State v. Rodriguez

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 103,467

STATE OF KANSAS,
Appellee,

v.

JAIME RODRIGUEZ,
Appellant.


SYLLABUS BY THE COURT

1.
Lesser included offense instructions are governed by K.S.A. 22-3414(3), and such
an instruction must be given in cases where there is some evidence, emanating from
whatever source and proffered by whichever party, that would reasonably justify a
conviction of some lesser included crime. The court's duty to instruct on lesser included
crimes is not foreclosed or excused because the lesser included crime may be inconsistent
with the defendant's theory of defense.

2.
To determine whether a lesser included offense instruction should have been
given, an appellate court views the evidence in a light most favorable to the defendant. If,
however, all the evidence taken together shows that the offense, if committed, was clearly
of the higher degree, an instruction on a lesser degree of the offense is not necessary.

3.
When a defendant does not seek the inclusion of a lesser included offense
instruction at trial, that failure does not prevent appellate review if the error is clearly
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erroneous. To determine whether an instruction or a failure to give an instruction was
clearly erroneous, the reviewing court must first determine whether there was any error at
all. To make that determination, the appellate court must consider whether the subject
instruction was legally and factually appropriate, employing an unlimited review of the
entire record.

4.
In a felony-murder prosecution based on the underlying felony of child abuse,
when there is no evidence of reckless conduct causing the victim's ultimately fatal
injuries, lesser included offense instructions for reckless second-degree murder and
reckless involuntary manslaughter need not be given.

5.
A jury instruction defining child abuse based on PIK Crim. 3d 58.11 is not
erroneous when it does not make shaking and great bodily harm synonymous, and it
correctly informs members of the jury that they must find a causal relationship between
the shaking and the great bodily harm in order to convict.

6.
The standard of review for the admission of photographic evidence requires an
appellate court to first determine whether the photographs were relevant. If a party argues
that the photographs were overly repetitious, gruesome, or inflammatory, that is to say,
prejudicial, the standard of review is abuse of discretion.

7.
An appellate court reviews a question of whether evidence is cumulative for an
abuse of discretion.

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8.
Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or
unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial
court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal
conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does
not support a factual finding on which a prerequisite conclusion of law or the exercise of
discretion is based. The burden of showing an abuse of discretion rests with the party
asserting the error.

9.
It is not an abuse of discretion to admit autopsy photographs that show multiple
views of internal physical injuries and assist a pathologist in explaining his or her
conclusion on the nature of the trauma suffered by the victim and the cause of death, even
if the photographs are gruesome and the pathologist has described the injuries to the jury.

10.
A State expert's reference to a defense expert's opinion as "hogwash" is improper,
because it is a comment on the credibility of another witness. But, considered alone and
in context, it does not constitute an opinion on guilt or innocence of the defendant. It also
does not require a new trial when it is isolated and limited in scope, when the district
judge immediately reacts and ensures no repeat of the problem, when the witness
confines subsequent testimony to appropriate subjects, and when the jury was able to
make its own credibility determination.

Appeal from Wyandotte District Court; JOHN J. MCNALLY, judge. Opinion filed December 7,
2012. Affirmed.

Joanna Labastida, of Kansas Appellate Defender Office, argued the cause and was on the brief
for appellant.
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Sheryl L. Lidtke, chief deputy district attorney, argued the cause, and Jerome A. Gorman, district
attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

BEIER, J.: Defendant Jaime Rodriguez appeals his conviction of first-degree
felony murder in the death of his 5-month-old son, Louie. He argues that the district court
judge erred by failing to instruct sua sponte on reckless second-degree murder and
reckless involuntary manslaughter, by giving an incorrect jury instruction on child abuse,
by admitting gruesome photographs that were unduly graphic and cumulative, and by
denying his motion for new trial.

We hold that there was no error and affirm Rodriguez' conviction.

FACTUAL AND PROCEDURAL BACKGROUND

Louie was the son of Corrine Quinonez and defendant Rodriguez; he died
December 17, 2006. He had been in poor health during his 5 months of life, spending the
first of them in a neonatal intensive care unit and then making several visits to doctors for
a variety of problems.

Approximately 1 week before his death, Louie's mother took him to the
emergency room because, according to her, Louie had "ballooned up beyond recognition
and he was having extreme difficulty breathing." Louie was treated and sent home with a
prescription for steroids, but his mother could not afford to fill the prescription.

