IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE FILED
January 31, 2000
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, ) FOR PUBLICATION
)
Appellee, ) FILED: JANUARY 31, 2000
)
v. ) BLOUNT COUNTY
)
DANNY SPRADLIN, ) HON. D. KELLY THOMAS, JR., JUDGE
)
Appellant. ) NO. E1995-00019-SC-R11-CD
For Appellant: For Appellee:
KEVIN W. SHEPHERD JOHN KNOX WALKUP
Maryville, TN Attorney General and Reporter
MICHAEL E. MOORE
Solicitor General
KIM R. HELPER
Assistant Attorney General
Nashville, TN
MICHAEL L. FLYNN
District Attorney General
PHILIP H. MORTON
Asst. District Attorney General
Maryville, TN
OPINION
AFFIRMED BIRCH, J.
I
We accepted review of this case in order to determine
whether an agreement not to prosecute made between Danny Spradlin,
the appellant, and two officers1 is enforceable without the
district attorney general’s2 knowledge or approval. We conclude
that a district attorney general has the sole duty, authority, and
discretion to prosecute criminal matters in the State of
Tennessee.3 Police officers are, therefore, without authority to
bind the district attorney general to an agreement not to
prosecute. In this case, because the district attorney general
neither authorized nor ratified the agreement between Spradlin and
the officers, the agreement is unenforceable, and the judgment of
the Court of Criminal Appeals is affirmed.
II
In a Blount County bar on October 1, 1992, Spradlin sold
marijuana to a person who was, unbeknownst to him, working as a
confidential informant for the Blount County Sheriff’s Office. The
1
The term “officer” is meant to include police officers and
other law enforcement personnel. For example, detectives,
sheriffs, deputy sheriffs, any agent of the police department, and
any agent of the sheriff’s department would be classified
generically as an “officer” for purposes of their future compliance
with this opinion.
2
The term “district attorney general” is meant to include not
only the one elected official designated as such in each Tennessee
county, but also “assistant district attorneys general” who are
lawyers employed as agents of the district attorney general.
3
The district attorney general’s power to prosecute is
separate from the grand jury’s power to indict, in that “the grand
jury is not an agency of the district attorney general . . . .”
Parton v. State, 2 Tenn. Crim. App. 626, 455 S.W.2d 645 (1970); see
also Tenn. R. Crim. P. 6. The grand jury may indict an accused for
any “indictable or presentable offense[] found to have been
committed or to be triable within the county.” Tenn. R. Crim. P.
6(d). Additionally, the grand jury may indict an accused after an
investigation conducted on its own initiative. See id.
2
confidential informant did not purchase marijuana directly from
Spradlin; an intermediary arranged the transaction.
On three other occasions (November 20, 1992; November 24,
1992; and December 2, 1992), the informant bought marijuana
directly from Spradlin. On December 18, 1992, Spradlin was
arrested and charged with distributing less than one-half ounce of
marijuana4 in connection with the October 1, 1992, transaction. No
other charges were lodged against Spradlin at that time.
Spradlin retained an attorney who spoke with the two
officers in charge of the investigation. The officers told the
attorney about the three drug sales upon which prosecution had not
yet been initiated. Without obtaining any authorization from the
district attorney general, the officers told Spradlin’s attorney
that if Spradlin would work as a confidential informant for the
sheriff’s department, he would not be prosecuted on the three as
yet uncharged drug sales. Spradlin pleaded guilty to the single
misdemeanor charge5 on January 4, 1993. No agreement concerning
the three uncharged drug sales was presented to the court with this
guilty plea.
After he pleaded guilty to the misdemeanor, Spradlin
proceeded to act as a confidential informant for the sheriff’s
department. Spradlin made three drug purchases pursuant to the
agreement before his identity was compromised, thereby ending the
confidential operation. On August 9, 1993, Spradlin was indicted
on the three previously uncharged drug sales.
4
Tenn. Code Ann. § 39-17-418(b) (1990).
