*1 104 technolog- ing rape supporting without establish that there did not
Appellant evidence, and he asserts that he is to be ical relevant evidence potentially was discovered, actually charges. innocent of the It is not that counsel could have admit, postconvic- suitably compel- denying that was clear from the order sought to highly prejudi- ruling appellant overcome its tion relief that received a ling so as to value, through strong probative trial error. allegation cial nature on this issue as an of 42—101(c) Appel- requires. as section to obtain a appellant obligation An has 16— meet his burden as lant did not therefore ruling any preserved on issue to be State, showing prejudice. to a of v. 2009 Ark. appeal. Johnson 74. 344 S.W.3d he appellant’s point, In second event, led the vic prosecution that the any appellant’s contends In claim testimony throughout engaged tim her challenge sufficiency a direct of of prosecutorial misconduct. Claims cognizable the evidence and is not in Rule State, cogniza are not prosecutorial misconduct v. proceedings. 37.1 See Sanford (2000) v. proceedings. ble in Rule 37.1 Howard Ark. 25 414 342 S.W.3d (2006). State, State, 24 Ark. 367 Ark. 765 298 O’Rourke (1989) curiam)). be con appellant’s argument Even if could (per Appel 916 S.W.2d claim that counsel was ineffec strued as a due-process lant’s of violations assertions failing object leading ques tive for allegations trial error that are likewise of tions, leading the trial court found few have been raised at trial or on could were asked and those asked did questions pro in Rule may not be raised 37.1 Viveros, 4-5, new information to the victim suggest not Ark. ceedings. already not elicited. 3681672. To the extent 2009 WL may have framed this issue as a appellant Leading questions may be asked assistance, question |inof ineffective develop on direct examination to testi preceding were in the claims addressed mony, and not barred where bare appeal. on Because we find no points suggest particular an question does postcon- of error in the trial court’s denial Ark. swer. Moore v. relief, viction we affirm. 611(c) (2005); R. Ark. Evid. Affirmed. (2009). practice examining a child taking through leading questions, witness shyness age
into consideration witness, approved by has been being
court as within the sound discretion judge. trial Jackson (1986). Appel Arkansas, Appellant, STATE objection that an lant did not demonstrate prosecution that the lead on the basis JOHNSON, Appellee. Michael Jason have had merit under the cir ing would The trial court did not cumstances here. No. 09-644. CR clearly finding that counsel was not err Supreme of Arkansas. Court ineffective on this issue. Feb. point ap final appellant’s alleges error in that the trial court peal, testimony
allowed introduction of concern-
cuit court with Johnson that he had complied with and relied on prose- the terms of an with the *3 charges exchange cutor to divert his for obtaining psychiatric certain results on a so, doing rejected evaluation. the court argument specific perform- the State’s that appro- ance of the not an was priate remedy. The State’s tak- pursuant R.App. en to Ark. 3. P.-Crim. Johnson was arrested on October violating for Arkansas Code Annotat- (Repl.2006), ed section 5-27-602 which distribute, felony knowingly makes it a sexually or view possess, depicting matter explicit involving conduct a child. Before filed, felony information deputy was prosecutor, Armstrong, Mike made of- |2that, fer to Johnson if Johnson would obtain a mental evaluation and the results showed Johnson did not have charac- pedophile, teristics of a the State would “divert” the case.1 $300.00, expense At his own Johnson psychiatric underwent a evaluation with Dr. January Robin Ross on 2008. Dr. report Ross’s person- examined Johnson’s al, medical, psychiatric, and social histo- ries, legal history, as well as his which legal indicated that he had never been in charges. trouble before the current Based McDaniel, Gen., Att’y by: Dustin Debo- evaluation, on her Dr. Ross concluded that Gore, Gen., Att’y ap- rah Nolan Ass’t for give history Johnson did not that would pellant. pedophile. be consistent with the traits of a Firm,
