*1 87,805 No. Atkinson, L. a/k/a Kansas, Edward Appellee, Atkins, Eddie Appellant. 1143) (80 P.3d *2 filed December 2003.
Opinion Kaul, defender, cause, A. assistant Korey and Peter Ma- appellate argued defender, assistant was on the for harry, brief appellate appellant. Isherwood, cause, A. assistant district Lesley and Nola attorney, argued
Foulston, Stovall, district and Carla were with attorney, attorney general, J. on the brief for appellee. convicted, Per Curiam: Edward Atkinson was a jury following trial, 21-3502(l)(a). under K.S.A. On direct Atkin- rape appeal, son the trial court erred the Kansas shield argues applying statute, 21-3525, K.S.A. in a manner which violated his under rights the Due Process and Confrontation Clauses of the United States and Kansas Constitutions. The district court prohibited from witness whether cross-examining complaining regarding she had consensual intercourse with Atkinson the before the which Atkinson alleged rape, argues explained presence DNA; Atkinson’s whether she and Atkinson had sperm matching and her admitted falsehood to relationship; police their Atkinson also were relationship. argues rights violated when a nurse was asked to whether the opine complaining witness’ were consistent with the she physical injuries history gave the nurse. he there cumulative error. Finally, argues
The Court of these and affirmed his Appeals rejected arguments conviction. One dissented. This court Atkinson’s judge granted pe- tition 20-3018(b). for review to K.S.A. pursuant reverse, court that the district
We improperly applied finding on At- in a manner that statute Kansas shield infringed *3 a confront witnesses kinson’s constitutional rights conviction, will address we the Because we reverse defense. other Atkinson’s arguments. 28, on hours in the
L.P. testified that morning January early knew, When Atkinson, at her front door. L.P. knocked who inside, make love. When he L.P. he wanted to told Atkinson came L.P., had intercourse consent, Atkinson did not she overpowered her her, L.P. called and left the house. with police. boyfriend well Atkinson did not know told that she L.P. Initially police she In a interview sex with him. later had never had police, with Atkinson 6 a brief sexual that she had admitted relationship she ad- At a the months to hearing, preliminary year previously. 2000. sexual contact mitted to the September occurred, a the sexual after said 2 hours Approximately tested for The kit swab examined L.P. nurse assault positive deteriorated, testified that The nurse semen. spermatozoa in the were indicates the which vagina deposited sperm usually is that there a She testified than 6 hours more possibility previously. in the it is to 72 hours after vagina. deposited sperm up collecting on evidence col- who DNA A forensic testing performed serologist a contributor that Atkinson was in the case testified lected likely sperm. statute, 21-3525, Atkinson K.S.A. shield Pursuant to the rape he and L.P. had evidence that motion admit filed pretrial that fact to and L.P. lied about sexual police. relationship previous that the motion ruled pretrial judge hearing from L.P.’s cred- if to detract used would not be admissible solely therefore, to cross-ex- and, would not be allowed Atkinson ibility raise otherwise on amine L.P. relationship any prior ruled that Atkinson case. also State’s issues judge during relation- he had an would be allowed to testify ongoing on whether a corrobo- with L.P. The reserved ruling judge ship witness, Rivers, would be allowed testify. rating Joseph her Thus, trial, L.P. was not cross-examined at the that she knew with Atkinson. She testified relationship whom she cousin had dated. She indicated she saw through Atkinson two or three times within a 6-month When asked period. she
when had last seen Atkinson she testified January it had been about weeks before that date. In cross-examination trial, and at other the defense focused on in- other stages consistencies between L.P.’s various statements to and her police such as whether she was when testimony, asleep phone door, she heard Atkinson knock at the how far along pregnancy was on whether Atkinson had himself rape, exposed to her before the and other such details. rape, *4 trial,
At after the State had rested to the prior presenting defense, Atkinson renewed his motion to admit the testimony about sexual with L.P. the district prior relationship Initially, who was from different the who heard the judge, judge pretrial motion, evidence, ruled that no the Atkin- including son, could be admitted consensual with sex Atkinson on regarding date. The district court stated: “That’s what the previous exactly shield is statute to A recess was taken so rape designed prevent.” that defense counsel could the to defendant. explain ruling Defense then counsel asked to address the court and stated: again “I believe I’ve to to the Court one of the reasons neglected explain to shield statute was to evidence of pierce present why Mr. Atkinson’s DNA was as well as semen was explain why found her rectum that Sunday morning.” Immediately, court stated: “All It’s Mr. admissible Atkinson for right. through You talk can about the recent al- only. purpose Friday night sex in consensual order those issues to the leged explain jury.
