Sheriff, Humboldt County v. Acuna
Sheriff, Humboldt County v. Acuna
Opinion of the Court
OPINION
By the Court,
Respondent Raul Acuna allegedly sold cocaine to an individual who was motivated by his own criminal involvement with the law to cooperate with the police. The alleged transaction was monitored electronically and Acuna was arrested and charged with selling a controlled substance. After a preliminary hearing, Acuna filed a pretrial petition for a writ of habeas corpus based upon an asserted violation of this court’s holding in Franklin v. State, 94 Nev. 220, 577 P.2d 860 (1978). The district court agreed that Franklin was dispositive and issued the writ. Having reevaluated the Franklin rule and concluded that it should not be further perpetuated, we reverse without determining whether the district court erred in finding a violation of the Franklin standard.
Phillip Crawford, a “cooperating individual” who was working with W. Kent Brown, an investigator for the Tri-County Narcotics Task Force, told Brown that he had arranged to buy a small quantity of cocaine from Acuna. The alleged transaction occurred at a parking lot in the Winnemucca area and was monitored by police through means of an electronic listening device carried on Crawford’s person. On April 11, 1990, Acuna was arrested and charged with selling a controlled substance. The following month, after a preliminary hearing, Acuna filed a pretrial petition for a writ of habeas corpus based upon a violation of the Franklin rule arising out of the State’s arrangement with Crawford.
At the hearing on the petition, Acuna contended that because Crawford had not as yet been formally charged and was allowed to enter a guilty plea, Crawford was under compulsion to testify against Acuna in a particular manner. The State opposed the petition on the ground that the Franklin rule applied only to an accomplice and that Crawford did not fit in that category. The district court rejected the State’s position, ruling that Franklin was not limited to accomplice testimony.
DISCUSSION
Our ruling in Franklin was a takeoff from the case of People v. Medina, 41 Cal.App.3d 438 (Cal.Ct.App. 1974). The Medina court held, and we so quoted in Franklin, “that a defendant is denied a fair trial if the prosecution’s case depends substantially upon accomplice testimony and the accomplice is placed, either by the prosecution or the court, under a strong compulsion to testify in a particular fashion.” Id. at 145. However, the Franklin court substantially expanded the Medina ruling by condemning the use of testimony secured from a witness through means of an executory plea bargain. Specifically, we stated that the application of the Medina rationale
may not be limited solely to situations where immunity is expressly conditioned on specific testimony. As a matter of logic, if the circumstances of the plea bargain would reasonably cause the alleged accomplice to believe he must testify in a particular fashion, then a less explicit arrangement also violates the defendant’s due process rights.
[b]y bargaining for specific testimony to implicate a defendant, and withholding the benefits of the bargain until after the witness has performed, the prosecution becomes committed to a theory quite possibly inconsistent with the truth and the search for truth. We deem this contrary to public policy, to due process, and to any sense of justice.
Id. at 225-26, 577 P.2d at 863. The concern thus expressed by the Franklin majority was the lack of reliability inherent in an arrangement where “the prosecutor must simultaneously purchase and coerce testimony in order to obtain a conviction . . . .” Id. at 225, 577 P.2d at 863.
The Franklin court is not to be criticized for its zeal in seeking to promote and protect the truth-seeking objective of a criminal trial. Indeed, criminal justice may never be consistently attained at the expense of truth. We nevertheless conclude that our rather isolated Franklin rule is of limited benefit to the search for truth, and that it in fact may tend to frustrate truth and create incentives for dissembling at trial. The Franklin constraints, noted above, do nothing to restrain the incentives of a defendant and the State to consummate bargains deemed advantageous to both. The State understandably desires testimony from persons vulnerable to prosecution that will be of assistance in bringing other malefactors to justice. Such persons are also motivated to bargain in order to ease the consequences that may ensue as a result of their own criminal conduct. The stage is thus set, at least potentially, for the cooperating individual to provide the State with information helpful to the prosecution of one or more other defendants in exchange for some form of leniency concerning his own criminal involvement.
We realize that persons vulnerable to criminal prosecution have incentives to dissemble as an inducement for more favorable treatment by the State. It is thus clear that at least during the negotiating stages of a plea bargain or other arrangements for leniency, the potential witness will provide information that he or she deems to be of value to the State in the prosecution of one or more other criminally involved persons. We must assume that the prosecutor will evaluate the veracity of the information and bargain for its use in the form of trial testimony only if there is a basis for concluding that the information is reliable. In no event would we expect our prosecutors to enter into agreements for perjured testimony.
