Opinion
No. 106,555.
2013-11-1
STATE of Kansas, Appellee, v. Cornelio SALAZAR–MORENO, Appellant.
Appeal from Reno District Court; Trish Rose, Judge. Edward J. Battitori, of Pittsburg, for appellant. Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Reno District Court; Trish Rose, Judge.
Edward J. Battitori, of Pittsburg, for appellant. Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., ARNOLD–BURGER, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM:
Cornelio Salazar–Moreno was found guilty of rape, two counts of aggravated indecent liberties with a child, and adultery. Immediately before and during trial, he moved for mistrial three different times: first, based on a juror's racially charged comments in a public hallway; second, based on the State's failure to provide discovery of its expert's full report; and third, based on communications between a spectator in the gallery and the complaining witness. The district court denied all three motions. Additionally, Salazar–Moreno objected to the State expert's testimony about whether the victim's report of sexual abuse matched her injuries, but the district court overruled the objection. Salazar–Moreno contends that the district court abused its discretion in all four rulings. Finding no error, we affirm.
Factual and Procedural History
Cornelio Salazar–Moreno was charged with rape and two counts of aggravated indecent liberties with a 13–year–old girl (D.D.). Because Salazar–Moreno was married at the time, he was also charged with adultery. The case proceeded to jury trial.
After the completion of jury selection, Dawn Salazar–Salazar–Moreno's wife and a witness for both the State and defense-approached Salazar–Moreno's attorney and reported that she overheard one of the selected jurors talking on his cell phone and “mak[ing] disparaging remarks about Hispanics or Mexicans.” Salazar testified that she overheard the juror's remarks, which “was like a joking [sic],” while sitting in a conference room. The juror's comments included statements such as “in Mexico they can have sex with girls that are 14 and that's okay” and “Mexicans come over here, drive great big SUVs with the great big rims on it.” Salazar stated that at least one other juror or potential juror was in the hallway at the time. After hearing Salazar's testimony and identifying the juror in question, the district court dismissed the juror, replaced him with an alternate, and denied Salazar–Moreno's motion for mistrial.
During the trial, the State called pediatrician Ellen A. Losew as an expert witness to testify about the results of D.D.'s vaginal exam. Prior to Dr. Losew testifying, Salazar–Moreno presented an oral motion requesting that the court limit Dr. Losew's testimony only to “the four corners of the document she provided to the prosecution”—that is, her pretrial report. The district court reserved ruling on the motion, but the record indicates that the court never presented a definitive decision.
On direct examination, Dr. Losew testified about an irregularity in D.D.'s hymen. When asked whether the irregularity was consistent with D.D.'s report of sexual abuse, Salazar–Moreno again objected, stating:
“That's a medical expert opinion. That's not for whatever reason contained in her expert medical report, and it's something that's unfair surprise to the Defense. We didn't know this was coming. We have-my client has rights to discovery, to discover all of the evidence to be presented against him at trial in order for him to receive a fair trial.... This is the first we've heard of a medical opinion by experts.”
The district court overruled the objection. Salazar–Moreno did not object again during the State's direct examination except in regard to the witness' responsiveness.
While cross-examining the doctor, however, Salazar–Moreno discovered that he only had the first and last pages of Dr. Losew's report, rather than all three pages. At that time, Salazar–Moreno moved for a mistrial “for failure to comply with discovery and provide me accurate documentation of [Dr. Losew's] report.” The State indicated discovery was provided and argued that even if Salazar–Moreno had not received the second page of the report, the information in question—that is, the results of D.D.'s examination and D.D.'s 32–pound weight loss—appeared on other pages of the report as well as on the missing page. The district court denied the motion for mistrial but allowed Salazar–Moreno time to review the report before continuing with the cross-examination of Dr. Losew.
