IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

STATE OF TENNESSEE ) FOR PUBLICATION

)

Appellee ) FILED: OCTOBER 9, 1995

)

vs. ) No. 01-S-01-9407-CC-00073

)

DAVID EDWARD HOWINGTON ) John H. Gasaway, Judge

)

Appellant ) Montgomery County

For Appellee: For Appellant:

Charles W. Burson Gregory D. Smith

Attorney General & Reporter One Public Square, Suite 321

Clarksville, TN 37040 

Kimbra R. Spann

Assistant Attorney General

450 James Robertson Parkway

Nashville, TN 37243-0485

O P I N I O N
REVERSED; SENTENCE VACATED; REMANDED Birch, J.

The district attorney general refused to honor an informal

immunity agreement made with David Edward Howington, the defendant. 1

The reason stated for this refusal was the prosecutor's perception

that Howington had not fulfilled his part of the bargain; that is,

he had not testified truthfully at his preliminary hearing. He was

subsequently tried and convicted of first-degree (felony) murder; he

received a life sentence.

The Court of Criminal Appeals affirmed the conviction; we

granted Howington's application for review under Rule 11. At issue

is whether the agreement between Howington and the district attorney

general is enforceable and, if so, to what extent and with what

result.

For the reasons discussed below, we hold that informal

agreements between a prosecutor and a defendant are judicially

In the case under submission, the agreement cannot be 1

described as including a promise of "immunity" in the purest sense. 

The district attorney general promised merely to recommend to the

magistrate who conducted the preliminary hearing that Howington be

bound to the grand jury on second-degree murder instead of firstdegree murder as the warrant charged. Perhaps the agreement is more

accurately described as a cooperation-immunity agreement, or as a

charge-bargain agreement. Thus, we use the three terms generically

and interchangeably.

2
enforceable. In so holding, we expressly overrule Bruno v. State,

240 S.W.2d 528 (Tenn. 1951), to the extent that it can be read as

precluding judicial enforcement of immunity agreements under all

circumstances. Accordingly, we reverse the conviction for firstdegree murder.

I

As for the salient facts, including those which by motion

the defendant requests that we consider, the record indicates that

Tony DeVito and the defendant had information that Michael 2

Trobaugh, the victim, had recently received a large sum of money and

desired to purchase a quantity of marijuana. DeVito, a supplier of

marijuana, and the defendant planned to fill the victim's marijuana

order and to rob him of his money at the same time. In their

discussion, DeVito suggested that they "leave no witnesses."

Several hours later, the victim led the defendant and

DeVito to his trailer and invited them in. Once inside, the victim

produced a large sum of cash that he intended, apparently, as

DeVito was subsequently convicted of first-degree (felony) 2

murder upon evidence which included Howington's preliminary hearing

testimony.

3
payment for the marijuana. As the parties were so situated, and at

a time when the defendant was seated next to the victim in the

living room, DeVito stood behind the victim and shot him in the

head. DeVito and Howington, grabbing the cash and the victim's

wallet, fled. Unaware, apparently, that Howington had already taken

a substantial amount of the victim's money, DeVito gave him $500 of

the contraband and admonished him to "keep [your] mouth shut." 

Trobaugh died from the wound inflicted.

The perpetrators then went to DeVito's house where they

burned blood-stained items of their clothing, washed the blood from

the money, and cleaned the firearm.

Before the preliminary hearing, the district attorney

general and the defendant, through counsel, entered into an

unwritten agreement. In exchange for Howington's truthful testimony

at his preliminary hearing, the district attorney general agreed to

recommend that he be bound to the grand jury on second-degree murder

instead of the original charge of first-degree murder. 

Additionally, the district attorney general agreed to recommend the

defendant's release on an appearance bond in the amount of $50,000.3

Apparently, the State needed Howington's testimony to bolster its

case against DeVito. At his preliminary hearing, the defendant

We deem it unnecessary to address this part of the agreement. 3

4
testified; he fully incriminated DeVito--he fully incriminated

himself.

