Ex parte Yarber

• Decision Date: 04 March 1983
• Citation: Ex parte Yarber, 437 So.2d 1330 (Ala. 1983)
• Parties: Ex parte Samuel YARBER. (Re: Samuel Yarber v. State of Alabama). 81-242.
• Court: Alabama Supreme Court

Page 1330

437 So.2d 1330

Ex parte Samuel YARBER (Re: Samuel Yarber v.State of Alabama).

81-242.

Supreme Court of Alabama.

March 4, 1983.

Rehearing Denied June 24, 1983.

Frederick A. Erben of Beddow, Fullan & Vowell, Birmingham, and H. Powell Lipscomb, III of Lipscomb & Lipscomb, Birmingham, for petitioner.

Charles A. Graddick, Atty. Gen. and Thomas R. Allison, Asst. Atty. Gen., for respondent.

PER CURIAM.

Samuel Yarber(defendant)petitions this court to review the decision of the Court of Criminal Appeals which affirmed his conviction following his second trial for murder.We granted certiorari to review two issues.The first is: Whether defendant can compel the enforcement of a negotiated plea agreement which had been broken by the state.The second is: Whether defendant's conviction rests on the uncorroborated testimony of an accomplice in violation of Code 1975, § 12-21-222.After reviewing the facts and applicable law, we conclude that defendant can compel the tender of the plea agreement to the trial court, as we explain below.On the other issue, we quash certiorari as having been improvidently granted.

The Court of Criminal Appeals, in its opinion, ¹ sets out the facts surrounding the crime.Our review is concerned solely with the issue of the enforceability of the plea agreement.The Court of Criminal Appeals gave the following treatment to this issue.

VI

Appellant alleges as his final contention of error that a plea bargaining agreement had been reached with the State in this case, but that at the last moment the district attorney refused to abide by the agreement and the case was brought to trial.

No guilty plea was ever entered in the case.The record fails to show that appellant ever did anything in reliance on an agreement made with the prosecution.There was no written plea bargaining agreement ever signed by appellant or any of the attorneys.From the record all the negotiations surrounding a possible settlement of the case were verbal.We conclude that Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427(1971), does not apply in the instant case.

Pursuant to Rule 39(k),Alabama Rules of Appellate Procedure, defendant requested on his application for rehearing that the Court of Criminal Appeals consider facts in addition to those stated in its opinion.That court denied defendant's request, so he now presents the same additional facts to us for our review.Under Rule 39(k), A.R.A.P., we find the additional facts to be correct, and we consider them in this opinion.

The additional facts come from a pretrial motion hearing, one object of which was to compel the enforcement of the broken plea agreement.Frederick A. Erben, Esq., represented the defendant at trial and on appeal.At the pretrial motion hearing, Erben called Charles Barton Dunn, Esq., Assistant District Attorney for Jefferson County, to testify.Dunn was assigned to try defendant's case for the state.Erben and Dunn had negotiated the plea agreement.

Dunn gave the following testimony.One Friday in April 1981, Erben and Dunn discussed the possibility of a negotiated plea in defendant's case.Dunn felt the state had the problem of having to prove its case with the testimony of Danny Ray Mylar.²Dunn explained that he considered Mylar's testimony to be substantially unreliable and lacking in credibility.Dunn, therefore, thought a negotiated plea to be advisable.He and Erben discussed a tentative agreement which entailed dismissing one indictment, amending the other indictment from murder to manslaughter, and allowing defendant to plead guilty and receive a sentence equal to the time he had already served while incarcerated.

Initially, Dunn told Erben that the agreement could not be confirmed until he received the approval of Earl C. Morgan, Esq., with whom final authority rested in the Jefferson County District Attorney's Office.Dunn spoke to Morgan and recommended the agreement.Morgan advised Dunn that the agreement sounded good, but that he wanted to discuss it with another member of their office.After doing so, Morgan told Dunn he should accept the plea agreement on the agreed upon terms.Thereafter, the following week, Erben met with Dunn at Dunn's office.Dunn informed Erben that he had not yet been able to finalize everything with Morgan.Nevertheless, the two went before Circuit Judge Charles R. Crowder, to whom defendant's case had been assigned.Apparently, an informal and off-the-record discussion took place in which Judge Crowder indicated that he believed he would accept the plea agreement if it were entered before him.Later that day, Dunn received final approval for the plea agreement from Morgan.Dunn then called Erben and informed him that the agreement was acceptable.The Circuit Court was subsequently advised that the hearing scheduled for the next two days on the pretrial motions was no longer necessary.

