State v. Showalter

No. 124,598
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
RICHARD DANIEL SHOWALTER,
Defendant,
(MATTHEW DOUGLAS HUTTO),
Appellant.
SYLLABUS BY THE COURT
1.
Once defendants waive their privilege against self-incrimination under the Fifth
Amendment to the United States Constitution as to a crime, they permanently waive this
privilege because no future testimony could expose them to additional criminal
punishment.
2.
Unless defendants move to withdraw their guilty plea before sentencing, their
Fifth Amendment privilege against self-incrimination terminates at sentencing.
3.
Defendants' Fifth Amendment privilege against self-incrimination which springs from
moving to withdraw a guilty plea before sentencing is wholly preeminent over
defendants' Fifth Amendment privilege against self-incrimination which springs from
moving to withdraw their guilty plea after sentencing.
1
Appeal from Shawnee District Court; DAVID DEBENHAM, judge. Opinion filed December 16, 2022.
Affirmed.
Shawna R. Miller, of Miller Law Office, LLC, of Holton, for appellant.
Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, for
appellee.
Before ARNOLD-BURGER, C.J., GREEN and MALONE, JJ.
GREEN, J.: The trial court directed Matthew Douglas Hutto to testify after Hutto
invoked his privilege against self-incrimination under the Fifth Amendment to the United
States Constitution. The trial court told Hutto that he no longer had the privilege against
self-incrimination because our Supreme Court had just announced its decision denying
his postsentencing motion to withdraw his two felony murder guilty pleas. State v. Hutto,
313 Kan. 741, 743-44, 751, 490 P.3d 43 (2021). It also told him that he no longer had the
privilege because the State had granted him use immunity. Ultimately, because Hutto
would not comply with its direction to testify, the trial court found Hutto in direct
contempt of court.
Hutto appeals his direct contempt conviction, arguing that our Supreme Court's
precedent does not support the trial court's reasons for ruling that he no longer had the
privilege against self-incrimination. He contends that a person continues to have the
privilege against self-incrimination until he or she has exhausted all methods of attacking
his or her underlying criminal convictions and sentences. He also asserts that the trial
court's ruling about the State's grant of use immunity contradicts our Supreme Court's
holding in State v. Delacruz, 307 Kan. 523, 535, 411 P.3d 1207 (2018).
In response, although the State concedes that its grant of use immunity to Hutto
did not terminate Hutto's privilege against self-incrimination under the Delacruz holding,
2
it, however, argues that our Supreme Court's other precedent supports the trial court's
ruling. It contends that most of our Supreme Court's caselaw supports that a person who
pleaded guilty to a crime loses the privilege against self-incrimination when sentenced for
that crime. Relying on this interpretation of our Supreme Court caselaw, the State argues
that when Hutto refused to testify, Hutto no longer had the privilege against self-
incrimination. Then, it argues that we should affirm Hutto's direct contempt conviction
for violating the trial court's legitimate direction to testify.
In Delacruz, our Supreme Court held that "[a] court cannot lawfully compel a
witness to testify based upon the State's grant of mere use immunity." 307 Kan. 523,
Syl. ¶ 5, 534-35. Indeed, the court explained the significant hurdle that must be cleared
before a court can compel a witness to testify: "[I]f the government wants to compel
testimony from a witness claiming the Fifth Amendment privilege against compulsory
self-incrimination, it must grant the witness at least use and derivative use immunity,
otherwise a citation in contempt must be reversed." (Emphasis added.) 307 Kan. at 535.
So, as Hutto argues and the State concedes, the trial court erred when it ruled that Hutto
no longer had the privilege against self-incrimination because of the State's grant of use
immunity. Hence, under the Delacruz precedent, we hold that the trial court erred when it
determined that Hutto no longer had the privilege against self-incrimination because of
the State's grant of use immunity. See State v. Rodriguez, 305 Kan. 1139, 1144, 390 P.3d
903 (2017) (holding that this court is duty-bound to follow our Supreme Court precedent
absent some indication that our Supreme Court is moving away from that precedent).
And because the trial court plainly erred in this respect, it is not necessary for us to
further address this issue.
As for Hutto's argument that a person retains the Fifth Amendment privilege
against self-incrimination until he or she has exhausted all methods of attacking his or her
underlying criminal convictions and sentences, the State correctly argues that our
Supreme Court's precedent does not support his position. A critical fact that the parties
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largely ignore is that Hutto pleaded guilty to two counts of felony murder and did not
move to withdraw his felony murder guilty pleas until after he was sentenced. In short,
our Supreme Court precedent establishes that defendants lose their privilege against self-
incrimination at sentencing when they have pleaded guilty and have failed to move to
withdraw their guilty plea before sentencing. Here, because Hutto was sentenced before
he attempted to withdraw his felony murder guilty pleas, Hutto lost his privilege against
self-incrimination when sentenced for those crimes. The privilege did not extend until he
exhausted all postsentencing methods of attacking his convictions and sentences. So,
when Hutto refused to testify—citing the privilege against self-incrimination—the trial
court correctly directed Hutto to testify because he no longer had a valid Fifth
Amendment privilege. As a result, we affirm Hutto's direct contempt conviction for
violating the trial court's direction.
