Wright v. State

¶1concurring in part, dissenting in part. I have no quarrel with the manner in which the majority resolves the issue presented in Part I of its opinion. Indeed, I thoroughly agree with the analysis. However, I cannot agree with the majority’s analysis or conclusion that statements made during a plea bargain are admissible when the defendant rejects the bargain before trial. I therefore respectfully dissent from Part II.

¶2Coley entered into a plea agreement with the State in which the State agreed to allow Coley to plead guilty to murder in the second degree in exchange for Coley’s promise to do certain things. The majority concedes that, based on the inducement of a lesser punishment, Coley made certain incriminating statements and confessions. However, the plea agreement also provided that if Coley broke any of his promises, the State could use any of these incriminating statements against him at trial.

¶3The majority admits that Coley reneged and elected to stand trial on a not guilty plea, and that he moved to suppress all of his statements on grounds of involuntariness. The trial court denied his motion and allowed the State to use Coley’s statements to convict him. In my view, the admission of these statements was reversible error.

¶4As I see it, plea bargaining involves a quid pro quo. The defendant bargains for a reduction in punishment in return for which he incriminates himself. The practice is allowed primarily because it necessarily engages the supervision of the trial court, which must determine if the defendant entered the agreement voluntarily and appreciates the nature of the charge and the consequences of his admission of *589guilt. See, e.g., Blinken v. State, 291 Md. 297, 435 A.2d 86 (1981); cert. denied, 456 U.S. 973, 102 S.Ct. 2235, 72 L.Ed.2d 846 (1982); State v. Priet, 289 Md. 267, 424 A.2d 349 (1981); see also Md.Rule 4-242(c). This Court encourages the practice of plea bargaining because, when properly supervised by the courts, the practice speeds up the administering of justice. We insist, however, that the trial court be satisfied that the defendant fully understands the agreement and that the agreement is fundamentally fair to society. Blinken v. State, supra, 291 Md. at 307-08, 435 A.2d at 91.

¶5Significantly, in this case, the plea agreement between Coley and the State was never presented to the trial court for approval. This was because Coley opted to reject it and exercise his unfettered right to plead not guilty. The majority, while not challenging Coley’s right to back out of the agreement, nevertheless holds that his incriminating statements were admissible pursuant to Maryland Rule 4-243. While Rule 4-243 permits the State and a defendant to enter plea bargains and submit the same to the court, nowhere does this rule address the admissibility of statements made by a defendant who withdraws from a plea agreement prior to trial. Consequently, it is not surprising that the majority fails to specify which subsection controls the admissibility of confessions. I suggest that Rule 4-243 is only significant when plea agreements are presented to the trial court for approval. No such presentation was made in this case and thus Rule 4-243 is inapplicable.

¶6When Coley withdrew from the plea agreement, his statements were stripped of whatever sanctity the plea bargain afforded them and they stood on their own. But more important, Coley’s rejection of the agreement reclad him with all the constitutional safeguards—including the presumption of innocence—he had temporarily sacrificed under his guilty plea agreement. Thus, because there is no plea agreement to moot the issue of inducement, Coley’s statements are required to pass the same test of admissibility as any other inculpatory statement.

¶7*590The key point is that a plea bargain is not enforceable against the defendant until presented to the court. If the defendant withdraws prior to this time, with or without justification, the parties are returned to their original positions. The defendant can plead not guilty and have a jury trial, and the State can prosecute him on all charges to the fullest extent the law will allow. But, the defendant at this point stands before the court presumed innocent and thus may assert any defense consistent with his plea of not guilty. He is not before the court as one who has breached a plea bargain.

¶8One of the defenses the defendant may assert is that any statement offered be proved voluntary under the strictures of Hillard v. State, 286 Md. 145, 406 A.2d 415 (1979). Under Hillard, as the majority notes, a statement is involuntary “if it is induced by any official promise which redounds to the benefit or desire of the defendant.” Stokes v. State, 289 Md. 155, 160, 423 A.2d 552, 554 (1980). Thus, the majority concedes that, had Coley’s statements not been made as part of a plea bargain, they would be involuntary under the Hillardtest because the statements were induced by an offer of a lesser punishment and did not stem from remorse or an inner desire to tell the truth.

