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.
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.
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.
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.
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.
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,
Kepfield, of Hutchinson, argued the cause and was on the
brief for appellant.
E. Schroeder, district attorney, argued the cause, and Derek
Schmidt, attorney general, was with him on the brief for
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.
and Procedural Overview
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).
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.
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
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).
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 ...