FACTS
On July 26, 2018, the State charged Hutto with two counts of first-degree murder,
one count of conspiracy to commit first-degree murder, and one count of aggravated
burglary. Hutto, 313 Kan. at 743-44. Later, the State amended its complaint to also
charge Hutto with two alternative counts of felony murder, one count of attempted first-
degree murder, and one count of opiate possession. Evidence indicated that Hutto was
involved in the murder of Lisa Sportsman and Jesse Polinskey. During an interview with
law enforcement, Hutto admitted to traveling from Greenleaf, Kansas, to Topeka, Kansas,
to murder Lisa with Brad Sportsman (Lisa's husband), Richard Showalter, and Cole
Pingel. 313 Kan. at 743. Although he denied physically participating in the murders, he
told law enforcement that he had helped Showalter enter Lisa's house so Showalter could
murder Lisa.
Once the State filed its charges, Hutto began plea negotiations. Initially, Hutto
considered cooperating with the State to get a better plea deal. Under his ultimate plea
4
agreement, though, Hutto did not have to give the State evidence against his accused
murder accomplices. Rather, under this agreement, Hutto agreed to plead guilty to two
counts of felony murder in exchange for the State's dismissal of his remaining charges.
Also, under this agreement, Hutto could ask the trial court to impose concurrent
sentences, rather than consecutive sentences, for his two felony murder convictions.
On January 18, 2019, Hutto pleaded guilty to the felony murder of Lisa and
Polinskey in accordance with his plea agreement with the State. On May 10, 2019, the
trial court sentenced Hutto to two consecutive hard 25 life sentences.
After his sentencing, Hutto did not directly appeal to our Supreme Court. But on
May 22, 2019, he did file a pro se motion to withdraw his felony murder guilty pleas.
Hutto argued that he received ineffective assistance of plea counsel for a variety of
reasons, which meant that he should be allowed to withdraw his guilty pleas. Hutto, 313
Kan. at 744. The trial court disagreed, denying Hutto's motion on February 11, 2020.
On February 17, 2020, Hutto appealed the trial court's decision to deny his
postsentencing motion to withdraw his felony murder guilty pleas to our Supreme Court.
In the end, our Supreme Court rejected the only argument Hutto raised on appeal. Hutto
asserted that his plea counsel "was ineffective to the extent of misleading him and
preventing him from entering into the plea in a voluntary fashion" because plea counsel
failed to tell him about his "viable compulsion defense." Hutto, 313 Kan. at 745-46. But
our Supreme Court rejected this argument for the following reasons: (1) because he had
not adequately briefed it before the trial court, (2) because he had no viable compulsion
defense under the evidence of his case, and (3) because plea counsel was not ineffective
under the facts of his case. 313 Kan. at 746-51.
5
On July 9, 2021, our Supreme Court announced its decision affirming the trial
court's denial of Hutto's postsentencing motion to withdraw his felony murder guilty
pleas. On August 13, 2021, our Supreme Court issued its mandate.
Between these two events, however, the State started its jury trial against Hutto's
accused felony murder accomplice—Showalter. The State had charged Showalter with
two counts of first-degree murder as well as a single count each of conspiracy to commit
first-degree murder, attempted first-degree murder, solicitation to commit first-degree
murder, aggravated burglary, aggravated witness intimidation, and opiate possession.
Because Showalter was Hutto's accused felony murder accomplice, the State subpoenaed
Hutto to testify against Showalter at Showalter's jury trial. Nevertheless, when the State
called Hutto to testify at the trial on July 13, 2021, Hutto refused to testify against
Showalter.
The State questioned Hutto outside the presence of the jury with his attorney
present. After the prosecutor asked Hutto why he was convicted of two felony murders,
Hutto responded that he was "plead[ing] the Fifth." The prosecutor then asserted that
Hutto no longer had the privilege against self-incrimination. According to the prosecutor,
Hutto "no longer ha[d] an evidentiary privilege to refuse to testify" for three reasons: (1)
because the trial court had already sentenced him for his crimes, (2) because our Supreme
Court had already affirmed the denial of his postsentencing motion to withdraw guilty
pleas, and (3) because the State had given him use immunity.