¶9Hillardmade clear:

that under Maryland criminal law, independent of any federal constitutional requirement, if an accused is told, or it is implied, that making an inculpatory statement will be to his advantage, in that he will be given help or some special consideration, and he makes remarks in reliance on that inducement, his declaration will be considered to have been involuntarily made and therefore inadmissible.

¶10Hillard v. State, supra, 286 Md. at 153, 406 A.2d at 420.

¶11The Michigan Supreme Court has recently addressed this issue and its opinion provides sound reasoning. In People v. Conte, 421 Mich. 704, 365 N.W.2d 648 (1984), the court consolidated five appeals limited to the issue of “whether a defendant’s inculpatory statement is inadmissible per se if *591induced by a law enforcement official’s promise of leniency.” After rejecting both the per se and totality of the circumstances test, the court adopted the rule that “a confession caused by a promise of leniency is involuntary and inadmissible.” Id. at 729, 365 N.W.2d at 657. This rule is much like Maryland’s rule as set forth in Hillard. See Hillard v. State, supra, 286 Md. at 153, 406 A.2d at 420; see also Stokes v. State, supra, 289 Md. at 160, 423 A.2d at 554. The Michigan Supreme Court then set forth a two-step test: (1) Was a promise of leniency made? and (2) Did that promise cause the confession?

¶12People v. Norman was one of the consolidated cases, and it is remarkably similar to Coley’s case. Norman was an accomplice in a murder during a robbery. After several meetings with the prosecutor, an agreement was made wherein, inter alia, the defendant agreed to identify and testify against his accomplice in exchange for a plea to second degree murder. Thereafter, the defendant executed a written statement implicating himself and testified before the grand jury. Norman then withdrew from his agreement, entered a plea of not guilty, and moved to suppress his testimony.

¶13The Michigan Supreme Court held that (1) there was no question as to the existence of a promise of leniency, and (2) that a causal nexus existed between the State’s promise and the defendant’s statement. The Court noted that “the promises made in the plea agreement provided the sole motivation for defendant’s incriminating testimony. The defendant did not confess, nor at any time express any desire to confess, in the absence of the promise of leniency given by the prosecution.” People v. Conte, supra, 421 Mich, at 747-48, 365 N.W.2d at 666.

¶14Coley’s case is similar. The State offered him a plea to second degree murder in exchange for his incriminating statement, and it is clear that this was the sole motivation for his statements. Thus, it is clear to me that improper inducements to testify are not shielded from the rule *592against inducements merely because they are made as a part of a plea agreement which fails.

¶15Assuming, arguendo, that the statements were voluntary, they fail to surmount yet another hurdle: the rule of confidentiality during plea negotiations. Maryland’s criminal justice system encourages plea bargaining. See, e.g., Kisamore v. State, 286 Md. 654, 656, 409 A.2d 719, 720 (1980); State v. Brockman, 277 Md. 687, 692-93, 357 A.2d 376, 380-81 (1976). Indeed, without plea bargaining, current judicial resources would be sorely inadequate. State v. Brockman, supra, 277 Md. at 692-93, 357 A.2d at 380-81; see also Santobello v. New York, 404 U.S. 257, 260, 92 S.Ct. 495, 498, 30 L.Ed.2d 427, 432 (1971). Most jurisdictions are in a similar predicament and have consequently recognized the necessity of a rule that makes guilty pleas that are withdrawn, plea offers that do not come to fruition, and statements made in connection with guilty pleas and plea offers privileged. The reasoning for this rule was expressed in United States v. Herman, 544 F.2d 791, 796 (5th Cir.1977): *593Accord United States v. Verdoorn, 528 F.2d 103, 107 (8th Cir.1976); Mann v. State, 96 Nev. 62, 63, 605 P.2d 209, 210 (1980); Fed.R.Crim.P. 11(e)(6).

*592Even before the enactment of rule 11(e) (6), we held that plea-related statements are inadmissible, recognizing the inescapable truth that for plea bargaining to work effectively and fairly, a defendant must be free to negotiate without fear that his statements will later be used against him. In excluding a defendant’s plea-related statements, Judge Coleman wrote:

If, as the Supreme Court said in Santobello, plea bargaining is an essential component of justice and, properly administered, is to be encouraged, it is immediately apparent that no defendant or his counsel will pursue such an effort if the remarks uttered during the course of it are to be admitted in evidence as proof of guilt. Moreover, it is inherently unfair for the government to engage in such an activity, only to use it as a weapon against the defendant when negotiations fail.

