IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
STATE OF TENNESSEE ) FOR PUBLICATION
)
Appellee ) FILED: OCTOBER 9, 1995
)
vs. ) No. 01-S-01-9407-CC-00073
)
DAVID EDWARD HOWINGTON ) John H. Gasaway, Judge
)
Appellant ) Montgomery County
For Appellee: For Appellant:
Charles W. Burson Gregory D. Smith
Attorney General & Reporter One Public Square, Suite 321
Clarksville, TN 37040
Kimbra R. Spann
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0485
O P I N I O N
REVERSED; SENTENCE VACATED; REMANDED Birch, J.
The district attorney general refused to honor an informal
immunity agreement1 made with David Edward Howington, the defendant.
The reason stated for this refusal was the prosecutor's perception
that Howington had not fulfilled his part of the bargain; that is,
he had not testified truthfully at his preliminary hearing. He was
subsequently tried and convicted of first-degree (felony) murder; he
received a life sentence.
The Court of Criminal Appeals affirmed the conviction; we
granted Howington's application for review under Rule 11. At issue
is whether the agreement between Howington and the district attorney
general is enforceable and, if so, to what extent and with what
result.
For the reasons discussed below, we hold that informal
agreements between a prosecutor and a defendant are judicially
1
In the case under submission, the agreement cannot be
described as including a promise of "immunity" in the purest sense.
The district attorney general promised merely to recommend to the
magistrate who conducted the preliminary hearing that Howington be
bound to the grand jury on second-degree murder instead of first-
degree murder as the warrant charged. Perhaps the agreement is more
accurately described as a cooperation-immunity agreement, or as a
charge-bargain agreement. Thus, we use the three terms generically
and interchangeably.
2
enforceable. In so holding, we expressly overrule Bruno v. State,
240 S.W.2d 528 (Tenn. 1951), to the extent that it can be read as
precluding judicial enforcement of immunity agreements under all
circumstances. Accordingly, we reverse the conviction for first-
degree murder.
I
As for the salient facts, including those which by motion
the defendant requests that we consider, the record indicates that
Tony DeVito2 and the defendant had information that Michael
Trobaugh, the victim, had recently received a large sum of money and
desired to purchase a quantity of marijuana. DeVito, a supplier of
marijuana, and the defendant planned to fill the victim's marijuana
order and to rob him of his money at the same time. In their
discussion, DeVito suggested that they "leave no witnesses."
Several hours later, the victim led the defendant and
DeVito to his trailer and invited them in. Once inside, the victim
produced a large sum of cash that he intended, apparently, as
2
DeVito was subsequently convicted of first-degree (felony)
murder upon evidence which included Howington's preliminary hearing
testimony.
3
payment for the marijuana. As the parties were so situated, and at
a time when the defendant was seated next to the victim in the
living room, DeVito stood behind the victim and shot him in the
head. DeVito and Howington, grabbing the cash and the victim's
wallet, fled. Unaware, apparently, that Howington had already taken
a substantial amount of the victim's money, DeVito gave him $500 of
the contraband and admonished him to "keep [your] mouth shut."
Trobaugh died from the wound inflicted.
The perpetrators then went to DeVito's house where they
burned blood-stained items of their clothing, washed the blood from
the money, and cleaned the firearm.
Before the preliminary hearing, the district attorney
general and the defendant, through counsel, entered into an
unwritten agreement. In exchange for Howington's truthful testimony
at his preliminary hearing, the district attorney general agreed to
recommend that he be bound to the grand jury on second-degree murder
instead of the original charge of first-degree murder.
Additionally, the district attorney general agreed to recommend the
defendant's release on an appearance bond in the amount of $50,000.3
Apparently, the State needed Howington's testimony to bolster its
case against DeVito. At his preliminary hearing, the defendant
3
We deem it unnecessary to address this part of the agreement.
4
testified; he fully incriminated DeVito--he fully incriminated
himself.
In his testimony, the defendant stated that he had
received only the $500 DeVito had given him. However, other
evidence adduced during the preliminary hearing suggested that the
defendant had ended up with approximately $4,500 of the victim's
money. Although the district attorney general accepted as true
Howington's testimony in every other particular, he concluded that
Howington had lied about the amount of the victim's money he had
received. Acting on this conclusion, the district attorney general
considered the State no longer bound by the agreement, and he so
informed the defendant. Neither of the agreed recommendations was
made, and the magistrate bound Howington to the grand jury on the
charge of first-degree murder. Subsequently, the grand jury
indicted Howington on first-degree murder--both felony and
premeditated.