Relying on the prosecutor's arguments, the trial court ruled that Hutto no longer
had the Fifth Amendment privilege against self-incrimination. And as a result, it directed
Hutto to testify against Showalter. In doing so, it told Hutto that it could find him in
contempt of court for refusing its direction to testify. It also explained that it could
immediately impose up to a six-month jail sentence on him for a direct contempt
conviction.
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But Hutto still refused to testify. He told the trial court that he understood its
direction to testify. Yet, he explained that he would not testify because any contempt
sentence that it could impose was negligible compared to the two consecutive hard 25 life
sentences that he was serving for his felony murder convictions. "There [was] no reason
to testify" based on these sentencing disparities. As a result, the trial court found Hutto in
direct contempt of court. See K.S.A. 20-1203 (explaining the punishment procedures for
direct contempt convictions).
Although the trial court found Hutto in direct contempt for refusing to testify, it
gave Hutto the opportunity to purge himself of his contempt. Thus, on July 16, 2021, at
the end of the State's case against Showalter, the State recalled Hutto to see if he would
testify. Again, the State questioned Hutto outside the presence of the jury with his
attorney present. But Hutto still refused to testify. Then, the trial court imposed a six-
month jail sentence on Hutto for his direct contempt conviction. It ordered Hutto to serve
this jail sentence after serving his consecutive felony murder sentences.
Hutto timely appeals his direct contempt conviction to this court.
ANALYSIS
Did Hutto have a valid Fifth Amendment privilege against self-incrimination when he
refused to testify?
Under the Fifth Amendment, "[n]o person . . . shall be compelled in any criminal
case to be a witness against himself." The privilege applies to the States through the
Fourteenth Amendment to the Unites States Constitution. See State v. George, 311 Kan.
693, 707, 466 P.3d 469 (2020). Also, Section 10 of the Kansas Constitution Bill of Rights
provides the same protection as it prohibits compelling a person to "be a witness against
himself." 311 Kan. at 708.
7
Whether a person has a valid Fifth Amendment privilege against self-
incrimination to invoke constitutes a question of law over which this court exercises de
novo review. State v. Contreras, 313 Kan. 996, 999, 492 P.3d 1180 (2021). When a
witness invokes the privilege against self-incrimination, the party seeking to admit
evidence over the witness' invocation carries the burden of proving to the trial court that
no privilege exists. 313 Kan. at 1000.
The purpose of the privilege is to "protect[] both a defendant and any other
witness whose answers may expose him [or her] to future criminal liability," from being
forced to testify against himself or herself. State v. Longobardi, 243 Kan. 404, 407, 756
P.2d 1098 (1988). "The most straightforward application of this right is refusing to testify
at one's own criminal trial." George, 311 Kan. at 708. Yet, a person may invoke the Fifth
Amendment privilege against self-incrimination in other situations. 311 Kan. at 708.
Indeed, the United States Supreme Court has explained that a person may have a valid
Fifth Amendment privilege against self-incrimination whenever asked to "answer official
questions" that may result in future criminal prosecution:
"[T]he Fifth Amendment 'not only protects the individual against being involuntarily
called as a witness against himself in a criminal prosecution but also privileges him not to
answer official questions put to him in any other proceeding, civil or criminal, formal or
informal, where the answers might incriminate him in future criminal proceedings.'"
Baxter v. Palmigiano, 425 U.S. 308, 316, 96 S. Ct. 1551, 1557, 47 L. Ed. 2d 810 (1976)
(quoting Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S. Ct. 316, 38 L. Ed. 2d 274 [1973]).
Although a person may invoke the Fifth Amendment privilege against self-
incrimination in a variety of official proceedings, our Supreme Court has explained that a
person's "Fifth Amendment privilege is not without limits" because it ends at some point.
State v. Bailey, 292 Kan. 449, 460, 255 P.3d 19 (2011). Here, Hutto's appeal hinges on
when his Fifth Amendment privilege against self-incrimination terminated. If Hutto's
privilege terminated before he refused the trial court's direction to testify, then Hutto's
8
refusal to testify supports his direct contempt conviction. On the other hand, if Hutto still
had the privilege against self-incrimination when he refused the trial court's direction to
testify, then Hutto's refusal to testify does not support his direct contempt conviction.
On appeal, Hutto never suggests that he had a valid Fifth Amendment privilege
against self-incrimination because his trial testimony could have exposed him to
punishment additional to his felony murder convictions and sentences. Rather, he argues
that he still had the privilege against self-incrimination when the trial court found him in
direct contempt for refusing to testify for the following reasons: (1) because he still had
time to move under the Kansas Supreme Court Rule 7.06 (2022 Kan. S. Ct. R. at 51) for
our Supreme Court to rehear his appeal and (2) because he still had time to move for
relief under K.S.A. 60-1507. To support his argument, Hutto relies on language from our
Supreme Court's decision in State v. Smith, 268 Kan. 222, 235, 993 P.2d 1213 (1999).
