State v. Reed
| Citation | 75 Wn.App. 742,879 P.2d 1000 |
| Decision Date | 12 September 1994 |
| Docket Number | No. 30214-1-I,30214-1-I |
| Parties | The STATE of Washington, Respondent, v. Sean D. REED, Appellant. |
| Court | Court of Appeals of Washington |
Kathleen Anne Barry, Seattle, for appellant.
Seth Aaron Fine, Snohomish County Pros. Office, Everett, for respondent.
Sean Reed appeals from his conviction on three counts of delivery of a controlled substance. He contends the trial court erred in failing to apply principles of contract law to specifically enforce his confidential informant agreement with narcotics detectives. Because the prosecuting attorney was not a party to the agreement, we hold that the agreement cannot be specifically enforced against the prosecutor.
Reed was arrested after making several drug sales to Snohomish County narcotics detectives (police). He entered into a written agreement with the police whereby the police agreed to "drop charges" on some drug sales in return for his assistance in making narcotics arrests. The police promise referenced certain investigative case numbers typed onto a pre-printed form which is commonly used in Snohomish County. The Snohomish County prosecutor was not a party to the agreement.
Reed helped set up a drug transaction intended to lead to an arrest of one or more suspects. The bust operation did not proceed as planned and the reasons for its failure are disputed. Reed contends the police botched the operation. The trial court declined to resolve these factual issues. Reed did not set up any further drug transactions, claiming he could no longer perform under the agreement out of concern for his safety. He claimed that his confidentiality was compromised when a detective made a telephone call to one of the suspects in the failed drug bust. The trial court found it was unnecessary to determine whether such a call was made. Reed also alleged that a detective testified in open court that Reed was an informant. The court found that the detective made no such statement.
After hearing evidence and argument on Reed's motion for specific performance of the agreement, the trial court expressed its concern that the parties were not addressing the necessary issues. The court questioned whether contract principles should be applied and whether the police could make an agreement which was binding on the prosecutor. Ultimately the trial court refused to directly apply contract principles and decided Reed's motion based on two theories: (1) detrimental reliance, and (2) governmental misconduct under CrR 8.3(b). The court ruled:
1) If the doctrine of detrimental reliance is applied to these facts, specific performance may be granted only if the defendant shows that he relied on the agreement in such a way that a fair trial is no longer possible.
2) The court concludes that defendant has failed to make this showing. The court also concludes that there is nothing that would preclude defendant from having a fair trial on these charges. Therefore the court concludes that if the doctrine of detrimental reliance is applied to these facts defendant would not be entitled to specific performance.
3) The court has been urged to apply contract principles to these facts. Since this is a criminal matter, the court concludes that a contract analysis really amounts to a question of whether some or all of the current charges should be dismissed under CrR 8.3(b).
The trial court further found that the failed bust operation and the alleged breaches of Reed's confidentiality did not amount to arbitrary action or government misconduct under CrR 8.3(b).
Reed assigns error to the trial court's decision to limit its analysis to the issues of Reed's detrimental reliance and governmental misconduct under CrR 8.3(b). We are asked to specifically enforce Reed's confidential informant agreement as a normal contract.
We initially observe that principles of ordinary contract law may apply, at least by analogy, to similar agreements entered into by a defendant directly with the prosecuting attorney. A defendant who enters into a plea bargain has a right, analogous to a contract right, to require the prosecutor to adhere to the terms of the agreement. In re Palodichuk, 22 Wash.App. 107, 110-11, 589 P.2d 269 (1978). However, we do not believe the panoply of contract law can be appropriately transported, in toto, into criminal law. Contract law doctrines such as severability, impracticability and quantum meruit, all relied on by Reed, would apply to valid agreements between a defendant and the prosecuting attorney only by analogy, if they have any application at all.
However, the prosecuting attorney was not a party to the agreement in this case. We hold that the promise by police to "drop charges" exceeded their authority and that, without the involvement of the county prosecutor, such an agreement cannot be enforced as a contract. 1
The police have no authority to make prosecutorial decisions. The county prosecutor is charged with prosecution of all criminal actions in which the state is a party. RCW 36.27.020(4). The decision whether to file criminal charges is within the prosecutor's discretion. State v. Judge, 100 Wash.2d 706, 713, 675 P.2d 219 (1984) (citing Bordenkircher v. Hayes, 434 U.S. 357, 365, 98 S.Ct. 663, 669, 54 L.Ed.2d 604, reh'g denied, 435 U.S. 918, 98 S.Ct. 1477, 55 L.Ed.2d 511 (1978)). The prosecutor may make enforceable agreements to reduce or dismiss charges, see State v. Sonneland, 80 Wash.2d 343, 494 P.2d 469 (1972), but because the police did not first obtain the approval or consent of the prosecutor, they had no authority to enter into an enforceable agreement not to prosecute Reed. State v. Hull, 78 Wash.2d 984, 989, 481 P.2d 902 (1971) (). 2
The record is sufficient to establish that Snohomish County prosecutors usually follow charging recommendations made by police pursuant to an agreement...
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