April 1, 1994.
RANDOLPH C. CABRAL, Appellant,
STATE OF KANSAS, Appellee.
In 1979, Randolph C. Cabral was convicted of aggravated
kidnapping and rape. He was sentenced to life in prison for the
aggravated kidnapping and 30 years to life for the rape. The
conviction for aggravated kidnapping was reversed by the Kansas
Supreme Court, and the rape conviction was affirmed. State v.
Cabral, 228 Kan. 741
, 619 P.2d 1163 (1980). In 1990, Cabral
filed a K.S.A. 60-1507 motion, which was initially denied without
an evidentiary hearing. We reversed the decision of the trial
court and remanded. Cabral v. State, No. 65,783, unpublished
opinion filed October 4, 1991.) This appeal is from the trial
court's denial of relief on remand.
The issue raised in the 60-1507 motion was whether an immunity
agreement between Cabral and the State was breached at the time
of his sentencing for aggravated kidnapping and rape. On the
first appeal to this court, we held that the trial court had not
properly considered the issue. On remand, the trial court was
instructed to determine whether the immunity agreement was
violated and, if so, whether Cabral had waived his right to raise
that issue. After our remand, the trial court conducted an
evidentiary hearing and determined that the immunity agreement
was not violated but concluded that, even if it was, Cabral had
waived his right to raise the issue. This appeal followed.
The agreement in question was entered into in 1979. At that
time, Cabral stood charged with illegal possession of marijuana.
He was also well known to law enforcement officials in Reno
[19 Kan. App. 2d 458]
County. As a juvenile, he had exhibited a penchant for burglary
and was known to defecate in the middle of the houses he
burglarized. At the time of the agreement in question, he was
represented by Kenneth F. Ehling, who is now deceased. The facts
indicate that Cabral agreed to provide information clearing a
number of unsolved burglaries and thefts in exchange for having
the marijuana charge dismissed and being granted immunity from
prosecution. Ultimately, an understanding was reached; Cabral
provided information to the State to clear some 27 prior
burglaries and thefts in exchange for a grant of immunity and the
dismissal of the current charges.
The immunity agreement was oral and is somewhat lacking in
specificity. After the information was disclosed, Joseph
O'Sullivan, the then Reno County Attorney, wrote a letter to
Ehling summarizing the agreement as follows:
"This letter is a follow-up to numerous meetings
involving Randy Cabral, Det. Jake Koontz and you and
me regarding the above captioned case and other
matters. Principally, we discussed the matters listed
subsequently in this letter on February 9 and
February 16, 1979. At those meetings, we reached an
agreement on the disposition of the above captioned
case which is as follows.
"In exchange for information relating to the below
listed criminal offenses, the Reno County Attorneys
office will dismiss the matter entitled State v.
Randall Cabral, 78CR 352 with prejudice. The County
Attorney further agrees not to refile the matter
concerning the Burglary of Stanley Liquor Store and
the assault of one Kathy Frazier. As a further part
of the agreement Randy Cabral is given immunity from
prosecution on any matter listed below and will not
be called as a prosecution witness at any time in any
proceeding relating to those offenses. It is
understood that Randy Cabral's name may be used in
affidavits associated with search warrants executed
for the return of stolen merchandise from the below
listed offenses. The matters which were discussed are
as follows: [listing of 22 burglaries and thefts]."
This letter, along with a handwritten note taken at the time
the immunity agreement was finalized, are the only documents from
which that agreement can be verified.
As we understand the record, Cabral has never been prosecuted
for any of the crimes disclosed and mentioned in the agreement,
nor has he been called upon to testify concerning any of the
matters stated. However, at the time of his sentencing for
aggravated kidnapping and rape in 1979, O'Sullivan told the
[19 Kan. App. 2d 459]
"Randy Cabral is no stranger to the courts> of Reno
County, Kansas, although he has only one prior felony
conviction. He was granted a parole; he did serve
time from the court, originally was paroled; went
back again; was paroled again and went back again and
finally flattened his time.