There, our Supreme Court held that "[t]he Fifth Amendment privilege against self-
incrimination extends until there is a final judgment in a case and a right to appeal has
expired." (Emphasis added.) 268 Kan. at 235. Based on this holding, Hutto concludes that
although our Supreme Court had already announced its decision affirming the trial court's
denial of his motion to withdraw guilty pleas, he still had the privilege against self-
incrimination until he exhausted all methods of attacking his convictions and sentences.
The State's response recognizes the Smith court's holding that a person's Fifth
Amendment privilege against self-incrimination "'extends until there is a final judgment
in a case and a right to appeal has expired.'" It also recognizes that in George, our
Supreme Court acknowledged that it had "framed the extent" of the privilege differently
in different cases. 311 Kan. at 708. Even so, the State argues that, overall, our Supreme
Court precedent supports that a person's privilege against self-incrimination ends when
the trial court sentences that person. It argues that at that point, the person cannot face
anymore adverse consequences for his or her crimes. Alternatively, the State argues that
Hutto had no privilege against self-incrimination when he refused to testify because our
9
Supreme Court's decision "was effective upon its publication." Essentially, the State
argues that Hutto's privilege ended when our Supreme Court announced its decision
rather than when our Supreme Court issued its mandate. But see Kansas Supreme Court
Rule 7.03(b)(1)(A)(iii), (C) (2022 Kan. S. Ct. R. at 46) (providing that a mandate issues
after an event finally disposing of the appeal and that a "mandate is effective when
issued").
Here, although the trial court's analysis why Hutto no longer had the Fifth
Amendment privilege against self-incrimination did not explicitly point it out, when it
found Hutto in direct contempt, it recognized two important facts: (1) that Hutto had
pleaded guilty to two counts of felony murder and (2) that our Supreme Court had
affirmed Hutto's appeal from his postsentencing motion to withdraw guilty pleas.
Similarly, although neither party's analysis before the trial court or on appeal emphasizes
these facts, both parties implicitly recognize that Hutto moved to withdraw his guilty
pleas after sentencing. In any case, the trial court ruled, and the State argues that Hutto's
privilege against self-incrimination terminated once the trial court sentenced Hutto.
A. Reviewing our Supreme Court on the Fifth Amendment Privilege Against Self-
Incrimination
In Mitchell v. United States, 526 U.S. 314, 326, 119 S. Ct. 1307, 143 L. Ed. 2d 424(1999), the majority of the United States Supreme Court suggested that a person's Fifth
Amendment privilege against self-incrimination ends after sentencing as long as that
person's judgment of conviction is final. It explained:
"It is true, as a general rule, that where there can be no further incrimination,
there is no basis for the assertion of the privilege. We conclude that principle applies to
cases in which the sentence has been fixed and the judgment of conviction has become
final. See, e.g., Reina v. United States, 364 U.S. 507, 513, 81 S. Ct. 260, 5 L. Ed. 2d 24910
(1960). If no adverse consequences can be visited upon the convicted person by reason of
further testimony, then there is no further incrimination to be feared." 526 U.S. at 326.
The Reina decision that the Mitchell Court cited provides that there is "weighty
authority" that a person's privilege against self-incrimination ends "once a person is
convicted of a crime." Reina, 364 U.S. at 513. So, taken together, the Mitchell and Reina
decisions support that if a person is not directly challenging his or her underlying
conviction, that person's Fifth Amendment privilege against self-incrimination ends upon
sentencing.
Over the years, our Supreme Court has considered several appeals involving the
Fifth Amendment privilege against self-incrimination. In State v. Anderson, 240 Kan.
695, 698, 732 P.2d 732 (1987), our Supreme Court considered Anderson's argument that
the trial court erred when it directed a witness—a person who had already pleaded guilty
to committing a robbery with Anderson—to testify against Anderson at his jury trial for
related crimes. Anderson argued that the witness still had the Fifth Amendment privilege
against self-incrimination (1) because he had not been sentenced and (2) because he still
had time to appeal the denial of his motion to withdraw his guilty plea. 240 Kan. at 700.
Our Supreme Court agreed that the trial court erred because "although a guilty plea
generally waives a witness' Fifth Amendment privilege, where the witness may be subject
to prosecution for other offenses, the witness' refusal to testify in the trial of a joint
defendant was justified." 240 Kan. at 700. In its second syllabus, it further held that a
"witness cannot be compelled to testify against an accomplice where the witness has
already pled guilty but has not yet been sentenced nor has his time for appeal expired."
(Emphasis added.) 240 Kan. 695, Syl. ¶ 2.