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Two days later, Louie was home with both of his parents. His mother prepared a
bottle of formula, but Louie consumed less than usual. About 3 p.m., Louie's mother left
Louie at home with Rodriguez. When she returned about an hour later, Rodriguez was
frantic and on the phone with a 911 operator, and he yelled that Louie was not breathing.

When paramedics arrived, Louie's mother was performing mouth-to-mouth
resuscitation on Louie. The paramedics took over and observed that Louie was gasping
and that his lips were blue. Louie's mother told the paramedics that she thought Louie
was having an allergic reaction. Rodriguez said nothing. The paramedics rushed Louie to
Providence Medical Center in Kansas City.

Upon Louie's arrival at Providence, Dr. Marianna Poulose placed a tube down his
throat to administer oxygen. Louie was limp and unresponsive and had blood in the
whites of his eyes. Another doctor administered epinephrine to help with Louie's heart
function. In addition, the doctors ordered a chest X-ray and conducted blood tests. After
20 minutes, Louie was air-lifted to Children's Mercy Hospital in Kansas City, Missouri,
for specialized care.

At Children's Mercy, Louie was placed on a ventilator to stabilize his oxygenation.
Dr. Patricia Webster noticed that Louie's "soft spot" on his head was tense and bulging,
suggesting that there was excessive pressure inside his skull. A CT scan revealed
significant blood around the surface of Louie's brain and extreme swelling of the brain
itself. Webster also saw blood in Louie's left eye. She believed his injuries were
consistent with those of a shaken baby. Dr. Michael Moran and Dr. Laura Plummer also
examined Louie the day after he was admitted to Children's Mercy.

Rodriguez told hospital personnel and investigators that he had been asleep in bed
with Louie while Louie's mother was gone. When Louie awoke, Rodriguez got up and
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changed Louie's diaper, then went to the kitchen to dispose of the diaper. When
Rodriguez returned to the bedroom moments later, Louie was unresponsive and was
having difficulty breathing. Rodriguez called 911.

Within a few days of Louie's arrival at Children's Mercy, he was pronounced brain
dead, and his mother approved removal of life support. Dr. Erik Mitchell, a forensic
pathologist, conducted Louie's autopsy.

Rodriguez was charged with first-degree felony murder with child abuse as the
underlying felony. His first trial ended in a hung jury, and he was retried.

At the retrial, the State put on several doctors who treated or reviewed Louie's
condition before his death. Webster testified that it was her opinion vigorous shaking had
caused Louie's injuries, which were consistent with "nonaccidental trauma." Moran
testified that he had reviewed Louie's CT scans and that they showed Louie's brain was
"massively swollen," causing the bones of his skull to separate. Moran concluded that
Louie's injuries were the result of "intentionally inflicted head trauma." Plummer testified
that Louie had multilayered hemorrhaging of the eyes and that this type of injury was
consistent with "shaken baby nonaccidental trauma."

The district judge conducted a hearing outside the presence of the jury regarding
four autopsy photos the State planned to offer as evidence. Three photos showed Louie's
scalp pulled back; the fourth was taken after Louie's skull had been removed and showed
his brain covered in coagulated blood. Defense counsel objected to the admission of the
photos, arguing that they were "very prejudicial" because of their graphic nature, that
their prejudicial effect "far outweigh[ed] any probative value," and that the photos would
inflame the jurors' passions. The district judge overruled the objection.

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Defense counsel renewed the objection to the photos when they were offered into
evidence during Mitchell's testimony, and the renewed objection also was rejected.
Mitchell testified that Louie had blood between his skull and his brain. Because there was
no bleeding elsewhere in the brain, Mitchell concluded that Louie suffered some form of
trauma, either a direct impact or as a consequence of rotational movement, i.e., shaking.

Rodriguez' sole witness in the second trial was Dr. Mohammed Al-Bayati, a
pathologist and toxicologist, who testified that his review of Louie's medical history and
the hospital records suggested that an infection was the cause of Louie's death,
specifically, whooping cough. Al-Bayati based his conclusions in part on fluctuation of
Louie's weight and height measurements between doctor visits. Al-Bayati's conclusions
relied in part on his belief that Louie's brain was not swollen when Louie was admitted to
the hospital, a belief based on his misreading of Louie's CT scan report. During cross-
examination, the prosecutor pointed out that Al-Bayati missed the fact that Louie had
shown signs of brain swelling when admitted. Al-Bayati acknowledged the mistake, but
he stood by his conclusion that Louie died as a result of an infection.