We’re not into a that.” going prior beyond relationship
Atkinson testified that on he had Friday evening, January in, talked, L.P.’s house. L.P. let him and he drank a gone they beer. had then consensual sex. The next Atkinson called They day, Rivers and about had with sex L.P. When Joseph bragged having him, did L.P., Rivers not believe Atkinson made a call to three-way call, who did not know Rivers was also line. During that the two had sex before. Rivers acknowledged night testified call in a manner consistent with At- phone kinson’s testimony. about alibi witnesses also called several
The defense testily denied of the Atkinson on the Atkinson’swhereabouts rape. night and denied on the at L.P.’s home been night having him. sex with have ever forcing af- the Court of On direct panel Appeals appeal, majority then Carol now Atkinson’s conviction firmed Judge, Justice, Atkinson, 87,805, No. Beier unpublished opin- dissenting. court did that the trial found ion filed 2003. majority April sex with had consensual that L.P. err in not excluding the evi- 4 months to the Atkinson alleged concluding rape, prior since to the issues consent dence was not relevant with L.P. or even intercourse denied having having also found her home on tbe been at majority question. incident, it did since that because months passed ex- relevant its to be considered sufficient have proximity clusion proper. erred in that the trial court Atkinson’s pre- argument
Regarding sexual con- L.P. about him from cross-examining venting *5 no found abuse before the tact the rape, majority alleged discretion, did claimed he that Atkinson of consistently reiterating to 28 and offered alibi witnesses with L.P. on not have sex January noted that both his whereabouts that majority night. explain about the had been allowed to and Rivers Atkinson testify was found on Atkinson’s DNA to incident order why explain L.P.; therefore, to allowed Atkinson had been properly sex does of consensual Because evidence defense theory. encounter, the found a consent majority during subsequent imply of limit cross-examination in the court’s decision to no error trial L.P. at 5-6. Slip op. failed make Atkinson to
Because objection contemporaneous merits of the trial, to review the of declined at the Court Appeals sexual assault erred in whether the trial court issue of allowing L.P. were con- her nurse to upon examining testify findings the Court version of events. sistent with L.P.’s Finally, Appeals error. found no cumulative first at on the evidence that Beier’s dissent focused
Judge admitted but later denied any prior activity to a consensual encounter. She found that evidence would have relevant, been “The witness’ choice to lie about the stating: initially nature and of her with the defendant degree relationship naturally would lead to relevant those focused on many questions, including far from but limited to them.” Beier con- Judge cluded that the trial court’s “refusal to cross-examination of permit witness on the defendant’s of an complaining theory complete consensual and on her lie earlier to law ongoing relationship enforcement and the court’s wholesale exclusion of from source the earlier sexual encounter constituted any prej- udicial error.”
Standard Review
Both the trial court’s decision to exclude the evidence and its
decision to limit cross-examination L.P. must
be reviewed under
abuse
Canaan,
of discretion
standard. See
(1998).
P.2d
“Discretion is abused
when
only
fanciful,
unreasonable,
action is
or when no
judicial
arbitrary,
reasonable
would
the trial court’s view.” 265 Kan. at
person
adopt
Further,
853.
of cross-examination is
reason-
scope
subject
Pearson,
able control
court. State v.
