                  IN THE SUPREME COURT OF TENNESSEE

                            AT KNOXVILLE            FILED
                                                     January 31, 2000

                                                  Cecil Crowson, Jr.
                                                 Appellate Court Clerk
STATE OF TENNESSEE,             )   FOR PUBLICATION
                                )
     Appellee,                  )   FILED:   JANUARY 31, 2000
                                )
v.                              )   BLOUNT COUNTY
                                )
DANNY SPRADLIN,                 )   HON. D. KELLY THOMAS, JR., JUDGE
                                )
     Appellant.                 )   NO. E1995-00019-SC-R11-CD




For Appellant:                       For Appellee:

KEVIN W. SHEPHERD                    JOHN KNOX WALKUP
Maryville, TN                        Attorney General and Reporter

                                     MICHAEL E. MOORE
                                     Solicitor General

                                     KIM R. HELPER
                                     Assistant Attorney General
                                     Nashville, TN

                                     MICHAEL L. FLYNN
                                     District Attorney General
                                     PHILIP H. MORTON
                                     Asst. District Attorney General
                                     Maryville, TN




                               OPINION




AFFIRMED                                               BIRCH, J.
                                            I



                   We accepted review of this case in order to determine
whether an agreement not to prosecute made between Danny Spradlin,

the    appellant,         and   two   officers1   is    enforceable     without       the

district attorney general’s2 knowledge or approval.                         We conclude
that a district attorney general has the sole duty, authority, and
discretion           to   prosecute    criminal   matters        in   the    State    of

Tennessee.3          Police officers are, therefore, without authority to
bind       the     district     attorney   general     to   an   agreement      not   to
prosecute.           In this case, because the district attorney general

neither authorized nor ratified the agreement between Spradlin and
the officers, the agreement is unenforceable, and the judgment of

the Court of Criminal Appeals is affirmed.



                                           II



                   In a Blount County bar on October 1, 1992, Spradlin sold
marijuana to a person who was, unbeknownst to him, working as a
confidential informant for the Blount County Sheriff’s Office. The




           1
      The term “officer” is meant to include police officers and
other law enforcement personnel.        For example, detectives,
sheriffs, deputy sheriffs, any agent of the police department, and
any agent of the sheriff’s department would be classified
generically as an “officer” for purposes of their future compliance
with this opinion.
       2
     The term “district attorney general” is meant to include not
only the one elected official designated as such in each Tennessee
county, but also “assistant district attorneys general” who are
lawyers employed as agents of the district attorney general.
               3
        The district attorney general’s power to prosecute is
separate from the grand jury’s power to indict, in that “the grand
jury is not an agency of the district attorney general . . . .”
Parton v. State, 2 Tenn. Crim. App. 626, 455 S.W.2d 645 (1970); see
also Tenn. R. Crim. P. 6. The grand jury may indict an accused for
any “indictable or presentable offense[] found to have been
committed or to be triable within the county.” Tenn. R. Crim. P.
6(d). Additionally, the grand jury may indict an accused after an
investigation conducted on its own initiative. See id.

                                            2
confidential informant did not purchase marijuana directly from

Spradlin; an intermediary arranged the transaction.



                On three other occasions (November 20, 1992; November 24,

1992;     and    December   2,   1992),    the   informant   bought   marijuana

directly     from    Spradlin.     On     December   18,   1992,   Spradlin   was
arrested and charged with distributing less than one-half ounce of

marijuana4 in connection with the October 1, 1992, transaction.                No

other charges were lodged against Spradlin at that time.


                Spradlin retained an attorney who spoke with the two

officers in charge of the investigation.               The officers told the

attorney about the three drug sales upon which prosecution had not

yet been initiated.         Without obtaining any authorization from the

district attorney general, the officers told Spradlin’s attorney

that if Spradlin would work as a confidential informant for the

sheriff’s department, he would not be prosecuted on the three as

yet uncharged drug sales.          Spradlin pleaded guilty to the single
misdemeanor charge5 on January 4, 1993.              No agreement concerning
the three uncharged drug sales was presented to the court with this

guilty plea.


                After he pleaded guilty to the misdemeanor, Spradlin

proceeded to act as a confidential informant for the sheriff’s
department.        Spradlin made three drug purchases pursuant to the
agreement before his identity was compromised, thereby ending the

confidential operation.          On August 9, 1993, Spradlin was indicted
on the three previously uncharged drug sales.

