Com. v. Reyes, 87-SC-712-TG

• Decision Date: 19 January 1989
• Docket Number: No. 87-SC-712-TG,87-SC-712-TG
• Citation: 764 S.W.2d 62
• Parties: COMMONWEALTH of Kentucky, Appellant, v. Yorig Ramon REYES, Appellee.
• Court: Supreme Court of Kentucky

Page 62

764 S.W.2d 62

COMMONWEALTH of Kentucky, Appellant, v.Yorig Ramon REYES, Appellee.

No. 87-SC-712-TG.

Supreme Court of Kentucky.

Jan. 19, 1989.

Frederic J. Cowan, Atty. Gen., W.E. Rogers, III, and John L. Atkins, Sp. Asst. Attys. Gen., Hopkinsville, for appellant.

J. Vincent Aprile, II, Asst. Public Advocate, Frankfort and Carey M. Arnold, Louisville, for respondent.

OPINION OF THE COURT

This case comes before us on an appeal by the Commonwealth of Kentucky from an order by Honorable John C. Lovett, sitting as Special Circuit Judge in Christian County.The order appealed from is one sustaining a motion by Reyes to compel the Commonwealth to carry out its written plea bargain agreement.

The plea bargain agreement itself arose from a crime which Judge Lovett describes as "one of the most heinous and infamous in Christian County history."Two soldiers from Fort Campbell held up a liquor store near the base.They took a large amount of cash.They took jewelry from the two female clerks and then compelled the clerks to undress and perform fellatio on them.They then forced the clerks to lie down on the floor of the cooler at the back of the store; and, at the count of three, they sought to "blow them away," each firing two shots.One victim died instantly, and the other survived.

Investigators discovered that one soldier, later identified as Lavassa Anderson, had purchased a .45 caliber handgun at a pawn shop near Fort Campbell.When he was questioned, he claimed he was in Erin, Tennessee, with Yorig Ramon Reyes, appellee herein, at the time of the crime.Reyes was then questioned, and originally confirmed the alibi.However, the officers were convinced he was lying.After a telephone conversation between the sheriff and the Assistant Commonwealth Attorney, Reyes was told that the Commonwealth Attorney's office had promised not to seek the death penalty if Reyes would tell the truth.He thereupon placed a long distance telephone call to his wife out of state, and then confessed.He made a written statement reciting what Judge Lovett refers to as the "odious" details of the crime and verbally supplied other details.He consented to a search of his quarters at the post, his apartment in Clarksville, and his vehicle.He took the officers to show them the location of some of the money and the jewelry taken from one of the victims.He told the officers who had searched his apartment without finding any money that the money was taped to the bottom of a drawer.The officers then located the money, and some of the money was identifiably marked.The jewelry was carefully hidden in cracks in a parking lot, and other money was concealed under a tree.Reyes even led the officers to the .357 Magnum revolver he had used in the crime.

As to his confession regarding the actual shooting, Reyes stated, "They lay down and turned their faces to each other.I think the one with the dark hair was on the left.I was standing on the right ... we went back in, I was still on the right ... I fired two and he fired two."Reyes said he had shot the girl on the right, "the girl with the bright blonde hair."The deputy sheriff showed Reyes the driver's license of the deceased victim, and Reyes said repeatedly, "I shot her."He positively identified the picture of the deceased victim as the person he shot.

Somehow, the Commonwealth Attorney never did become aware of the fact that Reyes was confessing to killing the deceased victim, and proceeded as if Reyes had shot the survivor.He was indicted for complicity in the murder, and Anderson was indicted for the murder.Between Reyes's June 12, 1985 confession and November 12, 1985, the investigation continued, and much additional evidence was uncovered.Reyes was interviewed repeatedly, and repeatedly answered all questions asked by the Commonwealth Attorney or the various officers.In the meantime, ballistic reports on the handguns and various spent shells and recovered bullets were obtained, laboratory reports were issued, as well as serology reports on shoes, jacket and a towel.The firearms laboratory reports on the shell casings, projectiles, the .45 caliber automatic, and the autopsy report, which included toxicology and X-ray reports, were accumulated.