Later, after a morning recess during D.D.'s testimony, Salazar–Moreno reported to the district court that “a gentleman in the audience” was communicating nonverbally with D.D. while she testified. The State identified the gentleman as D.D.'s counselor, Rich Line. Witnesses testified that they saw Line mouthing things including the word “no,” shaking his head, and nodding at D.D. while she testified. Line, however, stated that he only indicated to D.D. that she should drink water and that he and D.D. had “not discussed the details of this assault” such that he could suggest answers to her. Salazar–Moreno renewed his earlier motion for mistrial based on Line's “admitted communication” with D.D. The district court found that reminding D.D. to drink water did not constitute improper communication and that there was “no indication that [D.D.] was looking to someone for suggestion or needing help with her answers.” Therefore, the district court denied the motion.
The jury found Salazar–Moreno guilty of all four charges. The district court imposed a “hard 25” prison sentence. Salazar–Moreno timely appealed.
Testimony of Expert Witness
Salazar–Moreno first contends that the district court erred in allowing Dr. Losew to testify both about D.D.'s injury and about whether D.D.'s account of the sexual abuse corresponded with the nature of that injury. Salazar–Moreno asserts that these statements amount to improper testimony about D.D.'s credibility.
Generally, the admissibility of expert testimony lies within the district court's sound discretion and is reviewed only for an abuse of discretion. State v. Johnson, 286 Kan. 824, 831, 190 P.3d 207 (2008). An abuse of discretion only occurs when the action is arbitrary, fanciful, or unreasonable, based on an error of law, or based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied––– U.S. ––––, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012). Despite this general rule, however, our Supreme Court acknowledged in State v. Elnicki, 279 Kan. 47, 53, 105 P.3d 1222 (2005), that its “recent decisions do not invoke an abuse of discretion or other standard of review” when one witness expresses an opinion as to another witness' credibility. Instead, the court indicated that there is “an absolute prohibition” against opinion testimony based on credibility and that such evidence is “disallowed as a matter of law.” 279 Kan. at 53–54, 105 P.3d 1222.
The State, however, notes that Salazar–Moreno failed to lodge a contemporaneous objection based on Dr. Losew's testimony and, therefore, argues that this court cannot review the district court's ruling. We agree.
Kansas has codified the contemporaneous objection rule at K.S.A. 60–404, which provides that a verdict will not be set aside by reason of the erroneous admission of evidence unless “there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.” Our Supreme Court has emphasized the word specific in the statute, stating that “the trial court must be provided the specific objection so it may consider as fully as possible whether the evidence should be admitted.” State v. Richmond, 289 Kan. 419, 429, 212 P.3d 165 (2009). This language also precludes appellate review when a party objects to evidence based on one ground at trial but then asserts a different ground on appeal because to allow otherwise “undercut[s] the purpose of contemporaneous objections.” 289 Kan. at 429, 212 P.3d 165.
On appeal, Salazar–Moreno draws attention to three portions of Dr. Losew's testimony: First, the testimony indicating that D.D.'s report was consistent with the irregularity on her hymen; second, the use of the word “good” when referring the history D.D. provided; and third, the use of the phrase “suspicious for child sexual abuse” when referring to D.D.'s exam. Salazar–Moreno contends that this testimony rises to the level of improper opinion about D.D.'s credibility and is outside the scope of Dr. Losew's expertise.
At trial, when Dr. Losew was responding to questions on direct examination about the irregularity in D.D.'s hymen, the following exchange occurred:
“Q. Based on your professional training and experience and looking at children, was what you saw with the cleft [in the hymen] consistent, was it consistent with the report made by [D.D.]?
“MR. BATTITORI: I object, Your Honor. That's a medical expert opinion. That's not for whatever reason contained in her expert medical report, and it's something that's unfair surprise to the Defense.... We have-my client has rights to discovery, to discover all of the evidence to be presented against him at trial in order for him to receive a fair trial, due process and constitutional rights protected. This is the first we've heard of a medical opinion by experts. Experts have to submit reports. Reports have to be provided to opposition and the reports must be exhausted for everything to be presented at trial, so we avoid situations like this where surprise results. It would be easy for experts to say, I'll include this in my report but then I'll surprise the Defense later by adding this to it at a later date. It's unfair.”