923-
where,
However,
here,
926 its or and nature of such evidence testimony court. motion shall state the The which an of offer of shall be affidavit by proof and relevancy accompanied motion, witness is stated. The of the the sexual conduct complaining previous the not be of motion shall or documents affidavits and responding any supporting a of the court without written order except made available for examination motion, and documents affidavits and such supporting responding coun- the or the defendant’s be made available to defendant when shall requested defendant, counsel and and the defendant’s prosecutor sel prosecutor. motion, affidavits to the from matters shall be disclosing any relating prohibited court shall con- documents of the motion. The and any responding supporting the At conclusion the on the motion camera. the hearing, duct hearing if the the to he court that evidence by proposed offered defendant finds not otherwise witness is relevant and is conduct the sexual complaining previous evidence, make what evidence the court an order stating may inadmissible as may be and the nature permitted. be introduced questions defendant witnesses in accordance then offer evidence defendant may question added.) the court.” with the order of (Emphasis “In shield noted: act As we have legis- previously rape that a victim’s to the courts lature sent a clear prior message sexual is inadmissible since activity, prior activity generally accused, to the act not of consent even with the does itself imply 744, 747, 659 P.2d of.” State v. Stellwagen, complained However, (1983). does allow evidence shield statute fact if it relevant to sexual conduct is of victim’s any proved victim, issue, consent of the as the at such rapist, identity or not the defendant intercourse and whether actually P,2d Bressman, Kan. the victim. State (1984). admitted, does the statute relevant evidence be
Because
cross-examine
the defendant’s
confront
violate
rights
the Sixth
witnesses
or to
as
witnesses
guaranteed by
10 of
and Section
to the United States Constitution
Amendment
Nichols, 2
re
Constitution Bill of
Kansas
App.
Rights.
433-34,
927 In this shield statute serves State’s interest way, rape by “that a victim suffers considerable trauma from recognizing the incident and that to her trauma untram- adding by permitting meled examination of the intimate details of her life is unnecessary” seeks to victims through protection encourage rape and aid 2 crime. 2d at report prosecution App.
435; 1, v. see State 251 Kan. P.2d Arrington, Syl. ¶ (1992).
However, such
interests “cannot
of so
policy
require yielding
vital a constitutional
as the effective cross-examination for bias
right
Alaska,
308, 320,
an adverse witness.”
v.
Davis
415 U.S.
39 L.
(1974).
Ed. 2d
However, that
is not unlimited:
right
“
‘The defendant’s Sixth Amendment
are
to the same
rights
subject
evidentiary
rules as all other evidence. The threshold
for the
of evidence
question
admissibility
is
The Kansas
statute
shield]
does not undermine the
relevancy.
defendant’s
[rape
relevant evidence
It
victim’s
conduct.
prior
that there be a
only
determination of the
of that evi-
requires
pretrial
relevancy
dence.
. . .
