State v. Showalter
| Decision Date | 16 December 2022 |
| Docket Number | 124,598 |
| Parties | STATE of Kansas, Appellee, v. Richard Daniel SHOWALTER, Defendant, (Matthew Douglas Hutto), Appellant. |
| Court | Kansas Court of Appeals |
Shawna R. Miller, of Miller Law Office, LLC, of Holton, for appellant.
Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, for appellee.
Before Arnold-Burger, C.J., Green and Malone, JJ.
The trial court directed Matthew Douglas Hutto to testify after Hutto invoked his privilege against self-incrimination under the Fifth Amendment to the United States Constitution. The trial court told Hutto that he no longer had the privilege against self-incrimination because our Supreme Court had just announced its decision denying his postsentencing motion to withdraw his two felony murder guilty pleas. State v. Hutto , 313 Kan. 741, 743-44, 751, 490 P.3d 43 (2021). It also told him that he no longer had the privilege because the State had granted him use immunity. Ultimately, because Hutto would not comply with its direction to testify, the trial court found Hutto in direct contempt of court.
Hutto appeals his direct contempt conviction, arguing that our Supreme Court's precedent does not support the trial court's reasons for ruling that he no longer had the privilege against self-incrimination. He contends that a person continues to have the privilege against self-incrimination until he or she has exhausted all methods of attacking his or her underlying criminal convictions and sentences. He also asserts that the trial court's ruling about the State's grant of use immunity contradicts our Supreme Court's holding in State v. Delacruz , 307 Kan. 523, 535, 411 P.3d 1207 (2018).
In response, although the State concedes that its grant of use immunity to Hutto did not terminate Hutto's privilege against self-incrimination under the Delacruz holding, it, however, argues that our Supreme Court's other precedent supports the trial court's ruling. It contends that most of our Supreme Court's caselaw supports that a person who pleaded guilty to a crime loses the privilege against self-incrimination when sentenced for that crime. Relying on this interpretation of our Supreme Court caselaw, the State argues that when Hutto refused to testify, Hutto no longer had the privilege against self-incrimination. Then, it argues that we should affirm Hutto's direct contempt conviction for violating the trial court's legitimate direction to testify.
In Delacruz , our Supreme Court held that "[a] court cannot lawfully compel a witness to testify based upon the State's grant of mere use immunity." 307 Kan. 523, Syl. ¶ 5, 534-35, 411 P.3d 1207. Indeed, the court explained the significant hurdle that must be cleared before a court can compel a witness to testify: "[I]f the government wants to compel testimony from a witness claiming the Fifth Amendment privilege against compulsory self-incrimination, it must grant the witness at least use and derivative use immunity , otherwise a citation in contempt must be reversed." ( Emphasis added.) 307 Kan. at 535, 411 P.3d 1207. So, as Hutto argues and the State concedes, the trial court erred when it ruled that Hutto no longer had the privilege against self-incrimination because of the State's grant of use immunity. Hence, under the Delacruz precedent, we hold that the trial court erred when it determined that Hutto no longer had the privilege against self-incrimination because of the State's grant of use immunity. See State v. Rodriguez , 305 Kan. 1139, 1144, 390 P.3d 903 (2017) (). And because the trial court plainly erred in this respect, it is not necessary for us to further address this issue.
As for Hutto's argument that a person retains the Fifth Amendment privilege against self-incrimination until he or she has exhausted all methods of attacking his or her underlying criminal convictions and sentences, the State correctly argues that our Supreme Court's precedent does not support his position. A critical fact that the parties largely ignore is that Hutto pleaded guilty to two counts of felony murder and did not move to withdraw his felony murder guilty pleas until after he was sentenced . In short, our Supreme Court precedent establishes that defendants lose their privilege against self-incrimination at sentencing when they have pleaded guilty and have failed to move to withdraw their guilty plea before sentencing. Here, because Hutto was sentenced before he attempted to withdraw his felony murder guilty pleas, Hutto lost his privilege against self-incrimination when sentenced for those crimes. The privilege did not extend until he exhausted all postsentencing methods of attacking his convictions and sentences. So, when Hutto refused to testify—citing the privilege against self-incrimination—the trial court correctly directed Hutto to testify because he no longer had a valid Fifth Amendment privilege. As a result, we affirm Hutto's direct contempt conviction for violating the trial court's direction.