In his testimony, the defendant stated that he had

received only the $500 DeVito had given him. However, other

evidence adduced during the preliminary hearing suggested that the

defendant had ended up with approximately $4,500 of the victim's

money. Although the district attorney general accepted as true

Howington's testimony in every other particular, he concluded that

Howington had lied about the amount of the victim's money he had

received. Acting on this conclusion, the district attorney general

considered the State no longer bound by the agreement, and he so

informed the defendant. Neither of the agreed recommendations was

made, and the magistrate bound Howington to the grand jury on the

charge of first-degree murder. Subsequently, the grand jury

indicted Howington on first-degree murder--both felony and

premeditated.

In a pretrial motion, Howington sought to prevent his

preliminary hearing testimony from being admitted into evidence at

his trial on the ground that it had been "impermissibly compelled"

and was, therefore, not "voluntary." 

Following a hearing, the trial court characterized the

incriminating portion of the testimony as a "confession." The trial

5
court ruled that it had been voluntarily obtained and was,

therefore, admissible. The trial court found also that Howington

had not fulfilled a "condition precedent" of the agreement--that he

testify truthfully. As a result of this ruling, Howington's

preliminary hearing testimony was admitted as a part of the State's

case-in-chief during Howington's jury trial for first-degree murder. 

As stated, the jury convicted Howington of first-degree (felony)

murder.

On appeal to the intermediate court, Howington insisted

that the trial court erred in permitting the State to introduce, in

its case-in-chief, his preliminary hearing testimony on the ground 4

that the State had obtained it by promise of reward. The

intermediate court considered Howington's insistence and concluded

that the trial court erred in allowing his preliminary hearing

testimony to be admitted in the trial because "the behavior of the

state's law enforcement officials was such as to overbear

petitioner's [Howington's] will to resist and bring about

confessions not freely self-determined." Nevertheless, in light of

the other evidence, the court found the error harmless beyond a

reasonable doubt.

Howington conceded the State's right to use this testimony for 4

impeachment purposes should he testify.

6
Before this Court, Howington advances three contentions: 

First, he invites us to overrule Bruno and, by so doing, to

authorize the judicial enforcement of agreements such as the one

here pertinent. Second, he contends that the perceived untruthful

testimony was not a sufficient reason for the State's refusal to

honor the agreement. Third, he insists that were we to reject his

first two contentions, we should find that the admission of his

testimony was reversible error.

The State, on the other hand, argues that sound policy

reasons support Bruno, and it should not be overruled.

Additionally, the State contends that Howington breached the

agreement in a material way and is not entitled, therefore, to

relief. Moreover, the State insists that admission of the testimony

was proper because it had been voluntarily given.

For the reasons herein discussed, we hold that agreements

between defendants and prosecutors are enforceable in much the same

way as other contracts. This holding requires that we overrule

Bruno. We do that now. Further, we find that Howington reasonably 5

fulfilled his part of the agreement with the predictable result that

DeVito's conviction, as Howington's, was aided, if not procured,

through the State's use of Howington's testimony.

240 S.W.2d 528 (Tenn. 1951). As we stated above, Bruno is 5

expressly overruled to the extent that it can be read as precluding

judicial enforcement of immunity agreements under all circumstances.

7
II

As stated above, the issue we now address is whether the

agreement is enforceable. Because our analysis of this issue

provides relief for Howington, we need not reach the issue of the

admissibility of his preliminary hearing testimony.

The traditional rule in Tennessee is that informal

immunity agreements are not enforceable. See Bruno v. State, 240

S.W.2d 528 (Tenn. 1951); State v. Johnson, 781 S.W.2d 873 (Tenn.

Crim. App. 1989). In Bruno, which involved an informal immunity

agreement between the defendant and a police officer, the Court

reasoned:

"In the absence of a statute

providing for immunity, the fact that

a participant or accomplice in the

commission of a crime testifies or

agrees to testify on behalf of the

prosecution, fully and fairly

disclosing the guilt of himself and

his associates, with the understanding or promise, express or

implied, that he will be granted a

pardon or will not be prosecuted for

his offense does not entitle him to a

pardon or immunity as a matter of

right; and such facts may not be

pleaded in bar of a prosecution." We

have no such statute in this State

granting immunity to an accomplice

who gives the State aid in the

prosecution or apprehension of his

co-workers in crime.

