Putty v. Com., No. 1998-SC-1120-MR.

• Decision Date: 26 October 2000
• Docket Number: No. 1998-SC-1120-MR.
• Citation: 30 S.W.3d 156
• Parties: Bernard Keith PUTTY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

30 S.W.3d 156

Bernard Keith PUTTY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 1998-SC-1120-MR.

Supreme Court of Kentucky.

October 26, 2000.

Elizabeth E. Vaughn, Henderson, for Appellant.

A.B. Chandler, III, Attorney General, Frankfort, Todd D. Ferguson, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, for Appellee.

COOPER, Justice.

Appellant Bernard Keith Putty was convicted in the Hopkins Circuit Court of four counts of criminal solicitation of the murder of his father-in-law, Gary Clark, and was sentenced to confinement in the penitentiary for a total of thirty years. He appeals to this Court as a matter of right. Ky. Const. § 110(2)(b). At trial, the Commonwealth introduced evidence, largely obtained from Appellant, himself, that Appellant and Clark were part of a criminal syndicate and that Appellant's motive for soliciting Clark's murder was that Clark had either threatened or agreed to inform law enforcement authorities about the criminal activities of the syndicate. Appellant claims on appeal that (1) a written plea agreement with respect to his involvement in the syndicate granted him immunity from prosecution for these charges; (2) the same plea agreement precluded the admission into evidence of sworn statements which lie made pursuant to that agreement; and (3) evidence of his involvement in the syndicate and of the fact that Gary Clark was, indeed, murdered was irrelevant and should have been suppressed.

I. FACTS.

Appellant and his wife, Amy Clark Putty, Amy's father and stepmother, Gary Clark and Norma Aragon Clark, Norma's brothers, Reuben Aragon and Tony Trevino Aragon, and numerous other persons were engaged in a criminal operation in which they purchased large quantities of marijuana in Texas and transported it to Hopkins County, Kentucky, for resale. For some time prior to October 1995, this criminal syndicate had been the subject of an investigation by the Federal Bureau of Investigation (FBI), the Pennyrile Narcotics Task Force, and the Madisonville, Kentucky, Police Department. However, these agencies had been unsuccessful in either penetrating the syndicate or obtaining sufficient proof to make an arrest.

In September 1995, while Gary Clark was incarcerated in the Hopkins County Detention Center in Madisonville on domestic violence charges brought by his wife, he telephoned Appellant and threatened to "rat out" the whole marijuana syndicate if he was not released from jail. Clark was subsequently released, but was rearrested on October 23, 1995 on contempt charges, again related to domestic violence alleged by his wife. On October 27, 1995, Clark contacted FBI Agent Bill Frank by telephone and offered to provide information about the marijuana syndicate. Frank interviewed Clark at the Hopkins County Detention Center on October 30, 1995, and obtained substantial information concerning the activities of the syndicate, including Appellant's involvement in its criminal activities. Clark was released from custody on November 29, 1995. Ten days later, he was found dead from a gunshot through the center of his forehead.

On October 31, 1995, two Hopkinsville, Kentucky, police officers were shot and seriously wounded by Reuben Aragon and Tony Trevino Aragon after stopping the brothers on suspicion of operating a motor vehicle while under the influence of alcohol (DUI). The Aragons escaped. Knowing of the Aragon-Clark-Putty connection, law enforcement officers questioned Appellant and his wife in an attempt to learn the whereabouts of the Aragon brothers. During that interview, a detective with the Pennyrile Narcotics Task Force advised Appellant that the police were close to indicting him and offered him a "deal" in exchange for his cooperation against the other syndicate members. Appellant indicated he would contact a lawyer and consider the offer. On January 23, 1996, Appellant and his wife, their attorney, and the Commonwealth's attorney for Hopkins County executed a written "Plea Agreement" (though no charges were then pending against Appellant), which provides:

1. The Commonwealth of Kentucky agrees to indict Bernard Keith Putty and charge him with one (1) count of trafficking in marijuana over eight (8) ounces but under five (5) pounds. Class D Felony. Once the Indictment is returned, the Commonwealth of Kentucky will set a $10,000.00 cash or property bond and will allow Amy's parents to post their property as surety.

2. Bernard Keith Putty will be allowed to plead guilty on the Indictment and will receive a one (1) year sentence from the Commonwealth of Kentucky. The sentencing will be deferred generally and Bernard Keith Putty will be allowed to remain free on his bond pending the sentencing.

