State v. Hanson

• Court: Georgia Supreme Court
• Writing for the Court: CLARKE
• Citation: State v. Hanson, 249 Ga. 739, 295 S.E.2d 297 (Ga. 1982)
• Decision Date: 08 September 1982
• Docket Number: No. 38619,38619
• Parties: The STATE v. Emmett E. HANSON.

Page 297

295 S.E.2d 297

249 Ga. 739

The STATE v. Emmett E. HANSON.

No. 38619.

Supreme Court of Georgia.

Sept. 8, 1982.

Hardaway Young, III, Atlanta, for Emmett Eugene Hanson.

Robert E. Wilson, Dist. Atty., Ann Poe Mitchell, Asst. Dist. Atty., Decatur, for the State.

CLARKE, Justice.

We granted certiorari in order to answer the question whether the trial court should have granted Hanson's motion to quash an indictment against him because that the district attorney had granted him transactional immunity.

Hanson was arrested in DeKalb County in 1979 for possession and sale of methaqualone in violation of the Controlled Substances Act. In exchange for some cooperation in furnishing information concerning drug and gambling investigations, the district attorney gave Hanson a letter in which he purported to grant immunity from prosecution for all violations of the law within his jurisdiction prior to September 8, 1980. A DeKalb County judge also signed a post script to the letter which noted that the letter had been called to the attention of the court. At about the same time the district attorney dismissed the charges pending against Hanson. The dismissal was noted on the file, the notation giving no reason for the dismissal.

After the district attorney was defeated in his bid for re-election, the new district attorney submitted the dismissed cases to the grand jury, which indicted Hanson for possession and sale of methaqualone. Hanson's attorney filed a motion to quash the indictment, relying upon the letter from the former district attorney. There was no copy of this letter in the case file. The trial court denied the motion, and the Court of Appeals reversed, holding that the promises of the public prosecutor and the public faith pledged by him must be kept. State v. Hanson, 161 Ga.App. 536, 287 S.E.2d 764 (1982). We affirm.

In affirming it is necessary to address four issues: (1) Was Hanson entitled to either a common law transactional immunity or to the use and derivative use immunity provided by Code Ann. § 38-1715? (2) If not, did the prosecutor have the power to promise to forgo prosecution in exchange for information? (3) If the promise were valid, to what extent was it binding? (4) If the promise were valid and binding, did it bind the prosecutor's successor in office?

1. In England and this country, for over two centuries amnesty has been extended to individual offenders or classes of offenders in exchange for incriminating information. This practice is particularly useful in the context of offenses for which "... proof and punishment were otherwise impracticable because of the implication in the offense itself of all who could bear useful testimony." 8 Wigmore, Evidence, § 2281 (McNaughton Rev. 1961) at 492. The removal of penal consequences is referred to in this country as immunity, which "... signifies the beneficial result to the offender ..." as opposed to amnesty, which "... signifies the sacrificial act on the part of the state." Id. at 493.

A grant of immunity may be given in many different contexts--as part of a plea bargain, in exchange for testimony or confession, or in exchange for other evidence. Where the defendant relinquishes valuable constitutional rights in exchange for immunity, the question of enforcement of the bargain has constitutional overtones. This is true whether the rights relinquished are Sixth Amendment rights, as in the case of a plea bargain, or Fifth Amendment rights, as in the case of a confession or incriminating testimony.