The State called Mitchell to the stand as a rebuttal witness. When asked what he
disagreed with regarding Al-Bayati's conclusions, Mitchell stated, "It's actually hard to
start because it was an incredible mix of fact and misinterpretation." Mitchell described
Al-Bayati's discussion regarding the fluctuation in Louie's height as "hogwash." The
district judge then interrupted Mitchell and instructed counsel to approach the bench; the
judge told counsel that he was not going to allow Mitchell to "just tak[e] shots" at Al-
Bayati. Mitchell's subsequent testimony focused on his disagreement with Al-Bayati's
analysis.

Defense counsel did not object to the district judge's proposed jury instructions or
request any lesser included offense instructions. The jury's child abuse instruction was
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modeled on PIK Crim. 3d 58.11 and required proof "1. That the defendant intentionally
shook a child to-wit: Louie Rodriguez, which resulted in great bodily harm to said child;
2. That said child was under the age of 18 years." Rodriguez' jury also was instructed that
"[g]reat bodily harm means something more than slight, trivial, minor or moderate bodily
harm and does not include mere bruises."

During deliberations, the jury sent a question to the judge about whether it could
arrive at a verdict on a lesser charge. The prosecutor suggested that the judge respond that
"in this case there are no lesser offenses." Defense counsel agreed, saying the instructions
"should be all or nothing." The district court then informed the jury that there were no
lesser charges.

After the jury reached its guilty verdict, Rodriguez filed a motion for new trial. He
argued that there was insufficient evidence to convict him and that Mitchell's rebuttal
testimony expressed an improper opinion on the credibility of another witness. The
district judge rejected the motion, characterizing the evidence in support of guilt as
"substantial." The judge agreed that Mitchell's reference to "hogwash" was inappropriate,
but the judge did not believe the reference changed the outcome of the case.

DISCUSSION

Lesser Included Offense Instructions

Rodriguez' first claim of error focuses on the district judge's omission of jury
instructions on reckless homicides, both second-degree murder and involuntary
manslaughter.

Lesser included offense instructions are governed by K.S.A. 22-3414(3):
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"In cases where there is some evidence which would reasonably justify a conviction of
some lesser included crime as provided in subsection (2) of K.S.A. 21-3107, and
amendments thereto, the judge shall instruct the jury as to the crime charged and any such
lesser included crime." K.S.A. 22-3414(3).

In other words, lesser included offense instructions must be given when there is
some evidence, emanating from whatever source and proffered by whichever party, that
would reasonably justify a conviction of some lesser included crime. State v. Simmons,
295 Kan. 171, Syl. ¶ 3, 283 P.3d 212 (2012); see State v. Williams, 295 Kan. __, 286 P.3d
195, 205 (2012) ("[T]he giving of lesser included crime instructions is not a matter of
discretion with the trial judge."). "The court's duty to instruct on lesser included crimes is
not foreclosed or excused just because the lesser included crime may be inconsistent with
the defendant's theory of defense." Simmons, 283 P.3d 212, Syl. ¶ 3. To determine
whether a lesser included offense instruction should have been given, this court views the
evidence in a light most favorable to the defendant. State v. Tahah, 293 Kan. 267, 273,
262 P.3d 1045 (2011). These standards apply to first-degree felony murder in the same
way that they apply to other crimes. State v. Berry, 292 Kan. 493, 513, 254 P.3d 1276
(2011) (disapproving judicially created exception for felony-murder prosecutions).

Rodriguez did not request any lesser included offense instructions at trial. We
recently outlined the analytical framework for jury instruction issues that arise for the
first time on appeal:

"K.S.A. 22-3414(3) establishes a preservation rule for instruction claims on
appeal. It provides that no party may assign as error a district court's giving or failure to
give a particular jury instruction, including a lesser included crime instruction, unless: (a)
that party objects before the jury retires to consider its verdict, stating distinctly the
matter to which the party objects and the grounds for objection; or (b) the instruction or
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the failure to give the instruction is clearly erroneous. If an instruction is clearly
erroneous, appellate review is not predicated upon an objection in the district court."

"To determine whether an instruction or a failure to give an instruction was
clearly erroneous, the reviewing court must first determine whether there was any error at
all. To make that determination, the appellate court must consider whether the subject
instruction was legally and factually appropriate, employing an unlimited review of the
entire record."

"If the reviewing court determines that the district court erred in giving or failing
to give a challenged instruction, then the clearly erroneous analysis moves to a
reversibility inquiry, wherein the court assesses whether it is firmly convinced that the
jury would have reached a different verdict had the instruction error not occurred. The
party claiming a clearly erroneous instruction maintains the burden to establish the degree
of prejudice necessary for reversal." Williams, 286 P.3d 195, Syl. ¶¶ 3-5.

