1 CA-CR 07-0177-91122

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In particular, Defendant identified statements made by Tovar that he introduced Defendant to “Paco” and Lafarga and that Tovar was paid for his involvement in the operation. Because the discovery provided did not include those statements, Defendant argued that either (1) the State failed to give complete discovery of all information provided by Tovar to the police, or (2) Tovar’s memory was refreshed by information obtained from Defendant during his free talk. Defendant suggested that the second possibility was the “more logical inference” and requested an evidentiary hearing on whether the State had breached the free talk agreement. After oral argument, the trial court denied the motion. 24 Defendant contends the trial court erred by failing to hold an evidentiary hearing on the alleged violation. We review a trial court’s ruling on whether to hold an evidentiary hearing for abuse of discretion. State v. Wassenaar, 215 Ariz. 565, 576, 48, 161 P.3d 608, 619 (App. 20<strong>07</strong>). However, construction of the immunity agreement is a question of law, which we review de novo. See Ariz. Biltmore Estates Ass'n v. Tezak, 177 Ariz. 447, 448, 868 P.2d 1030, 1031 (App. 1993) (holding that the interpretation of a contract is a legal issue). 25 As an initial matter, we reject the State’s contention that the terms of the free talk agreement only restrict the 12
direct use of information obtained from Defendant. While insisting there was never any use of Defendant’s statements to refresh Tovar’s memory, the State argues that such use would constitute “derivative use” and therefore fall outside the scope of the agreement. 26 When enforcing an immunity agreement, we look to the terms of the agreement itself, determined by applying general contract law. See Brown v. Ariz. Dep’t of Real Estate, 181 Ariz. 320, 327, 890 P.2d 615, 622 (App. 1995) (“Agreements not to prosecute a witness are viewed under contract law principles.”). A review of the free talk agreement finds that it unambiguously precludes both direct and derivative use of Defendant’s statements against him. After providing that the State “will not use the fact that he was interviewed, or any statements made by him during the interview, in any litigation or proceeding,” the next paragraph of the agreement reads: [Defendant] understands that he will probably reveal, during the interview, information not previously known to the [State] in connection with the abovedescribed investigation. The parties agree, in the event that no plea agreement is reached with [Defendant] within a reasonable time after the interview, the [State] can use the “fruits” of statements made by [Defendant] in any investigation and during any litigation and prosecution of anyone other than [Defendant]. 13
Page 1 and 2: NOTICE: THIS DECISION DOES NOT CREA
Page 3 and 4: Gonzales inside while Tovar took fo
Page 5 and 6: information. He asserts that when t
Page 7 and 8: March 18, 2005, and April 15, 2005,
Page 9 and 10: on the determination of probable ca
Page 11: Thus, notwithstanding the admitted
Page 15 and 16: Ariz. 296, 77 P.3d 1246 (2003); Sta
Page 17 and 18: See United States v. Silva, 380 F.3
Page 19 and 20: Id. at 118; see also Silva, 380 F.3
Page 21 and 22: direct evidence of Defendant’s pa

1 CA-CR 07-0177-91122

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