Courtney v. Harford County

WILNER, Chief Judge. There are two issues in this appeal: (1) whether the Circuit Court for Harford County erred in declaring that a plea agreement between the State and appellants, Daniel and ⁶⁵¹ Joanna Courtney, was null and void because of a breach of that agreement by the Courtneys, and (2) whether that ruling is presently appealable. We shall answer both questions in the affirmative. Daniel Courtney was an unemployed construction worker.

His wife, Joanna, is a nurse, and for some period it was her earnings that helped to support the family, which also included two young children. Regrettably, Mr. Courtney had another source of income; he became involved in the trafficking of marijuana. On November 23, 1992, pursuant to a search warrant, the Harford County police seized from the Courtneys’ home 35 pounds of marijuana, bonds and stock certificates (the value of which is not revealed in the record), $21,700 in cash, a handgun, and certain drug paraphernalia. Although the full record in the criminal case is not now before us, it appears that the State initially charged Daniel with a variety of drug offenses, including being a drug kingpin (Md.Code, art. 27, § 286(g)).

Following his arrest, he was taken to the police station where, with the assistance of counsel, he and an Assistant State’s Attorney began negotiating a plea agreement. Such an agreement was eventually arrived at a week later. The core of that agreement, from the State’s point of view, was Daniel’s cooperation in obtaining evidence “against other defendants whose culpability is equal to or greater than that of [Daniel].” Undisputed evidence was subsequently presented that, in addition to insisting upon the forfeiture of certain property, the State wanted complete cooperation from Daniel in deciphering cryptic notes in documents seized from his home and with respect to both his suppliers and his customers. Daniel was generally willing to provide the cooperation demanded, including “setting up” drug deals with his suppliers, but he was unwilling to set up drug deals with his customers, whom he regarded as friends.

That point was made clear by Daniel’s attorney: “We indicated that was not on the table.” After many hours of discussion, the parties agreed to specific ⁶⁵² language, including that quoted above, which both Daniel and his attorney viewed as not requiring Daniel to set up controlled buys with respect to Daniel’s customers, whose culpability would not be “equal to or greater” than Daniel’s. There is no evidence that, at the time the agreement was signed, the State had any different view on that point. The final written agreement, which was signed on the evening of November 30, set forth Daniel’s obligation to cooperate as follows: “A. Daniel Courtney shall fully and truthfully respond to all questions put to him by any law enforcement authority. Specifically, he shall fully and truthfidly disclose to the State everything he knows concerning the distribution, sale, transportation and use of controlled dangerous substances, or any other information related to his supplier in Baltimore City and Texas.

He will further provide information on individuals he supplied. B. Daniel Courtney shall testify fully and truthfully before Grand Juries and at all trials or hearings resulting from or related to information provided by Daniel Courtney, or when his testimony may be relevant, in the opinion of the State’s Attorney.” In return for “the complete fulfillment by Daniel Courtney of all of his obligations under this agreement,” which included the cooperation described above, the Courtneys’ consent to the forfeiture of the cash found in their home at 1910 Treeline Drive, as well as the home itself, and certain other undertakings not relevant here, the State agreed (1) not to charge Joanna with any offense, and (2) to charge Daniel only with possession with intent to distribute marijuana, accept a plea of guilty to that offense, and recommend a suspended sentence of five years. Additionally, the U.S. Attorney’s Office, which was represented in the negotiations, agreed to allow all charges to be prosecuted by the State, and thus to forego Federal prosecution. The Attorney General also agreed not to prosecute Daniel on any criminal charge related to the investigation.

Paragraph 2.C. of the agreement provided: ⁶⁵³ “Whether or not Daniel Courtney has completely fulfilled all of his obligations under this agreement shall be determined by the Court in an appropriate proceeding at which his disclosures and evidence shall be admissible and at which the State shall be required to establish a breach by a preponderance of the evidence.” In ¶ 3, the Courtneys acknowledged that “any violation of the above stated terms and conditions shall be a violation of this agreement and will result in Daniel Courtney being charged with all criminal offenses which the State, in entering this agreement, waived its right to prosecute against said individual.” Although she had not, at that point, been charged with any offenses, Joanna signed the plea agreement with her husband (and her husband’s attorney), presumably to make effective their consent to the forfeiture of some of the property specified in the agreement. Once the agreement was signed, Joanna and the attorney left the police station, and Daniel underwent an extensive interview by the police. During the course of the conversation, it became clear that the police wanted him to set up controlled buys with one or more of his customers, at which point Daniel balked. He was permitted to stop the interview and call his attorney.

