Hall v. State

• Decision Date: 05 May 1993
• Docket Number: No. 89-212,89-212
• Citation: 851 P.2d 1262
• Parties: Todd HALL, Petitioner, v. The STATE of Wyoming, Respondent.
• Court: Wyoming Supreme Court

Page 1262

851 P.2d 1262

Todd HALL, Petitioner, v. The STATE of Wyoming, Respondent.

No. 89-212.

Supreme Court of Wyoming.

May 5, 1993.

Rehearing Denied June 15, 1993.

Wyoming Public Defender Program: Leonard D. Munker, State Public Defender, and Stephen Michael Kissinger, Cheyenne, for petitioner.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., David K. Gruver, Asst. Atty. Gen., and Scott Smith, Special Asst. Atty. Gen., for the State.

Before MACY, C.J., THOMAS, CARDINE and GOLDEN, JJ., and URBIGKIT, J. (Retired).

THOMAS, Justice.

In deciding this case, the court must articulate the method for adjudication of a claim of immunity from prosecution. Related questions exist with respect to the validity, nature, and scope of a grant of immunity by the prosecuting attorney. In addition, a question exists as to whether a grant of immunity for the offense of conspiracy to commit murder necessarily extends to the offense of aiding and abetting murder. We hold that, regardless of the authority vel non of a prosecuting attorney to grant immunity from prosecution, the grant of such immunity must be recognized when it has been extended and acted upon by the defendant. We further hold that, when a claim of immunity is presented, the trial court shall hold a pretrial hearing to determine whether the case can go to trial. At that hearing, the defendant must assume the burden of presenting a prima facie showing of the grant of immunity. The burden is assigned to the State to establish no immunity was extended or, in the alternative, any limitation upon the grant of immunity. The scope of any immunity so granted is a question of fact to be first resolved by the trial judge in determining whether the prosecution may go forward to trial. If the State asserts any grant of immunity has been forfeited because of the breach of its agreement with the defendant, it must prove the breach justifying the loss of immunity. In addition, we hold that, if the trial court permits the case to go to trial, the defendant, if the defense of immunity is pursued at trial, must assume the burden of proving both the fact, and the scope, of the immunity. The State still will be required to prove the breach of the agreement that would justify any forfeiture of the immunity. On the question of whether immunity for conspiracy to commit murder extends to aiding and abetting murder, we hold it does not. The case is remanded to the district court for further proceedings in accordance with this opinion.

The court granted review in this case pursuant to an Order Granting Petition for Writ of Certiorari and Staying Further Proceedings in the Cause Pending Disposition of the Writ of Certiorari. The parties have briefed and argued the several questions specifically articulated in that order which are:

(1) May a prosecuting attorney in Wyoming grant immunity in the absence of a specific Wyoming statute so empowering him;

(2) What, if any, immunity was granted petitioner under the facts of this case;

(3) The proper procedure for proving the grant of immunity and the forfeiture of any grant;

(4) The burden of proof required of each party in proving the existence or forfeiture of immunity;

(5) Whether the existence of immunity and forfeiture of immunity are to be determined by the trial judge or to be determined by trial jury.

These are the questions we address.

This case was initiated by the filing of a criminal complaint against Todd Hall (Hall) on March 30, 1987. By the complaint, Hall was charged with aiding and abetting first-degree murder and conspiring to commit first-degree murder. Those facts alleged in the complaint significant to our disposition of this case included the allegation that Hall aided and abetted and conspired to commit the murder of Jeff Green. The crime is described in Hopkinson v. State, 632 P.2d 79, 95-97 (Wyo.1981), cert. denied, 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982). In addition to those facts set forth in Hopkinson, the State alleged that, between April 18, 1979 and May 17, 1979, a series of meetings occurred between Hap Russell, John Susaeta, and Hall. The complaint went on to allege these individuals claimed an agreement was entered into pursuant to which Susaeta was to receive $5,000 and Hall was to receive $10,000 for their participation in a plan to obtain perjured testimony that would free Hopkinson from federal prison. It was alleged Hall was to testify Jeff Green (whom Hall did not know) had told Hall that Green was not driving to Arizona to accomplish a bombing on behalf of Hopkinson but, instead, Green was on his way to Salt Lake City to blow up a contractor's equipment as a personal matter having nothing to do with Hopkinson. It was alleged Hap Russell paid Susaeta $4,000, and Hall received an initial $500. Further allegations included the fact Hall had a photograph of Jeff Green in his possession during the time immediately preceding Green's murder and, shortly after the homicide, Hall destroyed the photograph by burning it. The complaint alleged a vehicle owned by Hall matched the description of the vehicle driven by two men who abducted Jeff Green on the day before his death and, Hall had discussed the death of Jeff Green with Susaeta the day after the murder occurred, but before Green's body had been found and the murder became public knowledge.

