Butler v. State

Moylan, J., delivered the opinion of the Court. At its most fundamental level, the problem is that lines that should be drawn with precision are being, carelessly or deliberately, blurred. A blurred fact pattern begets a blurred issue; a blurred issue begets a blurred appellate decision; a blurred appellate decision begets more blurred issues ad infinitum. The single, but exasperatingly diffuse, claim of the appellant, Charles Reed Butler, is that he somehow made a deal, more or less, with a couple of policemen; that pursuant to ⁴¹² that deal, he somehow performed, more or less; and that if the judicial branch does not intervene (whether it has such sweeping power or not) to bar forever his prosecution in the Circuit Court for Charles County for armed robbery, we are all heading straight for the Gulag Archipelago.

In the teeth of such cosmic considerations, mere technicalities such as (1) whether the party ostensibly representing the State had the power to make a binding agreement; (2) what binding agreements anyone representing the State is authorized to make; (3) what were the precise terms of the agreement; (4) did the appellant breach the agreement by inadequate performance; (5) who has the burden of proof with respect to all of the above issues; (6) who shall be commissioned to judge the adequacy of such performance; (7) are such agreements enforceable in the criminal courts or only in equity; and (8) what, if any, sanctions are available to the reviewing judge, are dismissed as things that pedants fuss about. The appellant demands simply that rough justice be done. Because this homespun plea of "It just ain’t right,” unknown to Coke or Blackstone, is becoming increasingly disturbing to increasingly sensitive judicial antennae, some precision, of language and of thought, in this murky business is called for. It is important that we identify precisely what the present claim involves.

It is perhaps even more important that we identify what the present claim does not involve. The Present Case The appellant was convicted in the Circuit Court for Charles County by Judge George W. Bowling, sitting without a jury, of (1) armed robbery, (2) assault with intent to disable, (3) false imprisonment, and (4) the use of a handgun in the commission of a felony. He received a sentence of twenty-five years imprisonment. Upon this appeal, he makes no claim that his trial was flawed in any respect.

His claim rather is that he asserted a valid plea in bar to the ⁴¹³ very bringing of the prosecution and that the dismissal of that plea was in error. The armed robbery that gave rise to this case occurred on July 1, 1981 at Earle’s Truck Stop in Bel Alton, Charles County, Maryland. Investigating that armed robbery, perpetrated by a number of assailants, were Investigators Rex Coffey and J. T. Hindle, of the Vice Intelligence Section of the Charles County Sheriffs Department. In some unspecified fashion, suspicion focused on the appellant.

On July 9, eight days after the robbery, a very tentative conversation occurred between Investigator Coffey and the appellant. The appellant was not in custody and makes no claim in that regard. As a result of the first tentative conversation, a second conversation ensued. The two investigating officers agreed not to charge the appellant if the appellant gave them a truthful statement revealing his total knowledge of the armed robbery.

The agreement (a model of imprecision) between the two investigators and the appellant was reduced to writing and became a key exhibit in the case. It provided: "We, Rex Coffey and J. T. Hindle, do promise that we will not charge Charles Reed Butler for the crime of Armed Robbery on the condition that Charles Reed Butler gives a statement of truth of all knowledge of the crime of the Armed Robbery of Earle’s Truck Stop.” Pursuant to that agreement, the appellant gave a statement to the police on July 10. The heart of his narration was as follows: "On Monday night about 9:00 Larry Lucas called me and said he had a deal lined up. He asked me if I wanted to make a thousand dollars.

All I had to do was let a couple of guys stay in my tool shed for a little while. He said four guys. On Tuesday night he called me again and told me to meet him over at Rolling Hills at 2:00 a.m. I went to Rolling Hills that night and Larry Lucas and the four other guys were already there.

He told me then that they were ⁴¹⁴ going to rob Earle’s Truck Stop between four and five o’clock that morning. He said all I had to do is wait at the end of my driveway and when he dropped the guys off I was to take them up to my tool shed and hide them there and then between 6:30 and 7:00 someone else would pick them up. So I said O.K. I told him when I left there I was going to stop by Earle’s and check it out. I wanted to see what it looked like for my own self.