5
Spradlin does not suggest that his guilty plea of January 4,
1993, was induced or obtained in reliance on the officers’ promise
not to prosecute him for the three as yet uncharged drug sales.
The record indicates that Spradlin pleaded guilty to the
misdemeanor drug distribution charge in exchange for a sentence of
unsupervised probation.
3
At the motion to dismiss hearing preceding his trial,
Spradlin was asked if he personally ever had any discussion with
anyone in the district attorney general’s office concerning the
immunity/nonprosecution agreement with the officers. In response
to this question, Spradlin stated: “I had an agreement through my
attorney which was through Blount Metro. I thought that was
enough.” Indeed, Spradlin’s attorney testified that he never
talked to the district attorney general or anyone in the district
attorney general’s office regarding an agreement between Spradlin
and the officers. Additionally, at a jury-out hearing, an officer6
testified that when Spradlin pleaded guilty to the misdemeanor
charge in January 1993 no mention of the immunity/nonprosecution
agreement was made to the district attorney general or to any
assistant district attorney general.
Following a jury trial, Spradlin was convicted of two
counts of felonious possession of marijuana with intent to sell7
and one count of misdemeanor possession of less than one-half ounce
of marijuana.8 The trial court imposed one-year sentences for each
of the felony convictions and an eleven-month twenty-nine day
sentence for the misdemeanor. The sentences ran concurrently and
were suspended, except for the first sixty days to be served in
custody. Additionally, Spradlin was placed on supervised probation
for twenty-two months. At the hearing accompanying Spradlin’s
motion for a new trial, the trial judge stated:
[r]ightly or wrongly, I decided that
I hadn’t heard evidence that
established in my mind [that] there
was an agreement by the State not to
prosecute these three cases and that
6
The officer who testified during the jury out hearing was one
of the officers with whom Spradlin had entered into the
immunity/nonprosecution agreement.
7
Tenn. Code Ann. § 39-17-417 (1992).
8
Tenn. Code Ann. § 39-17-418(b) (1990).
4
[the power to authorize immunity or
nonprosecution agreements] was the
sphere of influence or the authority
of the [district] [a]ttorney
[g]eneral . . . not law enforcement.
(emphasis added). On direct appeal, the Court of Criminal Appeals
affirmed these convictions and sentences. We accepted review of
this case to decide whether an agreement of immunity from
prosecution, entered into between officers and a defendant, is
enforceable.
III
When initially presented with the question of whether
immunity agreements between officers and a defendant are
enforceable, this Court has previously held that a defendant who
“‘testifies or agrees to testify on behalf of the prosecution . . .
with the understanding or promise, express or implied, that he [or
she] will . . . not be prosecuted for his [or her] offense’” is not
entitled to “‘immunity as a matter of right; and such facts may not
be pleaded in bar of a prosecution.’” Bruno v. State, 192 Tenn.
244, 249-50, 240 S.W.2d 528, 530 (1951) (citation omitted). In
Bruno, a detective told Bruno that he would not be prosecuted for
his role in stealing some lead if he would reveal the location of
the stolen lead. Bruno, 240 S.W.2d at 529. Bruno then disclosed
the location of the contraband. Id. Despite having kept his part
of their agreement, Bruno was later prosecuted for his role in the
theft. Id. at 530. On appeal to this Court, Bruno’s conviction
was upheld. Id. at 531.
Although in Bruno we refused to enforce the agreement
between the officer and the defendant, the opinion suggested that
there may one day be circumstances under which an agreement not to
prosecute made between a defendant and a district attorney general
5
could be honored. See id. Indeed, the Court stated: “[n]ormally
where such a promise is made in good faith and the party . . .
cooperates and gives the State the necessary assistance[,] the
district attorney general may with the consent of the trial court9
take care of the matter . . . .” Id.