The affidavit in support of the charges filed against Hall concluded certain factual propositions are inconsistent with any plan to provide Mark Hopkinson with perjured testimony to obtain a new trial in the George Mariscal case, but those facts are consistent with, and demonstrate, Hall's complicity in the plan to have Green murdered. Those facts include:

(a) The payment of $20,000.00 for the obtaining of perjured testimony;

(b) The obtaining and utilization of a photograph of victim Green;

(c) The obtaining of the location of Jeff Green's residence, from which he was later abducted;

(d) Todd Hall's unfavorable reputation;

(e) Todd Hall's receiving the phone call from John Susaeta on May 18, 1979, informing Hall of the death of Jeff Green, two days prior to the discovery of Green's body.

(f) Todd Hall's failure to provide an affidavit to Jeff Brinkerhoff and his failure to follow up on the perjured testimony scheme despite having received a sum of money for his involvement (g) Todd Hall's inconsistent Grand Jury statements regarding the operation of his vehicle on or about May 18, 1979, despite evidence to the contrary.

We note Hopkinson was convicted of arranging Green's murder in 1979, and Hap Russell was convicted of crimes arising out of that murder in June of 1990.

Hall filed numerous preliminary motions, including one seeking dismissal of the charges on the grounds that he had received a grant of immunity from prosecution for any involvement he might have had in the murder of Jeff Green. In this regard, the record demonstrates Hall was called in for questioning in Salt Lake City, Utah on March 4, 1981. He was accompanied by his attorney, and investigating officers from Utah, Wyoming, and Idaho were present. The county and prosecuting attorney for Uinta County, Wyoming also was present and, before Hall was questioned, the record reveals the following:

WHEREUPON, Mr. Ted Cannon, Salt Lake County Attorney, appeared in the conference room.

MR. HOUSLEY: This is Todd Hall here under investigative subpoena. We've been told what we discussed with you earlier and that is we're prepared to give Mr. Hall transactional immunity under the statute and contained in [77-22-3] for his testimony with these conditions: Number one, that [h]is statement be truthful. Number two, that it be complete. Number three, that it be supported, if requested, by polygraph examination. Number four, that he be prepared to testify in conformity with that statement. Would you read back those conditions?

REPORTER: "One, his statement be truthful. Two, that it be complete. Three, that he be prepared to testify in accordance with that statement. Four, that he be prepared to support any part of that statement that he may be requested to support by taking a polygraph examination on it. Five, that his statement not disclose that he actually did the killing or was present at the time of the killing.

* * * * * *

MR. HOUSLEY: * * * The immunity we've indicated to Mr. Hansen we would provide to his client was, as I said, transactional immunity for the crimes in Utah of conspiracy to commit murder and conspiracy to obtain perjured testimony.

MR. HANSEN: I understand you're providing the same immunity in Wyoming to him; is that right?

MR. LEHMAN: Yes.

MR. CANNON: Under the circumstances I would be willing to make a grant of immunity such as has been described on the record. ¹

In ruling upon Hall's motion to dismiss, the district court concluded Hall had been granted immunity, but only for conspiracy to commit first-degree murder. With respect to the claim by the State that Hall had forfeited his immunity, the district court ruled it would require the State to prove, by clear and convincing evidence, the nature of the immunity agreement, the manner in which Hall had violated it, and that Hall's violation was material. At that juncture, the posture of the district court proceedings was that the State could proceed to try Hall for aiding and abetting first-degree murder and it also could try him for conspiracy to commit first-degree murder if it satisfied the burden of proof the court had established. Hall filed a petition for writ of certiorari with this court in which he challenged the decision of the district court. We granted the petition for writ of certiorari and directed the parties to brief any issues raised by the petition for writ of certiorari, as well as those specified in the order granting the petition for writ of certiorari. The parties limited further briefing to the specific questions articulated in the order.

With respect to the authority of a...