“
‘Since the statute
the admission of the
when
rel-
evidence
it is
permits
truly
evant,
irrelevant,
it
when and
the extent
that it is
is
excluding only
statute
constitutional. It is well suited the defendant’s constitutional
protecting
rights,
the victim’s interest in
life
state’s interest
keeping
private
private,
trials without the obstruction of irrelevant and
ev-
conducting rape
inflammatory
idence. The
mechanism created
[the
shield
for determin-
pretrial
statute]
of such
relevance
evidence is
ing
suited to
a balance be-
admirably
striking
”
Blue,
tween these
interests.’ State
Thus, the statute does not create an absolute prohibition against evidence of the victim’s misconduct cross- against Rather, examination of the victim. evidence of sexual conduct be admitted determination that it “is relevant and is not otherwise inadmissible as evidence.” K.S.A.21-3525. We have pre- for statute does not viously “[t]he recognized, example, pre- clude the admission of another have person may
928 relevant evidence that abuse or
been alleged guilty of a witness.” the and Arrington, testimony impeaches 251 750. Kan. at the before the had intercourse
Evidence that the night parties of Atkinson’s as an was relevant why explanation alleged rape highly At- the examination. found DNA matched the during sperm events, than 24 the intercourse more kinson’s version of placing examination, was with consistent hours the sexual assault before deteriorated, the had the nurse’s observation spermatozoa indicates the were which she deposited usually sperm explained with We the more 6 hours the than disagree previously. vagina introduce Atkinson to conclusion that Court of allowing Appeals’ his his Rivers’ satisfied this evidence and testimony right through confront witnesses. a defense ruling pre- L.P. and other witnesses Atkinson from vented cross-examining act the of consensual about the previous possibility has States Court noted: As the United Supreme night. “ for the confrontation is secure opponent main and essential of ‘The purpose confrontation, not demands of the cross-examination. opponent opportunity him, witness, by the or for being upon for the idle of upon gazed purpose gazing cross-examination, the direct which be by for cannot except but of purpose immediate answers.’ Wig- obtaining personal putting questions J. (3d 1940). more, 1395, . . . Evidence ed. p. § of a witness means which the is the by believability “Cross-examination principal Davis, U.S. at 315-16. are tested.” and the truth of to an which was issue denied regard the district court did In the critical to case. pretrial ruling, events Atkinson could Friday testify regarding explain why L.P. about them. but he could not cross-examine Although court’s discretion to does shield statute recognize be introduced order what evidence “make an stating (K.S.A. to be and the nature defendant permitted” questions 21-3525), must balance court and this court on review the district of the defendant. the constitutional this discretion rights against v. Van noted Delaware As United States Court Supreme (1986), Arsdall, 106 S. 89 L. Ed. 2d Ct. 475 U.S. limits cross- reasonable the trial discretion to judge’s impose *9 about, examination based on concerns other harass among things, ment, issues, confusion the witness’ prejudice, safety, that is relevant does not interrogation repetitive only marginally far extend so as to foreclose all on a which is so inquiry topic relevant to the defense of the case. The critically theory Supreme Court discussed the test to be if a trial applied determining court’s of a cross-examination witness resulted in a ruling limiting Confrontation Clause violation:
“The State somewhat a that defendant have to tentatively should show suggests ‘outcome determinative’ in order state a violation of Confronta- prejudice tion Clause: Unless the limitation on created cross-examination a rea- particular verdict, sonable that the returned an inaccurate that limi- possibility jury guilty tation would violate the Confrontation We Clause. While some disagree.
constitutional claims
nature
their
require
showing
prejudice
respect
whole, see,
[,80
to the
as a
Strickland v.
Atkinson met that burden and established a violation of the Confrontation Clause. The evidence of Atkinson’s DNA physical To Atkinson from very damning. prevent cross-examining the events of Atkinson of his Friday evening deprived to confront the witness on this fact. Atkinson accusing key was entitled to have his counsel this issue so that the expose jury, as the sole trier of fact and could assess credibility, appropriately L.P.’s reaction to the defense of the case draw infer- theory ences to the of the witnesses. relating reliability *10 noted, that is a have there once we determined
As previously violation, harm- we the federal constitutional constitutional apply Arsdall, States In Van the United less-error Supreme analysis. a Con- rule in the context of of the Court explained application Clause issue: frontation whether, the cross- that the of is potential “The correct assuming damaging inquiry realized, the court nonetheless were a say examination reviewing might fully an is harmless a doubt. Whether such error was harmless reasonable error beyond factors, to re- of accessible in a host all readily a case depends particular the witness’ the of testimony courts. These factors include importance
viewing
cumulative,
case,
was
the
whether the testimony
presence
the prosecution’s
witness
of the
the testimony
absence of evidence corroborating
contradicting
and, of
of
otherwise
on material
the extent
cross-examination
permitted,
points,
course,
U.S. at
the
case.” 475
684.