Although the Anderson court never explicitly acknowledged it, the fact that the
witness filed a presentencing motion to withdraw a guilty plea clearly played a role in its
decision. The Anderson court's second syllabus supports this fact as it states that a
11
witness who "already pled guilty but has not yet been sentenced" still has a privilege
against self-incrimination. 240 Kan. 695, Syl. ¶ 2.
Even so, shortly after our Supreme Court published Anderson, our Supreme Court
modified Anderson's second syllabus to delete the language indicating that a witness who
pleaded guilty keeps the privilege against self-incrimination through appeal. In
Longobardi, 243 Kan. at 408, the specific question before our Supreme Court was "[a]t
what point does a defendant's Fifth Amendment privilege against self-incrimination end
after his plea of guilty has been accepted?" 243 Kan. at 408-09. Longobardi argued that
the trial court wrongly ruled that a person he intended to call as a hostile witness—a
person who had already pleaded guilty to being his murder and aggravated robbery
accomplice—still had the privilege against self-incrimination at his jury trial for related
crimes because he still had time to appeal. 243 Kan. at 407. Longobardi asserted that for
self-incrimination purposes, it was irrelevant that the witness still had "time for appeal,
rehearing, [and] sentence modification," since the witness had already pleaded guilty and
had been sentenced for second-degree murder and aggravated burglary. 243 Kan. at 407-
08.
In the end, our Supreme Court agreed that the witness had no Fifth Amendment
privilege against self-incrimination. It distinguished Longobardi's case from Anderson's
case. It explained that unlike his case, in Anderson, (1) the witness had not been
sentenced and (2) the witness still had time to appeal his presentencing motion to
withdraw guilty pleas. 243 Kan. at 409. Then, it ruled: "[O]nce a plea of guilty has been
regularly accepted by the court, and no motion is made to withdraw it, the privilege
against self-incrimination ends after sentence is imposed." (Emphasis added.) 243 Kan. at
409. In doing so, it explicitly modified the second syllabus in Anderson to be limited to
this holding. 243 Kan. at 409. It is worth mentioning that the Longobardi court's
corresponding syllabus for this holding is worded somewhat differently: "The privilege
against self-incrimination ends after sentence is imposed where a plea of guilty has been
12
regularly accepted by the court, and no motion is made to withdraw it." 243 Kan. 404,
Syl. ¶ 1. All the same, the Longobardi court determined that the witness no longer had
the privilege against self-incrimination (1) because the witness never moved to withdraw
his guilty pleas and (2) because the witness had been sentenced for his crimes. 243 Kan.
at 409.
Clearly, the Longobardi court concluded that unless a person moves to withdraw a
guilty plea before sentencing, that person's Fifth Amendment privilege ends when
sentenced. The plain language of its holding modifying Anderson's second syllabus
supports this conclusion. Also, the specific language that it rejected in Anderson's second
syllabus supports this. The Longobardi court's modification specifically removed the
language in Anderson's second syllabus indicating that a person who pleads guilty
continues to have the privilege against self-incrimination until his or her "time for appeal
expired." Anderson, 240 Kan. 695, Syl. ¶ 2; see Longobardi, 243 Kan. at 410. Simply
put, our Supreme Court would not have modified Anderson's second syllabus unless it
deemed that this modification was important. Thus, our Supreme Court's decision to
remove the language indicating that the privilege extends through appeal for people who
have pleaded guilty to crimes is very significant.
The way the Longobardi court worded the modification also supports that unless a
person moves to withdraw his or her guilty plea before sentencing, that person's privilege
against self-incrimination terminates at sentencing. Again, the Longobardi court held that
"once a plea of guilty has been regularly accepted by the court, and no motion is made to
withdraw it, the privilege against self-incrimination ends after sentence is imposed."
(Emphasis added.) 243 Kan. at 409. As a result, the Longobardi court placed the clause
"and no motion is made to withdraw it" before discussing sentencing. By doing this, it
clarified that when a person does not move to withdraw a guilty plea before sentencing,
that person's privilege against self-incrimination ends upon sentencing.
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Also, this would seem the only sound way to interpret the Longobardi court's
holding. To interpret the Longobardi court's holding otherwise and to allow a person to
validly invoke the privilege against self-incrimination after moving to withdraw a guilty
plea after sentencing would result in the following: a person losing and then regaining
this privilege again. Under such an interpretation, individuals who plead guilty to a crime,
who are then sentenced, and who later move to withdraw their guilty plea after
sentencing would technically lose their Fifth Amendment privilege against self-
incrimination under Longobardi. But then they could regain their Fifth Amendment
privilege against self-incrimination upon moving to withdraw their guilty plea after
sentencing under Smith.