Anderson's trial was scheduled to begin on December 2, 1985, and appellee Reyes was to be a key witness against him.Reyes, however, insisted upon a promise of immunity from the death penalty before his testimony, and the plea bargaining was resumed.The last plea bargain was reduced to writing and signed on November 12, 1985, exactly five months after Reyes had confessed.After this written agreement was signed, the state continued its preparation for Anderson's trial on December 2, and Reyes's counsel began agitating for the court to accept Reyes's plea.His agitation was probably motivated by the fact that he realized his client had confessed to the actual murder and further by the fact that because of the agreement he had made no adequate preparation for Reyes's defense.

Just prior to Anderson's trial, Reyes again insisted that he had shot the lady on the right, the "bright blonde" lady, the one he had identified from the picture, and the one who had died from the gunshots.

As the selection of the jury at Anderson's trial proceeded, the prosecutors learned that the autopsy had disclosed particles of lead in the skull of the deceased victim.These particles of lead had originally been thought to be bone fragments, but the X-ray clearly disclosed they were metal fragments.This discovery exploded the prosecution's theory that Anderson had fired the fatal shot, because Anderson's weapon had fired copper clad projectiles which showed, when recovered, they had not fragmented.The .357 Magnum of appellee Reyes had fired ordinary lead projectiles, which had fragmented.Obviously the deceased victim had been killed by bullets fired from the .357 Magnum, which is what Reyes had been trying to tell them all the time.When the prosecution discovered this on the third day of jury selection in the Anderson trial, the prosecution moved for a continuance.

On December 17, 1985, Reyes was indicted for murder, as well as sodomy and robbery.Anderson then entered into his own plea bargain, agreeing to plead guilty to complicity to murder and to the other charges and to cooperate fully and testify truthfully against Reyes.

As stated before, the defense then moved that the plea agreement be enforced, and the Commonwealth bitterly opposed the motion, claiming that Reyes had not been honest with them and they were no longer bound by the agreement.Reyes, on the other hand, argued that he had in fact been honest with the prosecution but they had failed to understand what he had tried to tell them.The Special Judge entered an order requiring the Commonwealth to go through with its plea bargain and in the order stated that it did not decide whether the court would or must accept the mandated recommendation as to the sentences.He further stated that he had not made and did not then make any commitment concerning the recommendation.

This court affirms the order of the Christian Circuit Court.

The remainder of this opinion is copied from the excellent opinion of Special Judge Lovett, as follows:

"Justice Brennan in his dissent in Ricketts, etc. v. Adamson, 483 U.S. 1, 107 S.Ct. 2680, 97 L.Ed.2d 1(1987) remarked that

This Court has yet to address in any comprehensive way the rules of construction appropriate for disputes involving plea agreements.Nevertheless, it seems clear that the law of commercial contract may in some cases prove useful as an analogy or point of departure in construing a plea agreement, or in framing the terms of the debate ... It is also clear, however, that commercial contract law can do no more than this, because plea agreements are constitutional contracts ... Unlike some commercial contracts, plea agreements must be construed in light of the rights and obligations created by the constitution.

"Many constitutional rights are involved.The due process right to a fair trial; the right against self-incrimination; the right to remain silent; the due process right to fundamental fairness.These, and perhaps others, are necessarily implicated.

"It seems obvious that if the state makes a promise to an accused and the accused takes no action in reliance on the promise, the state may withdraw the offer.No agreement has been reached.There is nothing to enforce.The prosecutor's right to withdraw is equal to his right to withhold an offer.No defendant has a constitutional right to plea bargain.The prosecutor may engage in it or not in his sole discretion.If he wishes, he may go to trial.Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30(1977).If the prosecutor makes a plea bargain offer and withdraws it before it is accepted or detrimentally acted upon by the defendant, the defendant will not be heard to complain that his constitutional rights to due process and effective counsel have been violated.Government of the Virgin Islands v. Scotland, 614 F.2d 360(CA 3, 1980).

"However, if the offer is made by the prosecution and accepted by the accused, either by entering a plea or by taking action to his detriment in reliance on the offer, then the agreement becomes binding and enforceable.Constitutional as well as contractual rights become involved.This is the thrust of Cope v. Commonwealth, Ky., 645 S.W.2d 703(1983) and similar cases in other jurisdictions.In commercial contract law this is offer and acceptance, making a contract, or an offer and detrimental reliance which creates an estoppel preventing withdrawal of the offer.A case to compare is Adkins v. Commonwealth, Ky.App., 647 S.W.2d 502(1983) where the defendant never accepted the state's offer and had taken no action in reliance upon it.'Here, because appellant never personally accepted the Commonwealth's offer, it remained an...