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State v. Delacruz

Supreme Court of Kansas

March 2, 2018

State of Kansas, Appellee,
v.
Jose Delacruz, Appellant.

         SYLLABUS

         1. A district court's power to impose sanctions for contempt of court is regulated by statute. Therefore, to impose a sanction against a contemnor, the district court must follow the procedural requirements set forth in the statute upon which the court relies for its contempt power.

         2. The governmental power to compel a person to testify in a court of law is not absolute, and the most important exception to that power is a person's right, under the Fifth Amendment to the Constitution of the United States, to be protected against compulsory self-incrimination.

         3. A witness who has no reasonable cause to fear incrimination cannot invoke the Fifth Amendment right against self-incrimination. One manner in which the State can remove the fear of incrimination and compel testimony is to grant the witness immunity that is coextensive with the witness' right against self-incrimination.

         4.A grant of immunity that merely prohibits the use of the compelled testimony in any potential future case, without immunizing any evidence that might be derived from the compelled testimony, is not coextensive with the witness' Fifth Amendment right against self-incrimination.

         5. A court cannot lawfully compel a witness to testify based upon the State's grant of mere use immunity. If a court holds a witness in contempt for invoking his or her right against self-incrimination, when that witness has not been granted immunity that is coextensive with the Fifth Amendment right against self-incrimination, the order of contempt must be reversed and the sanction imposed must be vacated.

         Review of the judgment of the Court of Appeals in 52 Kan.App.2d 153, 364 P.3d 557 (2015).

Appeal from Reno District Court; Joseph L. McCarville III, judge.

          Sam S. Kepfield, of Hutchinson, argued the cause and was on the brief for appellant.

          Keith E. Schroeder, district attorney, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellee.

          Per Curiam:

         Jose Delacruz seeks review of the Court of Appeals' affirmance of the district court's finding that Delacruz was in direct contempt of court for refusing to testify at a codefendant's trial and the affirmance of the ensuing 108-month sentence imposed for that contempt. Because the State did not offer Delacruz use and derivative use immunity that protected his constitutional right against self-incrimination, the district court erred in holding Delacruz in contempt of court for invoking his constitutional right to remain silent. We reverse the order of contempt and vacate the sentence.

         Factual and Procedural Overview

         The State charged Delacruz with aggravated robbery and felony murder, based upon an incident in which Joshua Haines was allegedly murdered during the commission of a robbery by Delacruz and four others, including Anthony Waller. A jury convicted Delacruz of aggravated robbery but acquitted him of felony murder; the court sentenced Delacruz to an 83-month prison sentence. The conviction and sentence were upheld on appeal. State v. Delacruz, No. 106, 082, 2012 WL 1352865 (Kan. App. 2012) (unpublished opinion), rev. denied 299 Kan. 1271 (2014) (Delacruz I).

         After Delacruz' trial was completed, the State subpoenaed him to be a witness at Waller's murder trial. When Delacruz attempted to invoke his Fifth Amendment right against self-incrimination, the State informed the district court that it was granting Delacruz immunity for his testimony. The written grant of immunity proffered by the State, titled "GRANT OF USE IMMUNITY, " stated:

"COMES NOW the Plaintiff, State of Kansas, by and through Reno County District Attorney of the 27th Judicial District, Keith E. Schroeder, pursuant to the authority vested in me as District Attorney, by K.S.A. 22-3415(a)(c), do hereby grant to: Jose G. Delacruz, immunity from the use of any testimony given in the above-captioned matter on February 28, 2011 through March 9, 2011. I, Keith E. Schroeder, District Attorney, grants [sic] this use immunity as described above with the legal assurance that such testimony will not be used against Jose G. Delacruz in any potential future case against Jose G. Delacruz. I, Keith E. Schroeder, District Attorney, condition this grant of use immunity as described on the condition that the testimony of Jose G. Delacruz must be truthful."

          Delacruz argued that the grant of immunity did not preclude his invocation of Fifth Amendment rights because his aggravated robbery conviction was then on appeal and because the written grant of immunity did not protect him from federal prosecution. The trial judge, Honorable Timothy J. Chambers, took the matter under advisement.

         In the interim, the United States Attorney for the District of Kansas, Barry R. Grissom, sent a letter to the district attorney stating that Grissom was familiar with the facts surrounding Delacruz' case and that while the letter did not act as a "formal grant of immunity, " no federal prosecution against Delacruz was warranted or would be forthcoming for his involvement in the murder of Haines. Grissom opined that the federal prosecution of Delacruz would violate the Department of Justice's Petite policy. See Petite v. United States, 361 U.S. 529, 530, 80 S.Ct. 450, 4 L.Ed.2d 490 (1960) (a federal trial following a state prosecution for the same conduct generally barred).

         Judge Chambers then issued an order stating: "K.S.A. 22-3415 confers upon the District Attorney the authority to grant use and derivative immunity. Written immunity has been granted by the District Attorney to Jose Delacruz. Therefore, Jose Delacruz will be compelled to testify in the trial of the above captioned matter." (Emphasis added.) The district court apparently did not address the fact that the written document purported to grant only use immunity. See Kastigar v. United States, 406 U.S. 441, 453-54, 92 S.Ct. 1653, 32 L.Ed.2d 212, reh. denied 408 U.S. 931 (1972) (mere use immunity insufficient protection under Fifth Amendment; use and derivative use immunity coextensive with constitutional privilege against self-incrimination).

         Delacruz appeared before Judge Chambers three times during Waller's trial and, upon advice of counsel, refused the judge's order to testify. Judge Chambers set a jury trial on the question of whether Delacruz was in direct criminal contempt of court for refusing to testify at Waller's trial. Meanwhile, Waller was convicted of first-degree felony murder and aggravated kidnapping without Delacruz' testimony. See State v. Waller, 299 Kan. 707, 328 P.3d 1111 ...


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