STATE of Wisconsin, Plaintiff-Respondent, v. Alan Wayne RIVEST, Defendant-Appellant.
No. 80-1365-CR
Supreme Court of Wisconsin
Decided March 2, 1982
316 N.W.2d 395
Argued December 3, 1981
For the plaintiff-respondent the cause was argued by David J. Becker, assistant attorney general, with whom on the brief was Bronson C. La Follette, attorney general.
COFFEY, J. This case is before this court on certification from the court of appeals to review an order of the Circuit Court for Racine County, HON. RICHARD G. HARVEY, JR., presiding. The defendant-appellant, Alan Rivest, appeals from an order granting the state‘s motion to vacate a plea agreement entered on February 6, 1979.
On the afternoon of June 5, 1978, Floyd Jensen was murdered and robbed in his gasoline service station in Caledonia, Wisconsin. Shortly after the murder-robbery,
Later that same evening on June 5, 1978, Rivest signed a sworn statement dictated to the police in which he repeated his earlier statement and denied any involvement in the stabbing of Floyd Jensen.
Rivest, a minor, was initially charged with delinquency for the murder and armed robbery of Floyd Jensen in the juvenile court and was subsequently waived into adult court on August 1, 1978. After his waiver into adult court, Rivest was not charged with being a party to first-degree murder. Thomas Finley, the assistant district attorney handling the case, agreed with Rivest and his attorney that the state would withhold the murder charge pending the completion of a final plea agreement. Based upon Rivest‘s prior statements and his investigation, Assistant District Attorney Finley charged Rivest only with the crime of armed robbery on August 3, 1978.
On September 25, 1978, Rivest took a private polygraph examination which indicated that he was truthful in his denial of any participation in the stabbing of Floyd Jensen. The results of the polygraph examination were presented to the assistant district attorney. Subsequent negotiations between Rivest, his attorney and the Assistant District Attorney Finley produced a plea agreement. In the plea agreement, Rivest agreed to (1) plead guilty to a charge of robbery; (2) testify against Rodriguez whenever requested; and (3) pass a second polygraph examination conducted by a party chosen by the district
At a hearing on February 6, 1979, the plea agreement entered into between Rivest and the assistant district attorney was placed on the record and Rivest pled guilty to the crime of robbery, reduced from armed robbery, and was convicted on that plea. Rivest was sentenced to six years in prison and is presently serving that sentence.
On February 19, 1979, Rivest testified at the preliminary hearing of Edward Rodriguez. At the hearing, Rivest testified that he never got near Jensen nor did he come in physical contact with him. He also testified that he ran “straight out across the street” shortly after Rodriguez stabbed Jensen.
Subsequent to Rivest‘s testimony at the preliminary hearing, the district attorney, Dennis Barry, while preparing the Rodriguez murder file, reviewed evidence which he believed directly contradicted both Rivest‘s initial statements to the police and his testimony at the preliminary hearing. This evidence established that there was a three to five minute delay between the time Jensen‘s body was discovered and the time that witnesses saw Rivest and Rodriguez flee the scene together. The evidence also proved that a “herringbone pattern” on the forehead of the victim matched the “herringbone pattern” on Rivest‘s shoes, but not Rodriguez’ shoes. Finally, a State Crime Lab report indicated that the large bloodstains present on Rivest‘s pants and undershorts matched the blood type and factors of Floyd Jensen.
Based upon this evidence, District Attorney Barry interviewed Rivest and confronted him with this evidence. At that interview, Rivest admitted leaving the gas station by a different door than the one he had
District Attorney Barry concluded after the interview that Rivest‘s account of the circumstances surrounding the stabbing were untrue, and that his prior and continued statements and testimony were false and thus, he breached the plea agreement. Based upon this evidence, District Attorney Barry decided not to present Rivest‘s testimony at the Rodriguez trial.
