State v. Rivera

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-04-0170-PR
Appellee, )
) Court of Appeals
) Division One
v. ) No. 1 CA-CR 02-0211
)
) Maricopa County
MICHAEL ANTHONY RIVERA, ) Superior Court
) No. CR 98-005850
Appellant. )
__________________________________) O P I N I O N

Appeal from the Superior Court in Maricopa County
The Honorable Thomas Dunevant, III, Judge

AFFIRMED
________________________________________________________________

Opinion of the Court of Appeals, Division One
207 Ariz. 383, 86 P.3d 963 (App. 2004)

VACATED
________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
by Randall M. Howe, Chief Counsel
Criminal Appeals Section
Attorney for Appellee

JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix
by Garrett W. Simpson, Deputy Public Defender
Attorney for Appellant

ANDREW P. THOMAS, MARICOPA COUNTY ATTORNEY Phoenix
Richard M. Romley, Former Maricopa County Attorney
by Diane Gunnels Rowley, Deputy County Attorney
Attorney for Amicus Curiae
Arizona Prosecuting Attorneys’ Advisory Council
B E R C H, Justice

¶1 We granted review to determine whether a plea

agreement containing terms that require truthful testimony and

an avowal that prior statements by the pleading defendant were

true constitutes a “consistency agreement,” prohibited by our

decision in State v. Fisher, 176 Ariz. 69, 859 P.2d 179 (1993)

(Fisher III). We hold that it does not. We have jurisdiction

in this case pursuant to Article 6, Section 5(3) of the Arizona

Constitution and Arizona Revised Statutes (“A.R.S.”) section 12-

120.24 (2003).

I. FACTS AND PROCEDURAL BACKGROUND

¶2 In 1998, Michael Rivera, Marcario Vela, Victoria

Valenzuela, and Katherine Saiz were charged with murdering Megan

Ramirez. In separate plea agreements with the State, Victoria

Valenzuela and Katherine Saiz independently agreed to plead

guilty to second degree murder. In the agreements, each woman

avowed that the information she had provided in a “free talk”

with the State on August 10, 1998, was a complete, accurate, and

truthful account of the events surrounding the murder. The

witnesses understood that the State had entered into the plea

agreements based on that avowal, and each witness promised that

she would testify truthfully at Rivera’s trial. The plea

agreements each provided, in relevant part, as follows:

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 2. . . . Defendant [Valenzuela/Saiz] shall testify
fully, accurately, and truthfully in any trial, re-
trial, or defense interview regarding co-defendants
Michael Rivera, CR 98-05850[,] and Marcario Vela, CR
98-05242, as to the facts arising out of and about
said cases, based upon defendant [Valenzuela’s/Saiz’s]
knowledge as an eye-witness thereto.

. . . .

5. . . . Defendant [Valenzuela/Saiz] avows that all
of the facts stated by her regarding this case are
fully, accurately and truthfully stated in the video-
taped interview conducted on August 10, 1998, and
defendant acknowledges that this plea is made by the
State on the basis of this avowal, and defendant
[Valenzuela’s/Saiz’s] stipulation in Paragraph 2
above.

¶3 Rivera sought to preclude Valenzuela and Saiz from

testifying at his trial, arguing that their plea agreements

contained consistency provisions, which are prohibited by this

court’s decision in Fisher III, 176 Ariz. at 74, 859 P.2d at

184. Rivera claimed that because the witnesses had committed to

testify to a settled version of the facts, allowing them to

testify would violate his right to a fair trial. The trial

court denied the motion.

¶4 At trial, Valenzuela and Saiz testified that the

victim, Megan Ramirez, was dating Rivera, who was a member of

the West Side Chicanos gang. The night of the murder, Megan was

seen dancing with a former member of a rival gang that was

thought to be responsible for killing a member of Rivera’s gang.

