Opinion
No. 107,018.
2012-08-10
STATE of Kansas, Appellant, v. Candace Lei GAMINO, Appellee.
Appeal from Finney District Court; Michael L. Quint, Judge. Brett Watson, assistant county attorney, John P. Wheeler, Jr., county attorney, and Derek Schmidt, attorney general, for appellant. Trevor Riddle, of Monnat & Spurrier Chtd., of Wichita, for appellee.
Appeal from Finney District Court; Michael L. Quint, Judge.
Brett Watson, assistant county attorney, John P. Wheeler, Jr., county attorney, and Derek Schmidt, attorney general, for appellant. Trevor Riddle, of Monnat & Spurrier Chtd., of Wichita, for appellee.
Before GREENE, C.J., STANDRIDGE and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
The State appeals from the district court's dismissal with prejudice of one charge of aggravated intimidation of a witness against Candace Lei Gamino. The State had charged Gamino under K.S.A. 21–3833(a)(2), alleging that she was involved in a conspiracy with Aaron Akers to intimidate a complaining witness in a battery case. After Gamino's preliminary hearing was held, she was compelled by the State to testify at Akers' preliminary hearing. Although the prosecutor granted Gamino use and derivative-use immunity for her testimony, the complaining witness and others involved in Gamino's case were present to hear her testimony at Akers' preliminary hearing. Because we find that the district judge did not arbitrarily disregard evidence—or base his decision on bias, passion, or prejudice—and because the State invited the remedy that was imposed, we affirm the dismissal.
Facts
On April 12, 2011, Akers—who was in jail at the time—allegedly asked Gamino to talk to the complaining witness in his battery case, Heather Carroll, to request that she drop the charges against him. On that day, the jail recorded two phone conversations between Akers and Gamino, who was the manager of the apartment complex where Akers and Carroll lived. Because the discussions between Akers and Gamino allegedly involved a conspiracy, they were subsequently charged in separate cases with aggravated intimidation of a witness under K.SA. 21–3833(a)(2).
Following a preliminary hearing held on August 16, 2011, Gamino was bound over for trial. Subsequently, on August 29, 2011, Gamino was compelled to testify at Akers' preliminary hearing under a grant of use and derivative-use immunity pursuant to K.S.A. 22–3415(b)(2). Although the preliminary hearings were conducted by different judges, the same prosecutor handled both hearings. Likewise, Carroll was present in the courtroom when Gamino testified at Akers' preliminary hearing.
Gamino testified that she had two conversations with Akers on April 12, 2011. Specifically, Gamino testified that Akers had asked her “ ‘[w]ould you go talk to [Carroll] and ask her to drop charges[?]’ “ In addition, Gamino testified that she told Akers she “would go talk to [Carroll]” but she did not “recall saying that [she] would go talk to her about dropping the charges.” Furthermore, Gamino testified that she went to talk to Carroll because she was staying at Akers' apartment without being on the lease, and that she never asked Carroll to drop the charges against Akers. Rather, Gamino testified that she simply told Carroll that “this was a bad deal” and that “he could lose his job” as a result of his arrest. At the conclusion of the preliminary hearing, the district judge found that there was not sufficient evidence to bind Akers over for trial on the charge of aggravated intimidation of a witness.
On October 17, 2011, Gamino filed a request for a Kastigar hearing to determine the effect that her immunized testimony would have on the State's case against her. At the hearing, held on October 28, 2011, Gamino argued that both Carroll and the prosecutor had been tainted by hearing the testimony she gave at Akers' preliminary hearing. In response, the State argued that neither Carroll nor the prosecutor had been tainted because the information about which Gamino testified at Akers' preliminary hearing was already known by law enforcement officers. The State also argued that it would not be able to prosecute Gamino if Carroll was not allowed to testify at trial.
On November 15, 2011, the district judge found that the State had failed to meet its burden to establish by clear and convincing evidence that Gamino's right against self-incrimination would be fully protected at her trial—notwithstanding her immunized testimony at Akers' preliminary hearing. Accordingly, the district judge found that Carroll would not be permitted to testify at Gamino's trial. Furthermore, because the State had represented that it could not go forward with Gamino's prosecution without presenting Carroll's testimony at trial, the district judge dismissed the charge against Gamino with prejudice. Thereafter, the State timely filed a notice of appeal.
Analysis
On appeal, the State contends that the district judge erred in granting Gamino's Kastigar motion and in dismissing this case with prejudice. Because the district judge found that the State failed to meet its burden of proof—which is a negative finding—we are not to disturb this finding unless the trial court arbitrarily disregarded undisputed evidence or relied on an extrinsic consideration such as bias, passion, or prejudice. See State v. Carapezza, 293 Kan. 1071, 1080, 272 P.3d 10 (2012) ( Carapezza II ). Likewise, because Gamino's Fifth Amendment right against self-incrimination is impacted, we review the district judge's factual findings for substantial competent evidence and we review the ultimate legal question de novo. 293 Kan. at 1080.
K.S.A. 22–3415(b) permits a county attorney to grant immunity on behalf of the State to compel persons to testify even though they have asserted their Fifth Amendment right against self-incrimination. In Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), the United State Supreme Court held that it is constitutional to compel a criminal defendant to testify under a grant of use and/or derivative-use immunity. 406 U.S. at 453. Once the defendant has testified, however, “the prosecution [has] the affirmative duty to prove that the evidence it proposes to use [at the defendant's trial] is derived from a legitimate source wholly independent of the compelled testimony.” (Emphasis added.) 406 U.S. at 460. Thus, “[o]ne raising a claim under [an immunity] statute need only show that he [or she] testified under a grant of immunity in order to shift to the government the heavy burden of proving that all of the evidence it proposes to use was derived from legitimate independent sources.” 406 U.S. at 461–62.
