*1 Woofter by prescribed statute.”1 imprisonment of O’Donnell, Cf. 756, P.2d 1396 Affirmed. FRANKLIN, v. THE HELEN Appellant,
JOANNE NEVADA, Respondent. OF STATE
No.
24,
Holt, Attorney, J. and L. District Respondent. County, for Attorney, Clark provides: 1NRS 193.165 “ weapon deadly in the commis- person other Any a firearm or uses who 1. prison by imprisonment for a punished term state shall be of a crime sion equal such the by imprisonment prescribed statute for to the term in addition to and consecutivеly prescribed section shall run The sentence crime. prescribed crime. statute such sentence provides any separate an addi- offense but not create does This section “2. contingent upon offense, imposition primary whose penalty for the tional finding prescribed fact. apply of a firearm where the use provisions do of this section “3. [Emphasis necessary crime.” weapon element of such deadly is a other or added.] *2 OPINION Court, J.:
By the Gunderson, (formerly Wellman) appellant appeal, Joanne Franklin On issues, impels a us to order new of which one eleven raises to-wit: rights a defendant trial process on due Are the plea bargains
offended,
when the
purported
a
accom-
inculpatory
obtain
plice,
charge,
plead
a reduced
allowing him to
bargain and continues
the fruits of the
withholds
also
prosecution in order to assure
full
threat
prosecutor’s
of truth?
vision
with the
in accord
think,
circumstances,
due
denied
we
defendant
In such
meaning
Nevada and the
both
law within
process of
constitutions.
federal
24, 1972,
Wil-
one Roosevelt Swift murdered
September
On
Wellman,
Wellman,
in
Robert
of his friend
father
liam A.
Wellman,
family
who
home. Mrs.
Wellman
of the
kitchen
during
watching
room
in
television
another
apparently was
Following
police.
reported
struggle,
the crime to
death
negotiations.
of a death
Under threat
arrest, Swift entered
ultimately
of event
sentence,
a version
satisfac-
recited
Swift
testify against
Well-
agreeing
Mrs.
prosecution,
tory
agreed
be
Swift Accordingly, the
man.
сredit,
jail
only,
second-degree
receive
murder
charged with
Nevada,
served,
remaining
sentence outside
and serve
time
Only following
trial
prison
home.
Mrs. Wellman’s
near his
in
later,
conviction,
years
perform
did the
its
some three
state
June,
years
exchange.
incar-
This
after but five
total
side
eligible
parole.
ceration,
Swift will
Nevada,
dangers
accomplice testimony,
recognizing
Legislature
provided: “A conviction shall not be had
has
testimony of an
unless he is corroborated
on
itself,
and without thе aid of the testi-
other evidence
accomplice,
mony
tends to connect the defendant with
of the
offense; and the
corroboration shall
the commission
merely
if it
shows the commission
the offense
be sufficient
presented
175.291(1).
NRS
As
thereof.”
the circumstances
hearing,
original preliminary
against
case
Mrs.
State’s
independent
inculpatory evidence what-
Wellman lacked
Sheriff,
Thus, in Wellman v.
tract murder”
degree
only,
against
mum
constitute first
murder
maxi
and Swift would
with a
her
possibility
parole.
punishment of life without
See
v.
Woodson North
Carolina,
(1976).
