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Closson v. State of Alaska (6/7/91), 812 P 2d 966
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NOTICE: This opinion is subject to
formal correction before publication in the
Pacific Reporter. Readers are requested to
bring typographical or other formal errors to
the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
TYOGA G. CLOSSON, ) Supreme Court No. S-3722
)
Petitioner,) Court of Appeals Nos. A-1589, A-
2019
v. )
) Superior Court No.
STATE OF ALASKA, ) 3AN-S-85-7813 Criminal
)
Respondent.) O P I N I O N
_________________________)
Petition for Hearing from the Court of
Appeals on appeal from the Superior Court of
the State of Alaska, Third Judicial District,
Anchorage,
Mary E. Greene, Judge.
Appearances: Rex Lamont Butler,
Anchorage, for Petitioner. David Mannheimer,
Assistant Attorney General, OSPA, Anchorage,
Douglas B. Baily, Attorney General, Juneau,
for Respondent.
Before: Matthews, Chief Justice,
Rabinowitz, Burke, Compton, and Moore,
Justices.
RABINOWITZ, Justice.
A jury convicted Tyoga Closson of theft in the second
degree. The court of appeals affirmed the conviction. Closson
v. State, 784 P.2d 661 (Alaska App. 1989). We granted Closson's
petition for hearing on the questions of whether the state
violated its obligations under an immunity agreement with
Closson, and whether Closson was consequently entitled to have
the immunity agreement specifically enforced.
I. FACTS AND PROCEEDINGS
In October 1985, Closson stole a .45 caliber pistol
from an Anchorage home where his girlfriend was housesitting. A
friend and sometime roommate of Closson's, Robert Betts, acquired
the gun from Closson. Betts loaned the gun to John Bright, who
used it on October 12, 1985 to shoot and kill Robert Pfeil in a
murder for hire drive-by shooting. Betts drove the car for
Bright. Betts then returned the gun to Closson, who traded it to
Jack Peters for cocaine.
Later that month, Inspector Ken Spadafora of the
Anchorage Police Department learned that Closson had been
speaking of his involvement in the Pfeil shooting. Spadafora
left a message at Closson's apartment for Closson to contact the
Anchorage police.
On the morning of October 24, 1985, Closson went
voluntarily to the police station where he was questioned by
Spadafora and Police Sergeant Michael Grimes. The officers did
not give Closson a Miranda warning, but they did tell him he was
free to leave. This interrogation was tape-recorded. During
that interrogation, Closson admitted his theft of the gun, and
explained how it was involved in the Pfeil shooting. Grimes and
Spadafora urged Closson to cooperate with the police, assuring
him that he would otherwise face grave consequences, both from
the authorities and his acquaintances. Closson agreed to
cooperate and to "wear a wire"when talking with Betts.
Assistant District Attorney Stephen Branchflower then
arrived at the interrogation room. Branchflower was concerned
about Closson's youth and consequently he first determined that
Closson was indeed eighteen years old. Shortly after
Branchflower began to speak with Closson, the tape recorder was
turned off, apparently by accident. The parties agree that in
the course of this conversation, Branchflower offered Closson
immunity from prosecution for the gun theft and arranged to have
the Municipality of Anchorage drop a pending assault charge in
exchange for Closson's cooperation in the investigation.
Branchflower did not reduce the immunity agreement to writing.1
Branchflower, Closson, and Grimes left the police
station and went to the courthouse, where Branchflower prepared
an application for a search warrant. Shortly thereafter, the
three attended a search warrant hearing in front of District
Judge Stewart, where Grimes and Closson explained Closson's role
in the investigation, and introduced evidence for the purpose of
establishing Closson's credibility as an informant. Both Grimes
and Closson testified to the terms of the immunity agreement.
Judge Stewart issued the search warrant.
Closson had his first monitored conversation with Betts
that night. As a result of the monitoring, the police learned
that Closson had lied at the search warrant hearing when he
testified that he had thrown the gun into the inlet.
Consequently, Branchflower had Closson return to court the
following day, to testify that in fact he had traded the gun to
Peters. Branchflower's purpose in having Closson return before
Judge Stewart was to keep the court apprised of developments, in
view of the fact that Closson's testimony had been the basis for
the search warrant. Branchflower indicated his intention to
continue using Closson as an informant; he did not request any
change in the immunity agreement or search warrant.
After hearing this testimony, Judge Stewart did not
rescind the warrant authorizing the electronic surveillance.