The district court overruled the objection.
Here, it appears that the ground Salazar–Moreno relied on when objecting to Dr. Losew's testimony was that of unfair surprise. Although there was mention of Dr. Losew's status as a medical expert, no language in the objection suggests that Dr. Losew's testimony exceeded the scope of her qualifications or commented on D .D.'s credibility; instead, the objection focused on whether Dr. Losew's opinion appeared in her report. Salazar–Moreno cannot now, on appeal, object to Dr. Losew's testimony on other grounds. See Richmond, 289 Kan. at 429, 212 P.3d 165.
Near the end of direct examination, Dr. Losew was asked again whether she had an opinion as to whether the irregularity in D.D.'s exam was consistent with D.D.'s account of the sexual abuse. Questioning continued as follows:
“A. Yes, I have an opinion.
“Q. What is that opinion?
“A. That opinion is that [D.D.'s] report is consistent with the examination findings and it is suspicious for child sexual abuse.
“Q. And you put that in your report?
“A. Yes, sir.
“Q. Did you explain that in your report?
“A. Yes, sir.
“Q. Where did you explain that in your report?
“A. Under the assessment, which is often abbreviated as a capital A colon.
“Q. Exactly what did you say in your assessment?
“A. I stated number one, report of child sexual abuse any [ sic ] 13 year old female who gives a good history and has an exam that is suspicious for child sexual abuse.
“Q. What does number two say?
“A. Number two says weight loss with depressive symptomology.”
The State ended its direct examination at that time. At no time during the last series of questions did Salazar–Moreno object for any reason. Without a specific and contemporaneous objection, the district court could not fully consider whether Dr. Losew's testimony was admissible; consequently, this court cannot review it on appeal. See Richmond, 289 Kan. at 429, 212 P.3d 165.
Motions for Mistrial
During the jury trial, Salazar–Moreno moved for a mistrial three different times: Once based on juror misconduct after the juror made racially charged comments in a public hallway, once based on the State's failure to provide all three pages of Dr. Losew's report, and once based on the nonverbal communication between Line and D.D. The district court denied all three motions, which Salazar–Moreno argues was error.
K.S.A. 22–3423(1) provides that a district court may order a mistrial for any one of six reasons: (1) it is impossible to continue the trial “in conformity with law”; (2) a legal defect in the trial “would make any judgment entered upon a verdict reversible as a matter of law” and the defendant requests or acquiesces to the mistrial; (3) prejudicial conduct “makes it impossible to proceed with the trial without injustice” to either party; (4) the jury cannot agree on the verdict; (5) a juror's false statements during jury selection “prevent[s] a fair trial”; or (6) the trial must be interrupted to determine whether the defendant is competent to stand trial. Like with the admissibility of evidence, “the trial court's decision denying a motion for mistrial is reviewed under an abuse of discretion standard.” Ward, 292 Kan. at 550, 256 P.3d 801. The defendant must show substantial prejudice before this court can find that the district court abused its discretion. State v. Johnson, 253 Kan., 75,90, 853 P.2d 34 (1993).
Motion for Mistrial in Response to the Juror's Improper Comments
Prior to the start of the trial, Salazar–Moreno's wife overheard a juror talking loudly on his cell phone and making disparaging comments about individuals of Mexican descent. Based on these comments, Salazar–Moreno moved for a mistrial. Although the brief is unclear, Salazar–Moreno seems to argue that the juror's comments constituted juror misconduct and amounted to the type of prejudicial conduct that “makes it impossible to proceed with the trial without injustice” to the defendant. See K.S.A. 22–3423(1)(c).
