State v. Bennett

NEELY, Justice,

dissenting:

I respectfully dissent to Part II of the majority’s opinion because I doubt that this exact situation was contemplated when Rule 11(e)(6)(D)(ii), W.Va.R.Crim.P. was drafted. After the defendant testified about his participation in the crime during the plea hearing, the court refused to accept the plea; this wrinkle distinguishes the case before us from the usual situation where the defendant withdraws a plea because he doesn’t like the sentence or otherwise has second thoughts. 1

Plea bargaining is a practice many have criticized and few have enthusiastically endorsed. Nonetheless plea bargaining has become an accepted fact of life as guilty pleas account for the disposition of as many as 95% of all criminal cases. ABA Standards Relating to Pleas of Guilty, pp. 1-2 (Approved Draft, 1968). 2 Therefore, the legal battleground has shifted *474 from the propriety of plea bargaining to implementation and oversight of the process. Even before the enactment of Rule 11(e)(6), W. Va.R.Crim.P. 3 courts held that plea-related statements are inadmissible because 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 Santo-bello, 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 encourage such an activity only to use it as a weapon against the defendant when negotiations fail.”

United States v. Herman, 544 F.2d 791 (5th Cir.1977) quoting United States v. Ross, 493 F.2d 771, 775 (5th Cir.1974); See also, United States v. Smith, 525 F.2d 1017 (10th Cir.1975); United States v. Brooks, 536 F.2d 1137 (6th Cir.1976); United States v. Lawson, 683 F.2d 688 (2d Cir.1982).

Rule 11(e)(6) W.Va.R.Crim.P., recognizes the existence and practice of plea bargaining and is a rule of encouragement. When the Federal Rules of Criminal Procedure were drafted, Rule 11 was construed to protect the defendant from unwittingly waiving his constitutional right to a trial. The requirement that there be a record also protected the sentencing judge from later constitutional challenges of the plea bargaining process by the defendant. See, S.Rep. No. 93-1277, 93rd Cong. 2d Sess. 2 (October 18, 1974), see also id at 10-11; reprinted in 1974 U.S.Code Cong. & Ad.News 7051, 7057-58. However, the rule was not designed to be a judicial sword to coerce the defendant into admitting his guilt on the record before the judge accepted the plea. It should not be construed as a tempting rule with built-in deception. It should not be used to seduce confessions or admissions. It is a rule of evidentiary exclusion, and it should exclude, lest it be destructive of the very purpose for which it was conceived.

In the case before us the defendant was led to rely to his detriment on the prosecutor’s willingness to plea bargain and the court’s apparent receptiveness to the proposed agreement. Although I am not sympathetic to the defendant’s inclination to lie under oath at his trial, the defendant has been led to incriminate himself by promises or apparent promises of leniency. 4

*475 The primary difficulty in solving this problem is the overall artificiality of criminal procedure. Blind Justice is usually portrayed standing with an empty balance scale in her hand — a useful metaphor but not a mechanically accurate one. Indeed, Blind Justice’s scale may be in rough balance, but the scale would more realistically be portrayed if it were balanced by offsetting five hundred pound weights. In this regard I am reminded of an elegant passage from Thomas Macaulay’s The History of England:

“The science of Politics bears in one respect a close analogy to the science of Mechanics. The mathematician can easily demonstrate that a certain power, applied by means of a certain lever or of a certain system of pulleys, will suffice to raise a certain weight. But his demonstration proceeds on the supposition that the machinery is such as no load will bend or break. If the engineer, who has to lift a great mass of real granite by the instrumentality of real timber and real hemp, should absolutely rely on the propositions which he finds in treatises on Dynamics, and should make no allowance for the imperfection of his materials, his whole apparatus of beams, wheels, and ropes would soon come down in ruin, and, with all his geometrical skill, he would be found a far inferior builder to those painted barbarians who, though they never heard of the parallelogram of forces, managed to pile up Stonehenge ... It is indeed most important that legislators and administrators should be versed in the philosophy of government, as it is most important that the architect, who has to fix an obelisk on its pedestal, or to hang a tubular bridge over an estuary, should be versed in the philosophy of equilibrium and motion. But, as he who has actually to build must bear in mind many things never noticed by D’Alembert and Euler, so must he who has actually to govern to be perpetually guided by considerations to which no allusion can be found in the writings of Adam Smith or Jeremy Bentham.”