So, we pause to ask this question: Can the Longobardi and Smith decisions
coexist in harmony with each other? About a decade after deciding Longobardi, in Smith,
our Supreme Court discussed the privilege against self-incrimination in the context of
Smith's argument that the trial court wrongly failed to sever his theft and conspiracy to
commit theft jury trial from his codefendant's jury trials for the same crimes. Although
Smith argued that his codefendants could have testified on his behalf at his hypothetical
severed jury trial, our Supreme Court rejected Smith's argument because his codefendants
could have invoked the privilege against self-incrimination at his hypothetical severed
jury trial. In doing so, the court held that "[t]he Fifth Amendment privilege against self-
incrimination extends until there is a final judgment in a case and a right to appeal has
expired. See State v. Aldape, 14 Kan. App. 2d 521, 526, 794 P.2d 672, rev. denied 247
Kan. 705 (1990)." (Emphasis added.) Smith, 268 Kan. at 235. Thus, the Smith court's
holding supports that the privilege against self-incrimination extends until the "right to
appeal has expired." 268 Kan. at 235.
But the preceding holding in Smith has been called into question. First, unlike the
Anderson and Longobardi courts, which had to resolve the extent of actual witnesses'
privileges against self-incrimination, the Smith court discussed the privilege in passing to
14
undermine Smith's argument about severing his hypothetical trial from his codefendants.
Second, the Smith court's holding is very broad. It never clarified what "right to appeal"
must expire before a person's privilege against self-incrimination ends. Third, the Smith
court relied on language from this court's Aldape decision to support its holding. Yet, the
Aldape court never held that a person keeps the privilege against self-incrimination after
sentencing. Rather, it concluded that "the risk of incrimination continues until there is a
final judgment in a case and a right to appeal." (Emphasis added.) 14 Kan. App. 2d at
526. In other words, the Aldape court held that the risk of incrimination continues until a
person attains the right to appeal following final judgment. Fourth, the Smith court never
acknowledged the Longobardi decision even though the Longobardi court's conflicting
holding modified Anderson's second syllabus by explicitly stating that unless a person
moves to withdraw a guilty plea before sentencing, that person loses the privilege against
self-incrimination upon sentencing. So, the Smith court's holding lacks a sound basis for
saying that "[t]he Fifth Amendment privilege against self-incrimination extends until
there is a final judgment in a case and a right to appeal has expired." 268 Kan. at 235.
Next, although the Smith court never discussed the Longobardi decision, our
Supreme Court's more recent decisions involving the extent of the Fifth Amendment
privilege against self-incrimination have relied on its Longobardi holding. Our Supreme
Court's 2011 Bailey decision, 2015 Soto decision—State v. Soto, 301 Kan. 969, 349 P.3d
1256 (2015)—and 2020 George decision all cite Longobardi for the proposition that
"'[t]he privilege against self-incrimination ends after sentence is imposed where a plea of
guilty has been regularly accepted by the court, and no motion is made to withdraw it.'"
George, 311 Kan. at 707; Soto, 301 Kan. at 980; Bailey, 292 Kan. at 460.
In Bailey, Bailey argued that the trial court erred by telling the State's witness—a
person who had already been sentenced for murder after pleading guilty to being Bailey's
murder accomplice—that he had a valid Fifth Amendment privilege against self-
incrimination when he invoked it at his jury trial. Bailey argued that the witness still had
15
the privilege because he still had an appeal pending. But our Supreme Court rejected
Bailey's argument. It held that "[b]ecause [the witness] had entered a guilty plea and had
been sentenced, the trial court was correct in finding that [the witness] had no Fifth
Amendment privilege protecting the events in this case." (Emphasis added.) 292 Kan. at
463. Immediately before it reached this holding, the Bailey court quoted the Longobardi
court's holding that "'once a plea of guilty has been regularly accepted by the court, and
no motion is made to withdraw it, the privilege against self-incrimination ends after
sentence is imposed.'" 292 Kan. at 462. Meanwhile, in Soto, while considering a Brady v.
Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), violation claim, our
Supreme Court relied on the same Longobardi holding to conclude that a person—who
had pleaded guilty to committing a murder with Soto—had the privilege against self-
incrimination past the end of Soto's jury trial. This was because although the person had
pleaded guilty to murder and had not withdrawn his guilty plea, he was sentenced after
Soto's jury trial ended. 301 Kan. at 977, 980.
As a result, our Supreme Court's holdings in Bailey and Soto undermine our
Supreme Court's holding in Smith that the Fifth Amendment privilege against self-
incrimination extends until the "right to appeal has expired." 268 Kan. at 235. Indeed, our
Supreme Court's rejection of Bailey's argument that the witness kept the privilege
through appeal because the witness had entered a guilty plea and the witness had been
sentenced plainly contradicts the Smith court's holding that a person who pleads guilty to
a crime retains the privilege through appeal. At the same time, the Bailey and Soto
decisions reaffirm the validity of the Longobardi court's contradictory holding because
both relied on Longobardi in determining whether the people at issue had a valid Fifth
Amendment privilege against self-incrimination after pleading guilty to murder.