Our Supreme Court has defined juror misconduct as “a broad label which has been used to describe communications with jurors from outsiders, witnesses, bailiffs, or judges; and actions by jurors in the unauthorized viewing of premises, or reading of newspaper articles.” State v. Fenton, 228 Kan. 658, 664, 620 P.2d 813 (1980). The facts in this case do not seem to implicate juror misconduct. There is no allegation that the juror violated a court order, spoke to witnesses, or concealed anything during voir dire. Indeed, the jury had not yet been sworn to hear evidence. The issue the district court faced here was one of juror bias rather than misconduct. The court does have a general duty to see that the jury is comprised of fair and impartial persons. Irvin v. Smith, 272 Kan. 112, 129, 31 P.3d 934 (2001). And certainly, it is well within the trial court's discretion to declare a mistrial when it is shown that a juror becomes so prejudiced during the trial that he or she cannot serve as a fair and impartial juror. State v. Rayton, 268 Kan. 711, 721, 1 P.3d 854 (2000). This case, on the other hand, involves indications of general bias or prejudice toward Hispanics by a juror after voir dire but before trial.
Assuming without deciding that the same rules that apply to juror misconduct also apply to post-voir dire, pretrial general expressions of juror bias, it is well settled that juror misconduct is only grounds for mistrial if the misconduct “is shown by the party claiming error to have substantially prejudiced his or her rights.” State v. Wimbley, 271 Kan. 843, 852, 26 P.3d 657 (2001).
Salazar–Moreno asserts that prejudice arose due to the district court's failure to inquire whether the other jurors overheard the juror's comments. He relies on Saucedo v. Winger, 252 Kan. 718, 850 P.2d 908 (1993), for his conclusion that such inquiry was required. But Saucedo is clearly distinguishable. It involved a juror presenting outside information to other jurors during deliberations, suggesting that the plaintiff did not die due to the defendant's medical malpractice. Another juror disclosed information that suggested one of the witnesses had lied on the stand. The misconduct only came to light after the jury as a whole rendered a verdict. Based on these facts, our Supreme Court stated that “the only way for a trial court to determine if the misconduct [regarding a material issue] improperly influenced the jury's verdict is to recall the jury and inquire.” 252 Kan. at 732, 850 P.2d 908. Here we are far removed from the verdict. The juror's biased remarks took place before the jury was even sworn to hear evidence.
Instead, numerous cases have held that failure to question jurors about potentially prejudicial information that came to light prior to the pronouncement of a verdict did not result in an abuse of the trial court's discretion. See State v. Overton, 279 Kan. 547, 557–58, 112 P.3d 244 (2005) (defense unable to show prejudice related to spectator's comment in the hallway); State v. Fulton, 269 Kan. 835, 838–39, 9 P.3d 18 (2000) (court dismissed juror and admonished jury after it came to light that juror informed the other members of the jury about outside information); State v. Macomber, 244 Kan. 396, 406–07, 769 P.2d 621 (State's witness and juror seen talking on the elevator, although no indication that it was about the case), cert. denied493 U.S. 842, 110 S.Ct. 130, 107 L.Ed.2d 90 (1989); State v. Henson, 221 Kan. 635, 648, 562 P.2d 51 (1977) (witness seen talking to juror in a public hallway about issues unrelated to the case); State v. Mitchell, 45 Kan.App.2d 592, 595–96, 252 P.3d 586 (juror text messaging during trial resulted in court admonishing jurors to shut off phones), rev, denied 293 Kan. –––– (December 19, 2011).
These decisions are instructive in this case. Here, the district court heard testimony from Dawn Salazar about the juror's racially charged comments prior to deciding to dismiss the juror. Salazar commented that the juror appeared to be joking as he spoke on his cell phone. Her testimony also indicated that she could only see “one guy walking around” during the juror's comments and that she could not say with certainty that that particular person was a member of the jury. The district court could not determine how many people in the hallway were in fact jurors.
After hearing the testimony, the district court decided to dismiss the juror, replace him with an alternate, and admonish the jurors “to only decide the case based on the evidence, not based on anything that they might have heard in the hallway, or from anyone else.” The district judge further commented, “I'm confident the jurors will follow my instructions.” During this time, Salazar–Moreno never requested to poll the remaining jurors as to whether they heard the comments or to question the jury as to the prejudicial impact the comments may have had. In fact, after the district court decided to dismiss the juror, the State asked Salazar–Moreno's attorney whether he was “okay” with the outcome, which was met with no response.