Lingle by: Law Lingle, James G. evaluation, Despite this re- and before Rogers, appellee. results, viewing Armstrong its informed that the offer being Johnson revoked. WILLS, ELANA CUNNINGHAM that, Armstrong asserted at the time the Justice. made, offer had been he had not reviewed brings ap- allegedly State of Arkansas the material on Johnson’s com- liThe peal County puter from an order of the Benton and would not have made the offer if material. dismissing Circuit Court had known the nature of the against appellee felony Jason Johnson. The cir- A information was filed on Febru- Although parties stipulated explain to the under- what such a "diversion” would have lying they facts of this do not entailed. tor, IB, 2008, deal, fulfilled charging Johnson with know- ary terms of the and now images viewing renege video wants ingly possessing after ac- sexually engaging performance.” children depicted ceptance explicit conduct. The court further found Johnson filed a On October Johnson had relied on the State’s of- pros- motion to enforce the $300.00, fer: finding “I’m going for an ecution offered.2 In his motion had earlier evaluation, submitting the evaluation and thereof, support as- and brief Johnson everything he said to [psychiatrist], prosecutor’s agreement serted Rthat *4 complete waiver of his Fifth Amendment en- specifically divert his case should be | .(detrimental.” rights, all that’s The court relied on detrimentally forced because concluded, deal, “The prosecutor made a promise. re- prosecutor’s the The State going Now, and they’re up to live to it. sponded the circuit court should my ruling, grant that is and I am going prelimi- order enforcement of a specific the relief equitable by dismissing these nary offer the court had never because charges.”3 offer, and failed accepted the Johnson had preju- that he to demonstrate had been The circuit court an order entered of by of The diced the withdrawal the offer. 17, 2009, on finding dismissal March that, even if State noted the court found ordering specifi- Johnson’s “motion by that the statements made Johnson to cally enforce the offer of is grant- the state prejudicial, Dr. Ross were the rem- proper the ed because defendant re- edy would be exclude the statements lied on the State’s offer.” State The filed from the trial. a timely appeal April notice of on 2009. hearing
The circuit court held a
on
Johnson’s motion to enforce
addressing
the
Before
the merits of
14, 2008,
case,
on November
at which time the
this
the court must first determine
parties stipulated to the above facts. The whether this issue is properly before us
advisement,
court took the motion under
under
3 of the
Rule
Arkansas Rules of
filed
parties
supplemental
Appellate
prin
and the
briefs
The
Procedure-Criminal.
on
enforcing
ciples governing
appeals
the issue of
the
our
of
acceptance
arguments
After
in
hearing
from the State
the State
criminal eases are well
hearing
and the defense at a later
on
is
ability
established:
State’s
rather,
court,
February
relying
right;
the circuit
of
it is
not a matter
limited
under
Hammers
261 Ark.
to those cases described
Ark.
3;
R.App.
Crawford,
“[a]
S.W.2d 432
concluded that
deal
P.-Crim.
State v.
(2008);
made,
State v.
defendant
followed
S.W.3d 736
Joslin,
through,” and
therefore
was “a
364 Ark.
On argued Caldwell that he was upon based agreement and ab- entitled to specific performance sent a showing of other detrimental reli- rejected This court argu- upon ance the agreement, Caldwell was ment, noting majority jurisdic- that the not entitled to enforcement of it. tions to consider a similar question had concluded that “if the defendant has not Id.
pleaded
relied
present
the State relies on
*6
agreement, the state is free to withdraw.” Caldwell v. State and cases from other
151,
Id. at
747
101
jurisdictions
that a
holding
defendant must
Edwards,
(Iowa 1979),
v.
not entitled to
a crime
rather than face
plea agreement
part
unless
of an extended trial and a
prospects
^fulfills
bargain;
entering
of the
it is the act of
a
severity
of undetermined
punishment
waiving
convicted,
certain
guilty plea
thereby
plead guilty
decides to
guarantees in reliance on the
constitutional
charges mutually acceptable to him and
the concomi
plea agreement
triggers
prosecutor.”
Id. at
514 N.W.2d at
responsibility
part
pros
tant
on the
of the
(quoting
361
United States Minnesota
bargain.).
honor
ecutor to
his side
Co.,
1106, 1111-12
Mfg.
