                                        No. 117,861

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                     STATE OF KANSAS,
                                         Appellee,

                                              v.

                               DEIJAUN D. LEANNDRE LAMB,
                                       Defendant,
                                   (PATTRICK TOWNER),
                                        Appellant.


                              SYLLABUS BY THE COURT

1.
       An appellate court should consider a case that would otherwise be moot if it (1) is
of statewide interest and of the nature that public policy demands a decision, such as
those issues that exonerate the defendant; (2) remains a real controversy; or (3) is capable
of repetition.


2.
       A contempt finding for failure to testify in a case that is subsequently dismissed
without prejudice is an issue subject to repetition in light of the fact that the case may be
refiled and the witness again required to testify.


3.
       To present a compulsion defense, just like any other defense, there must be
evidence to support it. And if the district court refuses to allow the introduction of a
litigant's evidence related to the defense, the litigant must make a proffer of the evidence
to preserve the issue on appeal.




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4.
        A judge has no independent responsibility to seek out evidence of duress from a
recalcitrant witness. The witness has the affirmative duty to inform the appropriate
authorities and the court of any threats.


        Appeal from Shawnee District Court; DAVID DEBENHAM, judge. Opinion filed January 10, 2020.
Affirmed.


        Kristen B. Patty, of Wichita, for appellant.


        Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for
appellee.


Before ARNOLD-BURGER, C.J., LEBEN and SCHROEDER, JJ.


        ARNOLD-BURGER, C.J.: The State of Kansas charged Deijaun D. Leanndre Lamb
with the murder of Geovani Plakio and the attempted murder of Pattrick Towner. Towner
was called to testify at Lamb's preliminary hearing and identify Lamb as the shooter.
Deputies transported Towner and Lamb to the courthouse together and then placed them
in the same holding cell. When called to the stand, Towner refused to testify. The district
court explained to Towner that the court could hold Towner in contempt if he refused to
testify and gave him several opportunities to answer the State's questions. Towner refused
to do so. The district court held Towner in contempt and sentenced him to six months'
imprisonment.


        On appeal, Towner argues he was threatened into not testifying and the district
court erred by not holding an in camera hearing, without Lamb present, so that Towner
could explain why he was not testifying. Because we find that a judge has no duty to sua
sponte hold an in camera hearing to determine if a witness is fearful to testify when the




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witness makes no such request, we affirm the district court's order finding Towner in
direct criminal contempt of court.


                            FACTUAL AND PROCEDURAL HISTORY


       In October 2016, the State charged Lamb with first-degree murder for the killing
of Plakio and the attempted killing of Towner and Dominique Lee Boyles. According to
the probable cause affidavit, Towner—during two interviews with police—stated that he
was driving the car in which Plakio was shot, that he witnessed the shooting, and that
Lamb killed Plakio.


       At Lamb's preliminary hearing, Towner denied knowing Lamb and said that he
would not be able to identify him if he saw him on the street. The prosecutor asked the
court to recess so that she could speak with Towner outside the courtroom. The court
granted the request. After returning to court, the prosecutor once again asked Towner
whether he knew Lamb. Towner replied that he did not "want to get involved with this
case, so I'll just leave it at that." Towner stated that he was refusing to testify.


       The prosecutor asked the district court to hold Towner in contempt. The court
asked Towner's attorney whether Towner had any Fifth Amendment privilege that would
allow him to not testify. Towner's attorney replied that he was unaware of any privilege.
After Towner spent some time speaking with his attorney, the court ordered Towner to
testify and asked whether he understood that the court could hold him in contempt for
refusing to do so. The court informed Towner that he could be held in jail for up to six
months if there was a contempt proceeding and the court found him guilty. Towner stated
that he understood but again refused to testify. The court gave Towner another
opportunity to testify but he refused to do so. The court found Towner in contempt and
ordered him incarcerated.



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       The court continued the case a few days and at the next hearing Towner was again
called to testify. After speaking with his attorney, Towner told the court that he was "just
going to stay in contempt of Court." The court ordered that deputies return Towner to jail.
Lamb's attorney moved to dismiss the charges. The prosecutor asked for a continuance to
try to convince Towner to cooperate. The prosecutor informed the court that she had
spoken with Towner the night before he was called to testify at the first hearing and that
then he was willing to testify. But on the way to his first appearance to testify, deputies
transported Towner from jail to the courthouse in the same vehicle as Lamb and then
placed him in a holding cell in the courthouse with Lamb. The prosecutor believed that
Towner had been threatened by someone into not testifying against Lamb, but she could
not present any evidence to support her belief. The court agreed to continue the case a
few more days to give Towner another chance to purge himself of the contempt.


