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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
GARLAND M. GREEN, )
) Court of Appeals No. A-4246
Appellant, ) Trial Court No. 3AN-90-6830
Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1308 - August 6, 1993]
________________________________)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Michael Wolverton,
Judge, pro tem.
Appearances: Randall Cavanaugh, Anchorage,
for Appellant. Eric A. Johnson, Assistant
Attorney General, Office of Special Prosecu
tions and Appeals, Anchorage, and Charles E.
Cole, Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Garland M. Green was convicted of first-degree
burglary, AS 11.46.300(a)(1), and third-degree theft, AS
11.46.140(a)(1), following a jury trial in the Anchorage superior
court. Green appeals his convictions, asserting that the State
had no authority to prosecute him for burglary and theft because
the police who arrested and interrogated him promised him
immunity from prosecution if he cooperated by returning the
property he had stolen. Green also appeals his sentence. We
affirm.
In the early morning of October 2, 1990, Michael Reed
was working the night shift for Offshore Systems in Unalaska. At
approximately 3:00 a.m., Reed saw someone inside the supervisor's
trailer; knowing that his supervisor was generally asleep at that
hour, Reed approached the trailer to investigate. As Reed neared
the trailer, he saw a man climb out of the window. Reed asked
the man, "Who the hell are you?" The man held up a wallet and an
swered, "I'm a friend of yours." When Reed responded, "You're no
friend of mine," the man shoved Reed aside and ran away.
Reed woke his supervisor, Robert Nufer. Nufer searched
the trailer and discovered that his wallet and $40 cash were
missing. He then called the Unalaska police. Officer John
Nichols interviewed Nufer and Reed. Reed gave Nichols a physical
description of the burglar; he told Nichols that he recognized
the burglar but did not know his name.
Later that morning, Nufer called the Unalaska police
and told them that he had discovered that the burglary had been
committed by Green, who was an Offshore Systems employee living
in room 28 of the company bunkhouse. Officer Meta Parker went to
room 28 and confronted Green, who denied being involved in the
burglary. Officer Parker left to get Nufer and Reed; when she
returned with the two men, Reed identified Green as the man he
had seen climbing out of the trailer. Parker arrested Green and
took him to the Unalaska Department of Public Safety.
Officers Nichols and Parker interviewed Green. Green
initially denied committing the burglary and theft, but he soon
confessed. Green told the officers that he had hidden Nufer's
wallet in the men's restroom at the Offshore Systems bunkhouse
and that he had put the $40 in his own wallet, which was hidden
under his mattress.
Nichols had attempted to tape record the interview with
Green, but when the interview was over he discovered that the
tape recorder had malfunctioned. When Nichols found that there
was no tape of the interview, he decided to ask Green to fill out
a "voluntary statement" form. Green sat in his cell and
reiterated his confession in writing on the form. In stark
contrast to the fact that Green had been arrested and had been
interrogated about the burglary, the "voluntary statement" form
begins with the following language:
VOLUNTARY STATEMENT
(NOT UNDER ARREST)
I, (Garland Green), am not under arrest for,
nor am I being detained for any criminal
offenses concerning the events I am about to
make known to (the Unalaska police). Without
being accused of or questioned about any
criminal offenses regarding the facts I am
about to state, I volunteer the following
information of my own free will, for whatever
purposes it may serve.
Green also gave Nichols permission to search his room
at the bunkhouse. Nichols found the wallet and the money where
Green had said they would be.
On April 11, 1991, a grand jury indicted Green for
burglary and theft. Green asked the superior court to dismiss
the indictment with prejudice, claiming that the Unalaska police
had promised him immunity from prosecution if he cooperated with
them by returning the stolen articles.
At the hearing on Green's motion to dismiss, Green
testified that he had told the officers that he had a ticket for
a flight out of Unalaska at 2 o'clock that afternoon. According
to Green, Officer Nichols replied, "Mr. Green, this is not a very
serious crime. Just tell us where the wallet is, and you can
catch your flight." Green testified that he interpreted
Nichols's comment as a promise that he would not be prosecuted if
he returned the wallet and the money. Green stated that, when he
read the wording of the "voluntary statement" form, this
confirmed to him that he would not be detained or charged if he
returned the stolen property.
