*1 above, specified For the reasons special and with emphasis on that the fact record no provides basis evidentiary for imposing punitive malice, damages based actual I respectfully dis- sent.
SHERIFF, COUNTY, NEVADA, Appellant, HUMBOLDT Respondent. ACUNA, v. RAUL
No. 21507
October
Moreover,
Id.
by referring judge court who of a district followed this concerning pronouncemеnts proving methods of erroneous actual court’s malice. *2 McCormick, Griffy, R. Michael and Robert Attorney, District Humboldt Attorney, County, Appellant. District Deputy Evans, Reno, Donald York Respondent.
OPINION Court, Steffen, J.: By the Raul Acuna
Respondent allegedly sold cocaine to an individual his own who was motivated criminal involvement with the law The cooperate police. alleged with transaction was moni- electronically tored and Acuna was arrested and with charged selling controlled substance. After a preliminary hearing, Acuna filed a for a writ of habeas pretrial petition corpus based of this court’s holding an asserted violation Franklin v. upon (1978). The Nev. district court Franklin was agreed dispositive issued writ. Having reevaluated the Franklin rule and concluded that it should not be without determining further we reverse whether the perpetuated, a violation of the Franklin stand- erred in finding district court ard.1 issuance, completed, prior but to its оpinion 1Since this the 1991 essentially abrogated
Legislature legislation which the Franklin enacted rule. Chapter 175 of the Nevada Revised Statutes. See
FACTS Crawford, individual” who was work- “cooperating Phillip Brown, an investigator Tri-County W. Kent ing with Force, he had arranged buy Task told Brown that Narcotics alleged The transaction of cocaine Acuna. quantity small lot in the Winnemucca area and was parking at a occurred of an by police through listening means electronic monitored 11, 1990, Acuna person. April carried on Crawford’s On device with a controlled substance. The charged selling was arrested month, hearing, Acuna filed a preliminary after following a writ of habeas based a viola- pretrial petition corpus arising arrangement tion of the Franklin rule out State’s Crawford. hearing Acuna contended that because petition, At the on been yet formally charged had not as and was allоwed Crawford Crawford was under guilty plea, compulsion to enter a Acuna in a manner. particular opposed against rule applied only that the Franklin to an petition ground on Crawford did not fit in that category. accomplice *3 ruling State’s Franklin rejected position, district court the that accomplice testimony.2 petition not limited to Thereafter the was appealed. and State granted the
DISCUSSION in was a ruling Our Franklin takeoff from the case of v. People Medina, 1974). 438 (Cal.Ct.App. The Medina Cal.App.3d Franklin, held, in “that quoted court and we so a defendant is depends substantially denied a fair trial if the case prosecution’s testimony and the is either accomplice accomplice placed, court, the under a strong the to by prosecution compulsion However, Id. in a fashion.” at 145. the Franklin testify particular the Medina substantially expanded by condemning court through from witness testimony the use of secured means of an we stated executory plea bargain. Specifically, applica- the Medina rationale tion of solely to
may immunity limited situations where is specific testimony. conditioned on As a matter of expressly of bargain if the circumstances the would reason- logic, plea believe alleged cause the to he must ably accomplice fashion, then a less also particular explicit arrangement process rights. due violates defendant’s to Franklin rule was not limited court that the agree with the district 2We all Perjury a serious concern with by accomplices. remains testimony offered willing exchange for testimony in return potential witnesses who State. leniency considerations 223-24, P.2d at 862. We thereafter at 94 Nev. concluded defend- bargaining specific implicate
[b]y ant, until after withholding bargain benefits becomes com- prosеcution witness has performed, possibly to a inconsistent with truth theory quite mitted deem this contrary public for truth. We search sense justice. and to due policy, process, 225-26, at 863. The concern thus expressed at 577 P.2d Id. inherent in reliability was the lack of an majority
Franklin must simultaneously pur- “the prosecutor where arrangement . to obtain a conviction . . .” coerce order chase and 225, 577 at 863. at P.2d Id. not to zeal in seeking Franklin court is be criticized
