23 Kan. App. 2d 847

No. 73,378

STATE OF KANSAS, Appellee, v. EDUARDO RODRIQUEZ-GARCIA, Appellant.

SYLLABUS BY THE COURT

1. Under K.S.A. 60-418, all witnesses are required to express their purpose to testify by either an oath or an affirmation before testifying.

2. Pursuant to K.S.A. 54-103, any person having conscientious scruples against taking an oath may affirm his or her testimony with like effect.

3. Under K.S.A. 54-105, all oaths and affirmations alike subject the party who shall falsify them to the pains and penalties of perjury. Consequently, all oaths and affirmations have equal weight under the law.

4. K.S.A. 60-430 expressly forbids the inquiry into the religious beliefs or opinions of witnesses for the purpose of showing that their credibility is either impaired or enhanced by their religious beliefs or opinions.

Appeal from Johnson District Court; STEPHEN R. TATUM, judge. Opinion filed April 25, 1997. Affirmed in part, reversed in part, and remanded for a new trial.

B. Kay Huff, special appellate defender, and Steven R. Zinn, deputy appellate defender, for appellant.

Steven J. Obermeier and Debra A. Vermillion, assistant district attorneys, Paul J. Morrison, district attorney, and Carla J. Stovall, attorney general, for appellee.

Before ELLIOTT, P.J., GREEN, J., and JOHN E. SANDERS, District Judge, assigned.

GREEN, J.: Eduardo Rodriquez-Garcia appeals from his convictions for attempted second-degree murder, aggravated burglary, attempted theft, and criminal damage to property. On appeal, Rodriquez-Garcia contends: (1) that the trial court erred in denying his motion for a mistrial based upon the prosecutor's improper comments during closing argument challenging the credibility of the State's main witness because of her decision to take an oath at the preliminary hearing and to affirm at trial and (2) that the trial court erred in denying his request for an instruction on aggravated assault as a lesser included offense of attempted second-degree murder. We conclude that the trial court erred in failing to grant Rodriquez-Garcia's motion for a mistrial based on the prosecutor's improper comments. We further conclude that because aggravated assault is not a lesser included offense of attempted second-degree murder, Rodriquez-Garcia was not entitled to such an instruction. Accordingly, we affirm in part, reverse in part, and remand this case for a new trial.

Rodriquez-Garcia and his codefendant, Pedro Sanchez, were tried together. Sanchez' former girlfriend, Viola Jackson DeFlores, was the victim and the State's main witness. Because DeFlores was a reluctant trial witness, she appeared under a material witness bond.

At trial, DeFlores' testimony against Rodriquez-Garcia and Sanchez was less incriminating than her earlier police statement and preliminary hearing testimony. Consequently, the State attempted to impeach DeFlores by questioning her about her prior inconsistent statement and her preliminary hearing testimony. DeFlores explained that the discrepancies in her police statement were due to her consumption of alcohol the evening of the incident and to her anger immediately after the incident. DeFlores testified that these things caused her to exaggerate.

However, in closing argument, the prosecutor presented an alternative explanation for the discrepancies in DeFlores' testimony. The prosecutor proposed that Sanchez had persuaded DeFlores to change her story. In support of this theory, the prosecutor pointed out that DeFlores had sworn to tell the truth at the preliminary hearing but only affirmed her testimony at trial. The prosecutor theorized that DeFlores had affirmed because she knew she was not going to tell the truth at trial. When Rodriquez-Garcia objected to this argument, the trial court found that the State was within its wide latitude to comment upon and to interpret the evidence. The objection was overruled, and the prosecutor continued in the same vein. Rodriquez-Garcia moved the court for a mistrial and later moved for a new trial, but the trial court denied both motions.

First, Rodriquez-Garcia argues that the prosecutor's argument that affirmed testimony was somehow less credible than sworn testimony was an impermissible attack upon DeFlores' credibility, as well as a misstatement of the law which misled the jury. Rodriquez-Garcia further argues that the prosecutor's statements contravene K.S.A. 60-418, which provides for testimony under oath or affirmation, and K.S.A. 60-430, which expressly forbids the assessment of a witness' credibility according to religious belief. K.S.A. 60-430 provides: "Every person has a privilege to refuse to disclose his or her theological opinion or religious belief unless his or her adherence or nonadherence to such an opinion or belief is material to an issue in the action other than that of his or her credibility as a witness." (Emphasis added.) Rodriquez-Garcia argues that the prosecutor's comments impermissibly attacked DeFlores' exculpatory trial testimony and prejudiced the jury such that he was denied a fair trial.

On the other hand, the State argues that its comments with regard to DeFlores' decision to affirm at trial after taking an oath at the preliminary hearing were well within the latitude given during closing argument. The State argues that DeFlores' testimony was clearly inconsistent, that her decision to affirm was of factual significance, and that the prosecutor's comments were merely an interpretation of those facts for the jury. Moreover, the State argues that the trial court's instruction to the jury that the prosecutor's remarks in this area were not to be considered as evidence had a curative effect if the prosecutor's remarks were improper. Alternatively, the State argues (1) that its comments did not constitute error because they were made in response to defense counsel's inference that DeFlores had testified truthfully and had not succumbed to the State's pressure and (2) that its comments were not so prejudicial as to amount to reversible error.