Subsequently, on at least one occasion, Closson apparently
attempted to have a wired conversation with Peters in an effort
to recover the gun. However, Closson was unable to make contact
with Peters.
Closson did have additional monitored conversations
with Betts, however, and he eventually persuaded Betts to
cooperate in the investigation. The state admits that Closson's
assistance was important in breaking the case. On November 11,
1985, the police arrested Betts, Bright, and other suspects in
the case. The suspects were charged by an information which
disclosed Closson's involvement in the investigation. The
subsequent press coverage published Closson's name and an account
of his involvement.2
On November 14, 1985, Closson and his grandfather met
with Spadafora. Spadafora told Closson that, as part of
Closson's agreement, Closson had to wear a wire that night to
interview Peters and he had to testify the following Monday
before the Grand Jury. Closson expressed anger and concern that
his name had been made public. He reluctantly agreed to return
that evening and wear the wire. However, Closson never kept that
appointment, nor did he show up at the Grand Jury. When Closson
failed to appear before the Grand Jury, Branchflower added his
name to the bill, and the Grand Jury indicted Closson for second
degree theft.
Closson moved for dismissal of the second degree theft
charge on several grounds. In part, he alleged that the state
had breached the immunity agreement by charging Closson when he
had substantially or completely complied with his obligation
under the agreement, by disclosing his name to the public, and by
requesting that Closson perform further undercover operations
after the state had disclosed his name. These allegations form
the basis for this petition.
The superior court held an omnibus hearing on February
17-18, 1986. Two issues before the court included the terms of
the agreement and the question of breach. At this hearing,
Grimes and Branchflower testified that the terms of the agreement
clearly specified that Closson had to wear a wire whenever asked
and that Closson had agreed to testify at all necessary court
hearings. Additionally, Grimes testified that he had made it
clear to Closson that Closson would have to testify in public
proceedings.
Closson testified at the omnibus hearing that he
understood the immunity agreement to consist of a promise that
"if Robert Betts turned himself in and cooperated to the fullest
extent that they wouldn't prosecute me." He denied that he had
agreed to testify at hearings, because "I didn't want any
publicity, I didn't want anybody knowing I was involved in any of
this garbage." Moreover, Closson testified that he was later
assured that if Betts cooperated, "that I wouldn't be bothered no
more; that my name wouldn't be in the paper, that I wouldn't have
to testify."
To further establish the terms of the agreement, the
superior court heard evidence of the testimony at the search
warrant hearing, where the state had first put the immunity
agreement on the record. At the search warrant hearing, Closson
had acknowledged that he agreed to testify at future court
hearings.3 At the omnibus hearing, however, Closson asserted
that much of his testimony at the search warrant hearing was
untrue. He attributed the untruthfulness to an alleged
arrangement he had made with Branchflower, whereby Closson would
follow Branchflower's testimonial signals and ignore the content
of the questions.
The superior court agreed with the state's interpretation of
the agreement and rejected Closson's motion to dismiss the theft
charge. The court gave the following explanation for its
decision:
Having weighed the testimony
presented, the court finds that the agreement
entered into by the State and Closson for
immunity was as testified to on October 24,
1985, during testimony in support of the
application for search warrant. The court
finds that the terms of the agreement were as
follows: The prosecution promised that a
pending City assault and battery case would
be dismissed and that Closson would not be
prosecuted for theft of the gun provided that
Closson had no further involvement in the
shooting incident than had been disclosed to
that point. Closson agreed to cooperate with
the police including wearing a transmitter as
often as required to by the police and to
testify truthfully when called upon to
testify at the hearing for the application of
search warrant as well as at any other court
hearings. Closson had been given assurances
by police officers that his name would be
kept confidential during the investigation
and that they would do whatever necessary to
protect his safety.
. . . .
Enforcement of the Agreement:
Closson asserts that he is entitled
to specific performance of the immunity
agreement. The court finds that Closson
materially breached the agreement by failing
to appear for testimony before the grand jury
and that given that breach, the State is not
obligated to perform. The court rejects the
State's argument that Closson materially
breached the agreement by lying before Judge
Stewart on October 24. While this indeed was
a breach of the agreement, that breach was
excused when the State chose to continue to
use Closson under the terms of the agreement.
Further, the court finds that Closson
breached the agreement by failing to wear a
monitoring device for conversations with Jack
Peters when instructed to do so by the police
on November 14. However, the court finds
that breach to be excused by Closson's
reasonable fear in participating in the
monitoring after public disclosure of his
cooperation with the police on November 11.
