State of Alabama v. William Ray Norris

Rel: February 10, 2023

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
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Alabama Court of Criminal Appeals
OCTOBER TERM, 2022-2023
_________________________

CR-2022-0521
_________________________

State of Alabama

v.

William Ray Norris

Appeal from Clarke Circuit Court
(CC-22-2)

McCOOL, Judge.

The State of Alabama appeals the Clarke Circuit Court's judgment

dismissing an 11-count indictment against William Ray Norris. For the

reasons set forth herein, we reverse the judgment and remand the case

for the circuit court to reinstate the indictment.
CR-2022-0521

Facts and Procedural History

In January 2019, Norris began serving a term as the Clarke County

sheriff. In April 2021, the State filed in the Alabama Supreme Court an

information of impeachment and prayer for ouster, alleging that Norris

had engaged in corruption in office and had committed offenses involving

moral turpitude. Generally, the corruption charge alleged that Norris

had used his public office for personal gain, and the moral-turpitude

charge alleged that he had made intentional misrepresentations in

certain financial-disclosure forms he was required to file as a public

official and that he had willfully failed to report taxable income to the

State of Alabama for 2019. An initial hearing in the impeachment

proceeding was scheduled to occur on June 2, 2021, but the impeachment

proceeding was rendered moot when Norris tendered his resignation on

May 25, 2021, to become effective on June 1, 2021.

In January 2022, a Clarke County grand jury returned an

indictment charging Norris with five counts of conversion of campaign

contributions to personal use, see § 36-25-6, Ala. Code 1975; two counts

of an intentional violation of the Fair Campaign Practices Act, see § 17-

5-1 et seq., Ala. Code 1975; one count of the use of public office for

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personal gain, see § 36-25-5, Ala. Code 1957; two counts of intentional

failure to make certain financial disclosures in his 2019 statement of

economic interests, see § 36-25-14, Ala. Code 1975; and one count of a

willful attempt to evade paying Alabama income tax, see §§ 40-18-2 and

40-29-110, Ala. Code 1975.

Norris subsequently filed a motion to dismiss the indictment, in

which he alleged that he and the State had "entered into an agreement,

where in return for [his] resign[ation] as the Sheriff of Clarke County,

the State would dismiss the impeachment case …, and the State would

not bring or pursue criminal charges against [him]." (C. 40.) In support

of his motion, Norris cited Ex parte Yarber, 437 So. 2d 1330, 1335 (Ala.

1983), for the proposition that the State may not enter into a plea

agreement with a defendant and then "be allowed to repudiate that

agreement with impunity." Norris included with his motion an affidavit

from attorney Joe Espy III, who claimed to have represented Norris

during the pendency of the impeachment proceeding. In his affidavit,

Espy stated that, while the impeachment proceeding was pending, he and

Clark Morris, the Assistant Chief Deputy Attorney General, had reached

a "verbal understanding" that, if Norris would resign as sheriff, no

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"criminal charges would be brought against him," and, according to Espy,

Norris had tendered his resignation "based upon [that] agreement." (C.

45.)

The State filed a response to Norris's motion, arguing that the

alleged agreement "was never made and is a matter of complete fiction."

(C. 62.) In addition, the State argued that, even if Morris had entered

into the alleged agreement, it was invalid and therefore unenforceable.

In support of that argument, the State noted that Norris's discussion of

plea agreements was inapposite because, the State said, Norris was

"alleging, in essence, that he was granted … immunity by the State," not

that he had entered into a plea agreement with the State. (C. 100.)

According to the State, this distinction is important because, the State

said, in Alabama an immunity agreement must be signed by the

prosecutor, must be approved by a judge, and must be granted in

exchange for truthful testimony as a State's witness against another

accused of a crime. Thus, because it is undisputed that those

requirements were not satisfied, the State argued that Norris faced a

"legal obstacle" that precluded dismissal of the indictment. (Id.)

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The circuit court held a hearing on Norris's motion and heard

testimony from Espy and Morris, who each testified as to their

conversations regarding Norris. The first two conversations occurred on

May 24, 2021 – the day before Norris tendered his resignation – and Espy

testified that there was "no question in [his] mind" that he and Morris

had reached an agreement during those brief conversations. (R. 29.)