Min. &
551 F.2d
(8th Cir.1977)).
cases,
In such
the trial
The State’s reliance on these cases is
or
a
accept
reject
court has discretion to
misplaced, however. The critical feature
Mucci,
plea agreement. See State v.
Caldwell,
distinguishes
and the
supra,
493, 498,
App.3d
Ohio
782 N.E.2d
by
present
cases cited
State from
(2002). Generally,
plea bargain may
fact
case is the
that the instant case does
only
accepted
be enforced after it has been
plea agreement
not involve a
entered into
court;
point,
until that
neither the
after the defendant
charged
with a
nor the
defendant
State is bound
Instead,
crime.
this case involves an offer
Mabry
As stated in
v. John
or dismiss the
that was
divert
son,
U.S.
S.Ct.
before the
extended
State ever filed a felo-
(1984), plea bargain
“stand
L.Ed.2d
ny
against
information
An
Johnson.
ing alone is
signifi
without constitutional
prosecute,
while in some
cance;
executory
in itself it is a mere
offer,
respects analogous
plea
quite
to a
which,
until embodied
explained
Lampkins
different. As
judgment
deprive
of a
does not
an
Commonwealth,
VaApp.
liberty
any
accused of
other constitu
exchange
coopera-
S.E.2d 722
tionally protected interest.”
See also
immunity
tion
either
or an
26.1(a) (A
may
P.
with
R.Crim.
defendant
not to prosecute
“is different from a
*7
plea
draw his or her
of
or nolo
in that
bargain
it can never be formalized
right
contendere as a matter of
before it
plea
guilty.
contrary,
a
of
On the
the
court.);
accepted by
has been
Caldwell
very
agreement
prom-
nature of the
is the
State,
151-52,
v.
HI
privilege against
Fifth Amendment
self-
unviolability
of which
incrimination,
may,
court
a circuit
a wit
rested completely
province
in the
of the
testify
compliance
government
ness refuses to
prosecutors, who have the
agreement, compel
power
such an
witness’s
sole
and responsibility to institute
Mucci, 150
testimony.
App.3d
Ohio
at
criminal proceedings.” United States v.
498,
Co.,
A cooperation agreement
appellant
somewhat
on which
Johnson
analogous
agreement
defendant,
to a plea
except
relies.
In that
the
Pame-
“prosecutorial
Hammers,
is a
charged,
former
la
along
with
on,
apply
4. Other courts have refused to
contract
704 P.2d
Doe
at 435. The
court went
principles
agreements
prosecutors
however,
to
between
agreements
pros-
to note that
Doe,
and
defendants.
In
103 N.M.
"may
they
duly
ecute
be
if
enforced
are
con-
704 P.2d 432
the New Mexico
comply
requirements
summated and
Supreme
impose principles
Court declined to
process,”
drawing upon "gen-
of due
and also
plea-bargaining
process
contract
equitable principles.”
eral
Id.
Ham-
principles,
because
borrowed from
''[s]uch
mers v.
550 S.W.2d
world,
inapposite
are
commercial
to the
(1977)).
Doe,
justice.”
ends of criminal
103 N.M. at
court
noted that
prose-
appeal,
On
first
with murder. The
Stephens,
James
no evidence that Hammers had
there was
Ham-
reached a deal with
cuting attorney
good
not acted in
faith or that she had
testify against
whereby she was to
mers
anything
ready
willing
than
and
been
less
trial,
though
even
it meant
at his
Stephens
testify against Stephens.
to
Id. at
against self-incrimi-
waiving
privilege
her
pointed
at 435-36. The court also
exchange,
prosecutor
nation.