Erben and Dunn planned to formally take the plea to Judge Crowder the next day.The next day, however, Dunn could not do so because he became ill.Erben spoke with Dunn by telephone and asked if some member of Dunn's office could appear in court for the plea.Dunn responded that the victim's family should be notified before the plea was taken so that they would not learn of it first in the newspaper.Dunn explained that he wanted to apprise the victim's family of the reason for the plea agreement.Dunn suggested that Erben call Morgan to secure someone else to appear for the plea, and to be certain someone from the district attorney's office spoke to the victim's family.Erben and Dunn next spoke two days later.At that time, Dunn informed Erben that his office had an extended conversation with the victim's family, who expressed opposition to any plea agreement, and, therefore, that the agreement would not be honored.

Erben also testified at the pretrial motion hearing and recounted many of the same facts.Erben added that he conveyed the offer of the negotiated plea to defendant.Defendant accepted it, and Erben then advised Dunn of the acceptance, indicating everything was finalized for the plea.Erben also testified that he and Dunn agreed that the plea was to be taken on that Wednesday morning as planned.As requested by Dunn, Erben called Morgan in an attempt to find someone else to appear in court for the district attorney's office so that the plea could be taken.Erben conveyed Dunn's request that the victim's family be contacted by Morgan.Erben tried unsuccessfully to reach Morgan again that day to learn when the victim's family would be advised of the plea agreement.However, he did reach Morgan the next day and asked if the delay meant Morgan would not honor the agreement.Morgan advised that was not the case, and that the agreement was sound.Erben learned of the agreement's breach on Friday, when he spoke to Dunn.Neither Dunn nor Morgan had stated that the agreement was subject to the acquiescence of the victim's family.

What we have said here is meant in no way as a reflection on the district attorney Mr. Morgan, or his assistant district attorney Mr. Dunn.This court had not previously decided the specific issue involved here.Indeed, the federal appeals court for the circuit of which Alabama is a part had decided against the enforceability of plea bargains before a guilty plea was entered.

At the conclusion of the pretrial motion hearing, the trial court concluded that the parties had, in fact, entered into the plea agreement.Nevertheless, it declined to enforce the agreement, and defendant stood trial.The jury returned a verdict of guilty of murder in the second degree.Defendant received a sentence of twenty years.

Whether a defendant can compel the enforcement of a plea agreement, broken by the state, where he had not yet pleaded guilty or otherwise relied on the agreement to his disadvantage, is a question of first impression before the appellate courts of this state.The United States Supreme Court noted the validity of negotiating pleas in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747(1970).In Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427(1971), that Court acknowledged both the desirability and enforceability of a negotiated plea.That Court's consideration of the enforceability of a negotiated plea arose in a setting in which the state violated the agreement after the defendant had pleaded guilty in reliance on it.It has yet to speak to the issue framed under facts similar to those of our present case.Other courts that have considered the present issue are split in their rationale and holding.

Some courts decline to enforce a negotiated plea where the state has broken the agreement and where the defendant has neither pleaded guilty in reliance on the agreement, nor cooperated with the state to his disadvantage under the agreement.United States v. Aguilera, 654 F.2d 352(5th Cir.1981);United States v. Ocanas, 628 F.2d 353(5th Cir.1980);Government of the Virgin Islands v. Scotland, 614 F.2d 360(3rd Cir.1980);Shields v. State, 374 A.2d 816(Del.1977), cert. denied, 434 U.S. 893, 98 S.Ct. 271, 54 L.Ed.2d 180(1977).To varying degrees, the holdings of these cases are based on a limited application of contract law to the problem of a broken plea agreement.Absent a showing of detrimental reliance, they reason, specific performance will not lie to enforce the agreement.Thus, a defendant, who has not pleaded guilty or otherwise detrimentally acted in reliance under the terms of the agreement, cannot compel its enforcement.The Fifth Circuit cases adopt the viewpoint that:

Thus, the realization of whatever expectations the prosecutor and defendant have as a result of their bargain depends entirely on the approval of the trial court.Surely neither party contemplates any benefit from the agreement unless and until the trial judge approves the bargain and accepts the guilty plea.Neither party is...