There is no indication based on these facts that the juror's comments prejudiced Salazar–Moreno or that the district court acted in a fanciful, arbitrary, or unreasonable manner. See Ward, 292 Kan. at 550, 256 P.3d 801. Neither Salazar nor the parties could say for certain that any jurors overheard the comments, and Salazar–Moreno has failed to prove that the comments otherwise acted to prejudice him. Additionally, like in Mitchell, Salazar–Moreno never requested to question either the juror or the other members of the jury. Instead, the district court—“an experienced observer of the circumstances”—heard testimony and decided that dismissing the juror and admonishing the remaining jurors was sufficient in this case. See Overton, 279 Kan. at 558, 112 P.3d 244. Without proof of prejudice, juror misconduct cannot serve as grounds for mistrial; therefore, the district court did not err in denying Salazar–Moreno's motion.
Motion for Mistrial Based on Failure to Provide Discovery
Salazar–Moreno next moved for mistrial after discovering that he lacked the second page of Dr. Losew's report, claiming that the State failed to provide discovery. On appeal, Salazar–Moreno contends that the missing page prejudiced him because it affected his trial strategy and also because the information contained in the missing page was exculpatory. Again, although no statutory authority is cited, it appears that Salazar–Moreno argues that this failure to disclose “makes it impossible to proceed with the trial without injustice” to him. See K.SA. 22–3423(l)(c).
K.S.A. 22–3212, which governs discovery in criminal cases, provides in relevant part;
“(g) If, subsequent to compliance with an order issued pursuant to this section, and prior to or during trial, a party discovers additional material previously requested or ordered which is subject to discovery or inspection under this section, the party shall promptly notify the other party or the party's attorney or the court of the existence of the additional material. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this section or with an order issued pursuant to this section, the court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems just under the circumstances.”
Our Supreme Court, in considering a prior version of this statute, has stated that the provision “grants discretion to the trial courts.” State v. McGee, 224 Kan. 173, 177, 578 P.2d 269 (1978). The court has also reasoned that “a failure to disclose [evidence], while not to be condoned, does not warrant an automatic mistrial.” State v. Villa & Villa, 221 Kan. 653, 656, 561 P.2d 428 (1977). In fact, the district court should reserve dismissal of an action for “extreme circumstances” and instead “impose the least drastic sanctions which are designed to accomplish the objects of discovery but not to punish.” State v. Winter, 238 Kan. 530, 534, 712 P.2d 1228 (1986). Factors the district court must consider when determining what sanction to employ include surprise to a party as to the contents or nature of the evidence, the amount of other evidence that bears on the defendant's guilt, and any prejudice to the defense. Villa & Villa, 221 Kan. at 656–57, 561 P.2d 428. Evidence is not withheld by the State if the defendant has personal knowledge of that evidence or “if the facts become available to him during trial and he is not prejudiced in defending against these new facts.” State v. Glazer, 223 Kan. 351, 357–58, 574 P.2d 942 (1978).
These principles have been employed in many situations. It was not, for example, an abuse of discretion to deny a mistrial after an unendorsed witness testified at trial about a statement made to the witness by the defendant. State v. Cook, 225 Kan. 259, 261–63, 589 P.2d 616 (1979). In another case, the State's failure to disclose that the victim altered her story in a subsequent interview did not prejudice the defendant when the defense “took full advantage of the opportunity provided to show discrepancies” in the victim's stories. State v. Jeffrey, 31 Kan.App.2d 873, 875–76, 75 P.3d 284 (2003). In another example, the State's failure to provide the defense with a report before the start of trial did not constitute prejudice to the defendant when the defense counsel was given a 90–minute recess to review the report before cross-examination. State v. Wacker, 253 Kan. 664, 674, 861 P.2d 1272 (1993).