Officer Nichols took the stand and denied making the
statements Green attributed to him. Nichols declared that the
only promise he had made to Green was that, if Green cooperated
with the police, this cooperation would be made known to the
district attorney, but with no guarantee that this would affect
the charges against Green.
Superior Court Judge pro tem Michael Wolverton ruled
that Green's confession at the Unalaska police station had to be
suppressed under Stephan v. State, 711 P.2d 1156 (Alaska 1985);
Judge Wolverton found that, under all the circumstances, the
officers' failure to tape record the interview was not excusable.
The judge also suppressed the recovered wallet and money because
they were fruits of the unlawful interrogation.
However, because the State could still prove its case
through the testimony of Reed and Nufer, the question remained
whether the indictment should be dismissed. Judge Wolverton
denied Green's motion to dismiss the indictment. The judge found
that Officer Nichols might have unwittingly said things to Green
that caused Green to think he would not be prosecuted if he
returned the wallet and the money, but the judge also found that
Nichols had not knowingly offered immunity to Green. Therefore,
Judge Wolverton concluded, there had been no "meeting of the
minds" _ no contract.
Green challenges Judge Wolverton's ruling. He relies
on the principle of contract law that the existence and scope of
a contract must be proved by the objective manifestations of the
parties, and that a party's self-serving declarations about the
party's subjective intention, made after litigation commences,
will not be allowed to prove, disprove, or vary the terms of a
contract. See, for example, Peterson v. Wirum, 625 P.2d 866, 870
(Alaska 1981). Green argues that Nichols's statements to him
during interrogation and the wording of the "voluntary statement"
form that Nichols asked Green to sign later are objective proof
that Nichols offered Green immunity, and that Nichols cannot
defeat this conclusion by testifying that this was not what he
subjectively intended.
We conclude, however, that the existence or non-
existence of a contract between Green and the Unalaska police is
a moot issue. Even if the Unalaska police promised immunity to
Green, this promise would not be enforceable against the State of
Alaska. While "a prosecutor's promise of immunity made in
return for a surrender of the privilege against self-incrimina
tion is binding on the prosecution", Surina v. Buckalew, 629 P.2d
969, 975 (Alaska 1981), the effect of a police officer's promise
of immunity has not been decided in Alaska. This issue was
mentioned in passing by the supreme court in Closson v. State,
812 P.2d 966, 971 n.6 (Alaska 1991), but the court found it
unnecessary to resolve the issue because the police promises in
Closson had been contemporaneously ratified by an assistant
district attorney.
Turning to decisions from other jurisdictions, the
clear rule is that the police have no authority to promise
immunity to a criminal defendant. For example, in People v.
Gallego, 424 N.W.2d 470 (Mich. 1988), affirming 372 N.W.2d 640
(Mich. App. 1985), state police officers promised the defendant
immunity from prosecution if he returned $33,000 that had been
used by the officers to make an undercover purchase of drugs.
Gallego told the officers where to find the money, but several
months later he was nevertheless charged with sale of cocaine.
424 N.W.2d at 471.
Gallego sought dismissal of the charge, claiming that
he had a right to specific performance of the officers' promise.
The Michigan Supreme Court disagreed:
We base our decision to deny defendant
specific performance on the fact that the
police lacked the authority to make a binding
promise of immunity or not to prosecute. The
case at bar involves a non-plea agreement for
which specific performance amounts to preclu
sion of an otherwise valid prosecution, and
the Court has available an alternative remedy
short of specific performance, i.e., suppres
sion, which essentially restores defendant to
the position he enjoyed prior to making the
agreement in question with the police.
The absence of authority of the police
in this matter is significant for several rea
sons. ... Since the police possess neither
the authority to withhold prosecution nor to
grant immunity, no formal system exists by
which to check the potentially unbridled
discretion the police would possess if
allowed to make binding promises precluding
prosecution. The potential for abuse seems
obvious.
. . .
In addition, enforcing the unauthorized
promise made by the police to defendant
raises the question of the logical limits of
the power of the police to control the
criminal justice system. If the police may
make unauthorized, yet binding promises that
preclude prosecution, why could they also not
make binding plea bargains or sentence
agreements? Thus, in granting defendant
specific performance, this Court would create
a dangerous precedent. ...
[D]ismissal of criminal charges as a remedy
for alleged police misconduct is a drastic
and disfavored remedy. See, e.g., United
States v. Blue, [384 U.S. 251, 255, 86 S.Ct.