8
240 S.W.2d at 530 (citation omitted). However, the Court implied

that had the district attorney general made a promise that was

within his or the court's authority, the agreement would have been

enforceable. The Court stated:

Normally, where such a promise is

made in good faith and the party who

then cooperates and gives the State

the necessary assistance the district

attorney general may with the consent

of the trial court take care of the

matter, but when it has not been done

in this way the only thing that we

know that can be done is that the

Chief Executive must be convinced

that this is a case for the lending

of his pardoning power.

Id. at 531. Thus, while concluding that informal immunity

agreements are not enforceable, the Court alluded to circumstances 6

under which they would be.

Although the facts in Bruno involve a pure immunity

agreement between an accused and a police officer, the Court of

Criminal Appeals found that the reasoning therein also supported the

rule as applied to an agreement with a district attorney general. 

State v. Johnson, 781 S.W.2d 873 (Tenn. Crim. App. 1989). In

Johnson, the district attorney general signed an immunity agreement

with the defendant providing, among other things, for immunity from

We use the phrase "informal immunity agreement" generically to 6

include all agreements between the State and an accused regarding

charge, plea, or sentence.

9
state homicide charges in return for truthful cooperation. The

court held that under Bruno "an 'immunity agreement' of this nature

is of no legal effect." Id. at 879.7

Thus, traditionally, immunity agreements of the sort here

considered have generally been unenforceable in Tennessee. In

recent years, however, both state and federal prosecutors have

resorted to the use of cooperation-immunity agreements in everincreasing numbers. In this respect, these agreements, as do plea

agreements, have a significant role in the prosecution of those

accused of crime. By resorting to such agreements, prosecutors are

often able to use agreements with "minor actors" to move against

"major actors." Without this tool, prosecutors would often be

unable to prosecute some of the worst and most dangerous offenders.

Plea agreements, unlike immunity agreements, have been

treated as contracts and are enforceable once the condition

precedent is met; that is, the trial judge accepts the agreement. 

State v. Street, 768 S.W.2d 703 (Tenn. Crim. App. 1988); Metheny v.

We note, however, as the Court of Criminal Appeals did, that 7

the Johnson court did find that "a defendant's constitutional rights

would be violated if the promise of immunity is used in an improper

way so as to extract a statement from him which implicates him in

the crime." 781 S.W.2d at 880. This concern for the protection of

constitutional rights resulted in the rule that if the defendant's

statements were coerced by the promise of leniency, the statements

and evidence obtained by way of the statements cannot be used by the

State in its case-in-chief. We note that in Johnson, the trial

court determined, after a hearing, that Johnson had breached the

agreement by being untruthful.

10
State, 589 S.W.2d 943 (Tenn. Crim. App. 1979). This is consistent

with basic contract principles that an agreement does not become

binding until the condition precedent has been met. See Covington

v. Robinson, 723 S.W.2d 643 (Tenn. Ct. App. 1986); Strickland v.

City of Lawrenceburg, 611 S.W.2d 832 (Tenn. Ct. App. 1980).8

We find no substantive difference between a plea agreement

and the charge agreement we have here. Both agreements enhance the

State's efforts to prosecute crime. Both types of agreements may

require a defendant to give up important rights, such as the right

to trial by jury or the right against self-incrimination. Here,

Howington surrendered the constitutional right against compelled

self-incrimination. At the preliminary hearing stage, no

discernable urgency existed for Howington to testify. The

magistrate could have, and more likely would have, bound him over on

the original charge anyway; that is, without his testimony. 

Obviously, the big winner was the prosecution, for it received much

of the evidence necessary to convict both Howington and DeVito,

irrespective of the truth or falsity of Howington's testimony as it

regards the amount of money he received. 

It should be noted that even though the plea agreement is not 8

enforceable until it has been accepted by the trial judge, the trial

judge must allow the defendant to withdraw his guilty plea in the

event that it is not accepted. Tenn. R. Crim. P. 11(e)(4). This

prevents the defendant from being unfairly prejudiced.

11
We note with approval that a number of other jurisdictions

recognize immunity agreements as contractual in nature and

enforceable under the principles of contracts. United States v.

Fitch, 964 F.2d 571 (6th Cir. 1992) ("To secure a defendant's

cooperation in a criminal investigation, the government may

informally grant him immunity in exchange for his testimony. An

agreement not to prosecute is contractual in nature, and subject to

contract law standards.") (citations omitted); see also United

States v. Pelletier, 898 F.2d 297 (2d Cir. 1990); United States v.