the overall
of
prosecution’s
strength
case,
cross-
of
to assume that the
In this
damaging potential
admit
would mean that
would
was
realized
examination
fully
on
had
sex with Atkinson
to
consensual
Friday night.
having
DNA
turn,
the
of his
would have
this admission
explained
presence
the
scientific evidence
manner consistent
the
a
regarding
While other
deteriorated condition
physical
spermatozoa.
events,
of
L.P.’s version
evidence corroborated
the
to the
of
were
overall
prosecution’s
strength
key
was
error
we cannot
the
case. Under these circumstances
say
Therefore,
we hold that
a reasonable doubt.
harmless beyond
cross-examine L.P.
on Atkinson’s
limitation
right
was
error.
of
reversible
events
Friday night
Further,
an
relation-
that evidence of
argues
ongoing
of and essential
was an
even
integral part
though sporadic,
ship,
Atkin-
his defense. In
of
of
support
argument,
plausibility
State
son cites
Syl. ¶
Bradley,
evidence,
(1978),
which is
where
held:
exclusion of
we
“The
defense,
fun-
of
violates
defendant’s
part
theory
integral
a
which
fair trial.”
involved murder
damental
to a
Bradley
and the defendant
was
argued
argued
burglary
part
in limine
The State filed a motion
committed in self-defense.
was
decedent,
where the
reference
incident
exclude any
intoxicated,
while
fired a
at the defendant
shot
unprovoked
lay
defendant
bed.
were
the de-
Charges
brought against
cedent,
then
who
failed to
for court. The defendant
appear
sought
to establish that fear of
turned in to authorities
the de-
being
fendant motivated the decedent to attack.
court granted
limine,
motion
evidence of the incident. On
prohibiting
ap-
this court
that the
determined
evidence was not admissible
peal,
on the
of bad
but
issue
character
admissible
the basis
intent
motive. 223
at
713. This court concluded:
*11
“Tile
one’s
of defense is absolute. The trial court
right
theory
improp-
evidentiary
used the
rules
erly
of
character
exclude relevant and
establishing
material information
to the defense.
pertaining
hesitancy
“. . . We have no
that the defendant’s fundamental
finding
to a fair
was
violated."
Judge dissenting Appeals reached the same conclusion this case: “This case from the norm of irrelevance and departs expected inadmissibility
because the witness at first denied with the complaining any prior activity Indeed, defendant. at first she minimized even their con- previous platonic tact. . . . “The choice witness’ to lie about the and nature of her rela- initially degree with the defendant would lead to relevant in- tionship naturally many questions, those focused on her but far from limited to them.” cluding credibility
We and conclude that the of evidence the inconsistent agree statements should have been introduced.
K.S.A. 60-420 provides: 60-422, K.S.A. 60-421 and for of “Subject purpose sup- impairing witness, of credibility the witness porting any party including party calling witness examine the and introduce extrinsic conduct concerning any him or and other matter relevant of any the issues credibility.” Blue, 185, in State v. 558 P.2d Applying provision (1976), evidence, 136 we the admission of collateral upheld though in nature and not admissible. The case was an ordinarily appeal from a conviction for wherein Blue defendant forgery pre- sented a to a in Wichita. This forged drug prescription pharmacy 7, occurred the afternoon of 1975. Defendant and during July witness testified had been at home all corroborating they morning 1975. The State offered evidence in rebuttal that the two July had, fact, another
of them visited morning pharmacy during with a of valid hours had obtained a and prescrip- quantity drugs evidence, in nature collateral tion. trial court ruled the though admissible, was admissible as rebuttal evidence ordinarily We stated: to credibility. going de- to show that [the “The rebuttal evidence was competent visit that was did not other day
fendant and his any pharmacy witness] they false; under K.S.A. 60-420.” it admissible to attack their was thus Kan. at 188. Nixon, (1978), the de- defend- convictions
fendant
sodomy.
