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No. 102,478 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellant, v. RODNEY L. TURNER, Appellee.

SYLLABUS BY THE COURT 1. The dismissal of an indictment based on grand jury abuse is reviewed for an abuse of discretion. Judicial discretion will vary depending upon the character of the question presented for determination. Generally, a district court's decision is protected if reasonable persons could differ about the propriety of the decision, as long as the discretionary decision was made within and takes into account any applicable legal standards. However, an abuse of discretion may be found if a district court's decision goes outside the framework of or fails to properly consider statutory limitations or legal standards.

2. Sometimes, abuse of discretion standards are more accurately characterized as questions of law requiring de novo review. An abuse of discretion standard does not mean that a mistake of law cannot be corrected by an appellate court. Rather, a district court necessarily abuses its discretion when it makes an error of law. Under the abuse of discretion standard, an appellate court reviews whether the district court's discretion was guided by erroneous legal conclusions.

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3. A person called as a witness in a grand jury proceeding under K.S.A. 22-3001 et seq. is required to assert his or her rights under the Fifth Amendment to the United States Constitution on a question-by-question basis.

4. Under the facts of this case, the State's chief investigator's comments to the grand jury on the defendant's refusal to testify, after the defendant had expressly invoked his right to remain silent, violated the defendant's rights under the Fifth Amendment to the United States Constitution.

5. As a general matter, a district court may not dismiss an indictment for errors in grand jury proceedings unless such errors prejudiced the defendant. However, a presumption of prejudice exists where the structural protections of the grand jury have been so compromised as to render the proceedings fundamentally unfair.

6. Under the facts of this case, the errors in the grand jury proceedings did not warrant the district court's decision to dismiss the indictment against the defendant. There was substantial evidence presented during the grand jury proceedings to support probable cause for the indictment, and the errors committed in the grand jury proceedings can be remedied adequately by means other than dismissal of the indictment.

Appeal from Wyandotte District Court; JACK L. LIVELY, judge. Opinion filed April 22, 2011. Reversed and remanded.

Jerome A. Gorman, district attorney, and Steve Six, attorney general, for appellant.

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James L. Eisenbrandt and Christina M. DiGirolamo, of Berkowitz Oliver Williams Shaw & Eisenbrandt, LLP, of Kansas City, Missouri, and Prairie Village, and Arthur A. Benson II, of Law Offices Arthur Benson & Associates, for appellee.

Before BUSER, P.J., MALONE and STANDRIDGE, JJ.

MALONE, J.: In March 2008, pursuant to a citizen-filed petition under K.S.A. 223001(2), the district court of Wyandotte County impaneled a grand jury to investigate allegations of criminal activity by the Board of Public Utilities (BPU) of the Unified Government of Wyandotte County/Kansas City, Kansas. After 6 months of hearings, the grand jury returned an indictment against Rodney Turner for 2 counts of theft and 55 counts of presenting a false claim. Turner filed a motion to dismiss the indictment for abuse of the grand jury, and the district court granted the motion. The State appeals the dismissal of the indictment and Turner cross-appeals, seeking clarification of whether the dismissal was with or without prejudice. For the reasons set forth herein, we reverse and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND On January 9, 2008, Thomas Reardon submitted a petition to the District Court of Wyandotte County, calling for a grand jury pursuant to K.S.A. 22-3001(2). The grand jury was convened on March 5, 2008, to investigate the allegations in the petition. The petition alleged:

"BPU bought 3 houses in Piper and 3 friends/good old' boys lived in for free, NO rent, utilities or taxes. (Exposed by TV 5).

"Misappropriation of Public Funds by BPU management and elected board members. Evidenced by the credit card receipts (Pitch newspaper)

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"Utility rate fixing is against the law. BPU Utility Rates fluxuate [sic] with the General Manager and Board Directors mood. 2007 before the BPU Election for Board Members rates were the highest in the metro area. During the election rates were the lowest in the metro. After the election rates have returned to the highest in Metro.

"Electric Rates from 2001 to 2006 have raised 71% & Water Rates are up 155%

"Our non-profit BPU Utility in 2006 raised the incoming revenue $36.5 million and claimed $14.5 million in profit. This profit results from over charging us the owners.

"BPU no-bid contracts and fixing with possible bribery charges should be investigated.

"Wind Power was a no bid contract and without an engineering study. Board vote 6-0

"Falsifing [sic] reports, as to the EPA that involve environmental disregard to public safety is a felony. (KC Star Newspaper) The BPU failed to report 73 projects in violation Under Clean Air Act Section 114(a), 42 U.S.C. () 7414(a) & 40 C.F.R. Part 52

"Falsifing [sic] Reports as appraised values or appraised value tampering."