I went back home and stayed until about 4:30 a.m. that morning. Then I went down to the road and stayed about forty-five minutes until he came along. When he came by the turn he kept right on going. About a half mile behind him was another car.

When he went by me I went on up to the house because I didn’t know what was going on. A few seconds later I heard tires squealing. I don’t know what happened. I went in and was setting at the table having some coffee and about a half hour later Larry Lucas knocked at my door.

He told me the guys were in the tool shed. He said someone would be there within an hour to pick them up. About an hour later a brown car with Virginia tags pulled up in the driveway. The guys got in the car and left.” Several pages of additional questions and answers provided little by way of amplification.

The appellant did describe Larry Lucas’ automobile. The appellant could not identify the five persons who were the robbers except to say that he had heard "one of them call the name Freddie or Eddie, I think it was Eddie.” The appellant acknowledged only the receipt of $300 from the robbery, paid to him by Larry Lucas "the next day about 6 p.m. or 6:30 p.m.” The appellant claimed that the money he received consisted simply of rolls of quarters. The information independently developed by the police revealed the appellant’s statement to have been significantly false and massively incomplete. Included in the money taken in the course of the armed robbery was $1,000 ⁴¹⁵ in Susan B. Anthony silver dollars.

Notwithstanding the appellant’s claim that he had obtained only rolls of quarters, his stepdaughter testified that during the first week of July, 1981, she had received five Susan B. Anthony silver dollars from the appellant and her sister, Valerie, had received five Susan B. Anthony silver dollars as well. The appellant, moreover, accompanied the gift with the admonition, "Don’t spend them here. You will get in trouble for them.” The appellant’s wife informed the two investigators, as she later testified at the appellant’s trial, that on the day before the robbery, the appellant said to her, "Puggy, what would you do with $20,000?” When the wife asked the appellant if he was going to get a bank loan or something like that, he responded, "No. Don’t be so dumb. All it takes is 48 hours.” She further revealed that the appellant told her not to worry "if I don’t come home that night; don’t worry about him because he would be OK.” She further revealed that the appellant was gone all night on the night of June 30-July 1, the night of the robbery.

She did see him the next day when he came home in a station wagon but shortly thereafter left again in an ice cream truck that he owned. On September 9, the two investigators took a statement from one Timothy Hicks. Mr. Hicks had known the appellant all of his life. Mr. Hicks stated that it was the appellant who first broached the subject of armed robbery, inquiring whether Hicks "knew someone that wanted to make some quick money.” Hicks became the intermediary who ultimately put the appellant in touch with the three triggermen who were from the Landover area of Prince George’s County.

Mr. Hicks drove with the appellant to Landover to make the contact. On the night of the actual robbery of Earle’s Truck Stop, Hicks rode with the appellant, the three triggermen, and Larry Lucas as they drove past the truck stop for a preliminary casing of it. Mr. Hicks then left the others and did not participate directly in the robbery. The appellant had told him, however, that "he would take care of him later.” Two of the actual triggermen, Jerome Darryl ⁴¹⁶ Cunningham and Donald Raithel Grey, first gave statements to the investigators and later, pursuant to a plea bargain, testified as State’s witnesses at the appellant’s trial.

Both witnesses revealed that they were introduced to the appellant a day or two before the robbery, that the appellant recruited them to carry out the robbery, that the appellant was familiar with Earle’s Truck Stop and described the circumstances to them in detail, that the appellant reassured them that the surveillance camera in the truck stop had been turned off, and that the appellant supplied them with gloves and with rope for tying up the robbery victim. They both revealed that the appellant drove them to Earle’s Truck Stop on the night of the robbery, passing by it for a preliminary view, stopping to go over again the details of the robbery, and finally returning for the robbery itself. They revealed that the appellant and Larry Lucas remained in Lucas’ car, while the three triggermen went in and perpetrated the robbery. They revealed that the appellant led them to a small shed on his own property where they remained in hiding for several hours.