Consequently, the issue we must decide is whether Rodriquez-Garcia was denied a fair trial because of the so-called improper remarks made by the prosecutor during closing arguments. In State v. Collier, 259 Kan. 346, 354, 913 P.2d 597 (1996), our Supreme court reviewed a similar issue and set out the following standard of review:

Emphasizing that DeFlores took an oath before testifying at the preliminary hearing, the prosecutor examined DeFlores as follows:

At various other times, the prosecutor questioned DeFlores about her oath, which required her to swear to God, as follows:

In telling the jury that DeFlores was attempting to assist the defendants by changing her testimony during the first phase of closing arguments, the prosecutor stated:

Next, defense counsel addressed the jury. The State argues that the following portion of defense counsel's closing argument opened the door to the State's later rebuttal comments:

We disagree with the State's contention that the defense counsel's closing argument opened the door for the State to make rebuttal comments comparing DeFlores' oath testimony with her affirmation testimony. From our reading of this argument, the defense counsel was simply telling the jury that DeFlores was obligated to tell the truth whether she took an oath or affirmed. We find that defense counsel's argument was proper because K.S.A. 54-103 states that "[a]ny person having conscientious scruples against taking an oath, may affirm with like effect." Moreover, K.S.A. 54-105 provides that "[a]ll oaths and affirmations alike subject the party who shall falsify them to the pains and penalties of perjury."

Comparing DeFlores' preliminary testimony when she took an oath with her trial testimony when she affirmed, the State made the following rebuttal argument:

The parties do not cite to, nor has our research revealed, any Kansas cases which deal specifically with the issue before this panel. However, Rodriquez-Garcia cites Government of Virgin Islands v. Petersen, 553 F.2d 324 (3d Cir. 1977), and United States v. Kalaydjian, 784 F.2d 53 (2d Cir. 1986), in support of his argument that the distinction between taking an oath and affirming drawn by the State was improper and misleading. Petersen is not particularly helpful. There the court merely refused to admit evidence of a defendant's religious affiliation to show that he eschewed violence.

Although Kalaydjian is helpful, it is not factually similar to the instant case. In Kalaydjian, the appellants claimed that the district court erred in refusing to permit defense counsel to cross-examine a government witness regarding the witness' reasons for deciding to affirm rather than to swear on the Koran. Defense counsel sought to cross-examine on this matter purportedly to cast doubt on the witness' credibility. The trial court ruled that the requested cross-examination was precluded by Fed. R. Evid. 610, which "'forecloses inquiry into the religious beliefs or opinions of a witness for the purpose of showing that his character for truthfulness is affected by their nature.' Fed. R. Evid. 610 (Advisory Committee Note)." 784 F.2d 56. Appellants argued that the rule did not prohibit the requested cross-examination because Rule 610 excludes evidence of religious beliefs only, but does not foreclose a party from undermining a witness' credibility based on the witness' religious beliefs. Appellants argued that the rule did not prohibit challenging a witness' credibility based on the witness' refusal to swear on his religion's bible. In rejecting the appellant's distinction, the Kalaydjian court stated:

Although the Kalaydjian court was concerned with the propriety of cross-examination, the court's reasoning as applied to the present case suggests that the prosecutor's comments were improper and are indistinguishable from a direct reference to a witness' religious beliefs. Given that K.S.A. 60-418 and K.S.A. 54-103 clearly allow either an affirmation or an oath, it was improper for the State to ask DeFlores about her use of one over the other, since it infringes upon DeFlores' religious beliefs or the lack thereof. K.S.A. 60-430 expressly forbids the inquiry into the religious beliefs or opinions of witnesses for the purpose of showing that their credibility is either impaired or enhanced by their religious beliefs or opinions. Moreover, given that both an oath and an affirmation have equal weight in the law, the prosecutor's remarks about DeFlores' credibility based upon DeFlores' affirmed testimony versus her sworn testimony were clearly improper.

Next, we must determine whether this error was harmless. Because DeFlores was the State's key witness and the only witness to much of the incident, the jury's determination as to which version of her testimony to believe was critical. We reject the State's argument that the trial court's instruction to the jury that the prosecutor's remarks should not be considered as evidence cured the effect of the prosecutor's improper comments. Consequently, we are unable to say beyond a reasonable doubt that the error had little, if any, likelihood of changing the result of the trial. For this reason, we reverse Rodriquez-Garcia's convictions and remand this case for a new trial.

Next, Rodriquez-Garcia argues that the trial court erred in failing to instruct the jury on aggravated assault as a lesser included offense. "A trial court has the affirmative duty to instruct the jury on all lesser included offenses established by the evidence." State v. Spresser, 257 Kan. 664, 672, 896 P.2d 1005 (1995).

Rodriquez-Garcia concedes that he is not entitled to an aggravated assault instruction under the first prong of Fike. However, he argues that "[u]nder the second prong of Fike, the evidence adduced at trial would necessarily prove aggravated assault as a lesser crime. As charged, the attempted murder depends upon the intentional firing of several gunshots at the reporting party. Given this complaint and charge, an aggravated assault is necessarily proven."

As the State points out, Rodriquez-Garcia fails to distinguish between the evidence which must be presented at trial to prove attempted second-degree murder and additional facts which may make out an additional offense. The State cites State v. Dixon, 248 Kan. 776, 811 P.2d 1153 (1991), wherein our Supreme Court addressed a similar issue. In Dixon, the defendant argued that aggravated battery was a lesser included offense of attempted first-degree murder because the "information, read in the light of the facts adduced at trial, establish[ed] that [the victim] was actually shot." 248 Kan. at 784. Thus, Dixon reasoned that the State necessarily proved the elements of aggravated battery in establishing the elements of attempted first-degree murder. In rejecting this argument, the Dixon court stated:

Similarly, in the instant case, the State was not required to prove that DeFlores was placed in apprehension of harm, an element of assault, to prove attempted second-degree murder. Therefore, aggravated assault is not a lesser included offense of attempted second-degree murder, and the trial court did not err in refusing to give the instruction.

Affirmed in part, reversed in part, and remanded for a new trial.