State v. Parris ( 2014 )

[Cite as State v. Parris, 2014-Ohio-4863.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
OTTAWA COUNTY
State of Ohio Court of Appeals No. OT-14-015
Appellant Trial Court No. 12 CR 203
v.
Cameron W. Parris DECISION AND JUDGMENT
Appellee Decided: October 31, 2014
*****
Mark Mulligan, Ottawa County Prosecuting Attorney, and
Joseph H. Gerber, Assistant Prosecuting Attorney, for appellant.
Kristopher K. Hill and Thomas J. DeBacco, for appellee.
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SINGER, J.
{¶ 1} Appellant, the state of Ohio, appeals from the Ottawa County Court of
Common Pleas judgment granting the motion to dismiss of appellee, Cameron Parris.
Because we conclude the trial court properly granted appellee’s motion, we affirm.
{¶ 2} In the early morning hours of September 5, 2011, Zachary Brody assaulted
Phil Masterson at Put-in-Bay on South Bass Island, Ottawa County, Ohio. This assault
resulted in Mr. Masterson’s death. Appellee was Brody’s friend and was with Brody at
Put-in-Bay on the day of the crime. Appellee had knowledge of the crime and the events
which occurred afterwards.
{¶ 3} On September 13, 2011, appellee’s counsel, who represented appellee in
regards to the death of Phil Masterson, sent a proffer letter to the Ottawa County
Prosecutor “to immunize my client in exchange for his truthful testimony throughout the
legal process.” The letter indicated appellee would meet and give a “full honest
disclosure” in a taped interview and at grand jury. The letter stated “[i]f my client’s
testimony is useful to you, I would ask that you agree to grant my client immunity from
any future charges in exchange for his truthful testimony.” The letter further provided
“[y]our signature at the bottom of this page indicates your agreement to this Proffer.”
The letter was signed by appellee’s counsel and the Ottawa County Prosecutor.
{¶ 4} On September 14, 2011, appellee was interviewed by law enforcement
officers for almost two hours. The interview was taped. On September 15, 2011, a grand
jury was empaneled, however, appellee was not called to testify. Also on that day,
appellee was notified by appellant that he “has not made a full and truthful disclosure.
Thus our agreement for immunity has been breached.” Appellant further informed
appellee at least one, and probably more, felony charges against him were appropriate.
2.
{¶ 5} On March 12, 2012, Brody was charged with one count of involuntary
manslaughter and two counts of tampering with evidence, and entered a plea of guilty to
all counts. The trial court accepted Brody’s guilty plea, and on May 23, 2012, imposed
maximum, consecutive sentences for a total of 16 years in prison. Brody appealed the
sentence and this court affirmed the trial court’s judgment in State v. Brody, 6th Dist.
Ottawa No. OT-12-022, 2013-Ohio-1708.
{¶ 6} On November 1, 2012, appellee was charged by indictment with three
counts of tampering with evidence, three counts of obstructing justice, one count of
failure to report a death and one count of falsification. Counts one through seven of the
indictment are alleged to have occurred on or about September 4, 5 or 6, 2011, and count
eight is alleged to have occurred on or about September 14, 2011.
{¶ 7} On January 3, 2013, appellee filed a motion to dismiss/motion for specific
performance with the trial court seeking specific performance of the agreement not to
prosecute, and to have the indictment against him dismissed.
{¶ 8} On February 28, 2013, a hearing was held. At the hearing, appellee’s
counsel and the Ottawa County Prosecutor testified they entered into a written non-
prosecution agreement on September 13, 2011 (“the agreement”). Following further
testimony, the trial court denied appellee’s motion finding it was appellee’s burden to
prove compliance with the agreement. Thereafter, appellee filed a motion to reconsider
as well as other motions. On July 18 and September 3, 2013, the trial court held
additional hearings on the pending motions.
3.
{¶ 9} On March 27, 2014, the trial court issued its decision, finding it was
appellee’s burden to prove the existence of the agreement, then the burden shifted to
appellant to establish, by a preponderance of the evidence, that appellee breached the
agreement and the breach was sufficiently material to warrant rescission of the
agreement. The court noted the parties stipulated that they entered into the agreement.
The trial court then found appellant did not establish by a preponderance of the evidence
that appellee breached or materially breached the agreement. The court granted
appellee’s motion to dismiss as to counts one through seven of the indictment, but denied
the motion to dismiss as to count eight of the indictment.
{¶ 10} Appellant timely filed its appeal, setting forth two assignments of error:
I. The Ottawa County Court of Common Pleas abused its discretion
when it dismissed counts one through seven of the indictment against
Cameron Parris because Cameron Parris did not perform a condition
precedent to the State’s performance under the non-prosecution agreement.
II. The Ottawa County Court of Common Pleas abused its discretion
when it dismissed counts one through seven of the indictment against
Cameron Parris because Cameron Parris materially breached the non-
prosecution agreement.