1416, 1419, 16 L.Ed.2d 510 (1966)]; United
States v. Rogers, 751 F.2d 1074, 1076-1077
[(9th Cir. 1985)]. In this case, dismissal
of criminal charges is even less desirable
... because it advances no other legitimate
interests. ...
[A]n alternative remedy [exists] which essen
tially restores defendant to the position he
enjoyed prior to making the agreement in
question with the police. ... Moreover, we
are not required, as a result of the "consta
ble's blunder," to place defendant in a
better position than he enjoyed prior to
making the agreement with the police.
People v. Gallego, 424 N.W.2d at 473-76 (footnotes omitted).
The Michigan Supreme Court's ruling is echoed in other
decisions from around the country. In Winkles v. State, 392 A.2d
1173 (Md. App. 1978), the Maryland Court of Special Appeals said:
[The defendant asserts that a police officer
promised him] that these charges would not be
prosecuted[.] ... That promise could only be
made by the State's Attorney. The discretion
as to whether to prosecute is solely in the
State's Attorney, and only that official (or
his authorized assistants, in his name) could
validly exercise that discretion[.] ... [A]
police officer has neither the power himself
to make such a promise, nor to bind the
State's Attorney to it. To conclude
otherwise would not only risk the serious
possibility of corruption, abuse, and
substantial mischief and uncertainty in the
prosecution of criminal cases, but would
infringe upon the discretion constitutionally
committed to the State's Attorney.
Winkles, 392 A.2d at 1175-76.
In Yarber v. State, 368 So.2d 868 (Ala. Crim. App.
1978), cert. denied, 368 So.2d 871 (Ala. 1978), the court stated:
[L]aw enforcement officers are without ques
tion totally lacking in power to authorize or
grant immunity from arrest or prosecution to
one criminally culpable under the laws of
this state. Any right of an accused not to
be prosecuted because of such a promise of
immunity is equitable only. Breach of such a
promise cannot be pled in bar of an indict
ment, as grounds for dismissal of the prosecu
tion, or as grounds for reversal on appeal.
Yarber, 368 So.2d at 869-870. See also Yarber v. State, 375
So.2d 1212, 1227 (Ala. Crim. App. 1977) ("Under the settled law
of this state[,] law enforcement officers are utterly without
power and authority to grant an accused immunity from arrest and
prosecution for violating our criminal laws. To clothe them with
such power and authority would strike at the very heart of our
system of criminal justice and oust the courts of the powers
invested in them by the Constitution and statutes."), rev'd on
other grounds, 375 So.2d 1229 (Ala. 1978); Application of Parham,
431 P.2d 86, 88 (Ariz. App. 1967) ("We address ourselves first to
the question of whether the petitioner is entitled to the relief
he seeks _ specific performance of his 'bargain' with the law
enforcement officers that if he would help in a criminal
investigation, all charges, including the one for which he was
sentenced, would be dropped. We hold that such promises, if made
by police officers[,] are unenforceable, as being beyond the
scope of authority of such officers."); People v. Thompson, 410
N.E.2d 600 (Ill. App. 1980) (holding that, despite an apparent
promise made by an auditor from the state department of revenue,
the state's attorney could prosecute the defendant for tax
offenses); State v. Crow, 367 S.W.2d 601, 605-06 (Mo. 1963)
("[I]t seems quite clear that the sheriff has no standing to
grant or offer immunity as a bar to a prosecution. 15 Am.Jur.,
Criminal Law, 322, p.19, in discussing who may grant immunity
states: 'Nor can police officers or a sheriff grant immunity
from prosecution to one of two or more persons accused of a crime
on condition of confession and readiness to become a witness
against the others accused, at least where the promise is made
without authority of the prosecuting attorney[,] and such a
promise cannot be pleaded in bar of an indictment for the
crime.'"); State v. Cox, 253 S.E.2d 517, 521 (W. Va. 1979)
("Every court addressing this issue has held that law enforcement
officers do not have authority to promise that in exchange for
information, a defendant will not be prosecuted for the
commission of a crime[,] and such a promise is unenforceable as
being beyond the scope of their authority. ... We hold ... that
law enforcement officers do not have authority to promise
immunity from prosecution in exchange for information, and such
promises are generally unenforceable.").
