State v. Bailey

1



IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 101,785

STATE OF KANSAS,
Appellee,

v.

ANDRE BAILEY,
Appellant.


SYLLABUS BY THE COURT

1.
In 2006, K.S.A. 38-1636 was repealed; thereafter, K.S.A. 2010 Supp. 38-2347
provides for the certification of juveniles as adults for prosecution. K.S.A. 2010 Supp.
38-2347(f) requires that the court find "from a preponderance of the evidence" that the
individual should be prosecuted as an adult for the offense, rather than finding "that there
is substantial evidence" as required by K.S.A. 38-1636(f). The "preponderance of the
evidence" standard is a more rigorous standard than "substantial evidence."

2.
An appellate court reviews the trial court's decision to authorize prosecution of a
juvenile as an adult to determine whether there is substantial evidence in the record to
support the decision. This court does not review the analysis of the trial court; instead, the
standard of review applies to the evidence.

3.
Whether an underlying felony has been committed before commission of a felony
murder is ordinarily a question of fact for the jury. The PIK Crim. 3d 56.02 jury
instruction properly instructs the jury and fairly states the law on this issue.
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4.
In an alternative means case, where a single offense may be committed in more
than one way, there must be jury unanimity as to guilt for the single crime charged.
Unanimity is not required, however, as to the means by which the crime was committed,
so long as substantial evidence supports each alternative means.

5.
In reviewing an alternative means case, a court must determine whether a rational
trier of fact could have found each means of committing the crime proved beyond a
reasonable doubt.

6.
When defendant's requested instruction is given to the jury, the defendant cannot
complain the requested instruction was error on appeal.

7.
The Fifth Amendment to the United States Constitution is not without limits. 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.

Appeal from Sedgwick County District Court; JAMES L. BURGESS and REBECCA L. PILSHAW,
judges. Opinion filed July 15, 2011. Affirmed.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, argued the cause and was
on the brief for appellant.

Lesley A. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston,
district attorney, and Steve Six, attorney general, were with her on the brief for appellee.

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The opinion of the court was delivered by

ROSEN, J.: Andre Bailey appeals from his convictions of one count of first-degree
murder, two counts of aggravated robbery, one count of aggravated burglary, one count
of criminal discharge of a firearm at an occupied building, one count of possession of
marijuana with intent to sell, and one count of no tax stamp.

Late on August 10, 2007, Sade James picked up her friend Cheryl Starr for a night
of drinking and partying. James exchanged text messages with Bailey and agreed to pick
up Bailey and his friend DaQuan Dean. The group continued to drink and party,
eventually stopping at the apartment of Cindale Terrell. The group continued to drink;
Starr, Bailey, and Dean also smoked marijuana.

The conversation turned to guns, and Bailey produced a 9 mm handgun from his
backpack. The group took pictures posing with the 9 mm and a shotgun that was located
in the apartment. James drove the foursome to Starr's house, where she ran inside after
something. The group then returned to the apartment; Bailey and Dean went into the
apartment and returned with the shotgun. They stopped at a QuikTrip and picked up
something to eat.

Bailey had expressed a desire to go to a house where he knew they could get 18
"bricks" of marijuana. Bailey eventually gave James directions to the targeted house.
James stopped at a cul-de-sac, and the three others left the vehicle and crossed a drainage
ditch to the adjoining street. Later, Dean called James and directed her to move the car to
the next street over.

At the house, Dean kicked in the door. Starr went into the living room, while Dean
and Bailey continued to the back bedroom where Ricky Stewart, Meagon Hicks, and her
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youngest son were sleeping. Hicks' 4-year-old son and 5-year-old daughter were asleep
across the hall.

Hicks was awakened by Bailey holding a handgun in her face and demanding the
"bricks." Dean was standing in the bedroom doorway with a shotgun. Stewart eventually
left the room with Dean to get a "brick" of marijuana. Stewart and Dean passed Starr in
the living room and left the house.