In the present case, and disregarding the State's assurances that Salazar–Moreno received the full report, the record reflects that the information on the report's missing page was also represented on the other pages. The information specifically at issue—D.D.'s weight loss-was discussed on the third page as well. Based on this information, the district court allowed the defense 15 minutes to examine the report, noted that “[t]he witness is still here and available for cross-examination,” and offered to instruct the witness to remain for future questions. Additionally, Salazar–Moreno questioned Dr. Losew and several other witnesses about D.D.'s weight loss both before and after the missing page was discovered.
It is difficult to find prejudice or the type of extreme circumstances requiring severe sanctions—such as the granting of a mistrial—in this situation. Salazar–Moreno was allowed an opportunity to review the report and cross-examine Dr. Losew, and the district court was willing to hold Dr. Losew for further testimony. The defense “took full advantage” of opportunities to question witnesses about D.D.'s weight loss. See Jeffrey, 31 Kan.App.2d at 876, 75 P.3d 284. Additionally, the missing page only served to repeat information on the other two pages of the report. Therefore, the district court did not abuse its discretion in imposing less-drastic sanctions.
Salazar–Moreno also appears to argue that the reference to weight loss on the second page constituted exculpatory evidence. Exculpatory evidence is any evidence that “tends to disprove a fact in issue which is material to guilt or punishment.” State v. Kelly, 216 Kan. 31, 36, 531 P.2d 60 (1975). The State is “under a positive duty, independent of court order, to disclose exculpatory evidence to a defendant”; failure to do so will justify reversal if the evidence is “clearly and unquestionably exculpatory” and the withholding is prejudicial. 216 Kan. at 33, 531 P.2d 60.
Salazar–Moreno does not argue that the State acted in bad faith in failing to disclose the report's second page. When the failure to disclose exculpatory evidence is the result of an oversight-that is, not deliberate, in bad faith, or part of the State's refusal to honor a discovery request-a new trial is appropriate only if: (1) the evidence was withheld by the State, (2) the evidence was clearly exculpatory, and (3) the evidence was so material that withholding it from the jury was clearly prejudicial. 216 Kan. at 36, 531 P.2d 60.
Even if the weight loss appeared only on the second page of the report, Salazar–Moreno fails to explain how it rises to the level of evidence that “tends to disprove a fact in issue which is material to guilt or punishment.” See 216 Kan. at 36, 531 P.2d 60. Although Dr. Losew considered D.D.'s weight loss in forming her opinion, other elements of the physical exam were also indicative of child sexual abuse. Additionally, Salazar–Moreno provides no insight as to how the weight loss disproves a fact at issue in the case. As the evidence is not exculpatory, we need not consider the matter further.
The district court's action in denying Salazar–Moreno's motion for mistrial was not arbitrary or unreasonable; it cured the State's failure to disclose the second page of the report and allowed Salazar–Moreno ample opportunity to review the document and question witnesses. Therefore, the district court did not err.
Motion for Mistrial Based on Communications between Witness and Spectator
Salazar–Moreno's third motion for mistrial occurred after D.D.'s therapist, Rich Line, was seen nonverbally communicating with D.D. during her testimony. On appeal, Salazar–Moreno argues this conduct was so prejudicial as to make proceeding with the trial without injustice impossible.
Although no Kansas Supreme Court case is exactly on point, this court has twice considered issues of spectator-witness communications. In State v. Quinones, No. 98,877, 2009 WL 311812 (Kan.App.2009) (unpublished opinion), rev. denied 289 Kan. 1284 (2010), the defendant moved for mistrial after spectators gestured threateningly at witnesses while they testified. The bailiff and at least two jurors witnessed “probably a total of four gestures.” 2009 WL 311812, at *3. The district court instructed the jury to ignore the gestures and excluded the spectators for the remainder of the testimony. This court determined that the defendant's right to a fair trial was not prejudiced and affirmed the district court's decision. 2009 WL 311812, at *5, 8.
