T.H., Matter of, 75051

• Citation: 23 Kan.App.2d 471,932 P.2d 1023
• Decision Date: 14 February 1997
• Docket Number: No. 75051,75051
• Parties: In the Matter of the Investigation into the Homicide of T.H.
• Court: Kansas Court of Appeals

Page 1023

932 P.2d 1023

23 Kan.App.2d 471

In the Matter of the Investigation into the Homicide of T.H.

No. 75051.

Court of Appeals of Kansas.

Feb. 14, 1997.

Syllabus by the Court

1. A person called as a witness in an inquisition under K.S.A. 22-3101 et seq. is not provided a blanket Fifth Amendment immunity from answering questions. K.S.A. 22-3102 does protect a witness from being required to make incriminating statements. Thus, district courts should require witnesses to assert any Fifth Amendment right on a question-by-question basis.

2. In an inquisition, the protection of the Fifth Amendment is properly invoked where the witness has reasonable cause to apprehend danger from a direct answer. To meet this standard it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might result in an injurious disclosure.

3. A court determining whether a question posed at an inquisition is properly within the scope of the Fifth Amendment right should take a broad view of what may result in an injurious disclosure.

4. The district court has the inherent power and discretion to refuse to issue subpoenas under K.S.A. 22-3101 to avoid abuse of judicial process. The district court has the power to quash a subpoena if it is unreasonable or oppressive. Subpoenas issued in inquisitions are subject to less strict relevancy requirements than subpoenas in aid of civil or criminal litigation.

5. K.S.A. 22-3101(1) authorizes the attorney general, an assistant attorney general, the county attorney, or the district attorney of any county to apply to the district court to conduct an inquisition. Once an inquisition has been commenced by a district attorney or a county attorney, an assistant district or county attorney may question witnesses.

6. Generally speaking, inquisition hearings may be closed to the public.

7. Contempt proceedings arising from an inquisition and held in secret violate the Fourteenth Amendment Due Process Clause.

Timothy D. Hamilton, Kansas City, for appellant.

Terra D. Morehead, Assistant District Attorney, Nick A. Tomasic, District Attorney, and Carla J. Stovall, Attorney General, for appellee.

Before GERNON, P.J., ELLIOTT, J., and THEODORE B. ICE, District Judge, Assigned.

THEODORE B. ICE, District Judge, Assigned:

This appeal by a witness at an inquisition results from findings by the district court following the death of 16-month-old T.H. in Wyandotte County.

The following questions are presented: (1) Did the district court err in refusing to allow the witness to assert a blanket Fifth Amendment right to silence at the inquisition; (2) did the district court use the correct standard to determine whether the witness could properly invoke the Fifth Amendment right in response to the questions asked by the assistant district attorney; (3) did the district court err in determining that the witness did not have a reasonable cause to apprehend danger from a direct answer to the two disputed questions; (4) did the district court err in refusing to quash the subpoena of the witness; (5) is an assistant district attorney authorized to conduct an inquisition; (6) did the district court err in closing the inquisition to the public, secluding the court file and records, and allowing police detectives to remain in attendance at the inquisition; (7) did the district court err in holding the contempt proceedings without a public hearing; and (8) did the district court err in allowing the assistant district attorney to question the witness on matters outside the homicide investigation?

Blanket Fifth Amendment Right to Silence

The witness argues the district court should have allowed a blanket Fifth Amendment right to be asserted in order for the witness to remain totally silent at the inquisition. Further, the witness contends this court should find K.S.A. 22-3101 et seq. violates the Fifth Amendment to the United States Constitution, the Fourteenth Amendment to the United States Constitution, and § 10 of the Kansas Constitution Bill of Rights. In the alternative, the witness requests that this court instruct the district court to allow an assertion of a blanket right of silence unless the witness is given an unconditional grant of immunity from prosecution for any matter about which the witness testifies.

Interpretation of the inquisition statute is a question of law upon which this court has unlimited review. See State v. Williams, 20 Kan.App.2d 185, 190, 884 P.2d 755 (1994).