The grand jury met periodically for 6 months, heard testimony from at least 27 witnesses, and examined 97 exhibits. Jerome A. Gorman and Kristiane Gray of the Wyandotte County District Attorney's office presented evidence to the grand jury. Special Agent William Delaney of the Kansas Bureau of Investigation (KBI) was assigned to investigate matters for the grand jury. Delaney testified in front of the grand jury multiple times.

As its investigation developed, the grand jury heard testimony regarding Turner, who had reportedly performed legal work for the BPU. Turner had submitted invoices for legal services to the BPU that were not itemized, and questions arose over what specific 4

legal services Turner had performed for the BPU. The amount of the invoices exceeded $370,000. The grand jury called Turner to testify, and he responded in writing that he planned to invoke his Fifth Amendment rights and not answer any questions. The grand jury did not release Turner from the subpoena. Turner appeared before the grand jury and invoked the Fifth Amendment, refusing to answer over 120 questions. On August 27, 2008, the grand jury indicted Turner for 2 counts of felony theft and 55 felony counts of presenting a false claim.

Marc Conklin, who had been legal counsel, chief administrative officer, and human resource manager at the BPU, was also indicted. On March 6, 2009, Turner and Conklin filed a joint motion to dismiss the indictments for grand jury abuse and violation of rights. In the motion, they argued that the grand jury was biased by Delaney's testimony that implied Turner and Conklin were connected to the unsolved murder of Chuck Thompson, which had occurred 20 years earlier. Thompson was a local politician and attorney in Wyandotte County who was murdered in 1987. According to Delaney, many of the same names involved in the ongoing Thompson murder investigation kept coming up in the BPU investigation. Turner and Conklin also complained that the State violated their constitutional rights by requiring them to appear before the grand jury after knowing they would exercise their Fifth Amendment rights and would not waive any attorney-client privilege the BPU asserted. Finally, Turner argued that it was improper for Delaney to comment to the grand jury that Turner should come forward with information about the Thompson murder and about Turner's relationship with the BPU.

On or about March 25, 2009, Conklin died and the district court subsequently dismissed him from the case. The hearing on Turner's motion to dismiss commenced on April 28, 2009. At the hearing, Turner claimed his Fifth Amendment rights were violated (1) when Delaney commented to the grand jury about whether Turner would testify; (2) when Turner was called to testify in front of the grand jury after telling the prosecutor he was invoking his Fifth Amendment rights; and (3) when, after Turner's appearance before 5

the grand jury, Delaney commented on Turner's silence, effectively stating that if Turner had an explanation for the legal bills in question, he should give that explanation to the grand jury. Additionally, Turner argued there was abuse of the grand jury. He claimed that Delaney's "constant insertion" of the Thompson murder investigation into the grand jury proceedings was improper, as Delaney wanted to obtain an indictment of Turner to use as leverage in the Thompson murder investigation.

The State denied abuse of the grand jury, emphasizing the procedural differences between federal and Kansas grand juries, especially Kansas grand juries impaneled to investigate allegations in a citizen's petition. The State argued that many of Delaney's comments about the Thompson murder investigation were provided to the grand jury as background information concerning Delaney's previous involvement with the BPU. The State further argued that the grand jury's indictment of Turner was based on the many exhibits admitted into evidence and the testimony of witnesses from the BPU, and not based on Delaney's comments about the Thompson murder investigation. Furthermore, the State contended that under Kansas law it did not violate Turner's Fifth Amendment rights by requiring him to invoke those rights in front of the grand jury on a question-byquestion basis.

After hearing from both parties, the district court found that the State and Delaney had undermined the grand jury process to the point of depriving Turner of due process and his Fifth Amendment rights. Specifically, the district court found that the grand jury was repeatedly subjected to highly improper and prejudicial comments by Delaney that attempted to link Turner to the Thompson murder investigation. Additionally, the district court found that the State violated Turner's Fifth Amendment rights by (1) calling Turner to appear after knowing he would exercise his Fifth Amendment rights and (2) permitting Delaney to infringe upon Turner's Fifth Amendment rights by commenting on Turner's silence in front of the grand jury. The district court found that the "State failed to conduct a fair grand jury proceeding and allowed information to be presented to the grand jury in 6

a manner that caused the grand jury to become prejudiced against Defendant Turner." Therefore, the district court granted Turner's motion to dismiss the indictment. When asked by counsel, the district court refused to specify whether the dismissal was with or without prejudice. The State timely appealed the district court's decision dismissing the indictment. Turner filed a cross-appeal seeking clarification of whether the dismissal was with or without prejudice.

