State v. Contreras

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 119,584
STATE OF KANSAS,
Appellee,
v.
JOSE ARMANDO CONTRERAS,
Appellant.
SYLLABUS BY THE COURT
1.
A party seeking to admit evidence over a claimed Fifth Amendment privilege has
the burden to provide the district court with substantial competent evidence that there is
in fact no privilege to assert.
2.
When reviewing a district court's decision to exclude testimony due to a claimed
Fifth Amendment privilege, appellate courts are limited to determining whether the lower
court's factual findings were supported by substantial competent evidence and reviewing
de novo whether, in light of those findings, the district court's ultimate legal conclusion
was correct as a matter of law.
Review of the judgment of the Court of Appeals in 58 Kan. App. 2d 255, 467 P.3d 522 (2020).
Appeal from Scott District Court; WENDEL W. WURST, judge. Opinion filed August 13, 2021. Judgment
of the Court of Appeals reversing the district court is reversed. Judgment of the district court is affirmed
in part. The case is remanded to the Court of Appeals for further proceedings.
1
Kasper Schirer, of Kansas Appellate Defender Office, argued the cause and was on the briefs for
appellant.
Steven J. Obermeier, assistant solicitor general, argued the cause, and Derek Schmidt, attorney
general, was with him on the briefs for appellee.
The opinion of the court was delivered by
STEGALL, J.: The State appeals from a Court of Appeals decision reversing Jose
Armando Contreras' convictions and remanding his case to the district court for a new
trial. The facts of the case are exhaustively set forth in the Court of Appeals opinion.
State v. Contreras, 58 Kan. App. 2d 255, 467 P.3d 522 (2020). For our purposes, the
following limited recital will suffice.
Mother of the victim, K.B., was dating Contreras. When she spent the night at
Contreras' apartment, her children—including K.B.—would go with her. About a year
into the dating relationship, when K.B. was eight years old, Contreras told Mother that
K.B. had attempted to perform oral sex on him. He reported that K.B. told him she had
learned this behavior from her father.
Police were soon notified of the situation and began an investigation into possible
sexual abuse of K.B. During several forensic interviews, K.B. related facts that
demonstrated she had been sexually abused by both Contreras and Father. At one point,
K.B. attempted to retract her allegations against Contreras, but she admitted to the
forensic interviewer that Mother had put her up to the retraction. During the police
interview with Contreras, he admitted there had been some sexual contact between he and
K.B., but he insisted it had either been accidental or unwanted by him.
2
The State developed additional evidence over time and eventually charged
Contreras with two counts of rape, two counts of criminal sodomy, and one count of
aggravated intimidation of a victim. At trial, as part of his defense, Contreras called
Father to testify, but Father invoked his Fifth Amendment privilege against self-
incrimination. Defense counsel argued Father could not invoke the privilege because he
had already been convicted of the crime that was the intended target of questioning (the
incidents occurring in December 2012).
At this point, the parties and the court attempted to discern Father's jeopardy status
with respect to the December 2012 incident. Father had previously been convicted of
sexual abuse of K.B. With respect to that conviction, the prosecutor told the court, "I
don't have a copy of the plea agreement. All I have is the journal entry of judgment." But
the prosecutor added that "[w]e can call up [Clark County] and get a copy of the plea
agreement if the Court would like." The Court of Appeals recites what happened next,
which is the key moment for purposes of this appeal:
"The district court then asked Father '[w]as part of that plea bargain agreement that you
would not have any criminal liability for anything else involving any crimes that you
perpetrated with regard to [K.B.]?' Father answered affirmatively, stating he understood
that any future prosecution would be barred as double jeopardy.
"The district court then reviewed Father's journal entry of judgment. It showed
that Father had been convicted of criminal sodomy for acts between April 29, 2011, and
March 5, 2012. Because that conviction did not involve any crimes in December 2012,
the district court decided not to compel Father's testimony about the incident with K.B.
in December 2012. The district court thus found that Father could still be prosecuted for
acts with K.B. that had occurred in December 2012—the date Contreras wanted Father to
testify about. The district court therefore allowed Father to invoke his Fifth Amendment
privilege against self-incrimination and excused him from the trial." 58 Kan. App. 2d
at 261.
3
At the conclusion of the trial, the jury convicted Contreras on all five counts—two
counts of rape, two counts of aggravated criminal sodomy, and one count of aggravated
intimidation of a victim. The district court denied Contreras' departure motion and
imposed a controlling life sentence without the possibility of parole for 25 years.
Contreras raised multiple issues on appeal, but the panel only addressed one—
holding the district court erred when it permitted Father to invoke his Fifth Amendment
privilege against self-incrimination. 58 Kan. App. 2d at 274. After a harmless error
analysis, the panel concluded it could not "say, beyond a reasonable doubt, that the error
in not compelling Father's testimony did not affect the outcome of the trial in light of the
entire record. Therefore, the error in permitting Father to invoke the Fifth Amendment
privilege was not harmless." 58 Kan. App. 2d at 277. Thus, the panel reversed all of
Contreras' convictions, remanded for a full new trial, and refused to address the other
briefed issues on appeal. 58 Kan. App. 2d at 277. We granted the State's petition for
review.
DISCUSSION
The only issue before us is whether the Court of Appeals correctly found the lower
court committed reversible error when it excluded Father's testimony because he invoked
his Fifth Amendment privilege against self-incrimination. When analyzing this question,
the panel concluded that the district court erred because it did not have the documents
which showed that Father actually was not in any legal jeopardy for the December 2012
incidents, and therefore had no Fifth Amendment privilege to invoke. Specifically, the
panel held:
"We agree that the district court's Fifth Amendment determination was made
without the benefit of the essential documents that would have informed its decision. And
we do not fault Contreras for that omission. Contreras supported his position that Father
4
could testify with Father's assertion that he could not be prosecuted for the December
2012 event involving K.B. because it would be double jeopardy.
