397 N.E.2d 310 - Bullock v. State

BUCHANAN, Chief Judge.

¶1CASE SUMMARY

¶2Defendant Yvonne Bullock (Bullock) appeals from her conviction under the Offenses Against Property Act for shoplifting, challenging the trial court’s denial of her motion to dismiss. The motion was based on the alleged failure of the prosecutor to abide by an agreement whereby the defendant’s shoplifting charge would be dismissed in exchange for her testimony in the trial of an unrelated case.

¶3We affirm.

¶4PACTS

¶5The facts most favorable to the State are:

¶6Bullock testified before a grand jury in an arson-felony murder case against one Lonnie Fowler (Fowler). Following that testimony, she entered into an oral agreement with the prosecutor, whereby the shoplifting charge as well as another pending charge against her would, be dismissed if she testified at Fowler’s trial.1 She was subpoenaed in the Fowler case and went to *312court several times in order to testify; however, each time the Fowler case was continued, and she was never called to the stand. Eventually the State dismissed the Fowler case.

¶7Subsequently, Bullock was tried for shoplifting. In her motion to dismiss, she contended the State should be bound by the agreement, inasmuch as the State had prevented her from completing her part of the bargain. The court, after conducting a hearing, denied the motion. The trial judge ordered that any evidence obtained as a result of the agreement should be suppressed. After a trial, Bullock was convicted.

¶8ISSUE

¶9The sole issue presented here is whether the trial court erred in denying the motion to dismiss, or more precisely, is the State bound to abide by the agreement?

¶10PARTIES’ CONTENTIONS

¶11Bullock’s argument is in two parts: first, integrity of the legal process requires dismissal; . second, the agreement was a contract which should be enforced.

¶12The State responds that the trial court was not bound by the agreement under either theory.

¶13DECISION

¶14CONCLUSION — The court did not err in denying the motion, because none of defendant’s rights were violated and the agreement was not an enforceable contract.2

¶15Bullock casts her lot with two cases, Santobello v. New York (1971), 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427, and Dube v. State (1971), 257 Ind. 398, 275 N.E.2d 7. Both involve broken agreements concerning plea bargains.3 In each case the defendant pleaded guilty in reliance upon a prosecutor’s promise concerning a recommended sentence; in each the State failed to live up to its side of the bargain; in each the Court held there was a violation of constitutional rights.

¶16These cases are alien to Bullock’s situation. That the agreement here does not rise to the equivalent of a plea bargain is plain.4 A defendant entering a guilty plea forfeits certain rights, including the right to a jury trial, to confront witnesses, to present witnesses in his defense, to remain silent, and to be convicted by proof beyond a reasonable doubt. Santobello, 92 S.Ct. at 500 (Douglas, J., concurring). Thus, if the plea is unfairly obtained, it is not voluntary and so constitutes a violation of a defendant’s rights. See id. at 499.

¶17Bullock forfeited none of these rights,5 and she does not argue that any rights were *313forfeited.6 She entered a plea of not guilty to the charge and received a fair hearing. This was the same due process accorded the defendant in Dube, supra.There our Supreme Court remanded the case to allow the defendant to withdraw his guilty plea. The Court did not order the result which would have obtained if the State had performed its part of the agreement. Nor did the United States Supreme Court fashion any such order in the Santobellocase. There the Court remanded the case to the state court for a determination of the proper relief, leaving that question to the discretion of the state. See Gross v. State (1975), Ind.App., 338 N.E.2d 663, 665 n.4. Specific performance is not constitutionally mandated by every instance of a broken prosecuto-rial bargain.

¶18Notwithstanding this fact, Bullock insists that the integrity of the legal system requires dismissal here. Such a question is not of constitutional dimension, although it may be covered by legislative enactment. Cf. United States v. Russell (1973), 411 U.S. 423, 433, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366, 374 (entrapment). The decision whether to prosecute is lodged in the executive branch of government. If no rights have been violated, and in the absence of a directive from the legislature or our Supreme Court, we cannot exercise a “chancellor’s foot” veto over the executive branch.

¶19Moreover, Bullock’s contract claim that she forfeited something by appearing in court for the purpose of testifying is specious. She had no right to refuse the subpoena. See Ind. Code § 35-1-31-1. Nor had she any right to testify falsely if called to the stand, see United States v. Wong (1977), 431 U.S. 174, 97 S.Ct. 1823, 52 L.Ed.2d 231, and her previous grand jury testimony could have been used to impeach her. If she had a right not to testify as to self-incriminating matters, her remedy was to invoke that right when questioned. See Ind. Code § 35-6-3-1. At the hearing on the motion, the defendant admitted she was not prejudiced in any way by her courtroom appearances. She did not rely on the agreement to her detriment.

¶20So even under accepted principles of contract law, this was not an enforceable bargain. Bullock did only what she was already legally bound to do. The State’s promise was nothing more than a gift, unaccompanied by elements of promissory es-toppel. It certainly was not the “deceptive contrivance” the defendant alleges, and the State cannot be held to a bargain unenforceable between private parties.

¶21For these reasons, the trial court committed no error in denying the motion.

¶22Affirmed.

ROBERTSON, J. (by designation), concurs.SHIELDS, J., dissents with opinion.

¶23. In her brief the defendant characterizes this as her promise to “cooperate.'

¶24. Although we reject the notion that a case such as this is properly resolved by contract law, we address the argument only to expose its frailty.

¶25. The Dubeholding has never been extended beyond the context of a plea bargain. See, e. g., McMahan v. State (1978), Ind., 382 N.E.2d 154; Kelly v. State (1972), 259 Ind. 414, 287 N.E.2d 872.

¶26. Nor did the agreement constitute any legally recognized “immunity.” This is true for two reasons. First, it is not within the purview of Ind. Code § 35-6-3-1, nor were the procedures outlined in that statute followed. Second, and more basically, the concept of immunity properly extends only so far as the right to be free from compelled self-incrimination under the fifth amendment of the United States Constitution and Article I, Section 14 of the Constitution of the State of Indiana. See generally 21 Am.Jur.2d, Criminal Law §§ 146-148. Thus, while Bullock could have been accorded immunity from prosecution in the Fowler case (where the State suggests she was a suspect) in exchange for her testimony, such immunity could not extend to bar prosecution in this unrelated proceeding. Indiana courts have construed immunity statutes narrowly. See e. g., Riner v. State (1972), 258 Ind. 428, 281 N.E.2d 815; Michaelree v. State (1929), 92 Ind.App. 147, 168 N.E.2d 27.

¶27.During the hearing on the motion to dismiss, Bullock testified that she waived her right to a jury trial in reliance upon the promise that the charge would be dismissed. After denying the motion to dismiss, the court granted her request for jury trial; however, she later, withdrew that request and asked for trial by the court.

¶28. We therefore decline to address the issue, raised sua sponte in the dissent, concerning effectiveness of counsel. Our Supreme Court has made clear the heavy burden which rests on an appellant raising such a claim. See e. g., Grimes v. State (1977), 266 Ind. 684, 366 N.E.2d 639; Conley v. State (1972), 259 Ind. 29, 284 N.E.2d 803.