conclusion on credibility. There were no legal errors that would have kept the jurors from then correctly applying the law to the facts they found. See SmithParker, 301 Kan. at 168, 340 P.3d 485 (multiple evidentiary errors combined with instructional errors on pertinent legal principles resulted in prejudicial cumulative error); State v. Magallanez, 290 Kan. 906, 926–27, 235 P.3d 460 (2010) (same). The verdict here is not suspect. Each error was harmless alone, and together they were likewise insufficient to suggest Elnicki received something less than a fair trial.
Affirmed.