State v. Delacruz, 111,795
Citation | 411 P.3d 1207 |
Decision Date | 02 March 2018 |
Docket Number | No. 111,795,111,795 |
Parties | STATE of Kansas, Appellee, v. Jose DELACRUZ, Appellant. |
Court | United States State Supreme Court of Kansas |
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.
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.
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 App. 2012) (unpublished opinion), rev.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:
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) ( ).
Judge Chambers then issued an order stating: (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, 92 S.Ct. 2478, 33 L.Ed.2d 345 (1972) ( ).
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 (2014) ( ). Delacruz' contempt case was reassigned to the Honorable Joseph L. McCarville III.
The State then filed an accusation of contempt, charging Delacruz with three counts of criminal contempt based on the theory that each time he appeared before Judge Chambers and refused to testify constituted a separate contemptuous act. The State complained that Delacruz' refusal to testify made him unavailable for cross-examination, rendered his video recorded statements inadmissible, and precluded the State from explaining to the jury why Delacruz was not called as a witness. The State asked for consecutive sentences of 36 months for each act of contempt, for a controlling sentence of 108 months in prison, to be served consecutively to Delacruz' 83-month prison sentence for aggravated robbery.
But when Delacruz appeared before Judge McCarville on May 23, 2011, the judge recited a different accusation of contempt to Delacruz. The court had sua sponte drafted a contempt accusation that alleged that Delacruz had committed one act of contempt for failing to comply with an order of the court "to appear and testify under oath as a witness." Judge McCarville informed Delacruz that he would not impose a prison sentence greater than the State's recommendation of 108 months. Delacruz pled not guilty and the matter was set for trial.
After finding Delacruz guilty of direct criminal contempt, Judge McCarville proceeded to sentencing. The State adhered to its 108-month sentencing recommendation, notwithstanding the district court's dismissal of two counts of the State's original accusation in contempt. Delacruz asked for a six-month sentence.
Before pronouncing sentence, Judge McCarville endeavored to provide the reasoning behind his decision, albeit the court might have overlooked that it was the State, not the defendant, that had sought to compel Delacruz' testimony. The court explained:
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