At the time that the district judge made his decision in the present case, the most recent Kansas case involving the granting of immunity to compel the testimony of a criminal defendant was State v. Carapezza, 286 Kan. 992, 191 P.3d 256 (2008) ( Carapezza I ), In Carapezza I, the Kansas Supreme Court found that the burden is on the State to demonstrate that no part of its case against the defendant would be derived from his or her immunized testimony. 286 Kan. at 1007.
Specifically, the Carapezza I court held:
“In conducting this hearing, the district court is to be mindful of certain principles. ‘[Use immunity] prohibits the prosecutorial authorities from using the compelled testimony in any respect.’ Kastigar, 406 U.S. at 453. At the hearing, the State must demonstrate that it obtained all of the evidence it proposes to use from sources independent of the compelled testimony. See [United States v.] North, 910 F.2d [843,] 854[ (D.C.Cir.1990) ]. The district court must make specific findings on the independent nature of the proposed evidence. 910 F.2d at 855–56. No use at all may be made of the immunized testimony. 910 F.2d at 862. The fact that other witnesses were exposed to immunized testimony may suffice to taint their testimony. See 910 F .2d at 863–64.” 286 at 1007.
Furthermore, the Carapezza I court noted:
“ ‘The government must occasionally decide which it values more: immunization (perhaps to discharge institutional duties, such as congressional fact-finding and information-dissemination) or prosecution. If the government chooses immunization, then it must understand that the Fifth Amendment and Kastigar mean that it is taking a great chance that the witness cannot constitutionally be indicted or prosecuted.’ 910 F.2d at 862.” 286 Kan. at 1007–08.
After the State filed its brief in the present case, the Kansas Supreme Court filed its decision in Carapezza II, which involved an interlocutory appeal by the State following the district court's suppression of evidence following a Kastigar hearing. 293 Kan. at 1072. Although there was a dispute in Carapezza II between the parties regarding whether the State's burden at a Kastigar hearing should be under a preponderance of the evidence standard or under a clear and convincing evidence standard, the State recognizes in the present case that it “bears the burden, by clear and convincing evidence, to prove that it obtained the evidence from an independent and collateral source.”
Moreover, the State argues that it met this burden because all the information Gamino provided in her compelled testimony was previously known by the prosecution as a result of the investigation conducted by law enforcement officers prior to Akers' preliminary hearing. Likewise, the State argues that the information provided in Gamino's testimony was already personally known by Carroll. But as the Kansas Supreme Court found in Carapezza II, the State cannot simply point at a calendar and claim that all of the investigation that occurred prior to the compelled testimony can be used against a defendant. See 293 Kan. at 1082.
Undoubtedly, the State knew what Gamino and Akers had discussed on phone conversations recorded by the jail prior to Gamino's compelled testimony at Akers' preliminary hearing. Likewise, prior to Gamino's immunized testimony, the State knew Carroll's version of the events relating to the alleged aggravated intimidation of a witness charge. But without compelling Gamino to testify at Akers' preliminary hearing, neither the State nor Carroll knew Gamino's version of what happened after the phone conversations.
The question of whether Gamino actually took steps to intimidate Carroll following her phone conversation with Akers was hotly disputed, and the answer to this question is dependent upon what was actually said by Gamino to Carroll. Because Gamino did not testify at her own preliminary hearing, it was not until Gamino was compelled to testify at Akers' preliminary hearing that the State and Carroll would have known Gamino's version of the story. Moreover, the State was able to obtain a transcript containing Gamino's compelled testimony that could be used by the prosecutor and other witnesses to prepare for her trial.
In Carapezza II, the Kansas Supreme Court reiterated that the exposure of other witnesses to the compelled testimony of a defendant can also taint their testimony in the future. 293 Kan. at 1081. Furthermore, in Carapezza II, our Supreme Court rejected the State's argument that it was error for a district court to find that the prosecutors and law enforcement officers who were exposed to the immunized testimony of a defendant must refrain from further participation in the defendant's case. 293 Kan. at 1080. Here, there is sufficient evidence in the record upon which the district judge could reasonably conclude that Gamino's compelled testimony tainted both Carroll and the prosecutor.
Here, the district judge appropriately conducted a Kastigar hearing and concluded that the State failed to meet its burden of proof. Based on our review of the record, we conclude that the district judge did not arbitrarily disregard undisputed evidence in making this negative finding. Furthermore, we conclude that the district judge's finding was not based on an extrinsic consideration such as bias, passion, or prejudice. Rather, the district judge's decision to suppress evidence was based on legitimate concerns regarding the exposure of the complaining witness and the prosecutor to Gamino's immunized testimony.
Finally, although there may have been other remedies available to the district judge other than the harsh remedy of dismissal with prejudice, none were suggested by the State. In fact, the State represented to the district judge that it could not convict Gamino of aggravated intimidation without the testimony of the complaining witness at trial. Thus, we conclude that if the district judge erred in imposing the remedy of dismissal with prejudice, any such error was invited by the State. See State v. Divine, 291 Kan. 738, 742, 246 P.3d 692 (2011).
Affirmed.