On appeal, the State claims the district court erred by granting Turner's motion to dismiss the indictment. The State contends that under Kansas law it did not violate Turner's Fifth Amendment rights by requiring him to invoke those rights in front of the grand jury on a question-by-question basis. The State argues that Delaney's comments on Turner's silence did not violate Turner's constitutional rights. The State also argues that many of Delaney's comments about the Thompson murder investigation were provided to the grand jury as background information concerning Delany's previous involvement with the BPU. The State further argues that the grand jury's indictment of Turner was based on the many exhibits admitted into evidence and the testimony of witnesses from the BPU, and not based on Delaney's comments about the Thompson murder investigation. The State argues that in granting Turner's motion to dismiss the indictment, the district court abused its discretion by relying entirely on the transcript excerpts attached to the motion instead of reading all the transcripts of the entire grand jury proceedings. Finally, the State urges this court to adopt the federal rule that a grand jury indictment should only be dismissed when actual prejudice can be shown.

There are no Kansas cases stating the appropriate standard of review for dismissal of an indictment based on grand jury abuse. The State argues that this court should exercise unlimited review, and the State attempts to liken this case to one reviewing a district court's dismissal of an information or complaint because of insufficient evidence, which is reviewed de novo. See State v. Berg, 270 Kan. 237, 237-38, 13 P.3d 914 (2000) (reviewing de novo the dismissal of a complaint because the State failed to establish 7

probable cause at the preliminary hearing). Turner, on the other hand, argues for an abuse of discretion standard of review, citing State v. Boehmer, 41 Kan. App. 2d 598, 602, 203 P.3d 1274 (2009), which reviewed a district court's dismissal with prejudice of criminal charges for an abuse of discretion.

Judicial discretion will vary depending upon the character of the question presented for determination. Generally, a district court's decision is protected if reasonable persons could differ about the propriety of the decision, as long as the discretionary decision was made within and takes into account any applicable legal standards. However, an abuse of discretion may be found if a district court's decision goes outside the framework of or fails to properly consider statutory limitations or legal standards. State v. Woodward, 288 Kan. 297, 299, 202 P.3d 15 (2009). Sometimes, abuse of discretion standards are more accurately characterized as questions of law requiring de novo review. An abuse of discretion standard does not mean that a mistake of law cannot be corrected by an appellate court. Rather, a district court necessarily abuses its discretion when it makes an error of law. Under the abuse of discretion standard, an appellate court reviews whether the district court's discretion was guided by erroneous legal conclusions. State v. Moore, 287 Kan. 121, 135, 194 P.3d 18 (2008). Under this appropriate framework, we will review the district court's decision to dismiss the indictment against Turner for an abuse of discretion.

We begin by outlining the basic statutory structure of grand jury proceedings in Kansas. A grand jury may be summoned based upon a citizen-filed petition pursuant to K.S.A. 22-3001(2). Additionally, a district court may order a grand jury to be summoned in any county in the district when it is determined to be in the public interest. K.S.A. 223001(1). The grand jury shall consist of 15 members pursuant to K.S.A. 22-3001(3). After a grand jury is impaneled, a district court appoints a presiding juror and a deputy presiding juror pursuant to K.S.A. 22-3004. Oaths are administered pursuant to K.S.A. 22-3003. Once the grand jury is impaneled and sworn, a district judge charges the jurors, 8

giving them "such information as he deems proper and is required by law, as to their duties, as to any charges of crimes known to the court and likely to come before the grand jury." K.S.A. 22-3005(1). After the grand jury is charged, however, "it shall retire to a private room, and inquire into the crimes cognizable by it." K.S.A 22-3005(2).

A grand jury is an investigative body. Significantly, a grand jury may be impaneled to investigate specific allegations of criminal conduct, but the process often leads the grand jury to different but related areas of investigation. The grand jury is neither supervised nor conducted by the court; therefore, the rules of evidence do not apply. See Tiller v. Corrigan, 286 Kan. 30, 40-42, 182 P.3d 719 (2008) (discussing the unique role of a grand jury and the United States Supreme Court's recognition that a grand jury's "'operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials'").

Kansas grand jury proceedings are quite different than criminal or civil trials.