After the victim went home, Rivera, Vela, and Valenzuela broke

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in and forced her into their car. They picked up Saiz and then

drove to a field. Valenzuela and Saiz testified that Rivera

shot the victim twice, and then ordered each of them to shoot

her as well. Megan’s body was found the next day.

¶5 At trial, Valenzuela and Saiz admitted to having given

several differing versions of the events surrounding the murder

before making their August 10th videotaped statements. Each

witness also testified that she understood that any significant

variation from the statements in the August 10th “free talk”

might cause her to lose the benefit of her plea agreement. Each

also testified, however, that she understood that the plea

agreement required her to testify truthfully, and that she had

done so.

¶6 Both the prosecutor and defense counsel addressed the

plea agreements several times during the trial — during voir

dire, testimony of the witnesses, and closing arguments. The

judge also instructed the jurors on the significance of plea

agreements before they retired to deliberate.

¶7 The jury convicted Rivera of first degree murder,

first degree burglary, and kidnapping. He was sentenced to

natural life for the murder and to consecutive sentences for the

burglary and kidnapping. Rivera appealed, contending that the

accomplice witnesses’ plea agreements contained illegal

consistency clauses that deprived him of a fair trial.

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¶8 The court of appeals, in a split decision, agreed with

Rivera. State v. Rivera, 207 Ariz. 383, 391, ¶ 35, 86 P.3d 963,

971 (App. 2004). The majority found that in this case, as in

Fisher III, the plea agreements required the witnesses to

testify at trial consistently with an earlier recitation of

events. Id. at 387, ¶ 15, 86 P.3d at 967. The majority also

found that, because the accomplice witnesses’ testimony was

important to the State’s case, the plea agreement terms may have

affected the outcome of the trial. Id. at 390, ¶ 30, 86 P.3d at

970. The court therefore remanded for a new trial. Id. at 391,

¶ 35, 86 P.3d at 971. The court ordered that at Rivera’s

retrial the State could not introduce Valenzuela’s and Saiz’s

testimony from the previous trial or any other statements they

made after they had entered their plea agreements. Id. at ¶ 33.

The majority concluded, however, that Valenzuela and Saiz could

testify at the retrial if the trial court removed the taint

caused by the improper plea agreement provisions by informing

the witnesses, before they testified, that the consistency

provisions were unenforceable. Id. at ¶ 34.

¶9 Judge Thompson dissented. Id. at 391-92, ¶ 36, 86

P.3d at 971-72 (Thompson, J., dissenting). He believed that the

majority erred in applying Fisher III, which he read as

requiring a showing that the testimony of the accomplice

witnesses would have exculpated Rivera had they not been

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constrained by their plea agreements. Id. at 392, ¶ 37, 86 P.3d

at 972. Because Rivera had not established that the accomplice

witnesses’ testimony would have exculpated him, Judge Thompson

reasoned, there was no due process violation. Id. at ¶¶ 37-39.

¶10 We granted review to decide whether the court of

appeals misapplied Fisher III in holding that the accomplice

witnesses’ plea agreements were impermissible consistency

agreements.

II. DISCUSSION

A. Background

¶11 Accomplice testimony is generally admissible at trial,

even if procured by the offer of a lenient sentence and secured

through a plea agreement. See Giglio v. United States, 405 U.S.

150, 154-55 (1972); State v. Armstrong, 208 Ariz. 345, 353,

¶ 39, 93 P.3d 1061, 1069 (2004). While prosecutors may not

knowingly allow a witness to testify falsely, see State v.

Ferrari, 112 Ariz. 324, 334, 541 P.2d 921, 931 (1975), cross-

examination is the appropriate tool for probing the truthfulness

of a witness’s statements. Hoffa v. United States, 385 U.S.

293, 311 (1966); State v. King, 180 Ariz. 268, 276, 883 P.2d

1024, 1032 (1994). Skillful cross-examination should expose to

the jury any motivation the witness may have to lie, such as to

preserve a favorable plea deal, and the jury must determine the

witness’s credibility. Hoffa, 385 U.S. at 311.