223 bargaining accomplice 1. Plea to obtain of an is State, 1, necessarily improper. LaPena v. 544 P.2d Hоwever, 1187 it has been held “that a defendant is prosecution’s depends a fair trial if the case denied tially upon accomplice substan- accomplice placed, and the is court, strong compul- or the either under a tertify particular People in a fashion.” v. sion 116 133, Cal.Rptr. (Cal.App. 1974). accomplice witnesses granted immunity expessly in Medina had been conditioned promise materially that their “not or sub- stantially change” prior tape-recorded Ibid, to law enforcement оfficials. at 141. Under such an arrangement the court found the defendants had been denied “any “deprived effective cross-examination” and of the funda- mental to a fair trial.” Ibid.3 holding recognized accepted the Calfornia In so court permit plea bargain practice witness to full, fair, willing where he is to render a and accurate account charge People Green, of the facts out of arose. See State, (Cal.App. 1951); P.2d 867 Harris v. Tex.Crim. Robinson, (1884); 629 (1921); Rex v. D.L.R. 30 B.C. 369 Ford, (1878); United States v. 99 U.S. see also cf. Hоwever, (Mo. 1940). Quinn, 142 State v. timony S.W.2d 79 such tes- beyond redemption” becomes “tainted where the compulsion accomplice placed testify particular under plea bargain. fashion in order to receive the benefits of his Green, above, at cited 872. rationale, agree deciding appli- We with Medina that its solely not be limited to situations where cation specific testimony. expressly on conditioned As a matter of plea bargain logic, if the circumstances of the would reason- аlleged accomplice ably testify to believe he must cause record, why prima From the this court cannot determine not even a facie presented during prosecution, of corroboration was case the initial if indeed plea bargain entered his with Swift on the basis of the “corrob- *4 Thus, potential orative evidence” now tendered. this case demonstrates the injustice selling leniency, which is inherent in an admitted felon in order to buy testimony against cent, person presumes another whom the Constitution inno- prosecutor’s been but who nonetheless has tried and found Obviously, danger prosecutor may mind. a exists that a later seek to vindicate bargain by re-stucturing which, originally his as “corroboration” facts as and objectively events, perceived in the context more inculpatory quality. of did not seem to have such arrangements prosecutors would to to enter such also seem vest 3To allow case, power agreement calling upon them, alleged any given to enter an in bе, disregard “accomplice” if his or her oath need to avoid execu to bargained-for penal consideration. to obtain other tion or fashion, explicit arrangement a less particular then also violates rights.4 process the defendant’s above, Robinson, the British Columbia Court cited Rex v. Appeals stated: impres- get[s] . . the if witness . is obvious that the “It story told that unless he the same to Court sion executed, police, to the he would be as he did Court beyond redemption testimony was and tainted his sense, not, weighed by jury, legal because be could longer agent a free and there was no was no witness veracity his could which be tested esti- standard merely going credibility a matter to the This is not mated. viz., witness, fundamentally deeper, something of the was of the Court itself witness fet- the action that testimony put position and in so dire in his tered capable appraisement, was his evidence value this, essentially, being to while reduced situation adjured give freely his evidence outset was he fully, yet was that if it was not the he warned same later on already police he be had told the executed. he as object justice, warning defeated the first Such because from first to last have understood the witness should what hazards, that, he in to tell the truth then at all was was box, may he false what had however witness Ibid, police before in the station.” said promised merely inferred that the Robinson The court being testimony pardon depended “the same as he Looking police.” objectively already at the told the facts had case, led the same we are conclusion. instant permit plead guilty Swift to until prosecution did not The hearing preliminary testimony was at the his after obviously had so little faith Swift’s trial. veracity, defendant, implicate willingness that it felt plea bargain as the to induce “fee” use the constrained cooperation. circumstances, it these cannot assumed Under full, Obviously, was fair accurate. Swift’s extremely effective elicit must be such tactics be drawn too, purchase no rational distinction between 4Obviously, as in where full the price, as and coercion legally case, involved drastic instant reduction contrasted charges with the threat of'maximum coupled prosecution. appropriate *5 However, “prosecutor’s primary duty prosecutor a is desires.5 justice 181(3). that SCR but to see is done.” not to convict view, prosecutor justice where the must simul- served our taneously purchase in order obtain a and coerce might trustworthy which not be achieved with evi- conviction dence. unprofеssional compensate that conduct a We note “[i]t giving testimony.” ... A.B.A. Standards on “The witness Function,” 3.2, People Standard Prosecution Cf. Cal.Rptr. (Cal.App. 1977). lawyer Sepeda, A “should any suggestion