No. 94,586
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DEMETRIUS L. BIRTH,
Appellant.
SYLLABUS BY THE COURT
1. A claimed violation of the Confrontation Clause of the Sixth Amendment to the United States Constitution due to the unavailability of a witness is a question of law, which an appellate court reviews de novo.
2. The Confrontation Clause of the Sixth Amendment to the United States Constitution bars witnesses' testimonial out-of-court statements that are offered to prove the truth of the matter asserted unless the witnesses are unavailable and the defendant had a prior opportunity to cross-examine those witnesses.
3. If a declarant never testifies at trial, hearsay evidence of his or her out-of-court statements is inadmissible under K.S.A. 60-460(a).
4. When a defendant opens an otherwise inadmissible area of evidence during the examination of witnesses, the prosecution may then present evidence in that formerly forbidden sphere. By opening the door to otherwise inadmissible hearsay, a defendant waives his or her right to confrontation under the Sixth Amendment to the United States Constitution.
5. Under the facts of this case, the defendant waived his right to confrontation under the Sixth Amendment to the United States Constitution when he opened the door to the otherwise inadmissible hearsay testimony.
6. A defendant challenging a trial court's failure to redact an interrogation tape to remove false statements must have preserved the issue at trial. Absent an objection to the admissibility of the false statements before the interrogation tape is played to the jury, the defendant has not preserved the issue for appeal.
7. When a suspect makes a statement which might be ambiguous as to whether the suspect is asserting a right to remain silent or to confer with counsel, the interrogator may ask questions to clarify, but the interrogator is not required to clarify and may continue the questioning.
8. A defendant cannot prevail by presenting on appeal reasons for suppressing evidence that were not presented to the trial court.
Appeal from Sedgwick District Court; BENJAMIN L. BURGESS, judge. Opinion filed May 18, 2007. Affirmed in part, reversed in part, and remanded with directions.
Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant.
Leslie Isherwood and Kristi L. Barton, assistant district attorneys, Nola Tedesco Foulston, district attorney, and Phill Kline, attorney general, for appellee.
Before BUSER, P.J., GREEN and MARQUARDT, JJ.
GREEN, J.: Demetrius Birth appeals his jury trial convictions and sentences for aggravated burglary and robbery. First, Birth argues that the admission of hearsay statements of a witness who was not called by the State to testify at trial violated his right to confrontation under the Sixth Amendment to the United States Constitution. Nevertheless, under State v. Fisher, 283 Kan. ___, 154 P.3d 455 (2007), Birth waived his right to confrontation when he opened the door to the hearsay evidence during cross-examination of a witness. Next, Birth challenges the trial court's failure to redact an interrogation tape to remove false statements before the tape was played to the jury. Nevertheless, Birth's failure to preserve this issue at trial prevents this court from addressing his argument on appeal.
Birth raises a number of other arguments in his brief, including the following: that the prosecutor committed misconduct; that the trial court should have suppressed the interrogation tape; that there was insufficient evidence for the jury to convict Birth of aggravated burglary; that there was cumulative error; that the trial court erred in failing to consider Birth's financial circumstances before assessing fees to reimburse the Board of Indigents' Defense Services (BIDS) for attorney fees; and that the trial court erred in including Birth's prior convictions in his criminal history. Nevertheless, the only issue with merit concerns the trial court's failure to consider Birth's financial circumstances before assessing BIDS fees. Based on our Supreme Court's recent decision in State v. Robinson, 281 Kan. 538, 132 P.3d 934 (2006), the case must be remanded to the trial court to consider on the record at the time of assessing BIDS fees under K.S.A. 2006 Supp. 22-4513 the financial resources of Birth and the nature of the burden that payment of the fees will impose. Accordingly, we affirm in part, reverse in part on the BIDS issue, and remand to the trial court to comply with Robinson.
Hezzie Kendrick, the victim in this case, had developed what he characterized as a relationship with Amber Williams. Kendrick called and text messaged Williams frequently and loaned money to her on several occasions. Although Williams told Kendrick at one point that she wanted to end the relationship and even threatened to call the police, Kendrick continued calling and text messaging Williams.