The immunity granted in exchange for compelled testimony must be sufficiently broad to protect the witness to the extent of his Fifth Amendment privilege against self-incrimination. The immunity granted may be "transactional," which protects the person testifying against prosecution for any transaction touched on in his testimony whether or not his involvement can be independently proven. A more limited immunity, "use and derivative use" immunity, protects the witness from the use of either the incriminating testimony or the fruits of such testimony. ¹ The first federal immunity statute, passed in 1857, provided immunity to anyone testifying before either house of Congress for any fact or act upon which he touched in his testimony. 11 Stat. 155-156 (1857). This very broad protection encouraged so-called "immunity baths." To gain immunity, witnesses testified in droves before congressional committees as to offenses both relevant and unrelated to matters under investigation. Comment, Immunity Grants to Suspected Criminals to Secure Testimony, 18 Loyola L.Rev. 115 (1971-72). This situation led Congress to substitute a statute which provided only use immunity and which made no provision for immunity from derivative use of the incriminating testimony. 12 Stat. 333 (1862). In Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892), the United States Supreme Court held that use immunity did not adequately compensate a witness whose testimony was compelled for the loss of his Fifth Amendment privilege against self-incrimination and found that "... a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offense to which the question relates." Id. at 548, 12 S.Ct. at 195. The prohibition against a grant of use immunity was extended to the states in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). Although in Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), the court recognized the concept of use immunity and implied that it might be constitutionally valid if the witness were protected from derivative use as well as direct use, it was not until the decision of Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), that the concept was explicitly declared constitutional.

In 1975 the Georgia Legislature passed the Georgia Witness Immunity Act, Ga.L.1975, pp. 727, 728, Code Ann. § 38-1715, which provides use immunity for a witness compelled to testify. We have held that this statute provides constitutional protection adequate to compel testimony. Brooks v. State, 238 Ga. 435, 233 S.E.2d 208 (1977). There is no statutory authority for a general grant of transactional immunity in Georgia. Whether or not a grant of transactional immunity by a prosecutor absent statutory authority is valid has been declared an open question. Corson v. Hames, 239 Ga. 534, 238 S.E.2d 75 (1977). The Court of Appeals in the present case has found that a "common law" transactional immunity exists in Georgia even though the statute provides for use immunity only. State v. Hanson, supra. After a diligent search we can find no indication of a common law transactional immunity in Georgia or anywhere else. Under the common law a witness in any case was entitled to refuse to answer whenever the answer would tend to incriminate. Literally, the constitutional protection of the Fifth Amendment does not extend as far as the common law rule, although the interpretation of the amendment has expanded its protection to that afforded at common law. Counselman v. Hitchcock, supra; Higdon v. Heard, 14 Ga. 255 (1853). ² We conclude that no common law transactional immunity exists in Georgia in the sense of the protection of a witness who gives up a valuable right.

Since we have concluded that there is no common law transactional immunity in Georgia, the next question which must be considered is whether the district attorney had the authority to promise to forgo prosecution apart from the statutory authority granted in Code Ann. § 38-1715. The state argues that the statute is broad enough to encompass any agreement to excuse a person from prosecution and that the prosecutor could make no promise without following the procedure set out in the statute. ³ We do not agree. From the beginning of our criminal justice system prosecutors have exercised the power of prosecutorial discretion in deciding which defendants to prosecute. The prosecutor's bargaining power is a crucial factor in the disposition of criminal charges. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). At common law the prosecutor had complete authority to enter a nolle prosequi until after the jury was sworn. Note, Binding Effect of Prosecutor's Agreement to Dismiss Prosecution, 23 Wayne L.Rev. 1129 (1975) (hereinafter cited as 23 Wayne L.Rev.). We find that this authority of the prosecutor to bargain is inherent in his office and is of utmost importance in the orderly administration of criminal justice. We conclude that although the language of Code Ann. § 38-1715 is theoretically broad enough to encompass all promises to forgo prosecution in exchange for evidence, there is no indication that the legislature intended Code Ann. § 38-1715 apply except to the extraction of information in a situation in which the witness gives up a valuable right. The section is intended to extend the requisite constitutional protection in such a case.

Hanson neither engaged in a plea bargain nor was he compelled to testify. He apparently gave information in exchange for dismissal of charges against him and a promise of the prosecutor not to prosecute him for any crimes committed prior to September, 1980. As far as the record shows, he gave up no constitutional right. Therefore, he was not entitled to immunity for the purpose of constitutional protection.

2. Having decided that Hanson can claim neither a common law transactional immunity nor the use and derivative use immunity extended by Code Ann. § 38-1715, we are faced with the question whether and to what extent Hanson can claim the benefit of his bargain with the district attorney. The answer to this question depends upon whether the prosecutor had authority to make an agreement with Hanson and the extent of that authority. At common law the prosecutor enjoyed absolute control over the entry of a...