Prosecutor’s Broken Promise Leads To Vacated Count

The New Mexico Supreme Court vacated a tampering with evidence conviction in order to hold the prosecutor to a promise made to the defendant

this Court has previously held that a plea-bargained sentence must be fulfilled by the prosecution, and if not, will be enforced by the courts…

In this first-degree murder appeal, we apply that principle of law to a prosecutorial promise to dismiss a tampering-with-evidence charge if the accused would locate and produce the murder weapon. Here, Defendant Donovan King produced the weapon, but the prosecutor did not drop the charge as promised and Defendant was convicted of tampering with evidence. Accordingly, we reverse the tampering conviction. Affirming all remaining convictions, including first-degree murder, we remand for resentencing.

The court

this appeal presents a kind of hybrid of custodial statements made to a police officer and a plea agreement negotiated with a prosecutor. Defendant only talked with Detective Martinez. However, the level of participation by the prosecutor is significant and cannot be overlooked. In the initial discussion with Defendant, Detective Martinez was very careful not to promise dismissal because he had no authority to make such an offer (“Look, I can’t make that promise, but . . . .”). But the prosecutor did have the authority, which appears to be exactly why the detective then conferred with the one person who could “make that promise”: “the district attorney that is actually charging you.”

After talking directly with the prosecutor, Detective Martinez, acting as a kind 10 of proxy, relayed the prosecutor’s offer—not the detective’s offer—that the prosecutor would dismiss the tampering charge if Defendant showed the police where the tampered-with evidence—the hidden murder weapon—was located. Importantly, there is no claim here that the detective misunderstood or misrepresented the prosecutor’s offer. At the suppression hearing, the same prosecutor who made the offer played the audio interview between Detective Martinez and Defendant without any contradiction, objection, or claim of inaccuracy.

The fundamental problem is not the officer’s willingness to participate in the discussion Defendant initiated, but the prosecutor’s failure to follow through on his offer. Had the prosecutor dismissed the tampering charge, Defendant would be in no position to complain about having given the statement or produced the murder weapon; he would have received the benefit of his bargain. Thus, it is the level of participation by the prosecutor that places this case into the realm of a plea agreement…

A literal, finely-parsed reading of the exchange might suggest that the prosecutor promised only to “talk dismissal” of the tampering charge, but not necessarily to dismiss the charge. The State makes such a claim on appeal. A fair reading of this exchange, however, leads ineluctably to a different conclusion. If Defendant showed the branch to Detective Martinez, then the tampering charge really would be dismissed; they would not just “talk” about it. Clearly, that is what Defendant believed and reasonably so. Why else would he locate the branch for Detective Martinez if not in reliance on such an agreement? Defendant performed on his promise; the prosecutor did not. Accordingly, we must consider the appropriate remedy for the prosecutor’s unfulfilled promise.

The “appropriate remedy” was specific performance of the promise. The court affirmed the remaining counts and remanded for resentencing. (Mike Frisch)