Despite the disclosure of November 11 in the
information, the court finds no excuse for
Closson's failure to appear before the grand
jury for testimony. Closson specifically
agreed to testify at further court
proceedings. Given that agreement, it is
unreasonable to interpret the agreement to
totally bar disclosure of Closson's name
forever. Closson should have known and must
have known that his name would be disclosed
at a future date at the conclusion of the
investigation. Given the material breach of
the immunity agreement, the State is not
required to perform its part of the
agreement.
Closson was subsequently tried and convicted of second
degree theft. In a separate proceeding, he was later convicted
of perjury on the basis of his testimony at the omnibus hearing
that Branchflower had suborned perjury at the search warrant
hearing. The court of appeals affirmed both convictions.
Closson v. State, 784 P.2d 661 (Alaska App. 1989).4
In reviewing Closson's claim that the state had
breached its immunity agreement with Closson by breaking its
promise of confidentiality, the court of appeals concluded that
"[t]here was . . . ample evidence presented below to support the
court's conclusion that the state had lived up to its end of the
bargain. The court was not clearly erroneous in finding that
Closson was promised confidentiality only during the
investigative phase of the case . . . ." Id. at 666.
Additionally, the court of appeals rejected Closson's claim that
he was excused from testifying before the grand jury because of a
reasonable fear for his safety; it also rejected his argument
that if he did breach the immunity agreement, his breach was not
material. Id.
This court subsequently granted Closson's petition for
hearing on the following question: "Should the state be held to
strict compliance with the terms of an immunity agreement where
it is found that the state, through its own actions in violating
its agreement to maintain petitioner's anonymity, relieved
further performance on the part of the petitioner?" As a
preliminary matter, however, it must be determined whether the
state did, in fact, breach the immunity agreement it had entered
into with Closson.
II. Standard of Review.
The court of appeals began its analysis in Closson by
correctly noting that "[i]mmunity agreements are contractual in
nature and general principles of contract law apply to the
resolution of disputes concerning their enforcement and breach."
784 P.2d at 664 (citing United States v. Irvine, 756 F.2d 708,
710-11 (9th Cir. 1985); United States v. Carrillo, 709 F.2d 35,
36 n.1 (9th Cir. 1983); United States v. Brown, 801 F.2d 352, 354
(8th Cir. 1986)). The court of appeals also properly cautioned
that "[a]lthough the analogy between immunity agreements and
ordinary contracts is useful, immunity agreements are subject to
constitutional restraints, foremost of which is the due process
clause's overriding guarantee of fundamental fairness to the
accused." Closson, 784 P.2d at 665 (citing Surina v. Buckalew,
629 P.2d 969, 975 (Alaska 1981)). Nevertheless, the court of
appeals concluded that the superior court's findings as to the
terms, scope, and breach of this immunity agreement must, under
contract law, be upheld unless clearly erroneous. Closson, 784
P.2d at 665.
Under general contract principles, the trial court must
determine the terms of an oral agreement, and its decision will
be upheld unless clearly erroneous. See Geczy v. LaChappelle,
636 P.2d 604, 606 (Alaska 1981). When the government claims that
the defendant has breached an immunity or plea bargain agreement,
the burden is on the government to prove, by a preponderance of
the evidence, that a substantial breach occurred. United States
v. Gonzalez-Sanchez, 825 F.2d 572, 578 (1st Cir. 1987), cert.
denied, sub nom. Latorre v. United States, 484 U.S. 989 (1987);
Annotation, Necessity and Sufficiency, in Federal Prosecution, of
Hearing and Proof with Respect to Accused's Violation of Plea
Bargain Permitting Prosecution on Bargained Charges, 89 A.L.R.
Fed. 753 (1988); Note, The Standard of Proof Necessary to
Establish that a Defendant has Materially Breached a Plea
Agreement, 55 Fordham L. Rev. 1059 (1987). A finding of breach
will be upheld unless clearly erroneous. Gonzalez-Sanchez, 825
F.2d at 579.5
III. DISCUSSION
A. The superior court's finding that the state had
not breached its agreement was clearly erroneous.
1. The express terms of the agreement.
The superior court found that the terms of the immunity
agreement were "as testified to"at the search warrant hearing of
October 24, 1985, namely that the police had promised Closson
anonymity and safety during the investigative phase of the case.
