Bowers v. State, 1-1085A264
| Decision Date | 17 February 1986 |
| Docket Number | No. 1-1085A264,1-1085A264 |
| Citation | 489 N.E.2d 526 |
| Parties | Jimmy Craig BOWERS, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
| Court | Indiana Appellate Court |
David A. Deem, Hart, Bell, Deem, Ewing & Stuckey, Vincennes, for defendant-appellant.
Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for plaintiff-appellee.
Defendant-appellant, Jimmy Craig Bowers (Bowers), initiates this interlocutory appeal from a ruling by the Knox Circuit Court denying his pre-trial Motion to Dismiss his Information alleging burglary, a Class B felony. 1 Bowers filed his pre-trial Motion to Dismiss on September 23, 1985, on the ground that he had a binding agreement with the State to dismiss the charges against him in exchange for information he supplied pertaining to other unrelated criminal activity. The trial court's findings and ruling on the motion were issued following a full hearing on September 24 and 25, 1985.
Judgment affirmed.
On July 3, 1984, at approximately 3:00 a.m., Bowers was arrested in Vincennes, Indiana, in connection with an alleged burglary. Before noon on the same morning, Bowers was involved in a series of negotiations with police officers in Vincennes and a Deputy Prosecuting Attorney. According to the trial court's findings, there was an agreement between the deputy prosecutor and Bowers to the effect that should Bowers give information concerning a Davy Williams of a sufficient quantity to be "fruitful" in obtaining a search warrant against Williams, any charges against Bowers pertaining to his arrest would be dismissed. The trial court also found that the information Bowers provided did prove fruitful in obtaining and executing the search warrant, fulfilling the terms of the agreeement. Subsequent to the arrest of Williams, the State filed the Information in dispute here against Bowers on July 5, 1984.
Whether the trial court erred in denying Bowers' Motion to Dismiss.
Before addressing the merits of this appeal, the State raises a procedural issue asserting that Bowers waived any issue in his Motion to Dismiss for failure to comply with the statutory time requirements under IND. CODE 35-34-1-4. Bowers counters by asserting that according to IND. CODE 35-34-1-4(b), a motion to dismiss may be made at any time before trial under IND. CODE 35-34-1-4(a)(11) on any ground that is a basis for dismissal as a matter of law.
Bowers apparently did not state in his motion the specific ground under which he was claiming relief, nor apparently did the State object during the hearing that the motion was not timely. Since there is a ground upon which the trial court could have allowed the motion to be filed, we cannot say the trial court was in error in allowing Bowers to proceed on the motion.
Turning to the merits of this case, Bowers' argument is based on the notion that the agreement is enforceable under contract law, and the State should be estopped by all theories of law, equity, public policy, due process, and fundamental fairness from prosecuting the charges against him.
While not specifically stating so, Bowers here is requesting more than a motion to dismiss the charges against him according to the agreement. Under IND. CODE 35-34-1-13(b):
"In any case where an order sustaining a motion to dismiss would otherwise constitute a bar to further prosecution of the crime charged, unless the defendant objects to dismissal, the granting of the motion does not bar a subsequent trial of the defendant on the offense charged."
Bowers does not indicate that the motion to dismiss here would be in any way objectionable but in fact requests this relief. A dismissal in this regard is not tantamount to an acquittal since jeopardy has not yet attached and there has been no adjudication of guilt or innocence. Copeland v. State (1961), 242 Ind. 290, 178 N.E.2d 463. See Swinehart v. State (1978), 268 Ind. 460, 376 N.E.2d 486. Therefore, absent any allegation of prosecutorial vindictiveness which has not been done here, see Hughes v. State (1985), Ind.App., 473 N.E.2d 630, trans. denied, the prosecutor could dismiss the charges as agreed and later re-file them unless Bowers is seeking a form of acquittal through the agreement as a bar to all further prosecution on the alleged crime.