"In Kansas, a grand jury is a creature of statute and not of the constitution. Its function is investigatory and accusatory in contrast to a petit jury, which determines the guilt or innocence of an accused. Unlike a jury trial or preliminary hearing, a district judge does not preside over the grand jury proceedings, nor does a defendant have a right to be present or call or cross-examine witnesses. The county attorney has a limited role in the grand jury proceedings, and . . . has no responsibility to make a record or ensure that the jurors are qualified." State v. Snodgrass, 267 Kan. 185, 190, 979 P.2d 664 (1999).

We will now address the reasons cited by the district court for dismissing the grand jury indictment. The State admits on appeal that had some of the errors upon which Turner based his motion to dismiss occurred during a jury trial, the errors would have required a reversal of any conviction. However, the State argues that these same errors did not warrant dismissal of the indictment because the errors occurred before a grand jury, not a petit jury charged with returning a verdict of guilty or not guilty. 9

TURNER'S FIFTH AMENDMENT RIGHTS Calling Turner to Testify The State argues that the district court erred by finding it was improper for the prosecutor to ask Turner questions in front of the grand jury after knowing that Turner would invoke his Fifth Amendment rights. The district court found that "[t]he State and its investigative officer undermined the grand jury process and deprived Mr. Turner of due process and his Fifth Amendment rights." More specifically, the district court stated that "[t]he State caused Mr. Turner to appear before the grand jury even though it knew that he would exercise his Fifth Amendment rights . . . ."

The State points to K.S.A. 22-3008(3), which mandates the proper procedure "[i]f any witness appearing before a grand jury refuses to testify or to answer any questions asked in the course of the witness' examination," and K.S.A. 22-3008(4), which provides that "[n]o witness before a grand jury shall be required to incriminate the witness' self." In addition, K.S.A. 22-3009(1) states that "[a]ny person called to testify before a grand jury must be informed that he has a right to be advised by counsel," while K.S.A. 223009(2) allows counsel for any witness to be present while that witness testifies and to object on the witness' behalf. Based on these statutory provisions, the State contends it did not violate Turner's Fifth Amendment rights by requiring him to invoke those rights in front of the grand jury on a question-by-question basis.

However, Turner claims his rights were violated when, after telling the Wyandotte County District Attorney that he was invoking his Fifth Amendment rights, he was not released from his subpoena to testify. Turner argues that his position is supported by K.S.A. 60-423(a), which states: "Every person has in any criminal action in which he or she is an accused a privilege not to be called as a witness and not to testify." But Turner's argument is undermined by the fact that a grand jury proceeding is not a criminal action 10

but an investigatory proceeding and at the time of Turner's testimony, he was not an accused but a witness testifying before the grand jury. See State v. Nott, 234 Kan. 34, 48, 669 P.2d 660 (1983) (grand jury proceeding is "essentially investigative" in nature).

There is no Kansas case that directly addresses the propriety of calling and questioning a grand jury witness who has previously informed a prosecutor of his or her intention to invoke the protections of the Fifth Amendment. However, there is Kansas case law on this issue in the context of an inquisition. The Kansas Supreme Court has previously stated that "[a]n inquisition is in effect a one-person grand jury which provides the attorney general, his assistant, or any county or district attorney with authority to inquire into alleged violations of the law." State v. Cathey, 241 Kan. 715, 723, 741 P.2d 738 (1987), disapproved on other grounds by State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006). Due to the similarities between an inquisition and a grand jury proceeding, the analysis of a witness' Fifth Amendment rights in the context of an inquisition is applicable to a grand jury proceeding as well.

In re Investigation into Homicide of T.H., 23 Kan. App. 2d 471, 932 P.2d 1023 (1997), involved an appeal by a witness at an inquisition following the death of a 16month-old child in Wyandotte County. One of the issues on appeal was whether the district court erred in "refusing to allow the witness to assert a blanket Fifth Amendment right to silence at the inquisition." 23 Kan. App. 2d at 472. The witness in T.H. argued for a blanket Fifth Amendment right to remain silent and cited the same statutory prohibition upon which Turner is relying here, i.e. an accused in a criminal case cannot be forced to testify. See K.S.A. 60-423(a).

The T.H. court began by examining K.S.A. 22-3102 which provided: "No person called as a witness at an inquisition shall be required to make any statement which will incriminate him." The court found that although a witness cannot be compelled to make an incriminating statement, this statute contemplated that a person who might make an 11

incriminating statement may still be called as a witness. 23 Kan. App. 2d at 475. The court also noted that pursuant to K.S.A. 22-3104, any witness at an inquisition must be informed of his or her right to counsel and that counsel for any witness may be present during the testimony and may object on behalf of the witness. 23 Kan. App. 2d at 475. After examining Kansas case law that found the statutory safeguards of Fifth Amendment rights in an inquisition were fully adequate, the T.H. court held:

"Based on the statutory language and the interpretive case law which is available, this court finds that a person called as a witness in an inquisition under K.S.A. 22-3101 et seq. is not provided blanket immunity from answering questions, and the district court correctly required the witness to assert a Fifth Amendment right on a question-byquestion basis." 23 Kan. App. 2d at 475.