     4
         Tenn. Code Ann. § 39-17-418(b) (1990).
    5
     Spradlin does not suggest that his guilty plea of January 4,
1993, was induced or obtained in reliance on the officers’ promise
not to prosecute him for the three as yet uncharged drug sales.
The record indicates that Spradlin pleaded guilty to the
misdemeanor drug distribution charge in exchange for a sentence of
unsupervised probation.

                                          3
             At the motion to dismiss hearing preceding his trial,

Spradlin was asked if he personally ever had any discussion with

anyone in the district attorney general’s office concerning the
immunity/nonprosecution agreement with the officers.     In response

to this question, Spradlin stated:     “I had an agreement through my

attorney which was through Blount Metro.          I thought that was
enough.”      Indeed, Spradlin’s attorney testified that he never

talked to the district attorney general or anyone in the district

attorney general’s office regarding an agreement between Spradlin
and the officers.    Additionally, at a jury-out hearing, an officer6
testified that when Spradlin pleaded guilty to the misdemeanor

charge in January 1993 no mention of the immunity/nonprosecution

agreement was made to the district attorney general or to any

assistant district attorney general.



             Following a jury trial, Spradlin was convicted of two

counts of felonious possession of marijuana with intent to sell7
and one count of misdemeanor possession of less than one-half ounce
of marijuana.8    The trial court imposed one-year sentences for each
of the felony convictions and an eleven-month twenty-nine day

sentence for the misdemeanor.     The sentences ran concurrently and
were suspended, except for the first sixty days to be served in
custody. Additionally, Spradlin was placed on supervised probation

for twenty-two months.      At the hearing accompanying Spradlin’s
motion for a new trial, the trial judge stated:

                  [r]ightly or wrongly, I decided that
                  I   hadn’t   heard   evidence   that
                  established in my mind [that] there
                  was an agreement by the State not to
                  prosecute these three cases and that

    6
     The officer who testified during the jury out hearing was one
of the officers with whom Spradlin had entered into the
immunity/nonprosecution agreement.
     7
         Tenn. Code Ann. § 39-17-417 (1992).
     8
         Tenn. Code Ann. § 39-17-418(b) (1990).

                                   4
                    [the power to authorize immunity or
                    nonprosecution agreements] was the
                    sphere of influence or the authority
                    of   the    [district]    [a]ttorney
                    [g]eneral . . . not law enforcement.

(emphasis added).      On direct appeal, the Court of Criminal Appeals
affirmed these convictions and sentences.             We accepted review of

this   case    to   decide    whether    an    agreement    of   immunity    from

prosecution, entered into between officers and a defendant, is
enforceable.



                                        III


              When initially presented with the question of whether

immunity      agreements     between    officers    and     a    defendant   are

enforceable, this Court has previously held that a defendant who

“‘testifies or agrees to testify on behalf of the prosecution . . .

with the understanding or promise, express or implied, that he [or

she] will . . . not be prosecuted for his [or her] offense’” is not

entitled to “‘immunity as a matter of right; and such facts may not

be pleaded in bar of a prosecution.’”             Bruno v. State, 192 Tenn.

244, 249-50, 240 S.W.2d 528, 530 (1951) (citation omitted).                   In
Bruno, a detective told Bruno that he would not be prosecuted for

his role in stealing some lead if he would reveal the location of
the stolen lead.      Bruno, 240 S.W.2d at 529.           Bruno then disclosed
the location of the contraband.          Id.   Despite having kept his part

of their agreement, Bruno was later prosecuted for his role in the
theft.     Id. at 530.     On appeal to this Court, Bruno’s conviction
was upheld.     Id. at 531.



              Although in Bruno we refused to enforce the agreement

between the officer and the defendant, the opinion suggested that

there may one day be circumstances under which an agreement not to

prosecute made between a defendant and a district attorney general


                                        5
could be honored.      See id.       Indeed, the Court stated: “[n]ormally

where such a promise is made in good faith and the party . . .

cooperates and gives the State the necessary assistance[,] the
district attorney general may with the consent of the trial court9
take care of the matter . . . .”                Id.