The truth-seeking objective of a criminal and protect to promote Indeed, be consistently never attained justice may criminal trial. We nevertheless conclude that our rather expense at the of truth. truth, Franklin rule is of limited benefit the search isolated tend to frustrate truth and create incentives that it in fact constraints, above, noted trial. Franklin dissembling at the incentives of defendant and State nothing do restrain advantageous deemed to both. The bаrgains consummate State vulnerable understandably persons desires in bringing be of assistance other malefac- that will prosecution are also motivated to justice. persons tors to Such ensue as a result of consequences to ease the their order set, thus potentially, criminal at least stage own conduct. individual to informa- cooperating provide for the or more to the of one other defendants in helpful proseсution tion his own criminal exchange leniency concerning for some form involvement. vulnerable criminal prosecution
We realize that persons as dissemble an inducement for more favorable have incentives to *4 that during It is thus clear at least the by the State. treatment or other for stages plea bargain arrangements of a negotiating that he provide witness will information or leniency, potential the prosecution be to the in thе of one to of value or she deems We that involved must assume criminally persons. more other veracity of the information and will evaluate prosecutor if there testimony only the form of trial is a use in bargain In no that information reliable. event concluding basis for enter agreements to into expect prosecutors would we our testimony.3 perjured any arrangement seriously 3Obviously, would view most this court calling prosecutor a known or pоtential witness and
between a Moreover, proposition we view as unrealistic the that with- bargain the benefit of the until after the holding promisee testifies theory may commit the to a that be prosecution tends to inconsis- It with truth or the search for truth. is difficult to envision a tent to trial without proceeding having care- responsible prosecutor or fully plan strategy designed prove a trial the truth developed Indeed, which the is based. theory upon prosecution of a State, (1983), Barren v. Nev. we stated that might well desire the “[ajlthough any prosecutor luxury hav- theories, to reveal or her an his basic factual ing option will, right change theory wish for the of a case at such with notions of due practices hardly comport accepted process.” clear, therefore, P.2d at It seems that Id. at 729. one of prosecutor the few instances when a could improperly adhere to a theory during factual trial would be predetermined where the is based prosecution upon perjured testimony knowingly bar- case, securing for as a means of a conviction. In the latter gained arises from the problem prosecutor’s dishonesty and lack of withholding ethics as to the of benefits until opposed after the witness testifies. the benefit provide bargain
If the State is required trial, to the time the testifies at the State’s prior promiseе expecta- be frustrated an uncooperative “forgetful” tions wit- true, it is as observed the court in Although ness. bargain the benefit of the until after the withholding promisee manner, pressure particular testifies create a it expect would be neither realistic nor fair to the State to enter into without assurances that the trial bargain promisee’s with the information he or she provided would be consistent We are leniency. simply unwilling as basis prosеcutors assume, upon, and therefore base rule of law the proposition will sit down with vulnerable prosecutors persons that our testifying perjuriously. and commit them to If the prosecution information, true seeking have person purports concludes that such information is reliable and the State would other persons, of assistance in return for prosecuting have leniency, every right expect commitment of would would be essentially trial cоnsistent promisee’s promise information which State’s original reneges If the on the commitment to promisee provide induced. trial the State will be free to truthful and consistent bargain. from the withdraw strongly suspected by prosecutor arrangement to be false. Such an would alia, violate, clearly professional inter the rules of conduct and would imposition stringent discipline.
therefore constitute a basis for the *5 trial specific testimony, bargaining We now conclude that i.e., essentiаlly is with the information that consistent testimony with during negotiations be true the factually represented the bargain of the until after witness withholding the benefits and testified, the search for truth or due not inconsistent with has is However, we that our does not counte- emphasize ruling process. a testimony conforming predetermined a bargain nance contingent the leniency or or other consideration script when only a conviction. We hold that our obtaining prose- State good testimony in faith for to be bargain represented cutors accurate, it a of due or factually process public is not violation of the bargain the benefit the until after witness withhold policy testifies.
