Lowe v. Schnurr ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 122,094
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
JERMANE D. LOWE,
Appellant,
v.
DAN SCHNURR,
Appellee.
MEMORANDUM OPINION
Appeal from Reno District Court; JOSEPH L. MCCARVILLE III, judge. Opinion filed July 10,
2020. Affirmed.
Shannon S. Crane, of Hutchinson, for appellant.
Jon D. Graves, of Kansas Department of Corrections, for appellee.
Before POWELL, P.J., GARDNER, J., and WALKER, S.J.
PER CURIAM: Jermane D. Lowe, an inmate, appeals the district court's dismissal
of his K.S.A. 60-1501 petition. Lowe claims the hearing officer violated his due process
right to confront and cross-examine a witness at his disciplinary hearing. Although Lowe
is correct that the hearing officer violated administrative regulations, he fails to show a
due process violation. We thus affirm.
1
Factual and Procedural Background
Lowe is an inmate at the Hutchinson Correctional Facility (HCF). In February
2019, Captain E. Peppiatt filed a disciplinary report against Lowe for violating K.A.R.
44-12-314, sexual activity, and K.A.R. 44-12-315(a), lewd acts. The report stated:
"[O]n 21 Feb. 2019 myself and UTS R. Hurt were conducting east yards checks.
When I came to the front of Greenbush, I looked into the stairwell and saw inmate
Anderson #114704 quickly stand up and started wiping his mouth. Inmate Lowe
#6008638 was standing in front of where inmate Anderson was kneeling, zipping up his
pants. When he finally turned around his pants were still partially unzipped. Both were
restrained and taken to RHU."
Before his disciplinary hearing, Lowe submitted a witness request for the security
video and inmates Miles and Delacadena-Edwards.
At the hearing, the security video showed Lowe and Anderson descend a set of
stairs and then motion to two other inmates to wait at the top. Lowe and Anderson then
moved out of the camera's view. The video later showed Peppiatt and Hurt walking along
the outside of the building, going into a doorway near the stairs, and returning with Lowe
and Anderson, handcuffed.
Lowe testified that it was a "funny looking situation" and looked bad. But he said
he was too large to see around, he would not have known if his fly was down, and he
would not engage in oral sex with another inmate.
Delcadena-Edwards and Miles, who had waited at the top of the stairs during the
incident, testified on Lowe's behalf. While Miles testified that there were four inmates at
the stairs, Delacadena-Edwards testified that only he, Lowe, and Miles were there.
2
The hearing officer then introduced a note that someone had found in Delacadena-
Edwards' cell. Lowe had written the note, instructing Delacadena-Edwards to "stick to the
script" and to deny knowing what Lowe had yelled to him from the bottom of the stairs.
The hearing officer then introduced the testimony of Peppiatt and Hurt. The
summary of the disciplinary hearing states:
"CCII Hurt was sworn in as a witness. Hurt stated 'I was with Peppiatt and as we walked
by the Greenbush building I saw Anderson sitting down in front of Lowe. We walked
back up to the building. At that time Anderson stood up & wiped off his mouth.
Anderson then tried to go up the stairs. Lowe was messing with his waist area. Lowe
refused to turn around when Captain Peppiatt told him to. His pants were unzipped. We
put them both in restraints and took them to seg.'
"The hearing officer ask[ed] Hurt if any bodily fluids were present. Hurt answered 'Not
that I saw.'
"CPT Peppiatt was sworn in as the reporting officer. Lowe ask[ed] 'Did you see any
sexual act?' Peppiatt answered 'I saw what I suspected was a sexual act.' Lowe ask[ed]
'Are you 100% sure?' Peppiatt answered 'Body language would indicate that is what was
going on. That is why I wrote the [disciplinary report].' Lowe ask[ed] 'How was I
positioned?' Peppiatt answered 'You had your back towards the glass door. Anderson was
in front of you, Anderson stood up. Your hands were around your groin region.' Lowe
ask[ed] 'Did you see my groin, or my penis?' Peppiatt answered 'No, but when you turned
around your zipper was unzipped.' The hearing officer ask[ed] Peppiatt if any bodily
fluids were present. Peppiatt answered 'No, he did have some toilet paper or a paper
towel in his hand. It could have been used to wipe up a fluid.' Lowe ask[ed] 'Did you
confiscate the paper?' Peppiatt answered 'No, you had them in your hand on the way to
RHU.' Lowe stated 'My pants weren't unzipped.'"
Based on Peppiatt and Hurt's testimony, the hearing officer found Lowe guilty of
sexual activity and lewd acts. Part of Lowe's sanction was a $5 fine.