One evening in October 2004, Williams came to Kendrick's apartment and asked him for money. Kendrick told Williams that he did not have any money. Kendrick and Williams left the apartment together to go to the liquor store. When they returned to the apartment, Williams used Kendrick's phone and then left Kendrick's apartment to go to the store. When Williams returned to Kendrick's apartment, Williams unlocked Kendrick's front door several times after Williams locked it. Kendrick finally locked the door, and he and Williams went to his bedroom to watch television. Approximately 20 minutes later, Kendrick heard a knock on his door. Although Williams told Kendrick not to answer the door, Kendrick opened the door.
At trial, Kendrick testified that when he opened the door, he was immediately confronted by two men. Kendrick testified that he was pushed back into his apartment and told that this was going to be a robbery. Both of the men entered Kendrick's apartment. At trial, Kendrick identified Birth as the man who pushed him inside his apartment. Kendrick was ordered to strip to his underwear. Kendrick lay on his bed while the men demanded money and items from Kendrick. According to Kendrick, the men told him that if he did not cooperate, they were going to shoot or kill him.
Kendrick testified at trial that he never saw a gun but that he saw the men make hand movements indicating that they might be concealing a gun. Nevertheless, Kendrick told the interviewing detective that one of the men had pointed a black semiautomatic handgun at him. A gun was never discovered by the police.
Kendrick testified that he saw Birth in his bedroom looking through drawers, going through his closet, and putting items in bags. Kendrick further testified that the other man was in the living room the majority of the time. A stereo was taken from Kendrick's bedroom. In addition, Birth demanded Kendrick's car keys. Birth ordered the other man to stand at the bedroom door and watch Kendrick while Birth left the bedroom. After telling Birth where the car keys were, Kendrick did not see Birth again. The man wiped down the doorknob and other objects in the apartment to remove fingerprints. The man told Kendrick not to call the police and left the apartment. Approximately 15 minutes later, Kendrick called the police. Kendrick discovered that a set of car keys was missing from his living room and that his car had been stolen.
In investigating Kendrick's report, Detective Dave Alexander thought it was strange that Williams had been at Kendrick's apartment but had not contacted the police. Alexander later discovered an incident report that occurred the day after the robbery involving Williams and two men, Robert Rayford and Birth. A fingerprint taken off of a box in Kendrick's closet matched that of Rayford. In addition, Kendrick's car was found approximately one block from an apartment complex where Birth had been staying. Alexander assembled two photo lineups, one containing Birth's picture and the other containing Rayford's picture. Nevertheless, Kendrick was unable to pick Birth out of the photo lineup. Rayford and Birth were arrested and interviewed separately by Alexander.
Rayford's Statement
Rayford told Alexander that Birth had gotten upset over a man who was calling Williams. Birth had planned to rob the man. Williams, Rayford, and Birth then went to Kendrick's apartment complex. When they arrived, Williams went inside the apartment complex while Rayford and Birth waited in the parking lot. Rayford saw Williams and a man leave in a car. After they returned, Rayford and Birth walked to Kendrick's apartment. Birth knocked on the door. Rayford stated that Birth was holding something in his hand but that Rayford could not see what the object was. When a man opened the door, Birth immediately went through the doorway and told the man something. The man got down on the floor of his living room.
Rayford told Alexander that shortly after he and Birth went inside the apartment, Birth and Kendrick went into the bedroom. Rayford and Williams stayed in the living room. Williams took liquor from the apartment and left. Rayford stated that he took a stereo at Birth's direction and carried it down to the car. When Rayford returned to the apartment, Birth ordered him to watch Kendrick and not let him leave. Birth proceeded to look for Kendrick's car keys. After Birth found Kendrick's car keys, Birth left the apartment. Rayford said that he left the apartment 5 to 10 minutes later.
Birth's Statement
During his interview, Birth initially denied ever meeting Kendrick or talking to him on the phone. Moreover, Birth denied ever being at Kendrick's apartment complex. Later in the interview, however, Birth said that he and Rayford had gone with Williams to Kendrick's apartment complex so that Williams could get money from Kendrick. Birth stated that he and Rayford had gone with Williams as protection and had waited in the parking lot. Alexander told Birth that the police had found Birth's and Rayford's fingerprints in Kendrick's apartment and Birth's fingerprints in Kendrick's car. Moreover, Alexander told Birth that video surveillance from the apartment complex parking lot showed Birth and Rayford walking towards the apartment complex. Those statements by Alexander were not true. Birth told Alexander that he and Rayford had walked on opposite sides of the apartment building and that Rayford might have gone inside the apartment.
