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 Cabral v. State, No. 65,783, unpublished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
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
"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.
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
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 ...