Bailey hit Hicks on her forehead with the handgun, telling her to shut up. The
older children awoke and entered the bedroom. Bailey shoved the older girl at Hicks and
picked up the older boy and threw him on the bed. Bailey demanded Hicks' purse; she
denied having a purse. Bailey hit Hicks on the back of her head with the handgun, calling
her a "lying bitch." Bailey eventually found the purse and left the room.

Starr had left the house shortly after Dean left. Bailey left the house and met Starr
on the sidewalk outside the house. Bailey asked where Dean was. Starr responded that
she did not know and ran to the car. Starr met Dean running on the sidewalk; the two of
them returned to the vehicle at nearly the same time.

Inside the residence, Stewart returned to the bedroom, attempting to comfort
Hicks, and asked for the phone. Hicks told him the phone had been shut off and she did
not know where it was. The couple, followed by Hicks' 5-year-old daughter, went into the
living room in search of keys to their vehicle. Hicks saw someone opening the front door
and ran to push the door closed. Stewart pushed her out of the way and attempted to close
the door himself. Moments later, Hicks heard several gunshots and Stewart screamed that
he had been shot.

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Starr reported hearing gunshots after she and Dean had joined James in the
vehicle, but before Bailey returned to the car. James testified that she moved the vehicle
again after Starr and Dean returned to the car, where she picked up Bailey. According to
James, Bailey stated that he had returned to the house because he thought Dean remained
inside and Bailey emptied his clip into the door. Starr testified that she did not remember
any discussion after Bailey returned to the car.

Once inside the car, Bailey divided the money from Hicks' purse, giving each
person $86. Because Bailey felt sick, the group stopped at a QuikTrip and picked up
water, cigarettes, and "blunt sticks." Bailey vomited at a stop light. The group returned to
Terrell's apartment. At the apartment, a large quantity of marijuana, referred to as a
"brick," was divided among Bailey, Starr, Dean, and possibly Terrell.

Stewart died as a result of the gunshot wounds sustained from the gunshots fired
through the door of Stewart's home.

Because Bailey was 17 years old, charges were originally filed with the juvenile
court. The State filed a motion pursuant to K.S.A. 2010 Supp. 38-2347, seeking to have
the case transferred to adult court for prosecution. The motion was granted and Bailey
was tried as an adult on the following charges: one count of first-degree murder, two
counts of aggravated robbery, one count of aggravated burglary, one count of criminal
discharge of a firearm at an occupied building, one count of possession of marijuana with
intent to sell, and one count of no tax stamp. At trial, the evidence included testimony
from James, Starr, and Dean. The jury returned a verdict of guilty on all counts.




6



ADULT CERTIFICATION

In 2006, K.S.A. 38-1636 was repealed; thereafter, K.S.A. 2010 Supp. 38-2347 has
provided for the certification of juveniles as adults for prosecution. Bailey was certified
as an adult on January 10, 2008, for crimes occurring in August 2007. The parties agree
that K.S.A. 38-2347 controls.

The factors enumerated in K.S.A. 38-1636(e) and K.S.A. 2010 Supp. 38-2347(e)
are identical except for the use of "juvenile" in place of the word "respondent." Of
potentially more import, K.S.A. 2010 Supp. 38-2347(f) requires that the court find "from
a preponderance of the evidence" that the individual should be prosecuted as an adult for
the offense, rather than finding "that there is substantial evidence" as required by K.S.A.
38-1636(f). The "preponderance of the evidence" standard is a more rigorous standard
than "substantial evidence." In re Due Process Hearing of Bailey, 233 Kan. 714, 722, 664
P.2d 1379 (1983) (quoting Town of Burlington v. Department of Ed., Etc., 655 F.2d 428,
431 [1st Cir. 1981]).