            A subsequent decision of this Court held that plea

agreements    and    immunity    agreements            between    prosecutors10        and

defendants were enforceable as contracts.                    State v. Howington, 907

S.W.2d 403, 408 (Tenn. 1995).          In so holding, Howington expressly

overruled    Bruno   “to   the   extent          that    it    c[ould]    be    read   as

precluding judicial enforcement of immunity agreements under all

circumstances.”      Id. at 406 n.5.            Howington expressly declined to

rule on the question of “whether agreements entered into by a

police officer and a defendant are enforceable . . . until the

question is again squarely presented.”                  Id. at 408 n.10 (emphasis

added).     The validity of such agreements between officers and

defendants is now squarely presented for our consideration.


                                           IV



            We begin with the well-settled law and custom that a
district    attorney   general       has       the    sole    duty,   authority,       and

discretion to prosecute criminal matters. Ramsey v. Town of Oliver

Springs, 998 S.W.2d 207, 209-10 (Tenn. 1999); see Tenn. Const. art.
VI, § 5; Tenn. Code Ann. § 8-7-103 (1993).                   Though the prosecutor’s

authority    to   prosecute     is   not        absolute,      “‘[s]o    long   as     the
prosecutor has probable cause to believe that the accused committed

an offense, the decision whether to prosecute, and what charge to

      9
       Obviously, the consent of the trial court is unnecessary
until after the district attorney general has chosen to initiate
prosecution of the offense.
     10
       We use the term “prosecutor” interchangeably with the term
“district attorney general.”

                                           6
bring . . . generally rests entirely within the discretion of the

prosecution. . . .’” Ramsey, 998 S.W.2d 210 (emphasis in original)

(quoting State v. Superior Oil, Inc., 875 S.W.2d 658, 660 (Tenn.
1994)).



                                         V


            Though this Court has not considered the validity of an

immunity or nonprosecution agreement between an officer and a
defendant       since   deferring   that     analysis    in   Howington,   other

jurisdictions have considered the issue.                The clear rule is that

police officers do not possess the authority to bind prosecutors to

unauthorized immunity or nonprosecution agreements made between

police officers and defendants.          Tabor v. State, 333 Ark. 429, 971

S.W.2d 227 (1998); State v. Russell, 671 A.2d 1222 (R.I. 1996);

Commonwealth v. Stipetich, 539 Pa. 428, 652 A.2d 1294 (1995); State
v. Sharpless, 189 W. Va. 169, 429 S.E.2d 56 (1993); People v.
Gallego, 430 Mich. 443, 424 N.W.2d 470 (1988); State v. Seneca, 726
So. 2d 748 (Ala. Crim. App. 1998); State v. Reed, 75 Wash. App.

742, 879 P.2d 1000 (1994); Green v. State, 857 P.2d 1197 (Alaska

Ct. App. 1993); Winkles v. State, 40 Md. App. 616, 392 A.2d 1173
(1978);     State v. Hargis, 328 So. 2d 479 (Fla. Dist. Ct. App.

1976); see also Jay M. Zitter, Annotation, Enforceability of

Agreement by Law Enforcement Officials Not to Prosecute if Accused

Would Help in Criminal Investigation or Would Become Witness

Against Others, 32 A.L.R. 4th 990 (1984); 21 Am. Jur. 2d Criminal

Law   §   290    (1998);   David    J.   Lekich,   Broken     Police   Promises:

Balancing the Due Process Clause Against the State’s Right to

Prosecute, 75 N.C. L. Rev. 2346 (1997).



            Consistent with the weight of authority, we hold today

that the enforceability of an immunity or nonprosecution agreement



                                         7
entered into between an officer and an alleged defendant is subject

to the discretion of the district attorney general.



             Our    decision    finds    strong    support     in   public    policy

considerations.       As one court aptly explained:


                    [B]y enforcing the unauthorized
                    promise made to [a] defendant, this
                    Court     would     undermine     the
                    accountability     built  into    the
                    prosecutorial function.     Unlike a
                    [p]olice officer, the [prosecutor]
                    is an elected official and thus
                    accountable     to    the    county’s
                    electorate for [his or her] actions.
                    Since the police possess neither the
                    authority to withhold prosecution
                    nor to grant immunity, no formal
                    system exists by which to check the
                    potentially unbridled discretion the
                    police would possess if allowed to
                    make binding promises precluding
                    prosecution.     The potential for
                    abuse seems obvious.