{¶ 11} There are three types of non-prosecution agreements. See State v. Stanley,
7th Dist. Mahoning No. 99-C.A.-55, 2002-Ohio-3007, ¶ 41. The first type of agreement
is a negotiated plea agreement or plea bargain, which is permitted pursuant to Crim.R. 11,
4.
and is not binding until accepted by the court. Id. The second type is a grant of
immunity by the trial court pursuant to R.C. 2945.44. Id. at ¶ 42. The third type is a pre-
indictment agreement wherein a person agrees to provide truthful information about a
crime on the condition that he or she will not be prosecuted at all. Id. at ¶ 48. No court
approval is required for a pre-indictment agreement. Id.
{¶ 12} This court has recognized that non-prosecution agreements are governed by
contract law. See State v. Reimsnyder, II, 6th Dist. Erie No. E-96-006, 1997 WL 224969,
*11 (May 2, 1997). With respect to the meaning of a contract term, courts must give
common words in a written instrument their plain and ordinary meaning, unless an absurd
result would follow or there is clear evidence of another meaning found on the face of the
document or from a reading of the entire contents of the instrument. Alexander v.
Buckeye Pipe Line Co., 53 Ohio St. 2d 241, 374 N.E.2d 146 (1978), paragraphs one and
two of the syllabus. If the meaning of a contract term cannot be determined from the four
corners of the document, a factual determination of the parties’ intent may be necessary
to supply the missing term. Inland Refuse Transfer Co. v. Browning-Ferris Industries of
Ohio, Inc., 15 Ohio St. 3d 321, 322, 474 N.E.2d 271 (1984). Extrinsic evidence will be
considered only “where the language is unclear or ambiguous, or where the
circumstances surrounding the agreement invest the language of the contract with a
special meaning.” Kelly v. Medical Life Ins. Co., 31 Ohio St. 3d 130, 132, 509 N.E.2d
411 (1987).
5.
{¶ 13} The construction of written contracts is generally a matter of law, which an
appellate court reviews de novo. Ohio Bell Tel. Co. v. PUCO, 64 Ohio St. 3d 145, 147,
593 N.E.2d 286 (1992). See also Reimsnyder, II. With respect to factual determinations
made by a trial court, appellate courts must accept those findings if they are supported by
competent, credible evidence in the record. State v. Williams, 23 Ohio St. 3d 16, 19, 490
N.E.2d 906 (1986).
{¶ 14} In cases where a witness has promised to cooperate or provide honest
information to law enforcement in exchange for an agreement not to prosecute, the
government’s promise not to prosecute is nullified “[if] it is determined that the
defendant has not fulfilled the terms of the agreement * * *.” State v. Small, 41 Ohio
App.3d 252, 255, 535 N.E.2d 352 (8th Dist.1987). When a witness does not fulfill the
terms of an agreement, the failure “will relieve the government of its reciprocal
obligations under the agreement.” Id. Whether a witness breached a non-prosecution
agreement by failing to provide honest information should be determined by the trial
court at an evidentiary hearing. Id. The witness must first demonstrate the existence of a
non-prosecution agreement, then the government must prove by a preponderance of the
evidence the witness breached that agreement and “the breach is sufficiently material to
warrant rescission.” (Citation omitted.) State v. Stanley, 7th Dist. Mahoning No. 99-
C.A.-55, 2002-Ohio-4372, ¶ 16, 18. Whether a party has materially breached a non-
prosecution agreement depends, in part, upon the incriminating nature of the information
6.
provided by the witness. United States v. Fitch, 964 F.2d 571, 575 (6th Cir.1992). It
must, of course, be remembered that “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.” (Citation omitted.) State v. Moore,
7th Dist. Mahoning No. 06-MA-15, 2008-Ohio-1190, ¶ 62.
{¶ 15} In its first assignment of error, appellant argues the trial court erred by
dismissing counts one through seven of the indictment because appellee did not perform
a condition precedent to appellant’s performance under the agreement. Appellant
contends appellee’s full and honest disclosure was a condition of its performance to grant
appellee immunity from prosecution. Appellant submits appellee lied on multiple
occasions and was not useful to the prosecution because once a witness lies, the
effectiveness of that witness is marginalized.
{¶ 16} In its second assignment of error, appellant argues the trial court erred by
dismissing counts one through seven of the indictment since appellee materially breached
the agreement. Appellant observes the parties stipulated to the existence of the
agreement. Appellant maintains it was unreasonable for the trial court to find appellant
was not deprived of the benefit of its bargain since appellant’s benefit of the bargain with
appellee was appellee’s full and honest disclosure which would be useful to appellant.
Appellant contends appellee’s disclosure was not full or honest, and appellee was not
useful to it.
7.
{¶ 17} Since appellant’s assignments of error are related, they will be addressed
together.
{¶ 18} The type of non-prosecution agreement here is a pre-indictment agreement;
appellee agreed to provide a “full honest disclosure” in exchange for which appellant
agreed to grant appellee “immunity from any future charges.” Although the agreement
mentions immunity, it clearly means immunity from prosecution, not a grant of immunity
pursuant to R.C. 2945.44. In any event, the existence of the agreement is not disputed by
the parties.