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 B. Prohibition of Consistency Agreements

¶12 Although we allow accomplices to testify pursuant to

plea agreements, we have held that provisions that require a

pleading defendant to give testimony consistent with a

previously given statement of the facts are unenforceable in

Arizona. Fisher III, 176 Ariz. at 73, 859 P.2d at 183.

¶13 The issue first came before us in Fisher III, 176

Ariz. 69, 859 P.2d 179. In that case, Defendant James Fisher’s

wife, Ann Fisher, signed an agreement allowing her to plead

guilty to a lesser felony if her testimony at James’s murder

trial did “not vary substantially in relevant areas [from]

statements previously given [to] investigative officers.” Id.

at 71, 859 P.2d at 181. The agreement did not require her to

testify truthfully. Despite the agreement, Ann asserted her

Fifth Amendment rights and refused to testify at James’s trial.

Id. The defense then submitted her plea agreement into evidence

and James was convicted of the murder. Id.

¶14 At a later hearing on a motion for a new trial, Ann

testified about conflicting statements she had made to various

people, saying at times that James had committed the murder and

at other times that she had done it. Id. at 72, 859 P.2d at

182. She stated that she had invoked the Fifth Amendment both

on the advice of her lawyer and because she did not want to

violate, and possibly lose, her plea deal with the State. Id.

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¶15 We ruled that a witness must be allowed to testify

truthfully and therefore cannot be compelled to testify

consistently with a previously given statement regardless of the

truth of that statement. Id. at 73, 859 P.2d at 183. Such

agreements may “undermine the reliability and fairness of the

trial and plea bargaining processes and taint the truth-seeking

function of the courts.” Id. at 74, 859 P.2d at 184. We

observed, however, that “[p]lea agreements may, of course,

properly be conditioned upon truthful and complete testimony.”

Id.

¶16 The plea terms in this case differ in one significant

respect from the ones at issue in Fisher III. Unlike the

agreement in Fisher III, these plea agreements required

Valenzuela and Saiz to testify “fully, accurately, and

truthfully.”1 While the agreements contain an avowal by the

witnesses that their prior statements were truthful, unlike the

agreements in Fisher III, the State did not expressly condition

the agreements upon the testimony at trial being consistent with

the prior statements. That the agreements also required

Valenzuela and Saiz to avow that their August 10, 1998,

1
The agreements also were not signed by the judge, a
provision we viewed with concern in Fisher III as giving the
imprimatur of the courts and imposing additional pressure on the
witness. Id. at 74-75, 859 P.2d at 184-85. Moreover, we note
that unlike Rivera, Fisher pursued his claim in a Rule 32
proceeding rather than on direct review. See id. at 75-76, 859
P.2d at 185-86.

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statements were truthful is not the same as requiring them to

testify consistently with that specific version of the facts.

Instead, Valenzuela and Saiz each acknowledged that the August

10th version of the facts was true, and each promised to testify

truthfully. The State is entitled to seek both of these

representations from witnesses. See People v. Garrison, 765

P.2d 419, 427-30 (Cal. 1989).

¶17 Our concern in Fisher III was that enforcing a

consistency provision would allow the prosecutor “to persuade an

accomplice to disregard his oath of truthfulness” in order to

obtain a lenient plea deal. 176 Ariz. at 74, 859 P.2d at 184

(quoting Yvette A. Beeman, Note, Accomplice Testimony Under

Contingent Plea Agreements, 72 Cornell L. Rev. 800, 824 (1987));

see also State v. Cook, 170 Ariz. 40, 59, 821 P.2d 731, 750

(1991) (acknowledging the ethical concerns inherent in

consistency agreements). The critical issue is not whether the

witness will feel an obligation to testify to the same facts

earlier told the prosecutors or police, but rather whether the

prosecution has conditioned the plea agreement upon such

testimony, regardless of the truth of the earlier statement.