3
Lowe appealed to the Secretary of Corrections. He claimed, among other things,
that the hearing officer violated K.A.R. 44-13-403 because Hurt was not present at the
hearing and so was unavailable for cross-examination. Lowe also claimed this violated
procedural due process. But a designee of the Secretary of Corrections approved the
decision of the hearing officer. The designee ruled that the disciplinary hearing complied
with the department and facility standards and procedures and that the decision was based
on some evidence.
To satisfy due process protections, there need only be "some evidence" in a
prisoner disciplinary proceeding supporting the hearing officer's determination of a
violation. Superintendent v. Hill, 472 U.S. 445, 455-56, 105 S. Ct. 2768, 86 L. Ed. 2d 356
(1985); Sammons v. Simmons, 267 Kan. 155, 158-59, 976 P.2d 505 (1999) (recognizing
Hill as supplying the governing standard). This standard is met if there was some
evidence from which the conclusion of the administrative tribunal could be made.
Determining whether this standard is satisfied does not require examination of the entire
record, independent assessment of the credibility of witnesses, or weighing of the
evidence. Instead, the relevant question is whether there exists any evidence in the record
to support the conclusion reached by the disciplinary board. See Anderson v. McKune, 23
Kan. App. 2d 803, 807-08, 937 P.2d 16 (1997).
Lowe then filed a K.S.A. 60-1501 petition in the district court. Lowe claimed the
hearing officer had violated his due process rights, again citing his right to confront Hurt.
HCF responded. As to Lowe's right to confront Hurt, HCF argued that the United States
Constitution does not extend this due process right to inmates, citing Wolff v. McDonnell,
418 U.S. 539, 556, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974).
The district court held a hearing on Lowe's petition. HCF admitted Hurt was not
present at the disciplinary hearing and Lowe had no opportunity to cross-examine him.
4
Yet the district court found that the hearing officer did not violate Lowe's due process
rights. Its journal entry states:
"The reporting officer testified in accordance with the disciplinary report. The other
employee with the reporting officer was interviewed by the hearing officer outside the
presence of petitioner. The hearing officer's decision did include references to the
testimony of the other employee.
....
"Petitioner also claims he was denied due process because he could not cross
examine the employee who was interviewed outside his presence. While it would have
been better for the questioning to have taken place in petitioner's presence, the other
evidence properly before the hearing officer was more than sufficient to provide 'some
evidence' to support the convictions.
....
"Petitioner was not denied due process in his disciplinary hearing.
"Petitioner's petition is dismissed. Costs of $20 are assessed."
Lowe timely appeals.
Did the Hearing Officer Violate Due Process by Failing to Provide Lowe the Opportunity
to Confront and Cross-Examine a Witness During a Disciplinary Hearing?
Lowe argues the hearing officer violated his due process rights because he could
not confront and cross-examine Hurt. Citing the United States Constitution's Sixth and
Fourteenth Amendments, Lowe asks this court to reverse his disciplinary violations. We
exercise unlimited review when, as here, the gravamen of a defendant's complaint
concerns a constitutional due process challenge. State v. Wade, 284 Kan. 527, 534, 161
P.3d 704 (2007).
5
Analysis
Two regulations of the Kansas Department of Corrections apply here. The first,
K.A.R. 44-13-101(c)(6), generally provides that an inmate is entitled to confront and
cross-examine witnesses against the inmate:
"Subject to the limitations and guidelines set out in these regulations and subject to the
control of the hearing officer exercised within the parameters of the law and these
regulations, the inmate shall be entitled to the following:
(1) To receive advance written notice of the charge and a fair hearing by
an impartial hearing officer;
(2) to be present at the hearing;
(3) to present documentary evidence;
(4) to testify on the inmate's own behalf;
(5) to have witnesses called to testify on the inmate's behalf;
(6) to confront and cross-examine witnesses against the inmate; and
(7) to be furnished with staff assistance according to K.A.R. 44-13-408."
The second regulation, K.A.R. 44-13-403(1)(1) and (q), generally states that each
staff member the hearing officer calls as a witness shall be compelled to appear, and that
the hearing officer shall not receive testimony or evidence outside the presence of the
accused inmate, with certain exceptions:
"(l)(1) The disciplinary process shall, to the extent possible, discover the truth
regarding charges against the inmate. For this purpose, the hearing officer shall be
authorized to call and to interrogate any witness, and each inmate, staff member,
volunteer, or contract employee called as a witness by the hearing officer shall be
compelled to appear. The hearing officer may bring out the facts by direct or cross-
examination but shall not act as prosecutor on behalf of the facility or charging officer
against the accused inmate, or on behalf of the inmate. Testimony and evidence shall not
be received by the hearing officer or introduced outside the presence of the accused
inmate, except that the accused inmate shall not be present when the hearing officer
6
reviews any facility security videotape evidence. An inmate shall not be required to be
present at the disciplinary hearing as provided in subsections (d), (e), and (m) and K.A.R.