The statutes governing the inquisition in T.H. are nearly identical to the current statutes governing grand jury proceedings. K.S.A. 22-3008(4) provides that "[n]o witness before a grand jury shall be required to incriminate the witness' self." K.S.A. 22-3008(5) grants the county or district attorney, the attorney general, and the district judge authority to grant immunity to witnesses in order to compel testimony which would otherwise be privileged as self-incriminating. K.S.A. 22-3009 mandates that a grand jury witness must be informed of his or her right to counsel and that counsel for any witness may be present during testimony and may object on behalf of the witness but may not examine or crossexamine any witness before the grand jury.

As in T.H., the statutes here contemplate grand jury witnesses who may make incriminating statements, but the statutes also contemplate that a person who might make an incriminating statement may still be called as a witness. We also note that just prior to Turner's testimony, the district court instructed the grand jury that "[t]he Grand Jury shall not draw any inference of guilt from the fact that a [witness] does not testify or refused to answer particular questions. You must not consider these facts in arriving at your decision regarding any indictment." Thus, to the extent that Turner may have been 12

prejudiced by being required to invoke his Fifth Amendment rights in front of the grand jury, the grand jurors had been properly instructed not to draw any inference of guilt from Turner's silence.

Based on the decision in T.H. as well as the language of K.S.A. 22-3008 and 223009, we conclude the State did not violate Turner's Fifth Amendment rights by requiring him to invoke those rights in front of the grand jury on a question-by-question basis. Accordingly, the district court erred by finding it was improper for the prosecutor to ask Turner questions in front of the grand jury after knowing that Turner would invoke his Fifth Amendment rights. Likewise, the district court erred by granting Turner's motion to dismiss the indictment based in part on this reason.

Delaney's Comments on Turner's Silence According to Turner, his Fifth Amendment rights were also violated when, before Turner was called to testify, Delaney commented on his belief that Turner would not appear before the grand jury and testify. Additionally, Turner argues that Delaney improperly commented on Turner's silence after his grand jury appearance. The district court agreed, finding: "During the grand jury proceeding, the State's investigator was permitted to cast doubt on Mr. Turner's constitutional rights by commenting that Mr. Turner should come forward with information about the Thompson murder and about his dealings with the BPU."

In his motion before the district court, Turner gave three examples of Delaney's comments on Turner's silence before Turner appeared before the grand jury. First, on April 2, 2008, Delaney testified to the grand jury that "I would think [Turner] would be able to justify why he's submitting those bills to the BPU." Second, on April 16, 2008, a grand juror asked Delaney if he had any suggestions as to specific areas the grand jury should focus on as the grand jury tried to narrow its investigation. After listing other 13

areas on which to focus, Delaney said, "I think you ought to bring Rod Turner in. I don't think that he will talk. I don't know." The third challenged comment occurred when the district attorney asked Delaney whether he had any reason to disbelieve Reardon's allegations. In response, Delaney stated that he had no reason to disbelieve Reardon, even though some of his statements had not been corroborated. Delaney further stated, "And I mean you hear something about Rod Turner. You just don't go to Rod Turner and say, 'Hey, is this true?' Because, you know, I told you we tried talking to him on another case and he didn't see a need to talk to us, so I'll be shocked if he comes in and talks to you."

Turner also points to a comment Delaney made after Turner appeared before the grand jury and invoked his Fifth Amendment right to remain silent. On July 30, 2008, Delaney testified "[I]f [Turner has] proof of what he's doing for the BPU why doesn't he show it to us, or why doesn't he show it to you. That's just an opinion of mine. I'm not a lawyer. I'm just a cop."

Turner is correct in stating that Delaney's comments on Turner's silence would have been impermissible during a criminal trial. The United States Supreme Court has held that, at trial, "[t]he use for impeachment purposes of petitioners' silence, at the time of the arrest and after they received Miranda warnings, violated the due process clause of the Fourteenth Amendment." Doyle v. Ohio, 426 U.S. 610, 619, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). This holding was adopted in Kansas in State v. Mims, 220 Kan. 726, Syl.

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