In a pretrial motion, Howington sought to prevent his
preliminary hearing testimony from being admitted into evidence at
his trial on the ground that it had been "impermissibly compelled"
and was, therefore, not "voluntary."
Following a hearing, the trial court characterized the
incriminating portion of the testimony as a "confession." The trial
5
court ruled that it had been voluntarily obtained and was,
therefore, admissible. The trial court found also that Howington
had not fulfilled a "condition precedent" of the agreement--that he
testify truthfully. As a result of this ruling, Howington's
preliminary hearing testimony was admitted as a part of the State's
case-in-chief during Howington's jury trial for first-degree murder.
As stated, the jury convicted Howington of first-degree (felony)
murder.
On appeal to the intermediate court, Howington insisted
that the trial court erred in permitting the State to introduce, in
its case-in-chief,4 his preliminary hearing testimony on the ground
that the State had obtained it by promise of reward. The
intermediate court considered Howington's insistence and concluded
that the trial court erred in allowing his preliminary hearing
testimony to be admitted in the trial because "the behavior of the
state's law enforcement officials was such as to overbear
petitioner's [Howington's] will to resist and bring about
confessions not freely self-determined." Nevertheless, in light of
the other evidence, the court found the error harmless beyond a
reasonable doubt.
4
Howington conceded the State's right to use this testimony for
impeachment purposes should he testify.
6
Before this Court, Howington advances three contentions:
First, he invites us to overrule Bruno and, by so doing, to
authorize the judicial enforcement of agreements such as the one
here pertinent. Second, he contends that the perceived untruthful
testimony was not a sufficient reason for the State's refusal to
honor the agreement. Third, he insists that were we to reject his
first two contentions, we should find that the admission of his
testimony was reversible error.
The State, on the other hand, argues that sound policy
reasons support Bruno, and it should not be overruled.
Additionally, the State contends that Howington breached the
agreement in a material way and is not entitled, therefore, to
relief. Moreover, the State insists that admission of the testimony
was proper because it had been voluntarily given.
For the reasons herein discussed, we hold that agreements
between defendants and prosecutors are enforceable in much the same
way as other contracts. This holding requires that we overrule
Bruno.5 We do that now. Further, we find that Howington reasonably
fulfilled his part of the agreement with the predictable result that
DeVito's conviction, as Howington's, was aided, if not procured,
through the State's use of Howington's testimony.
5
240 S.W.2d 528 (Tenn. 1951). As we stated above, Bruno is
expressly overruled to the extent that it can be read as precluding
judicial enforcement of immunity agreements under all circumstances.
7
II
As stated above, the issue we now address is whether the
agreement is enforceable. Because our analysis of this issue
provides relief for Howington, we need not reach the issue of the
admissibility of his preliminary hearing testimony.
The traditional rule in Tennessee is that informal
immunity agreements are not enforceable. See Bruno v. State, 240
S.W.2d 528 (Tenn. 1951); State v. Johnson, 781 S.W.2d 873 (Tenn.
Crim. App. 1989). In Bruno, which involved an informal immunity
agreement between the defendant and a police officer, the Court
reasoned:
"In the absence of a statute
providing for immunity, the fact that
a participant or accomplice in the
commission of a crime testifies or
agrees to testify on behalf of the
prosecution, fully and fairly
disclosing the guilt of himself and
his associates, with the under-
standing or promise, express or
implied, that he will be granted a
pardon or will not be prosecuted for
his offense does not entitle him to a
pardon or immunity as a matter of
right; and such facts may not be
pleaded in bar of a prosecution." We
have no such statute in this State
granting immunity to an accomplice
who gives the State aid in the
prosecution or apprehension of his
co-workers in crime.
8
240 S.W.2d at 530 (citation omitted). However, the Court implied
that had the district attorney general made a promise that was
within his or the court's authority, the agreement would have been
enforceable. The Court stated:
Normally, where such a promise is
made in good faith and the party who
then cooperates and gives the State
the necessary assistance the district
attorney general may with the consent
of the trial court take care of the
matter, but when it has not been done
in this way the only thing that we
know that can be done is that the
Chief Executive must be convinced
that this is a case for the lending
of his pardoning power.