K.S.A. 22-3102 provides:

"No person called as a witness at an inquisition shall be required to make any statement which will incriminate him. The attorney general, assistant attorney general or county attorney may, on behalf of the state, grant any person called as a witness at an inquisition immunity from prosecution or punishment on account of any transaction or matter about which such person shall be compelled to testify and such testimony shall not be used against such person in any prosecution for a crime under the laws of Kansas or any municipal ordinance. After being granted immunity from prosecution or punishment, as herein provided, no person shall be excused from testifying on the ground that his testimony may incriminate him."

K.S.A. 22-3104 provides:

"(1) Any person called to testify at an inquisition must be informed that he has a right to be advised by counsel and that he may not be required to make any statement which will incriminate him. Upon a request by such person for counsel, no further examination of the witness shall take place until counsel is present....

"(2) Counsel for any witness shall be present while the witness is testifying and may interpose objections on behalf of the witness. He shall not be permitted to examine or cross-examine his client or any other witness at the inquisition."

Inquisitions are used for gathering information to determine whether probable cause exists to support a criminal prosecution. An inquisition may also be used, however, to obtain sworn testimony following an indictment. This court, in fact, has previously held that an inquisition can be used to obtain testimony whenever an individual is believed to have information concerning criminal activity. State v. Brewer, 11 Kan.App.2d 655, 656, 732 P.2d 780, rev. denied 241 Kan. 839 (1987).

"An inquisition is in effect a one-person grand jury which provides the attorney general, his assistant, or any county or district attorney with authority to inquire into alleged violations of the law." State v. Cathey, 241 Kan. 715, 723, 741 P.2d 738 (1987).

K.S.A. 60-407(b) provides: "[N]o person has a privilege to refuse to be a witness." One of the exceptions to this general rule is the constitutional guarantee of the right against self-incrimination contained in the Fifth Amendment to the United States Constitution, which is echoed in the Kansas Constitution and set forth in K.S.A. 60-425.

The Fifth Amendment privilege " 'can be claimed in any proceeding, be it criminal or civil, administrative or judicial, investigatory or adjudicatory [citations omitted], and it protects any disclosures which the witness may reasonably apprehend could be used in a criminal prosecution or which could lead to other evidence that might be so used.' " State v. Lekas, 201 Kan. 579, 589, 442 P.2d 11 (1968) (quoting Murphy v. Waterfront Comm'n, 378 U.S. 52, 94, 84 S.Ct. 1594, 1611, 12 L.Ed.2d 678 [1964] [White, J., concurring.] ).

The object of the Fifth Amendment is " 'to insure that a person should not be compelled, when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime.' " Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 322, 38 L.Ed.2d 274 (1973) (quoting Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 198, 35 L.Ed. 1110 [1892] ). The privilege is founded on " 'our unwillingness to subject those suspected of a crime to the cruel trilemma of self-accusation, perjury or contempt.' " Doe v. United States, 487 U.S. 201, 212, 108 S.Ct. 2341, 2348, 101 L.Ed.2d 184 (1988) (quoting Murphy v. Waterfront Comm'n, 378 U.S. at 55, 84 S.Ct. at 1596).

An accused in a criminal case cannot be required to testify. K.S.A. 60-423; State v. Nott, 234 Kan. 34, 36, 669 P.2d 660 (1983). Similarly, a person who is the subject of a custodial interrogation by law enforcement officials has the right to remain silent. Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966); State v. Lewis, 258 Kan. 24, 31, 899 P.2d 1027 (1995). These protections are absolute, and a person may claim a blanket privilege. "In a criminal trial, a defendant has the absolute right not to be called as a witness." Nott, 234 Kan. at 36, 669 P.2d 660. The witness in this appeal argues a similar blanket privilege should apply to a witness in an inquisition. This issue has not been directly addressed by any published Kansas appellate opinion, and this opinion is intended to clarify that issue.

The first sentence of K.S.A. 22-3102 provides: "No person called as a witness at an inquisition shall be required to make any statement which will incriminate him." Thus, the inquisition statute contemplates that a person who might make incriminating statements may be called as a witness; it does, however, protect the witness from being required to make incriminating statements. K.S.A. 22-3102 does not expressly protect a witness from being required to answer nonincriminating questions.

The Kansas Supreme Court, in State v. Cathey, 241 Kan. at 722, 741 P.2d 738, held that a Miranda warning is not required before a witness is questioned at an inquisition because the warning provided by K.S.A. 22-3104 is adequate. The court held that the district court did not err in refusing to suppress the defendant's inquisition statement given after the statutory warnings,...