The statutory change applies to the standard used by the trial court, but does not
change our standard of review. When a trial court considers a question of fact which must
be proved by a preponderance of the evidence, this court's review is limited to
determining whether substantial competent evidence supports the trial court's finding.
See, e.g., State v. Loggins, 40 Kan. App. 2d 585, 588, 194 P.3d 31 (2008) ("Whether the
State has met its burden to prove a prior conviction by a preponderance of the evidence is
a question of fact, and an appellate court's review is limited to determining whether
substantial competent evidence supports the district court's finding."); State v. Thompson,
37 Kan. App. 2d 589, 593, 155 P.3d 724 (2007) (reviewing whether the State proved "by
a preponderance of the evidence that the consent was voluntarily, intelligently, and
knowingly given" under a substantial evidence standard).
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"An appellate court reviews the trial court's decision to authorize prosecution of a
juvenile as an adult to determine whether there is substantial evidence in the record to
support the decision." State v. Davis, 37 Kan. App. 2d 650, Syl. ¶ 10, 155 P.3d 1207
(2007) (reviewing adult certification under K.S.A. 38-1636). This court does not review
the analysis of the trial court; instead, the standard of review applies to the evidence.
State v. Avalos, 266 Kan. 517, 521, 974 P.2d 97 (1999).

The journal entry indicates the following which support finding that the adult
certification was proper: (1) the State's motion for adult prosecution was pursuant to
K.S.A. 2010 Supp. 38-2347; (2) Bailey did not contest the motion for adult prosecution;
(3) the trial court accepted Bailey's stipulation to the motion; and (4) the trial court
considered each of the statutory factors listed in K.S.A. 2010 Supp. 38-2347. The
troubling part of the journal entry is the concluding language: "Therefore, after
considering all eight (8) factors pursuant to K.S.A. 38-1636(e), the Court finds that there
is substantial evidence that the Respondent should be prosecuted as an adult for the
offense(s) alleged in the amended complaint filed herein."

Bailey argues that the trial court's citation of the old statute invalidates the
certification for adult prosecution; however, Bailey was unable to identify any factors in
the current statute which were not considered by the trial court. The State points out that
Bailey did not contest the adult certification and the trial court did consider the eight
statutory factors. The State also asserts that the factors considered by the court, and listed
in the journal entry, are sufficient to support a finding under either the "substantial
evidence" standard or the "preponderance of the evidence" standard.

In State v. Smith, 268 Kan. 222, 246, 993 P.2d 1213 (1999), this court reversed a
juvenile's stipulation to adult prosecution because the trial court had not considered both
the juvenile's stipulation and evidence of the eight statutory factors. But in State v.
8



Ellmaker, 289 Kan. 1132, 1148-50, 221 P.3d 1105 (2009), this court concluded that it had
no jurisdiction to consider adult certification when the juvenile consented to the order and
the trial court considered the eight statutory factors before waiving juvenile jurisdiction.
In this case, the journal entry indicates that the trial court considered both Bailey's
stipulation and the eight statutory factors before waiving juvenile jurisdiction. But the
trial court apparently reviewed the factors under the wrong standard; therefore, this court
will review the adult certification using the facts found by the trial court.

The trial court made the following findings: (1) Bailey was 17 years old at the
time of the offenses; (2) the seriousness of the alleged offenses is so great that the
protection of the community requires criminal prosecution; (3) the offenses were
committed in an aggressive, violent, premeditated, or willful manner; (4) Bailey was
charged with first-degree murder and other offenses against persons; (5) Bailey had one
prior adjudication as a juvenile offender; (6) Bailey had a history of antisocial behavior or
patterns of physical violence; (7) there are no facilities or programs available which are
likely to rehabilitate Bailey prior to the expiration of juvenile jurisdiction; and (8) the
interests of Bailey or the community would be better served by criminal prosecution.
These stipulated facts provide substantial evidence to support the trial court's decision to
certify Bailey as an adult for prosecution.

JURY INSTRUCTIONS

Bailey raises several complaints about the jury instructions, specifically: (1) the
felony-murder instruction did not properly instruct the jury on the issue of whether the
underlying felonies had been completed before the commission of the murder; (2) the
felony-murder instruction should have included a unanimity instruction on the underlying
felonies; and (3) the felony-murder instruction should have defined "attempt."

9



This court's standard of review depends upon whether the challenged instruction
was objected to at trial.

"When a party has objected to an instruction at trial, the instruction will be
examined on appeal to determine if it properly and fairly states the law as applied to the
facts of the case and could not have reasonably misled the jury. In making this
determination an appellate court is required to consider the instructions as a whole and
not isolate any one instruction." State v. Appleby, 289 Kan. 1017, 1059, 221 P.3d 525
(2009).