Id. at 531. Thus, while concluding that informal immunity
agreements6 are not enforceable, the Court alluded to circumstances
under which they would be.
Although the facts in Bruno involve a pure immunity
agreement between an accused and a police officer, the Court of
Criminal Appeals found that the reasoning therein also supported the
rule as applied to an agreement with a district attorney general.
State v. Johnson, 781 S.W.2d 873 (Tenn. Crim. App. 1989). In
Johnson, the district attorney general signed an immunity agreement
with the defendant providing, among other things, for immunity from
6
We use the phrase "informal immunity agreement" generically to
include all agreements between the State and an accused regarding
charge, plea, or sentence.
9
state homicide charges in return for truthful cooperation. The
court held that under Bruno "an 'immunity agreement' of this nature
is of no legal effect." Id. at 879.7
Thus, traditionally, immunity agreements of the sort here
considered have generally been unenforceable in Tennessee. In
recent years, however, both state and federal prosecutors have
resorted to the use of cooperation-immunity agreements in ever-
increasing numbers. In this respect, these agreements, as do plea
agreements, have a significant role in the prosecution of those
accused of crime. By resorting to such agreements, prosecutors are
often able to use agreements with "minor actors" to move against
"major actors." Without this tool, prosecutors would often be
unable to prosecute some of the worst and most dangerous offenders.
Plea agreements, unlike immunity agreements, have been
treated as contracts and are enforceable once the condition
precedent is met; that is, the trial judge accepts the agreement.
State v. Street, 768 S.W.2d 703 (Tenn. Crim. App. 1988); Metheny v.
7
We note, however, as the Court of Criminal Appeals did, that
the Johnson court did find that "a defendant's constitutional rights
would be violated if the promise of immunity is used in an improper
way so as to extract a statement from him which implicates him in
the crime." 781 S.W.2d at 880. This concern for the protection of
constitutional rights resulted in the rule that if the defendant's
statements were coerced by the promise of leniency, the statements
and evidence obtained by way of the statements cannot be used by the
State in its case-in-chief. We note that in Johnson, the trial
court determined, after a hearing, that Johnson had breached the
agreement by being untruthful.
10
State, 589 S.W.2d 943 (Tenn. Crim. App. 1979). This is consistent
with basic contract principles that an agreement does not become
binding until the condition precedent has been met. See Covington
v. Robinson, 723 S.W.2d 643 (Tenn. Ct. App. 1986); Strickland v.
City of Lawrenceburg, 611 S.W.2d 832 (Tenn. Ct. App. 1980).8
We find no substantive difference between a plea agreement
and the charge agreement we have here. Both agreements enhance the
State's efforts to prosecute crime. Both types of agreements may
require a defendant to give up important rights, such as the right
to trial by jury or the right against self-incrimination. Here,
Howington surrendered the constitutional right against compelled
self-incrimination. At the preliminary hearing stage, no
discernable urgency existed for Howington to testify. The
magistrate could have, and more likely would have, bound him over on
the original charge anyway; that is, without his testimony.
Obviously, the big winner was the prosecution, for it received much
of the evidence necessary to convict both Howington and DeVito,
irrespective of the truth or falsity of Howington's testimony as it
regards the amount of money he received.
8
It should be noted that even though the plea agreement is not
enforceable until it has been accepted by the trial judge, the trial
judge must allow the defendant to withdraw his guilty plea in the
event that it is not accepted. Tenn. R. Crim. P. 11(e)(4). This
prevents the defendant from being unfairly prejudiced.
11
We note with approval that a number of other jurisdictions
recognize immunity agreements as contractual in nature and
enforceable under the principles of contracts. United States v.
Fitch, 964 F.2d 571 (6th Cir. 1992) ("To secure a defendant's
cooperation in a criminal investigation, the government may
informally grant him immunity in exchange for his testimony. An
agreement not to prosecute is contractual in nature, and subject to
contract law standards.") (citations omitted); see also United
States v. Pelletier, 898 F.2d 297 (2d Cir. 1990); United States v.