On July 26, 2018, the State charged Hutto with two counts of first-degree murder, one count of conspiracy to commit first-degree murder, and one count of aggravated burglary. Hutto , 313 Kan. at 743-44, 490 P.3d 43. Later, the State amended its complaint to also charge Hutto with two alternative counts of felony murder, one count of attempted first-degree murder, and one count of opiate possession. Evidence indicated that Hutto was involved in the murder of Lisa Sportsman and Jesse Polinskey. During an interview with law enforcement, Hutto admitted to traveling from Greenleaf, Kansas, to Topeka, Kansas, to murder Lisa with Brad Sportsman (Lisa's husband), Richard Showalter, and Cole Pingel. 313 Kan. at 743, 490 P.3d 43. Although he denied physically participating in the murders, he told law enforcement that he had helped Showalter enter Lisa's house so Showalter could murder Lisa.
Once the State filed its charges, Hutto began plea negotiations. Initially, Hutto considered cooperating with the State to get a better plea deal. Under his ultimate plea agreement, though, Hutto did not have to give the State evidence against his accused murder accomplices. Rather, under this agreement, Hutto agreed to plead guilty to two counts of felony murder in exchange for the State's dismissal of his remaining charges. Also, under this agreement, Hutto could ask the trial court to impose concurrent sentences, rather than consecutive sentences, for his two felony murder convictions.
On January 18, 2019, Hutto pleaded guilty to the felony murder of Lisa and Polinskey in accordance with his plea agreement with the State. On May 10, 2019, the trial court sentenced Hutto to two consecutive hard 25 life sentences.
After his sentencing, Hutto did not directly appeal to our Supreme Court. But on May 22, 2019, he did file a pro se motion to withdraw his felony murder guilty pleas. Hutto argued that he received ineffective assistance of plea counsel for a variety of reasons, which meant that he should be allowed to withdraw his guilty pleas. Hutto , 313 Kan. at 744, 490 P.3d 43. The trial court disagreed, denying Hutto's motion on February 11, 2020.
On February 17, 2020, Hutto appealed the trial court's decision to deny his postsentencing motion to withdraw his felony murder guilty pleas to our Supreme Court. In the end, our Supreme Court rejected the only argument Hutto raised on appeal. Hutto asserted that his plea counsel "was ineffective to the extent of misleading him and preventing him from entering into the plea in a voluntary fashion" because plea counsel failed to tell him about his "viable compulsion defense." Hutto , 313 Kan. at 745-46, 490 P.3d 43. But our Supreme Court rejected this argument for the following reasons: (1) because he had not adequately briefed it before the trial court, (2) because he had no viable compulsion defense under the evidence of his case, and (3) because plea counsel was not ineffective under the facts of his case. 313 Kan. at 746-51, 490 P.3d 43.
On July 9, 2021, our Supreme Court announced its decision affirming the trial court's denial of Hutto's postsentencing motion to withdraw his felony murder guilty pleas. On August 13, 2021, our Supreme Court issued its mandate.
Between these two events, however, the State started its jury trial against Hutto's accused felony murder accomplice—Showalter. The State had charged Showalter with two counts of first-degree murder as well as a single count each of conspiracy to commit first-degree murder, attempted first-degree murder, solicitation to commit first-degree murder, aggravated burglary, aggravated witness intimidation, and opiate possession. Because Showalter was Hutto's accused felony murder accomplice, the State subpoenaed Hutto to testify against Showalter at Showalter's jury trial. Nevertheless, when the State called Hutto to testify at the trial on July 13, 2021, Hutto refused to testify against Showalter.
The State questioned Hutto outside the presence of the jury with his attorney present. After the prosecutor asked Hutto why he was convicted of two felony murders, Hutto responded that he was "plead[ing] the Fifth." The prosecutor then asserted that Hutto no longer had the privilege against self-incrimination. According to the prosecutor, Hutto "no longer ha[d] an evidentiary privilege to refuse to testify" for three reasons: (1) because the trial court had already sentenced him for his crimes, (2) because our Supreme Court had already affirmed the denial of his postsentencing motion to withdraw guilty pleas, and (3) because the State had given him use immunity.
Relying on the prosecutor's arguments, the trial court ruled that Hutto no longer had the Fifth Amendment privilege against self-incrimination. And as a result, it directed Hutto to testify against...
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