any sup- calculated to induce witness to avoid 188(1). press or deviate from the truth.” SCR evidence Under jurisprudence, presumed system if a defendant is to be innocent, any procedure prosecution which commits the theory guilt, necessarily precludes a chosen further may actually guilty. By inquiry bargaining spe- into who defendаnt, implicate withholding a cific bargain performed, until after the witness has benefits theory quite possibly prosecution committed to becomes with the truth and the rearch for truth. We deem inconsistent actions, but, prosecutor’s purpose is not inferable from his in this 5The candidly acknowledged by prosecutor case, apparently himself. support filed affidavits in of Mrs. Wellman’s motion for new counsel Defense trial, depended (1) testifying reflecting Swift believed before at trial that his “deal” Franklin; incriminating (2) admitted he his сomplete implicating plead and his “deal” until after let Swift would not Franklin ecution keep pros he wanted “to a hammer over Swift.” The at trial because Indeed, attempt to controvert these averments. the record made no the court heard Mrs. Wellman’s motion for new that when shows prosecutor the came call there was no need for defense counsel to his witnesses stated basically stand, conceding: think that the affidavits state about what “I during up trial. ...” that, acknowledged also had Swift nоt incriminated has Wellman, pursued him for maximum available the State would have than Mrs. penalty, agreed argument, allowing At oral him his “deal.” rather colloquy place: following took that he did not commit the murder for If he testified “Prosecutor: person, the murder at own if he testified that he committed another instance, entirely be an different situation. it would murder, degree pursued you have him for first And would Court: you? wouldn’t culpable under that situation he would have been Because Prosecutor: degree murder. for first circumstаnce, any he would have been under Court: Well murder, degree correct? first question It of whether we let the That is correct. was Prosecutor: parties guilty, party escape greater guilty whether we find both is— Well, yourself, give you Very contain and not me me well. if would Court: reasons, telling simply give your me the You are answers. moral degree pursued you him for murder. Correct? first truthfully Well- that he killed Mr. Had he testified Prosecutor: instance, yes.” man on his own contrary public policy, process, to due and to sense justice.6 using alleged accomplice’s error committed 2. The trial, however, testimony at former “tainted” *6 permitted Swift has preclude on retrial. now his Thus, testify particu- compulsion plead guilty. to in a undue to way If the believesit can win been removed. lar has given opportunity Swift should now be an to fair then a testify fully result, fairly. free To insure this we should the oath, any any other than his and obviate of coercion witness end, prejudice possible the defendant. this we to To order other testimony, contrary process prior obtained to due Swift’s impeachment purposes, law, either for will be inadmissible of statement, prior or evidence as a inconsistent in substantive for prosecution. approach any perjury This is taken the in future witness, justice California, protect to the to see that not above, cited See served. conclusion, any we note that this limitation decision 3. practice plea bargaining, imposes upon in order to assure system, oppres- process respect our court neither for due deprives prosecutors expedient confining. they It of no nor sive all, permitted employ. prosecutor After if a be truth, telling alleged accomplice is then at an least believes expected that truth at trial can be inducements relate three remain, though accomplice permitted plead is first even oath, backed guilty. first of these is the testimonial The legally compels perjury, for which is what candor sanctions contempt witnesses. The second is the court’s from other hope clemency. If power. third is of additional future prospective totally witness prosecution deems its so untrust- worthy these inducements to truth conventional are gas lengthy impris- insufficient, in our view chamber sanction, be as an in brandished additional onment should concerns, process Nevada manual on Criminal aside from 6Quite (1977), it is recommended that a court should not and Goals Standards Justice public plea accept negotiated which “would serve the interest.” Ibid., public 3.7(10), interest if A does not “serve the it: 167. Standard pro activity depreciates of the defendant’s or otherwise the seriousness . . . justice system;” disrespect ... or “would result in a criminal motes conviction community proportion with which out seriousness for an offense charge conduct which the evaluate the defendant’s it Here, extremely accomplice lenient sentence on based.” Ibid. exchange testimony. may questioned offense, capital It therefore in for his negotiated plea light accepted сourt should have whether seriousness rejected course, if the crime. Of court should of his admitted plea bargain, no make it in the then the had first instance. which there is otherwise no a conviction to achieve order evidence. sufficient cause, assigned other errors well not Upon retrial of context, comparable and are therefore not factual in a reoccur considered. and remanded.