"An appellate court reviewing a district court's giving or failure to give a
particular instruction applies a clearly erroneous standard where a party neither suggested
an instruction nor objected to its omission. [Citation omitted.] An instruction is clearly
erroneous only if the reviewing court is firmly convinced there is a real possibility the
jury would have rendered a different verdict if the trial error had not occurred." State v.
Martinez, 288 Kan. 443, 451-52, 204 P.3d 601 (2009).

Underlying Felonies

First, Bailey complains that the felony-murder instruction did not require the jury
to determine whether the underlying felonies had been completed before the commission
of the murder. Bailey argued generally against the felony-murder instruction during the
instructions conference, but neither made a specific objection on this basis nor proposed
jury instructions that would have covered this issue. The State responds that PIK Crim.
3d 56.02 sufficiently requires the jury to find that the murder occurred during the
commission of the underlying felonies, such that no additional instruction is necessary.

Whether an underlying felony has been completed prior to the commission of a
felony murder is ordinarily a question of fact for the jury. State v. Hearron, 228 Kan.
693, 696, 619 P.2d 1157 (1980). However, this court has concluded that the PIK Crim. 3d
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56.02 jury instruction properly instructs the jury and fairly states the law on this issue.
State v. Jackson, 280 Kan. 541, 550-51, 124 P.3d 460 (2005) (citing State v. Beach, 275
Kan. 603, 625, 67 P.3d 121 [2003]). In Jackson, this court reviewed PIK Crim. 3d 56.02
under the more liberal standard because Jackson had requested a more specific jury
instruction. See also State v. Ransom, 288 Kan. 697, 713, 207 P.3d 208 (2009) (noting
that this court has "previously approved the causation aspect of PIK Crim. 3d 56.02").

In this case, Bailey did not request a specific jury instruction, nor did he make a
specific objection to this instruction; therefore, the court reviews this issue under the
stricter, clearly erroneous standard. The PIK jury instruction given in this case requires
that the jury find that the murder occurred while the underlying felonies were being
committed or attempted. Following the analysis of current case law, the jury's verdict
finding Bailey guilty of felony murder indicates that the jury found Bailey killed the
victim during one of the underlying felonies alleged.

Further, Bailey argues that the felony-murder instruction should not have included
the underlying crimes of aggravated burglary and aggravated robbery because these
crimes had been completed prior to the murder. Bailey objected to the instruction on this
basis. The trial court ruled that completion of the underlying felony raised a fact question
for the jury to decide. Bailey was allowed to argue this theory during closing arguments.
Because Bailey objected to this instruction on this basis, the court must consider the
instructions as a whole to determine whether the instruction fairly states the law as
applied to the facts of the case.

The State argues that the facts support a finding that the murder occurred during
the commission of the aggravated burglary, aggravated robbery, and criminal discharge
of a firearm. The State contends that there was no break in the events between the
aggravated burglary, aggravated robbery, and criminal discharge of a firearm. As the
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State points out, these events were closely related in time. All three underlying felonies
occurred before Bailey returned to the vehicle, where the proceeds of the robbery were
divided.

Again, whether the underlying felonies were completed before the murder is
ordinarily a fact question for the jury. Hearron, 228 Kan. at 696. The evidence shows that
Bailey forcibly entered Stewart's and Hicks' home, stole drugs and money from them at
gunpoint, and shot and killed Stewart―all before returning to the vehicle in which he
arrived. Afterwards, he reunited with Dean, Starr, and James at the vehicle, where the
stolen money was divided among the group. The evidence in this case would not support
a finding that, as a matter of law, the aggravated burglary and aggravated robbery were
completed before the murder. The decision on this issue was properly allocated by the
trial court. The jury was properly informed, by the instructions and the arguments of
counsel, that felony murder is committed only when the murder occurs during the
commission of the underlying felonies. The jury, by its verdict, found that the murder
occurred during the commission of one or more of the underlying felonies.