"As a juvenile he [had] an extensive record which
one of his trademarks when he burglarized a house was
to defecate in the middle of the house before he left
according to Lieutenant Johnson of the Police
"I can tell this court that as early as the spring
of 1979 Mr. Cabral had a felony possession of
marijuana complaint dismissed against him in exchange
for his cooperation in clearing 27 burglaries and
thefts. At that time it was discussed with him Mr.
Cabral, your slate is clean. You have immunity from
prosecution for any crime that you've committed. You
can start anew in this community. You can clear
everything because we're not going to prove it anyway
and he did his best; and the discussions were had at
that time that now it can be a new life if you want
"He then commits this crime which I think makes it
that much more reprehensible and considering the
background that he had and the time that he spent in
the penitentiary and the penalty he knows one faces
for committing crimes this still happened."
At the time O'Sullivan made this statement, Cabral was present
in court with counsel. However, there was no objection by Cabral
or his attorney to these remarks. It was not until 1990 when the
present 60-1507 motion was filed that Cabral raised the issue of
the remarks violating his immunity agreement. Cabral testified
that while O'Sullivan was making the remarks, he turned to his
attorney and said: "I don't think he's supposed to be saying
those things or mentioning any of that stuff." According to
Cabral, his attorney replied, "[I]t doesn't make any difference;
you're going to do a life sentence anyway." This statement was
indeed prophetic and remained accurate up until the time the
Kansas Supreme Court vacated the aggravated kidnapping
conviction. In any event, no contemporaneous objection was made
as to the prosecutor's comments.
At the hearing on remand, a letter from Kenneth Ehling to
Cabral was introduced as evidence. According to Ehling,
O'Sullivan told him the day before sentencing that he would not
refer to the immunity agreement at sentencing. O'Sullivan was
called as a witness and denied telling Ehling any such thing and
emphatically denied that he had breached or violated the immunity
agreement in any fashion.
[19 Kan. App. 2d 460]
The argument which Cabral puts forth is that O'Sullivan
breached the immunity agreement by his remarks disclosing that
agreement and the crimes "cleared" as a result of the agreement
at the time of Cabral's sentencing. Cabral argues that we should
vacate his sentence because of this breach of the immunity
agreement and remand for resentencing.
The judge who imposed the sentence for aggravated kidnapping
and rape on Cabral was J. Stanley Hill. Judge Hill is no longer
active in the judiciary. However, Judge Hill did testify at the
hearing on remand that, in sentencing Cabral, he did not consider
O'Sullivan's remarks concerning unprosecuted burglaries. The life
sentence for aggravated kidnapping was required by statute. The
sentence for rape was doubled under the Habitual Criminal Act.
The question we must determine is whether the remarks of
O'Sullivan violated the immunity agreement. If they did, we must
then decide whether that violation requires us to vacate Cabral's
sentence. We conclude that the remarks were improper and breached
the spirit, if not the literal terms, of the immunity agreement.
However, we are unable to conclude that the breach requires us to
vacate the sentence imposed. We affirm, but we do so on a
different rationale than that adopted by the trial court.
WAS THE IMMUNITY AGREEMENT BREACHED?
As pointed out earlier in this opinion, the immunity agreement
itself was oral and its terms were verified by a letter from
O'Sullivan to Ehling. This letter and a set of handwritten notes
made at the time the immunity agreement was reached outlined the
understanding in rather abbreviated form. The net result is that
the agreement is somewhat vague. It does not expressly prohibit
its use at sentencing for a subsequent unrelated crime. In our
opinion, the terms under which information was given by Cabral
are vague and ambiguous. The net result is that we will construe
the agreement strictly against the State and in favor of Cabral.
Traditionally, there are three types of immunity recognized by
the law in these United States. They are described in 21
Am.Jur.2d, Criminal Law § 210, page 386, as follows:
"There are three recognized types of immunity: (1)
`transactional,' (2) `use and derivative use,' and,
(3) `use.' `Transactional' immunity protects the
witness from prosecution for offenses to which the
compelled testimony relates. This type of immunity is
broader than the constitutional privilege
[19 Kan. App. 2d 461]
against self-incrimination and need not always be
granted, although it does, of course, constitute
adequate immunity. `Use and derivative use' immunity
protects the witness from the use of compelled
testimony and evidence derived therefrom. It is
coextensive with the constitutional privilege against
self-incrimination and is therefore a sufficient
grant of immunity to compel self-incriminatory
testimony. On the other hand, mere `use' immunity,
which only prevents the prosecution from using the
compelled testimony in any criminal proceeding, is
not constitutionally adequate since it does not
prevent prosecuting authorities from making
derivative use of the fruits of a witness' compelled
testimony by obtaining investigatory leads from it."