appealed
acts took
but contended
ant admitted that the sexual
place
after 2
3 hours of
lovemaking
complain-
mutually enjoyable
Thus,
at
factual
“went
was error to
the defendant from
evidence in
preclude
presenting
that the
witness had been untruth-
attempt
prove
prosecuting
ful
her
Similarly, case, under the facts this we determine it unique was error to exclude evidence of L.P.’s inconsistent statements re- the nature of her with Atkin- garding acquaintance relationship son even the statements involved sexual conduct. though Without L.P.’s was the critical issue question, jury case, this since the evidence cast doubt especially physical on version of events. To foreclose Atkinson’scross-examination of her matters these violated his fundamental to a fair trial and reversal of his conviction. requires issue, we
Because
reverse
we need not address the issues
of cumulative error or
error
assault
possible
allowing
nurse to
that her
examination were
testify
physical findings upon
events,
consistent with the victim’s version of
we note in
although
that this
Clements,
issue is similar to that decided in
passing
(1987)
Reversed.
Beier, not J., participating.
Brazil, S.J., assigned.
LucKERT, in J., concurring part dissenting part: I concur with the conclusion that Atkinson’s consti- majority’s tutional to confront witnesses was violated when the district right L.P. Atkinson from
court cross-examining regarding prohibited events Friday night.
However, court I that the trial erred from the dissent holding and cross-examine Atkinson to evidence not present allowing to about con- statements her inconsistent police previous did or did Whether L.P. and Atkinson sex with Atkinson. sensual was not relevant to issue sex 4 6 months earlier not have any case; therefore, statements on L.P.’s inconsistent subject to the not admissible. were majority’s reasoning, Contrary 60-420, as under K.S.A. were not admissible statements statement, rules or under a inconsistent theory evidentiary when at odds the defendant’s be stretched should right a defense. present “is rules and a defense statutory subject of rules of evidence and
case law
procedure.”
interpretation
564,
Thomas,
this
L.P. consented to some act under Atkinson’s it was not the theory, act with which he was charged. court, 21-3525, statute,
This
in
K.S.A.
shield
applying
rape
has stated that a
victim’s
is
rape
prior
activity
“generally
accused,
inadmissible since
even with the
does
prior
activity,
not of itself
consent to the act
of.” State v. Stell
imply
complained
744, 747,
(1983);
232 Kan.
Atkinson cites two cases sexual relations can arguing prior However, be relevant to the issue of consent. both are distinguish Nichols, 431, 436, able. In re 2 Kan. 2d App. (1978),
rev. denied Kan. 844 our Court of ruled that Appeals evidence of sexual relations was not relevant in that case be prior cause the occurred while defendant’s friends were rape allegedly While the issue was made more difficult present. allegation sex, that the two and the court conceded that “often enjoyed rough the victim’s conduct with the defendant would be relevant to issue,” the consent the court found that the victim’s consent to intercourse with the defendant alone did not consent to imply intercourse with defendant’s friends or in their 2 Kan. presence. 2d at 436. There is no such circumstance in evidence
App. unique in this case. If the evidence was that anything, pregnant man; with another this makes even more relationship ques tionable the inference that because she consented to sex several months earlier she consented on the again question. Perez,
Atkinson also cites State v.
2d
App.
(1999),
(2000),
P.2d
rev. denied
ers on the
proximity
evening.
(the victim
the same
a distinctive
acts occurred at
pattern
party);
observed,
cre-
while the defendant
had sex with the others
giving
to his sex
that there was a witness
the defendant’s version
dence to
victim);
in the victim’s
and inconsistencies
act with the
testimony
(in
the victim was un-
initial statements
which went to credibility
factors in
There are no such
whether there was
sure
penetration).
in favor of
this case to
admissibility.
weigh
Furthermore,
was correct in rul-
Court of
majority
Appeals
incident and
between the
that the 4-month interval
September
ing
too remote to be relevant.
rendered that evidence
alleged
Montes,
conclusion,
cited State v.