While it is not clear that the superior court considered the
promises made by the police as enforceable promises incorporated
into the agreement, the state now concedes that these promises of
anonymity became part of the immunity agreement.6 Closson
disputes the state's contention that the assurances of
confidentiality applied only to the investigative phase of the
case and maintains that "the police promised Mr. Closson complete
anonymity."
The first promise of confidentiality was made by Grimes
during Closson's initial police station interrogation:7
Closson: "I got the gun and I'm gonna
get stiffed . . . ."
Grimes: "Not if you, we can work
together here guy, if you weren't involved in
it, can do a lot."
Closson: "Sure I'll help you back here
behind, but there's no way in hell I'll let
anybody know what . . . I'm doin'."
Grimes: "No one's gonna know. But you
gotta be straight up with us."
. . . .
Grimes: ". . . just totally cooperate
with us, you cooperate with us, we'll get
these people off the street, they won't touch
you, I'll guarantee you that."
(Emphasis added.) This text does not limit the promise of
confidentiality and safety to the duration of the investigation.
Rather, it seems that Closson was conditioning his cooperation on
assurances of anonymity.
In addition, no evidence exists that Branchflower and
Closson expressly agreed to any arrangement which would supersede
promises made by Grimes.8 Branchflower himself relied on the
substance of the conversation between Closson and the police to
establish the parameters of the immunity agreement. Therefore,
we conclude that there was no express term in the immunity
agreement which limited the scope of the promise of anonymity to
the investigative phase of the case.
2. The implied limits to the scope of the
agreement.
The superior court found the promise of confidentiality
limited because "Closson specifically agreed to testify at
further court proceedings." From this agreement, the superior
court concluded that "it is unreasonable to interpret the
agreement to totally bar disclosure of Closson's name forever.
Closson should have known and must have known that his name would
be disclosed at a future date at the conclusion of the
investigation." Given that the scope of the immunity agreement
was at best ambiguous, the superior court may infer a
"reasonable" limit to the promise of anonymity. We hold,
however, that the state's action of disclosing Closson's name to
the press, via the information filed on November 11 and the press
conference held on November 12, was not reasonable in light of
its promise of confidentiality and safety and its request to
Closson on November 14 that he perform further investigative work
for it.
The superior court's interpretation of the scope of the
promised confidentiality presupposes that a reasonable person
would have understood the agreement to imply an acceptance of
public disclosure.9 However, a reasonable person would not make
such an inference from this record, much less a reasonable person
of Closson's youth and education. Indeed, when Branchflower was
questioned about the promise of confidentiality, he could not
rule out the possibility that he might have made such a promise
without limiting its scope. However, he indicated that it was
extremely unlikely, based on his specialized knowledge as a
prosecutor, that an informant's name is generally made public.10
It is not general knowledge that the name of an
informant "would have to appear at the foot of the indictment"or
"would be discoverable to any defendants that were to be charged
in the future." True, Closson did agree at the search warrant
hearing that he would testify "in the future at any other court
hearings." We find it significant, however, that Closson only
agreed to testify after Branchflower assured him that the search
warrant hearing was a closed proceeding. Moreover, the common
understanding of grand jury proceedings is that they are closed
to the public. Based on the evidence in the record, we conclude
that a reasonable person in Closson's position would expect that
his name would not be disclosed to the public, at least until it
was absolutely necessary that he testify in a public trial.11
Thus, the superior court erred when it found that the
promise of confidentiality contained in the immunity agreement
was limited to the investigative phase of the case. Accordingly,
when the state disclosed Closson's name to the public in the
information filed on November 11, it breached its promise of
confidentiality to Closson.
3. The state anticipatorily breached the
agreement by asking Closson to perform further
investigation after it had disclosed his name.
Even accepting the state's interpretation that the
promise of confidentiality was limited to the investigation, the
state's demand that Closson engage in further investigation after
it had disclosed his name constituted an anticipatory breach of
its agreement.12 If the state's interpretation of the agreement
was accurate, Closson's obligation to wear a wire would have
terminated upon the state's disclosure of his name. However, by
virtue of the state's demand to Closson, the investigation was
still continuing.
The state argues that because it had arrested all the
principals in the primary crime, Closson should have known that
the investigation was over. However, it appeared that the
investigation was still on-going. While Closson knew that Peters
was collateral to the primary crime, since Peters only became
involved through Closson's own behavior, Closson had no way of
knowing whether some confederates of the principals might still
be at large. In fact, Closson knew that the police had not
finished the investigation -- they still had loose ends to tie
up.