After Alexander took a break in the interview, Birth changed his story and stated that he had previously talked to Kendrick on the phone. Birth further stated that he had gone inside Kendrick's apartment to request that Kendrick stop text messaging Williams. Birth said that he never had any intent to steal from Kendrick. Birth told Alexander that he was in the bedroom speaking with Kendrick and did not know what Rayford was doing in the living room. Birth said that when they left the apartment, Rayford had a bag that he did not have when he entered the apartment. Moreover, Birth told Alexander that Rayford drove Kendrick's car when they left the apartment.
Birth was charged with aggravated robbery in violation of K.S.A. 21-3427 and aggravated burglary in violation of K.S.A. 21-3716. Birth moved to suppress his statements made during his interrogation. After holding an evidentiary hearing, the trial court found that Birth's statements were voluntary and denied Birth's motion to suppress.
Birth's Testimony
At trial, Birth testified that he actually met Kendrick on two occasions. Birth testified that previous to the incident in question, Williams had introduced them outside of Kendrick's apartment, and he had asked Kendrick to stop calling Williams. Nevertheless, Kendrick kept calling and text messaging Williams. Birth testified that when he went back to Kendrick's apartment on the date in question, he knocked on Kendrick's door in order to get Williams to accompany him to a bar. Birth testified that Kendrick let him and Rayford inside the apartment and told them that Williams was in the back room. Once inside Kendrick's apartment, Birth requested that Kendrick stop calling and text messaging Williams.
The jury convicted Birth of robbery, the lesser included offense of aggravated robbery, and aggravated burglary. Birth was sentenced to 57 months in prison.
I. Did the admission of hearsay statements violate the Confrontation Clause?
First, Birth contends that the admission of the hearsay statements of Rayford, who was not called as a witness by the State and thus was not available for cross-examination at trial, violated Birth's rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution. An appellate court's "standard of review of a claimed violation of the Confrontation Clause of the United States Constitution because of the 'unavailability' of a witness is a question of law, which [an appellate court] review[s] de novo. [Citation omitted.]" State v. Saleem, 267 Kan. 100, 107, 977 P.2d 921 (1999).
At trial, over Birth's objection, the trial court allowed the State to question Alexander about Rayford's statements during his interview on the basis that Birth had "opened the door" to such testimony on cross-examination. The trial court limited the State's redirect examination to the scope of the questions asked by Birth on cross-examination. During redirect examination, the State elicited testimony from Alexander about Rayford's statements implicating Birth in planning and executing the robbery at Kendrick's apartment. Although the State had earlier endorsed Rayford as a witness, Rayford never testified at trial.
Citing Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), Birth maintains that the admission of Rayford's testimonial hearsay statements violated his rights under the Confrontation Clause. The Sixth Amendment to the United States Constitution states that in all criminal prosecutions, the accused shall enjoy the right to be confronted by the witnesses against him or her. State v. Meeks, 277 Kan. 609, 613, 88 P.3d 789 (2004). The United States Supreme Court in Crawford held that the Confrontation Clause bars witnesses' testimonial out-of-court statements that are offered to prove the truth of the matter asserted unless (1) the witnesses are unavailable and (2) the defendants had prior opportunity to cross-examine those witnesses. See Meeks, 277 Kan. at 614.
Nevertheless, the United States Supreme Court in Crawford continued to accept the rule of forfeiture by wrongdoing, which "extinguishes confrontation claims on essentially equitable grounds." 541 U.S. at 62. Citing Reynolds v. United States, 98 U.S. 145, 158, 25 L. Ed. 244 (1878), our Supreme Court in Meeks, 277 Kan. at 614-15, stated as follows:
"'The Constitution gives the accused the right to a trial at which he should be confronted with the witnesses against him; but if a witness is absent by his own [the accused's] wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away. The Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts. It grants him the privilege of being confronted with the witnesses against him; but if he voluntarily keeps the witnesses away, he cannot insist on his privilege. If, therefore, when absent by his procurement, their evidence is supplied in some lawful way, he is in no condition to assert that his constitutional rights have been violated.'"