Packwood, 848 F.2d 1009 (9th Cir. 1988); United States v. Brown, 801

F.2d 352 (8th Cir. 1986); United States v. Reardon, 787 F.2d 512

(10th Cir. 1986); United States v. Irvine, 756 F.2d 708 (9th Cir.

1985); Closson v. State, 812 P.2d 966 (Alaska 1991); State v.

Myrhow, 865 P.2d 231 (Mont. 1993); 22 C.J.S. Criminal Law § 85

(1989) ("Grants of immunity pursuant to statute are not the only

method of acquiring immunity, but courts also recognize informal

agreements whereby promises of immunity are made in exchange for

cooperation. . . . A cooperation-immunity agreement is in the nature

of a contract and subject to contract law standards").

The State argues that Bruno should not be overruled

because "the content of verbal agreements 'will provide a prolific

source of litigation.'" We observe that this predicted problem, if

it ever materializes, is easily solved by reducing such agreements

to writing. Additionally, we are not persuaded that this is a

12
sufficient reason to allow the State to break its bond of public 9

trust, a subject upon which the Indiana Supreme Court has so

eloquently articulated:

We recognize that the public may

benefit substantially from a

prosecutor's decision to withhold

prosecution of one individual in

exchange for information leading to

the arrest and conviction of a person

deemed more dangerous to the public

welfare. The availability and

usefulness of this strategy could be

substantially neutralized if the

prosecutor's promise is perceived to

be unreliable. Substantial harm

could result from a decision which

removes this weapon from the

prosecutor's arsenal. 

Furthermore, the promise of a state

official in his public capacity is a

pledge of the public faith and is not

to be lightly disregarded. The

public justifiably expects the State,

above all others, to keep its bond.

. . . "It is important for all

segments of our society to believe

that our court systems dispense

justice. This includes the criminals

themselves as well as the law abiding

citizens, and especially those

criminals who have cooperated fully

in police investigations."

Bowers v. State, 500 N.E.2d 203, 204 (Ind. 1986)(quoting Dube v.

State, 275 N.E.2d 7, 11 (Ind. 1971))(citations omitted) (emphasis

added). We embrace these principles. 

While the State asserted in its brief that "[t]here are 9

numerous dangers in allowing courts to engage in the enforcement of

immunity agreements," it did not enumerate any additional "dangers"

to the threat of "prolific. . .litigation."

13
For the above reasons, we hold that an agreement between

a prosecutor and a defendant is contractual in nature and is

enforceable under the law of contracts. Accordingly, Bruno v.

State, 240 S.W.2d 528 (Tenn. 1951), and its progeny are overruled.10

III

We now consider whether Howington met his obligation under

the agreement. For the State to prevail on this issue, it must

prove that Howington failed to deliver on his part of the deal. But

what are the evidentiary burdens in this regard?

This issue has been considered by the Texas courts. In

its analysis of the defense of immunity the Texas Court of Criminal

Appeals stated:

[W]e do not agree . . . that immunity

is a defense under the Code of

Criminal Procedure. We do agree that

it is analogous to one. The initial

burden is on the defendant to show

the existence of the evidence. 

Turney v. State, 51 S.W. 243 (Tex.

Crim. App. 1899). In this respect it

differs from ordinary defenses where

the defendant is only required to

raise his defense by producing some

evidence. However, once the initial

burden is met and the existence of an

As to the specific issue addressed in Bruno--whether 10

agreements entered into by a police officer and a defendant are

enforceable--we reserve decision until the question is again

squarely presented.

14
immunity agreement is shown by a

preponderance of the evidence, we

hold that; procedurally, immunity

should be treated just like a defense

under the Code. Thus, the burden

then shifts to the State to show

beyond a reasonable doubt why the

agreement is invalid or why

prosecution should be allowed despite

the agreement.

Zani v. State, 701 S.W.2d 249, 254 (Tex. Crim. App. 1985). In the

Zani case, the prosecution argued that the defendant was not

entitled to enforce the immunity agreement because she violated the

term of the agreement which provided that "she did not directly

cause the death of" the victim. Id. at 251. In arriving at its

holding, the court observed that

[t]o place upon the State any lesser

burden creates a rather anomalous

situation. For example, in the

instant case, if the State was only

held to a preponderance standard to

prove the violation of the immunity

agreement, it is quite possible that

the State could produce sufficient

evidence to void the agreement and

thus prosecute, but insufficient to

obtain a conviction. The State could

prove by a preponderance of the

evidence that appellant "directly"

caused the death of Dess, but could

not prove this beyond a reasonable

doubt. However, they could easily

prove she was a party to the offense. 