More importantly, Closson knew that the police had
disregarded his safety. When the police disclosed his name, he
became known as a police informer. Indeed, the superior court
recognized that Closson's reasonable fear for his own safety
excused his failure to cooperate in the investigation of Peters.
The superior court erred, however, in failing to recognize that
the state's demand for Closson's assistance was in itself an
anticipatory breach of the immunity agreement.
This result is bolstered by our conclusion that the
scope of the agreement was at best ambiguous. At the time he was
asked to wear a wire and meet with Peters on November 14, Closson
understood that his promise for anonymity was, if not permanent,
at least to last for a reasonable time. He knew, however, that
at that time his undercover activities on behalf of the police
had been disclosed. While Closson generally had agreed to
cooperate with the state, we refuse to interpret this agreement
as completely open-ended. Closson had to obey all reasonable
requests. Similarly, the state had an obligation to keep all
requests within reason. By requiring Closson to perform a task
after it disclosed his identity, however, the state communicated
its repudiation of the original agreement to Closson. Thus, the
state anticipatorily breached its immunity agreement with
Closson, entitling him to the appropriate remedy as required by
contract law and due process, as discussed below.
B. The circumstances require that the State
specifically perform its obligations under the immunity
agreement with Closson.
1. The remedy for a breach of an immunity
agreement by the state is specific performance.
In Surina v. Buckalew, 629 P.2d 969 (Alaska 1981), we
confronted the situation where a witness made a
self-incriminating statement in reliance on the prosecution's
promise of immunity. We stated that when the prosecution
breaches an immunity agreement, the promisee is entitled to
rescission, which "should have the effect of placing the
individual in the same position he would have been in had he not
engaged in the agreement." Id. at 975 n.14. However, because of
the inherent impossibility of rescinding an incriminating
statement, we noted that "the alternative remedies of
'rescission' and 'specific performance' will collapse into one,
in most cases." Id.
Where an accused relies on a promise of immunity to
perform an action that benefits the state, this individual too
will not be able to "rescind"his or her actions. Therefore, we
believe that the remedy of specific performance is equally
applicable to Closson's situation, whether viewed as a remedy for
a breach or for an anticipatory breach.13
2. Fundamental fairness dictates that the
state be held to strict compliance after it
breached its promise to Closson.
While we have determined that the state breached its
agreement, we still must determine whether that breach is
material -- whether it was critical enough to excuse further
performance on Closson's part. See Closson, 784 P.2d at 665
(materiality involves issues of law subject to de novo review).
However, as this is an immunity agreement, and not a contract,
we must interpret it with regard to substantial fairness, not
just the law of contracts. See Closson, 784 P.2d at 665.14
Branchflower testified that the state's public
disclosure of Closson's involvement on November 11 was
immaterial, because Closson's role inevitably would have been
revealed one week later at the grand jury proceeding. Closson,
on the other hand, argues that given the time and nature of the
state's disclosure, it was a material breach because of the
threat to his safety.
Many courts consider the defendant's detrimental
reliance as the gravamen of whether it would be unfair to allow
the prosecution to withdraw from a plea agreement. See
Annotation, Right of Prosecutor to Withdraw From Plea Bargain
Prior to Entry of Plea, 16 A.L.R.4th 1089, 1094-1100 (1982).
Here, Closson cooperated with the state and took risks on behalf
of the state, which he would not have otherwise done but for the
agreement. Moreover, Closson's cooperation conferred a large
benefit on the state. To the extent that detrimental reliance is
determinant, fundamental fairness dictates that the state should
be required to specifically perform its part of the bargain.
Other factors enter into the fundamental fairness
equation as well. Closson was initially a cooperative informant
and he complied with all reasonable requests. From the start of
their relationship, the state knew of Closson's concern with
publicity and safety. The police promised him protection and
anonymity, and Branchflower knew that Closson was at least
reluctant, if not unwilling, to testify at an open hearing. By
disclosing Closson's involvement unnecessarily, the state
disregarded Closson's concerns and its own promises. More
troubling is the state's disregard for Closson's safety.
Fundamental fairness mandates that we consider this unnecessary
exposure of Closson's identity. Finally, we must consider
Closson's youth and lack of education, and the state's experience
and knowledge. Here, the prosecution generally treated Closson
fairly and initially did not press its bargaining advantage.
Nevertheless, after the state revealed Closson's identity and
Closson refused to wear the wire with Peters, the more
experienced state should have better controlled the situation.
