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State v. Carapezza

March 9, 2012


Appeal from Lyon District Court; MERLIN G. WHEELER, judge.



The Self-Incrimination Clause of the Fifth Amendment to the United States Constitution protects an accused from being compelled to testify against himself or herself, or otherwise being compelled to provide the State with evidence of a testimonial or communicative nature.


Notwithstanding Fifth Amendment rights, the government may compel witnesses to testify at trial, or before a grand jury, on pain of contempt, as long as the witness' statements, or any evidence derived from those statements, cannot be used against the witness in any criminal case.


In K.S.A. 22-3102, the legislature has provided a balance between the privilege against self-incrimination and the government's legitimate need to compel citizens to testify in the context of inquisitions in criminal cases. No person called as a witness at a criminal inquisition shall be required to make any statement which will incriminate such person, unless the county or district attorney has granted the person transactional or use and derivative use immunity, in writing, and an unimmunized violation of federal law is not implicated.


When a defendant files a motion to suppress evidence under K.S.A. 22-3102(b)(2) to prevent the State from using evidence on the grounds that it was derived from and obtained against the defendant at an inquisition as a result of testimony or statements made under a grant of use and derivative use immunity, the district court should conduct a Kastigar hearing. At a Kastigar hearing, the State shall bear the burden of proving that the evidence was obtained independently of the compelled testimony and from a collateral source. Kastigar v. United States, 406 U.S. 441, 461-62, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972).


Use and derivative use immunity prohibits the prosecutorial authorities from using the compelled testimony in any respect. No use at all may be made of the immunized testimony. The fact that a witness was exposed to immunized testimony may suffice to taint that witness' testimony.


The prosecutorial authorities possess the discretion to decide to whom to grant use and derivative use immunity. Once testimony is compelled at a criminal inquisition under a written grant of use and derivative use immunity, the State is constitutionally and statutorily bound to honor the immunity commitment.

The opinion of the court was delivered by: Johnson, J.


Marcy Faith Carapezza and Jason Cole Hughes (collectively referred to as defendants) were convicted of felony murder and other felonies. Following decisions by this court remanding the cases for new trials, the district court suppressed certain evidence as being derived from the defendants' immunized inquisition testimony. The State of Kansas takes interlocutory appeals from the district court's suppression orders, contending that the district court applied an incorrect burden of proof and that the State did not make an improper use of the immunized statements. We affirm the district court's rulings.


Detailed statements of facts are contained in the two opinions which reversed the defendants' convictions: State v. Carapezza, 286 Kan. 992, 191 P.3d 256 (2008) (Carapezza I), and State v. Hughes, 286 Kan. 1010, 191 P.3d 268 (2008) (Hughes I). Accordingly, we will provide a highly summarized overview.

Molly Paico worked part-time for Mary Clark. On May 5, 2004, Clark was found dead in her home in Emporia, the apparent victim of blunt-force trauma to her head. Paico soon became a prime suspect in the killing, due to evidence found at Clark's house and Paico's use of Clark's bank debit card and the cashing of Clark's forged checks. Paico was arrested in Wichita 2 days later on burglary, theft, and forgery charges. Paico implicated Raven Briney and perhaps Hughes in the killing. She also discussed Carapezza and Hughes with the officers in the context of their drug use.

The police interviewed Carapezza and Hughes several times, seeking information on Paico. The two consistently denied any involvement in the attack on Clark. Eventually, both testified at inquisitions; Hughes on July 15, 2004, and Carapezza on July 21, 2004. Prior to their inquisitions, the county attorney granted Carapezza and Hughes use and derivative use immunity, thereby effectively compelling them to testify.

The morning of Carapezza's inquisition, the State charged Paico with first-degree murder in Clark's killing. Paico then initiated plea negotiations in which she offered to testify against and implicate Carapezza and Hughes, contrary to her earlier version of events. Paico participated in a series of immunized inquisitions and eventually entered a guilty plea to one count of aggravated burglary and three counts of aiding a felon, receiving a 60-month sentence for her part in the murder.

Paico's plea agreement story had her going to Clark's home to repay the money she had taken. Looking into a window, she saw Carapezza, Hughes, and a third person named Gail Bennett. Upon entering the house, Paico saw Hughes holding a hammer and blood on Clark's head. Paico further testified that she subsequently personally participated in the crime by hitting Clark on the ...

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