Thereafter, on August 21, 1979, the state filed first-degree murder charges against Rivest. The same day, the defendant secured a writ of habeas corpus from Circuit Judge John C. Ahlgrimm to bar prosecution of the first-degree murder charge. After holding extensive hearings on the matter, Judge Ahlgrimm ruled that before the murder charge could be prosecuted, the state would have to secure an order vacating the plea agreement from the judge who originally approved the plea agreement.
The state then filed a motion before Judge Harvey to vacate and set aside the plea agreement and guilty plea. After hearings and arguments, Judge Harvey entered an order setting aside the plea agreement and guilty plea and authorized the state to continue the prosecution of the murder complaint. The court held that Rivest had fraudulently induced the state to enter into the plea agreement through his false and misleading statements and had materially breached the agreement by giving false testimony at Rodriguez’ preliminary hearing.
The court of appeals granted a permissive appeal from this order, pursuant to
- Did Rivest materially breach the plea agreement entered on February 5, 1979, by giving false testimony at Rodriguez’ preliminary hearing?
- Did Rivest fraudulently induce the state to enter into the plea agreement?
Breach of Plea Agreement
This case raises issues concerning both the standard for setting aside a plea agreement and the procedure to be employed where the state seeks to vacate a plea agreement after a defendant has commenced serving the sentence imposed. These are questions of first impression in Wisconsin, although decisions of several other jurisdictions have established procedures and standards for vacating plea agreements previously approved by a court.
The Supreme Court of Nevada in the decision of Gamble v. State, 604 P.2d 335 (Nev. 1979), summarized the procedure applicable when the state seeks to be released from its obligations under a plea bargain:
“... [W]hen the prosecution contends that it should be released from its obligations under a plea bargain because of an alleged breach of the agreement by the defendant, an evidentiary hearing is required to determine whether the defendant actually breached the agreement, and, if so, whether the breach is sufficiently material to warrant releasing the prosecution from its promises. United States v. Donahey, 529 F.2d 831 (5th Cir. 1976); see also United States v. Nathan, 476 F.2d 456 (2d Cir. 1973).” Id. at 337.
The rationale underlying this requirement of an evidentiary hearing concerning the alleged breach of a plea agreement has been summarized in the following manner:
“On the merits, our view is that in a plea bargain the government‘s obligation to make a recommendation
arises only if defendant performs his obligation (in this instance, full disclosure), but the question whether defendant did in fact fail to perform the condition precedent is an issue not to be finally determined unilaterally by the government, but only on the basis of adequate evidence by the Court which, in accordance with Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed 2d 427 (1971), judicially approved the bargain as meeting governing standards. There would be manifest impropriety in permitting the government, without satisfying a judge that the evidence proves that a defendant broke his promise, to escape from the obligation the government undertook in the plea bargain.” United States v. Simmons, 537 F.2d 1260 (4th Cir. 1976). (Emphasis supplied.)
In the case at bar, several days of hearings were held to establish both the terms of the plea agreement entered into by Alan Rivest and the breach of that agreement before Judge Ahlgrimm in the habeas corpus action. By stipulation of the parties, the transcript of these proceedings and the evidence presented therein were used as the basis for Judge Harvey‘s decision of the state‘s motion to vacate the plea agreement.1 Based upon this testimony and evidence, Judge Harvey, who had initially approved the plea agreement, held that the evidence established beyond a reasonable doubt that Rivest had fraudulently induced the plea agreement and had breached its terms. Thus, we hold that the extensive proceedings before Judge Harvey satisfied the procedural requirement of an evidentiary hearing establishing the grounds for vacating a plea agreement.
We next address the question of the appropriate stan-
“Courts have frequently looked to contract law analogies in determining the rights of defendants aggrieved in the plea negotiation process. See Cooper v. United States, 594 F.2d 12, 15-16 (4th Cir. 1979); Westen & Westin, A Constitutional Law of Remedies for Broken Plea Bargains, 66 Cal. L. Rev. 471, 530 (1978). It is clear that a defendant‘s failure to fulfill the terms of a pretrial agreement relieves the government of its reciprocal obligations under the agreement. United States v. Simmons, 537 F.2d 1260, 1261 (4th Cir. 1976); United States v. Resnick, 483 F.2d 354, 358 (5th Cir.), cert. denied, 414 U.S. 1008, 94 S. Ct. 370, 38 L. Ed. 2d 246 (1973); United States v. Nathan, 476 F.2d 456, 459 (2d Cir.), cert. denied, 414 U.S. 823, 94 S. Ct. 171, 38 L. Ed. 2d 56 (1973).” United States v. Calabrese, 645 F.2d 1379, 1390 (10th Cir. 1981).