....
"The State invited the confusion by giving the district court Father's journal entry
of judgment which showed only the dismissal of count one. The State failed to show the
district court the plea agreement, the complaint, or the journal entry of arraignment which
would have completed an accurate understanding of Father's prior conviction.
Understanding the scope of Father's prior proceedings is essential to determining whether
his testimony here might expose him to a future criminal charge.
"In June 2019, this court approved Contreras' motion on appeal to take judicial
notice of additional documents relevant to Father's prior conviction. . . .
"The three documents we have judicially noticed on appeal are all from Father's
Clark County case 13 CR 25: the complaint, a journal entry of arraignment, and the same
journal entry of judgment that the district court reviewed. The two documents provided to
us, yet not shared with the district court, support Contreras' claim that at the time of trial
Father did not have a privilege against self-incrimination for the December 2012 incident
with K.B." 58 Kan. App. 2d at 270-71.
As a result, the panel found reversible error in the exclusion of the evidence.
Before us, the parties spend a great deal of effort continuing to argue about the propriety
of taking appellate judicial notice of these documents as well as arguing about what those
documents actually say about Father's legal jeopardy. But these arguments are not
relevant to the panel's far more basic mistake. To understand how the Court of Appeals
went off-track in its analysis, it is necessary to clearly define the question presented to it
(and now to us). The question is not whether Father was actually in legal jeopardy for the
December 2012 incident and therefore either had or did not have a Fifth Amendment
privilege to invoke. The question is whether the district court erred in excluding Father's
testimony as evidence.
5
By its own clear statement, the Court of Appeals panel undertook to answer the
former question and, in so doing, took judicial notice of two documents that were not
presented to the district court at all. But this clearly deviates from the proper mode of
appellate review of evidentiary decisions.
When reviewing evidentiary rulings based on a claimed Fifth Amendment
privilege, the proper appellate standard of review has been clearly set forth. An appellate
court "'reviews the district court's factual findings using a substantial competent evidence
standard, but the ultimate legal conclusion is reviewed as a question of law using an
unlimited standard of review. State v. Bell, 280 Kan. 358, 362, 121 P.3d 972 (2005).'"
State v. Delacruz, 307 Kan. 523, 533, 411 P.3d 1207 (2018); State v. Carapezza, 286
Kan. 992, 1007, 191 P.3d 256 (2008); State v. Hughes, 286 Kan. 1010, 1029, 191 P.3d
268 (2008). It is true that a "trial court violates a criminal defendant's fundamental right
to a fair trial if the court excludes relevant, admissible, and noncumulative evidence that
is an integral part of the theory of the defense." State v. Banks, 306 Kan. 854, 865, 397
P.3d 1195 (2017). But that right is
"subject to statutory rules and judicial interpretation of the rules of evidence and
procedure. For instance, '[t]he proponent of a particular kind of evidence, whether it be a
physical object or the testimony of a witness, is required to lay a foundation before it may
be admitted into evidence.' Foundation refers to 'preliminary questions designed to
establish that evidence is admissible.' Providing an adequate foundation prevents the
finder of fact from being exposed to inadmissible evidence. [Citations omitted.]" 306
Kan. at 865-66.
It is axiomatic that evidence protected by the Fifth Amendment is inadmissible.
See State v. Cheever, 295 Kan. 229, 253, 284 P.3d 1007 (2012) ("evidence protected by
Fifth Amendment privilege is inadmissible to prevent violation of the substantive
6
protection of the Fifth Amendment privilege"; summarizing Kansas v. Ventris, 556 U.S.
586, 129 S. Ct. 1841, 173 L. Ed. 2d 801 [2009]), rev'd on other grounds 571 U.S. 87, 134
S. Ct. 596, 187 L. Ed. 2d 519 (2013). Thus, the party seeking to admit evidence over a
properly invoked Fifth Amendment privilege has the burden to provide the district court
with substantial competent evidence that there is in fact no privilege to assert.
Given this as the proper standard of appellate review—and given that the only
dispute between the parties over the Fifth Amendment privilege has been a dispute of
fact—the Court of Appeals should have simply looked at the record as it existed before
the district court to decide whether substantial competent evidence supported the district
court's factual conclusion that Father could have still faced legal jeopardy for the
December 2012 incident. It was improper for the Court of Appeals to look to judicially
noticed facts because it was the defendant's burden, as the party seeking to admit Father's
testimony, to lay sufficient foundation which included facts demonstrating that the
evidence would not violate the Fifth Amendment.
Performing this review ourselves, we have little difficulty reaching the conclusion
that the district court did not err. Based on the documentary evidence presented to the
court by both parties, it appeared that Father had not been convicted of any crime related
to the December 2012 incident. Moreover, when the trial judge asked Father: "Is it your
understanding they can't do anything else to you as a result of any acts that you
perpetrated with regard to [K.B.]?" Father replied: "I'm not really sure." A bit later
Father told the court, "I think I need legal counsel." Contreras had the full opportunity to
meet his burden to lay the proper foundation, and based on the evidence before the
district court at the time, we cannot say that the lower court's factual findings were
unsupported by substantial competent evidence.
7
Therefore, we reverse the Court of Appeals and hold that the district court did not
err when excluding Father's testimony. Because there remain other issues raised by
Contreras on direct appeal but not addressed by the Court of Appeals, we remand this
matter back to that court for resolution of the appeal.
Judgment of the Court of Appeals reversing the district court is reversed.
Judgment of the district court is affirmed in part. The case is remanded to the Court of
Appeals for further proceedings.
8