Criminal Practice – Evidence – Proffer Agreement – Defendant’s Breach – Admission of Statements

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State v. Wills (Lawyers Weekly No. 010-075-14, 23 pp.) (Costa Pleicones, J.) (Donald Beatty, J., joined by Kaye Hearn, J., dissenting) Appealed from Horry County Circuit Court (Steven John, J.) On writ of certiorari to the Court of Appeals. S.C. S. Ct.

Holding: Defendant and his attorney executed a proffer agreement wherein defendant agreed that if a subsequent polygraph examination demonstrated deception, inconsistencies, or that defendant shot the victim, then “the terms of this proffer are null and void and any statements made by [defendant] may be used against him by the State for any legal purpose, including … disposition of charges through plea or trial … and impeachment.” Further, section 7 of the proffer agreement provides in relevant part not only that defendant’s violation of the agreement would render the proffer’s terms null and void, but also that “the State shall have the right to use any information obtained through this Proffer in any fashion, whether direct [or] collateral….” Applying the rules of contract construction here, regardless of the agreement’s wisdom or lack thereof, we agree with the Court of Appeals that, on this record, defendant’s proffer agreement, entered with the advice and consent of counsel, waived the protections of Rule 410, SCRE (providing that pleas, plea discussions, and related statements are inadmissible against a defendant who made the plea or was a participant in the plea discussions, except in limited circumstances).

Affirmed.

Dissent

(Beatty, J.) I would hold the Court of Appeals erred in affirming the trial judge’s decision to permit the state to use defendant’s plea statements during its case-in-chief. Initially, I would find defendant’s Miranda waiver did not operate to waive the protections of Rule 410. Instead, the admissibility of the statements was dependent upon the terms of the proffer agreement.

According to the principles of contract law, the agreement was nullified in its entirety when the state found that defendant breached the agreement. Because the state rescinded the agreement, it was void ab initio and the parties were returned to their original positions. Thus, defendant’s plea statements were deemed inadmissible pursuant to Rule 410.

As to future cases, I would find that a breach of a proffer agreement on the part of a defendant permits the state to use a defendant’s plea statements only for purposes of impeachment. I believe such a decision preserves the protections of Rule 410 and effectively maintains the integrity of the judicial process.

Finally, I would caution the state against rescinding an agreement on the sole basis of a failed polygraph examination as these tests are inherently unreliable. Given the lack of reliability, I believe it is patently unfair for the state to use these subjective results as the sole basis for asserting that the defendant was untruthful and, thus, breached a proffer agreement. The inequity is amplified when the state is allowed to use the same statement in its case against the defendant.

I am deeply trouble by the majority’s haste to lend the court’s imprimatur to the knowing misleading of the jury by the use of acknowledged false testimony. No interpretation of contract law should suborn perjury.