Regarding the terms of that agreement, Espy testified:

"The agreement was that if Norris would resign his
office as sheriff, that would conclude any state criminal
prosecution. [Morris] made it very clear that the federal folks
were still investigating and [the agreement] did not include
that. It included only the state charges going forward. I
relayed this to Norris. He directed me to proceed and accept
it, and I told Morris that we agreed and we accepted it and we
went forward."

(R. 30.) The next day, Norris tendered his resignation, and, according to

Espy, Norris "wouldn't have filed [his resignation] but for the agreement

with Morris." (R. 72.)

The next conversation occurred in January 2022, after Espy learned

that Norris had been indicted. Regarding that conversation, Espy

testified:

"I … told [Morris] that I had been informed that there
had been an indictment against Norris in Clarke County. She
said I'm correct.

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"And … I can't remember verbatim what was said, but I
basically said to her – and I was upset, understand, I was not
happy. Okay? And I told her that was basically contrary to
the agreement we made. She responded, 'Circumstances
changed.'

"And I said, you know, I represented … to Norris … that
this matter had been resolved pursuant to that agreement,
and this puts me in a box.

"She said, 'I understand.'

"I said, 'Going forward, this changes mine and your
relationship.'

"And she said, 'I understand.' She didn't say we mis-
communicated or anything. She said, 'Circumstances
changed.' She did not tell me what they were."

(R. 50-51.) Espy testified that he had spoken with Morris again

approximately one week later and had asked her to tell him "what the

circumstance was that changed," but, according to Espy, Morris "didn't

answer that question" and, instead, had told him that she would "make

it up to [him] down the road, or something to that effect." (R. 52.)

Morris testified as follows regarding her May 24, 2021,

conversations with Espy:

"It was during those conversations that [Espy] told me
that Norris was going to resign. I explained to him that our
plan … was for us, being the State of Alabama, to handle the

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impeachment and for the federal government or the U.S.
Attorney's Office to handle the prosecution of Norris.

"But I have to say, Judge, there was no agreement; there
was no offer; there was no acceptance; there was no bargain.
It was our plan. And I shared that with [Espy] mainly
because I had worked with him so much, I felt comfortable
sharing the plan with him. But as we all know, plans change
from time to time.

"….

"It was a plan. It wasn't an agreement …. I was just
explaining to him what we were planning to do with the case
…."

(R. 96-97.) In further support of her contention that no agreement

existed, Morris noted that Norris's resignation was effective June 1, 2021,

approximately one week after she had allegedly entered into the

agreement. According to Morris, that fact indicated that Norris had

made the decision to resign "on his own," not as a result of any agreement

with the State, because, she testified, "if there were a bargain, [she] …

wouldn't let a sheriff that [she] considered corrupt stay in office for an

extra week." (R. 108.)

As for the reason the State had changed its "plan" not to prosecute

Norris, Morris testified that a United States attorney in the Southern

District of Alabama had assured her that Norris would be indicted in

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federal court in June or July of 2021, but, according to Morris, that never

happened. Morris testified that she had spoken with the United States

attorney in August 2021 in an attempt to "push [him] to go ahead and

indict" Norris (R. 111) and that the attorney had assured her he "should

be able to get th[at] done in September or October." (R. 115.) However,

as of December 2021, Norris had not been indicted in federal court, so

Morris "started thinking [the State was] going to have to get it done" (id.),

and Norris was indicted in January 2022.

As to the conversations that occurred following Norris's indictment,

Morris testified that Espy "never mentioned … any type of agreement or

… a deal or anything like that." (R. 117.) Instead, Morris testified, Espy

"just wanted to know what had changed and why [the State] had indicted

Norris" (id.), and she testified that she had explained to Espy that,

because "the feds didn't do their job," the State "[was] having to take care

of it now." (R. 118-19.)

Following Morris's testimony, Espy returned to the witness stand

and testified as follows:

"Q. … [Y]ou heard [Morris] say that she told you
basically the same thing you say she said, but she said it was
a plan as opposed to an agreement. Tell the Court your best
recollection of that conversation again.

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"A. Judge, [Morris] ain't never told me a plan in that
office. There wasn't anything about a plan. She represented
to me without question on May 24 that … if [Norris] resigned,
there would be no state charges …."