While analogies to contract law are important to the determination of questions regarding the effects of a plea bargain, such analogies are not solely determinative of the question as fundamental due process rights are implicated by the plea agreement.
“The analogy to contract law doctrines is not determinative in the area of plea negotiation, however. Because important due process rights are involved, plea negotiations must accord a defendant requisite fairness and be attended by adequate ‘safeguards to insure the defendant what is reasonable [in] the circumstances.’ Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495, 498, 30 L. Ed. 2d 427 (1971); see Cooper v. United States, 594 F.2d 12, 15-20 (4th Cir. 1979).” Id. at 1390.
This is consistent with this court‘s prior recognition that cases concerning the enforcement of plea agreements require the application of the doctrine of due process.
“While none of the cases enforcing the district attorney‘s agreement approach the issue in terms of due process of law, we consider the facts constituting good public policy require the application of the doctrine of due process, which rests upon ‘that whole community sense of “decency and fairness” that has been woven by common experience into the fabric of acceptable conduct.’ Breithaupt v. Abram (1957), 352 U.S. 432, 436, 77 Sup. Ct. 408, 1 L. Ed 2d 448.” Austin v. State, 49 Wis. 2d 727, 736, 183 N.W. 2d 56 (1971).
By analogy to contract law, we conclude that a plea agreement may be vacated where a material and substantial breach of the plea agreement has been proved. To allow a defendant to claim the benefit of an agreement where he, himself, is in default, offends fundamental concepts of honesty, fair play and justice.
We further hold that the constitutional due process requirements of “decency and fairness” are satisfied where the burden is placed upon the party seeking to vacate the agreement to establish both the breach, and that the breach is sufficiently material to warrant releasing the party from its promises (prosecution or defense) before the same judge who accepted the plea, whenever possible.
Our holding that a prosecutor is relieved from the terms of a plea agreement where it is judicially determined that the defendant has materially breached the conditions of the agreement is consistent with numerous decisions in other jurisdictions holding that a party is not bound to a plea agreement where the other party is in substantial default of a material issue. See: United States v. Calabrese, 645 F.2d 1379 (10th Cir. 1981); United States v. Nathan, 476 F.2d 456 (2d Cir. 1973); United States v. Simmons, 537 F.2d 1260 (4th Cir. 1976); United States v. Donahey, 529 F.2d 831 (5th Cir. 1976); Adamson v. Superior Court of Arizona, 125 Ariz. 579, 611 P.2d 932 (Ariz. 1980); Gamble v. State, 604 P.2d 335 (Nev. 1979); People v. Clark, 72 Mich. App. 752, 250 N.W.2d 774 (Mich. Ct. App. 1977).
The trial court, in its decision on the motion to set aside the plea bargain, found that Alan Rivest testified falsely that he had no physical contact with Floyd Jensen as demonstrated in the following excerpt from Rivest‘s testimony at the preliminary hearing:
“Q. Did you ever get near Mr. Jensen? A. No.
“...”
“Q. So I guess you don‘t know if there was blood found on your underwear or not? A. No.
“Q. So you don‘t know if there was any how [sic] it would have gotten there? A. Right.
“...”
“Q. Did you at any time have any physical contact with Mr. Jensen on that date? A. No, sir.”