“immunity
into
agreement”
out that
grant
and
prosequi
to enter a nolle
agreed
entered
which Hammers and the State had
immunity
from the
her
total
any statutory authority
was not based
In accordance with that
against her.
court,
approved by
and not
and there-
gave
Hammers
a detailed
fore,
“only
equitable,
legal,
she had
an
pre-
about the crime and was
statement
immunity mercy.”
or
Id. at
right to
rights against
to
her
self-
pared
waive
at 436-37. The court contin-
tri-
testify
Stephens’s
and
at
incrimination
follows:
ued as
591-92,
at
H3
equitable
right
have an
claim or
to mer-
homicide.
pretrial
Wacker filed a
motion
cy in
to compel
some form.
amendment of the information
to the lesser charge, but the circuit court
(internal
595-96,
yd. at
at 437
motion,
denied his
finding that the State
omitted).
citations
had offered a plea agreement and that
that,
This court noted
because Ham-
Wacker had not pleaded to anything. The
agreement
prosecuting
mers’s
with the
at-
find, however,
trial court did
that Wacker
torney
statutory grant
was not a
of immu-
had made the statement in reliance on the
nity
approved by
and had not been
agreed
offer and
to suppress the confes-
trial
her claim had to be “viewed as
Wacker,
790-91,
sion.
268 Neb. at
equitable principles.”
one to relief on
Id.
N.W.2d at 361.
Accordingly,
at
114 agreement prospective majority appear with a While the of cases to
into an
lis
require
coop
reliance before a
and the
has acted
detrimental
defendant
defendant
enforced,
|
agreement
eration
will be
we
prejudice in reli-
to his detriment 17or
note that there are number of cases that
as a matter of
upon
ance
conduct,
make no mention of detrimental reliance.
government ought to be
fair
State,
example,
For
in Bowers v.
500
an
required to honor such
(Ind.1986),
N.E.2d 203
the Indiana Su
Wacker,
793,
at
at
268 Neb.
N.W.2d
preme
agreement
Court enforced an
added) (quoting from State
(emphasis
in
prosecute,
exchange
offered
for
688,
v.
enforce the
H5 ment, per- spent must have both had on the mental $300.00 the defendant evaluation relied.), detrimentally and made during formed and had statements that eval and compromised 261 Ark. 550 uation that Fifth Hammers his Amend (An prose- privilege. not to ment S.W.2d 482 certain cute can enforced in equitably be urges The State that Johnson’s reliance circumstances.).5 hold that We therefore on the was not his to detriment agree- has where the State entered into because he could be to “pre- restored his prosecute prospective ment not to with a agreement” position by reimbursement of per- the defendant has defendant and by an order precluding the $300.00 prej- to his or formed and acted detriment using any State from statement his at upon that agreement, udice in reliance addition, trial. In argues State that honor government required must be court incorrectly trial concluded that such an agreement. Fifth rights Johnson’s Amendment were case, parties instant implicated In the because that he nothing said stipulated that the State his statement to Dr. Ross was self-inerimi- psychi Therefore, prosecute natory. Johnson he obtained a the State contends atric evaluation that he did not that the trial court finding concluded erred in that pedophile. have characteristics of a There Johnson detrimentally relied question up agreement.6 can that also be no Johnson undergo the agreement by held his end of responds put Johnson that he cannot be ing an infor producing evaluation pre-bargain position simply by into his sought question mation the State. The of his suppression statement trial. Cit- determined, then, whether, left to be ing Minnesota v. 465 U.S. Murphy, so, doing Johnson relied on the 104 S.Ct. 79 409 L.Ed.2d prejudice. to his detriment or that argues the Fifth Amendment not a party only testify of whether question permits against refusal himself, detri “privileges has relied on an to his but also him not See, e.g., questions ment is a of fact. Van to him in question put any answer official Glover, criminal, Dyke v. 326 Ark. S.W.2d proceeding, other civil or formal (1996); informal, Taylor Eagle Ridge might Devel or where the answers in- LLC, opers, App. proceed- Ark. him in criminate future criminal (2000). ings.” argues review the court’s We circuit He that the information See, e.g., psychiatric factual for clear findings provided error. State in his “undone,” Hinojosa evaluation cannot be that 12i knows, circuit per 258. this the State now as his state- Ross, findings court made factual Dr. specific ments to he has downloaded along Johnson had on the intimate de- pornography, relied other that he promise prosecute State’s tails about his life. that, Although suggests