See Fisher III, 176 Ariz. at 74, 859 P.2d at 184. All

accomplice plea agreements put some pressure on a cooperating

witness. People v. Allen, 729 P.2d 115, 131 (Cal. 1987). But a

consistency agreement has the strong potential to procure

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untruthful testimony if the agreement is not also conditioned

upon the requirement of truthful testimony. Fisher III, 176

Ariz. at 74, 859 P.2d at 184. It is this tainting of the

“truth-seeking function of the courts” that makes consistency

provisions invalid. Id.

¶18 The agreements in question in this case neither compel

the witnesses to disregard their oaths of truthfulness nor bind

them to a particular script or result, such as the conviction of

the defendant. The agreements now at issue would allow a

witness who has truthfully recounted the facts before trial to

nonetheless truthfully recount the facts at trial in a manner

not fully consistent with her previous statements — as a result,

for example, of new information or refreshed recollection.

Either witness could validly avow that she believed her

statements on August 10, 1998, to be truthful at the time, yet

later recalled other information that required her to alter her

testimony at trial. What Fisher III forbids is an agreement

that requires the witness to testify consistently with a

previous statement at trial even when doing so would render the

trial testimony untruthful. Id. at 73, 859 P.2d at 183. By

their terms, these agreements do not have that effect.

¶19 Other courts reviewing plea terms that require

conformity or agreement with prior statements have held that the

witness’s testimony could be admitted, as long as certain

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safeguards were in place. See United States v. Dailey, 759 F.2d

192, 200 (1st Cir. 1985) (holding plea agreements valid because

accompanied by the procedural safeguards of jury disclosure,

cross-examination, and jury instructions); State v. Burchett,

399 N.W.2d 258, 267 (Neb. 1986) (finding no showing that the

witness testimony was “so tainted as to require its preclusion”

and relying on the jury to weigh the veracity of the witness’s

statements); Sheriff, Humboldt County v. Acuna, 819 P.2d 197,

200 (Nev. 1991) (concluding that “bargaining for specific trial

testimony . . . is not inconsistent with the search for truth or

due process,” unless it requires a predetermined script or

result); State v. Bolden, 979 S.W.2d 587, 592-93 (Tenn. 1998)

(upholding plea agreement and recognizing safeguards, including

witness’s promise to testify truthfully, disclosure of the

agreement to the defendant, cross-examination, and jury

instructions, as sufficient to protect the defendant and the

system); State v. Clark, 743 P.2d 822, 828 (Wash. Ct. App. 1987)

(concluding that requirement in plea agreement for “complete and

truthful” testimony merely gave “assurance of reliability to the

State” and did not require specific testimony); State v.

Nerison, 401 N.W.2d 1, 4 (Wis. 1987) (noting that “[c]ross-

examination, not exclusion, is the proper tool for challenging

the weight and credibility of accomplice testimony”). Some

courts permitted the testimony because the plea agreement

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provisions at issue required the witnesses to testify truthfully

and did not require that the witnesses follow a script. E.g.,

Burchett, 399 N.W.2d at 267; Acuna, 819 P.2d at 200; Clark, 743

P.2d at 828. Other courts relied upon safeguards such as

disclosure of the agreement to the defense and jury, cross-

examination, and jury instructions to protect the defendant’s

right to a fair trial. E.g., Dailey, 759 F.2d at 200; Bolden,

979 S.W.2d at 592-93; Nerison, 401 N.W.2d at 4. They trusted

the jury to determine the credibility of the witnesses and

reasoned that the witnesses’ obligation to testify truthfully

overcame any pressure they might have felt to testify

consistently with a prior statement. See Nerison, 401 N.W.2d at

4. Unlike these jurisdictions, Arizona does not allow the use

of pure consistency agreements, even with safeguards. But

where, as here, the provisions do not create a consistency

agreement, these safeguards adequately protect the defendant’s

rights.