       At the final hearing, Towner refused to testify and asked to remain in contempt of
court. The court found a lack of probable cause against Lamb and dismissed the case
without prejudice. Towner appeals the court's order of contempt.


                                          ANALYSIS


       On appeal, Towner argues the district court erred by failing to provide an in
camera hearing, outside Lamb's presence, for Towner to explain why he would not
testify. But before we get to the merits of his claim, we must determine whether
procedural bars prevent us from reaching the merits. The State asserts that Towner's
appeal is moot and that, even if it is not, the court cannot consider issues raised for the
first time on appeal.




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Towner's appeal is not moot.

       The parties agree that Towner has completed his six-month sentence for contempt.
The court can dismiss an appeal as moot if '""it is clearly and convincingly shown the
actual controversy has ended, the only judgment that could be entered would be
ineffectual for any purpose, and it would not impact any of the parties' rights."'" State v.
Williams, 298 Kan. 1075, 1082, 319 P.3d 528 (2014). The State argues that because
Towner has completed his sentence any judgment entered on his behalf would be
ineffectual.


       Because mootness is a doctrine of court policy, which is rooted in court precedent,
appellate review of the issue is unlimited. State v. Hilton, 295 Kan. 845, 849, 286 P.3d
871 (2012).


       Twenty-five years ago, this court addressed whether an appeal is moot because the
appellant has finished serving his or her sentence for contempt. In State v. Flanagan, 19
Kan. App. 2d 528, 529-30, 873 P.2d 195 (1994), we found that such an appeal is not
moot. The court reasoned:


       "[T]he judicial system is an integral part of American life, and a criminal contempt
       conviction cannot help but affect a defendant's life if he or she appears before a judge
       who becomes aware of that conviction. That fact, and other possible collateral
       consequences of this conviction, are too obvious to declare this appeal moot simply
       because defendant cannot be subjected to additional jail time." 19 Kan. App. 2d at 529-
       30.


       The State argues that despite the court's concerns in Flanigan, a contempt citation
is not a criminal conviction, nor does it appear on a defendant's criminal history. Any
collateral consequences that may result are speculative at best. Towner simply asks us to




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follow the lead of Flanigan. He fails to advise us of any specific collateral consequences
that may result from the court's contempt finding.


       Generally, appellate courts in Kansas do not decide moot questions or render
advisory opinions. State v. Montgomery, 295 Kan. 837, Syl. ¶ 2, 286 P.3d 866 (2012).
But because the mootness doctrine is court made, it is also subject to court-recognized
exceptions which have been judicially created since Flanigan. An appellate court should
consider a case that would otherwise be moot if it "(1) is of statewide interest and of the
nature that public policy demands a decision, such as those issues that exonerate the
defendant; (2) remains a real controversy; or (3) is capable of repetition." State v.
Hollister, 300 Kan. 458, 458-59, 329 P.3d 1220 (2014). Towner fails to assert the
application of any of the exceptions.


       Even so, because we are not convinced that there are any ongoing consequences
that may result from the district court's finding of contempt, the first two exceptions do
not apply. But we are concerned that this issue may be subject to repetition, not only in
other similar cases in the future—albeit rare—but it could be repeated in this case. The
charges against Lamb were dismissed by the court without prejudice following a
preliminary hearing. If the State is somehow able to offer Towner protection or gather
additional evidence beyond Towner's statements to police, it could refile the murder
charges. See K.S.A. 2018 Supp. 21-5107(a) (no time limitation on the filing of murder
charges). Towner could be back in the same position. As a result, this case is not moot.


Towner has preserved his claim of error.

       Towner raises only one claim of error on appeal. He argues that because the court
had information from the prosecutor that suggested Towner was being threatened by
Lamb, the court had a duty to discuss the issue with Towner in camera before finding him
in contempt. Towner's attorney was with him each time the court ordered him to testify


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and Towner refused. His attorney spoke to him outside the presence of the judge and
prosecutor both times. At no time did Towner request an in camera discussion with the
judge.


