State v. Showalter

553 P.3d 276

STATE of Kansas, Appellee,

v.Richard Daniel SHOWALTER Defendant,(Matthew Douglas Hutto), Appellant.

No. 124,598

Supreme Court of Kansas.

Oral Argument Held September 11, 2023.

Opinion Filed August 2, 2024

Syllabus by the Court

1. The Fifth Amendment to the United States Constitution provides that no person shall be compelled in any criminal case to be a witness against himself or herself. The United States Supreme Court has long held this provision is to be liberally construed.

2. The Fifth Amendment privilege against self-incrimination applies to the states through the Fourteenth Amendment to the United States Constitution.

3. Section 10 of the Kansas Constitution Bill of Rights provides that no person shall be a witness against himself or herself and extends the same protections against self-incrimination as the Fifth Amendment.

4. The Fifth Amendment provides two distinct privileges against self-incrimination: (1) that of criminal defendants not to be compelled to testify at their own trial and (2) that of any person not to be compelled to answer questions which may incriminate him or her in future criminal proceedings.

5. The privilege against self-incrimination protects a person from being forced to disclose information which would support a criminal conviction against that person as well as that which would furnish a link in the chain of evidence that could lead to a criminal prosecution of that person.

6. The proper standard to determine whether the Fifth Amendment privilege protects a witness from being compelled to testify is whether the testimony sought exposes the witness to a legitimate risk—meaning a real and appreciable danger—of incrimination, not a hypothetical or speculative one. The witness’ fear of self-incrimination must be objectively reasonable and the threat discernible for the privilege to apply.

7. A guilty plea constitutes a limited waiver of the privilege against self-incrimination for purposes of establishing guilt. A defendant who waives the privilege by guilty plea retains it for sentencing and until the risk of incrimination terminates.

8. When determining the availability of the privilege against self-incrimination, the risk-of-incrimination standard applies equally when the information sought relates to a witness' prior conviction by verdict or by guilty plea. Language to the contrary in State v. Longobardi, 243 Kan. 404, 756 P.2d 1098 (1988), and State v. Bailey, 292 Kan. 449, 255 P.3d 19 (2011), is overruled.

9. The Fifth Amendment privilege against self-incrimination remains available to a defendant or witness who has filed a direct appeal in a criminal case and a decision on appeal is not final (or whose right to file a direct appeal has not expired) when the testimony sought exposes the witness to a legitimate risk of incrimination.

10. A defendant cannot take a direct appeal from a conviction flowing from a plea of guilty or no contest. The right to take such a direct appeal is one of the rights surrendered when the plea is entered.

11. A defendant who pleads guilty and moves to withdraw the plea after sentencing pursuant to K.S.A. 22-3210(d)(2) can directly appeal the district court’s denial of that motion.

12. The Fifth Amendment privilege against self-incrimination remains available to a defendant or witness who pled guilty but has filed a postsentence motion to withdraw plea pursuant to K.S.A. 22-3210(d)(2) and (e) and a decision on the motion or a decision on the timely appeal of denial of the motion is not final, when the testimony sought exposes the witness to a legitimate risk of incrimination.

13. A conviction is generally not considered final until the judgment of conviction has been rendered, the availability of an appeal has been exhausted, and the time for any rehearing or final review has passed.

Review of the judgment of the Court of Appeals in 62 Kan. App. 2d 675, 522 P.3d 292 (2022). Appeal from Shawnee District Court; David B. Debenham, judge.

Shawna R. Miller, of Miller Law Office, LLC, of Holton, argued the cause and was on the briefs for appellant.

Kristafer R. Ailslieger, deputy solicitor general, argued the cause, and Derek Schmidt, former attorney general, and Kris W. Kobach, attorney general, were with him on the briefs for appellee.

The opinion of the court was delivered by Standridge, J.:

Matthew Douglas Hutto pled guilty to two counts of felony murder and received two consecutive hard 25 life sentences. After sentencing, Hutto filed a pro se motion to withdraw his pleas. The district court denied his motion and this court affirmed. In the interim period between this court announcing its decision and the deadline to files a motion for rehearing or modification, Hutto refused to testify against Richard Daniel Showalter, his accomplice in the felony murders, by invoking his Fifth Amendment privilege against self-incrimination. The district court ruled Hutto no longer had a privilege against self-incrimination, but Hutto still refused to testify. The district court entered an order finding Hutto in contempt and imposed a sanction of six months in jail.