Reversed J., J., Thompson,
Batjer, concur. C. J., Mowbray, J., dissenting, with whom Manoukian, joins: expressed by majority with the views in aсcord acquiesce I am not majority The effect of the in the reversal. cannot prose- a third the State decide to institute opinion is that should cooperation hope appellant, for the continued it must
cution
gratuitous
the framework of
limita-
Swift within
majority proscribing
prior
of his
use
forth
tions set
testimony
view,
my
unnecessarily,
expend,
sub-
and further
again
protracted
public
trial in an effort to
funds
stantial
prove appellant’s
guilt.
charges
premised upon
Essentially, appellant
error
fаct
*7
slayer,
permitted
plead
Swift,
was
the admitted
exchange
second-degree
for
charge
murder in
plea
permitted only after his testi-
against
that such
was
her and
Medina,
People
Cal.Rptr.
116
Appellant
v.
133
fying.
cites
prosecutorial
proposition
1974),
that such
(Cal.App.
for the
process.
how-
to due
violate a defendant’s
tactics
ever,
easily distinguishable
There the witness
from our facts.
express
immunity on the
condition that
granted absolute
was
prior
precisely
with the
testify
in accordance
he
context,
appeals
district court of
police. In that
fair trial if
justifiably
that “a defendant is denied a
held
substantially upon accomplice
depends
testi-
prosecution’s case
by
placed,
prose-
accomplice
mony
witness is
either
and the
testify
court,
strong compulsion to
under the
or the
cution
particular
Id. at 145.
fashion.”
case,
express
was no such
condition com-
there
In the instant
testimony.
majority attempt to
specificrecitation of
pelling
by stating
“[ujnder
compulsion
threat of a death
fabricate
sentence,
ultimately recited a version of events. . . .”
Swift
Appellant
support
speculation
from the record.
is without
Such
equally
threat of a death sentence
instead
was under
attempt
imprisonment.
This Court should
life
received
length
incarceration the Parole Commission
gauge poten-
might set for Swift. He is
authorities
correctional
imprisoned
there
no basis to contend
tially
for life and
exists
228
disproportion-
and Swift were so
of Franklin
sentences
process.
at such violation of
the conscience
ate as to shock
Sheriff,
person’s
surrounding
Examination of the cases cited
the crime.
clearly distinguishable
Each
majority
on their facts.
finds them
expungment
absolute
or ultimate
either
involved
negotiated
See,
Green,
testimony.
e.g., People
promised
v.