Unanimity Instruction

Bailey was charged with felony murder based on the following underlying
felonies: aggravated burglary, aggravated robbery, or criminal discharge of a firearm.
Bailey acknowledges that a unanimity instruction was not requested and no objection was
made at trial; therefore, the court will use a clearly erroneous standard of review.

Bailey argues that the underlying felonies were multiple acts because the criminal
discharge of a firearm was separated in time from the aggravated burglary and aggravated
robbery. Bailey further claims that the criminal discharge of a firearm was motivated by a
fresh impulse, that of finding and helping a codefendant, who Bailey believed had not left
12



the house during the burglary and robbery. Such a claim stretches the imagination; even
under Bailey's version of the facts, his return to the house was a result of the uncompleted
burglary and robbery.

The State maintains that this was an alternative means case, citing State v. Hooker,
271 Kan. 52, 57, 21 P.3d 964 (2001). In Hooker, the defendant was charged with felony
murder based on either aggravated burglary or robbery. The court concluded that these
underlying crimes were alternative means because the same facts justified both
underlying crimes. Hooker, 271 Kan. at 59.

This court has ruled that different underlying felonies supporting a charge of
felony murder are alternative means rather than multiple acts. State v. Becker, 290 Kan.
842, 235 P.3d 424 (2010) (holding that three kidnapping charges as the alternate
underlying felonies for felony murder were alternative means); Hooker, 271 Kan. at 52,
59. When a single offense is alleged that may be committed in more than one way, the
court is presented with an alternative means case. Becker, 290 Kan. at 855. When several
acts are alleged, any of which could constitute the crime charged, the court is presented
with a multiple acts case. Becker, 290 Kan. at 855.

In this case, a single offense was committed―the unlawful shooting of
Stewart―which could have been committed during the aggravated burglary, aggravated
robbery, criminal discharge of a firearm, or some combination thereof. Therefore, the
charges of aggravated burglary, aggravated robbery, and criminal discharge of a firearm
were alternative means of committing felony murder.

"In an alternative means case, where a single offense may be committed in more
than one way, there must be jury unanimity as to guilt for the single crime charged.
Unanimity is not required, however, as to the means by which the crime was committed
13



so long as substantial evidence supports each alternative means. In reviewing an
alternative means case, a court must determine whether a rational trier of fact could have
found each means of committing the crime proved beyond a reasonable doubt. In
multiple acts cases, on the other hand, several acts are alleged and any one of them could
constitute the crime charged. In these cases, the jury must be unanimous as to which act
or incident constitutes the crime. To ensure jury unanimity in multiple acts cases, courts
require that either the State elect the particular criminal act upon which it will rely for
conviction or that the district court instruct the jury that all jurors must agree that the
same underlying criminal act has been proved beyond a reasonable doubt." State v.
Dixon, 289 Kan. 46, Syl. ¶ 7, 209 P.3d 675 (2009)

As alternate means, the felony-murder instruction did not require a unanimity
instruction. Bailey does not challenge the sufficiency of the evidence supporting each of
the alternative means. The jury convicted Bailey of each of the underlying felonies,
which would tend to support a holding that sufficient evidence supported each of the
alternative means. As a result, there was no error in the failure to give a unanimity
instruction.

Definition of Attempt

As requested in Bailey's proposed jury instructions, the second element of the
felony-murder instruction given to the jury stated: "That such killing was done while in
the commission of or attempting to commit aggravated robbery, aggravated burglary or
criminal discharge of a firearm at an occupied building." Neither Bailey's proposed
instructions nor the instructions given to the jury included a definition of "attempt."
Bailey now contends that the felony-murder instruction was clearly erroneous due to this
omission. Bailey did not object on these grounds. When defendant's requested instruction
is given to the jury, the defendant cannot complain the requested instruction was error on
appeal. State v. Patchett, 229 Kan. 163, Syl. ¶ 3, 621 P.2d 1011 (1981).

