Franklin v. State

• Decision Date: 24 April 1978
• Docket Number: No. 9601,9601
• Citation: 94 Nev. 220,577 P.2d 860
• Parties: Joanne Helen FRANKLIN, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 860

577 P.2d 860

94 Nev. 220

Joanne Helen FRANKLIN, Appellant, v. The STATE of Nevada, Respondent.

No. 9601.

Supreme Court of Nevada.

April 24, 1978.

Jeffrey D. Sobel, Las Vegas, for appellant.

Robert List, Atty. Gen., Carson City, George E. Holt, Clark County Dist. Atty., and L. J. O'Neale, Deputy Dist. Atty., Las Vegas, for respondent.

OPINION

GUNDERSON, Justice.

On appeal, appellant Joanne Franklin (formerly Wellman) raises eleven issues, one of which impels us to order a new trial, to-wit:

Are the due process rights of a defendant on trial offended, when the prosecutor not only plea bargains to obtain inculpatory testimony from a purported accomplice, by allowing him to plead guilty to a reduced charge, but also withholds the fruits of the bargain and continues the threat of full prosecution in order to assure testimony in accord with the prosecutor's vision of truth?

In such circumstances, we think, a defendant is denied due process of law within the meaning of both the Nevada and the federal constitutions.

On September 24, 1972, one Roosevelt Swift murdered William A. Wellman, father of his friend Robert Wellman, in the kitchen of the Wellman family home. Mrs. Wellman, who apparently was watching television in another room during the death struggle, reported the crime to the police. Following arrest, Swift entered plea negotiations. Under threat of a death sentence, Swift ultimately recited a version of events satisfactory to the prosecution, agreeing to testify against Mrs. Wellman. Accordingly the prosecution agreed Swift would be charged with second-degree murder only, receive credit for jail time served, and serve his remaining sentence outside Nevada, in a prison near his home. Only following Mrs. Wellman's trial and conviction, some three years later, did the state perform its side of the exchange. This June, after but five years total incarceration, Swift will be eligible for parole.

In Nevada, recognizing the dangers of accomplice testimony, our Legislature has provided: "A conviction shall not be had on the testimony of an accomplice unless he is corroborated by other evidence which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense; and the corroboration shall not be sufficient if it merely shows the commission of the offense or the circumstances thereof." NRS 175.291(1). As presented at the original preliminary hearing, the State's case against Mrs. Wellman lacked any independent inculpatory evidence whatever. Thus, in Wellman v. Sheriff, 90 Nev. 174, 521 P.2d 365 (1974), this Court ordered the issuance of a writ of habeas corpus, without prejudice to institution of new proceedings, due to the State's failure to show probable cause to hold Mrs. Wellman for trial.

Subsequently, the State reinstituted charges, resulting in Mrs. Wellman's conviction and her sentence to life in prison without possibility of parole. ¹ Therefore, on this second appeal, an enlarged record is before us, consisting not only of testimony elicited from Swift, but also evidence the State subsequently developed in an attempt to corroborate its theory of Mrs. Wellman's guilt. ²

1. Plea bargaining to obtain testimony of an accomplice is not necessarily improper. LaPena v. State, 92 Nev. 1, 544 P.2d 1187 (1976). However, it has been held "that a defendant is denied a fair trial if the prosecution's case depends substantially upon accomplice testimony and the accomplice is placed, either by the prosecution or the court, under a strong compulsion to testify in a particular fashion." People v. Medina, 41 Cal.App.3d 438, 455, 116 Cal.Rptr. 133, 145 (1974). The accomplice witnesses in Medina had been granted immunity expressly conditioned upon the promise that their testimony "not materially or substantially change" from prior tape-recorded statements given to law enforcement officials. Ibid: 116 Cal.Rptr. at 141. Under such an arrangement the court found the defendants had been denied "any effective cross-examination" and "deprived of the fundamental right to a fair trial." Ibid. ³

In so holding the California court recognized the accepted practice to permit an accomplice witness to plea bargain only where he is willing to render a full, fair, and accurate account of the facts out of which the charge arose. See People v. Green, 102 Cal.App.2d 831, 228 P.2d 867 (1951); Harris v. State, 15 Tex.Cr.App. 629 (1884); Rex v. Robinson, 70 D.L.R. 755, 30 B.C. 369 (1921); see also United States v. Ford, 99 U.S. 594, 25 L.Ed. 399 (1878); cf. State v. Quinn, 142 S.W.2d 79 (Mo.1940). However, such testimony becomes "tainted beyond redemption" where the accomplice is placed under compulsion to testify in a particular fashion in order to receive the benefits of his plea bargain. Green, citing above, 228 P.2d at 872.