George is the most recent decision discussing Longobardi. There, George argued
that the trial court wrongly ruled that his intended witness—a person who had already
pleaded no contest to second-degree murder, had been sentenced, but had a pending
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appeal—still had a valid Fifth Amendment privilege against self-incrimination when he
invoked the privilege at his first-degree murder jury trial. 311 Kan. at 704-06. The trial
court determined that the witness' privilege extended through his appeal. 311 Kan. at 705.
Ultimately, the George court "decline[d] to decide whether a plea of nolo contendere
waives the privilege against self-incrimination after sentencing but before the conclusion
of the direct appeals" because any error by the trial court was harmless under the specific
facts of George's case. (Emphasis added.) 311 Kan. at 709.
In reaching its decision, though, our Supreme Court provided the following
summary of its caselaw discussing the extent of the privilege against self-incrimination:
"There is no doubt that the privilege against self-incrimination extends at least
through sentencing. State v. Gary, 282 Kan. 232, 249, 144 P.3d 634 (2006); State v.
Valdez, 266 Kan. 774, 794, 977 P.2d 242 (1999) ('There is no doubt that an individual's
right against self-incrimination extends through sentencing.'); State v. Aldape, 14 Kan.
App. 2d 521, 526, 794 P.2d 672 (1990) ('[T]he right against self-incrimination extends
through sentencing.'); see also Mitchell v. United States, 526 U.S. 314, 327, 119 S. Ct.
1307, 143 L. Ed. 2d 424 (1999) ('[A] defendant who awaits sentencing after having
pleaded guilty may assert the privilege against self-incrimination if called as a witness in
the trial of a codefendant, in part because of the danger of responding "to questions that
might have an adverse impact on his sentence or on his prosecution for other crimes."').
"Elsewhere, we framed the extent of the right more broadly as extending through
the completion of all appeals. Smith, 268 Kan. at 235 (The right 'extends until there is a
final judgment in a case and a right to appeal has expired.'). But in other cases, we have
suggested that a guilty plea may result in a waiver of the privilege against self-
incrimination during the pendency of any appeal. For example, in State v. Soto, 301 Kan.
969, 980, 349 P.3d 1256 (2015), we stated that the '"privilege against self-incrimination
ends after sentence is imposed where a plea of guilty has been regularly accepted by the
court, and no motion is made to withdraw it."' (Emphasis added.) (Quoting Bailey, 292
Kan. at 460, and Longobardi, 243 Kan. 404, Syl. ¶ 1.)" 311 Kan. at 708-09.
17
So, the George court recognized that the court's past holdings discussing when a
person's Fifth Amendment privilege against self-incrimination ends differed in different
cases. It recognized that its holding in Smith about the privilege extending through appeal
conflicted with its other cases, which held that unless a person moves to withdraw guilty
plea before sentencing a person who pleads guilty to a crime loses the privilege upon
sentencing. Yet, the George court neither modified nor overruled its interpretation or
application of the privilege against self-incrimination in the Longobardi, Smith, Bailey, or
Soto decisions. As indicated in the preceding excerpt from George, the George court
never engaged in an in-depth review of the Longobardi, Smith, Bailey, or Soto decisions.
Of course, the George court did not need to engage in an in-depth review because it
rejected George's argument based on harmless error.
B. Applying our Supreme Court Precedent on the Fifth Amendment Privilege
Against Self-Incrimination
Having reviewed our Supreme Court's precedent addressing when a person's Fifth
Amendment privilege against self-incrimination ends, it is readily apparent that Hutto did
not have a valid Fifth Amendment privilege when he invoked the privilege at Showalter's
trial.
Hutto's entire argument about having the privilege against self-incrimination
hinges on the Smith and Aldape decisions. In his appellant's brief, these are the only cases
Hutto cites to support his argument. But Hutto merely cites to the Smith and Aldape
decisions without any further analysis regarding the correctness of the Smith court's
holding that the privilege against self-incrimination extends through appeal. Additionally,
he does not address our Supreme Court precedent in Anderson, Longobardi, Bailey, or
Soto supporting that unless a person moves to withdraw a guilty plea before sentencing,
that person loses the privilege against self-incrimination upon sentencing.
18
Regardless, as previously explained, the Smith court's holding that a person retains
the privilege "until the right to appeal has expired" is thrown into question for the
following reasons: (1) the holding stems from a hypothetical privilege issue; (2) the
holding contains broad language; (3) the holding hinges on misinterpreting language
from Aldape; and (4) the holding ignores the Longobardi court's conflicting precedent.
