State v. Adams

547 P.3d 593

STATE of Kansas, Appellant,

v.Christopher Shawn ADAMS, Appellee.

No. 126,130

Court of Appeals of Kansas.

Opinion Filed April 19, 2024.

Appeal from Ellis District Court; Thomas J. Drees, judge. Submitted without oral argument.

Kristafer R. Ailslieger, deputy solicitor general, and Kris W. Kobach, attorney general, for appellant.

Heather R. Fletcher, of Johnson Fletcher, LLC, of Hays, for appellee.

Before Arnold-Burger, C.J., Atcheson, J., and Timothy G. Lahey, S.J.

Atcheson, J.:

If a prosecutor charges a witness with perjury based on his or her preliminary hearing testimony in a criminal case, may that person then assert a constitutional privilege against self-incrimination when called as a State’s witness in the later jury trial? The Ellis County District Court ruled Stephanie Lang could exercise her right to avoid another perjury charge in that circumstance. We agree. In reaching that conclusion, the district court made two related determinations. First, the district court held that the State’s grant of immunity to Lang under K.S.A. 22-3415 was insufficient to protect her against a second perjury charge. Again, we agree. The district court also ruled that the State could not use Lang’s preliminary hearing testimony and her out-of-court statements presented during the preliminary hearing as evidence in the jury trial, even though she would be unavailable as a witness., Because the State has not challenged that ruling in bringing this Interlocutory appeal, it may be reconsidered in the district court.

Factual and Procedural Background

Given the issue on appeal, we may quickly sketch the underlying criminal charges against Defendant Christopher Shawn Adams. The procedural developments in the district court more closely frame the legal dispute.

A couple of hours after a Saturday night slipped into Sunday morning in September 2021, a man was punched in the face outside a bar and grill in downtown Hays. The man’s Jaw and nose were broken in the sudden attack, and he did not know who struck him. Police officers responded quickly, but none of the onlookers could identify the attacker.

The police received a report of a domestic disturbance nearby. When they arrived, they found Lang, Adams, and a third man. The man told police he saw a physical dispute between Lang and Adams, attempted to intervene, and called 911. According to the man, Adams struck him. When questioned by officers there—in a recorded interview— Lang said Adams grabbed her and threw her to the ground. She also said Adams had punched a man outside a bar, knocking him to the ground. Lang said she was a nurse and briefly attended to the man.

About a week later, the State filed three charges against Adams: (1) aggravated battery, a severity level 4 person felony, for punching the man near the bar and grill; (2) misdemeanor domestic battery of Lang; and (3) misdemeanor battery of the man who stepped into their altercation. The State called Lang at Adams’ preliminary hearing on the aggravated battery charge. In her testimony, Lang said she did not see Adams punch anyone outside the bar and grill. And she testified she did not recall what she had told the police because she was quite intoxicated that night. The State called one of the police officers and played the recorded interview of Lang in which she inculpated Adams. The magistrate Judge bound Adams over for trial.

The prosecutor then charged Lang with perjury for testifying falsely at the preliminary hearing and alternatively with interference with law enforcement for making false statements to the investigating police officers. Each charge against Lang was. a felony. At the start of Adams’ Jury trial, Lang appeared with her lawyer and on his advice informed the district court that she asserted her right not to incriminate herself and, therefore, would not testify. The prosecutor tendered a grant of use and derivative immunity to Lang for her trial testimony under K.S.A. 22-3415. By its terms, statutory immunity does not cover perjury "in giving such evidence." K.S.A. 22-3415(d). While explaining "the State’s theory" as to why Lang could not assert her privilege against self-incrimination, the prosecutor told the district court he viewed Lang’s preliminary hearing testimony as perjurious "and therefore any consistent statements would be perjury again."

Under the circumstances, the district court concluded both that the prosecutor’s grant of immunity would not protect Lang from a new perjury charge if her trial testimony mirrored her preliminary hearing testimony and that she faced a substantial threat of being so charged. Accordingly, the district court found Lang had properly invoked her constitutional right against self-incrimination and did not have to testify in Adams’ trial, making her an unavailable witness. See K.S.A. 60-459(g)(1). The district court went on to find that the State—having already asserted Lang’s preliminary hearing testimony to be false—could not offer that testimony during the trial and, in turn, could not present Lang’s out-of-court statements admitted as evidence at the preliminary hearing.