5. the Hammers court did not ex- 6. The also to the extent pressly require any incriminating reli- mention detrimental there were statements Ross, report ance on the we later character- made in the such state- Dr. as, effect, protected privilege applying] ized "in would be Hammers ments estoppel,” doctrine which re- of course afforded under Arkansas Rule Evidence quires presence appear does not the State made of detrimental reliance. It below, McHenry, Dandy, argument accordingly, Foote’s Dixie Inc. v. we do (1980). appeal. it on not consider *12 below, Ark. appeal, pursuant not entitled to an to Moreover, argued as Johnson 3(c). App. have R P.-Criminal likely would been while the State the statement in its using from precluded complied good in faith with the Appellee chief, certainly it could cross-exam- case prose- to forbear terms of the Wacker, In ine him with it. agree- entitled to enforce the cution and is the Nebraska Neb. 688 N.W.2d its terms.1 Detrimental reliance ment on pointed possi- out a similar Supreme Court was not a term of the contract and is in reliance bility a statement made —that Ham- analysis. irrelevant Under a charge poses a of a lesser promise mers, 585, 600, 261 Ark. 550 S.W.2d the defendant if he chooses risk for (1977), is “equita- a criminal defendant “Thus, trial. the statement’s testify at bly entitled to have his or her put cannot suppression [the defendant] if he she prosecutor with the enforced Waelcer,268 Neb. quo.” back in the status faith.” complied good has with its terms at 364. Because mere 688 N.W.2d and as settled law de- Hammers controls necessarily restore suppression would not prives opportunity ap- the State of its position, the pre-bargain Johnson to his peal Appellate under Arkansas Rule of clearly concluding trial court did not err 3 because the correct Procedure-Criminal that he had relied on the to his the law and uniform administration of is detriment. Ark. R.App. not at issue. See P.-Crim. 3(c). argu one final The State raises applies only Detrimental reliance in the
ment, that the trial court had contending binding agreement absence of a with the authority charges pursu no dismiss may permit It a criminal de- prosecutor. Vasquez-Aerreola, ant 327 Ark. to State promise, example, fendant to enforce a for 617, 940 and that such a S.W.2d case, plea negotiations. In that al- violate the separation-of- dismissal would offer, though prosecutor may make an However, doctrine. the State did powers may express the criminal defendant below, argument not raise this and thus we offer, willingness accept binding no it the first time on will not address for agreement can be created between the Grisby, See State v. appeal. the criminal defendant be- prosecutor and (Where (2007) State failed by plea approved cause the must be argument a separation-of-powers to raise circuit court. See Caldwell below, preserved appellate it was not (1988) review.). (“The parties power have no to bind the Affirmed. illusory say it and thus by |gjsuch state is bound HANNAH, CJ., dissents. accep- it before is consummated court.”). guilty plea by of a tance HANNAH, CJ., dissents. such a the criminal defendant must enforce the respectfully dissent. The show detrimental reliance to li>i>I (“[A]bsent Id., 747 at 101 plea. be dismissed because the State is should troubling attempted I find it prosecutor I that the to "re- determined its seriousness. note offer; however, voke” the the offer had been that such an offer was made without careful accepted, and it was too late to revoke it. evidence; however, prosecu- review of the made The offer was before tor is now bound computer on the reviewed the material
H7 showing acceptance of a upon agreement absent a
based show-
ing of other detrimental reliance
agreement, Caldwell was not entitled to it.”).
enforcement of present prosecutor an offer prosecution,
made to forbear
right in way held no See,
involved the e.g., court. Nance v. 583, 595, also, (1996); Pugh, see Gerstein v.
U.S. S.Ct. L.Ed.2d 54
(1975) (noting judicial that there is no re-
view of the prosecute). decision to Once prosecution’s offer accepted,
appellee performed, equitably he was enti-
tled to enforce the on its terms.
Hammers,
439. terms of the require
did not him to show detrimental
reliance. agree
I that the circuit court was correct enforcing contract; the terms of the
however, the appeal issue on was settled in I
Hammers. would hold that the State’s
appeal be dismissed because it was not
entitled to under Rule 3.
Jeffrey BARROWS, Appellant, SMITH, Arkansas,
CITY OF FORT Lindsey, Police,
Kevin Chief of in his Capacity, Appellees.
Official
No. 09-756.
Supreme Court Arkansas.
Feb.