¶20 The safeguards of an informed jury and defendant,

cross-examination, and jury instructions on plea agreements were

all present in Rivera’s case. These safeguards, coupled with

the fact that the agreements at issue are not true consistency

agreements, adequately protected Rivera’s rights. Moreover,

Rivera has not shown that Valenzuela and Saiz did not tell the

truth on any material issue. Although Valenzuela’s and Saiz’s

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testimony at trial did differ in minor respects from their

August 10th statements, inconsistencies in witness testimony go

not to the admissibility of testimony, but rather to the

credibility of the witnesses and the weight to be accorded to

the evidence, which are issues for the jury to resolve. State

v. Money, 110 Ariz. 18, 25, 514 P.2d 1014, 1021 (1973). In this

case, the jury apparently believed Valenzuela’s and Saiz’s

testimony because they convicted Rivera on all charges. Because

the record is devoid of any showing that the accomplice

witnesses were not telling the truth, we cannot find error

unless we assume that the accomplice witnesses lied and that the

State presented false testimony. We are not willing to make

such assumptions.

¶21 Moreover, although Rivera did propose jury

instructions that were not given on the effect of the plea

agreements, he failed to object to the jury instructions

actually given. He therefore acquiesced to them. See Ariz. R.

Crim. P. 21.3(c); State v. Gendron, 168 Ariz. 153, 154, 812 P.2d

626, 627 (1991). Given this state of the record, we find no

error.

C. The State’s Mis-statement

¶22 Rivera asserts that the State’s attorney, in its brief

to the court of appeals, interpreted the plea agreements as

meaning that Valenzuela and Saiz “could not deviate” from the

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statements made in the August 10, 1998, videotape. The

interpretation of an assistant attorney general who was not a

party to the plea agreement does not change the written terms of

the agreement. See Smith v. Melson, Inc., 135 Ariz. 119, 121,

659 P.2d 1264, 1266 (1983) (“The construction of a contract is a

question of law where the terms of the agreement are plain and

unambiguous.”); Coy v. Fields, 200 Ariz. 442, 445, ¶ 9, 27 P.3d

799, 802 (App. 2001) (“Plea agreements are contractual in nature

and subject to contract interpretation.”). Moreover, the State

strenuously argued to the contrary in the trial court, the court

of appeals, and this court. Indeed, the same court of appeals

brief in which Rivera finds the statement on which he relies

also asserts that the plea agreements “did not seek consistency,

but rather truthful testimony.” We agree with the State that

“the agreements in this case did not place ‘undue’ pressure on

the accomplice witnesses to testify to a particular version of

events without regard to its truthfulness, nor did the

agreements frustrate the jury’s ability to judge the accomplice

witnesses’ credibility.” One mis-statement to the contrary does

not change the text of the agreements.

D. The Witnesses’ Misunderstanding

¶23 Nor does the fact that Valenzuela and Saiz may have

misunderstood the plea provisions affect the terms of the

agreements. Cases reveal that it is not unusual for parties to

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misunderstand terms in their plea agreements. See, e.g., State

v. Diaz, 173 Ariz. 270, 272, 842 P.2d 617, 619 (1992); State v.

City Court, 131 Ariz. 236, 236, 640 P.2d 167, 167 (1981); State

v. Corvelo, 91 Ariz. 52, 55, 369 P.2d 903, 905 (1962); State v.

Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993).

Yet we do not allow plea agreements to be withdrawn unless

substantial objective evidence is shown of a misunderstanding of

a material term. Diaz, 173 Ariz. at 272, 842 P.2d at 619. No

such showing was made here. To the contrary, despite

acknowledging that the agreements required them to testify

consistently with their August 10th statements, both Valenzuela

and Saiz stated that they understood and agreed that they were

required to testify truthfully, and both testified that they had

done so.

¶24 As evidence that consistency was not required,

Valenzuela made several statements during her trial testimony

that varied from those she had made in her earlier talks with

the police. The State never attempted to revoke her plea

agreement on that basis, supporting its contention that the

agreements were not pure consistency agreements.