¶16*593This underlying principle—that a party’s admission will not be used against him if an agreement is not reached or fails—pertains as well to civil cases. In civil cases, the parties may engage in negotiations without fear that their statements will be used against them at trial. See, e.g., Mateer v. Reliance Insurance Co., 247 Md. 643, 646, 233 A.2d 797, 799 (1967); Biggs v. Langhammer, 103 Md. 94, 102, 63 A. 198, 200 (1906).

¶17The majority readily concedes that statements made during plea bargaining should not be admitted against a defendant. This principle has been recognized by the United States Supreme Court. In Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927), the Court held that, when a guilty plea is entered and then withdrawn, the guilty plea cannot later be used by the prosecution as an admission. The Court concluded that the guilty plea becomes a nullity and therefore is not competent evidence and that a contrary result would effectively eliminate the withdrawal of the plea. Id. at 223-24, 47 S.Ct. at 583, 71 L.Ed.2d at 1012; accord State v. Vargas, 127 Ariz. 59, 618 P.2d 229 (1980); Wilson v. State, 253 Ark. 10, 484 S.W.2d 82 (1972); Gelfand v. People, 196 Colo. 487, 586 P.2d 1331 (1978); Bennett v. Commonwealth, 234 Ky. 333, 27 S.W.2d 24 (1930); Robinson v. State, 98 Nev. 202, 644 P.2d 514 (1982).

¶18The majority also recognizes that admissions of such statements would “frustrate the policy encouraging plea bargaining.” Maj.Op. at 585. Nevertheless, the majority concludes that, because Coley’s statements “were made pursuant to a valid consummated agreement pursuant to a rule of this Court, where the agreement provided for the admission of such statements if the defendant breached the agreement,” Coley’s statements were admissible. Id.Thus, the majority’s conclusion rests on the assumption that Rule 4-243 permits statements made during plea negotia*594tions to be admissible notwithstanding the general rule of exclusion.

¶19After thoroughly reviewing the rules, I cannot agree. As previously discussed, Rule 4-243 sets forth the general rules governing plea bargaining. Nowhere in the Rule, however, is there a provision permitting the State’s Attorney to extract a confession from a defendant and use it regardless of whether the defendant fulfills or reneges on the plea agreement. The rule merely permits the defendant to agree to plead guilty or nolo contendere; the Rule does not even address confessions. Therefore, Rule 4-243 does not abrogate the common law rule that statements made during plea negotiations are confidential and inadmissible.

¶20It is of no consequence that the State’s Attorney included a provision in the plea agreement that allowed him to use any statements by the defendant if the defendant breached the agreement. Clearly, the State’s Attorney has no power to override the laws of this State. Had the State’s Attorney’s discussions with Coley not been part of a plea agreement, the State’s Attorney’s warning to the defendant that “anything you say can be used against you” would not make any resulting confession by the defendant less objectionable if induced.

¶21Under the majority’s holding today I can only assume that “full-use” provisions for confessions made in plea agreements will become the standard operating procedure for the State’s Attorney. The defendant, whose primary concern is to escape the maximum punishment, will be lulled into virtually any agreement that promises him a lesser sentence. The fact that the State’s Attorney seeks to deprive the defendant of his common law right to withdraw from the agreement and stand trial is of no concern to the defendant at that moment. Here, Coley was willing to promise anything to avoid exposure to the death penalty. Any person in like circumstances would do the same.

¶22In sum, what the State’s Attorney’s practice intends to do is to deprive the defendant of the right to change his mind. *595Such a practice denies the defendant the right to reject the agreement and to plead not guilty free from the threat that any incriminating statements made during the plea negotiation will be entered against him at trial. The State’s Attorney cannot make admissible what the law says is inadmissible. The majority cites no authority that permits the State’s Attorney to ignore the dictates of Hillard. Accordingly, Coley’s statements should not have been admitted.1

¶23Therefore, I dissent from Part II.