In such a case the State could

invalidate the immunity agreement at

the pre-trial hearing making it void

and non-binding and then obtain a

conviction for being a party to

murder, an offense for which immunity

was originally granted.

15
Id. at 254 n.3.

We agree with the reasoning of the Texas court and adopt

the burden of proof standard set forth in its opinion. Thus, in

order for the State to prevail in this case, it must prove beyond a

reasonable doubt that Howington failed to deliver on his part of the

deal. The State contends first that it is excused from performance

because Howington failed to satisfy a condition precedent to its

performance; that is, he failed to testify truthfully. See

Restatement (Second) of Contracts § 225 (1981) ("Performance of a

duty subject to a condition cannot become due unless the condition

occurs or its non-occurrence is excused.").

We begin with the agreement itself. The basic agreement

appears to be that the State agreed to recommend to the magistrate

that Howington's case be bound over to the grand jury on seconddegree murder and that his bond be reduced to $50,000, all in return

for Howington's truthful testimony. The State insists that its duty

to perform was conditioned upon Howington's truthful testimony. 

Howington and his attorney insist that no language of condition was

used when the agreement was made. They support this insistence by

pointing out that were the agreement conditional, they would not

have so readily agreed, as it required Howington to waive his right

against self-incrimination.

16
The following principles guide our decision: First, in

contract law there is a general preference against finding a term to

be a condition precedent. Specifically, the Restatement says,

In resolving doubts as to whether an

event is made a condition of an

obligor's duty, and as to the nature

of such an event, an interpretation

is preferred that will reduce the

obligee's risk of forfeiture, unless

the event is within the obligee's

control or the circumstances indicate

that he has assumed the risk. 

Restatement (Second) of Contracts § 227. In this case, the

circumstances do not indicate that Howington assumed the risk. 11

Also, while the State contends that the condition was Howington's

truthful testimony, which Howington controlled, we find that the

actual condition it urges is its own subjective assessment of

Howington's testimony. This condition is not controlled by

Howington. Thus, we find there was no condition precedent in the

agreement between the State and Howington. Or rather, the 12

condition was simply that Howington testify against DeVito, which he

did.

We do not find it convincing that Howington would have so 11

readily waived his right against self-incrimination while facing a

first-degree murder charge if he had not believed that the State was

bound under the agreement from the outset.

By analogy, we observe that in a plea-agreement situation, the 12

only condition precedent is the court's acceptance of the agreement. 

Once that takes place, the State's performance is due.

17
Second, this agreement is different from the average

commercial contract as it involves a criminal prosecution where due

process rights must be fiercely protected. Thus, we hold that

ambiguities in the agreement must be construed against the State. 

See United States v. Pelletier, 898 F.2d 297, 302 (2d Cir. 1990). 

It results that the State must be held to a high evidentiary

standard as it attempts to avoid an agreement made with an accused

where the accused has already acted in reliance on the agreement. 

We find that the State has not carried its burden to show that the

agreement was understood by all parties to be conditional upon the

State's subjective determination that the defendant's testimony was

"truthful." 

Next the State argues that it is relieved from its duty to

perform because Howington committed a material breach. The

conditions which will constitute a breach of the immunity agreement

are governed by the agreement. United States v. Fitch, 964 F.2d

571, 574 (6th Cir. 1992) (citing United States v. Packwood, 848 F.2d

1009, 1012 (9th Cir. 1988)).

Under the agreement, Howington's failure to testify

truthfully could constitute a breach. In this instance, the State

maintains that Howington lied regarding the amount of money he

received from the robbery. 

18
Despite the State's contention, the record suggests that

Howington kept the bargain. The critical exchange follows:

Q (by State): Let me ask what else

took place between you and him at his

house immediately prior to the phone

call to Kathy?

A: Well, before we called her, I

took my coat off. He [DeVito] said,

"Take your coat off because there is

blood on it here." He said, "Let's

burn it", [sic] you know, he took his

boots off and burned it. He took

Mike's wallet out and just started

burning everything.