44-13-402(b)(5), and as otherwise provided in these regulations.
....
"(q) Confrontation and cross-examination may be denied by the hearing officer if
deemed necessary in any case except class I cases. In class I cases, confrontation and
cross-examination may be limited or denied if necessary to protect the safety of an
accuser, informant, or witness or if necessary to maintain facility safety, security, and
control. Unless there is a security risk endangering some person, the explanation shall be
in the record. If there is such a security risk, a written explanation of the reason shall be
sent to the warden with a copy to the secretary for confidential review. However, an
inmate held in administrative or disciplinary segregation whose hearing is conducted by
telephone, as provided by K.A.R. 44-13-404(e), shall not be permitted to confront any
witnesses against the inmate, including the reporting officer."
This was a class I case. HCF admits that Hurt was not present at the hearing. And
the record does not include any explanation why he was not there. Thus, the hearing
officer violated this regulation.
Even so, a hearing officer's violation of KDOC regulations does not, by itself,
compel this court to interfere. See Anderson, 23 Kan. App. 2d at 810 ("'Maintenance and
administration of penal institutions are executive functions and it has been said that
before courts will interfere the institutional treatment must be of such a nature as to
clearly infringe upon constitutional rights, be of such character or consequence as to
shock general conscience or be intolerable in fundamental fairness.'") (citing Levier v.
State, 209 Kan. 442, 450-51, 497 P.2d 265 [1972]). Our Supreme Court recognized this
principle in Hogue:
"'The mere fact that a hearing officer in a prison discipline case has not followed
[Department of Corrections] procedural regulations does not of itself violate fundamental
fairness that rises to an unconstitutional level. Without much more, a petition for habeas
7
corpus alleging procedural errors at a prison disciplinary hearing must fail.'" Hogue v.
Bruce, 279 Kan. 848, 855-56, 113 P.3d 234 (2005).
Lowe alleges that he shows more here—a violation of his constitutional due
process rights. An inmate claiming a violation of his or her constitutional rights in a
habeas proceeding carries the burden of proof. See Anderson, 23 Kan. App. 2d at 807.
Lowe contends that the basic elements of procedural due process are notice and an
opportunity to be heard at a meaningful time and in a meaningful manner. Yet he
contends he had no meaningful opportunity to be heard because he could not cross-
examine Hurt and was not present when Hurt "testified." And Lowe contends that Hurt's
absence prevented him from presenting his theory of defense.
We apply a two-step analysis to review an inmate's claim of a due process
violation in a K.S.A. 60-1501 proceeding. First, we determine whether the correctional
facility deprived the inmate of a recognized liberty or property interest. Hogue, 279 Kan.
at 850-51. The imposition of a fine implicates an inmate's property interest. Stano v.
Pryor, 52 Kan. App. 2d 679, 682, 372 P.3d 427 (2016). Lowe was fined $5 for engaging
in sexual activity, so his claim raises a constitutionally protected property interest.
Second, we determine whether the inmate received the extent and nature of the
process due to him under the circumstances. Hogue, 279 Kan. at 851. But a prisoner's
constitutional rights are less extensive than a defendant's rights in a criminal proceeding.
Wolff, 418 U.S. at 556. Because there must be a mutual accommodation between a
prison's needs and objectives and the prisoner's rights, "the full panoply of rights due a
defendant in [criminal] proceedings does not apply." 418 U.S. at 556. A prisoner's rights
recognized in Wolff, 418 U.S. at 563-66, include:
• an impartial hearing;
• a written notice of the charges to enable inmates to prepare a defense;
8
• a written statement of the findings by the fact-finders as to the evidence
and the reasons for the decision; and
• the opportunity to call witnesses and present documentary evidence.
"Wolff did not require the right to confront and cross-examine witnesses or the right to
counsel in all cases." In re Pierpoint, 271 Kan. 620, 627-28, 24 P.3d 128 (2001).
Instead, confrontation and cross-examination are generally not required in prison
disciplinary hearings:
"Although some States do seem to allow cross-examination in disciplinary hearings, we
are not apprised of the conditions under which the procedure may be curtailed; and it
does not appear that confrontation and cross-examination are generally required in this
context. We think that the Constitution should not be read to impose the procedure at the
present time and that adequate bases for decision in prison disciplinary cases can be
arrived at without cross-examination." Wolff, 418 U.S. at 567-68.