Under this framework, there is no error, much less clear error, unless the full
record before us establishes that the omitted instructions on reckless homicides would
have been legally and factually appropriate.

The instructions were legally appropriate because second-degree murder and
involuntary manslaughter are lesser included offenses of first-degree murder. See State v.
Engelhart, 280 Kan. 113, 135, 119 P.3d 1148 (2005); PIK Crim. 3d 69.01. Unintentional
second-degree murder is a killing committed recklessly under circumstances manifesting
extreme indifference to the value of human life. K.S.A. 21-3402. Involuntary
manslaughter differs from second-degree murder only in the degree of recklessness
required to prove culpability. K.S.A. 21-3404. In a first-degree murder case, lesser
included offense instructions for second-degree murder or involuntary manslaughter must
be given to the jury if there is some evidence that would reasonably justify a conviction
for either charge. K.S.A. 22-3414(3).
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But the instructions about which Rodriguez complains were not factually
appropriate in this case. The State sponsored plentiful evidence that Louie was in his
father's sole care at the time he suffered his ultimately fatal injuries. The three physicians
who examined Louie were united in their opinions that those injuries were intentionally
inflicted. The pathologist who performed Louie's autopsy also agreed with this
assessment. There was no conflicting evidence supporting recklessness from either side
or even from Rodriguez' pretrial statements to Louie's health care providers or law
enforcement. At trial, Rodriguez relied on his expert for testimony supporting the
nonexistence of any criminal intent. In Al-Bayati's view, whooping cough was to blame
for Louie's death.

We recognize that we have required lesser included offense instructions even
when they are inconsistent with the theory of defense. See Simmons, 283 P.3d at 216-17
(simple battery instruction should have been given in aggravated battery case; jury should
decide how to classify evidence on manner in which defendant inflicted bodily harm,
despite "I-did-not-hit-her" trial defense); Tahah, 293 Kan. at 273 (second-degree murder,
involuntary manslaughter instructions should have been given in felony-murder case;
defendant's written and videotaped confessions admitted into evidence inconsistent with
defendant's story at trial). But the trial record in these earlier cases contained evidence to
support the lesser included instructions at issue.

We have no such evidence before us here, only appellate defense counsel's
speculation that the jury could have opted to believe Rodriguez did something to Louie
and that it qualified for the label of "reckless" rather than "intentional." The jury's
question supports an inference that at least some of its members would have liked to have
a compromise verdict available in this tragic case. But such a compromise would not
have been supported by sufficient evidence; indeed, it would not have been supported by
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any evidence. The evidence was not that Louie's injuries were simply the result of
trauma, perhaps recklessly inflicted, but rather that the injuries were the result of
intentionally inflicted trauma. "The extent of the injury did not permit a reasonable
conclusion that the injur[ies] occurred accidentally." State v. Heath, 264 Kan. 557, 573,
957 P.2d 449 (1998). In short, the only evidence before the jury excluded the lesser
included offenses. See Gaona, 293 Kan. at 951; Simmons, 282 Kan. at 743.

Because the lesser included offense instructions on reckless homicide that
Rodriquez raises on appeal would not have been factually appropriate at trial, there is no
error.

Instruction on Child Abuse

Rodriguez also challenges the jury instruction on child abuse. Because he did not
object to the wording of the instruction at trial, our analysis is the same as that outlined
for K.S.A. 22-3414(3) in our discussion of the previous issue.

Under K.S.A. 21-3609, child abuse is defined as "intentionally torturing, cruelly
beating, shaking which results in great bodily harm or inflicting cruel and inhuman
corporal punishment upon any child under the age of 18 years."

The district judge's instruction closely followed the statutory definition and was
drawn directly from PIK Crim. 3d 58.11. The jury also was told that "[g]reat bodily harm
means something more than slight, trivial, minor or moderate bodily harm and does not
include mere bruises."

Rodriguez argues that the instruction on child abuse nevertheless violated his right
to a fair trial because it did not require the jury to find every fact necessary to establish
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the crime of child abuse beyond a reasonable doubt. Specifically, Rodriguez argues that
the instruction deprived the jury of the opportunity to make a factual finding that great
bodily harm resulted from shaking. Instead, according to Rodriguez, the district court
instructed the jury that shaking a child automatically results in great bodily harm.
Rodriguez suggests that the instruction should have read:

"1. That the defendant intentionally shook a child to-wit: Louie Rodriguez
"2. That shaking resulted in great bodily harm to said child;
"3. That said child was under the age of 18 years."