(R. 156-57.)

On March 23, 2022, the circuit court issued an order dismissing the

indictment with prejudice. The circuit court did not base its ruling on a

finding that Espy and Morris had reached an agreement that the State

would not prosecute Norris in exchange for his resignation. Instead, the

circuit court found that Espy and Morris had "both testified absolutely

truthfully" (C. 140) and simply "had a different understanding of [the

May 24, 2021,] conversation[s]." (C. 139.) The circuit court concluded

that dismissal of the indictment was warranted, however, because it

found that Espy and Norris reasonably believed the agreement existed

and that Norris had relied on that belief to his detriment by resigning as

sheriff. The State filed a timely notice of appeal.

Standard of Review

Generally, a circuit court's ruling on a motion to dismiss an

indictment is reviewed for an abuse of discretion. Burt v. State, 149 So.

3d 1110, 1112 (Ala. Crim. App. 2013). However, when the circuit court's

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ruling is based on a question of law, this Court applies a de novo standard

of review. Id.

Discussion

On appeal, the State claims that the circuit court erred by

dismissing the indictment against Norris. In support of that claim, the

State disputes the allegation that Morris agreed not to prosecute Norris

in exchange for his resignation but argues that, even if she did, the

agreement was an invalid and therefore unenforceable transactional-

immunity agreement. In response, Norris argues that the alleged

agreement was not an immunity agreement and instead refers to it as a

plea agreement, as he did below. Because the parties disagree as to the

nature of the alleged agreement and because "plea agreements and

immunity agreements 'differ markedly,' " Lampkins v. Commonwealth,

44 Va. App. 709, 723, 607 S.E.2d 722, 729 (2005) (quoting Plaster v.

United States, 789 F.2d 289, 293 (4th Cir. 1986)), we begin our analysis

by explaining what the alleged agreement was, and what it was not.

Rule 14.3(a), Ala. R. Crim. P., which governs plea agreements,

provides that the State and a defendant

"may engage in discussions with a view toward reaching an
agreement that, upon the entering of a plea of guilty to a

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charged offense or to a lesser or related offense, the prosecutor
either will move for dismissal of other charges or will
recommend (or will not oppose) the imposition or suspension
of a particular sentence, or will do both."

In other words, a plea agreement typically arises only after a criminal

charge has been filed, and the agreement requires that the defendant

enter a plea of guilty to that charge or another (usually less serious)

charge, which results in a conviction, in exchange for some concession by

the State that the defendant finds satisfactory. See also State v. Johnson,

360 S.W.3d 104, 110 (Ark. 2010) ("A 'pure plea bargain agreement'

involves ' "a suspect who has been apprehended for allegedly committing

a crime and, rather than face the prospects of an extended trial and a

punishment of undetermined severity if convicted, decides to plead guilty

to charges mutually acceptable to him and the prosecutor." ' " (quoting

State v. Howe, 2 Neb. App. 766, 772, 514 N.W.2d 356, 361 (1994), quoting

in turn United States v. Minnesota Min. & Mfg. Co., 551 F.2d 1106, 1111-

12 (8th Cir. 1977))); and Custer v. State, 86 Md. App. 196, 199, 586 A.2d

51, 53 (1991) ("Traditionally, a 'plea bargain' or 'plea agreement'

contemplates a conditional plea of guilty … to one or more pending

charges." (quoting Gray v. State, 38 Md. App. 343, 356, 380 A.2d 1071

(1977))).

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A transactional-immunity agreement, on the other hand, typically

arises when a person suspected of a crime agrees to testify as a State's

witness against another person accused of a crime, and, in return, the

State agrees that the witness will not be prosecuted for any crimes

related to the events about which he testifies. See State v. Belanger, 146

N.M. 357, 361, 210 P.3d 783, 787 (2009) ("Transactional immunity

involves a promise by prosecutors that a witness will not be prosecuted

for crimes related to the events about which the witness testifies."); In re

Tracy L., 10 Cal. App. 4th 1454, 1463, 13 Cal. Rptr. 593, 598 (1992)

(defining transactional immunity "as that kind of immunity which

'immunizes the defendant from prosecution for any offense which is

implicated by [his] testimony' " (quoting People v. Campbell, 137 Cal.