In Kansas, K.S.A. 22-3415 authorizes a written grant of
immunity for the purpose of compelling testimony. The Kansas
Supreme Court has determined: "It appears from our reading of the
statute that both a transactional immunity and a use immunity is
provided." In re Birdsong, 216 Kan. 297, 304, 532 P.2d 1301
The problem in this action is that immunity was not granted
pursuant to K.S.A. 22-3415. The grant of immunity was not in
writing, and it was not granted to compel testimony. In fact, the
letter from O'Sullivan to Ehling specifically prohibits calling
Cabral as a witness in any prosecution for the crimes disclosed.
We are unable to construe that agreement under the terms of
It is not particularly important to affix a label to the
immunity involved in the instant matter. The purpose of a grant
of immunity is to protect an individual's privilege against
self-incrimination while gaining information or testimony not
otherwise obtainable. The purpose of the privilege against
self-incrimination is not difficult to ascertain:
"The Supreme Court on many occasions has stated
that the purpose of the privilege against
self-incrimination is "`to insure that a person
should not be compelled, when acting as a witness in
any investigation, to give testimony which might tend
to show that he himself had committed a crime.'"
Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S. Ct 316,
322, 38 L.Ed.2d 274 (1973) (quoting Counselman v.
Hitchcock, 142 U.S. 547, 562, 12 S. Ct 195, 35 L.Ed.
1110  (emphasis added)). Thus, the privilege
usually applies to prohibit testimony that might
incriminate a witness for past crimes. See Rule v.
United States, 362 F.2d 215, 217 (5th Cir. 1966),
cert. denied, 385 U.S. 1018, 87 S.Ct. 744, 17 L. Ed
2d 554 (1967)." United States v. Quatermain, Drax,
613 F.2d 38, 41-42 (3d Cir. 1980).
[19 Kan. App. 2d 462]
The grant of immunity from the standpoint of a defendant is to
protect his or her privilege against self-incrimination. Immunity
makes it possible for an individual to reveal criminal conduct
without fear that his or her own words may be used to incriminate
or punish him or her in the future. Where the extent of the grant
of immunity is vague or ambiguous, we will construe it as being
coextensive with the constitutional privilege against
self-incrimination. This approach is consistent with the decision
of State v. Durrant, 244 Kan. 522, 769 P.2d 1174 (1989). In
that case, the court was called upon to determine the extent of
immunity granted by K.S.A. 79-5201 et seq. Chief Justice, then
Justice, Holmes, writing for a unanimous court, said:
"The district court in case No. 62,560 held that
the statute fails to provide absolute immunity and
does not prohibit use of the information for
investigatory leads, a use the court held was barred
by the privilege. Defendants also raise this argument
on appeal. For a statutory grant of immunity to be
coextensive with the privilege against
self-incrimination, it must grant not only use
immunity, or protection from the direct use of
compelled incriminatory information, but also
derivative-use immunity, which prohibits use of any
such information for investigatory purposes leading
to other evidence of criminal activity. This court
not only has the authority, but also the duty, to
construe a statute in such a manner that it is
constitutional if the same can be done within the
apparent intent of the legislature in passing the
statute. To accomplish this purpose the court may
read the necessary judicial requirements into the
statute. [Citations omitted.] We think it is obvious,
and we so hold, that the legislature, by its
enactment of 79-5206 as a part of the act, intended
to extend not only use immunity but also
derivative-use immunity to any person complying with
the act. As construed, the immunity granted by the
act is at least coextensive with the privilege
against self-incrimination provided by the Fifth
Amendment of the United States Constitution, and the
act as so construed is constitutional." 244 Kan. at
In this case, the full extent of the immunity granted is
shrouded by ambiguity. The agreement neither permits, nor does
its specifically prohibit, the use of the information in the
manner objected to on this appeal. In line with State v.
