State v. Fisher (1993)

In State v. Fisher, 176 Ariz. 69, 859 P.2d 179 (1993), the defendant and his wife, Ann, were charged with the murder of the owner of an apartment complex they managed. 176 Ariz. at 71, 859 P.2d at 181. Prior to her husband's trial, Ann Fisher entered an agreement with the State in which she agreed to plead guilty to a reduced charge in exchange for her testimony against her husband. Id. The agreement was expressly conditioned on her promise that if required to testify at trial, her testimony "would not vary substantially in relevant areas to statements previously given investigative officers." Id. At trial, Mrs. Fisher invoked her Fifth Amendment right and did not testify. Id. Her agreement with the State was then admitted into evidence and her husband was found guilty of first-degree murder and subsequently sentenced to death. Id. After her sentencing on a lesser crime pursuant to her plea agreement, Ann Fisher contacted her husband's lawyer and told him that she, not her husband, had killed the victim. Id. at 72, 859 P.2d at 182. Based upon that confession, her husband's lawyer filed a motion for new trial. Id. At a hearing on this motion, Ann Fisher denied committing the murder but did testify that she had made "conflicting statements . . . to various people" suggesting that she had. Id. She further testified that, had she been unconstrained by her plea agreement, she would have testified as to "how it was," and that her husband was "staggering drunk" on the day of the murder. Id. Based on this evidence, the superior court granted a new trial. Id. When the State sought review, the Arizona Supreme Court affirmed the superior court's order granting a new trial. It held, as it had earlier suggested on direct appeal, see State v. Fisher, 141 Ariz. 227, 244, 686 P.2d 750, 767 (1984), that consistency provisions in plea agreements were unfair and unenforceable. Fisher, 176 Ariz. at 73, 859 P.2d at 183. The court acknowledged that plea agreements could "properly be conditioned upon truthful and complete testimony." Id. However, "the prosecution should have bargained with Mrs. Fisher only for truthful and accurate testimony." Id. at 74, 859 P.2d at 184 (stating that "such an agreement maintains the integrity of the plea agreement process and promotes a fair trial without encouraging unreliable testimony"). Instead, it had required that Ann Fisher's testimony be consistent with earlier versions given to authorities. Id. at 73, 859 P.2d at 183. In State v. Fisher, the agreement with the cooperating codefendant specifically contemplated her testimony at trial and included an express "condition" that if "called as a witness in the trial of James Fisher . . . her testimony would not vary substantially in relevant areas to statements previously given investigative officers." 176 Ariz. at 71, 859 P.2d at 181. This clause was held to be an unenforceable "consistency provision" that tended to coercively script the cooperating witness's testimony in violation of due process. Id. at 74-75, 859 P.2d at 184-85.