by Sam Rutherford

The Supreme Court of Kansas held that a defendant’s privilege against compelled self-incrimination concerning his alleged criminal conduct survived his guilty plea and sentences for that alleged offense where legal avenues remained open to the defendant to challenge the guilty plea. The Court therefore vacated a judgment finding him in contempt based on his refusal to testify on Fifth Amendment grounds at a co-defendant’s trial.

Background

In 2018, Matthew Douglas Hutto and three other men took part in a double murder. Hutto ultimately pleaded guilty to and was sentenced for two counts of felony murder. He filed a motion to withdraw this guilty plea not long after sentencing. The district court denied the motion, and on July 9, 2021, the Kansas Supreme Court affirmed.

After the Supreme Court affirmed the denial of Hutto’s motion to withdraw his plea but before the time limit for seeking reconsideration of that decision expired, the State subpoenaed Hutto to testify against one of his co-defendants, Richard Daniel Showalter. The State granted Hutto “use immunity” for this testimony, but when he was called to testify, Hutton refused to do so.

The trial court held a hearing outside the presence of the jury. When the prosecutor asked Hutto why he had been convicted of felony murder, he responded, “I told you guys that I’m not testifying. I plead the Fifth.” The trial court ruled that Hutto no longer possessed a Fifth Amendment privilege concerning the conduct underlying his felony-murder convictions because he was already serving “50-plus years” for those crimes. The court ultimately held Hutto in contempt for refusing to testify on the State’s behalf and imposed a six-month jail sentence as a sanction independent of his existing felony murder sentences.

Hutto appealed the trial court’s contempt finding and sanction, arguing that his Fifth Amendment privilege survived his guilty plea and sentence because viable avenues remained open to him to challenge his conviction and sentence. He noted that at the time he was called to testify, he still had the right to file a motion for rehearing of the Kansas Supreme Court decision rejecting his motion to withdraw his guilty plea and the right to file a petition for habeas corpus relief.

The Kansas Court of Appeals rejected this argument, holding that Kansas Supreme Court case law establishes that defendants lose their privilege against self-incrimination at sentencing when they plead guilty and do not move to withdraw their plea before sentencing. Because Hutto was sentenced before he sought to withdraw his felony-murder guilty pleas, the panel found he lost his privilege against self-incrimination when sentenced for those crimes. It therefore affirmed the district court’s contempt finding and sanction.

The Kansas Supreme Court granted discretionary review and reversed. In so doing, it overruled several of its prior decisions inconsistent with its decision in Hutto’s case because they conflicts with controlling authority from the U.S. Supreme Court.

Analysis

The Court addressed three interrelated issues on review: “(1) the proper standard to assess whether a witness can invoke the Fifth Amendment privilege to prevent compelled testimony; (2) whether that standard should be different when the witness has pled guilty rather than being convicted by verdict; and (3) whether the privilege can be asserted after sentencing and, if so, under what circumstances.”

The Fifth Amendment to the U.S. Constitution provides that no person “shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend V. The privilege against self-incrimination protects individuals from making factual disclosures that are testimonial, compelled, and incriminating in nature. Hiibel v. Sixth Judicial Dist. Court of Nevada, 542 U.S. 177 (2004). While the Fifth Amendment’s self-incrimination clause must be liberally construed, Hoffman v. United States, 341 U.S. 479 (1951), assertion of the privilege must nonetheless be timely and affirmative or else it is waived. Roberts v. United States, 445 U.S. 552 (1980).

The Court observed that the privilege includes two distinct protections against self-incrimination: (1) that criminal defendants not to be compelled to testify at their own trial and (2) that persons not be compelled to answer questions that may incriminate them in future criminal proceedings. McCarthy v. Arndstein, 266 U.S. 34 (1924). This includes witnesses called to testify “in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory” when the answer could subject them to criminal liability. Kastigar v. United States, 406 U.S. 441 (1972).

The Court explained that the scope of the privilege against self-incrimination depends on the person asserting it: “While defendants can invoke a blanket privilege not to testify at their own trial, a compelled witness may only assert the privilege on a question-by-question basis and must establish a legitimate risk of incrimination to justify silence.” 3 Crim. Prac. Manual § 88:9. A witness establishes a legitimate risk of self-incrimination by showing a “real and appreciable” danger “with reference to the ordinary operation of law in the ordinary course of things; not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct.” Zicarelli v. New Jersey State Comm’n of Investigation, 406 U.S. 472 (1972); Marchetti v. United States, 390 U.S. 39 (1968); Brown v. Walker, 161 U.S. 591 (1896).

The danger of self-incrimination extends beyond just testimony that may provide evidence for a criminal prosecution and conviction; it also extends to other “adverse consequences.” Mitchell v. United States, 526 U.S. 314 (1999). For example, in Mitchell, the defendant pleaded guilty to her role in a cocaine distribution conspiracy but refused to testify about the specifics of her conduct at sentencing. The U.S. District Court ruled that she lost her privilege against self-incrimination by pleading guilty and then imposed a harsher sentence based on her refusal to testify. The Third Circuit affirmed, holding that a guilty plea serves as a permanent waiver of the Fifth Amendment privilege. It concluded that the privilege does not protect against the possibility of an increased sentence after pleading guilty. The U.S. Supreme Court rejected the Third Circuit’s position and reversed, reasoning that the privilege must be available at least through sentencing on a criminal conviction.