Gallego, 424 N.W.2d at 473.           Additionally, this Court is concerned

that enforcement of unauthorized promises between officers and

defendants would raise serious questions about the officers’ power

to manipulate the criminal justice system.                 See id. at 474.      For
example,   if      officers    were   allowed     to   make   unauthorized,      yet
binding, promises that preclude prosecution of a defendant, might

they then decide that they had the authority to make binding plea
bargains or sentencing offers as well?             See id.     We cannot condone
officers     entering     into    binding       immunity      or    nonprosecution

agreements with defendants; to do so would implicitly approve an
ad-hoc system of criminal justice administered by non-elected,
albeit sworn, public officials.              See id.



           A related consideration is the potential for endless

litigation    and    confusion    that    unauthorized        agreements     between

officers and defendants would create.              As one court noted, “[t]he

content of verbal agreements . . . will provide a prolific source


                                         8
of litigation.    The recollection of the parties will be imperfect.

Misconstruction    is    easy.     A       careless      word,    a   misconstrued

statement, or a distorted expression will erupt into litigation.”
Hargis, 328 So. 2d at 481.



                                    VI


            The Tennessee Rules of Appellate Procedure provide that

“review of findings of fact by the trial court in civil actions
shall be de novo upon the record of the trial court, accompanied by

a   presumption   of   the   correctness      of   the    finding,     unless   the

preponderance of the evidence is otherwise.”                     Tenn. R. App. P.

13(d).    Though the instant case is a criminal case, this Court has

recently held the standard espoused by Tenn. R. App. P. 13(d)

applicable to a trial court’s findings of fact in a suppression

hearing in a criminal case.       State v. Odom, 928 S.W.2d 18 (Tenn.

1996).    In the case at bar, the trial judge made findings of fact

based on testimony offered at both Spradlin’s motion to dismiss
hearing and a jury-out examination conducted during trial.                       As
would a trial judge in a suppression hearing, the trial judge in

this case evaluated the credibility of witnesses, the weight and
value of evidence, and resolved conflicts of evidence.                    See id.

Thus, analogously, we will apply the Tenn. R. App. P. 13(d)

standard of review in our analysis of the issues pertinent to this
case.11


                                    VII

     11
     We note that this standard of review is especially applicable
in the case at bar, because the jury heard no testimony on the
issue of whether the district attorney general authorized the
agreement between Spradlin and the officers.     The trial judge,
however, heard testimony on this issue during the hearing
accompanying Spradlin’s motion to dismiss and during the jury-out
examination of one of the officers. Thus, in this case, it would
be inaccurate to apply a standard of review based on the jury’s
findings.


                                       9
            In the instant case, the record amply supports the

conclusion that there was an agreement between Spradlin and the

officers.   It also appears from the record that Spradlin attempted
to perform his part of the agreement.               However, we need make no

further inquiry into this factual issue.                 Instead, we focus on

whether the record indicates that the district attorney general
authorized the    agreement.



            Our review of the pertinent facts shows that Spradlin
never discussed his immunity/nonprosecution agreement with anyone

in the district attorney general’s office.               Indeed, Spradlin never

said that he had.      In fact, he admitted that his reliance on the

immunity/nonprosecution agreement was premised on his belief that

he had an “agreement through [his] attorney which was through

Blount Metro.”



            Additionally, following the hearing on the motion for a

new trial, the trial court made a factual finding that the State
(acting through the district attorney general’s office) never
authorized the immunity/nonprosecution agreement with Spradlin.

The evidence in the record does not preponderate against this
finding.    On appeal, this Court will not disturb a factual finding
of the trial court unless the record indicates that the evidence

preponderates against such a finding.             See Tenn. R. App. P. 13(d).

As such, this Court will not disturb the trial court’s finding that
the district attorney general did not authorize the agreement

between Spradlin and the officers.


            Without authorization from the district attorney general,

the   officers   had   no   authority       to   enter   into   an   immunity   or

nonprosecution    agreement     with    Spradlin.          Though    the   record

indicates that Spradlin acted in good faith and relied on his



                                       10
agreement with the officers, enforcement of the agreement is not a

remedy available to him.



                                VIII



          For the foregoing reasons, the judgment of the Court of
Criminal Appeals is affirmed.   The costs of this appeal are taxed

to Spradlin.




                                       ______________________________
                                       ADOLPHO A. BIRCH, JR., Justice

CONCUR:

Anderson, C.J
Drowota, Holder, Barker, JJ.




                                11