Durrant, we construe the agreement in question as granting to
Cabral that immunity which is coextensive with the privilege
As we view it, the privilege against self-incrimination bars
the use of information by the State obtained under a grant of
[19 Kan. App. 2d 463]
from being used punitively in a criminal prosecution against the
party providing that information. Obviously, this information
could not be used to prosecute Cabral for the crimes revealed. He
could not be forced to testify about those crimes under the
express terms of the agreement. It seems only logical that any
use of the information by the State to punish Cabral for the
crimes disclosed would be prohibited.
The statement by O'Sullivan was made at a hearing being held to
determine Cabral's sentence for aggravated kidnapping and rape.
We believe the purpose of the statement was obvious. The State
was seeking to affect the sentencing process by revealing past
crimes, which it had become aware of by Cabral's own statement
made under a grant of immunity. By any use of the term, the
intent of the statement by O'Sullivan was to incriminate and
punish Cabral with information given in exchange for immunity.
This approach violates the spirit of the immunity agreement in
question and certainly was intended to have a negative impact on
Cabral's privilege against self-incrimination.
We hold that the use at sentencing of information of prior
criminal conduct obtained under a grant of immunity violated the
immunity agreement between Cabral and the State. It seems to us
to be impermissible to permit the punitive use of prior criminal
information against an individual who gave that information under
an agreement providing for immunity. A contrary decision would
significantly dilute the privilege against self-incrimination,
which is to be protected by a grant of immunity. We think the use
of such information violates the spirit under which the
information was obtained and has a negative impact upon the
integrity of the criminal justice system. We hold that the
district court erred in finding that the disclosure of the
information by O'Sullivan did not breach the immunity agreement.
DOES THE BREACH REQUIRE THAT CABRAL'S SENTENCE BE VACATED?
We have determined that the statements by the prosecutor
disclosing information obtained from Cabral under a grant of
immunity violated the immunity agreement between Cabral and the
State. However, this decision does not automatically lead us to
conclude that Cabral's sentence must be vacated. Our review of
[19 Kan. App. 2d 464]
the record leads us to conclude that the error by the State in
disclosing the information was, under the facts of this record,
The concept of harmless error is logical. Not every error
requires reversal of a judgment. If an error has not prejudiced
the substantial rights of the party complaining, it is not
considered reversible error. "Errors which do not affirmatively
appear to have prejudicially affected the substantial rights of
the party complaining do not require reversal when substantial
justice has been done." State v. Bell, 239 Kan. 229, 235,
718 P.2d 628 (1986). See State v. Getz, 250 Kan. 560, 571, 830 P.2d 5
(1992); State v. Peltier, 249 Kan. 415, Syl. ¶ 4, 819 P.2d 628
(1991), cert. denied ___ U.S. ___, 120 L.Ed.2d 875 (1992);
State v. Maggard, 16 Kan. App. 2d 743, 753, 829 P.2d 591, rev.
denied 251 Kan. 941 (1992).
It was the burden of Cabral to demonstrate that whatever error
occurred at the time of his sentencing prejudicially affected his
substantial rights. We conclude that he failed to do so.
The error in this action is of constitutional magnitude.
Accordingly, our standard of review is somewhat more strict than
is set forth above.
"An error of constitutional magnitude is serious and
may not be held to be harmless unless the appellate
court is willing to declare a belief that it was
harmless beyond a reasonable doubt. [Citations
omitted.] . . . [B]efore we may declare the error
harmless, we must be able to declare beyond a
reasonable doubt that the error had little, if any,
likelihood of having changed the result of the trial.
[Citation omitted.]" State v. White, 246 Kan. 28, 37,
785 P.2d 950, aff'd as modified 246 Kan. 393,
789 P.2d 1175 (1990).
See Chapman v. California, 386 U.S. 18, 17 L.Ed.2d 705, 87
S.Ct. 824, reh. denied 386 U.S. 987 (1967); State v.