They revealed further that it was the appellant who directed them to get into his Good Humor truck, in which he drove them back to Prince George’s County on the day after the robbery. The massive evidence of the appellant’s full and total complicity so belied the statement he gave to the investigators, indicating minimal involvement and little knowledge, that they concluded that he had not, pursuant to the agreement, given "a statement of truth of all knowledge of the crime.” As a result, the decision was made to press forward with all charges against him. The appellant moved to have the charges dismissed pursuant to the agreement. Judge Bowling denied this motion and the present appeal has followed from that denial.

Only the State’s Attorney, Not the Police, May Bind the State Even before considering whether we are dealing with (1) a grant of immunity, (2) a plea bargain, or (3) some other ⁴¹⁷ miscellaneous bargain, we should address preliminarily the question of who bargained or promised anything on behalf of the State and whether that party had any authority so to bargain or to make a promise that had any binding effect. The appellant’s negotiations were with two policemen. If the representation of the State had ended at that point, it is clear that there would be no justiciable issue before us. As Judge Wilner thoroughly analyzed for this Court in Winkles v. State, 40 Md.App. 616, 620-621 , 392 A.2d 1173 (1978), the police, in their own right, have no authority to commit the State to anything by way of declining to prosecute: "That promise Lnot to prosecute] 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 in the manner necessary to make valid the alleged agreement. Certainly, a police officer has neither the power himself to make such a promise, nor to bind the State’s Attorney to it.” (Emphasis in original). The Winkles decision not only stated the law unequivocally but analyzed why the law in that regard must and should be as it is, explaining at 40 Md.App. 621 : "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. See Brack v. Wells, 184 Md. 86 (1944); Murphy v. Yates, 276 Md. 475 (1975).” In the present case, however, Investigator Coffey had conferred, by telephone, with the State’s Attorney for Charles County, Stephen Braun, and received Mr. Braun’s permission to negotiate on behalf of the State.

Although Mr. Braun was subsequently appalled at the vague and inartful phrasing of the agreement, his assistant stipulated in open ⁴¹⁸ court that the State’s Attorney’s Office considered itself honor bound as well as legally bound to abide by the terms of the agreement. Accordingly, our analysis must move forward to the nature of that agreement. The Plurality of Benefits That May Be Conferred, with or without Bargaining Even when the State’s Attorney, directly or indirectly, is acting as an authorized representative of the State, at least three significantly distinct legal phenomena may be involved in his actions. We should meticulously keep separate and apart the subjects of (1) the conferral of immunity, (2) a plea bargain, and (3) some other bargain involving something other than a plea to a criminal charge.

The sources of authority are different. The social purposes are different. The legal incidents are different. The procedural rules are different.

Other than the very general notion of some ’’quid pro quo,” the three phenomena are distinct. We only do the law a disservice when we heedlessly blur those distinctions. The conferral of immunity, which involves no bargaining, is further removed conceptually from the two types of bargains than they are from each other. To compare immunity to bargaining is truly to compare apples with oranges, whereas to compare the one type of bargaining with the other is perhaps only to compare oranges with tangerines.

Even there, however, there is a difference. The Granting of Immunity ■ Immunity with a capital "I” is legislatively authorized, legally cognizable, and judicially enforceable. "There is no inherent, common law power in the State’s Attorney or in the Grand Jury or in the judge or in anyone else to confer immunity from prosecution. Immunity is exclusively a creation of statute and can only exist when a statute has brought it into being.