The judge in his ruling setting aside the plea agreement and guilty plea referred to the medical testimony establishing the presence of blood of a type matching that of Jensen on Rivest‘s clothing and Rivest‘s shoe print on Jensen‘s head in support of these conclusions. The court further found that Rivest had testified falsely concerning both the time and manner in which he fled the gas station. Rivest did not explain the apparent falsity of his statement concerning his exit, physical contact with Jensen and bloodstains on his clothing when interrogated by District Attorney Barry nor has he offered an explanation to date. Finally, the court in its supplemental findings expressly held that one of the conditions of the plea agreement was that Rivest would give truthful testimony at the preliminary hearings and all other proceedings. These were findings of fact made by the trial court and as such they must be upheld by an appellate court unless they are clearly erroneous and against the great weight
The conclusion that the trial court‘s findings are not erroneous nor against the great weight of the evidence is established by the clear, convincing and unrebutted scientific testimony and physical evidence of Jensen‘s blood on Rivest‘s clothing, Rivest‘s shoe print on Jensen‘s head and the testimony concerning Rivest‘s delayed departure from the gas station. The testimony of both Rivest‘s attorney and the prosecutor at the habeas corpus proceeding demonstrates that it was implicit in the plea agreement that Rivest‘s testimony was to be truthful and thus we agree that the trial court‘s finding on that issue is supported by the evidence.
The evidence at the hearings in the habeas corpus action established that Rivest in all probability played a significantly greater role in the murder of Floyd Jensen than he owned up to or testified to and that evidence compels us to hold that Rivest‘s perjured testimony materially breached the plea agreement. Rivest‘s attempts to completely exculpate himself from involvement in the stabbing death of Floyd Jensen, through false testimony, deprived the state of a material and credible witness for use in the prosecution of Rodriguez and, therefore, prevented the state from receiving the benefit it sought when consenting to the plea agreement. Thus, we hold that the trial court was correct in vacating the plea agreement and guilty plea based upon Rivest‘s material breach.
Rivest argues that his inconsistent testimony was not a sufficient breach of the plea agreement to justify the vacation of the agreement. We disagree with this contention. It is ludicrous for the defendant to argue that his perjurous testimony was anything less than a grave and material breach of the plea agreement. It is funda-
The legislature has sought to reinforce the importance of truthful testimony by making the breach of the witness’ oath of truthfulness as to a material fact a felony. Similarly, the ethical rules governing all attorneys forbid the knowing acquiescence in false testimony and in this case required that neither the prosecutor nor defense counsel present Rivest‘s false testimony which was so false and unbelievable as to be useless in prosecuting Rodriguez. The falsity of Rivest‘s testimony, if knowingly used at trial, would have rendered the conduct of the attorney presenting the testimony unethical and illegal.
We note that other courts have found similar instances of incredible testimony sufficient to void plea agreements. In United States v. Eucker, 532 F.2d 249 (2d Cir. 1976), the court held that the prosecutor was not bound by a plea agreement where the defendant gave completely exculpatory testimony after agreeing to cooperate in the prosecution of a co-defendant.
“The Assistant United States Attorney who represented the Government on the trial promised Sloan that if he pleaded guilty and cooperated in the preparation and presentation of the case against Anderson, the Government would ‘go to bat’ for him. Thereafter, Sloan pleaded guilty. However, his cooperation consisted of presenting the prosecution with a version of the facts in
which he attempted to completely exculpate himself from any wrongdoing. Under these circumstances the Government was unwilling to vouch for his credibility and did not call him as a witness. The prosecutor also did not ‘go to bat’ for him, because he did not consider Sloan‘s willingness to testify falsely to be cooperation.” Id. at 256.
Similarly, in the case at bar, Rivest, through his testimony at the preliminary hearing, sought again to completely exculpate himself from any involvement in the stabbing of Jensen in spite of the scientific and physical evidence possessed by the prosecution which directly conflicted with Rivest‘s testimony. As in the case of United States v. Eucker, supra, and the case at bar, it was proper for District Attorney Barry not to use Rivest‘s testimony in the trial of his accomplice, and to consider the plea agreement breached.
In United States v. Donahey, supra, the court relieved the prosecution of the terms of a plea agreement where the defendant gave “evasive and misleading answers,” and answers “which could not be verified after agreeing to fully co-operate in the prosecution of co-defendants.” Id. at 832. Likewise, Rivest‘s testimony at Rodriguez’ preliminary examination was evasive and misleading and to date has not been explained by Rivest.