Here, it is undisputed that Rayford's statements were testimonial as they were the product of a police interrogation. See Crawford, 541 U.S. at 68 (stating that testimonial evidence "applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations"). Moreover, Rayford was never called as a witness at trial. Furthermore, there was never an argument made that the admission of Rayford's statements came within the rule of forfeiture by wrongdoing.
Nevertheless, the State maintains that the admission of Rayford's hearsay statements did not violate Crawford because Birth had the opportunity to confront Rayford. To support its argument, the State cites State v. Corbett, 281 Kan. 294, 303-04, 130 P.3d 1179 (2006), where our Supreme Court held that Crawford did not apply to the admission of two witnesses' deposition transcripts because the witnesses were available for cross-examination and testified at trial. Our Supreme Court considered K.S.A. 60-460, which states in relevant part:
"Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay and inadmissible except:
"(a) Previous statements of persons present. A statement previously made by a person who is present at the hearing and available for cross-examination with respect to the statement and its subject matter, provided the statement would be admissible if made by declarant while testifying as a witness."
Our Supreme Court stated that the language of K.S.A. 60-460(a), "which limits the application of the statute to 'a person who is present at the hearing and available for cross-examination,' specifically protects the defendant's right to confrontation by requiring the person to be available for cross-examination at trial." 281 Kan. at 303-04. Our Supreme Court thus held that "the application of K.S.A. 60-460(a) negates the application of Crawford." 281 Kan. at 304.
The holding in Corbett is inapplicable here because Rayford was never made available for cross-examination at trial. The State never called Rayford as a witness. In State v. Fisher, 222 Kan. 76, Syl. ¶ 5, 563 P.2d 1012 (1977), our Supreme Court held that a "declarant must testify at trial before hearsay evidence of his out-of-court statements may be admitted under K.S.A. 60-460(a)." Our Supreme Court later modified this rule in State v. Davis, 236 Kan. 538, 541, 694 P.2d 418 (1985), where it held that if a declarant is available and actually testifies at trial, hearsay evidence of his out-of-court statements can be admitted before or after the declarant testifies. Here, because Rayford was not called to testify as a witness at trial, hearsay evidence of his out-of-court statements was inadmissible under K.S.A. 60-460(a). See State v. Wilson, 35 Kan. App. 2d 333, 338, 130 P.3d 139 (2006) (holding that trial court erred in admitting hearsay statements under K.S.A. 60-460[a] when declarant was not called to testify at trial).
Nevertheless, the trial court did not admit Rayford's hearsay statements under K.S.A. 60-460(a). As discussed above, the trial court admitted the hearsay statements because Birth had "opened the door" to such testimony.
Arguing that the trial court erroneously admitted Rayford's hearsay statements, Birth cites United States v. Cromer, 389 F.3d 662 (6th Cir. 2004). In Cromer, the Sixth Circuit Court of Appeals held that the admission of testimonial hearsay evidence during the State's redirect examination violated the defendant's right to confrontation even though the defendant opened the door to such evidence during cross-examination. The Sixth Circuit Court of Appeals recognized that the trial court's admission of the hearsay testimony on the basis that the defendant had opened the door to such evidence might have been proper under modern evidence law. Nevertheless, the Cromer court recognized that Crawford demonstrated that "the Confrontation Clause, when properly applied, is not dependent upon 'the law of Evidence for the time being.'" 389 F.3d at 678 (quoting Crawford, 124 S. Ct. at 1364, 1370). Thus, the relevant question was not whether the hearsay statements were properly admitted under the law of evidence. Rather, the question was whether the defendant's right to confrontation was violated by the witness' redirect testimony. Recognizing that a defendant forfeits his or her right to confrontation only when his or her own wrongful conduct causes his or her inability to confront the witnesses, the Cromer court stated:
"If there is one theme that emerges from Crawford, it is that the Confrontation Clause confers a powerful and fundamental right that is no longer subsumed by the evidentiary rules governing the admission of hearsay statements. Thus, the mere fact that Cromer may have opened the door to the testimonial, out-of-court statement that violated his confrontation right is not sufficient to erase that violation. In this, too, we agree with Professor Friedman, who has postulated that a defendant only forfeits his confrontation right if his own wrongful conduct is responsible for his inability to confront the witness. Friedman, Confrontation, 86 Geo. L.J. 1031. If, for example, the witness is only unavailable to testify because the defendant has killed or intimidated her, then the defendant has forfeited his right to confront that witness. A foolish strategic decision does not rise to the level of such misconduct and so will not cause the defendant to forfeit his rights under the Confrontation Clause." 389 F.3d at 679.