         The State argues that Towner has failed to preserve this issue for appeal because
there was no contemporaneous request made to discuss the reasons for his refusal with
the court. Towner responds by framing this as solely a sufficiency of the evidence claim
which he can raise for the first time on appeal, citing State v. Farmer, 285 Kan. 541, Syl.
¶ 1, 175 P.3d 221 (2008) ("There is no requirement that a criminal defendant challenge
the sufficiency of the evidence before the trial court in order to preserve the question for
appeal.").


         The law in Kansas is clear. "If the issue was not raised below, there must be an
explanation why the issue is properly before the court. A party failing to explain why an
issue being raised for the first time on appeal is properly before the court risks having that
issue deemed waived or abandoned." Williams, 298 Kan. 1075, Syl. ¶ 4. But we are
willing to accept Towner's position that his claim is more like a sufficiency of the
evidence argument than an evidentiary error. In essence, he argues that because the judge
disregarded that he was under duress and did not provide Towner a safe environment to
set forth his defense, the evidence was insufficient to find him in contempt. Although we
agree this is a close call on whether Towner properly preserved his claim of error, we are
willing to proceed to the merits given the possibility that Towner could be in the same
position, in this case, in the future.


The district court did not err in holding Towner in contempt of court.

         Towner does not dispute that he refused to follow a court order. Instead, he argues
the district court should have provided him with a chance to explain his fear without
Lamb present. Towner also does not challenge the actual sanction imposed, six months in


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jail. Accordingly, we review de novo whether the alleged conduct was contemptuous
given all the circumstances. State v. Gonzalez, 290 Kan. 747, 754, 234 P.3d 1 (2010).


       There are at least three reasons Towner's claim of error fails.


       1. Towner failed to make a proffer of the evidence he wanted the court to consider.

       Compulsion is a statutory defense in Kansas.


               "(a) A person is not guilty of a crime other than murder or voluntary
       manslaughter by reason of conduct which such person performs under the compulsion or
       threat of the imminent infliction of death or great bodily harm, if such person reasonably
       believes that death or great bodily harm will be inflicted upon such person or upon such
       person's spouse, parent, child, brother or sister if such person does not perform such
       conduct.
               "(b) The defense provided by this section is not available to a person who
       intentionally or recklessly places such person's self in a situation in which such person
       will be subjected to compulsion or threat." K.S.A. 2018 Supp. 21-5206.




       To present a compulsion defense, just like any other defense, there must be
evidence to support it. And if the court refuses to allow the introduction of a litigant's
evidence related to the defense, the litigant must make a proffer. In other words, the party
must show the court what the party would present if the court were to allow the evidence.
See K.S.A. 60-405 (no decision can be "reversed, by reason of the erroneous exclusion of
evidence unless it appears of record that the proponent of the evidence either made
known the substance of the evidence in a form and by a method approved by the judge, or
indicated the substance of the expected evidence by questions indicating the desired
answers"). A defendant's failure to proffer excluded evidence makes it impossible for an
appellate court to determine whether a legally erroneous exclusion was harmless. State v.
Redick, 307 Kan. 797, Syl. ¶ 4, 414 P.3d 1207 (2018).


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       Towner essentially asserts that the court should have allowed him to proffer
evidence, in camera, to the court about his defense of compulsion. But neither he nor his
attorney ever requested to do so, even though the court gave them several opportunities to
talk outside the presence of Lamb. The judge implored Towner, "Do you have any other
reason, other than the fact that that you do not wish to be involved in this case?"
(Emphasis added.) Towner replied, "No, your honor." His failure to make a proffer is
fatal to his claim of error.


       2. The cases Towner summarily relies on do not support his position.

       It is essential when a litigant cites cases in an appellate brief in support of his or
her position that the cases support the litigant's position. Towner cites three federal cases
to support his argument. But on close review the cases do not favor Towner. We will
examine each.


       A federal district court held Mark Gravel in contempt for his refusal to testify
before a grand jury. In re Grand Jury Proceedings, 605 F.2d 750, 751 (5th Cir. 1979).
Gravel explained, during an in camera discussion with the judge, that he would not testify
because he was being actively threatened. On appeal, the court held that the district court
did not err in finding Gravel in contempt. Even if the court considered fear to be a
legitimate factor against a finding of contempt, it did not find that Gravel had raised a
sufficient defense. 605 F.2d at 752-53. The government had offered to protect Gravel and
he had refused the protection, instead choosing to not testify. Gravel's case does not hold
that a court must recognize fear as an affirmative defense to a finding of contempt. It
simply holds that the evidence was insufficient to support his defense given the State's
offer of protection. The Fifth Circuit Court of Appeals also distinguished duress as a
reason for the refusal to testify versus duress as a mitigation factor in determining a
sanction. 605 F.2d at 752-53. "In both civil and criminal contempt cases this circuit has
held that fear for personal and family safety is not a defense to a charge arising from


                                               9
refusal of a witness to testify. We have, however, held that such fear is a legitimate factor
in mitigation." 605 F.2d at 752.