Rivest finally argues that an alleged delay in seeking a vacation of the plea agreement in the present case violated his constitutional right to due process and requires the reinstatement of the plea agreement. Where a defendant seeks to avoid prosecution based upon prosecutorial delay, it is clear that it must be shown that the defendant has suffered actual prejudice arising from the delay and that the delay arose from an improper motive or purpose such as to gain a tactical advantage over the accused.
“In Lovasco, 431 U.S. at 789, the United States Supreme Court stated that the due process clause ‘has a limited role to play in protecting against oppressive delay.’ However, it rejected the defendant‘s argument that due process precludes prosecution whenever a defendant suffers actual prejudice arising out of preindictment delay. The court explained that actual prejudice may make a due process claim ‘concrete and ripe for adjudication,’ and is a necessary element of such a claim. 431 U.S. at 789-790. Nonetheless, it continued, a defendant must also prove that the government‘s delay in charging arose from an improper motive or purpose such as to gain an unfair “tactical advantage over the accused.“” (Quoting United States v. Marion, 404 U.S. 307, 324 (1971).) 431 U.S. at 795.” State v. Davis, 95 Wis. 2d 55, 58, 288 N.W. 2d 870 (Ct. App. 1980).
Referring to the question of prosecutorial delay, we hold that the tests of “actual prejudice” and “improper motive” as set forth in State v. Davis, supra, are applicable to the case at bar.
Rivest was charged with first-degree murder shortly after the beginning of the Rodriguez trial when it became apparent that he had no interest in changing his prior testimony in order to fulfill the plea bargain by truthfully testifying against Rodriguez. This charge was brought only three months after Rivest was confronted by the district attorney with his false testimony and offered an opportunity to explain his earlier account of the stabbing, which he has not done to date. At the time that the murder charge was issued, Rivest was advised and put on notice that the state no longer believed it was bound by the plea agreement. Any subsequent delay is attributable to both the fact that the defendant challenged the issuance of the first-degree murder complaint and the fact that there was no Wisconsin law clearly outlining the proper procedure to be employed when the state seeks to be relieved of the obligation of a plea
Because we hold that the plea agreement and guilty plea were properly vacated due to the breach of that agreement by the defendant, Alan Rivest, it is not necessary to address the question of whether Rivest fraudulently induced the state to enter into the agreement.
Likewise, we do not deal with the question of the time Rivest has spent in incarceration under the sentence imposed on his earlier guilty plea because the fact that Rivest was committed to incarceration is of no consequence in determining whether the plea bargain or guilty plea should be set aside.
By the Court.—The order of the trial court is affirmed.
SHIRLEY S. ABRAHAMSON, J. (dissenting). I agree with the majority that “the plea agreement is ultimately a constitutional contract.” Westen & Westin, A Constitutional Law of Remedies for Broken Plea Bargains, 66 Calif. L. Rev. 471, 473 (1978). While law guides the court‘s initial analysis of the formation dissolution of plea agreements, there are overriding principles which limit the usefulness of contract law anaysis.
One such principle is the due process rights of the defendant which are implicated in the repudiation of a plea agreement. The state‘s refusal to honor a plea agreement after a guilty plea has been entered may undermine the voluntariness of the plea or may result in fundamental unfairness to the defendant. Santobello v. New York, 404 U.S. 257 (1971); Austin v. State, 49 Wis. 2d 727, 734-736, 183 N.W.2d 56 (1971).1
A second principle is the public‘s interest in the sound and effective administration of the criminal justice system. The public has an interest in seeing that the criminal statutes are enforced; that rights guaranteed by the state and federal constitutions are granted; that there is certainty and finality in guilty pleas; and that prosecutors are held accountable in the performance of their duties.