In arguing that the district court abused its discretion, Salazar–Moreno relies on the other case concerning this issue, State v. Dayhuff, 37 Kan.App.2d 779, 158 P.3d 330 (2007). In Dayhuff, the defendant moved for a mistrial after several individuals witnessed a spectator “nodding her head and making gestures” to a child victim while the child testified. 37 Kan.App.2d at 796, 158 P.3d 330. The district court summarily denied the motion without hearing the matter, stating that “ ‘it can all be sorted out in motions for a new trial if there's a conviction.’ “ 37 Kan.App.2d at 796, 158 P.3d 330. This court reversed the district court's action because the district court did not attempt to investigate the matter or allow the defendant to put on witnesses until a motions hearing 7 months later. 37 Kan.App.2d at 798–801, 158 P.3d 330.
Decisions from other states addressing similar issues are helpful here, as well. In an Illinois case, a defendant moved for mistrial based in part because an alternate juror allegedly observed the witness' mother coaching her through her testimony. People v. Smith, 253 Ill.App.3d 443, 453, 191 Ill.Dec. 648, 624 N.E.2d 836 (1993). The juror informed a bailiff that the witness' mother mouthed the words “ ‘I don't know’ “ multiple times during her testimony. 253 Ill.App.3d at 453, 191 Ill.Dec. 648, 624 N.E.2d 836. The trial court judge interviewed the witness and spectator, both of whom denied that they were communicating; additionally, the rest of the jurors indicated they had not noticed any communications between the witness and spectator. The trial court ordered the spectator to leave the courtroom and ultimately denied the motion. The Illinois Appellate Court determined that the trial court's response to the situation was a reasonable one and “well within its discretion.” 253 Ill.App.3d at 455, 191 Ill.Dec. 648, 624 N.E.2d 836.
The Supreme Court of Iowa also examined the issue of spectator-witness communications in State v. Hackett, 197 N.W.2d 569 (Iowa 1972). In Hackett, the defendant's wife testified that she saw the complaining witness watching a spectator for help answering questions. When considering the issue on appeal, the court reasoned that any curative measures “must, of necessity, be left to the sound discretion of the trial court since it had the opportunity to see and hear everything that transpired.” 197 N.W.2d at 573. The court ultimately determined that “[t]he jury was capable of assessing the situation” and affirmed the trial court's ruling. 197 N.W.2d at 573.
In Thomas v. State, 510 N.E.2d 651, 652–53 (Ind.1987), the defendant moved for mistrial after a police officer in the gallery allegedly nodded “ ‘yes' “ and “ ‘no’ “ at the witnesses during testimony. The officer in question testified that he knew nothing about the case and that any gestures he made were unintentional. The Indiana Supreme Court reasoned that the defendant “fail [ed] to show how he was placed in grave peril” or harmed and, therefore, found that the trial court did not abuse its discretion. 510 N.E.2d at 653.
Lastly and in contrast to the foregoing cases, in Sharp v. Commonwealth, 849 S.W.2d 542, 546–47 (Ky.1993), the Kentucky Supreme Court considered a case in which a spectator made “signals and gestures to the child witness” that seemed to indicate whether the child should “answer yes or no to the questions asked and whether [the spectator] approved of the child's answers.” When questioned by the court, the observer admitted to mouthing “ ‘[y]ou're doing fine’ “ and giving “approving gestures by winks and a thumbs-up sign.” 849 S.W.2d at 546–47. The spectator also admitted to disclosing portions of the child's testimony to sequestered witnesses who were still subject to recall. Although the trial court denied the defendant's motion for mistrial, the Kentucky Supreme Court reversed, stating that the victim was “a crucial witness” and that receiving “encouragement, approval and comfort at the time her credibility was being assessed by the jury” may have influenced the jury's perception of her testimony. 849 S.W.2d at 547.
