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

411 P.3d 1207

STATE of Kansas, Appellee,

v.Jose DELACRUZ, Appellant.

No. 111,795

Supreme Court of Kansas.

Opinion filed March 2, 2018.

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 App. 2012) (unpublished opinion), rev.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, 92 S.Ct. 2478, 33 L.Ed.2d 345 (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 (2014) (affirming convictions and sentences). 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.

On the morning scheduled for trial, Judge McCarville denied Delacruz' motion to dismiss based upon the claim that Judge Chambers' order to testify had violated Delacruz' Fifth Amendment right against self-incrimination. Thereafter, Delacruz waived his right to a jury trial and the case was submitted to Judge McCarville on stipulated facts. After considering arguments, Judge McCarville stated,

"There is really no doubt that Mr. Delacruz didn't comply with a direct order from District Judge Timothy J. Chambers, Division II, to testify in the Anthony Waller case and based upon my previous rulings there is no reasonable basis for him to have claimed the right not to testify under the Fifth Amendment so his refusal to testify was unlawful, was willful, was intentional and felonious and occurred here in Reno County in this court. The Court finds the defendant is guilty beyond a reasonable doubt of felony criminal contempt of court as alleged in the accusation."

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:

"The question here is not, this is not a case where we're talking about somebody not taking their hat off or saying a bad word or not standing to address the Court or interrupting another attorney where those things are somewhat disruptive and do not lead to creation of the kind of atmosphere that we need to have in order for people to feel that when they come to court they can present, they can give their, they can present their case and witnesses can come to court and testify without having intimidation going in the courtroom or disruption or annoyance or disturbance. Those kind of things, that's, in my opinion, are a little on a different level and a different plane. What we have in this case is an attack against the whole, the very essence of the judicial process.

"The reason that we're talking about celebrating Veteran's Day tomorrow, thousands and thousands of veterans have sacrificed their life to preserve our way of life; the most, in my opinion the most important of which is to have everyone treated the same, that in courts doesn't matter who you are you have the same rights. Doesn't matter who you are, you're treated with the same respect and dignity and it doesn't matter who you are if you're the poorest person with the most depraved background, if you have a witness that you want to have testify ... that has relevant and admissible evidence in your case then you have the right to have that person brought to court and compelled to testify. Defendants charged with murder or other heinous crimes have the right to expect that if they have a witness that's going to help present their defense that the Court will have the power to bring that person in and make them testify in order to help them prove their innocence and what Mr. Delacruz has done is to say well, maybe not so fast. It doesn't apply when I decide that I'm not going to be the witness.

"What I need to know is okay, what is a sufficient sentence to cause a person in Mr. Delacruz's position to decide that he'd rather testify and take his chances with whatever repercussions there might be that his attorneys tell him about. What is

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