Although executory agreements we have concluded that plea law, under we are the acceptable Nevada not unmindful of are by persons seeking concocted danger posed by perjured in with their own criminаl prob- lenient treatment connection We noted that the State enter already properly lems. have witness arrangements putative persuasively into when the plea a willingness have truthful information value and professes trial. relate such information at The less than remote accurately however, remains, of the State’s recipient possibility or her and will it at has fabricated his information promise repeat have, a Courts аcross the land part, sought trial as perjurer. by at the requiring with incentive to commit trial perjury
deal the bargain the to which testi- baring aspects pursuant all result, it generally is As is determined that mony given. only weight, concern not the bargain of the State’s and
terms of the admissibility with the we now embrace the rule foregoing, In accordance courts, federal and in both state and hold
generally prevailing exchange the State for a wit- promised consideration weight affects accorded the ness’s Second, not we also hold that admissibility. so that it particularized amounts
following testimony produce specific or script, require pro fully of the must be Finally, quid quo terms result. the defendant his counsel must jury, disclosed to concerning witness the terms fully cross-examine the allowed to given cautionary must be instruc- jury bargain, tion.4 opinion adequately this will adopted that the rule 4We confident Therefore,
safeguard right to a fair trial. extent that a defendant’s case, our instant Franklin is Franklin inconsistent overruled. In we have concluded that it reevaluating is both fair general Nevada with the rule of law prudent align prevail- *6 illustration, jurisdictions. By way in other of ing Wisconsin of referred to the rule which we Appeals Court now as adopt follows: testimony
The of an in accomplice, given exchange for inducements by prosecution, concessions or is generally where the “еstablished safeguards” admissible disclo- —full for bargain, opportunity sure of the cross-examination and the jury instructions to adequate present. United States —are 192, (1st 1985). Dailey, v. 759 F.2d 196 Cir. Any concern credibility reliability over the and of such testimony is said by allowing jury to be satisfied evaluate the accom- cross-examination, by tested plice’s light of any full disclosure of plea agreements careful instruc- court. Id. at by tions the trial 198-200. Nerison, 128, 1986).
State v.
387 N.W.2d
130 (Wis.App.
Burchett,
(Neb. 1986),
In State v.
Generally,
proseсution has bargained
result,
or a
specific testimony,
specific
for false or
that an
testimony is so tainted as to
accomplice’s
require
preclu-
Librach,
(8th
sion. United States v.
addressed in
concluded that plea
exchange
testimony
consummated in
bargains
unaccept-
testimony
able
where “thе
must be confined to a predeter-
result,
produce
given
mined formulation” or must
“a
that is to
Garrison,
(Cal.
say, a conviction.”
v.
765 P.2d
428
People
Meza,
1989)
v.
116
(quoting People
Cal.App.3d
(1981)). The Garrison
is reflective of
holding
what
to be
appears
disavowing plea bargains
a national consensus
exchange
testimony only
bargain compels
provide
where
witness to
See,
Dailey,
v.
e.g., United States
particularized
Nerison,
(Wis.
1985);
v.
provide gener- the courts condemned disinformation. must court in that which particular, and now this ally, script of its according predetermined irrespective played *7 must that he not free to The witness understand truthfulness. not be bargain may based plea commit perjury, testimony. fаlse court, hearing before the district established In testify not under a to placed compulsion Crawford was and dubious facts. Of particularized, according preformulated, course, that the State was privy was aware of fact Crawford testify, he would concerning which the transaction known, would true facts result a loss deviation from receive from State. He was never- he expected concessions in accordance with a cоmpulsion no theless under any way or in truth. Craw- script contrary manufactured with the State him truthful agreement compelled ford’s testimony. in his the district court’s order ruling, granting of our
In view corpus of habeas is reversed and the for writ petition Acuna’s further proceedings. is remanded for case J.,5 J., and D. concur. C. Agosti,
Mowbray, Rose, J., J., with whom agrees, concurring: Springer, I am in the reached concurring majority result I because law do think conduct of the enforcement officers violated granting the Franklin rule. writ of habeas corpus be reversed on that basis rather than overruling should the Frank- lin decision. Agosti, Judge District, 5The Deborah Honorable A. of the Second Judicial designated by place
was
Young,
the Governor to sit
of The Honorable Cliff
Const.,
6,
Justice. Nev.
art.