Both this court and other courts across the country appear to agree that determinations about whether courtroom misconduct warrants a mistrial are within the trial court's discretion. See Dayhuff, 37 Kan.App.2d at 800–01, 158 P.3d 330. In the present case, the district court immediately investigated the allegation that a spectator was communicating with D.D. while D.D. testified. Testimony presented by Salazar–Moreno indicated that two witnesses saw Line communicating with D.D. in the form of nodding and mouthing the word “no,” but testimony presented by the State refuted those claims. Line stated that he knew nothing about the details of the case, but instead he only “showed [D.D.] my bottle of water to remind her that she had one” and prompted her to drink. Additionally, when asked whether he thought his actions were appropriate, Line replied that he thought some level of communication between a spectator and witness was permissible and “that somebody could hold up a bottle of water to remind a child she had a bottle of water in her hand.”
After hearing the testimony, the district court determined that reminding D.D. to take a drink of water did not “rise[ ] to the level that it impacts defendant's right to a fair trial.” The district judge also noted:
“I also base my ruling on my observation of the witness, who I was looking at very carefully, because she speaks so softly. I was taking notes, but also looking at her quite often, and I had no indication that she was looking to someone for suggestion or needing help with her answers.... I add to that the fact that Mr. Line testified he didn't even know details. I don't know how he could possibly be coaching someone about details he didn't know until he just heard them from the witness.”
This situation is analogous with Smith, Hackett, and Thomas . Although Line admitted to gesturing with his water bottle, there was no indication that the jury saw the gesture or that it could not recognize it as a reminder to sip water. See Smith, 253 Ill.App.3d at 453, 191 Ill.Dec. 648, 624 N.E.2d 836;Hackett, 197 N.W.2d at 573. Additionally, like the officer in Thomas, Line did not know the details of the case. See 510 N.E.2d at 653. Based on this testimony and the district court's own observation of D.D., the district court exercised its sound discretion and denied the motion for mistrial.
Finally, Salazar–Moreno asserts that his right to a fair trial was prejudiced both by the mere existence of the communications and the district court's failure to question the jury about the communications. To this end, he relies on Dayhuff. However, in Dayhuff, the trial judge refused to conduct any investigation whatsoever into the alleged communications, stating, “ ‘I'm saying right now at this time, there's no factual basis for me to make a decision’ “ on the motion for mistrial and later, “ ‘[w]e don't have the time to deal with this right now.’ “ 37 Kan.App.2d at 796, 158 P.3d 330. This court reasoned that “the trial court never exercised its discretion as to whether [the witness'] conduct prejudiced Dayhuff and that waiting until a motions hearing 7 months later was “simply inadequate to investigate the matter as to how the [witness'] conduct may have impacted the child's testimony and affected the jury.” 37 Kan.App.2d at 798, 801, 158 P.3d 330. These facts are dramatically different from the present case, where the district court halted trial, heard witnesses, and ultimately determined that the communications in question were not prejudicial.
Although similar in facts, this case can be distinguished from Sharp, as well. In Sharp, the spectator freely admitted to encouraging the witness throughout her testimony, essentially bolstering her confidence as she testified. See 849 S.W.2d at 546–47. In reversing the trial court's decision, the Kentucky Supreme Court noted a concern that the continued encouragement may have influenced the jury's perception of the witness' credibility. See 849 S.W.2d at 547. Here, there are no facts to indicate that Line's gestures lasted throughout D.D.'s testimony or that they constituted the kind of approval and encouragement present in Sharp; neither of the people who witnessed his behavior provided solid descriptions of the gestures or their duration. The district court stated no concerns over D.D.'s credibility or Line's gestures affecting her testimony. Thus, the district court's actions fail to rise to a level “so egregious and inimical to the concept of a fair trial that they cannot be disregarded in the name of trial court discretion.” Sharp, 849 S.W.2d at 547. As such, the denial of the motion for mistrial should be affirmed.
Because the trial court did not abuse its discretion in denying any of Salazar–Moreno's motions for mistrial, his claim of error fails.
Affirmed.