14



Further, the parties agree that there was no evidence at trial that the underlying
crimes were attempted rather than completed and our review of the record leads to the
same conclusion. In fact, the jury convicted Bailey of all three underlying felonies. Under
these facts, the language "or attempting to commit" in the complaint and jury instruction
was merely surplusage because there was no evidence that the underlying crimes were
attempted rather than completed crimes. See State v. McCoy, 34 Kan. App. 2d 185, 191,
116 P.3d 48 (2005) (finding no reversible error when the trial court erroneously included
an element of obstruction of legal process in an instruction for obstruction of legal duty
when the instruction as a whole fairly instructed the jury). Although a proper jury
instruction including this language would also define attempt, the inclusion of
superfluous language in this instruction was harmless. Removing the extraneous language
"or attempting to commit" in the jury instruction on felony murder would not have
changed the outcome in this case. No rational jury could have found attempt under these
facts.

WITNESSES' FIFTH AMENDMENT PRIVILEGES

Bailey argues that it was improper for the trial court to inform Starr that she did
not have a Fifth Amendment privilege and to encourage Starr to testify. Bailey further
argues that it was improper for the trial court to inform Dean that he did not have a Fifth
Amendment privilege and to put Dean on the stand just so that Dean could refuse to
testify. Bailey did not object when the testimony at issue was introduced to the jury. In
order to preserve an issue for appeal, a party must raise a timely and specific objection at
trial. State v. Horton, 283 Kan. 44, 63, 151 P.3d 9 (2007).

Further, the State contends that Bailey is without standing to assert the Fifth
Amendment privileges of Starr and Dean. "The right against self-incrimination is
personal to the witness, and the appellant in a criminal action has no standing to assert the
15



witness's privilege." State v. Smallwood, 223 Kan. 320, Syl. ¶ 5, 574 P.2d 1361 (1978). In
State v. Anderson, 240 Kan. 695, 732 P.2d 732 (1987), however, this court reviewed a
defendant's objection to testimony of a witness in alleged violation of the witness' Fifth
Amendment privilege without any discussion of the defendant's standing on this issue.
The court found that although the trial court erred in finding the witness had waived his
Fifth Amendment privilege, the limited statements of the witness did not prejudice the
defendant. Anderson, 240 Kan. at 700-01.

Finally, the Fifth Amendment privilege is not without limits. "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." State v.
Longobardi, 243 Kan. 404, Syl. ¶ 1, 756 P.2d 1098 (1988).

Starr's Testimony

At the time of Bailey's trial, Starr was serving a 12-year sentence following her
guilty plea to second-degree murder (reckless), two counts of aggravated robbery, and
one count of aggravated burglary for her part in these events. The State issued a subpoena
to compel her presence and testimony in the State's case in chief. Starr was transported
from the Topeka Correctional Facility to the Sedgwick County Detention Facility, where
the prosecutor met with her to discuss the case. Starr said that she would not testify. The
court conducted a hearing with counsel for the State, Bailey, Bailey's counsel, Starr, and
Steve Osburn, the attorney who had represented Starr during her criminal case. The court
told Starr that the State had a right to call her as a witness and that Starr had no Fifth
Amendment privilege because she had entered a guilty plea and had been sentenced on
the case. Neither Starr nor her attorney objected to the court's conclusion. Starr testified
without objection.

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Because Starr had entered a guilty plea to second-degree murder, two counts of
aggravated robbery, and one count of aggravated burglary; had been sentenced on those
charges; and had not filed a motion to withdraw her guilty plea, Starr had no Fifth
Amendment privilege with regard to testimony related to those charges. See Longobardi,
243 Kan. 404, Syl. ¶ 1. Bailey points out that some of Starr's testimony could expose her
to criminal liability for crimes not included in her guilty plea. Starr admitted to
possessing and using marijuana. Starr also admitted that she had not been truthful with
the police at the time of her arrest. Bailey simply argued that all of Starr's testimony was
prejudicial to his case, without explaining how this potentially protected testimony
specifically was prejudicial.

In fact, the arguably protected testimony tends to discredit Starr by exposing her as
a drug user who was using drugs the night of the incident and was untruthful with police.
It is the testimony that is clearly outside Starr's Fifth Amendment privilege which related
most directly to Bailey's case and was the most prejudicial. Even if it was error to compel
Starr to testify about certain matters that were outside of her guilty plea, that issue was
not raised before the trial court and not properly preserved for appeal.