To vacate the plea agreement in the case at bar, the majority requires the state to prove beyond a reasonable doubt (1) that the defendant committed perjury and (2) that the act of perjury was a substantial and material breach of the plea agreement.2 Accepting this statement of the applicable law, I dissent because I conclude that the evidence in the case at bar is insufficient to support the circuit court‘s finding beyond a reasonable doubt that the defendant committed perjury and because I conclude
While the circuit court did not enter findings of fact or conclusions of law, the findings can be gleaned from the circuit court‘s decision. The circuit court found that a plea agreement had been consummated between defense counsel on behalf of the defendant and an assistant district attorney on behalf of the state, the terms of which are set forth in the record as follows: The defendant agreed to take a second lie detector test. If the test result showed the defendant was being truthful in denying direct participation in the actual stabbing of the victim and in denying any prior knowledge that Rodriguez intended to harm the victim, the state would charge the defendant with robbery and would forbear charging the defendant as a party to the murder. The defendant agreed to plead guilty to the robbery charge and the state was free to recommend any sentence it deemed appropriate. Furthermore, the defendant agreed to testify truthfully in the state‘s prosecution of Rodriguez whenever requested to do so by the state.3
I.
The district attorney contends that the defendant breached the last term of the plea agreement, i.e. to testify truthfully, by lying at the Rodriguez preliminary hearing and thus making it impossible for the state to call him as a witness at the Rodriguez trial. If the state called the defendant as a witness at trial, asserts the district attorney, it “would be suborning perjury,” it would be a “violation of the Code of Professional Re-
In vacating the agreement the circuit court concluded, beyond a reasonable doubt, that the defendant “lied under oath at the Rodriguez preliminary hearing” and that the defendant “breached by perjury.” Supplemental Finding No. 1 dated July 29, 1980.
On review the majority applies the rule that the findings of fact made by the circuit court will be upheld unless they are clearly erroneous and against the great weight and clear preponderance of the evidence. Supra pp. 415, 416.4 Applying the great-weight-and-clear-preponderance test to the circuit court‘s findings in this case requires the findings of perjury be supported by evidence sufficient to meet the “beyond a reasonable doubt” burden of proof. Madison v. Geier, 27 Wis. 2d 687, 690, 135 N.W.2d 761 (1965). In other words, the test applied upon appeal to this court is whether the evidence adduced, believed and rationally considered by the circuit court was sufficient to prove the defendant‘s guilt beyond a reasonable doubt. Cf. Gauthier v. State, 28 Wis. 2d 412, 416, 137 N.W.2d 101 (1965).
The majority holds the evidence in the case at bar sufficient to justify the circuit court‘s finding beyond a
Not all false statements under oath constitute perjury.
The defendant‘s testimony under oath which the circuit court concluded was perjurous was substantially the same as the story he gave to the police immediately after the incident.
At the Rodriguez preliminary hearing the defendant stated that he and Rodriguez went to a service station to steal money and that Rodriguez began stabbing the victim. He further testified that he neither got near nor had any physical contact with the victim. The defendant said that after Rodriguez stopped stabbing the victim, he
After Rodriguez‘s preliminary hearing, the newly elected district attorney, who was prosecuting the Rodriguez case, concluded that the following evidence (which was to a large extent available to the district attorney‘s office at the time of the plea agreement)7 conflicts with the defendant‘s testimony and proves that the defendant committed perjury:
(2) The autopsy report on the victim indicated that he had a “herring-bone pattern” bruise on his forehead which matched the pattern on the sole of the defendant‘s shoes, not Rodriguez‘s shoes. A Crime Laboratory report stated that defendant‘s pants and undershorts had blood stains which were consistent with the victim‘s blood type and “factors.” The two reports appear to contradict defendant‘s testimony that he neither got near nor had any physical contact with the victim.
Neither the eyewitness testimony nor the physical evidence establishes perjury beyond a reasonable doubt.