bargain
expеc-
(1951). The existence of the
or the
United jury, emphasized bargain disclosed to the on full cross-examination, argued as an issue of credi subject ultimately jury bility, Dar instuctions.1 Cf. Diaz-Rosendo, States, den, supra; supra; Minkin v. United Marchese, 1967); F.2d (9th Cir. United States v. F.2d 1965). (9th Cir. unimpressed in factual remain context that use of I accomplice unpled and unsentenced offered process. deprives of due Neither am I here dis- a defendant technicality proce- yet posed аnother in criminal to establish jurisprudence, unknown to Nevada criminal dure hitherto *8 determining accomplice accomplice part: 15 read in “In whether No. 1Instruction corroborated, testimony you assume the must first been has has been remaining any there You must then determine whether removed from the case. the defendant with the commission which tends to connect evidence independent evidence which tends to connect is not such crime. If there of the the offense, testimony of the acсom the commission of the defendant with plice corroborated.” is not corroboration, part: “Apart it from the issue No. read Instruction accomplice ought of an to be viewed that the further the law is suspicion disregard you may arbitrarily not mean that This does and caution. give weight you you testimony, find it to be to it the such entitled light examining and caution and in the of all the it with care after in the case.” evidence particularly where the so sentence of the defendant and the disparate, аre not too of the accom- plice sufficiently supported by credible and other substantial especially glean evidence. This is true in view of what I from Legislature’s then intent to treat the initiator of a contract willful, deliberate, premeditated, in such and vicious homicides primarily culpable. as testimony given early Swift’s preliminary as as the exam- throughout proceedings, trial, ination and quite including all was prior consistent and tape reiteration of his video police statements made tо the prior person at least one other initially given to his arrest. The police to the preceded any by offer of concessions the authorities.2 This tes- timony thereby high degree credibility. achieved a young appellant provided The two children of corrob- supporting testimony. evidence orative Swift’s Not did testimony parallel facts, their Swift’s version of the but the markedly sharp combined of all three witnesses was appellant’s discrepant Appellant in contrast statements. originally police home, told that someone had broken into the although entry. there was no indication of a forced She stated any had no yelling that she seen one nor had she heard scuffling in the kitchen where her husband was murdered. Later, officers, presence police neighbor she told a by
her husband was stabbed the black man who had been “hanging days. ques- around” the house several When statement, police about tioned edge her she denied knowl- man, although employers of the black Swift’s testified phоne he received a number of calls after the homicide identifying Wellman,” an adult female herself as “Mrs. appellant’s then name. children, however, night
Her testified that on the of the mur- man came to the appellant der a black home and talked with going into the kitchen to kill before their father. The children following exchange 2During Deputy Attorney between District and witness Swift occurred. Root Examination Mr. Root: Direct negotiations you what if in fact were the And entered between “Q. Beatty, your attorney, Attоrney’s through and the District Mr. office? A. ... you gave tape statement; done after the video But that was was it not? Q. Yes, A. sir. statement, you tape basically you did relate In the video what Q. jury today? related to the Basically, yes, sir. A. Now, you give police time did that video statement at the to the here in Q. Vegas, any promises you? made to had Las sir, No, promises.” no A.
230 emanating fighting they sounds heard that testified further help calling from for father their heard and kitchen go assist- render they wanted They that stated mother. their couсh them on the appellant held but that father their ance black saw the children television. watch continued their that testified door through front leave man denial, appellant adamant police. After called mother fabricated Swift. Such acquaintance with eventually admitted may corrobora- constitute contradictory alone 1954); (Cal. Santo, 249 P.2d 273 People v. evidence. tive 1954). (Cal. P.2d Simpson, 275 People v. evidence, still, my brethren this substantial with Confronted IWhile process was offended. apрellant’s (cid:127)feel that accept a majority “a court that agree here public not serve would guilty which plea of negotiated interest,” however, public, interests of best it seems one, merely than coconspirators rather two to convict possibly “jus- assuring etiquette, Prosecutorial at all. none nothing less. 181(3), demand done,” SCR tice 1187, 1190(1976), 6,1, State, 544P.2d Nev. LaPenav. In “participation accomplice’s although the held this Court charge than serious a more warranted crimes in second-degreе Thus, permissible.” murder, bargaining is legisla- permissible generally “[u]ntil are grants of 6, See 544 P.2d Id. forbidden.” tively otherwise] [or is not York, This U.S. 257 New also, v. Santobello case, no I observe instant prohibition. for such case the compulsion negotiation testimony effected rehearsed however, caution, hasten I no consequently error. find cogent than are less in future cases if circumstances Court, hesitate I would presently before those time, conven- despite considerations new trial remand or evidence. unavailability of witnesses ience, expense, and judgment of conviction. affirm I would CARL THE HONORABLE DINITZ, Petitioner, LINDA JUDGE, JUDI EIGHTH CHRISTENSEN, DISTRICT COURT, Respondent. DISTRICT CIAL
No. 9849 P.2d 873 April