Cromer leaves no doubt that ill-advised decisions by a defense counsel should not be the basis for a defendant forfeiting his or her fundamental right of confrontation. The Cromer court held that the hearsay testimonial statements elicited by the State during redirect examination violated the defendant's right to confront the witnesses against him. 389 F.3d at 679.
The major premise that underlies Cromer is as follows:
No defendant may forfeit his or her right of confrontation unless the defendant kills, intimidates, or procures the absence of the witness.
This major premise, however, conflicts with the "open the door" rule applied in this jurisdiction. Our Supreme Court has firmly followed the "open the door" rule:
"[W]hen a defendant opens an otherwise inadmissible area of evidence during the examination of witnesses, the prosecution may then present evidence in that formerly forbidden sphere. [Citations omitted.] By opening the door to otherwise inadmissible hearsay, a defendant waives the Sixth Amendment right to confrontation." State v. Johnson, 258 Kan. 475, 481, 905 P.2d 94 (1995).
In Johnson, the defendant elicited hearsay testimony concerning a conversation with a declarant who was unavailable to testify. The defendant objected when the State attempted to elicit testimony about the same hearsay statements. The trial court determined that the defendant had opened the door to such testimony and allowed the evidence to be admitted. Our Supreme Court affirmed the trial court, holding that a defendant waives his or her right to confrontation by opening the door to otherwise inadmissible hearsay. 258 Kan. at 481.
Although Johnson was decided before Crawford, the language in Johnson is clear that a defendant waives his or her right to confrontation by opening the door to inadmissible hearsay.
Other jurisdictions that have decided cases after Crawford have applied a similar "open the door" rule in holding that there is no Confrontation Clause violation when the defendant has opened the door to the admission of the hearsay testimony. For instance, in People v. Ko, 789 N.Y.S.2d 43, 15 A.D.3d 173 (2005), the New York Supreme Court found no violation of the defendant's right to confrontation under Crawford by the admission of a testimonial hearsay statement when the defendant had opened the door to the admission of the statement. See also State v. Robinson, 146 S.W.3d 469, 493 (Tenn. 2004) (no Confrontation Clause violation under Crawford where defendant opened door to hearsay testimony); Tinker v. State, 932 So. 2d 168, 187-88 (Ala. Crim. App. 2005) (because defendant opened door to details of declarant's statement, defendant cannot now complain that State's introduction of entire statement violated Confrontation Clause and Crawford).
Recently, our Supreme Court in State v. Fisher, 283 Kan.___, 154 P.3d 455 (2007), followed the "open the door" rule from Johnson in rejecting the defendant's argument that his right to confrontation had been denied under Crawford by the admission of hearsay testimony. By opening the door to the hearsay evidence, the defendant in Fisher had forfeited his right to confrontation and had waived any hearsay objections. Our Supreme Court found no error in the admission of the hearsay evidence. 283 Kan. at ___.
Similar to the defendant in Fisher, Birth opened the door to the hearsay evidence. Birth elicited testimony concerning Rayford's statements during cross-examination of Alexander but then objected when the State announced its intention to question Alexander about those hearsay statements. Under Fisher, Birth waived his right to confrontation under the Sixth Amendment Confrontation Clause when he opened the door to the hearsay testimony. This court is duty bound to follow our Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Beck, 32 Kan. App. 2d 784, 788, 88 P.2d 1233, rev. denied 278 Kan. 847 (2004). Therefore, we determine that the trial court properly admitted Rayford's hearsay statements into evidence.