¶25 Like this case, People v. Fields involved an agreement

that required the witness to testify truthfully regarding the

“events that occurred on September 28, 1978.” 673 P.2d 680, 699

(Cal. 1983). On cross-examination, the witness testified, just

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as Valenzuela and Saiz did, that she thought that her testimony

had to be consistent with her prior statements in order to get

the benefit of her plea bargain. See id. On re-direct,

however, she testified that prosecutors told her to testify

truthfully, not to give a particular story. Id. The court held

the agreement valid because it required only that the witness

testify to the truth. Id. at 700. The court observed that if

the witness’s prior statement was truthful, then by agreeing to

testify, she agreed to testify both consistently with her prior

statement and to the truth. Id. at 699-700.

¶26 Similarly, in this case the agreements required both

truthful testimony and an avowal that the truth was told in the

August statements. And as in Fields, if the statements

Valenzuela and Saiz made in August were truthful and they

testified at trial in accordance with those earlier statements,

they then fulfilled their obligation to testify truthfully at

trial. Regardless of their belief that the agreements required

them to testify consistently with their August statements, they

appeared to understand their paramount obligation to testify

truthfully.

E. Public Policy

¶27 Public policy also supports the use of accomplice-

witness plea agreements. The government must have witnesses in

order to prosecute crimes, State v. Watkins, 207 Ariz. 562, 565

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n.4, 88 P.3d 1174, 1177 n.4 (App. 2004), and for many crimes,

accomplices “may be the only credible witnesses of criminal

activity.” United States v. Reid, 19 F. Supp. 2d 534, 537 (E.D.

Va. 1998). “[W]ithout their testimony, the government [might]

not be able to obtain convictions.” Id. Indeed, “[no] practice

is more ingrained in our criminal justice system than the

practice of the government calling a witness who is an accessory

to the crime for which the defendant is charged and having that

witness testify under a plea bargain that promises him a reduced

sentence.” United States v. Cervantes-Pacheco, 826 F.2d 310,

315 (5th Cir. 1987). In such cases, the prosecution must be

able to enter into plea agreements that protect the defendant,

the public, and the witness.

¶28 Some of the concern that accomplice plea agreements

will encourage false testimony is alleviated by the role of

prosecutors in the judicial system. Prosecutors have a duty to

the court not to knowingly encourage or present false testimony.

Ferrari, 112 Ariz. at 334, 541 P.2d at 931; State v. Razinha,

123 Ariz. 355, 359, 599 P.2d 808, 812 (App. 1979); see also

Ariz. R. Sup. Ct. 42, ER 3.3(a)(3). Prosecutors are not simply

advocates, but are “minister[s] of justice.” Ariz. R. Sup. Ct.

42, ER 3.8 cmt. 1; Maretick v. Jarrett, 204 Ariz. 194, 197, ¶

10, 62 P.3d 120, 123 (2003). And prosecutors must present

witnesses as they are, Ferrari, 112 Ariz. at 334, 541 P.2d at

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931, “warts and all.” Absent a showing that the prosecution was

aware of any false testimony, the credibility of witnesses is

for the jury to determine. Id.

¶29 The plea agreements in this case provide an acceptable

way to satisfy these prosecutorial duties. The State should

also ensure that witnesses signing agreements containing such

provisions understand that their obligation to testify

truthfully is paramount.

III. CONCLUSION

¶30 For the foregoing reasons, we vacate the opinion of

the court of appeals and reinstate and affirm the verdict and

judgment of the trial court.

__________________________________
Rebecca White Berch, Justice

CONCURRING:

______________________________________
Charles E. Jones, Chief Justice

______________________________________
Ruth V. McGregor, Vice Chief Justice

______________________________________
Michael D. Ryan, Justice

______________________________________
Andrew D. Hurwitz, Justice

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