The attorney advised him to continue with the “debriefing” and said that he would contact the prosecutor the next day. That, indeed, he did, informing the prosecutor that setting up customers was not part of the bargain. Although not denying that assertion, the prosecutor was adamant that Daniel would have to do as he was told. When defense counsel suggested that there was a misunderstanding and proposed that “we see a judge,” which was the remedy provided for in ¶ 2.C. of the agreement, the prosecutor responded that he was “not interested in seeing a judge,” and, if Daniel did not agree to set up his customers, the prosecutor was going to have Mrs. Courtney “locked up posthaste.” In a subsequent complaint for injunctive relief, Daniel and Joanna alleged that the prosecutor in fact threatened to “revoke the ⁶⁵⁴ agreement in its entirety, immediately arrest both Mr. Courtney and Mrs. Courtney, place the Courtney’s children in foster care and prosecute Mr. Courtney under the Drug Kingpin Statute.” Defense counsel got a reprieve from the prosecutor until 10:30 the next morning so that he could consult with another attorney in his firm.

Rather than proceeding immediately to file a motion to have the court determine whether appellant was obliged to make controlled sales to his customers, the attorneys felt constrained to yield to the prosecutor’s demands. They were concerned, as was Daniel, over the “catastrophic occurrence to Mrs. Courtney” if the State followed through with its threat to have her arrested: she would most likely lose her job as a nurse. Daniel therefore reluctantly agreed to make controlled sales to at least one of his customers. He had already given the police all of the information they asked for about his customers, as well as about his Baltimore supplier.

Daniel contacted one of the customers, Robert Meehan, as directed by the police. Unknown to them, Joanna, and later Daniel, had already tipped off Meehan, and so the sale did not take place. Meehan said that on the Thursday after Thanksgiving, which would have been on December 3, Joanna called to inform him that Daniel had been arrested, that their assets had been seized, and that the police knew who he was and were after him. She also asked for the money Meehan owed to the Courtneys.

Joanna subsequently met Meehan, repeated what she had previously said, and added that “Danny was going to try to set [Meehan] up for a deal in the near future that, and [Meehan] needed to, you know, say [he] wasn’t interested, and that [he] would be off the hook, and [he] also gave [Joanna] some money.” The next week, Daniel called and confirmed that Meehan was under surveillance, that Daniel was going to set up a deal, and that Meehan was to decline. Notwithstanding Meehan’s refusal to participate in the controlled buy engineered by the police, he was arrested, based, ⁶⁵⁵ in large measure, on the information supplied by Daniel. Nonetheless, when the State learned of the Courtneys’ communications with Meehan, it declared the plea agreement breached and of no effect. A letter to that effect was sent to counsel for the Courtneys on January 8, 1993.

The Courtneys succeeded in presenting their opposition to the State’s action to Judge Waldron, of the Circuit Court for Harford County, in early February, 1993. Following an evidentiary hearing, the court, in findings announced from the bench, declared that Daniel had indeed breached the agreement, thereby justifying the State’s response. The court first held that, in fact, Daniel had no obligation under the agreement “to set up the people that he supplied.” His only obligation was to supply information, which he had done. It further declared, however, that, when the dispute erupted as to Daniel’s obligation, he had the “full opportunity” to seek an interpretation of the agreement from the court “and to stop the State from any action deemed as a bullying.” At that point, the court held, there had been no breach of the agreement: “He didn’t have the exposure.

The issue of getting the wife arrested could have been addressed, also, so they could have come in and seen a judge on an [ex parte ] basis, and the judge could have easily interpreted this and shielded the wife.” Instead of taking that available course, the Courtneys chose to warn the target. As to that, the court observed: “Good faith is an element in every agreement, whether it’s a civil type or plea agreement, and it is particularly an element of plea agreements. What the Defendant did, he tipped off someone who he was supplying, so in two ways frustrating the purpose of the information, and he [e]ffectively denied the consideration to the State.” The court viewed that transgression as denying to the State information on the “chain” below Daniel: “he really ended up only delivering one of the people in the net, and in essence closing down the chain below him.” Thus, it concluded that Daniel did not act in good faith, that he frustrated the reason for the agreement, and that he should therefore lose the ⁶⁵⁶ benefits. An order formally declaring the agreement null and void was entered on February 25, 1993.

Following that ruling, State and Federal agencies proceeded with a vengeance. Through various motions and other papers filed in this Court, including an undisputed affidavit filed by an attorney for the Courtneys, we were informed that both Mr. and Mrs. Courtney were subsequently arrested and charged with a variety of offenses, including being drug kingpins, that both, at least for a time, were held without bail, that their vehicles were seized, and that Federal marshals seized their home in Harford County (1910 Treeline Drive) and other property in Baltimore City. At some point, the prosecutor offered a new plea agreement far more onerous to the Courtneys than the first. Daniel was to