§ 4.
In Franklin v.
(1978),
94 Nev.
The State attempts distinguish this case from Franklin by arguing that the Franklin rule should be limited to accomplice However, testimony and not to other informants. informant testi- mony presents the same reliability concerns as accomplice testi- mony. Logic and our dicta in State Claiborne, Bar of Nevada v. (1988), Nev. would indicate that the Franklin rule should apply to informant as well as accomplice testimony. case,
In this law enforcement bargained for Crawford’s coop- eration, not his agreement was that Crawford Acuna, would attempt purchase drugs and law enforce- ment would then recommend that Crawford receive probation for his involvement in a prior drug sale. Crawford then made a controlled purchase marijuana from Acuna. Since this transac- monitored, tion with Acuna was there is a minimum chance of Crawford’s against fabrication for or law enforcement. Crawford then testified at trial purchase about this from Acuna.
While it is true that the agreement with Crawford was execu- to the tory extent that he had not been charged with or sentenced any felony, I do not believe this transaction violated Franklin. *8 First, it a bargain was for cooperation, not testimony. When the struck, bargain was there for, was no since Second, the transaction had not even occurred. there is no sug- gestion that Crawford was obligated to any particular And, manner. since the transaction Crawford testified about was monitored, closely there is minimum chance of fabrication. For reasons, these I do not believe such testimony would be prohib- ited our prior ruling Franklin. The majority elects to overrule rather than decide the on case this basis or limit the Franklin ruling tо accomplice testimony, even has though nothing transpired to diminish the concern the reliability of this type testimony since Franklin
673 fact, was decided in In many 1978. situations have come light our justify suspicions. For in the example, celebrated case of White, Leslie Vernon the Los Angeles district attorney’s office found itself in a difficult situation. White admitted that he fre- quently lied on the witness stand when testifying jailhouse as a informant, which resulted in the convictions of many pоssibly innocent Such are people.1 revelations all too frequent and con- firm our concern about accomplice informant “When a rule of law settled, has once been 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 Zgombic interests.” v. 106 Nev. 571, 580, 548, (1990) (Justice 798 P.2d Steffen, dissent- Frelk, ing, quoting 445, Maki v. (Ill. N.E.2d 1968)). I see no compelling reason to overrule Franklin rather than limit its applicability some situations. The Franklin rule recently has been changed by legislation. See Chapter 175 of the Nevada However, Revised Statutes. we should avoid overturning long fiat, standing decision by judicial without compelling reason. decade, past 1Over the against Leslie White has testified at least a dozen California whom guilt However, inmates he claimed confessed their to him. he later disclosed that at leаst some of the passed information he on to nothing lawmen easy but lies. He demonstrated how it is for a “snitch” simply by using concoct a false confession telephone prison in the bondsman, chaplain’s Identifying office. himself a bail as White called the got sheriff’s document-control center and an accused murderer’s case number Then, bureau, date of arrest. he attorney’s called the district records identifying deputy attorney himself as a district tо obtain names of witnesses prosecutors handling and the the case. In order to obtain details of the murder, White called the coroner’s office and told them police he was a officer. falsely After he testified about a damaging confession or admission made jail by in learned, the defendant which would be consistent with the facts he had special White privileges, including early would receive release from frequent prison his terms. As a result of White’s revelations fabricated Angeles having Los to review more than 130 past cases from the years possible Story, ten Magazine, 12, taint. A Snitch's Time December 1988. Furthermore, there is some indication that frequently informants more weak, therefore, used when a case is convicting the risk of innocent people is increased. Use Angeles, Jailhouse Reviewed in Los Informers Times, January New York people 1989. Of the 225 convicted of murder and other felonies as a jailhouse result of Mr. White and other informers’ years Angeles, over the last 10 in Los 30 are on death row. Times, Informer, Shaken over an February New York 1989. California