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State v. Gayles7/6/1999
ever, Kellum did not testify during the hearing on the motion for a new trial.
Deborah Huskins, another of Norman's attorneys, testified during the hearing on the motion for a new trial that she had believed that if Norman testified truthfully at Appellant's trial, it would make a difference in any sentence he subsequently received in the drug case. However, Huskins also testified that although she believed it would benefit Norman to testify truthfully, "we had absolutely no agreement as to what plea if any we would be entering, the number of years, ranges, we-we did not discuss any specifics like that, not anything." Further, Huskins testified that she and Kellum had explained to Norman that the prosecutor had not made any definite offer of leniency in return for his testimony.
The trial court found that there was no merit to Appellant's claim that he was entitled to a new trial because the State had failed to disclose that it had a leniency agreement with Norman. Although the trial court made no express findings of fact, the court did note that Norman's credibility was questionable. In addition, the court's ruling necessarily implies a finding that there had been no implicit leniency agreement between the State and Norman. The evidence does not preponderate against that finding. Indeed, Appellant failed to introduce any evidence that the prosecutor promised Norman anything definite in return for his testimony. At most, Appellant merely established that the prosecutor would take Norman's decision to testify truthfully into "consideration" in any future plea negotiations. An indefinite offer of "consideration" falls far short of constituting an agreement. In addition, although Norman may well have believed that he would receive leniency in return for his testimony, the unilateral belief of one person is insufficient to create an agreement. In short, Appellant had failed to show that there was any agreement between the State and Norman in regard to Norman's testimony. This issue has no merit.
Accordingly, the judgment of the trial court is AFFIRMED.
JERRY L. SMITH, JUDGE
CONCUR:
JOE G. RILEY, JUDGE
NORMA MCGEE OGLE, JUDGE
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