US SUPREME COURT DECISIONS

Shortly after his trial for first-degree murder had commenced in an Arizona court, respondent and the prosecutor reached an agreement whereby respondent would plead guilty to second-degree murder and testify against other parties involved in the murder, in return for a specified prison term and a specified actual incarceration time. The agreement also provided that, if respondent refused to testify "this entire agreement is null and void and the original charge will be automatically reinstated," and that, "[i]n the event this agreement becomes null and void, then the parties shall be returned to the positions they were in before this agreement." The trial court accepted the plea agreement and proposed sentence, and respondent testified against the other individuals, who were convicted of first-degree murder. The Arizona Supreme Court reversed the latter convictions, remanding for retrial, and the prosecutor sought respondent's further cooperation, but was informed that respondent believed his obligation to testify under the agreement terminated when he was sentenced. After the trial court refused to compel him to testify in pretrial proceedings, the State filed a new information charging him with first-degree murder. The trial court denied his motion to quash the information on double jeopardy grounds, and the Arizona Supreme Court, in special proceedings filed by respondent, vacated his second-degree murder conviction and reinstated the original charges, holding that the plea agreement contemplated availability chanrobles.com-red

Page 483 U. S. 2

of his testimony against the other individuals at both trial and retrial, that he had violated the agreement's terms, and that the agreement waived the defense of double jeopardy if it was violated. The State then declined his offer to testify at the other individuals' retrial, he was convicted of first-degree murder and sentenced to death, and the judgment was affirmed on appeal. He then unsuccessfully sought habeas corpus relief in Federal District Court, but the Court of Appeals ultimately held that the State had violated his rights under the Double Jeopardy Clause, concluding that he had not waived such rights by entering into the plea agreement.

Held: Respondent's prosecution for first-degree murder did not violate double jeopardy principles, since his breach of the plea agreement removed the double jeopardy bar that otherwise would prevail, assuming that, under state law, second-degree murder is a lesser included offense of first-degree murder. Pp. 483 U. S. 8-12.

(a) The record establishes that respondent understood the meaning of the agreement's provisions concerning the consequences of his breach of his promise to testify. It is not significant that "double jeopardy" was not specifically waived by name in the agreement, since its terms are precisely equivalent to an agreement waiving a double jeopardy defense. Pp. 483 U. S. 9-10.

(b) There is no merit to the view that, since there was a good faith dispute about whether respondent was bound to testify a second time, there could be no knowing and intelligent waiver of his double jeopardy defense until the extent of his obligation was decided. Respondent knew that, if he breached the agreement, he could be retried, and he chose to seek a construction of the agreement in the State Supreme Court, rather than to testify at the retrial. He cannot escape the State Supreme Court's finding that he had breached his promise to testify, and there was no indication that he did not fully understand the potential seriousness of the position he adopted. Cf. United States v. Scott, 437 U. S. 82. Pp. 483 U. S. 10-12.

(c) It is of no moment that, following the Arizona Supreme Court's decision, respondent offered to comply with the terms of the agreement, since at that point his second-degree murder conviction had been ordered vacated and the original charge reinstated. The parties could have agreed that respondent would be relieved of the consequences of his refusal to testify if he were able to advance a colorable argument that a testimonial obligation was not owing, but permitting the State to enforce the agreement actually made does not violate the Double Jeopardy Clause. P. 483 U. S. 12.

789 F.2d 722, reversed. chanrobles.com-red

Page 483 U. S. 3

WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J.,and POWELL, O'CONNOR, and SCALIA, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, BLACKMUN, and STEVENS, JJ., joined, post p. 483 U. S. 12.