Instead of negotiating with Closson to determine his concerns,
the state simply threatened Closson with prosecution if he did
not comply with their demand.
On the other side of the scale, although we note that
Closson initially stole the gun and he lied at the search warrant
hearing, these were both excused by the state. Unquestionably,
Closson erred by going into hiding at the time the state made its
objectionable demands and by not communicating his concerns. At
the time, however, eighteen-year-old Closson had no legal counsel
to whom he could turn for advice. In sum, we hold that
fundamental fairness concerns are substantially in Closson's
favor.
A similar situation arose in State v. Johnson, 596 P.2d
308 (Wash. App. 1979). In Johnson, the defendant was an eighteen-
year-old charged with second degree theft. In exchange for a
lesser charge on that crime and immunity on another, Johnson
agreed to cooperate with the authorities. At one point, however,
Johnson had begun to distrust the deputy sheriff with whom he was
dealing, and asked to see an attorney before cooperating further.
The prosecutor considered this a breach of Johnson's agreement
and filed charges.
The Washington Court of Appeals reversed Johnson's
conviction. It noted that Johnson had initially cooperated, and
only had ceased cooperating when the state behaved unreasonably
by denying him access to an attorney. Moreover, the state
suffered no prejudice from Johnson's technical breach, and in
fact, the "state had reaped part of the benefit of its bargain
and was therefore bound to give the defendant a reasonable time
under reasonable conditions to fulfill his part." Id. at 312.
Because the state's action was unreasonable, Johnson was entitled
to have his conviction vacated and the charge dismissed.15
Here, Closson cooperated fully with every reasonable
request. As a result of Closson's assistance, the state was able
to proceed in a very important case. Thus, given Closson's
substantial performance of his part of the bargain, the
indeterminate scope of the agreement, the fact that fundamental
fairness weighs heavily in favor of Closson, and the state's
breach of the agreement, we find it would be unfair for the state
to renege on its part of the bargain. As one court has
explained, "it would be grave error to permit the prosecution to
repudiate its promises in a situation in which it would not be
fair and equitable to allow the State to do so." Kisamore v.
State, 409 A.2d 719, 721 (Md. 1980) (quoting State v. Brockman,
357 A.2d 376, 383 (Md. 1976)).
In sum, we conclude that the state breached its promise
of confidentiality. Moreover, after disclosure of Closson's
identity, the state made an unreasonable demand for further
investigative participation by Closson pursuant to the immunity
agreement. This constituted an anticipatory breach of that
agreement. Closson has substantially complied with his
obligations under the immunity agreement; therefore, we hold that
the state must specifically perform its obligation.
REVERSED and REMANDED to the court of appeals with
directions to remand to the superior court to VACATE Closson's
conviction for second degree theft.
_______________________________
1. Branchflower did not have a lengthy conversation with
Closson, apparently because all parties were anxious to get
started on the investigation.
2. Closson alleges that Branchflower participated in a
press conference on November 12, in which he announced the
arrests and told of Closson's role in the investigation. At the
omnibus hearing, Branchflower admitted that he had participated
in a press conference, but he stated that he thought it took
place at a later date.
3. This testimony was as follows:
Branchflower (questioning Closson): All
right. And now, you realize that your
cooperation with the police sort of extends
to wearing this transmitter as often as they
feel you need to and you're also testifying
truthfully today as well as in the future at
any other court hearings? That's part of our
bargain?
Closson: Yes I do.
4. This petition for hearing concerns only the theft
conviction, and in particular the immunity agreement.
5. Closson asserts that for an error of constitutional
magnitude the standard of review is "harmless beyond a reasonable
doubt." We note, however, that here the terms and scope of an
immunity agreement are clearly within the purview of the court as
fact finder. These terms do not impact upon a finding of guilt
or innocence. Here, they do not impact on immunized testimony or
other constitutional rights. Therefore, the findings of the
superior court as to the terms of the immunity agreement are
reviewable under a clearly erroneous standard.
6. At the omnibus hearing, Grimes conceded that he had
promised Closson "all the protection that was necessary" and
anonymity "during the time he was working with us." We have
previously found a prosecutorial promise of immunity binding on
the state, even in the absence of a statutory grant of authority.
Surina v. Buckalew, 629 P.2d 969, 975 (Alaska 1981). Here,
because the state admits that the promises made by the police
officers became part of the agreement, we need not reach the
question of whether these police officers had authority to bind
the state. We nevertheless must determine the scope of that
promise; while the state concedes that the promise was binding,
it cannot unilaterally determine the scope of its promise.