"Ordinarily, whether a victim has suffered great bodily harm is a question of fact
for the jury to decide." Williams, 286 P.3d 195, Syl. ¶ 7. A district judge invades the
province of the jury "when, instead of simply instructing the jury on the law, he applies
the law to the facts he has determined." State v. Brice, 276 Kan. 758, 770, 80 P.3d 1113
(2003). "This is tantamount to a directed verdict for the prosecution, a result that is
condemned by the Constitution." 276 Kan. at 770.

Rodriguez relies exclusively on our 2003 State v. Brice decision to support his
argument. In Brice, defendant Derek Brice was convicted of aggravated battery. Brice
appealed, arguing that the jury instructions invaded the province of the jury. The
instruction at issue stated: "'As used in these instructions, the term Great Bodily Harm
means, a "through and through bullet wound."'" 276 Kan. at 762. Essentially, the district
court instructed the jury that a "through and through" bullet wound constituted great
bodily harm as a matter of law, 276 Kan. at 764, and this court explained that such an
instruction invaded the province of the jury as factfinder by instructing that the State's
evidence established an essential element of the charge, 276 Kan. 772.

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The instruction in Brice is not analogous to the instruction Rodriguez challenges
here. The child abuse instruction did not make shaking and great bodily harm
synonymous, and it correctly informed the members of the jury that they had to find a
causal relationship between the shaking and the great bodily harm. Moreover, Rodriquez'
suggested reformulation of the instruction would have told his jury nothing new,
different, or more clear. There was no error in the child abuse instruction as given.

Admission of Gruesome Photographs

Rodriguez also argues on this appeal that the autopsy photos were unduly graphic
and cumulative.

"The standard of review for the admission of photographic evidence requires the
appellate court to first determine whether the photos are relevant. If a party argued that
the photographs are overly repetitious, gruesome, or inflammatory, that is to say,
prejudicial, the standard of review is abuse of discretion." Riojas, 288 Kan. at 387.

This court also reviews a question of whether evidence is cumulative for an abuse
of discretion. State v. Dale, 293 Kan. 660, 663, 267 P.3d 743 (2011).

"'Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable,
i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is
based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion;
or (3) is based on an error of fact, i.e., if substantial competent evidence does not support
a factual finding on which a prerequisite conclusion of law or the exercise of discretion is
based.'" State v. Robinson, 293 Kan. 1002, 1027-28, 270 P.3d 1183 (2012) (quoting State
v. Ward, 292 Kan. 541, 550, 256 P.3d 801 [2011]).

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The burden of showing an abuse of discretion rests with the party asserting the
error. State v. Burnett, 293 Kan. 840, 853, 270 P.3d 1115 (2012).

Photographic evidence, like other evidence offered at trial, is relevant and
generally admissible if the photographs have a reasonable tendency to prove a material
fact in the case. State v. Miller, 284 Kan. 682, 698, 163 P.3d 267 (2007). Although they
may sometimes be gruesome, autopsy photographs that assist a pathologist in explaining
the cause of death are relevant and admissible. Riojas, 288 Kan. at 387; State v. Decker,
288 Kan. 306, 309, 202 P.3d 669 (2009); State v. Cavaness, 278 Kan. 469, 477, 101 P.3d
717 (2004). However, admitting gruesome photographs simply to "'inflame the minds of
the members of the jury'" is error. Riojas, 288 Kan. at 387 (quoting State v. Boyd, 216
Kan. 373, 377, 532 P.2d 1064 [1975]). We have also often said that admission of unduly
repetitious photographs can constitute an abuse of discretion. State v. Hill, 290 Kan. 339,
362, 228 P.3d 1027 (2010). The key, as with prejudice, is the word unduly. Cf. State v.
Clark, 261 Kan 460, 478, 931 P.2d 664 (1997) (prejudice expected; only undue prejudice
reversible). The admission of photographs in a murder case has rarely been held to be an
abuse of discretion. State v. Sappington, 285 Kan. 176, 195, 169 P.3d 1107 (2007).

Here the photographs were undeniably gruesome. The four images depicted a 5-
month-old baby at different stages of an autopsy. Three showed Louie's scalp pulled
back, exposing his skull. In one, Louie's skull had been removed in order to show his
brain and coagulated blood. In each of the photographs, Louie's skin and hairline were
visible.

