People v. Fisher, 82SA416

• Citation: 657 P.2d 922
• Decision Date: 24 January 1983
• Docket Number: No. 82SA416,82SA416
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Langburn FISHER, Jr., Defendant-Appellee.
• Court: Supreme Court of Colorado

Page 922

657 P.2d 922

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Langburn FISHER, Jr., Defendant-Appellee.

No. 82SA416.

Supreme Court of Colorado En Banc.

Jan. 24, 1983.

Stanley C. Peek, Dist. Atty., H. Lee Schmidt, Deputy Dist. Atty., Greeley, for plaintiff-appellant.

David F. Vela, Colorado State Public Defender, Jody Sorenson Theis, Deputy State Public Defender, Denver, for defendant-appellee.

QUINN, Justice.

The People, pursuant to C.A.R. 4.1, bring this interlocutory appeal from an order of the Weld County District Court suppressing evidence of a videotaped interview of the defendant, Langburn Fisher, Jr., conducted by an Oklahoma City detective in March 1980 while criminal charges were pending against the defendant in Oklahoma. During the interview the defendant answered questions relating to a series of burglaries committed by him, on the express condition that, as promised by the interviewing officer, the videotape would not be used against him in any criminal proceeding. We affirm the suppression ruling.

I.

The record of the suppression hearing conducted before the district court consists of the testimony of two prosecution witnesses, Detective James Cain of the Oklahoma City Police Department and Oklahoma City Deputy Distirct Attorney Donald Easter, and an exhibit entitled "Release" which was executed by the defendant in Oklahoma City, Oklahoma, on March 30, 1980. The prosecution's evidence at the suppression hearing established the following facts.

In January of 1980 the defendant was arrested in Oklahoma City and was subsequently charged with at least two counts of burglary. ¹ On the night of his arrest the defendant confessed to several residential burglaries in the Oklahoma City area. Detective Cain, who also served as an instructor at the Oklahoma City Police Academy, asked the defendant if he would be willing to submit to a videotaped interview of his burglary activities, which could then be used as an instruction device for police cadets. Detective Cain told the defendant that during the interview he would be asked questions relating to his methods of perpetrating burglaries and disposing of stolen property. The defendant at this time agreed to submit to the interview, which was to take place at some later date.

The defendant was represented in the Oklahoma criminal prosecution by an attorney, Gary Quick. Detective Cain mentioned the prospective videotaping to Quick and also talked to the defendant about the matter on several occasions. On March 27, 1980, the defendant appeared in court at Oklahoma City for a preliminary hearing. Assistant District Attorney Easter at this time offered him and his attorney a plea bargain which included the following provisions: full cooperation with Oklahoma law enforcement agencies in clearing up several burglaries and in providing information about the location of property he had stolen; a plea of guilty to one of the charges pending against him; and a sentence of five years on his plea, with either two or three years of the sentence served in prison and the balance to be suspended. The defendant requested a few weeks to think about the offer.

Shortly after the defendant's appearance in court, Detective Cain told him that he needed to make the videotape. He arranged with the defendant to appear at the police training academy on March 31, 1980, for the videotaped interview. The defendant appeared, alone, on the scheduled date. Detective Cain gave him a document entitled "Release," which stated that the videotape could be used "in the training of police officers or any law enforcement officer," and, as long as the defendant's identity was concealed as much as possible, it also could be used on public television. The "Release" expressly stated that "I [Fisher] further refuse to give my permission for this video tape to be used in any criminal procedings [sic] against myself...." ² The defendant signed the Release and the videotaped interview was then conducted. During the interview the defendant described numerous residential burglaries which he claimed to have committed in the Oklahoma City area. He also described his methods of choosing residential targets, gaining entry into houses, selecting property to take, avoiding capture, and disposing of the stolen property.

When the videotape was made Detective Cain knew there were some pending plea negotiations between the district attorney's office and the defendant. However, according to Cain's testimony, the videotaped interview was not part of any plea agreement. Further, Cain testified that the defendant was not advised of any constitutional rights prior to the interview because "[t]hese [films] weren't to be used in court." The Oklahoma City Assistant District Attorney learned of the videotaped interview only after it had been completed. He also testified that the videotaping was not part of the plea agreement.