       In United States v. Patrick, 542 F.2d 381, 386-88 (7th Cir. 1976), the appellate
court held duress could be a defense to contempt but that Leonard Patrick failed to
present evidence supporting his case. According to Patrick, he and his family were
threatened about his possible testimony. But the court noted: "Patrick made no attempt to
inform the court as to his fears, the basis therefor, and the steps he had taken to alleviate
the alleged danger so that he might comply with the law." 542 F.2d at 388. The court
cited with approval the Tenth Circuit Court of Appeals opinion in Shannon v. United
States, 76 F.2d 490, 493 (10th Cir. 1935). Patrick, 542 F.2d at 388.


               "'Coercion which will excuse the commission of a criminal act must be
       immediate and of such nature as to induce a well-grounded apprehension of death or
       serious bodily injury if the act is not done. One who has full opportunity to avoid the act
       without danger of that kind cannot invoke the doctrine of coercion.'" 542 F.2d at 386-87.


The court noted: "'[A] veiled threat of future unspecified harm . . . is not the equivalent
of an immediate threat of death or severe bodily injury.'" Patrick, 542 F.2d at 388.


       The third and final case Towner relies on found that fear for personal or family
safety is a mitigating factor when determining the sentence for a contempt, but that
"[f]ear for personal and family safety . . . is no defense to the crime of refusing to testify."
United States v. Gomez, 553 F.2d 958, 959 (5th Cir. 1977).


       None of these cases support Towner's argument. Like the defendant in Patrick,
Towner failed to inform the court of his fears. See Patrick, 542 F.2d at 388. Without
informing the court or State, Towner cannot expect an offer of protection like the
defendant in In re Grand Jury Proceedings. Even if Towner did inform the court or State



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that someone had threatened him and the State failed to extend an offer of protection, that
does not mean that the court could not hold Towner in contempt for his refusal to testify.
See In re Grand Jury Proceedings, 605 F.2d at 752-53 (fear for personal and family
safety is not a defense to a charge arising from refusal of a witness to testify). A witness
has a responsibility to "take the reasonable steps available in an attempt to extricate
himself from the apparent danger." Patrick, 542 F.2d at 388. This includes an affirmative
duty to inform the appropriate government authorities and the court of the threat. 542
F.2d at 388. Although the prosecutor suspected Towner was being threatened, she had no
proof. And Towner refused to provide any.


       Finally, the district court cannot be expected to consider whether threats against
Towner should lead to a lighter sentence for contempt when Towner did not inform the
court that he was threatened. See Gomez, 553 F.2d at 959. Even so, Towner does not
challenge the sanction here, only the sufficiency of evidence for the finding of contempt.
In sum, because Towner presents no caselaw to support his claims, we must conclude
there is none.


       3. A judge has no independent responsibility to seek out evidence of duress from a
       recalcitrant witness.

       Towner believes it was error for the judge to take "no action to ensure that Towner
was not refusing to testify due to threats from Lamb." Yet Towner presents no authority
for this central proposition—that a judge must independently and sua sponte marshal the
resources necessary for a witness to claim a defense of duress or coercion, particularly
when, as here, the witness has his own legal counsel at each hearing. As the State points
out, the overwhelming majority of courts to address the issue have held that fear does not
provide a basis for a witness' refusal to testify. See Howell v. State, 465 Md. 548, 563
n.13, 214 A.3d 1128 (2019) (citing 12 cases from 12 jurisdictions). So necessarily, a
requirement that the court sua sponte investigate whether a witness is being placed in fear



                                             11
would serve no purpose. As the Seventh Circuit Court of Appeals stressed in Patrick, it is
the witness who has the affirmative duty to inform the appropriate government authority
and the court of any threats. 542 F.2d at 388.


       The district court's decision finding Towner in direct criminal contempt of court is
affirmed.


       Affirmed.




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