Even assuming the relief Bowers requests is to bar further prosecution on the charges filed against him, his reliance on arguments of contract, public policy, and integrity of the legal system must fail. In Bullock v. State (1979), Ind.App., 397 N.E.2d 310, the court clearly held that an agreement between the State and a defendant to dismiss a charge in exchange for testimony in an unrelated case was not an enforceable contract and rejected the notion that this type of case could be properly resolved by contract law. Resort to arguments questioning the integrity of the legal system for this result were unpersuasive to the court in Bullock, and arguments seeking equitable enforcement of such agreements on public policy grounds were equally unavailing in Rihl v. State (1980), Ind.App., 413 N.E.2d 1046. Where a prosecutor agrees to delay or dismiss a prosecution, it is void as against public policy, even though the prosecutor's actions may have been inspired by worthy motives. 8 I.L.E. Criminal Law Sec. 19 (1971). See State v. Bain (1887), 112 Ind. 335, 14 N.E. 232.
In Rihl, supra, the court noticed three underlying factors in cases involving agreements between representatives of the State and a defendant: "(1) the involvement of the prosecutor; (2) at least nominal approval by the court; and (3) some detriment to the defendant by the State's failure to abide by its bargain." Id. at 1053. In the case at bar, the court found that Bowers had an agreement with the deputy prosecutor, and we agree that a deputy prosecutor, as representative of the State, was cloaked with the authority of the prosecutor's office to enter into agreements with a defendant. Crose v. State (1985), Ind.App., 482 N.E.2d 763. However, there was no prior approval of the agreement by a court empowered to do so, and Bowers incurred no detriment by the State's breach sufficient to justify equitable enforcement of the bargain. Our legislature has sanctioned agreements between the State and a defendant in the areas of immunity and plea agreements but only upon court supervision and approval. Bowers argues that the principles underlying immunity and plea agreements do not apply since he is basing his argument on principles of contract law. Nevertheless, these legislative provisions are instructive.
The immunity statutes are somewhat analogous to the plea bargaining statutes in that both are a means for the State to deal with recalcitrant, but essential witnesses. Walters v. State (1979), 271 Ind. 598, 394 N.E.2d 154. The courts have given prosecutors wide discretion under their statutory powers, Neeley v. State (1983), Ind., 457 N.E.2d 532, but the legislature has limited their bargaining power in the areas of immunity and plea bargaining. In In re Contempt Findings Against Schultz (1981), Ind.App., 428 N.E.2d 1284, trans. denied, this court construed IND. CODE 35-6-3-1 (currently IND. CODE 35-37-3) to confer only use immunity. Prior to this case, the appellate courts refused to enforce agreements between the State and a defendant based on theories of contract law in Rihl, supra, and in Bullock, supra. Subsequently, the immunity statute was amended, effective 1982, reflecting the Schultz decision and specifically granted only use immunity. IND. CODE 35-37-3-2, 3. Where the legislature adopts prior judicial interpretation in a re-enacted statute, prior interpretation is prima facie evidence of legislative intent. 2A N. SINGER, SUTHERLAND STATUTORY CONSTRUCTION Sec. 49.09 (4th ed. 1984). No provision was made to extend the prosecutor's power to contract with defendants without court supervision. Regardless of whether the legislature was aware of the prior decisions refusing to enforce such bargains under contract law, the purposes under the immunity statutes are analogous to those under the plea bargaining statutes, Walters, supra, and the construction of statutes regarding the same subject matter are to be given harmonious effect to each, i.e. in pari materia. Ogle v. St. John's Hickey Memorial Hospital (1985), Ind.App., ...
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Bowers v. State
...hearing, the trial court denied the motion and defendant filed this interlocutory appeal challenging that ruling. In Bowers v. State (1986), Ind.App., 489 N.E.2d 526, the Court of Appeals affirmed the trial While this type of dispute is not necessarily resolved by abstract application of co......