State v. Carapezza

• Decision Date: 09 March 2012
• Docket Number: Nos. 101,958,101,959.,s. 101,958
• Citation: State v. Carapezza, 272 P.3d 10, 293 Kan. 1071 (Kan. 2012)
• Parties: STATE of Kansas, Appellant, v. Marcy Faith CARAPEZZA, Appellee.andState of Kansas, Appellant, v. Jason Cole Hughes, Appellee.
• Court: Kansas Supreme Court

272 P.3d 10

293 Kan. 1071

STATE of Kansas, Appellant,

v.Marcy Faith CARAPEZZA, Appellee.andState of Kansas, Appellant,

v.Jason Cole Hughes, Appellee.

Nos. 101,958

101,959.

Supreme Court of Kansas.

March 9, 2012.

Syllabus by the Court

1.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.

2.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.

3.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.

4.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).

5.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.

6.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.

Rodney H. Symmonds, of Symmonds & Symmonds, LLC, of Emporia, special prosecutor, argued the cause, and Steve Six, attorney general, was with him on the brief for appellant.

Julia S. Spainhour, of Northeast Kansas Conflict Office, argued the cause and was on the brief for appellee Carapezza.

Stephen J. Atherton, of Atherton & Huth, of Emporia, argued the cause and was on the brief for appellee Hughes.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.

Factual and Procedural Overview

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 ), andState 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 head several times with the hammer and sticking a glove in her mouth in order to keep her quiet.

Immediately following the inquisitions, the police broadened their investigation and conducted additional interviews and inquisitions.About a month after her immunized inquisition testimony, on August 27, 2004, Carrapezza was charged with murder in Clark's death.Some months later, on December 13, 2004, the State charged Hughes.Ultimately, they were both convicted of felony murder, together with other felonies.

On appeal, this court, in a split decision, reversed the convictions because of improper expert testimony regarding the propensity of drug users to commit violent crimes.Given that disposition, the majority declined to examine the entire record for the purpose of determining which items of the State's evidence were the product of immunized testimony.But the opinions directed the trial court to conduct renewed hearings on that issue and placed the burden on the State“to demonstrate that no part of its case was or will be derived from the immunized testimony.”Carapezza,286 Kan. at 1007, 191 P.3d 256;Hughes,286 Kan. at 1029, 191 P.3d 268.

Carapezza and Hughes filed renewed motions to suppress evidence pursuant to Kastigar's prohibition against the State's use of immunized testimony.The trial court granted the defendants' motions to suppress in part.

First, the district court precluded the county attorney, his assistants, and his staff from participating in any new trial in any way, including refraining from any discussions or information-sharing with any substitute or special prosecutor.Next, the court employed the methodology excluding the testimony of any State witness who had been present at the defendants' immunized inquisitions, as well as those that had been exposed to the immunized statements, which included seven specifically named law enforcement officers.Finally, the court discussed in detail the reasons for excluding the testimony of seven lay witnesses, which included Paico.

However, the district court carefully explained that it had found that a number of witnesses had not been exposed to the immunized statements; that they would be testifying solely from their own knowledge; and that they would be testifying about information that had been gathered from them prior to the time of defendants' immunized statements.The court then specifically named the 38 persons whose entire testimony could be used in a retrial.

Subsequently, the district court granted the defendants' motion to reconsider and suppressed the testimony of one additional witness.The court denied the State's motion for reconsideration.The State then filed a notice of interlocutory appeal under K.S.A. 22–3603, challenging the district court's suppression of evidence.Because the defendants have not cross-appealed, we do not consider the district court's findings that the State met its burden to prove that the testimony of the 38 specifically named witnesses constituted evidence independently obtained from a collateral source.

State's Burden of Proof

The State's brief, after a 45–page factual recitation, begins its legal arguments by first complaining that the district court misinterpreted the provisions of K.S.A. 22–3102(b)(2) when it required the State to meet a clear and convincing burden of proof.The State believes that, when the issue before the court involves the indirect or nonevidentiary use of immunized testimony, the appropriate standard is the preponderance of the evidence burden of proof purportedly utilized in Kastigar v. United States,406 U.S. 441, 461–62, 92 S.Ct. 1653, 32 L.Ed.2d 212(1972).

Standard of Review

Statutory interpretation is a question of law.State v. Arnett,290 Kan. 41, 47, 223 P.3d 780(2010).More specifically, a determination of the applicable burden of proof is a question of law.In re Estate of Farr,274 Kan. 51, 62, 49 P.3d 415(2002).An appellate court has unlimited review over conclusions of law.Owen Lumber Co. v. Chartrand,283 Kan. 911, 915, 157 P.3d 1109(2007).

Analysis

Immunity statutes“seek a rational accommodation between the imperatives of...