But all four photographs assisted Mitchell in explaining the factors he relied upon
in reaching his conclusions on the nature of the trauma Louie suffered and on the cause of
his death. Because there was no external bruising, the true extent of the injuries was not
apparent until revealed by the autopsy, and the photographs visually memorialized
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Mitchell's internal physical findings, including separation of the bone plates, bleeding,
and swelling of the brain. Under these circumstances, the photographs, although
gruesome, were probative and not unduly prejudicial.

Rodriguez' second argument that the photographs were cumulative is based on his
belief that it was error to permit Mitchell to testify about Louie's injuries and then, in
effect, repeat his testimony by pointing to the images. "Cumulative evidence is evidence
of the same kind to the same point, and whether it is cumulative is to be determined from
its kind and character, rather than its effect." State v. Hickles, 261 Kan. 74, 88, 929 P.2d
141 (1996).

Rodriguez relies on an unpublished decision from our Court of Appeals, State v.
Glassburn-Hoesli, No. 89,441, 2004 WL 48175 (Kan. App. 2004), for the proposition
that evidence with little relevance beyond that of other evidence already heard by a jury
should be excluded as cumulative. We have previously read Glassburn-Hoesli somewhat
differently:

"Contrary to the defendant's argument, the court in Glassburn-Hoesli merely
affirmed a court's discretion to exclude additional evidence; it did not hold that the court
was required to do so. This reasoning is fully in keeping with our previous decisions,
which have found that although '[t]here are instances when the trial court may in the
exercise of its discretion refuse to admit testimony which is cumulative,' cumulative
evidence is not itself objectionable. [Citation omitted.]" Miller, 284 Kan. at 699.

The four photographs Rodriguez questions depicted Louie's internal injuries in a
way that Mitchell's mere words could not. In this way, they had additional relevance. In
addition, they were not repetitious of each other, because each was taken from a different
angle. See State v. Altum, 262 Kan. 733, 744, 941 P.2d 1348 (1997) ("All five autopsy
photographs show the child's head, but there are three distinctly different depictions . . . .
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Because there is probative value in each view, there is no undue repetition."). We thus do
not regard the photographs as cumulative and see no abuse of discretion in their
admission.

Motion for New Trial

Finally, Rodriguez argues that Mitchell's "hogwash" comment on rebuttal
expressed an improper opinion on the credibility of another witness, Al-Bayati, and that
the district judge erred when he did not grant a new trial on this basis. Rodriguez no
longer pursues the sufficiency claim he advanced in the district court.

This court reviews a district judge's decision on a motion for new trial for abuse of
discretion. State v. Rojas-Marceleno, 295 Kan. __, 285 P.3d 361, 372-73 (2012).

"A witness may not express an opinion on the credibility of another witness." State
v. Albright, 283 Kan. 418, 430, 153 P.3d 497 (2007). The determination of the
truthfulness of any witness is for the jury. 283 Kan. at 430-31; State v. Kuykendall, 264
Kan. 647, 651, 957 P.2d 1112 (1998) ("It is the function of the jury in a criminal case to
determine the weight and credit to be given the testimony of each witness, whether expert
or lay in nature."). It is also improper for a witness to offer an opinion as to the
defendant's guilt. See State v. Steadman, 253 Kan. 297, 304, 855 P.3d 919 (1993) (police
officer's testimony on opinion about defendant's guilt warranted new trial).

As the State concedes, Mitchell's barnyard description of Al-Bayati's opinion on
cause of death based on Louie's fluctuating height measurements was improper because it
was a statement about the credibility of another witness. But Rodriguez is incorrect that
Mitchell's comment also constituted an opinion on Rodriguez' guilt. Neither the statement
nor its context supports this further argument. Mitchell was critiquing Al-Bayati's
18



methodology and conclusion, which is the fair province of a competing expert. Mitchell
was not offering an opinion on guilt or innocence.

Did the "hogwash" error demand the cure of a new trial? It did not. The comment
was isolated and limited in scope; the district judge immediately reacted, ensuring no
repeat of the problem; Mitchell confined his subsequent testimony to appropriate
subjects; and the jury was able to make its own credibility determination, no doubt based
in part on the demonstrated error in Al-Bayati's review of Louie's condition. Under these
circumstances, no new trial was required in the interests of justice under K.S.A. 22-3501,
and the district judge did not abuse his discretion in denying Rodriguez' motion.

CONCLUSION

Defendant Jaime Rodriguez has not demonstrated the existence of any error
requiring reversal of his felony-murder conviction. The judgment of the district court is
therefore affirmed.