Galloway, 16 Kan. App. 2d 54, 61, 817 P.2d 1124, rev. denied
249 Kan. 777 (1991).
We have carefully read the record of the K.S.A. 60-1507
hearing, as well as the record of the defendant's sentencing for
aggravated kidnapping and rape in 1979. Our review of the record
convinces us that, beyond a reasonable doubt, the error had
little, if any, likelihood of having changed the result of the
defendant's sentence. Since we deal here only with the sentence
imposed upon the defendant for rape, we would vacate that
[19 Kan. App. 2d 465]
if we believed beyond a reasonable doubt that but for the
prosecutor's comments, the defendant would not have received the
sentence of 30 years to life on the rape conviction.
The record overwhelmingly indicates that the prosecutor's
breach of the immunity agreement did not prejudice the
defendant's substantial rights. Indeed, the evidence shows that
the disclosure by the prosecutor of the crimes revealed by the
immunity agreement had no effect on the sentence imposed on
J. Stanley Hill, the judge who sentenced Cabral in 1979,
testified that he did not consider the facts relating to the
immunity agreement in imposing the sentence on Cabral. The judge
testified that his sentence was based on the factors listed in
the statute, supplemented by the personal knowledge he gained in
presiding over the trial and the presentence investigation
report. He testified flatly that prior unconvicted crimes would
not enter into his decision in sentencing a defendant.
We have examined the sentencing transcript from the 1979
sentence. That record is very clean and very clear. Judge Hill
meticulously went through every factor listed in the statute and
evaluated those factors as they related to the defendant and the
crimes he stood convicted of. There is not even a hint in the
sentencing record that the prosecutor's mention of the immunity
agreement affected in any way the sentence imposed. The testimony
of the trial judge, along with our examination of the sentencing
record, convinces us beyond a reasonable doubt that there is no
likelihood that the sentence would have been any different had
the prosecutor not revealed the immunity agreement and the crimes
disclosed by that agreement.
In addition, there is the factor of the Habitual Criminal Act.
Cabral is presently serving a sentence of 30 years to life. This
sentence was imposed by doubling the statutory maximum sentence
under the Habitual Criminal Act. Cabral's current sentence for
rape was arrived at under the Habitual Criminal Act because he
had a prior felony conviction, and it does not appear to be
related in any way to the improper disclosure of information by
the prosecutor. When one considers the crimes for which Cabral
was convicted and the application of the Habitual Criminal Act, a
sentence of 30 years to life for rape appears to have been
[19 Kan. App. 2d 466]
appropriate and unrelated to any improper revelation of
information by the prosecutor. The sentence is within statutory
limits and was enhanced, not because of the disclosure of
information by the prosecutor, but as a result of the Habitual
Criminal Act. We have no hesitation in concluding that, although
the prosecutor's mention of the immunity agreement was wrongful
and erroneous, it was harmless error at best. We conclude there
is no basis on which to vacate the defendant's sentence and
remand for resentencing.
We are aware that the basis for our decision is different from
that reached by the trial court. The trial court concluded that,
even if the agreement was breached, Cabral had waived any right
to raise this issue. The waiver issue is based upon the failure
of Cabral to object to the mention of the immunity agreement at
the time of sentencing. A critical factor to be determined by the
trial court was whether Cabral was aware of the fact that the
prosecutor's mention of the terms of the agreement constituted a
breach. We think it clear from our reading of the record that
Cabral was indeed aware of this fact. The trial court reasoned
that, while Cabral was aware of the error at the time it
occurred, he waited 10 years to raise the issue. The trial court
concluded that this gap in time was, in fact, a waiver of the
right to raise the issue. We choose not to decide this case on
the waiver issue. However, we affirm the trial court on the basis
of the harmless error analysis set forth in this opinion.
"[W]here the trial court reaches the correct result based upon
the wrong reason, this court will affirm the trial court." State
v. Shehan, 242 Kan. 127, 131, 744 P.2d 824 (1987). See State v.
Donlay, 253 Kan. 132, 853 P.2d 680 (1993); State v. Zimmerman,
251 Kan. 54, 67, 833 P.2d 925 (1992); State v. Wilburn,
249 Kan. 678, 686, 822 P.2d 609 (1991).
We disagree with the trial court's decision that the mention of
the immunity agreement by the prosecutor did not violate the
terms of that agreement. However, we affirm the trial court's
denial of the petitioner's 60-1507 motion.
[19 Kan. App. 2d 467]
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