Packwood, 848 F.2d 1009 (9th Cir. 1988); United States v. Brown, 801
F.2d 352 (8th Cir. 1986); United States v. Reardon, 787 F.2d 512
(10th Cir. 1986); United States v. Irvine, 756 F.2d 708 (9th Cir.
1985); Closson v. State, 812 P.2d 966 (Alaska 1991); State v.
Myrhow, 865 P.2d 231 (Mont. 1993); 22 C.J.S. Criminal Law § 85
(1989) ("Grants of immunity pursuant to statute are not the only
method of acquiring immunity, but courts also recognize informal
agreements whereby promises of immunity are made in exchange for
cooperation. . . . A cooperation-immunity agreement is in the nature
of a contract and subject to contract law standards").
The State argues that Bruno should not be overruled
because "the content of verbal agreements 'will provide a prolific
source of litigation.'" We observe that this predicted problem, if
it ever materializes, is easily solved by reducing such agreements
to writing. Additionally, we are not persuaded that this is a
12
sufficient reason9 to allow the State to break its bond of public
trust, a subject upon which the Indiana Supreme Court has so
eloquently articulated:
We recognize that the public may
benefit substantially from a
prosecutor's decision to withhold
prosecution of one individual in
exchange for information leading to
the arrest and conviction of a person
deemed more dangerous to the public
welfare. The availability and
usefulness of this strategy could be
substantially neutralized if the
prosecutor's promise is perceived to
be unreliable. Substantial harm
could result from a decision which
removes this weapon from the
prosecutor's arsenal.
Furthermore, the promise of a state
official in his public capacity is a
pledge of the public faith and is not
to be lightly disregarded. The
public justifiably expects the State,
above all others, to keep its bond.
. . . "It is important for all
segments of our society to believe
that our court systems dispense
justice. This includes the criminals
themselves as well as the law abiding
citizens, and especially those
criminals who have cooperated fully
in police investigations."
Bowers v. State, 500 N.E.2d 203, 204 (Ind. 1986)(quoting Dube v.
State, 275 N.E.2d 7, 11 (Ind. 1971))(citations omitted) (emphasis
added). We embrace these principles.
9
While the State asserted in its brief that "[t]here are
numerous dangers in allowing courts to engage in the enforcement of
immunity agreements," it did not enumerate any additional "dangers"
to the threat of "prolific. . .litigation."
13
For the above reasons, we hold that an agreement between
a prosecutor and a defendant is contractual in nature and is
enforceable under the law of contracts. Accordingly, Bruno v.
State, 240 S.W.2d 528 (Tenn. 1951), and its progeny are overruled.10
III
We now consider whether Howington met his obligation under
the agreement. For the State to prevail on this issue, it must
prove that Howington failed to deliver on his part of the deal. But
what are the evidentiary burdens in this regard?
This issue has been considered by the Texas courts. In
its analysis of the defense of immunity the Texas Court of Criminal
Appeals stated:
[W]e do not agree . . . that immunity
is a defense under the Code of
Criminal Procedure. We do agree that
it is analogous to one. The initial
burden is on the defendant to show
the existence of the evidence.
Turney v. State, 51 S.W. 243 (Tex.
Crim. App. 1899). In this respect it
differs from ordinary defenses where
the defendant is only required to
raise his defense by producing some
evidence. However, once the initial
burden is met and the existence of an
10
As to the specific issue addressed in Bruno--whether
agreements entered into by a police officer and a defendant are
enforceable--we reserve decision until the question is again
squarely presented.
14
immunity agreement is shown by a
preponderance of the evidence, we
hold that; procedurally, immunity
should be treated just like a defense
under the Code. Thus, the burden
then shifts to the State to show
beyond a reasonable doubt why the
agreement is invalid or why
prosecution should be allowed despite
the agreement.
Zani v. State, 701 S.W.2d 249, 254 (Tex. Crim. App. 1985). In the
Zani case, the prosecution argued that the defendant was not
entitled to enforce the immunity agreement because she violated the
term of the agreement which provided that "she did not directly
cause the death of" the victim. Id. at 251. In arriving at its
holding, the court observed that
[t]o place upon the State any lesser
burden creates a rather anomalous
situation. For example, in the
instant case, if the State was only
held to a preponderance standard to
prove the violation of the immunity
agreement, it is quite possible that
the State could produce sufficient
evidence to void the agreement and
thus prosecute, but insufficient to
obtain a conviction. The State could
prove by a preponderance of the
evidence that appellant "directly"
caused the death of Dess, but could
not prove this beyond a reasonable
doubt. However, they could easily
prove she was a party to the offense.
