Com. v. Sluss

• Decision Date: 08 June 1992
• Docket Number: No. 0017-92-3,0017-92-3
• Citation: 419 S.E.2d 263,14 Va.App. 601
• Parties: COMMONWEALTH of Virginia v. Scott Ray SLUSS. Record
• Court: Virginia Court of Appeals

Page 263

419 S.E.2d 263

14 Va.App. 601

COMMONWEALTH of Virginia v. Scott Ray SLUSS.

Record No. 0017-92-3.

Court of Appeals of Virginia.

June 8, 1992.

Eugene Murphy, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., Leah A. Darron, Asst. Atty. Gen., on brief), for appellant.

David L. Scyphers, Abingdon (Johnson, Scyphers & Austin, P.C., on brief), for appellee.

Present: KOONTZ, C.J., and COLEMAN and MOON, JJ.

COLEMAN, Judge.

The Commonwealth appeals, pursuant to Code § 19.2-398, from a trial court order that suppressed statements made by Scott Ray Sluss to agents of the Commonwealth and the evidence derived from those statements. The basis for the trial judge's ruling was that the statements were involuntary because they were induced by a promise of immunity from the Commonwealth's attorney that was later retracted in violation of Sluss's fifth amendment privilege against self-incrimination. We affirm the decision of the trial judge, but for a reason different than his finding that the defendant's statements were not voluntary. We hold that under the terms of the agreement which Sluss had with the Commonwealth, and pursuant to the due process clause of the fourteenth amendment, his statements could not be used against him unless he breached certain conditions of the agreement. We find that the evidence fails to show that Sluss breached the cooperation/immunity contract and, even if as the Commonwealth contends it had the right unilaterally to cancel the contract, Sluss, who had not breached the agreement, was entitled to the benefit of his bargain prior to the Commonwealth canceling the agreement.

A sovereign may override a person's fifth amendment privilege against self-incrimination and thereby compel the person to testify if the government grants to the person immunity that is coextensive with the scope of the constitutional privilege. Kastigar v. United States, 406 U.S. 441, 449, 92 S.Ct. 1653, 1658, 32 L.Ed.2d 212 (1972). In order for the grant of immunity to be coextensive with the fifth amendment protection, the cloak of immunity must provide that the individual's compelled testimony may not be used directly or indirectly against him. Id. at 453, 92 S.Ct. at 1661. Federal prosecutors, with court approval, are authorized by statute to grant a witness immunity and thereby compel the witness to testify over his assertion of the fifth amendment privilege. See 18 U.S.C. § 6002 et seq. Virginia, however, has no analogous statute by which prosecutors, even with judicial approval, may constitutionally compel a witness to testify. But see, e.g., Code §§ 18.2-262, 18.2-437. We held in Gosling v. Commonwealth, 14 Va.App. 158, 415 S.E.2d 870 (1992), that because Code § 19.2-270 confers only use immunity, and does not confer derivative use immunity, the statute may not be invoked to override a person's assertion of the fifth amendment privilege against self-incrimination.

In addition to the statutory grant of immunity, federal prosecutors may enter into cooperation/immunity agreements whereby the government promises an individual immunity from prosecution, or from use of, and/or derivative use of, statements the witness makes to the government. These agreements are usually made in consideration for the individual's cooperation in providing information concerning criminal activity. See, e.g., United States v. Brown, 801 F.2d 352 (8th Cir.1986); United States v. Irvine, 756 F.2d 708 (9th Cir.1985).

Although no Virginia statutory or case decision has expressly authorized the use of cooperation/immunity agreements, such cooperation/immunity agreements contravene no constitutional or statutory provision. Such agreements are contractual in nature and, thus, are subject to principles of contract law. See Brown, 801 F.2d at 354; Irvine, 756 F.2d at 710. Cf. Holler v. Commonwealth, 220 Va. 961, 265 S.E.2d 715 (1980) (where plea induced by promises by Commonwealth, the promises must be fulfilled); W.A. Jones v. Commonwealth, 217 Va. 248, 227 S.E.2d 701 (1976) (Court held defendant entitled to specific performance where Commonwealth breached plea agreement); Jordan v. Commonwealth, 217 Va. 57, 225 S.E.2d 661 (1976). Furthermore, these agreements, which are analogous to plea agreements, see Brown, 801 F.2d at 354, "must be attended by constitutional safeguards to ensure [that] a defendant receives the performance he is due." United States v. Britt, 917 F.2d 353, 359 (8th Cir.1990) (citing Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498-99, 30 L.Ed.2d 427 (1971)). Thus, unlike commercial contracts, cooperation/immunity agreements are subject to due process safeguards which require that the government strictly adhere to the terms of its agreement. United States v. Pelletier, 898 F.2d 297, 303 (2d Cir.1990). Thus, to allow the government to receive the benefit of its bargain without providing the reciprocal benefit contracted for by the defendant would do more than violate the private contractual rights of the parties--it would offend all notions of fairness in the related criminal proceedings, which are protected by constitutional due process.

The pertinent terms of the cooperation/immunity agreement were that Sluss was to provide law enforcement authorities a complete and accurate account "concerning any and all drug activity of which [Sluss had] knowledge or in which [he had] participated." In exchange for Sluss's cooperation, the Commonwealth promised that "[a]ny information, except information about crimes of violence, given by [Sluss] will not be used against [him] unless and until [he] take[s] the witness stand in any proceeding and give[s] testimony, or otherwise, give[s] statements that are contrary to what [Sluss had] related to the government attorney or attorneys or law enforcement officers." The agreement provided that should Sluss fail to adhere to his obligation under the contract, the government's attorney reserved the right to cancel or terminate the agreement and "such information as [Sluss had] related may then be used against [him] without limitation." In addition, the agreement provided that if the government attorneys or law enforcement determined "any instance where [Sluss] ... omitted any information concerning drugs or drug related matters, or [he gave] false or misleading information" or refused to cooperate, the government attorney had the right to terminate the cooperation/immunity agreement. The agreement provided that the determination whether Sluss omitted any information or gave false or misleading information was within the sole discretion of the government attorney or attorneys.

On Sluss's motion to suppress his statements, the trial judge ruled that because Sluss's statements to agents of the Commonwealth were induced by a promise of immunity, they were given in violation of Sluss's fifth amendment rights and must be suppressed. Although the trial court made no express finding that Sluss's statements were not voluntary, apparently the basis for finding that Sluss's fifth amendment privilege against self-incrimination was violated was that the promise of immunity overcame his will and rendered the statements involuntary. While the Commonwealth has the burden of showing that statements given by a suspect in response to a custodial interrogation are voluntary, on this record, we find nothing to indicate otherwise. Consequently, we hold that the trial court erroneously concluded that Sluss involuntarily made the statements to agents of the Commonwealth.

Nevertheless, where the trial court reaches the correct ruling for the wrong reason, we may affirm the ruling on appeal, provided...