{¶ 19} What is in dispute is whether appellee fulfilled the terms of the agreement
or whether appellee breached the agreement by failing to provide a full and honest
disclosure and whether this breach was material such that the information disclosed was
not useful to appellant and appellant did not get the benefit of the bargain.
{¶ 20} The phrase in the agreement, “full honest disclosure,” must be given its
plain and ordinary meaning, unless an absurd outcome would result. Full is defined as
“complete esp. in detail.” Merriam-Webster’s Collegiate Dictionary 471 (10th Ed.1996).
Honest means truthful, id. at 556, and disclosure means revelation, id. at 330. There is
nothing absurd or ridiculous about the phrase’s ordinary meaning, therefore the ordinary
meaning of the phrase will be used.
{¶ 21} Appellant submits appellee’s full and honest disclosure was a condition of
its performance to grant appellee immunity, and since appellee was untruthful, appellant
8.
terminated the agreement. Appellant maintains appellee did not provide a full honest
disclosure, and materially breached the agreement because he left out or misrepresented
many important details during the taped interview. Specifically, appellant asserts
appellee omitted the following information during his interview: finding Mr. Masterson’s
wallet, mentioning the blood on the deck, picking up Mr. Masterson’s shirt and giving the
shirt to Clifton Knoth to throw away, and revealing Brody and his girlfriend went back to
Put-in-Bay to further cover up the crime scene after appellee left the island.
{¶ 22} A breach of a non-prosecution agreement is considered material if “the
non-breaching party is deprived of the benefit of the bargain.” Stanley, 7th Dist.
Mahoning No. 99-C.A.-55, 2002-Ohio-4372 at ¶ 18, quoting United States v. Castaneda,
162 F.3d 832, 837 (5th Cir.1998). “The less the non-breaching party is deprived of the
expected benefits, the less material the breach.” Castaneda at 837. Another method of
determining whether a breach is material is by applying the converse of the substantial
performance concept, which is, “if a party’s ‘nonperformance * * * is innocent, does not
thwart the purpose of the bargain, and is wholly dwarfed by that party’s performance,’
the breaching party has substantially performed under the contract, and the non-breaching
party is not entitled to rescission.” (Citation omitted.) Id. As the court noted in
Castaneda,
[D]espite Castaneda’s relatively insignificant omissions, the
government got the benefit of its bargain and has failed to carry its burden
of proving a material breach by Castaneda. * * * Although it appears that
9.
Castaneda’s performance was not perfect-that he did not literally “tell
everything he knew,” as he was technically required to do under the
agreement-the government has failed to show that these omissions were
intentional or, more importantly, that the government was prejudiced.
Much of the relatively little that Castaneda omitted was already known to
the government before interrogating Castaneda, or was discovered from
other sources. When viewed in light of the overwhelming quantity of
information he furnished about numerous individuals and incidents * * *
much that Castaneda omitted must be classified either as cumulative or
surplusage. Id. at 839.
{¶ 23} Here, a review of the record, including the transcript of appellee’s taped
interview as well as the transcripts of the hearings on appellee’s motion and Brody’s
sentencing hearing, shows appellee supplied appellant with a substantial amount of
incriminating information concerning the circumstances surrounding Brody’s assault of
Masterson, and appellant used information learned from appellee against Brody. The
evidence indicates appellee revealed to appellant certain events which occurred before
and after the crime that appellant did not learn from any other source, and which assisted
appellant in its prosecution of Brody. The record establishes appellee provided appellant
with important facts regarding who was at the scene of the crime, how the victim was
acting, what led up to the crime including what appellee saw and heard of the fight, the
location of the fight on the porch of the cabin, what time the crime occurred and what
10.
transpired afterwards, including the cover-up planned by Brody. While appellee’s taped
interview was not flawless, the record shows many of the incidents he witnessed and
relayed to appellant happened very unexpectedly in the early morning hours after
appellee had returned to the cabin following a night of drinking with friends. Moreover,
there is no evidence any statements made by appellee were intentionally false, nor is
there evidence the omissions were substantial or in any way harmed appellant. Rather,
the evidence shows appellant already knew or shortly thereafter discovered from other
sources information omitted by appellee at his taped interview. Considering all of the
incriminating information appellee communicated to appellant, which was subsequently
used by appellant, the omissions relied upon by appellant are not sufficient to constitute a
substantial material breach to justify voiding the agreement or completely invalidating
appellee’s value as a witness to the crime. Appellant has not shown by a preponderance
of the evidence that it did not receive the benefit of the bargain contained in and
contemplated by the agreement. Accordingly, the agreement should be enforced. It
follows the trial court properly granted appellee’s motion to dismiss as to counts one
through seven of the indictment. Appellant’s assignments of error are found not well-
taken.
{¶ 24} The judgment of the Ottawa County Court of Common Pleas is affirmed.
Pursuant to App.R. 24, appellant is hereby ordered to pay the court costs incurred on
appeal.
Judgment affirmed.
11.
State v. Parris
OT-14-015
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Thomas J. Osowik, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
12.