II. Should false statements in the interrogation tape have been admitted into evidence?
Next, Birth maintains that the trial court violated his constitutional right to due process when it allowed the State to present false material to the jury. Birth points out that on the interrogation tape that was played to the jury, Detective Alexander made the following false statements to Birth: (1) that Birth's fingerprints were found in Kendrick's apartment; (2) that Birth's fingerprints were found in the driver's side of Kendrick's car; (3) that Kendrick had stated that Birth had a gun; and (4) that Rayford had stated that Birth used a gun. Birth maintains that this false material should have been redacted from the interrogation tape before it was played to the jury.
In arguing that the false statements should not have been presented to the jury, Birth cites State v. Elnicki, 279 Kan. 47, 105 P.3d 1222 (2005). In Elnicki, however, defense counsel objected to the statements in the interrogation tape and moved to redact the statements before the interrogation tape was played to the jury. Here, Birth did not object to the false statements before the interrogation tape was played to the jury. Moreover, Birth fails to cite any place in the record where he asked for redaction of the statements from the interrogation tape.
Similarly, in State v. Anthony, 282 Kan. 201, 145 P.3d 1 (2006), the defendant attempted to rely on Elnicki in arguing that the videotape of his interrogation should have been redacted to remove the detective's repeated comments concerning the defendant's lack of credibility or veracity. Nevertheless, different from Elnicki, the videotape in Anthony was played for the jury at trial without objection. Our Supreme Court held that in the absence of an objection before the trial court, the evidentiary issue was not preserved for appeal. Our Supreme Court noted that an appellate court cannot assume that the playing of an unredacted interrogation videotape for the jury is something the defense wanted to avoid. Our Supreme Court stated that it did not regard an Elnicki issue as one that must be addressed to serve the ends of justice or prevent a denial of fundamental rights. 282 Kan. at 212-13. Instead, it adhered to the general rule "that a challenge to the admissibility of evidence will not be considered for the first time on appeal. [Citation omitted.]" 282 Kan. at 213-14.
Under Anthony, Birth did not preserve this issue for appeal because he failed to object to the admissibility of the false statements in the interrogation tape before the tape was played to the jury at trial. This court is duty bound to follow our Supreme Court precedent, absent some indication the court is departing from its previous position. Beck, 32 Kan. App. 2d at 788. Following our Supreme Court precedent in Anthony, we decline to address Birth's argument on appeal.
III. Was there prosecutorial misconduct?
Next, Birth contends that the prosecutor committed prosecutorial misconduct and denied Birth his right to a fair trial. A contemporaneous objection to alleged prosecutorial misconduct is not required in order to preserve the issue for appeal; an appellate court will apply the same standard of review regardless of whether the defendant lodged an objection. State v. Swinney, 280 Kan. 768, 779, 127 P.3d 261 (2006).
An appellate court's review of an allegation of prosecutorial misconduct requires a two-step analysis. First, the appellate court decides whether the comments were outside the wide latitude that the prosecutor is allowed when discussing the evidence. Second, the appellate court decides whether those comments constitute plain error, that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. Elnicki, 279 Kan. at 58.
A. Were the comments outside the wide latitude allowed the prosecutor?
1. Comments on Birth's Credibility and Bolstering the Credibility of State's Witnesses
Birth argues that the prosecutor, during closing arguments, improperly expressed his personal opinion and vouched for the credibility of Kendrick's and Rayford's statements. Moreover, Birth contends that the prosecutor improperly commented that Birth fabricated his story.
The Kansas Rules of Professional Conduct and the American Bar Association Standards of Criminal Justice indicate that it is improper for an attorney to vouch for the credibility of a witness. See State v. Pabst, 268 Kan. 501, 996 P.2d 321 (2000). "'The Kansas Rules of Professional Conduct (KRPC) unequivocally state that an attorney shall not state a personal opinion as to the credibility of a witness or as to the guilt or innocence of the accused. KRPC 3.4 ([2002] Kan. Ct. R. Annot. [416]) (fairness to opposing party and counsel).' [Citation omitted.]" State v. Hankerson, 34 Kan. App. 2d 629, 636, 122 P.3d 408, rev. denied 281 Kan. __ (2006). "The point of not allowing a prosecutor to comment on the credibility of a witness is that expressions of personal opinion by the prosecutor are