App. 3d 867, 874, 187 Cal. Rptr. 340, 343 (1982))); and In re Caito, 459

N.E.2d 1179, 1182-83 (Ind. 1984) ("[T]ransactional immunity … prohibits

the State from criminally prosecuting the witness for any transaction

concerning that to which the witness testifies[.]"). Unlike a plea

agreement, a transactional-immunity agreement does not require

pending charges, does not require the person receiving immunity to enter

a guilty plea, and does not result in a conviction. To the contrary, " ' "the

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very nature of [a transactional-immunity] agreement is the promise on

the part of the government to do nothing." ' " Johnson, 360 S.W.3d at 110

(quoting Lampkins, 44 Va. App. at 724, 607 S.E.2d at 729, quoting in turn

Plaster, 789 F.2d at 293)).

In this case, the alleged agreement arose before the State had filed

any criminal charges against Norris, and it allegedly provided that the

State would not file any charges against him if he resigned his position

as sheriff, which he did. Thus, if the alleged agreement is to be enforced,

the effect will be that the State can never prosecute Norris for the

offenses charged in the indictment, i.e., that the State can "do nothing"

to Norris with respect to those offenses. Johnson, 360 S.W.3d at 110

(citations omitted). We agree, then, with the State's argument that the

alleged agreement cannot be classified "as anything other than a grant

of 'transactional immunity' " (State's reply brief, pp. 2-3), and other courts

have reached the same conclusion.1 See Johnson, 360 S.W.3d at 111

(holding that the prosecutor's agreement that he would "not file formal

charges if [the appellant] would obtain a psychiatric evaluation" was an

1Thecircuit court also appears to have concluded that the alleged
agreement was an immunity agreement. (R. 173.)
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" 'informal immunity' " agreement and was "clearly not" a plea agreement

(quoting Howe, 2 Neb. App. At 773, 514 N.W.2d at 362)); State v. Ralston,

43 Kan. App. 353, 363, 225 P.3d 741, 750 (2010) (holding that, contrary

to the appellant's argument, an alleged agreement whereby he would not

be prosecuted in exchange for his cooperation with the State was an

immunity agreement and not a plea agreement); United States v. Bailey,

34 F.3d 683, 690 (8th Cir. 1994) ("[T]he essence of a nonprosecution

agreement is a promise of immunity."); United States v. Jimenez, 256

F.3d 330, 347 (5th Cir. 2001) (noting that an agreement not to prosecute

and an immunity agreement are "in essence" the same); United States v.

Bird, 709 F.2d 388, 392 (5th Cir. 1983) ("While the agreement is phrased

in terms of nonprosecution, its essence is a promise of immunity.");

United States v. Skalsky, 857 F.2d 172, 175 (3d Cir. 1988) (noting that

"agreements not to prosecute" are "[i]nformal grants of immunity"); and

Neal v. Director, D.C. Dep't of Corr., 400 F. Supp. 2d 134, 143 (D.D.C.

2005) (noting that an " 'agreement not to prosecute' " is the " 'fundamental

equivalent' " of an immunity agreement (quoting Jaggers v. United

States, 482 A.2d 786, 797 (D.C. 1984))).

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Having determined that any agreement that arose in this case was

an immunity agreement, we turn to the State's argument that the alleged

immunity agreement is invalid and thus unenforceable. In State v.

Sealy, 728 So. 2d 657, 661 (Ala. Crim. App. 1997), this Court noted that

"Alabama is one of a number of states that do not have a general statute

authorizing prosecuting attorneys to grant immunity from prosecution."

However, despite the lack of such a statute, "prosecuting attorneys and

judges are not forbidden from granting an accused immunity from

prosecution for criminal offenses," and "[n]onstatutory grants of

immunity can be valid in Alabama if they follow the guidelines

established in Ex parte Graddick, [501 So. 2d 444 (Ala. 1986)], i.e., the

grant of immunity must be signed by the district attorney and approved

by the trial judge." Sealy, 728 So. 2d at 661.

In this case, it is undisputed that the alleged immunity agreement

was not signed by Morris (indeed, it was not reduced to writing) and that

it was not judicially approved (indeed, it was never presented to a judge).

Thus, we agree with the State's argument that the alleged agreement

was not a valid immunity agreement. Ex parte Graddick, supra.