The Court went on to explain that the privilege is extinguished only in “cases in which the sentence has been fixed and the judgment of conviction has become final.” Mitchell. That is, the risk of self-incrimination is eliminated when “no adverse consequences can be visited upon the convicted person by reason of further testimony.” Id. Consequently, a guilty plea does not constitute a “broad waiver” of the privilege against self-incrimination because it does not eliminate the risk of further incrimination. Id.

Notably, the Kansas Supreme Court previously determined that a plea does constitute a broad waiver of the privilege following a guilty plea, holding that it “terminates absolutely upon sentencing, rather than when there is no longer a legitimate risk of incrimination.” State v. Longobardi, 756 P.2d 1098 (Kan. 1988). The state Supreme Court ruled that a defendant does not have the right to assert the privilege and refuse to testify at a co-defendant’s trial where he pleaded guilty and had been sentenced, despite a pending appeal therefrom, but does retain the right to refuse to testify if he was convicted following a jury trial and was appealing the verdict when called to testify against a co-defendant. State v. Delacruz, 411 P.3d 1207 (Kan. 2018) (jury verdict case); State v. Bailey, 255 P.3d 19 (Kan. 2011) (guilty plea case).

Because these cases are entirely inconsistent with the U.S. Supreme Court’s interpretation of the Fifth Amendment privilege, the Kansas Supreme Court overruled them. Rather than relying on a particular procedural point in a case for determining when a conviction extinguishes the defendant’s privilege against self-incrimination concerning that offense, the Court instead announced the adoption of an objective test that focuses on “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.”

Adoption of this test means that the privilege against self-incrimination concerning the crime for which a defendant has been convicted extends beyond sentencing and remains “available while a defendant challenges their conviction on direct appeal or until the time for such appeal has expired,” the Court stated. This is the majority rule adopted by most state and federal courts. Several other courts have likewise held that the privilege remains intact where the defendant filed a motion to withdraw their guilty plea and was appealing an adverse ruling.

Similarly, the Court also adopted this rule. Thus, the Court held that defendant-witnesses have a valid basis for asserting the privilege against self-incrimination and may properly refuse to testify where they are appealing either the conviction itself or the denial of a motion to withdraw a guilty plea, as long as “the testimony sought exposes the witness to a legitimate risk of incrimination.”

This privilege against “coercive incrimination” concerning a defendant’s conviction only “fades away when the direct appeal becomes final,” instructed the Court. A conviction does not become final when “(1) the judgment of conviction has been rendered, (2) the availability of an appeal has been exhausted, and (3) the time for any rehearing or final review has passed.” State v. Heath, 563 P.2d 418 (Kan. 1977). That’s because Kansas law also requires the appellate court to issue a mandate following an appeal, which then becomes part of the district court’s final judgment. See Kan. S. Ct. Rule 7.03(b)(1)(C); K.S.A. 60-2106(c). Thus, the Court stated that “a judgment on appeal is not considered final until the mandate has issued.”

And what does all this mean for Hutto? Simple—he had a valid basis for asserting his privilege against self-incrimination when called to testify against his co-defendant, according to the Court. Hutto filed a motion to withdraw his guilty plea to two counts of felony murder and appealed an adverse ruling on that motion. Although the Kansas Supreme Court issued an opinion affirming the denial of his motion when the State sought his testimony, the deadline for Hutto to file a motion for rehearing had not expired, and the mandate had not issued. Thus, the Court ruled that his direct appeal was not final.

Hutto’s risk of self-incrimination was also sufficient to support his assertion of the privilege against self-incrimination. As the Court explained, “compelling him to explain in detail what he did to the victims to cause them to die—an explanation that goes far beyond a guilty plea limited to a factual basis establishing the elements of the crime—created a legitimate risk of compelled incrimination if his request [to withdraw his plea] was granted.” Thus, the Court ruled that “Hutto properly invoked the Fifth Amendment privilege, and the district court could not punish him for his refusal to testify.”

Conclusion

Accordingly, the Court reversed the district court’s contempt finding and vacated its sanction sentencing Hutto to six months in jail. See: State v. Showalter, 553 P.3d 276 (Kan. 2024).

Writer’s note: The Court refused to address Hutto’s argument that the availability of filing a habeas corpus petition also supported finding a valid basis upon which he could have asserted the Fifth Amendment privilege against self-incrimination, but the Court refrained from addressing this issue because there was no evidence in the record that he had filed such a petition. As the Court explained, “A hypothetical or speculative danger of self-incrimination is not enough to invoke the privilege.” Nonetheless, the Court’s analysis strongly suggests that it would hold that a defendant-witness’ pending habeas petition or an appeal from the denial thereof does provide a basis for refusing to testify concerning the criminal conviction challenged therein.

Editor’s note: Anyone interested in the issue of a defendant-witness being compelled to testify after having pleaded guilty—but prior to the conviction being final—and having invoked his Fifth Amendment privilege against compelled self-incrimination is strongly encouraged to read the Court’s full opinion, which includes a thorough and instructive discussion of the issue with respect to both federal and Kansas case law.  

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