In accord with these authorities, we likewise hold that
police officers, acting on their own, cannot enter into a binding
immunity or non-prosecution agreement with a suspect or
defendant. If Officer Nichols promised immunity to Green to
secure Green's cooperation and his incriminating statements, and
the State nevertheless brought charges against Green, then
Green's remedy would be suppression of all evidence yielded by
the officer's promise. "It is well settled that a confession is
improperly induced if it is made in response to a promise of
immunity from prosecution." Smith v. State, 787 P.2d 1038, 1039
(Alaska App. 1990).
However, the fact that a defendant's confession has
been improperly obtained does not entitle a defendant to
dismissal of all charges. In United States v. Blue, 384 U.S.
251, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966), the Supreme Court
stated:
Even if ... the Government [acquired] incrimi
nating evidence in violation of the Fifth
Amendment, [a defendant] would at most be
entitled to suppress the evidence and its
fruits if they were sought to be used against
him at trial. ... Our numerous precedents
ordering the exclusion of such illegally
obtained evidence assume implicitly that the
remedy does not extend to barring the prosecu
tion altogether. So drastic a step might
advance marginally some of the ends served by
the exclusionary rules, but it would also
increase to an intolerable degree
interference with the public interest in
having the guilty brought to book.
Blue, 384 U.S. at 255, 86 S.Ct. at 1419 (footnote omitted).
Accord, People v. Manning, 672 P.2d 499, 512 (Colo. 1983):
In cases ... involving [a defendant's] reason
able and detrimental reliance upon a govern
mental promise, the question of remedy turns
ultimately on what type of relief will accord
the defendant substantial justice. ... When
[remedies other than specific performance]
are available, then the court should exercise
a reasonable discretion in fashioning a form
of relief that can secure substantial justice
to the defendant and at the same time
accommodate the legitimate interests of the
government.
See also People v. Dandridge, 505 N.E.2d 30, 32 (Ill. App. 1987),
appeal denied, 511 N.E.2d 432 (Ill. 1987).
Judge Wolverton had already suppressed Green's
confession and its fruits because the Unalaska police had
violated Stephan. Green was entitled to no additional relief.
We recognize that courts may have the equitable power
to order specific performance of an unauthorized promise of
immunity in exceptional cases _ cases in which a defendant's
detrimental reliance on the unauthorized promise has put the
defendant in a position where suppression of the evidence
obtained through the unenforceable promise would not cure the
injustice to him or her.1 Green's case, however, does not
present such circumstances.
Green's final contentions on appeal concern his
sentence. Green, a second felony offender, was subject to
presumptive sentencing. Relying on the fact that he had told the
police where to find Nufer's wallet and money, Green proposed one
statutory mitigating factor: AS 12.55.155(d)(10), that "before
the defendant knew that the criminal conduct had been discovered,
the defendant fully compensated or made a good faith effort to
fully compensate the victim of the defendant's criminal conduct
for any damage or injury sustained". Green also asserted that
his cooperation with the police demonstrated his uncommonly good
potential for rehabilitation, the non-statutory mitigator
recognized by this court in Smith v. State, 711 P.2d 561, 569-572
(Alaska App. 1985).
Judge Wolverton was obviously correct when he concluded
that mitigating factor (d)(10) did not apply to Green's case. To
prove mitigator (d)(10), Green had to show that his effort to
compensate the victim was made "before [Green] knew that the
criminal conduct had been discovered". Green revealed the
location of Nufer's wallet and money only after Reed had
identified him as the burglar and Officer Parker had arrested
him. Thus, mitigator (d)(10) was unavailable to him.
For similar reasons, Judge Wolverton rejected Green's
argument that his cooperation with the police demonstrated his
uncommonly good potential for rehabilitation. Judge Wolverton
concluded that Green's cooperation had been motivated, not by
remorse or desire to do the right thing, but by the prospect of
having the charges dropped. Judge Wolverton's conclusion is not
clearly erroneous. Lepley v. State, 807 P.2d 1095, 1099 n.1
(Alaska App. 1991).
The judgement of the superior court is AFFIRMED.
_______________________________
1 See, for example, Rhil v. State, 413 N.E.2d 1046, 1053
(Ind. App. 1980), refusing to enforce an alleged promise of
immunity by the police when "factors which [might] justify the
equitable enforcement of an agreement between a representative of
the State and a defendant on public policy grounds simply are not
present".