Consequently, even if the alleged immunity agreement existed, it is not

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legally enforceable and therefore does not entitle Norris to dismissal of

the indictment. See Sealy, 728 So. 2d at 661 (holding that an invalid

promise of immunity "was not binding upon the [S]tate, and the [S]tate

was not estopped from raising its invalidity nor estopped from indicting

or prosecuting [the appellant]"; " '[b]reach of such a promise … cannot be

pled in bar of an indictment' " or " 'as grounds for dismissal of the

prosecution' " (quoting Yarber v. State, 368 So. 2d 868, 869-70 (Ala. Crim.

App. 1978))); and State v. Seneca, 726 So. 2d 748, 750 (Ala. Crim. App.

1998) (same).

We recognize that Norris argued below that, as a matter of equity,

the State should be estopped from prosecuting him based on Morris's

alleged oral assurance that he would not be prosecuted if he resigned as

sheriff. As the State notes, however, " 'Alabama has not embraced the

estoppel theory to uphold non-statutory grants of immunity' " that are not

valid. Sealy, 728 So. 2d at 661 (quoting Mayberry v. State, 419 So. 2d

262, 265 (Ala. Crim. App. 1982)). Of course, that is not to say that we

cannot embrace the estoppel doctrine now, but this Court has previously

noted that application of "the estoppel theory" would require proof that

the accused had acted to his detriment based on "an explicit" and

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"unambiguous offer of immunity." Mayberry, 419 So. 2d at 265 (emphasis

added). And it is the accused seeking application of the estoppel doctrine

who bears the burden of demonstrating that the State made an explicit

and unambiguous offer of immunity. See United States v. Rosario, 237

F. Supp. 2d 242, 245 (E.D.N.Y. 2002) (noting that the party claiming

immunity by estoppel has the burden of proving that there was "a 'clear

and unambiguous' promise" of immunity (quoting Readco, Inc. v. Marine

Midland Bank, 81 F.3d 295, 301 (2d Cir. 1996))); and United States v.

Short, 387 F. App'x 308, 313 (4th Cir. 2010) (not selected for publication

in the Federal Reporter) (noting that, for the doctrine of " 'equitable

immunity' " to apply, "the defendant bears the burden of proving the

existence of an equitable immunity agreement").

In this case, the circuit court did not find that Morris had made an

explicit and unambiguous offer of immunity, and this Court cannot make

that finding because doing so would require us to make credibility

determinations with respect to Espy's and Morris's testimony, which are

wholly outside the scope of our review. Albarran v. State, 96 So. 3d 131,

198 (Ala. Crim. App. 2011). Instead, the circuit court found that Espy

and Morris had "a different understanding" of their conversations and

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that Norris reasonably believed that Morris had offered him immunity in

exchange for his resignation. However, Norris's mere belief that he had

been granted immunity is not a sufficient basis upon which to apply the

estoppel doctrine unless that belief was based on an explicit and

unambiguous offer of immunity. Thus, because the circuit court did not

find that Morris had made an explicit and unambiguous offer of

immunity, the estoppel doctrine does not justify dismissal of the

indictment. See Mayberry, 419 So. 2d at 265 (holding that the State was

not estopped from prosecuting the appellant, who believed that the

district attorney had granted him immunity, because, although the

district attorney had made statements implying that the appellant might

obtain immunity in return for his cooperation, the district attorney had

not made "an unambiguous offer of immunity" (emphasis added)). See

also Jimenez, 256 F.3d at 348 n.25 ("[The defendant's] subjective belief

[that he would not be prosecuted] cannot, by itself, establish

transactional immunity."); and United States v. Weiss, 599 F.2d 730, 738

(5th Cir. 1979) ("[T]he appropriate analysis is not whether [the

defendant] subjectively expected not to be prosecuted but whether there

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was a promise held out to which the government, as a matter of fair

conduct, might be bound.").

Conclusion

Based on the foregoing, the circuit court erred by granting Norris's

motion to dismiss the indictment. Thus, we reverse the judgment of

dismissal and remand the case to the circuit court for that court to

reinstate the indictment.

REVERSED AND REMANDED.

Windom, P.J., and Kellum, Cole, and Minor, JJ., concur.

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