If the State is required to provide the benefit of the bargain prior to the time the promisee testifies at trial, the State’s expectations may be frustrated by an uncooperative or “forgetful” witness. Although it is true, as observed by the court in Franklin, that withholding the benefit of the bargain until after the promisee testifies may create pressure to testify in a particular manner, it would be neither realistic nor fair to expect the State to enter into a bargain without assurances that the promisee’s trial testimony would be consistent with the information he or she provided to prosecutors as a basis for leniency. We are simply unwilling to assume, and therefore base a rule of law upon, the proposition that our prosecutors will sit down with persons vulnerable to prosecution and commit them to testifying perjuriously. If the person seeking the bargain purports to have true information, and the State concludes that such information is reliable and would be of assistance in prosecuting other persons, the State, in return for a commitment of leniency, would have every right to expect that the promisee’s trial testimony would be essentially consistent with the original information upon which the State’s promise was induced. If the promisee reneges on the commitment to provide truthful and consistent trial testimony, the State will be free to withdraw from the bargain.
Although we have concluded that executory plea agreements are acceptable under Nevada law, we are not unmindful of the danger posed by perjured testimony concocted by persons seeking lenient treatment in connection with their own criminal problems. We have already noted that the State may properly enter into plea arrangements when the putative witness persuasively professes to have truthful information of value and a willingness to accurately relate such information at trial. The less than remote possibility remains, however, that the recipient of the State’s promise has fabricated his or her information and will repeat it at trial as a perjurer. Courts across the land have, in part, sought to deal with the incentive to commit perjury by requiring at trial the baring of all aspects of the bargain pursuant to which the testimony is given. As a result, it is generally determined that the terms of the State’s bargain concern only the weight, and not the admissibility of the testimony.
In accordance with the foregoing, we now embrace the rule generally prevailing in both state and federal courts, and hold that any consideration promised by the State in exchange for a witness’s testimony affects only the weight accorded the testimony, and not its admissibility. Second, we also hold that the State may not bargain for testimony so particularized that it amounts to following a script, or require that the testimony produce a specific result. Finally, the terms of the quid pro quo must be fully disclosed to the jury, the defendant or his counsel must be allowed to fully cross-examine the witness concerning the terms of the bargain, and the jury must be given a cautionary instruction.
The testimony of an accomplice, given in exchange for concessions or inducements by the prosecution, is generally admissible where the “established safeguards” — full disclosure of the bargain, opportunity for cross-examination and adequate instructions to the jury — are present. United States v. Dailey, 759 F.2d 192, 196 (1st Cir. 1985). Any concern over the credibility and reliability of such testimony is said to be satisfied by allowing the jury to evaluate the accomplice’s testimony, tested by cross-examination, in light of full disclosure of any plea agreements and careful instructions by the trial court. Id. at 198-200.
State v. Nerison, 387 N.W.2d 128, 130 (Wis.App. 1986).
In State v. Burchett, 399 N.W.2d 258 (Neb. 1986), the Nebraska Supreme Court explained the rule thusly:
The general rule announced in other jurisdictions is that “an accomplice’s testimony is admissible notwithstanding the fact that the testimony is procured by means of a plea bargain. The promise of leniency or otherwise favorable prosecutorial treatment goes only to the credibility of the accomplice’s testimony, not to its admissibility.” State v. Garcia, 102 Idaho 378, 386, 630 P.2d 665, 673 (1981). See, also, Kelly v. State, 460 N.E.2d 137 (Ind. 1984); State v. DeWitt, 286 N.W.2d 379 (Iowa 1979); State v. Leonard, 74 N.C.App. 443, 328 S.E.2d 593 (1985).
Generally, it is only where the prosecution has bargained for false or specific testimony, or a specific result, that an accomplice’s testimony is so tainted as to require its preclusion. United States v. Librach, 536 F.2d 1228 (8th Cir. 1976); State v. Garcia, supra; State v. DeWitt, supra.
Id. at 266.
Recently, the California Supreme Court focused on the issue addressed in People v. Medina, supra, and concluded that plea bargains consummated in exchange for testimony are unacceptable only where “the testimony must be confined to a predetermined formulation” or must produce “a given result, that is to say, a conviction.” People v. Garrison, 765 P.2d 419, 428 (Cal. 1989) (quoting People v. Meza, 116 Cal.App.3d 988, 994 (1981)). The Garrison holding is reflective of what appears to be a national consensus disavowing plea bargains in exchange for testimony only where the bargain compels the witness to provide
In the hearing before the district court, testimony established that Crawford was not placed under a compulsion to testify according to preformulated, particularized, and dubious facts. Of course, Crawford was aware of the fact that the State was privy to the transaction concerning which he would testify, and that any deviation from the known, true facts would result in a loss of the concessions he expected to receive from the State. He was nevertheless under no compulsion to testify in accordance with a manufactured script or in any way contrary to the truth. Crawford’s agreement with the State compelled him only to be truthful in his testimony.
In view of our ruling, the district court’s order granting Acuna’s petition for a writ of habeas corpus is reversed and the case is remanded for further proceedings.