7. Although an avowed purpose of the state at the search
warrant hearing was to put the terms of the immunity agreement
with Closson on the record, no testimony about the promise of
confidentiality was given. Consequently, to try and reconstruct
the scope of this promise, we must go to other evidence in the
record.
8. The record contains some assertions by prosecution
witnesses as to what Closson "understood,"but does not contain
any evidence of an express limit to the promise of
confidentiality. From this, we conclude that these witnesses
were inferring an implied limit to the scope of the agreement
from Closson's promise to testify in court proceedings.
For evidence of an express term limiting the promise of
confidentiality, we look first to the testimony at the search
warrant hearing. Branchflower later testified that at the time
he called Closson as a witness for the purpose of obtaining a
search warrant, he did not know the details of Closson's
conversation with Grimes. Moreover, at the search warrant
hearing, Branchflower did not testify to the terms of the
immunity agreement himself; rather, he asked Grimes to explain
the immunity agreement to the court. At the search warrant
hearing, Grimes did not testify to any promise of anonymity. Nor
did he testify to a promise by Closson to testify in open court.
Instead, Grimes testified,
Branchflower (questioning Grimes): "Now,
why don't you just recite for the court what
promises have been made to Closson in
exchange for his cooperation with the police?
And include in your answer, if you would,
what it is he's agreed to do."
Grimes: "The promises made to Closson,
my understanding at this time, is that he had
a pending assault and battery charge, which
dates back, I think, a month or 2. That the
case against him would be dropped in regards
to the assault and battery. Additionally,
that for the theft of the weapon from the
residence of Dan Coffey, which hadn't been
reported yet, by the way, he will not be
charged with. In return for this, he has
agreed to have further conversations, as many
as necessary, with Robert Betz, [sic] and
particularly talk about the shooting
incident, the disposition of the gun that was
used, the vehicle that was used, other
persons involved, and possibly who paid money
to have the shooting done. Also, he will
make every attempt possible to have a face-to-
face meeting with this John, possibly last
name of Bright to determine the same
information. . . ."
Branchflower: "All right. And did you
speak to Closson and caution him about the
need for telling the truth, especially during
any court hearings?"
Grimes: "Yes I did."
Grimes later testified that he was present during the entire time
that Branchflower spoke to Closson when the immunity agreement
was arranged at the police station; therefore, Grimes' testimony
at the search warrant hearing about the terms of the agreement is
the best evidence of any agreement between Closson and the state
subsequent to Closson's initial interrogation. Branchflower
testified at the omnibus hearing that he explained to Closson
"that he would have to wear the appropriate gear, the electronic
gear, as requested by the police, as often as they requested, for
as long as they requested"and that "he'd be required to give
testimony, that he would have to give that testimony as often as
called upon to do so, and that during his testimony he would have
to give truthful answers." However, while Branchflower admitted
that he was aware that Closson was concerned about publicity, he
could not recall discussing publicity with Closson:
Butler (Closson's attorney, questioning
Branchflower): "Do you recall or were you
told that [Closson] didn't want his
assistance to be made public?"
Branchflower: "I'm sure he expressed a
concern for that."
Butler: "Okay. And what was your
response?"
Branchflower: "I don't have any idea
what my response was."
At the omnibus hearing, Grimes testified that he had
promised Closson anonymity "during the time he was working with
us." At that hearing, Grimes was also asked, "Was it clear in
your various conversations with Mr. Closson that at some point in
time the prosecution was going to become public and he would have
to testify in public proceedings?" Grimes responded, "That's
correct, yes." However, Grimes did not elaborate or point to any
conversation with Closson which would have expressly limited the
scope of the agreement. Based on the evidence of the record, and
the fact that the superior court did not find an express term
limiting the scope of the agreement, we conclude that there was
none.
9. Closson argues that we should interpret an ambiguous
immunity agreement in favor of the defendant. In other words, we
should consider the agreement from the subjective view of the
defendant. In general, however, contract law gives effect to the
"reasonable expectations of the parties," not the subjective
understanding of one party. Mitford v. de Lasala, 666 P.2d 1000,
1005 (Alaska 1983). Since we hold that a reasonable person would
not have inferred that the promise of confidentiality was limited
to the investigative phase of the case, we need not address this
argument.
10. This testimony occurred in the following colloquy
between Closson's attorney and Branchflower:
Butler (questioning Branchflower):
"Now, you also recall that a promise was made
to Mr. Closson that what he said would not be
made public, don't you?"
