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Kelley v. Abdo1/28/2005
d at any time during the trial, the complete absence of any other mention of or reference to Kelley's religion during this lengthy proceeding requires me to conclude that the error was not prejudicial.
In addition, the cases the majority cites to support its standard for assessing whether erroneously admitted evidence is so prejudicial as to constitute reversible error relate to situations in which the error went to the core of the substantive issue at trial. Such is not the case here, where the content of the erroneously admitted evidence relating to Kelley's religion bore no substantive relation to the issues of Abdo's and CVCH's negligence. Because the erroneously permitted colloquy here represented an unrelated digression from the principal issue upon which the jury was required to focus, I am unconvinced that, absent the improper cross-examination, the jury instead would have reached a verdict in Kelley's favor. Carter-Glogau Labs., Inc. at 358, 736 P.2d at 1170 (test for determining whether improper admission of evidence constitutes reversible error is whether court is "convinced that absent the error, the jury would have reached a different verdict").
Moreover, the prejudicial nature of the error we all agree occurred may not be presumed but must affirmatively appear from the record. Callender. Neither in her appeal brief nor during oral argument before this court did Kelley point to anything in the record suggesting or implying that the jury was ever called upon to assess her credibility, the only conceivable issue the erroneously admitted evidence could have prejudiced. Furthermore, the record neither establishes nor supports the inference that the evidence about Kelley's religious beliefs in any way caused the jury to disregard the extensive trial testimony on the critical issues of Abdo's and CVCH's negligence so as to prevent Kelley from obtaining what the majority presumes otherwise might have been a verdict in her favor. Cf. Short v. Riley, 150 Ariz. 583, 587, 724 P.2d 1252, 1256 (App. 1986) (finding prejudicial questioning harmless because there was no "showing that the questions actually influenced the verdict"). The majority suggests that to apply the rule in Callender that error must appear affirmatively in the record would impose on Kelley an "impossible burden." This creates an exception to the principle in Callender unwarranted by either logic or law. Moreover, had prejudice existed here Kelley could have affirmatively shown it by pointing to further comment by Abdo or CVCH on Kelley's religious beliefs in closing arguments, or to jury questions about the subject, or instances in which counsel otherwise had drawn the jury's attention to testimony or an exhibit mentioning Kelley's religious affiliation. That none of those things occurred outside this objectionable, but exceedingly brief, cross-examination demonstrates that it is the majority that has the "impossible burden"-that of supporting its conclusion that actual prejudice occurred. Indeed, for the majority to circuitously reason that prejudice exists here and may be seen simply from the appearance of the "questioning itself" merely begs the question.
The majority's assessment that this was "a close case," and its conclusion that the jury might have reached a different result absent the improper questioning, is the result of speculation that is unsupported by the record. And State v. Leitner, 34 P.3d 42 (Kan. 2001), on which the majority relies, supports instead my conclusion that the error here was indeed harmless. The supreme court in Leitner ultimately found that, although the trial court should not have permitted testimony of the defendant's involvement with witchcraft because of the subject's "highly
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