The majority opinion proceeds from the proposition that the criminal justice system has consummate integrity. Thus, the majority assumes, because nobody else in the system will lie under oath, the defendant shouldn’t be allowed to lie under oath either. But it hardly takes a genius to recognize that in the trial of a criminal case many participants other than the defendant may lie or otherwise behave corruptly. The police routinely exaggerate or misrepresent their evidence; other criminals testify falsely against an accused because they are coerced into aiding the prosecution by promises of leniency in their own cases; witnesses overstate the breath of their observations or the accuracy of their identifications; prosecutors corruptly seek unfounded indictments from political ambition; 5 and, finally, through pretrial publicity the media often make a fair trial impossible. This latter problem is exacerbated by live television coverage of criminal trials that encourages lawyers and judges to be showmen and places unreasonable pressure on jurors whose faces suddenly become known to millions of viewers.

The system, then, may end up giving fair results, but not for the reasons commonly discussed either in high school civics classes or law school jurisprudence classes. The system depends on the good sense of jurors and a whole set of countervailing terrors. Providing a balance of terror, in fact, is why American criminal penalties are at least twice as severe as those in other Western industrial countries. Our long sentences offset our procedural rules designed to safeguard civil liberties; long sentences encourage plea bargaining, and the defendant waives all procedural objections except the jurisdiction of the court and the voluntariness of his plea when he pleads guilty. Also, we don’t have the money to provide every run-of-the mine felon with a jury trial!

Viewed in isolation, then, allowing a defendant to commit perjury with impunity appears ludicrous. But when viewed in the *476 context of all the other ludicrous aspects of our criminal justice system, the system’s internal logic nearly demands such a result. If we want to start from scratch to build a more rational overall criminal justice system, I’m for it. But since we are simply going to tinker at the current system to keep it running more or less acceptably, then we must recognize the offsetting balance of terrors — the five hundred pound weights in Justice’s balance scale pans— and make the system operate efficiently according to its own artificial, internal logic.

In light of the recent rulings of this Court that allow a judge to withhold his acceptance of a plea until after reading the presentence report, Myers v. Frazier, 173 W.Va. 658, 319 S.E.2d 782 (1984), I believe a court should not ask a defendant to incriminate himself under oath until the court has definitely concluded that the court will accept the plea according to the bargain. See, State ex rel. Rogers v. Steptoe, 177 W.Va. 6 , 350 S.E.2d 7 (1986); State v. Cabell, 176 W.Va. 272 , 342 S.E.2d 240 (1986). If, then, the defendant seeks to have the plea set aside, I have no qualms about applying the Rhadamathine provisions of Rule 11(e)(6)(D)(ii), W.Va.R.Crim. P. 6

Additionally, I am concerned about a possible extension of today’s holding. In criminal trials a defendant may assert his innocence until convicted, but then explain his participation in the crime to provide material in mitigation and extenuation. This is important at the sentencing stage. What happens then, however, if the case is reversed and remanded for a new trial? Can the defendant’s confession at the sentencing hearing be used against him by threatening a perjury prosecution at retrial? 7 I think not; at least I think that has been the weight of authority in the United States in recent years. 8

. The majority relies on United States v. Gleason, 766 F.2d 1239 (8th Cir.1985) cert. denied, 474 U.S. 1058 , 106 S.Ct. 801 , 88 L.Ed.2d 777 (1986) where the defendant claimed that she had been denied the right to testify because the prosecutor had threatened to seek a perjury indictment if she testified differently from a prior sworn statement made at a plea bargain hearing. However, in Gleason the defendant requested and was allowed to withdraw her plea. In our present case, the court rescinded the plea agreement and the defendant was forced to withdraw his guilty plea. Therefore, I do not find Gleason controlling in the present case.

. In 1971, the Supreme Court encouraged the practice, albeit on grounds of necessity rather than right:

“The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called ‘plea bargaining,’ is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charged were subjected to a full-scale trial, the states and the Federal Government would need to multiply by many times the number of judges and court facilities.”