3. In exchange for the plea, Bernard Keith Putty agrees to testify truthfully concerning his activities and the activities of his associates in an illegal narcotics distribution syndicate that has been operating in Hopkins County, Kentucky. Bernard Keith Putty and his wife, Amy Putty[,] will give a sworn statement at the Madisonville Police Department on January 23, 1996 with the understanding that the statement is truthful and is a full and complete description of the activities of Bernard Keith Putty and his associates. Failure to testify truthfully will negate the Plea Agreement.

4. Bernard Keith Putty will also agree to testify truthfully against persons implicated in the syndicate in any state or federal proceeding. If Bernard Keith Putty refuses to testify or alters his testimony substantially from that which is given in the sworn statement of January 23, 1996, then the Plea Bargain Agreement negotiated with the Commonwealth may be set aside by the Commonwealth subject to the approval of the Hopkins Circuit Court.

5. Amy Putty will be granted complete immunity from any criminal proceeding arising out of the operation of the syndicate in exchange for her truthful testimony. Amy Putty will also be available to testify in any state or federal proceeding as may be required by law.

6. Bernard Keith Putty will be granted immunity from additional prosecution as a result of his actions in exchange for this immunity [sic] and will assist state and federal authorities in their investigation in and to this illegal narcotics syndicate.

7. [Provision for disposition of property acquired by illegal activities. ]

8. The parties acknowledge that if the Commonwealth of Kentucky defaults under the terms or conditions of this Agreement that the statements made by Bernard Keith Putty and his wife, Amy Putty[,] would be inadmissible as would be the fruits of the efforts of the law enforcement officers resulting from subsequent investigations into those statements. However, Bernard Keith Putty and Amy Putty acknowledge that the Commonwealth of Kentucky has collected intelligence involving them and the Commonwealth of Kentucky would be free to proceed in the event that Bernard Keith Putty and Amy Putty fail to comply with the terms of their agreement to the extent that the Commonwealth discovered information or intelligence exclusive of the statements made by Bernard Keith Putty and his wife. (Emphasis added.)

Pursuant to the agreement, Appellant then gave an oral statement, later reduced to 125 typewritten pages, in which he identified the other members of the syndicate, outlined its structure and method of operation, and admitted his involvement in it. He was also questioned about the death of Gary Clark, but claimed to have no knowledge of who committed that crime. Largely as a result of Appellant's information and cooperation, the marijuana syndicate was broken and its members successfully prosecuted.

On December 16, 1997, Appellant was indicted on these charges of criminal solicitation to murder. At trial, Ronald Kittinger, a member of the syndicate, testified that Appellant solicited him to kill Gary Clark on two occasions. The first occurred while Clark was in jail on the first domestic violence charge. According to Kittinger, Appellant told him that Clark was going to get them in trouble and that they needed to get rid of him. Appellant offered to pay Kittinger $10,000.00 if he would kill Clark. On October 31, 1995, Appellant told Kittinger that Clark was "ratting" to the FBI and again offered to pay Kittinger $10,000.00 to kill Clark. Kittinger testified that he refused both offers because he "didn't have the nerve." Another member of the syndicate, Roger Norman, testified that in October 1995, Appellant told him that Clark "needed killing" and offered him $10,000.00 to "blow Clark's brains out." Norman told Clark he would "think about it," but decided $10,000.00 was not enough. Norman also testified that later that same month, Appellant offered him $25,000.00 to kill Clark. Norman again refused.

II. IMMUNITY.

"Bernard Keith Putty will be granted immunity from additional prosecution as a result of his actions ...." Appellant claims this language in paragraph 6 of the plea agreement granted him immunity from prosecution for any offense with respect to which he was a suspect at the time the agreement was signed. Prior to January 23, 1996, police authorities had received information that Appellant might have been involved in Clark's murder. The Commonwealth asserts that the quoted passage was only intended to immunize Appellant from prosecution for any additional narcotics offenses arising out of the syndicate operation.¹ Appellant relies on Commonwealth v. Reyes, Ky., 764 S.W.2d 62 (1989), which holds that a plea agreement is like a civil contract, which, once accepted by the accused, is binding on the Commonwealth subject to the approval of the court. However, the holding in Reyes only begs the question in this case, which is: Did the parties to this agreement intend when they signed it that Appellant would be immunized from prosecution for all past criminal conduct of which he was then suspected, including his involvement in...