The Nebraska Supreme Court Adopts the Howe Test to Correctly Determine the Enforceability of a Cooperation Agreement in State v. Wacker

• Publication year: 2022

39 Creighton L. Rev. 147. THE NEBRASKA SUPREME COURT ADOPTS THE HOWE TEST TO CORRECTLY DETERMINE THE ENFORCEABILITY OF A COOPERATION AGREEMENT IN STATE V. WACKER

Creighton Law Review

Vol. 39

INTRODUCTION

Cooperation agreements occur when the government agrees to restrict the prosecution of a defendant in return for the defendant's cooperation.(fn1) A cooperation agreement is contractual in nature and dependent upon contract law standards.(fn2) If defendants do not carry out their side of a cooperation agreement, they lose the advantage of the agreement, and the government is alleviated of its promise under the agreement; on the other hand, if performance occurs, the government must fulfill its promise.(fn3) The principle for enforcing a cooperation agreement is founded under the Due Process Clause of the Fourteenth Amendment.(fn4) In State v. Copple,(fn5) the Nebraska Supreme Court adopted a three-part test from Rowe v. Griffin(fn6) to determine when the government was required to fulfill cooperation agreements.(fn7) The Rowe test mandates a cooperation agreement must be honored when it appears (1) an agreement was entered into, (2) the defendant performed his or her side of the agreement, and (3) the prosecution is directly connected to the offenses about which the defendant, according to the agreement, either testified for the benefit of the government or helped with the investigation.(fn8) Seven years after Copple, the Nebraska Court of Appeals in State v. Howe(fn9) adopted a different third step of the Rowe test, requiring the defendant act to his or her prejudice or detriment, instead of helping in the investigation or testifying for the government pursuant to the agreement.(fn10)

In State v. Wacker,(fn11) the Supreme Court of Nebraska adopted the three-part test from Howe to determine the State and Wacker entered into a cooperation agreement that in exchange for Wacker's cooperation, the State would charge Wacker with motor vehicle homicide instead of manslaughter.(fn12) The court determined the only reasonable conclusion from the State Patrol officer's statements to Wacker was that Wacker's cooperation with the officer controlled the charges against Wacker.(fn13) In addition, there was no discussion about a plea, therefore, the court concluded a cooperation agreement, not a plea bargain, was made between the State and Wacker.(fn14) The court then concluded Wacker performed his part of the agreement by confessing he was the driver of the truck during the accident and providing other information concerning the accident, thus meeting step two of the test from Howe.(fn15) Finally, the court determined that Wacker had met the requirements of step three of the Howe test by detrimentally relying on his agreement with the State.(fn16) Specifically, the court determined Wacker reasonably expected he would not be charged with manslaughter if he provided information about the accident.(fn17)

This Note will first examine the facts and holding of Wacker.(fn18) Next, this Note will explore United States Court of Appeals for the Eleventh Circuit precedent regarding the enforceability of cooperation agreements.(fn19) This Note will then review the applications of that precedent by the Nebraska Supreme Court and the Nebraska Court of Appeals' change of step three of the test.(fn20) This Note will then demonstrate the Supreme Court of Nebraska properly concluded each of the three steps of the Howe test was fulfilled in Wacker.(fn21) Finally, this Note will show had the Supreme Court of Nebraska adopted the test from Rowe, it would have concluded all three steps in that test were also fulfilled.(fn22)

FACTS AND HOLDING

In State v. Wacker,(fn23) David Wacker ("Wacker"), Nathan Curtis ("Curtis"), and Melissa Wright ("Wright") drove around Box Butte County, Nebraska, in a truck registered to Wacker while both Wacker and Curtis consumed a couple of beers on September 13, 2001.(fn24) Around 11:00 p.m., Wacker, the driver of the car, dropped off Wright.(fn25) At around one o'clock in the morning, Wacker placed a call to the 911 emergency dispatch center, stating there had been an accident and that he could not locate Curtis.(fn26) During the phone call, the emergency dispatcher had trouble understanding what Wacker was saying.(fn27) When emergency personnel arrived, they found Wacker lying on the porch of a trailer house and found Curtis, twenty feet from Wacker's truck, dead in a ditch.(fn28) Wacker was conscious and able to answer questions, but appeared sluggish and slow.(fn29) While emergency personnel attended to Wacker, Gordon Downing ("Downing"), a State Patrol officer, arrived on the scene and assisted Deputy Bremer ("Bremer") in the investigation of the accident.(fn30) Bremer determined the truck lost control and went into a ditch where it began to roll.(fn31) Downing observed beer bottles at the scene, and determined alcohol was a factor in the accident.(fn32)