Hutto appealed the district court’s finding of direct contempt and the sanction. Relying on State v. Smith, 268 Kan. 222, 235, 993 P.2d 1213 (1999), Hutto argued he retained the privilege against self-incrimination at the time he refused to testify because he had not yet exhausted all methods of attacking his convictions and sentences, including a Supreme Court Rule 7.06 motion for rehearing or modification of this court’s decision on his request to withdraw his guilty pleas and a possible K.S.A. 60-1507 motion for habeas corpus relief. (2024 Kan. S. Ct. R. at 51). A Court of Appeals panel rejected Hutto's argument, questioning Smith’s holding given the weight of our precedent establishing defendants lose their privilege against self-incrimination at sentencing when they plead guilty and do not move to withdraw their plea before sentencing. State v. Showalter, 62 Kan. App. 2d 675, 687-90, 522 P.3d 292 (2022). Because Hutto did not move to withdraw his guilty pleas before sentencing, the panel found the district court correctly directed Hutto to testify because he lost his privilege against self-incrimination when sentenced for those crimes. Thus, the panel affirmed the finding of direct contempt for violating the district court’s directive. 62 Kan. App. 2d at 692-93, 522 P.3d 292.

On review, we hold the proper standard to determine whether the Fifth Amendment privilege protects a witness from being compelled to testify is whether the testimony sought exposes the witness to a legitimate risk—meaning a real and appreciable danger—of incrimination, not a hypothetical or speculative one. The witness’ fear of self-incrimination must be objectively reasonable and the danger discernible for the privilege to apply.

In line with controlling federal precedent on availability of the privilege when there is a legitimate risk of incrimination present, including after a guilty plea, we hold the risk-of-incrimination standard applies equally when the information sought relates to a witness’ prior conviction by verdict or by guilty plea, overruling State v. Longobardi, 243 Kan. 404, 409, 756 P.2d 1098 (1988), and State v. Bailey, 292 Kan. 449, 461-63, 255 P.3d 19 (2011).

Consistent with this standard and the weight of authority across the country, we hold the Fifth Amendment privilege remains available to a defendant or witness who filed a direct appeal in a criminal case and a decision on appeal is not final (or whose right to file a direct appeal has not expired), when the testimony sought exposes the witness to a legitimate risk of incrimination.

Finally, we have construed a defendant’s statutory right to withdraw a guilty plea postsentenee under K.S.A. 22-3210(d)(2) as implying a right to directly appeal the district court’s denial of that motion. In such a case, compelled testimony relating to the underlying crime could expose the defendant to a legitimate risk of incrimination if the relief was granted and the defendant was retried. Therefore, we hold the privilege similarly remains available to a defendant or witness who pled guilty but has filed a postsentence motion to withdraw plea pursuant to K.S.A. 22-3210(d)(2) and (e) and a decision on the motion or a decision on the timely appeal of denial of the motion is not final, when the testimony sought exposes the witness to a legitimate risk of incrimination.

Applying this standard and our related holdings to the facts here, we conclude Hutto faced a legitimate risk of incrimination if forced to testify to the specific question posed to him in Showalter's trial about how he caused the victims to die. At that time, Hutto still had a legally viable opportunity to challenge this court’s decision denying him relief by filing a motion for rehearing or modification as part of his direct appeal. And if such relief was granted, Hutto’s response to the question in Showalter’s trial could have incriminated him in a new trial. Having properly invoked the Fifth Amendment privilege, Hutto could not be punished for refusing to testify. We therefore reverse the district court’s order finding Hutto in contempt and vacate the sanction of six months in jail.

Facts

The relevant facts relating to Hutto’s felony-murder convictions are detailed in State v. Hutto, 313 Kan. 741, 490 P.3d 43 (2021). Highly summarized, the State charged Hutto with two counts of premeditated first-degree murder and single counts of conspiracy to commit first-degree murder and aggravated burglary. The charges were based on evidence suggesting Hutto and three other men took part in the July 2018 murders of Lisa Sportsman and 17-year-old J.P. The State later amended its complaint to include two alternative counts of felony murder and one count each of attempted first-degree murder and possession of methamphetamine. Hutto told law enforcement he and the other men traveled from Greenleaf,...