Maryland has no general immunity statute.” Bowie v. State, 14 Md.App. 567, 575 , 287 A.2d 782 (1972), quoted with approval in In Re Special Investigation No. 231, 295 Md. 366, 371 , 455 A.2d 442, 444 (1983). ⁴¹⁹ Maryland has a few limited provisions, both constitutional and statutory, for the granting of immunity for certain specific crimes. See, for example, Md. Const., art. IV, §4B (Compelled Testimony Before Judicial Disabilities Commission); Article 27, Section 23 (Bribery of Public Officers); Article 27, Section 24 (Bribery in Athletic Contests); Article 27, Section 39 (Conspiracy to Bribe); Article 27, Section 262 (Gambling); Article 27, Section 371 (Lottery); Article 27, Section 400 (Obtaining Liquor by Minors); Article 27, Section 540 (Sabotage); Article 33, Section 26-16(c) (Fair Election Practices). Maryland has also provided a "use immunity” for one compelled to testify in a supplementary proceeding.

Md. Cts. & Jud. Proc. Code Ann. §9-119 and Maryland Rule 628c. Neither armed nor unarmed robbery is among these.

Nor is assault with intent to disable; nor is false imprisonment; nor is the use of a handgun in the commission of a felony. Under the circumstances, the State’s Attorney could not have conferred immunity upon the appellant here, even if he had wanted to and even if he had tried to. Immunity, as a formal concept, simply does not exist outside of an explicit authorizing statute. As Judge Smith recently pointed out for the Court of Appeals in In Re Special Investigation No. 231, supra, at 295 Md. 371 , quoting from Bowie v. State, supra, at 14 Md.App. 575 : "It is universally recognized that, absent a statutory grant of power, the prosecuting attorney is not entitled, solely by virtue of his office, to confer immunity upon a witness.” The reason why this vital social decision, and therefore the allocated power, to forego a criminal prosecution is vested in the legislative branch of government, and not the judicial or executive branches, was forcefully articulated by Chief Justice Cardozo for the New York Court of Appeals in Doyle v. Hofstader, 257 N.Y. 244 , 177 N.E. 489, 495 (1931), quoted with approval in both In Re Special Investigation No. 231, supra, and Bowie v. State, supra: "The conclusion, we think, is inescapable that the ⁴²⁰ power to suspend the criminal law by the tender of immunity is not an implied or inherent incident of a power to investigate.

It may be necessary for fruitful results in a particular instance, but it is not so generally indispensable as to attach itself automatically to the mere power to inquire. Whether the good to be attained by procuring the testimony of criminals is greater or less than the evil to be wrought by exempting them forever from prosecution for their crimes is a question of high policy as to which the law-making department of the government is entitled to be heard. ” (Emphasis supplied). Our "law-making department of the government” simply has not sanctioned the granting of immunity (in any of its forms) in exchange for testimony (let alone mere information) as to robbery. Immunity comes, of course, in three forms.

"Use immunity” simply means that the compelled testimony will not be used directly against the compelled witness. It has long been recognized that "use immunity” alone is not broad enough to defeat the privilege, for the danger remains that the compelled testimony might be used indirectly or derivatively to place the witness in a more incriminated posture than he had been in before his testimony. Counselman v. Hitchcock, 142 U.S. 547 , 12 S.Ct. 195 , 35 L.Ed. 1110 (1892). "Transactional immunity” is the broadest of the three forms and means that the compelled witness will not be prosecuted at all for the criminal transaction about which he is compelled to testify.

In the wake of Counselman v. Hitchcock, supra, and for the next sixty years, it was broadly perceived that transactional immunity was the only alternative to use immunity and was, therefore, the only kind of immunity that would effectively negate the privilege against compelled testimonial self-incrimination. This is why most immunity statutes, including Maryland’s, confer a broader immunity (transactional) than is now constitutionally required. The intermediate and constitutionally sufficient variety of "use plus derivative use immunity” was effec ⁴²¹ tively developed in 1964 in Murphy v. Waterfront Commission, 378 U.S. 52 , 84 S.Ct. 1594 , 12 L.Ed.2d 678 (1964), and received the Supreme Court’s official seal of approval in 1972 in Kastigar v. United States, 406 U.S. 441, 446 , 92 S.Ct. 1653 , 32 L.Ed.2d 212, 218 (1972). "Use plus derivative use immunity” guarantees the compelled witness not simply that his words will not be used against him directly, but also that they will not be used indirectly as leads to the development of derivative evidence.