Based on those evidentiary rulings, the prosecutor concluded the case against Adams had been substantially impaired and sought an interlocutory appeal under K.S.A. 22-3603 for that reason.

Legal Analysis

Appellate Jurisdiction

[1] Although the parties focus on the portion of the district court’s ruling allowing Lang to assert her constitutional privilege against self-incrimination, we necessarily consider a gatekeeping requirement for the State’s interlocutory appeal. To bring an appeal under K.S.A. 22-3603, the State must show that the district court’s exclusion of evidence would "seriously impede" the successful prosecution of the defendant. State v. Huninghake, 238 Kan. 155, 157, 708 P.2d 529 (1985). The Kansas Supreme Court has held the statute covers rulings precluding the presentation of previous testimony of an unavailable witness if the effect would "substantially impair" the State’s case against the defendant at trial. State v. Newman, 235 Kan. 29, 35, 680 P.2d 257 (1984).

[2] Considering the overall impact of the district court’s decision, we readily conclude the ruling materially undercut the State’s ability to prosecute Adams successfully. Lang’s out-of-court statements provided the primary evidence identifying Adams as the perpetrator of the aggravated battery outside the bar and grill. The preclusion of those statements satisfied the standard for an interlocutory appeal outlined in Huninghake and Newman. We, therefore, have appellate jurisdiction. The State and Adams have filed briefs. Lang has not requested the opportunity to do so, although her constitutional rights are directly at stake. We suppose she could have been heard here through her lawyer, as she was in the district court, if only as an amicus curiae.

Constitutional Privilege Against Self-Incrimination

We now turn to the district court’s decision permitting Lang to assert her privilege against self-incrimination and explain why the ruling properly serves the constitutional protection given the unusual facts of this case. After addressing that part of the district court’s ruling, we offer a closing comment about the scope of the district court’s concomitant exclusion of evidence. And I elaborate on that comment in a concurring opinion to suggest the exclusion of Lang’s preliminary hearing testimony along with her out-of-court statement to the police may be error.

[3–5] The Fifth Amendment to the United States Constitution provides that "[n]o person … shall be compelled in any criminal case to be a witness against himself." The protection permits an individual to refuse to answer questions put to them in a police interview, a grand jury proceeding, a judicial hearing or trial, and other governmental inquisitions when a prosecutor could later use the responses to pursue criminal charges against that individual. See Michigan v. Tucker, 417 U.S. 433, 440-43, 94 S. Ct. 2357, 41 L. Ed. 2d 182 (1974); Kastigar v. United States, 406 U.S. 441, 444-45, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972). The Framers viewed the right as a shield against Star Chamber prosecutions and the use of confessions induced through physical coercion rendering them inherently unreliable. See Idaho v. Wright, 497 U.S. 805, 822-23, 110 S. Ct. 3139, 111 L. Ed. 2d 638 (1990) (unreliability of statement given under duress); Tucker, 417 U.S. at 439-41, 94 S.Ct. 2357; Miranda v. Arizona, 384 U.S. 436, 444-48, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) (Fifth Amendment protection against self-incrimination intended to eliminate physical abuse as means of interrogation). The Fifth Amendment right has been incorporated through the Fourteenth Amendment and, therefore, applies to criminal proceedings in state court. Malloy v. Hogan, 378 U.S. 1, 6, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964). The Kansas Constitution contains a comparable protection construed coextensively with the Fifth Amendment privilege. Kansas Constitution Bill of Rights § 10; State v. Boysaw, 309 Kan. 526, 537-38, 439 P.3d 909 (2019) (self-incrimination protections of United States Constitution and Kansas Constitution "coextensive").

[6, 7] Appellate courts review claims involving the privilege against self-incrimination using the well-known bifurcated standard that accords deference to the district court’s factual findings if they are supported by substantial competent evidence but reserves unlimited review of the ultimate legal conclusion based on those findings. State v. Delacruz, 307 Kan. 523, 533, 411 P.3d 1207 (2018). More particularly here, the relevant facts are undisputed, so the district court’s decision necessarily entails a question of law. State v. Mejia, 58 Kan. App. 2d 229, 231-32, 466 P.3d 1217 (2020); State v. Bennett, 51 Kan. App. 2d 356, 361, 347 P.3d 229 (2015). Consistent with those standards, we exercise unlimited review over the district court’s decision...