Sometime in June 1980 the defendant ultimately entered a plea of guilty to one of the felony counts pending against him in Oklahoma City. The defendant's sentence was suspended because, according to the Assistant District Attorney, he completely cooperated with the Oklahoma City Police Department in clearing up other burglaries and in recovering stolen property.

In April of 1982 the defendant was arrested in Greeley, Colorado, and charged in the Weld County District Court with several counts of second degree burglary ³ and felony theft, ⁴ all of which arose out of a series of alleged residential burglaries committed during the preceding two months in Greeley. The defendant pled not guilty to the charges. Knowing that the prosecution intended to offer the videotape into evidence at trial, the defendant filed a motion to suppress this evidence. The district court granted the motion, concluding that the defendant was entitled to enforcement of the promise not to use the videotape in any criminal proceeding. ⁵ This appeal followed.

The People's claim, when reduced to its basic components, is twofold. First they argue that the trial court erroneously suppressed the videotape because no constitutional right was violated by its procurement; and alternatively they argue that, even if the videotape was unconstitutionally acquired, due process of law is not offended by admitting it in the pending Colorado prosecution. These arguments, in our view, misapprehend the constitutional basis for the enforcement of governmental promises made to an accused during the pendency of criminal charges against him. We hold that because the officer's promise implicated other constitutional rights of the defendant, because the defendant took detrimental action in reasonable reliance upon the promise, and because no other remedy short of enforcement of the promise would secure fundamental fairness to the defendant, the Due Process Clauses of the United States and Colorado Constitutions, U.S. Const. Amend. XIV; Colo. Const. Art. II, Sec. 25, require the suppression of the Oklahoma videotape in the pending Colorado prosecution.

II.

Before addressing the propriety of the suppression order in this case, we examine the doctrinal basis for the judicial enforcement of governmental promises made to an accused during the pendency of criminal charges against him. Any analysis of this area of the law must begin with a consideration of Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Santobello, who had been charged by the state of New York with two felonies, agreed to plead guilty to a lesser included offense in exchange for the prosecutor's agreement not to make a sentencing recommendation. By the time of the sentencing hearing, however, a different prosecutor was assigned to the case, and he recommended that Santobello receive the maximum punishment. The sentencing judge stating that he was not influenced by the prosecutor's recommendation, imposed the maximum sentence of one year. Santobello thereafter unsuccessfully attempted to withdraw his guilty plea. The United States Supreme Court vacated Santobello's conviction and remanded the case to the state court for a determination of the appropriate relief which should be accorded him. ⁶ The Court pointed out that plea bargaining, although an essential component of the criminal justice system, "must be attended by safeguards to insure the defendant what is reasonably due in the circumstances." Id. at 262, 92 S.Ct. at 499, 30 L.Ed.2d at 433. "[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Id. at 262, 92 S.Ct. at 499, 30 L.Ed.2d at 433.

Cases subsequent to Santobello have required enforcement of governmental promises where the accused, in reliance upon the promise, has taken some detrimental action in reasonable expectation of receiving the benefit reciprocally promised by the government. For example, in Palermo v. Warden, Green Haven State Prison, 545 F.2d 286 (2d Cir.1976), cert. dismissed, 431 U.S. 911, 97 S.Ct. 2166, 53 L.Ed.2d 221 (1977), the state was held to be estopped from asserting a prosecutor's promise of early parole to be ultra vires: "where a defendant pleads guilty because he reasonably relies on promises by the prosecutors which are in fact unfillable, he has a right to have those promises fulfilled." Id. at 296. Similarly, in Correale v. United States, 479 F.2d 944 (1st Cir.1973), the court held that where a United States attorney breached his promise to recommend as part of a plea bargain an impermissible federal sentence concurrent with a state sentence then being served, the defendant was entitled to a suspended sentence under probationary conditions, since that sentence best approximated the specific enforcement of the prosecutor's promise. In United States v. Carter, 454 F.2d 426 (4th Cir.1972), cert. denied, 417 U.S. 933, 94 S.Ct. 2646, 41 L.Ed.2d 237 (1974),...