Dean's Testimony

At the time of Bailey's trial, Dean had entered a guilty plea, been sentenced, and
filed a notice of appeal. Outside the presence of the jury, the court held a hearing at
which Dean, through counsel, advised the court that he wished to assert his Fifth
Amendment privilege and, failing that, did not wish to testify. The court found that Dean
had no Fifth Amendment privilege to assert. Dean's counsel did not object to this
determination. Dean indicated he was not willing to testify despite the court's decision,
and the court advised Dean to speak with his counsel about the matter. Dean was called
to testify without objection. Dean identified Bailey, admitted they were first cousins and
17



good friends, and refused to testify further. Dean did not actually assert a Fifth
Amendment privilege in front of the jury; instead he repeatedly stated, "I'm not
testifying." After dismissing the jury, the trial court found Dean in contempt for his
refusal to testify.

Bailey argues that it was error to allow the State to put Dean on the stand knowing
that he would refuse to testify. Bailey cites cases in which the witness had a valid Fifth
Amendment privilege and was put on the stand for the sole purpose of asserting that
privilege before the jury. State v. Crumm, 232 Kan. 254, 256-57, 654 P.2d 417 (1982)
(finding no error in a trial court's refusal to let the defendant ask questions to which the
witness would assert a valid Fifth Amendment privilege); State v. Simpson, 29 Kan. App.
2d 862, 872-73, 32 P.3d 1226 (2001) (finding error when a witness' attorney invoked the
witness' Fifth Amendment privilege in front of the jury). The State contends that Dean
did not have a valid Fifth Amendment privilege. Further, the State argues that Dean was
not called for the sole purpose of asserting his Fifth Amendment privilege before the jury;
rather, Dean was called in hopes that he had decided to testify.

Bailey cites Anderson, 240 Kan. at 700-01, for the proposition that a witness
retains his or her Fifth Amendment privilege through the course of the appeal. The
witness in Anderson, however, did not have a pending appeal. That individual had
entered a guilty plea but had filed a motion to withdraw the plea, which was denied; he
had not yet been sentenced, nor had the appeal time run on the denial of his motion to
withdraw his plea. Under those unique circumstances, the court in Anderson determined
that the witness had a valid Fifth Amendment privilege. Anderson, 240 Kan. at 701. In
Longobardi, this court specifically limited the Anderson ruling, stating: "We hold 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.
18



Syllabus paragraph 2 of Anderson is hereby limited to this ruling." Longobardi, 243 Kan.
at 409.

Because Dean had entered a guilty plea and had been sentenced, the trial court was
correct in finding that Dean had no Fifth Amendment privilege protecting the events in
this case. See Longobardi, 243 Kan. 404, Syl. ¶ 1. As Dean had no valid Fifth
Amendment privilege, his refusal to testify before the jury is different than a refusal by a
witness called for the sole purpose of asserting a valid Fifth Amendment privilege to
cause jury speculation.

Bailey argues that Dean's limited statements were inherently prejudicial and that
"the prejudice was compounded by the fact that before refusing to testify, [Dean] told the
jury that he and [Bailey] were cousins and that they have been good friends and buddies
for a long time." At trial, Bailey's theory was that (1) the events were separated in time
because Bailey had returned to the house to "rescue" Dean, requiring that felony murder
must have occurred during the unlawful discharge of a firearm; and (2) Dean, not Bailey,
had been the actual shooter, i.e., Dean committed the unlawful discharge of a firearm.
Dean's testimony and subsequent refusal to testify further were not prejudicial to this
theory; in fact, Dean's testimony arguably bolstered Bailey's position. In any event, any
inference the jury made regarding Dean's refusal to testify was inconsequential.

Affirmed.

BUSER, J., assigned.
1


1
REPORTER'S NOTE: Judge Michael R. Buser, of the Kansas Court of Appeals, was appointed to hear
case No. 101,785 pursuant to the authority vested in the Supreme Court by K.S.A. 20-3002(c) to fill the
vacancy on the court created by the retirement of Chief Justice Robert E. Davis.