Branchflower: "What he said when?"
Butler: "The assistance he was giving
you. That his assistance, assisting the
state, would not be made public?"
Branchflower: "I don't recall making
that statement. I may have. I don't recall
it."
Butler: "But if you did make it, would
you turn around and violate that agreement?"
Branchflower: "It's likely that I -- I
can't imagine making that -- that unqualified
sort of statement, because I knew as a
prosecutor that informants -- the identity of
informants, especially informants who are so
central to the prosecution, that their
identity eventually becomes known, either
through the discovery process or as a
witness. And I expected him to testify on
behalf of the State. I knew that his name
would have to appear at the foot of the
indictment, I knew that his statement would
be discoverable to any defendants that were
to be charged in the future. So I doubt that
I ever told him that his cooperation with the
police would remain a secret from everyone
for all time."
Butler: "If the police made that promise
to him, would you be willing to back that
promise?"
Branchflower: "I'm not sure that I can
answer that."
11. In State v. Kuchenreuther, 218 N.W.2d 621 (Iowa 1974),
Kuchenreuther and the prosecution entered into an immunity
agreement which stated "[t]he County Attorney agrees . . . to
keep all information received as confidential as is possible and
will divulge the source of the information only if necessary to
prosecute other persons other than Darwin Ray Kuchenreuther and
will then require Darwin Ray Kuchenreuther's testimony only after
subpoenaed into court of law." Id. at 622-23. Here, where
Closson was given assurances of confidentiality and was never
told of a requirement to testify in public, we believe it would
be reasonable for Closson to assume that the terms of his
agreement, like Kuchenreuther's, called for public disclosure
only when necessary.
12. "[A] definite and unconditional repudiation of the
contract by a party thereto, communicated to the other, is a
breach of the contract, creating an immediate right of action and
other legal effects, even though it takes place long before the
time prescribed for the promised performance . . . ." Holiday
Inns of America, Inc. v. Peck, 520 P.2d 87, 89 n.3 (Alaska 1974)
(quoting Corbin on Contracts, 959 (1951)).
13. See also People v. Fisher, 657 P.2d 922, 925 (Colo.
1983) ("no other remedy short of enforcement of the promise would
secure fundamental fairness to the defendant").
14. In the plea bargaining arena, the United States Supreme
Court has held that states should be held to strict compliance
with their promises. In Santobello v. New York, 404 U.S. 257
(1971), the prosecutor promised that, in return for a guilty
plea, he would not make a sentence recommendation. However, at
sentencing, a different prosecutor represented the state and he
recommended the maximum sentence. The judge imposed the maximum
sentence, but stressed that he was compelled to do so by the
facts and was not influenced by the prosecutor's recommendation.
Id. at 259.
The Supreme Court found such a breach to be a violation
of fundamental fairness. The defendant had "'bargained' and
negotiated"for this promise so "the prosecution is not in a good
position to argue that its inadvertent breach of agreement is
immaterial." Id. at 262. "[W]hen a plea rests in any
significant degree on a promise or agreement of the prosecutor,
so that it can be said to be part of the inducement or
consideration, such promise must be fulfilled." Id.
We recognize that not all of the judicial concerns of
plea bargaining are implicated when the prosecution grants
immunity in exchange for cooperation without requiring the
accused to plea to a lesser charge. However, we have previously
applied the principles of Santobello to prosecutorial breaches
outside the plea bargaining arena. Surina, 629 P.2d at 978. We
believe that the interests of fairness and the integrity of the
criminal justice system require the application of those
principles here as well. See United States v. Carter, 454 F.2d
426, 427-428 (4th Cir. 1972); People v. Fisher, 657 P.2d 922, 927
(Colo. 1983); State v. Kuchenreuther, 218 N.W.2d 621, 623-24
(Iowa 1974).
15. See also State v. Kuchenreuther, 218 N.W.2d 621 (Iowa
1974). There the defendant received a grant of immunity in
exchange for promises to cooperate, to make restitution, and to
plead guilty to a charge of disturbing the peace. The defendant
kept his part of the bargain, except that no charge of disturbing
the peace was ever entered against him. Instead, the state
charged him with larceny. Id. at 623. The court reversed his
conviction on the larceny charge, holding that "the bargain made
was breached by the State. Under existing circumstances such is
nothing less than an intolerable violation of our time-honored
fair play norm . . . ." Id. at 624.
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