After weighing the potential problems that could arise from an inmate's cross-
examination, the Supreme Court concluded that "[t]he better course at this time, in a
period where prison practices are diverse and somewhat experimental, is to leave these
matters to the sound discretion of the officials of state prisons." 418 U.S. at 569.
As a result, the United States Constitution does not require the hearing officer to
allow Lowe to confront and cross-examine Hurt. See In re J.D.C., 284 Kan. 155, 167,
159 P.3d 974 (2007) (citing Wolff, 418 U.S. at 567-68: "rights of cross-examination and
confrontation [are] not universally applicable to prison disciplinary hearings"); Taylor v.
Wallace, 931 F.2d 698, 701 (10th Cir. 1991) (stating due process does not require the
confrontation and cross-examination of witnesses in prison disciplinary proceedings); see
also Kucera v. Terrell, 214 Fed. Appx. 729, 730 (10th Cir. 2006) (unpublished opinion)
9
("The Sixth Amendment right to confront one's accusers is available only in criminal
trials.").
Our courts have consistently held the same. See Washington v. Roberts, 37 Kan.
App. 2d 237, 242, 152 P.3d 660 (2007) (acknowledging Wolff weighs against a
constitutional due process right to confront and cross-examine witnesses); Rincon v.
Schnurr, No. 114,670, 2016 WL 3031284, at *3 (Kan. App. 2016) (unpublished opinion)
(presuming Rincon had no due process right to confront and cross-examine an adverse
witnesses, based on Wolff).
Lowe makes no separate claim that the hearing officer violated the Kansas
Constitution. And the general rule in Kansas is that we interpret the Kansas Constitution
similarly to its federal counterpart even though the language may differ. See State v.
Lawson, 296 Kan. 1084, 1091, 297 P.3d 1164 (2013) ("But, at least for the past half-
century, this court has generally adopted the United States Supreme Court's interpretation
of corresponding federal constitutional provisions as the meaning of the Kansas
Constitution, notwithstanding any textual, historical, or jurisprudential differences."). So
Lowe errs in asserting that the hearing officer violated his constitutional due process
rights to confront and cross-examine Hurt.
We now turn to Lowe's assertion that Hurt's absence deprived him of due process
because it prevented him from presenting his theory of defense—that no one saw any sex
act or lewd behavior. Lowe wanted to ask Hurt questions to bring out his theory of
defense. But Hurt's testimony confirmed Lowe's theory of defense. Both Peppiatt and
Hurt admitted they did not see the sex act but inferred it from the circumstances. Lowe
questioned Peppiatt on this point, focusing on her inability to see any act being
performed. Peppiatt confirmed that they inferred the lewd act from the circumstances.
Hurt's testimony to the hearing officer only affirms Lowe's cross-examination of Peppiatt
and supports Lowe's theory of defense. Hurt said she only saw Anderson stand up and
10
wipe off his mouth and Lowe messing with his waist. Hurt did not testify she clearly saw
a sex act. Lowe does not show on appeal that his cross-examination of Hurt would have
added anything to his theory of defense.
Lowe also alleges the hearing officer lied in saying CCII Hurt was sworn in as a
witness. So Lowe wanted to ask Hurt whether the hearing officer had sworn him to tell
the truth. We agree that was an important fact. The taking of an oath confers a degree of
trustworthiness to a written representation and, in turn, aids a fact-finder in sorting out
truth from mendacity. See Clark v. State, No. 109,982, 2014 WL 4916462, at *2 (Kan.
App. 2014) (unpublished opinion) ("The solemnity of an oath and the possibility of
criminal prosecution for knowingly making a false representation lend some
trustworthiness to a written statement.") But as detailed above, Hurt's testimony was of
the same kind and to the same point as was Peppiatt's testimony, which Lowe challenged
through cross-examination. Because it was cumulative, it did not prejudice Lowe. So
even had Lowe shown that Hurt's statements were unsworn and should have been
disregarded, Lowe can show no prejudice.
Lowe thus fails to show the disciplinary hearing was fundamentally unfair to the
extent it violated due process. See Washington, 37 Kan. App. 2d at 242 (finding no due
process violation based on the charging officer's physical absence from the disciplinary
hearing where charging officer was placed under oath, testified by telephone, and
petitioner was able to question her concerning the incident); Rincon, 2016 WL 3031284,
at *3 (denying relief on petitioner's claim that hearing officer violated his due process
right to confront and cross-examine a witness when the hearing officer admitted absent
non-prison employee's unsworn statement against petitioner).
Although we do not condone the hearing officer's error in failing to comply with
K.A.R. 44-13-403(l)(1) and (q), the district court properly found no violation of Lowe's
due process rights.
11
Affirmed.
12