On close analysis the eyewitnesses’ description of the defendant and Rodriguez leaving the building are not significantly different from the defendant‘s. The defendant‘s own testimony shows that he did not leave the building very much sooner than Rodriguez. There is no description of the relative position of the garage door and the service door; I cannot evaluate the importance of this discrepancy. The majority assumes that the eyewitnesses’ testimony is totally correct, that the defendant‘s version is totally incorrect, and that the defendant must have knowingly lied. Neither the circuit court nor this court heard or saw the witnesses. Neither court can judge the credibility of the witnesses. Eyewitnesses and the defendant can be honestly mistaken in observation and recollection.8
The blood stains on defendant‘s clothing could have been caused by the spurting of the victim‘s blood. The doctor who performed the autopsy stated that there could be a lot of blood from 28 stab wounds and that it would be difficult to predict its dispersion. A witness testified there was a lot of blood in the area where the victim was lying.
The defendant‘s shoe print on the victim does not prove beyond a reasonable doubt that the defendant perjured himself with a negative answer when asked whether he had any “physical contact” with the victim. The doctor testified that the print could have been caused by kicking or stepping. Given the focus of both the plea agreement and the questioning of the defendant at the preliminary hearing, namely whether or not the defendant was actually involved in the stabbing or knew beforehand that Rodriguez intended to harm the victim, the defendant could well have understood the question about physical contact to refer to the time of the stabbing, not to when he was exiting the scene. There is no perjury if the defendant misunderstood the question. In view of the defendant‘s emotional state,9 the defendant could have stepped on the victim‘s head when he fled the scene without being aware of what he did. The defendant‘s diagram of the scene of the crime places the body of the victim in such a position that the defendant would have to run past the body to exit the scene as he asserts he did.
II.
Assuming arguendo that the defendant breached his obligation under the plea agreement to testify truthfully, I conclude that under the peculiar combination of facts and circumstances in this case the circuit court should not grant the state‘s motion to vacate the plea agreement.
As the majority acknowledges, supra, p. 414, not all breaches by the defendant justify releasing the state from the plea agreement.11 Under contract law, some
The test of what is a material breach is necessarily imprecise and flexible. Comment, sec. 241, 2 Restatement (Second) Contracts 237 (1981). Labeling a breach as material is a shorthand way of saying that under the circumstances of the case the breach is of such a nature as to warrant discharging the non-breaching party from performing its obligations under the contract.
In a plea agreement case the court must be cautious in determining whether a breach is material, i.e., whether the breach destroys the essential objective of the agreement thereby releasing the “innocent” party from fulfilling its promises. In a criminal case, unlike in the usual contract case, money damages cannot be awarded to the state to rectify the harm caused by the breach.12
The majority opinion—correctly expressing disapproval of perjury—holds that the defendant‘s perjurious testimony constitutes a “material breach.” The majority does not, however, explain how or why it reaches this conclusion other than to intimate that any perjurious testimony always justifies vacating the plea agreement. I do not condone perjury, and prosecutors should not condone perjury. But the state‘s remedy for punishing perjurious testimony is not limited to vacating the plea agreement. The state can charge the defendant with the felony of perjury.
On the basis of the peculiar combination of facts and circumstances in the case at bar, I conclude that the defendant has not committed a material breach, that is that the state should not be discharged from its obligations under the plea agreement.
First, the evidence shows, beyond a reasonable doubt, that the state viewed the defendant‘s agreement to testify in the Rodriguez trial as a secondary, indeed minor, term in the plea agreement. The defendant offered to testify as a state‘s witness in the absence of the agreement. The defendant‘s testimony was therefore not “of the essence” of the agreement. The key factor for the state‘s entering the agreement was not that the defendant was going to testify on behalf of the state but that the
That the defendant‘s testimony on behalf of the state was a secondary aspect of the plea agreement is well documented in numerous places in the record. The assistant district attorney described the defendant‘s agreement to testify against Rodriguez as a secondary term of the agreement both at the hearing at which the guilty plea was accepted13 and at the habeas corpus proceed-
Finally, the assistant district attorney, in a letter dated May 30, 1979, in response to a discovery request by Rodriguez’ attorney, set forth the factors underlying the plea agreement with the defendant and characterized the defendant‘s agreement to testify against Rodriguez as “not a major factor” in the plea agreement. The plea agreement hinged on the physical evidence and the defendant‘s statement confirmed by the polygraph.16
Third, the district attorney‘s office obviously had doubts about the defendant‘s veracity in denying his participation in the killing. Hence the polygraph examination.18 The defendant‘s statements which the state veri-
Fourth, it appears from the record that the reason the state seeks to vacate the plea agreement is that a new district attorney, using hindsight, apparently determined that an assistant district attorney erred in entering into the plea agreement. Nevertheless the plea agreement was negotiated on behalf of the state by an assistant district attorney acting within his power, and the court should not vacate a plea agreement because the state later concludes the agreement was unwise.
