McKay v. Great American Insurance Co.

Citations: 876 So. 2d 666; 2004 Fla. App. LEXIS 8803; 2004 WL 1392287Docket: No. 4D04-1753

Court: District Court of Appeal of Florida; June 23, 2004; Florida; State Appellate Court

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Robert McKay has petitioned for a writ of certiorari to overturn a trial court order that compels him to testify in a civil case, arguing that this violates his Fifth Amendment right against self-incrimination. On May 13, 2004, the court denied his petition. The court recognizes that certiorari is applicable to review discovery orders in civil cases when a party claims a violation of the Fifth Amendment. The trial court must be shown to have deviated from the essential legal requirements, causing harm that cannot be remedied through a standard appeal.

McKay previously confessed and pled guilty to crimes related to his employment at a cemetery, including desecration of bodies. As part of his plea agreement, he agreed to testify truthfully in any necessary venue regarding the Menorah Gardens Palm Beach case, with the understanding that such testimony was covered by Florida Statutes Section 914.04, which provides use and derivative use immunity for compelled testimony in criminal proceedings. 

In the ongoing civil case concerning the cemetery offenses, McKay invoked his Fifth Amendment rights when the plaintiffs sought to depose him, claiming that Section 914.04 does not apply to civil testimony and that the state could not grant him immunity. However, the trial court ruled that the protections outlined in the plea agreement were sufficient to mitigate his concerns about potential prosecution, thus compelling him to testify. McKay has since filed for certiorari review. 

The distinction between transactional and use/derivative use immunity is pivotal in this case. Use immunity protects the witness's testimony from being used against them in criminal prosecutions, while derivative use immunity prevents the government from using evidence derived from that testimony unless it can be sourced independently.

A defendant who has testified under a state grant of immunity must show that the federal authorities have an independent source for the evidence they seek to use, as the burden shifts to the prosecution. Transactional immunity offers broader protection than the Fifth Amendment, which solely protects against compelled self-incrimination without preventing prosecution for invoking it. While transactional immunity protects the subject matter of the testimony, it does not preclude prosecution based on unrelated matters. Florida's statute historically allowed both transactional and use immunity but was amended in 1982 to provide only for use immunity. The case of State v. Williams determined that post-amendment, the state cannot grant transactional immunity under the statute, although it does not prohibit it as part of a plea agreement. A relevant case, Randall v. Guenther, involved a civil suit where the court ruled that a grant of immunity under the state statute does not extend to civil proceedings and must adhere strictly to its defined parameters, affirming that statutory immunity applies solely to testimony in criminal contexts.

The court rejected Guenther’s claims that the state’s letters constituted a valid grant of contractual immunity, asserting that in Florida, immunity from prosecution must arise from a specific statutory or constitutional provision, specifically citing Section 914.04. The court emphasized that immunity is a statutory construct, referencing Stancel v. Schultz and State v. Schroeder, which assert that such immunity cannot be based solely on informal agreements or letters. The letters in question were deemed unenforceable due to lacking mutual consideration, categorizing them as nudum pactum. 

In contrast, McKay’s case involved a negotiated plea agreement that provided him with transactional immunity concerning non-violent crimes linked to his actions while at the cemetery. This plea agreement was enforceable, as it included a clear exchange of promises, unlike the letters in Randall. The court noted that while Section 914.04 allows the state to grant immunity, it does not limit a prosecutor’s discretion in entering valid plea agreements. Furthermore, the court clarified that immunity obtained through plea negotiations serves different purposes than statutory immunity, which is designed to encourage witness cooperation in prosecutions. The agreement with the statewide prosecutor is binding and ensures that McKay's plea agreement is enforceable under the due process clause of both state and federal constitutions.

A grant of immunity under the statute prevents other jurisdictions from using compelled testimony in criminal proceedings, as established in Costello v. Fennelly. While section 914.04 does not protect McKay's testimony in civil matters, he has transactional immunity through a valid, court-approved plea agreement that includes a promise not to prosecute. Jeopardy attaches upon McKay's full compliance with this agreement, which the state cannot rescind once he fulfills his obligations. However, if McKay fails to comply, the state may withhold immunity. The state could be compelled to honor the agreement and refrain from filing new charges if McKay meets his commitments. Principles of contract law and promissory estoppel protect McKay from state breach if he reasonably relied on the promise not to prosecute, as noted in State v. Frazier. Due process requires that the state keep its word, supported by case law such as Rowe v. Griffin and Santobello v. New York. Regarding the Fifth Amendment, a litigant can invoke this privilege if there are reasonable grounds to believe that testimony could lead to self-incrimination. McKay, however, lacks reasonable grounds for fearing further state prosecution if he complies with the plea agreement. He claims that federal prosecution could occur under the dual sovereignty doctrine but fails to identify any applicable federal laws or ongoing investigations. Consequently, he has not demonstrated a reasonable basis for believing his testimony could implicate federal criminal statutes.

McKay has not established a basis for federal jurisdiction in a matter that appears to involve only state law and has failed to demonstrate that his deposition testimony could link him to any crime. Consequently, the trial court's order compelling his testimony in accordance with a plea agreement did not violate legal requirements. McKay is not entitled to immunity for his testimony in this civil case under section 914.04 of the Florida Statutes. However, the plea agreement grants him transactional immunity, assuring that no new charges would be filed related to his actions at the cemetery, contingent upon his truthful testimony consistent with prior statements. If McKay fails to comply, the state can rescind the agreement and pursue further charges. The agreement is binding on the state as long as McKay upholds his obligations, but it does not limit federal prosecutorial discretion, as federal prosecutors were not party to the agreement. McKay retains his Fifth Amendment privilege against self-incrimination for questions beyond the scope of his previous testimony and can refuse to testify if he believes it could incriminate him regarding crimes not covered by the agreement. However, refusal to testify would constitute a breach of the plea agreement, allowing the state to withdraw its promise of immunity and permitting McKay to retract his plea. The trial court found that McKay had adequate protection under the agreement and should testify, rejecting his claims of reasonable fear of further prosecution. The petition for writ of certiorari was denied.