State v. Hovind, 87-644

• Decision Date: 23 November 1988
• Docket Number: No. 87-644,87-644
• Parties: STATE of Iowa, Appellee, v. Mark Anthony HOVIND, Appellant.
• Court: Iowa Supreme Court

Page 366

431 N.W.2d 366

STATE of Iowa, Appellee, v. Mark Anthony HOVIND, Appellant.

No. 87-644.

Supreme Court of Iowa.

Nov. 23, 1988.

Charles L. Harrington, Appellate Defender, and Linda Del Gallo, Asst. Appellate Defender, for appellant.

Thomas J. Miller, Atty. Gen., Pamela Greenman Dahl and Christie Scase, Asst. Attys. Gen., Fred H. McCaw, Dubuque County Atty., and Timothy J. Gallagher and Christine O. Corken, Asst. County Attys., for appellee.

Considered by McGIVERIN, C.J., and HARRIS, LAVORATO, NEUMAN, and SNELL, JJ.

McGIVERIN, Chief Justice.

Defendant Mark A. Hovind appeals from his convictions of burglary in the first degree in violation of Iowa Code sections 713.1, 713.3 (1985), and arson in the second degree in violation of Iowa Code sections 712.1, 712.3 (1985). He contends the trial court erred 1) by denying his motion to dismiss based on enforcement of a plea bargain agreement, and 2) by allowing into evidence his inculpatory statements over his motion to suppress. We transferred the case to the court of appeals which affirmed by operation of law. We granted defendant's application for further review and now vacate the court of appeals decision and reverse and remand for a new trial.

I. Background facts and proceedings. On May 10, 1985, fire destroyed the home of Judge Thomas Nelson in Dubuque. Arson was suspected, and suspicion focused on a man named Robert Frank. Frank was reputedly upset with Judge Nelson following the property award the judge entered in Frank's dissolution of marriage case. Defendant was later charged in an unrelated arson. Hovind, through counsel, initiated plea negotiations with the Dubuque County Attorney in which he offered to convey to law enforcement authorities information concerning Robert Frank and the Nelson arson in return for concessions in the unrelated arson case against Hovind. A plea bargain agreement was reached by which defendant agreed to provide a full and truthful account of his knowledge concerning the Nelson arson. In return the State would make concessions on the unrelated arson charge and forego any prosecution against defendant based on information he provided about the Nelson fire. The State claims the agreement was contingent upon the premise that defendant was not directly involved in the commission of the Nelson arson. At all times, defendant denied that he was directly involved in the Nelson arson.

Starting on September 10, 1986, defendant related his knowledge of the Nelson arson over a number of interviews with law enforcement officers and gave a deposition in the State's case against Robert Frank. In the investigation that followed, the authorities acquired additional information, some by investigating defendant's statements, that led them to believe defendant was directly involved in the Nelson arson.

On November 6, 1986, investigators sought to confront defendant with certain inculpatory information. Before meeting with the defendant, investigators contacted defendant's counsel and stated that they believed Hovind had lied in his earlier statements, that he may have been involved in the Nelson arson, and that the plea agreement was in jeopardy. Counsel communicated this information to defendant. Later, with the permission of defendant's counsel, two investigators drove from Dubuque to Clinton, Iowa, where they met with defendant in a parking lot outside defendant's place of employment. Although they had not given a Miranda ¹ warning in any of their prior discussions with defendant, the investigators began the November 6 interview by informing defendant of his Miranda rights. Defendant also waived these rights in writing. Defendant was then confronted by the officers with the inculpatory information and told his plea bargain may be in jeopardy. In response, defendant made statements that corroborated some of this information.

The State then filed the criminal charges against Hovind of which he was later convicted.

Defendant filed pretrial motions to dismiss, based on the plea agreement, and to suppress all statements made to police officers in interviews and in plea negotiations. The trial court denied defendant's motion to dismiss but granted the motion to suppress. Upon the State's motion to enlarge the suppression order, the court ruled defendant's statements of November 6 were not privileged. Thus, those statements were admitted into evidence at trial.

After a change of venue from Dubuque County to Black Hawk County, defendant was found guilty by a jury of all charges. Following his convictions, defendant appealed, claiming the trial court erred in denying his pretrial motions. We transferred the case to the court of appeals which in an equally divided vote affirmed by operation of law. See Iowa Code 602.4107 (1987). We granted further review.

II. Defendant's motion to dismiss. Defendant contends his pretrial motion to dismiss the charges should have been sustained because the State violated the plea agreement in filing the Nelson arson charges against him.

In ruling on a motion to dismiss as a remedy for the State's alleged repudiation of a plea agreement, the trial court possesses the same limited discretion it exercises when ruling on a motion to dismiss for failure to provide a speedy trial under Iowa Rule of Criminal Procedure 27. State v. Edwards, 279 N.W.2d 9, 10 (Iowa 1979). Review of the trial court's ruling is not de novo. Id. The trial court's decision upon conflicting evidence is controlling. State v. LaPlant, 244 N.W.2d 240, 242 (Iowa 1976). We reverse only upon a showing that the trial court abused its limited discretion. Id.

The performance of a plea bargain agreement must be mutual. State v. Aschan, 366 N.W.2d 912, 917 (Iowa 1985). When a defendant fails to uphold his end of a plea bargain, the State has no obligation to provide defendant the anticipated benefits of that bargain. Id. This rule was illustrated in United States v. Donahey, 529 F.2d 831 (5th Cir.1976). In Donahey, an agreement was struck between the government and defendant which obligated the prosecution to reduce the charges and recommend the minimum sentence in return for information and cooperation in the prosecution of another individual. Id. at 832. After the government unilaterally terminated the agreement, the defendant sought to enforce the plea bargain by motion for specific performance. Upon hearing, the United States Attorney produced testimony that in response to questions from investigators the defendant gave evasive and misleading answers and on occasion refused to cooperate. Based on this evidence, the district court denied defendant's motion. On appeal, the court held that the "District Court had ample basis, therefore, for concluding that [the defendant] had failed to live up to her part of the Plea Bargain Agreement, thus freeing the government from its pledge." Id. at 832.

In the present action, defendant entered into a plea bargain agreement that obligated him to truthfully relate everything he knew about the Nelson arson. The agreement also was contingent upon his having no direct involvement in the offense. Defendant conceded that he was obligated to be complete and truthful in relating these events. The State's investigation determined that defendant had breached the agreement by not being truthful with the State and in his actually setting the Nelson fire. Thus, the State unilaterally rescinded the agreement and filed an information charging defendant with the offense. At the hearing upon defendant's motion to dismiss, the State offered evidence that defendant was not entirely forthright in his answers to the questions from investigators, and that, contrary to his earlier statements, he was directly involved in setting the fire.

It is evident from a review of the record that the trial court had ample basis and evidence to conclude defendant did not honor his obligations under the plea bargain agreement and that the State was free to pursue a full prosecution against defendant for the Nelson offense. Trial court correctly overruled defendant's motion to dismiss the information.

III. Defendant's motion to suppress. Defendant's second contention is that the trial court erred in denying his motion to suppress the statements he made to the police on November 6, 1986. Defendant contends the statements were...