Whether we like them or not, plea agreements play a significant role in the criminal justice system. See Note, Guilty Plea Bargaining: Compromises By Prosecutors to Secure Guilty Pleas, 112 U. Pa. L. Rev. 865 (1964). Since an estimated 90 percent of criminal convictions are the result of guilty pleas and since much of the work of the typical district attorney‘s office consists of participation in negotiations leading up to the guilty pleas, the effective and sound administration of the criminal justice system requires that the bench, the bar and the public have confidence that prosecutors conduct themselves properly in the negotiations leading to guilty pleas. 1 A.B.A., Standards For Criminal Justice, The Prosecution Function secs. 3-4.1 to 3-4.3; The Defense Function secs. 4-6.1, 4-6.2 (2d ed. 1980).
While engaging in plea bargaining the prosecutor, at a minimum, must evaluate all the information then available relating to the charge, to the defendant‘s background, and to any other factors bearing on whether there should be a plea or a trial. The state, the defendant and the public must be able to treat a conviction on a guilty plea as the final judgment. Circuit court time is taken in entering the guilty plea. Additional circuit court and appellate court time will be taken if the state seeks to vacate the guilty plea. If the guilty plea is va-
In this case the state got exactly what it should have expected when it entered the agreement. The state knew what the defendant‘s testimony would be and the defendant‘s testimony comports with the state‘s expectations. The district attorney does not argue that he is relying on any “newly discovered” evidence to prove defendant‘s perjury. The district attorney‘s office had eight months—from June 5, 1978, when the killing occurred, until February 6, 1979, when the plea agreement was revealed in circuit court—to verify the defendant‘s testimony. The assistant district attorney did verify the defendant‘s testimony with a polygraph in which the defendant “passed” the very questions in issue now.
In our system of law the state must be held to a high, strict standard that it fulfill its prosecutorial promises, not merely to vindicate the expectation of the defendant as to state behavior but more importantly to vindicate the expectation of the public as to state behavior and to promote the sound and effective administration of the criminal justice system. As the United States Court of Appeals said in United States v. Carter, 454 F.2d 426, 428 (4th Cir. 1972):
“There is more at stake than just the liberty of this defendant. At stake is the honor of the government[,] public confidence in the fair administration of justice, and the efficient administration of justice . . . .” Quoted with approval in Cooper v. United States, 594 F.2d 12, 20 (4th Cir. 1979).
For the foregoing reasons I dissent. I would reverse the order of the circuit court vacating the plea agreement.
I am authorized to state that Justice Nathan S. Heffernan joins me in this dissent.
Notes
“It is not always that a breach of contractual duty by one party to a bilateral contract discharges the duty of performance on the part of the other. As the term ‘breach’ is used, a contractor who has committed a breach is guilty of a wrong for which some remedy is available, the remedy varying with the case. Being guilty of a wrong does not make him an outlaw or deprive him of all rights, even the rights that were created by the very contract that he breaks. This is true, in spite of many a contrary dictum, even when his breach is ‘wilful‘. Indeed, it seems best to say that breach by one party never discharges the other party, regarding breach merely as a wrong without regard to the extent and quality of its ill effects. When those ‘effects’ are so material to the interests of the other party that a mere judicial remedy is not sufficient to satisfy the requirements of justice as felt by the community, the legal duty of that other party is either suspended or discharged.” Corbin, On Contracts sec. 1253 at 1013 (1952).