In such a case the State could
invalidate the immunity agreement at
the pre-trial hearing making it void
and non-binding and then obtain a
conviction for being a party to
murder, an offense for which immunity
was originally granted.
15
Id. at 254 n.3.
We agree with the reasoning of the Texas court and adopt
the burden of proof standard set forth in its opinion. Thus, in
order for the State to prevail in this case, it must prove beyond a
reasonable doubt that Howington failed to deliver on his part of the
deal. The State contends first that it is excused from performance
because Howington failed to satisfy a condition precedent to its
performance; that is, he failed to testify truthfully. See
Restatement (Second) of Contracts § 225 (1981) ("Performance of a
duty subject to a condition cannot become due unless the condition
occurs or its non-occurrence is excused.").
We begin with the agreement itself. The basic agreement
appears to be that the State agreed to recommend to the magistrate
that Howington's case be bound over to the grand jury on second-
degree murder and that his bond be reduced to $50,000, all in return
for Howington's truthful testimony. The State insists that its duty
to perform was conditioned upon Howington's truthful testimony.
Howington and his attorney insist that no language of condition was
used when the agreement was made. They support this insistence by
pointing out that were the agreement conditional, they would not
have so readily agreed, as it required Howington to waive his right
against self-incrimination.
16
The following principles guide our decision: First, in
contract law there is a general preference against finding a term to
be a condition precedent. Specifically, the Restatement says,
In resolving doubts as to whether an
event is made a condition of an
obligor's duty, and as to the nature
of such an event, an interpretation
is preferred that will reduce the
obligee's risk of forfeiture, unless
the event is within the obligee's
control or the circumstances indicate
that he has assumed the risk.
Restatement (Second) of Contracts § 227. In this case, the
circumstances11 do not indicate that Howington assumed the risk.
Also, while the State contends that the condition was Howington's
truthful testimony, which Howington controlled, we find that the
actual condition it urges is its own subjective assessment of
Howington's testimony. This condition is not controlled by
Howington. Thus, we find there was no condition precedent in the
agreement between the State and Howington.12 Or rather, the
condition was simply that Howington testify against DeVito, which he
did.
11
We do not find it convincing that Howington would have so
readily waived his right against self-incrimination while facing a
first-degree murder charge if he had not believed that the State was
bound under the agreement from the outset.
12
By analogy, we observe that in a plea-agreement situation, the
only condition precedent is the court's acceptance of the agreement.
Once that takes place, the State's performance is due.
17
Second, this agreement is different from the average
commercial contract as it involves a criminal prosecution where due
process rights must be fiercely protected. Thus, we hold that
ambiguities in the agreement must be construed against the State.
See United States v. Pelletier, 898 F.2d 297, 302 (2d Cir. 1990).
It results that the State must be held to a high evidentiary
standard as it attempts to avoid an agreement made with an accused
where the accused has already acted in reliance on the agreement.
We find that the State has not carried its burden to show that the
agreement was understood by all parties to be conditional upon the
State's subjective determination that the defendant's testimony was
"truthful."
Next the State argues that it is relieved from its duty to
perform because Howington committed a material breach. The
conditions which will constitute a breach of the immunity agreement
are governed by the agreement. United States v. Fitch, 964 F.2d
571, 574 (6th Cir. 1992) (citing United States v. Packwood, 848 F.2d
1009, 1012 (9th Cir. 1988)).
Under the agreement, Howington's failure to testify
truthfully could constitute a breach. In this instance, the State
maintains that Howington lied regarding the amount of money he
received from the robbery.
18
Despite the State's contention, the record suggests that
Howington kept the bargain. The critical exchange follows:
Q (by State): Let me ask what else
took place between you and him at his
house immediately prior to the phone
call to Kathy?
A: Well, before we called her, I
took my coat off. He [DeVito] said,
"Take your coat off because there is
blood on it here." He said, "Let's
burn it", [sic] you know, he took his
boots off and burned it. He took
Mike's wallet out and just started
burning everything.