A subsequent decision of this Court held that plea
agreements and immunity agreements between prosecutors10 and
defendants were enforceable as contracts. State v. Howington, 907
S.W.2d 403, 408 (Tenn. 1995). In so holding, Howington expressly
overruled Bruno “to the extent that it c[ould] be read as
precluding judicial enforcement of immunity agreements under all
circumstances.” Id. at 406 n.5. Howington expressly declined to
rule on the question of “whether agreements entered into by a
police officer and a defendant are enforceable . . . until the
question is again squarely presented.” Id. at 408 n.10 (emphasis
added). The validity of such agreements between officers and
defendants is now squarely presented for our consideration.
IV
We begin with the well-settled law and custom that a
district attorney general has the sole duty, authority, and
discretion to prosecute criminal matters. Ramsey v. Town of Oliver
Springs, 998 S.W.2d 207, 209-10 (Tenn. 1999); see Tenn. Const. art.
VI, § 5; Tenn. Code Ann. § 8-7-103 (1993). Though the prosecutor’s
authority to prosecute is not absolute, “‘[s]o long as the
prosecutor has probable cause to believe that the accused committed
an offense, the decision whether to prosecute, and what charge to
9
Obviously, the consent of the trial court is unnecessary
until after the district attorney general has chosen to initiate
prosecution of the offense.
10
We use the term “prosecutor” interchangeably with the term
“district attorney general.”
6
bring . . . generally rests entirely within the discretion of the
prosecution. . . .’” Ramsey, 998 S.W.2d 210 (emphasis in original)
(quoting State v. Superior Oil, Inc., 875 S.W.2d 658, 660 (Tenn.
1994)).
V
Though this Court has not considered the validity of an
immunity or nonprosecution agreement between an officer and a
defendant since deferring that analysis in Howington, other
jurisdictions have considered the issue. The clear rule is that
police officers do not possess the authority to bind prosecutors to
unauthorized immunity or nonprosecution agreements made between
police officers and defendants. Tabor v. State, 333 Ark. 429, 971
S.W.2d 227 (1998); State v. Russell, 671 A.2d 1222 (R.I. 1996);
Commonwealth v. Stipetich, 539 Pa. 428, 652 A.2d 1294 (1995); State
v. Sharpless, 189 W. Va. 169, 429 S.E.2d 56 (1993); People v.
Gallego, 430 Mich. 443, 424 N.W.2d 470 (1988); State v. Seneca, 726
So. 2d 748 (Ala. Crim. App. 1998); State v. Reed, 75 Wash. App.
742, 879 P.2d 1000 (1994); Green v. State, 857 P.2d 1197 (Alaska
Ct. App. 1993); Winkles v. State, 40 Md. App. 616, 392 A.2d 1173
(1978); State v. Hargis, 328 So. 2d 479 (Fla. Dist. Ct. App.
1976); see also Jay M. Zitter, Annotation, Enforceability of
Agreement by Law Enforcement Officials Not to Prosecute if Accused
Would Help in Criminal Investigation or Would Become Witness
Against Others, 32 A.L.R. 4th 990 (1984); 21 Am. Jur. 2d Criminal
Law § 290 (1998); David J. Lekich, Broken Police Promises:
Balancing the Due Process Clause Against the State’s Right to
Prosecute, 75 N.C. L. Rev. 2346 (1997).
Consistent with the weight of authority, we hold today
that the enforceability of an immunity or nonprosecution agreement
7
entered into between an officer and an alleged defendant is subject
to the discretion of the district attorney general.
Our decision finds strong support in public policy
considerations. As one court aptly explained:
[B]y enforcing the unauthorized
promise made to [a] defendant, this
Court would undermine the
accountability built into the
prosecutorial function. Unlike a
[p]olice officer, the [prosecutor]
is an elected official and thus
accountable to the county’s
electorate for [his or her] actions.
Since the police possess neither the
authority to withhold prosecution
nor to grant immunity, no formal
system exists by which to check the
potentially unbridled discretion the
police would possess if allowed to
make binding promises precluding
prosecution. The potential for
abuse seems obvious.