The day after the accident, Downing interviewed Wacker at the Hemingford Police Department.(fn33) Downing asked Wacker if he was the driver of the truck, and Wacker said he was not.(fn34) Wacker admitted he and Curtis were drinking the night the accident occurred.(fn35)

On February 11, 2003, nearly seventeen months after the accident, an arrest warrant was issued, and Downing arrested Wacker.(fn36) During an interview on that same day, Downing discussed with Wacker the possibility that charges could be brought against Wacker.(fn37) Specifically, Downing discussed the difference between the charges of manslaughter and motor vehicle homicide.(fn38) Downing also discussed how the State initially charged Wacker with manslaughter, a more serious felony that required a minimum one-year sentence in the state penitentiary whereas vehicular homicide was a different kind of felony that did not carry a minimum sentence.(fn39) Downing told Wacker the county attorney said Wacker's actions, whether he cooperated or not, controlled the charges pressed against Wacker.(fn40) Additionally, Downing stated the county attorney was willing to charge Wacker with motor vehicle homicide, but Wacker had not been honest with them.(fn41) Downing told Wacker if Wacker was honest and told the truth about him being the driver, then the State would only pursue the charge of motor vehicle homicide.(fn42) Downing then told Wacker that if Wacker was charged with manslaughter, the case would be a "slam dunk" for the State, and if Downing was in Wacker's shoes, Downing would rather be charged with motor vehicle homicide than manslaughter.(fn43)

Finally, Wacker admitted to Downing he was the driver of the truck and he had consumed about three or four beers while driving around with Curtis.(fn44) Wacker also provided information about the accident, addressing a few of Downing's theories regarding how Wacker lost control of the truck.(fn45) Upon Downing's request, Wacker repeated to Downing that he was the driver, and Downing told Wacker he would notify the county attorney of Wacker's decision to tell the truth.(fn46) Downing told Wacker he did not know what charge the county attorney would ultimately choose, but that the county attorney told Downing the State would pursue a motor vehicle homicide.(fn47) During this interview, Downing made reference to the previous county attorney who was no longer in charge.(fn48) However, it was clear from the tape-recorded statement that the preceding discussion about what charges were going to be brought against Wacker involved the current county attorney.(fn49) The words "plead guilty" were not mentioned during the interview.(fn50)

On March 7, 2003, the State charged Wacker with manslaughter, not motor vehicle homicide.(fn51) Before trial, Wacker moved for the State to amend the charge, arguing that he and the State made a cooperation agreement under which the State would charge Wacker with motor vehicle homicide if Wacker told the truth, but the State failed to honor such agreement.(fn52) During a pretrial hearing on the amendment, Downing testified that in a discussion with the county attorney on the possible charges, the county attorney said if Wacker was honest, admitted everything, and pleaded guilty, the State would charge Wacker with motor vehicle homicide, but Downing did not properly communicate this information to Wacker.(fn53)

At trial in the District Court of Box Butte County, Judge Brian J. Silverman found the State offered Wacker a plea agreement, but Wacker did not plead to anything.(fn54) The court determined the State's offer was merely a plea for a reduced charge.(fn55) However, the court found Wacker confessed because of the plea bargain, and the court suppressed Wacker's statements.(fn56) The jury found Wacker guilty of manslaughter, and the court sentenced Wacker to prison.(fn57)

Wacker appealed the decision of the district court to the Supreme Court of Nebraska.(fn58) On appeal, Wacker argued the district court erred in failing to force the State to amend the charge against Wacker to motor vehicle homicide or, in the alternative, dismiss the charge of manslaughter.(fn59) Specifically, Wacker claimed a difference existed between a cooperation agreement and a plea agreement, and the State was obligated to abide by the terms.(fn60) The State argued no agreement was made, but even if an agreement was made, the agreement was a plea agreement, and Wacker breached it because he did not plead...