This "leaves the witness and the .. . Government in substantially the same position as if the witness had claimed his privilege in the absence of a state grant of immunity.” Murphy v. Waterfront Commission, supra, at 378 U.S. 79 . 1 Formal immunity is dramatically distinguished from informal agreements that "partake of,” "sound in,” or somehow resemble formal immunity. Formal immunity is not necessarily the subject of a bargain and is frequently forced upon a reluctant witness against that witness’s will. A witness is summonsed to testify at a trial or before a grand jury.

The witness claims the privilege against compelled testimonial self-incrimination. The State, upon explicit statutory authorization, may then officially and upon the record confer a grant of the appropriate form of immunity upon the recalcitrant witness, whether that witness wishes it or not. The witness is then compelled to testify under threat of contempt, for there is no longer any danger that the compelled testimony could operate to incriminate. ⁴²² Formal immunity, moreover, is never given in exchange for (1) cooperation, (2) information, or (3) even non-privileged testimony. The very notion of immunity has no existence outside the context of the constitutional privilege against compelled testimonial self-incrimination.

It is the "flipside” of the privilege. "Immunity displaces the [privilege].” Ullmann v. United States, 350 U.S. 422, 439 , 76 S.Ct. 497 , 100 L.Ed. 511, 525 (1956). "Removing liability removes the danger against which the privilege protects and makes the privilege unavailable.” McCormick, Evidence (2d ed. 1972), §143, "Removing the Danger of Incrimination: Immunity and Immunity Statutes,” at 304. "It [a grant of immunity] thus takes away his constitutional privilege against self-incrimination when he is compelled so to testify and grants him an immunity from prosecution, trial and punishment in place of the privilege.” State v. Panagoulis, 3 Md.App. 330, 337 , 239 A.2d 145 (1968), aff'd, 253 Md. 699 , 253 A.2d 877 (1969).

"[Immunity statutes] seek a rational accommodation between the imperatives of the privilege and the legitimate demands of government to compel citizens to testify.” Kastigar v. United States, supra, at 406 U.S. 446 . Consequently, we should not even use the term of art "immunity” except when we refer to an official grant of immunity in court, pursuant to an authorizing statute, for the single purpose of compelling testimony that would, but for the immunity, be self-incriminating and therefore privileged. Although a quid pro quo of forbearing to prosecute in exchange for anything other than privileged testimony may resemble transactional immunity, it is not immunity. Unlike an informal (even if judicially enforceable) agreement not to prosecute given in exchange for cooperation, information, or testimony, a formal grant of immunity is never conditional.

Confronted with an assertion of the privilege, the prosecutor "throws the dice” and confers unconditional immunity. From that point on, his only guarantees of adequate testimonial performance are the threat of contempt and the threat of perjury. Although a prosécutor’s promise not to prosecute (having certain attributes of transactional immunity) might, under ⁴²³ some emerging theory of equitable estoppel, be judicially enforceable against that prosecutor and those in privity with him in chain of command or line of succession, the legal effect would stop there. That extralegal, even if equitably enforceable, promise would not bind other prosecutors’ offices even in the same state, let alone other states or the federal government.

A legislatively sanctioned grant of official immunity, on the other hand, would have far-flung legal impact. The conferral of immunity would, according to its terms, bind all other prosecutors in the same state. It would, moreover, under the due process clause, confer "use and derivative use” immunity against all other states and against the federal government. 2 Murphy v. Waterfront Commission, supra. Although the appellant repeatedly invoked and alluded to an entitlement to "immunity,” it is clear in the case now before us that we are not remotely dealing with formal immunity in any of its forms.