of this
majority
support
Additionally, second admissible under Atkinson’s are not hearing preliminary The rules of L.P.’s statements affect credibility. theory, 60-422, evidence, their admission. The K.S.A. prohibit specifically 60-420, which relied K.S.A. provides: majority upon 60-422, or for the to K.S.A. 60-421 and impairing sup- purpose “Subject witness, the witness of a including party calling credibility any party porting conduct extrinsic evidence the witness and introduce concerning any examine relevant the issues of him her and other matter credibility.” or any by of K.S.A. 60-421 not consider the limitations does majority evidence of limits the 60-422. K.S.A. 60-421 admissibility when introduced to affect cred- a witness for a crime conviction of 60-422 fur- in this case. K.S.A. and does not provides apply ibility of evidence limitations on ther affecting credibility: admissibility (a) in the witness as to a of a witness “As examining affecting of his or her him her in inconsistent statement made any part writing the witness of the to show or read to any part it shall not be necessary the time and of the that if the deems it feasible place provided judge writing addressed, if shall be indicated to the and the name any, writing person *16 witness; (b) statements, extrinsic evidence whether oral or prior contradictory written, witness, made the discretion of the be excluded may judge unless the so witness was examined while as to or her him testifying give statement; (c) to or opportunity explain evidence of traits identify, deny or her character other or than their be shall inad- honesty veracity opposites, missible; (d) evidence of instances of his or her specific conduct relevant as only character, of his or her trait shall be tending prove inadmissible.”
L.P.’s statements were a instance of conduct specific tending were, therefore, show a lack of inadmissible honesty veracity (d). Furthermore, because of the of subsection the state- provisions ments were not admissible as a inconsistent statement. It prior, must be noted that the did not ask L.P. she whether prosecutor (Nor had ever had sex consensual with Atkinson. should the ques- tion have been even if asked the in limine were not ruling place Rather, information.) because the irrelevant L.P.’s question sought statements were inconsistent with each other. In to use order prior statements for state- prior purposes impeachment, prior ments must be inconsistent with the witness’ State v. testimony.
Miles,
191 Kan.
Also, it is well established that inconsistent statements are inadmissible if the matter of the statements is not relevant subject but relates to a collateral matter: “Extrinsic evidence of inconsistent statements is inadmissible impeach
the statement of a witness as to a cross-examination collateral matter. The matter involved in the contradiction must be relevant to the issue supposed being tried, for it is well that a settled witness not be of state- impeached by proof 2d, ments as to matters not material.” 81 Am. Witnesses 932. $ Jur. Dean, (2001),
For
in State v.
he distinguished gun. doing purchased the col- had raised who was where the witness impeached being Nixon, 788, 223 Kan. State v. lateral See matter testimony. Funk, 1978); 211 Kan. P.2d P.2d Dewey case, and the her not raise the issue In this L.P. did testimony, are therefore cases relied distinguishable. by majority Dean, witness that where the also held we purchased gun false state- we the witness’ held that was relevant. Finally, prior under were inadmissible he ments about where gun purchased 60-422(d) a act offered instance of bad K.S.A. as a prior specific at 436. attack witness’ credibility. be- evidence of a because relationship prior Similarly, irrelevant, lied to evidence that L.P. tween and Atkinson Furthermore, was also irrelevant. about that relationship police sex had never had consensual L.P. did at trial that she not testify had, door for have If she with Atkinson. opened might that she made rebuttal evidence previously However, state- because L.P.’s inconsistent statement. previous with her trial ments to were not inconsistent testimony, truly police statements for to offer her Atkinson had no basis impeach- previous Dean, false L.P.’s statements ment As police purposes. prior 60-422(d) instance of K.S.A. as were under inadmissible specific bad to attack L.P.’s act offered credibility. prior admit not abuse its discretion court did refusing testi- statements or evidence of L.P.’s preliminary hearing sex with Atkinson. consensual mony regarding