Q: Were you ever given any of the

money?

A: Yes, I was. He gave me five

hundred dollars to keep my mouth

shut.

Pressing further, the State urges that the testimony of

Kathy Dalton to the effect that when Howington arrived at her house

he had $4,500 in blood-splattered money. However, closer

examination of Dalton's testimony reveals that she never attempted

to suggest how the defendant had come into possession of more than

the $500 received from DeVito. So, if we are correct that

Howington, unbeknownst to DeVito, grabbed a sum of money at the

scene of the crime, then the above-quoted response to the question

(also above-quoted) could very well be true, even if not complete. 

While this may be a fine distinction, it is a valid one because the

State should not expect an accused to make a more complete response

than necessary to answer the question truthfully.

19
In light of the above, it remains questionable whether

Howington lied after all. However, we need not make a specific

finding in this regard because of our conclusion that any

untruthfulness in his testimony was immaterial. In determining

whether a failure to render or to offer performance is material, the

following circumstances are significant:

(a) the extent to which the injured

party will be deprived of the benefit

which he reasonably expected;

(b) the extent to which the injured

party can be adequately compensated

for the part of that benefit of which

he will be deprived;

(c) the extent to which the party

failing to perform or to offer to

perform will suffer forfeiture;

(d) the likelihood that the party

failing to perform or to offer to

perform will cure his failure, taking

account of all the circumstances

including any reasonable assurances;

(e) the extent to which the behavior

of the party failing to perform or to

offer to perform comports with

standards of good faith and fair

dealing.

Restatement (Second) of Contracts § 241. Additionally, we find that

in the area of informal immunity agreements where a criminal

defendant is necessarily involved, "the most important consideration

is the incriminating nature of the proferred [sic] statements, not

the amount of information provided to the government." Fitch, 964

20
F.2d at 574 (citing United States v. Johnson, 861 F.2d 510, 513 n.3

(8th Cir. 1988)).

In this case, the State enjoyed the benefit which it

reasonably expected; that is, eyewitness testimony against DeVito. 

Also, while the agreement provided no remedy for a breach, revoking 13

the agreement certainly does nothing to compensate the State for any

alleged injury, and it is decidedly unfair to do this after

Howington relied on the agreement. Moreover, Howington produced

exceptionally incriminating evidence, not only against DeVito, but

also against himself. Finally, in light of Howington's complete

cooperation, his answer regarding the amount of money he was given

hardly indicates a lack of good faith and fair dealing on his part. 

Thus, we conclude that any breach which occurred under the facts was

not material considering the circumstances.

IV

For all these reasons, we hold that the State was

obligated to perform under the agreement it entered into with

Howington. It remains to decide what the result of the State's

refusal should be. First, it would be useless to go back to the

preliminary hearing because the State agreed only to recommend to

A charge of perjury may be a consideration under these 13

circumstances.

21
the magistrate that Howington be bound over on second-degree murder. 

The magistrate would have had no obligation to accept the

recommendation. Moreover, even if the magistrate were to have

accepted the recommendation and bound Howington to the grand jury on

the lesser charge, the grand jury was free to indict upon whatever

charge it found applicable. Nevertheless, Howington was deprived of

the chance that the grand jury might have accepted the magistrate's

recommendation (if made) and indicted upon the lesser charge. 

Howington gave up a lot for that chance; he received nothing in

return. Fundamental principles of justice and fair play would

require that the parties to the unconsummated bargain be restored to

their former positions. Obviously, this is not a possibility. 

Failing that, the only just remedy would be to position the

defendant as though all variables had worked to his advantage. "The

Supreme Court . . . shall grant the relief on the law and facts to

which the party is entitled or the proceeding otherwise requires and

may grant any relief, including the giving of any judgment and

making of any order. . . ." Tenn. R. App. P. 36(a)(1995).

Accordingly, we reverse the conviction for first-degree

murder and enter judgment convicting the defendant of second-degree

murder. We vacate the sentence and remand the cause for

resentencing on second-degree murder.

22
______________________________

ADOLPHO A. BIRCH, JR., Justice

CONCUR:

Anderson, C.J.

Drowota, Reid, White, JJ.

23