Since this opinion was completed, but prior to its issuance, the 1991 Legislature enacted legislation which essentially abrogated the Franklin rule. See Chapter 175 of the Nevada Revised Statutes.
We agree with the district court that the Franklin rule was not limited to testimony offered by accomplices. Perjury remains a serious concern with all potential witnesses who are willing to exchange testimony in return for considerations of leniency by the State.
Obviously, this court would view most seriously any arrangement between a potential witness and a prosecutor calling for testimony known or
We are confident that the rule adopted by this opinion will adequately safeguard a defendant’s right to a fair trial. Therefore, to the extent that Franklin is inconsistent with our ruling in the instant case, Franklin is overruled.
Concurring Opinion
concurring:
I am concurring in the result reached by the majority because I do not think the conduct of the law enforcement officers violated the Franklin rule. The granting of the writ of habeas corpus should be reversed on that basis rather than overruling the Franklin decision.
The State attempts to distinguish this case from Franklin by arguing that the Franklin rule should be limited to accomplice testimony and not to other informants. However, informant testimony presents the same reliability concerns as accomplice testimony. Logic and our dicta in State Bar of Nevada v. Claiborne, 104 Nev. 115, 756 P.2d 464 (1988), would indicate that the Franklin rule should apply to informant as well as accomplice testimony.
In this case, law enforcement bargained for Crawford’s cooperation, not his testimony. The agreement was that Crawford would attempt to purchase drugs from Acuna, and law enforcement would then recommend that Crawford receive probation for his involvement in a prior drug sale. Crawford then made a controlled purchase of marijuana from Acuna. Since this transaction with Acuna was monitored, there is a minimum chance of Crawford’s fabrication for or against law enforcement. Crawford then testified at trial about this purchase from Acuna.
While it is true that the agreement with Crawford was execu-tory to the extent that he had not been charged with or sentenced for any felony, I do not believe this transaction violated Franklin. First, it was a bargain for cooperation, not testimony. When the bargain was struck, there was no testimony to bargain for, since the transaction had not even occurred. Second, there is no suggestion that Crawford was obligated to testify in any particular manner. And, since the transaction Crawford testified about was closely monitored, there is minimum chance of fabrication. For these reasons, I do not believe such testimony would be prohibited by our prior ruling in Franklin.
The majority elects to overrule Franklin, rather than decide the case on this basis or limit the Franklin ruling to accomplice testimony, even though nothing has transpired to diminish the concern for the reliability of this type of testimony since Franklin
“When a rule of law has once been settled, contravening no statute or constitutional principle, such rule ought to be followed unless it can be shown that serious detriment is thereby likely to arise prejudicial to public interests.” Zgombic v. State, 106 Nev. 571, 580, 798 P.2d 548, 554 (1990) (Justice Steffen, dissenting, quoting Maki v. Frelk, 239 N.E.2d 445, 447 (Ill. 1968)). I see no compelling reason to overrule Franklin rather than limit its applicability in some situations. The Franklin rule recently has been changed by legislation. See Chapter 175 of the Nevada Revised Statutes. However, we should avoid overturning a long standing decision by judicial fiat, without compelling reason.
Over the past decade, Leslie White has testified against at least a dozen California inmates whom he claimed confessed their guilt to him. However, he later disclosed that at least some of the information he passed on to lawmen was nothing but lies. He demonstrated how easy it is for a “snitch” to concoct a false confession simply by using a telephone in the prison chaplain’s office. Identifying himself as a bail bondsman, White called the sheriff’s document-control center and got an accused murderer’s case number and date of arrest. Then, he called the district attorney’s records bureau, identifying himself as a deputy district attorney to obtain names of witnesses and the prosecutors handling the case. In order to obtain details of the murder, White called the coroner’s office and told them he was a police officer.
After he falsely testified about a confession or damaging admission made in jail by the defendant which would be consistent with the facts he had learned, White would receive special privileges, including early release from his frequent prison terms. As a result of White’s revelations of fabricated testimony, Los Angeles is having to review more than 130 cases from the past ten years for possible taint. A Snitch's Story, Time Magazine, December 12, 1988.
Furthermore, there is some indication that informants are more frequently used when a case is weak, and therefore, the risk of convicting innocent people is increased. Use of Jailhouse Informers Reviewed in Los Angeles, New York Times, January 3, 1989. Of the 225 people convicted of murder and other felonies as a result of Mr. White and other jailhouse informers’ testimony over the last 10 years in Los Angeles, 30 are on death row. California Shaken over an Informer, New York Times, February 16, 1989.
Reference
- Full Case Name
- SHERIFF, HUMBOLDT COUNTY, NEVADA, Appellant, v. RAUL ACUNA, Respondent
- Cited By
- 22 cases
- Status
- Published