We agree with the Medina rationale, deciding that its application may not be limited solely to situations where immunity is expressly conditioned on specific testimony. As a matter of logic, if the circumstances of the plea bargain would reasonably cause the alleged accomplice to believe he must testify in a particular fashion, then a less explicit arrangement also violates the defendant's due process rights. ⁴

In Rex v. Robinson, cited above, the British Columbia Court of Appeals stated:

"It is obvious that if the witness . . . get(s) the impression from the Court that unless he told the same story to the Court as he did to the police, he would be executed, then his testimony was tainted beyond redemption and could not, in a legal sense, be weighed by the jury, because the witness was no longer a free agent and there was no standard by which his veracity could be tested or estimated. This is not merely a matter going to the credibility of the witness, but something fundamentally deeper, viz., that by the action of the Court itself the witness was fettered in his testimony and put in so dire a position that the value of his evidence was not capable of appraisement, the situation being reduced to this, essentially, that while at the outset he was adjured to give his evidence freely and fully, yet later on he was warned that if it was not the same as he had already told the police he would be executed. Such a warning defeated the first object of justice, because what the witness should from first to last have understood was that, at all hazards, he was to tell the truth then in the witness box, however false may have been what he had said before in the police station." Ibid. at 761.

The court in Robinson merely inferred that the promised pardon depended upon the testimony being "the same as he had already told the police." Looking objectively at the facts of the instant case, we are led to the same conclusion.

The prosecution did not permit Swift to plead guilty until after his testimony was given at the preliminary hearing and trial. The prosecution obviously had so little faith in Swift's veracity, and willingness to implicate the defendant, that it felt constrained to use the plea bargain as the "fee" to induce his cooperation. Under these circumstances, it cannot be assumed that Swift's testimony was full, fair and accurate. Obviously, such tactics must be extremely effective to elicit testimony the prosecutor desires. ⁵ However, a "prosecutor's primary duty is not to convict but to see that justice is done." SCR 181(3). In our view, justice is not served where the prosecutor must simultaneously purchase and coerce testimony in order to obtain a conviction which might not be achieved with trustworthy evidence.

We note that "(i)t is unprofessional conduct to compensate a witness . . . for giving testimony." A.B.A. Standards on "The Prosecution Function," Standard 3.2, 81 (1971). Cf. People v. Sepeda, 66 Cal.App.3d 700, 136 Cal.Rptr. 119 (1977). A lawyer "should avoid any suggestion calculated to induce any witness to suppress evidence or deviate from the truth." SCR 188(1). Under our system of jurisprudence, if a defendant is to be presumed innocent, then any procedure which commits the prosecution to a chosen theory of guilt, necessarily precludes further inquiry into who may actually be guilty. By bargaining for specific testimony to implicate a defendant, and withholding the benefits of the bargain until after the witness has performed, the prosecution becomes committed to a theory quite possibly inconsistent with the truth and the search for truth. We deem this contrary to public policy, to due process, and to any sense of justice. ⁶

2. The error committed by using the alleged accomplice's "tainted" testimony at the former trial, however, should not preclude his testimony on retrial. Swift has now been permitted to plead guilty. Thus, undue compulsion to testify in a particular way has been removed. If the prosecution believes it can win a fair trial, then Swift should now be given an opportunity to testify fully and fairly. To insure this result, we should free the witness of any coercion other than his oath, and obviate any other possible prejudice to the defendant. To this end, we order that Swift's prior testimony, obtained contrary to due process of law, will be inadmissible either for impeachment purposes, for substantive evidence as a prior inconsistent statement, or in any future perjury prosecution. This is the approach taken in California, not to protect the witness, but to see that justice is served. See Medina, cited above, 116 Cal.Rptr. at 151.

3. In conclusion, we note that any limitation this decision imposes upon the practice of plea bargaining, in order to assure due process and respect for our court system, is neither oppressive nor confining. It deprives prosecutors of no expedient they should be permitted to employ. After all, if a prosecutor believes an alleged accomplice is telling the truth, then at least three inducements to relate that truth at trial can be expected to remain, even...