Santobello v. New York, 404 U.S. 257, 260 , 92 S.Ct. 495, 497-98 , 30 L.Ed.2d 427 (1971).

. The West Virginia Rules of Criminal Procedure were adopted by the Supreme Court of Appeals, effective October 1, 1981 and are largely based on the Federal Rules of Criminal Procedure.

. In Schneckloth v. Bustamonte, 412 U.S. 218, 225 , 93 S.Ct. 2041, 2046-47 , 36 L.Ed.2d 854 (1973), the United States Supreme Court set forth standards for courts to determine the vol-untariness of a confession by a criminal defendant. First, the court must look to see if the confession is "the product of an essentially free and unconstrained choice by its maker.” The confession may not be “extracted by any sort of threats or violence, [or] obtained by any direct or implied promises, however slight, [or] by the exertion of any improper influence.” Hutto v. Ross, 429 U.S. 28, 30 , 97 S.Ct. 202, 203 , 50 L.Ed.2d 194 (1976) (brackets in original), quoting Bram v. United States, 168 U.S. 532, 542-543 , 18 S.Ct. 183, 186-187 , 42 L.Ed.2d 568 (1897). This determination must be reached in light of the "totality of all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation.” 412 U.S. at 226 , 93 S.Ct. at 2047 .

There are certain promises whose attraction renders a resulting confession involuntary if the promises are not kept, and the defendant’s perception of what has been promised is an important factor in determining voluntariness. For example, the Fourth Circuit held in Grades v. Boles, 398 F.2d 409 (4th Cir.1968), that discussions possibly amounting to promises of leniency or a plea bargain must be viewed from the defendant's, and not from the prosecutor’s perspective. 398 F.2d at 412 . The Fourth Circuit also held that the defendant’s reasonable perception that he had been promised that all charged on unrelated offenses would be dropped, a perceived promise that was not fulfilled, was the principal and determinative factor leading to his confession, which was therefore involuntary. 398 F.2d 412 . In Ferguson v. Boyd, 566 F.2d 873 (4th Cir.1977), the court stated that repeated conversations about releasing defendant’s girlfriend if defendant cooperated could reasonably have caused the de *475 fendant to believe that such a promise had been made to him. 566 F.2d at 816 .

. See, Thomas Wolfe, The Bonfire of the Vanities, Farrar, Straus, Giroux (New York: 1987).

. I am aware that plea bargaining involves more than the defendant’s concerns. In every case, the court must determine not only that the plea is knowingly and voluntarily made, and supported by an adequate factual basis, but also that “the agreement is one which punishes the defendant for his act as well as satisfies the public interest that justice be not thwarted.” Banks v. State, supra, in text, 466 A.2d at 76. But there are numerous ways a judge can protect this public interest if, at the time a guilty plea is tendered and a plea agreement submitted, he feels a need for further information or further reflection.

. This appears so much to be the law that there are no cases on point. Our research indicates that no one has ever litigated the issue regarding the use at retrial of a defendant’s confession at the time of sentencing.

. As a general rule, once a judge has unconditionally accepted a guilty plea and bound the defendant to it, the judge cannot refuse to carry through the bargain that induced the plea. United States v. Blackwell, 694 F.2d 1325 (D.C.Cir.1982). For example, in Banks v. State, 56 Md.App. 38 , 466 A.2d 69 (1983), the Court of Special Appeals held that because the judge unconditionally accepted defendant’s guilty plea, defendant was placed in jeopardy when his plea was accepted and thus his subsequent trial, after defendant was forced to withdraw his guilty plea, violated his right not to be put twice in jeopardy.

Furthermore, jeopardy attaches when a guilty plea is accepted by a court and this bars the subsequent prosecution on charges based on the same act. Sweetwine v. State, 288 Md. 199 , 421 A.2d 60 , cert. denied 449 U.S. 1017 , 101 S.Ct. 579 , 66 L.Ed.2d 477 (1980); Riadon v. United States, 274 F.2d 304 (6th Cir.1960); Lombrano v. Superior Court, 124 Ariz. 525 , 606 P.2d 15 (1980).