Q: Were you ever given any of the
money?
A: Yes, I was. He gave me five
hundred dollars to keep my mouth
shut.
Pressing further, the State urges that the testimony of
Kathy Dalton to the effect that when Howington arrived at her house
he had $4,500 in blood-splattered money. However, closer
examination of Dalton's testimony reveals that she never attempted
to suggest how the defendant had come into possession of more than
the $500 received from DeVito. So, if we are correct that
Howington, unbeknownst to DeVito, grabbed a sum of money at the
scene of the crime, then the above-quoted response to the question
(also above-quoted) could very well be true, even if not complete.
While this may be a fine distinction, it is a valid one because the
State should not expect an accused to make a more complete response
than necessary to answer the question truthfully.
19
In light of the above, it remains questionable whether
Howington lied after all. However, we need not make a specific
finding in this regard because of our conclusion that any
untruthfulness in his testimony was immaterial. In determining
whether a failure to render or to offer performance is material, the
following circumstances are significant:
(a) the extent to which the injured
party will be deprived of the benefit
which he reasonably expected;
(b) the extent to which the injured
party can be adequately compensated
for the part of that benefit of which
he will be deprived;
(c) the extent to which the party
failing to perform or to offer to
perform will suffer forfeiture;
(d) the likelihood that the party
failing to perform or to offer to
perform will cure his failure, taking
account of all the circumstances
including any reasonable assurances;
(e) the extent to which the behavior
of the party failing to perform or to
offer to perform comports with
standards of good faith and fair
dealing.
Restatement (Second) of Contracts § 241. Additionally, we find that
in the area of informal immunity agreements where a criminal
defendant is necessarily involved, "the most important consideration
is the incriminating nature of the proferred [sic] statements, not
the amount of information provided to the government." Fitch, 964
20
F.2d at 574 (citing United States v. Johnson, 861 F.2d 510, 513 n.3
(8th Cir. 1988)).
In this case, the State enjoyed the benefit which it
reasonably expected; that is, eyewitness testimony against DeVito.
Also, while the agreement provided no remedy for a breach,13 revoking
the agreement certainly does nothing to compensate the State for any
alleged injury, and it is decidedly unfair to do this after
Howington relied on the agreement. Moreover, Howington produced
exceptionally incriminating evidence, not only against DeVito, but
also against himself. Finally, in light of Howington's complete
cooperation, his answer regarding the amount of money he was given
hardly indicates a lack of good faith and fair dealing on his part.
Thus, we conclude that any breach which occurred under the facts was
not material considering the circumstances.
IV
For all these reasons, we hold that the State was
obligated to perform under the agreement it entered into with
Howington. It remains to decide what the result of the State's
refusal should be. First, it would be useless to go back to the
preliminary hearing because the State agreed only to recommend to
13
A charge of perjury may be a consideration under these
circumstances.
21
the magistrate that Howington be bound over on second-degree murder.
The magistrate would have had no obligation to accept the
recommendation. Moreover, even if the magistrate were to have
accepted the recommendation and bound Howington to the grand jury on
the lesser charge, the grand jury was free to indict upon whatever
charge it found applicable. Nevertheless, Howington was deprived of
the chance that the grand jury might have accepted the magistrate's
recommendation (if made) and indicted upon the lesser charge.
Howington gave up a lot for that chance; he received nothing in
return. Fundamental principles of justice and fair play would
require that the parties to the unconsummated bargain be restored to
their former positions. Obviously, this is not a possibility.
Failing that, the only just remedy would be to position the
defendant as though all variables had worked to his advantage. "The
Supreme Court . . . shall grant the relief on the law and facts to
which the party is entitled or the proceeding otherwise requires and
may grant any relief, including the giving of any judgment and
making of any order. . . ." Tenn. R. App. P. 36(a)(1995).
Accordingly, we reverse the conviction for first-degree
murder and enter judgment convicting the defendant of second-degree
murder. We vacate the sentence and remand the cause for
resentencing on second-degree murder.
22
______________________________
ADOLPHO A. BIRCH, JR., Justice
CONCUR:
Anderson, C.J.
Drowota, Reid, White, JJ.
23