Gallego, 424 N.W.2d at 473. Additionally, this Court is concerned
that enforcement of unauthorized promises between officers and
defendants would raise serious questions about the officers’ power
to manipulate the criminal justice system. See id. at 474. For
example, if officers were allowed to make unauthorized, yet
binding, promises that preclude prosecution of a defendant, might
they then decide that they had the authority to make binding plea
bargains or sentencing offers as well? See id. We cannot condone
officers entering into binding immunity or nonprosecution
agreements with defendants; to do so would implicitly approve an
ad-hoc system of criminal justice administered by non-elected,
albeit sworn, public officials. See id.
A related consideration is the potential for endless
litigation and confusion that unauthorized agreements between
officers and defendants would create. As one court noted, “[t]he
content of verbal agreements . . . will provide a prolific source
8
of litigation. The recollection of the parties will be imperfect.
Misconstruction is easy. A careless word, a misconstrued
statement, or a distorted expression will erupt into litigation.”
Hargis, 328 So. 2d at 481.
VI
The Tennessee Rules of Appellate Procedure provide that
“review of findings of fact by the trial court in civil actions
shall be de novo upon the record of the trial court, accompanied by
a presumption of the correctness of the finding, unless the
preponderance of the evidence is otherwise.” Tenn. R. App. P.
13(d). Though the instant case is a criminal case, this Court has
recently held the standard espoused by Tenn. R. App. P. 13(d)
applicable to a trial court’s findings of fact in a suppression
hearing in a criminal case. State v. Odom, 928 S.W.2d 18 (Tenn.
1996). In the case at bar, the trial judge made findings of fact
based on testimony offered at both Spradlin’s motion to dismiss
hearing and a jury-out examination conducted during trial. As
would a trial judge in a suppression hearing, the trial judge in
this case evaluated the credibility of witnesses, the weight and
value of evidence, and resolved conflicts of evidence. See id.
Thus, analogously, we will apply the Tenn. R. App. P. 13(d)
standard of review in our analysis of the issues pertinent to this
case.11
VII
11
We note that this standard of review is especially applicable
in the case at bar, because the jury heard no testimony on the
issue of whether the district attorney general authorized the
agreement between Spradlin and the officers. The trial judge,
however, heard testimony on this issue during the hearing
accompanying Spradlin’s motion to dismiss and during the jury-out
examination of one of the officers. Thus, in this case, it would
be inaccurate to apply a standard of review based on the jury’s
findings.
9
In the instant case, the record amply supports the
conclusion that there was an agreement between Spradlin and the
officers. It also appears from the record that Spradlin attempted
to perform his part of the agreement. However, we need make no
further inquiry into this factual issue. Instead, we focus on
whether the record indicates that the district attorney general
authorized the agreement.
Our review of the pertinent facts shows that Spradlin
never discussed his immunity/nonprosecution agreement with anyone
in the district attorney general’s office. Indeed, Spradlin never
said that he had. In fact, he admitted that his reliance on the
immunity/nonprosecution agreement was premised on his belief that
he had an “agreement through [his] attorney which was through
Blount Metro.”
Additionally, following the hearing on the motion for a
new trial, the trial court made a factual finding that the State
(acting through the district attorney general’s office) never
authorized the immunity/nonprosecution agreement with Spradlin.
The evidence in the record does not preponderate against this
finding. On appeal, this Court will not disturb a factual finding
of the trial court unless the record indicates that the evidence
preponderates against such a finding. See Tenn. R. App. P. 13(d).
As such, this Court will not disturb the trial court’s finding that
the district attorney general did not authorize the agreement
between Spradlin and the officers.
Without authorization from the district attorney general,
the officers had no authority to enter into an immunity or
nonprosecution agreement with Spradlin. Though the record
indicates that Spradlin acted in good faith and relied on his
10
agreement with the officers, enforcement of the agreement is not a
remedy available to him.
VIII
For the foregoing reasons, the judgment of the Court of
Criminal Appeals is affirmed. The costs of this appeal are taxed
to Spradlin.
______________________________
ADOLPHO A. BIRCH, JR., Justice
CONCUR:
Anderson, C.J
Drowota, Holder, Barker, JJ.
11