Once more, the Longobardi court explicitly modified the second syllabus of Anderson to
provide that "once a plea of guilty has been regularly accepted by the court, and no
motion is made to withdraw it, the privilege against self-incrimination ends after sentence
is imposed." The Bailey and Soto decisions, which our Supreme Court decided more than
a decade after the Smith decision, reaffirmed the Longobardi holding. And in Bailey, our
Supreme Court applied Longobardi's holding to conclude that a witness lacked the
privilege through his pending appeal. 292 Kan. at 463.
Although Hutto points out that he still had time to file certain motions when he
invoked the privilege against self-incrimination, he ignores that those motions were
postsentencing motions. Again, Hutto specifically points out that when he invoked the
privilege, (1) he still had time to move under Rule 7.06 for our Supreme Court to rehear
his appeal on his postsentencing motion to withdraw his guilty pleas and (2) he still had
time to attack his sentence under K.S.A. 60-1507. Yet, under the Anderson, Longobardi,
Bailey, and Soto precedents, the fact that Hutto could still file those postsentencing
motions is irrelevant. Because Hutto had entered his felony murder guilty pleas and had
been sentenced for those crimes without first moving to withdraw his guilty pleas, his
privilege against self-incrimination ended upon sentencing.
Also, Hutto's argument ignores that the Smith court's holding does not and cannot
logically be harmonized with the Anderson, Longobardi, Bailey, and Soto precedents.
That is to say, the Smith court's holding directly conflicts with the results reached by the
Anderson, Longobardi, Bailey, and Soto courts. In a nutshell, our Supreme Court would
not have decided Anderson, Longobardi, Bailey, and Soto cases the way it did if it agreed
19
with the Smith court's holding that "[t]he Fifth Amendment privilege against self-
incrimination extends until there is a final judgment in a case and a right to appeal has
expired." 268 Kan. at 235. Even more, Hutto never considers the impracticality of his
argument. He contends that his privilege should have extended until he had exhausted all
methods of attacking his convictions and sentences after sentencing, which includes
moving for relief under K.S.A. 60-1507. Yet, if we were to echo Hutto's suggested
application of the privilege, a person could retain the privilege indefinitely as he or she
filed successive K.S.A. 60-1507 motions. Then, under Hutto's suggested application of
the Smith court's holding, it is unclear when, if ever, a person's Fifth Amendment
privilege against self-incrimination would terminate.
In Rogers v. United States, 340 U.S. 367, 373, 71 S. Ct. 438, 95 L. Ed. 344 (1951),
the United States Supreme Court explained that a "[d]isclosure of a fact waives the
privilege as to details." This means that once a person waives the privilege against self-
incrimination as to a crime, that person permanently waives this privilege because no
future testimony could expose the person to additional criminal punishment. 340 U.S. at
373.
As previously noted, we are duty-bound to follow our Supreme Court precedent
unless there is some indication that our Supreme Court is moving away from that
precedent. Rodriguez, 305 Kan. at 1144. Here, there is no evidence that our Supreme
Court is moving away from its precedent. A close review of our Supreme Court's
decisions establishes that unless a person moves to withdraw a guilty plea before
sentencing, that person loses the privilege against self-incrimination to avoid testifying
about related criminal conduct upon sentencing. As a result, we must follow this
precedent and reject Hutto's argument that he retained the Fifth Amendment privilege
against self-incrimination until he had exhausted all methods of attacking his convictions
and sentences after sentencing. We conclude that Hutto's privilege against self-
incrimination ended upon his sentencing for his two felony murder guilty pleas.
20
So, defendants' Fifth Amendment privilege against self-incrimination which
springs from moving to withdraw a guilty plea before sentencing—under the Longobardi
and Bailey precedents—is wholly preeminent over defendants' Fifth Amendment
privilege against self-incrimination which springs from moving to withdraw their guilty
plea after sentencing under the Smith precedent. Both privileges against self-
incrimination have real existence—once more, all persons have a Fifth Amendment
privilege against self-incrimination. Yet, each stated version of the above privilege
excludes the other when defendants move to withdraw their guilty plea after sentencing
under the Smith precedent. The former privilege against self-incrimination under the
Longobardi and Bailey precedents is incongruous with the latter privilege against self-
incrimination under the Smith precedent because the Longobardi and Bailey precedents
established that for defendants who pleaded guilty to their crimes, their Fifth Amendment
privilege against self-incrimination terminates at sentencing.
In summary, the trial court correctly ruled that Hutto did not have a valid Fifth
Amendment privilege against self-incrimination when he invoked the privilege at
Showalter's trial. Because Hutto lacked a valid reason for refusing the trial court's
direction to testify, the trial court properly found Hutto in contempt for violating its
direction. Thus, we affirm Hutto's direct contempt conviction.
Affirmed.
21