As we move to other issues, therefore, we should, except to contrast it, scrupulously avoid any mention of the very word "immunity.” A Plea Bargain "Plea bargain” is also a term of art that should be used with care and precision. In Gray v. State, 38 Md.App. 343, 356 , 380 A.2d 1071 (1977), this Court, speaking through Judge Wilner, defined this term of art: "Traditionally, a 'plea bargain’ or 'plea agreement’ contemplates a conditional plea of guilty or nolo contendere to one or more pending charges, the condition usually being either the dismissal or lessening of other charges by one means or another, or some concession being made with respect to disposition, or both.” ⁴²⁴ In that decision, Judge Wilner went on to analyze why a plea bargain and the obligation of the State to live up to its bargained performance fall clearly under the supervisory power of the court. It is because "[a] traditional type of plea bargain, founded upon a plea of guilty or nolo contendere, necessarily invokes the exercise (or non-exercise) of judicial discretion.” 38 Md.App. at 356 . The Court pointed out that, where "the court’s discretion is directly or tacitly required in order to implement the agreement, the court has a right, in determining whether and how to exercise its discretion, to inquire into the agreement and satisfy itself that it is appropriate.” Id. at 357 .

That same decision went on to point out, by way of contrast, that where what is involved is not a plea bargain and where the reciprocal promises are to do things within the unfettered discretion of the defendant and the State, respectively, with no approval by the court being required, the court lacks the same broad power to intervene and to supervise that is present in the case of the plea bargain. The clear jurisdictional predicate for the court’s power to enforce the terms of a plea bargain is set forth by both the Supreme Court and our Court of Appeals. The court must satisfy itself that a plea of guilty on the part of the defendant is freely and voluntarily entered into. A breach by the State of its part of the bargain negates the voluntariness of the plea and justifies its withdrawal.

In Santobello v. New York, 404 U.S. 257, 262 , 92 S.Ct. 495 , 30 L.Ed.2d 427, 433 (1971), the Supreme Court referred to this judicial supervisory power over the acceptance of a guilty plea: "A court may reject a plea in exercise of sound judicial discretion. This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the ⁴²⁵ prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” In Miller v. State, 272 Md. 249, 255 , 322 A.2d 527 (1974), the Court of Appeals, speaking through Judge Eldridge, also pointed out the vital connection between the prosecutor’s performance of his part of the bargain and the voluntariness of the guilty plea, the unfairness of holding the defendant to his agreement following a breach by the prosecutor: "The reason the defendant is usually permitted to withdraw his guilty plea, if that is his choice, was expressed by Mr. Justice Marshall in Santobello as follows ([404 U.S.] at 268): 'When a prosecutor breaks the bargain, he undercuts the basis for the waiver of constitutinal rights implicit in the plea. This, it seems to me, provides the defendant ample justification for rescinding the plea.

Where a promise is "unfulfilled,” Brady v. United States, 397 U.S. 742, 755 (1970), specifically denies that the plea "must stand.” ’ In our view, the better practice, and the one supported by the majority of cases, is to permit the defendant to withdraw the plea. Accordingly, where a guilty plea has been induced by the prosecutor’s agreement to make no recommendation as to sentencing, and the prosecutor violates that agreement, the defendant may at his option have the guilty plea vacated.” The predicate for the court’s intervention is by no means so clear when the bargain between a suspect and a prosecutor involves something other than a plea, which must be accepted by the judge and the voluntariness of which must be established before him. In yet another significant regard, the plea bargain contrasts with other miscellaneous bargains. The interest of the courts in the plea bargaining pro ⁴²⁶ cess is based not so much on the equitable notion that every suspect citizen be treated fairly by the elected prosecutor but rather on the credibility of the plea bargaining process and the indispensable role that that process today plays in the management of an otherwise overwhelming caseload.

The vital nature of the plea bargaining process was well summarized by the Supreme Court in Santobello v. New York, supra, at 404 U.S. 260 -261: "The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called 'plea bargaining,’ is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities. Disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons.” This indispensable role played by the plea bargaining phenomenon in the administration of the criminal justice system and the consequent concern of the courts for maintaining the