EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, January 30, 2009

Let's Make A Deal: Supreme Court Of Pennsylvania Correctly Affirms Rule 410 Ruling But On Wrong Grounds

I agree with the conclusion of the Supreme Court of Pennsylvania in Commonwealth v. VanDivner, 2009 WL 153221 (Pa. 2009), but disagree with its reasoning.

In VanDivner, James VanDivner was convicted of the first-degree murder of Michelle Cable, criminal attempt to commit criminal homicide with respect to Billy Cable, and the aggravated assault of Cable family friend Larry Newman.  VanDivner was later given a death sentence (as well as a consecutive sentence of 20 to 40 years for the attempted homicide of Billy Cable and a sentence of 10 to 20 years for the aggravated assault of Larry Newman).  Frankly, I am a bit confused from the VanDivner opinion and articles on the case as to whether VanDivner knew the Cables before the subject crimes, but I do know that VanDivner subsequently appealed, claiming, inter alia,

     (1) that the death penalty was improperly imposed because he was mentally retarded (the Pennsylvania Supremes found that the trial court acted properly in finding that VanDivner was not mentally retarded); and

     (2) that the trial court improperly admitted evidence of his plea discussions in violation of Pennsylvania Rule of Evidence 410.

The alleged plea discussions occurred when VanDivner was being taken into an interview room at the Pennsylvania State Police barracks after the subject crimes, and he blurted out to Trooper James Monkelis, "This is a death penalty case and I don't want the needle, life for a life. Tell the DA I will plead guilty to life. I would have killed myself if I knew Michelle was dead."

Pennsylvania Rule of Evidence 410 states in relevant part that:

     (a)  General rule. Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

          (1)  a plea of guilty which was later withdrawn;

          (2)  a plea of nolo contendere;

          (3)  any statement made in the course of any proceedings under Rules 409, 414, 424, 311, 313, or 590 of the Pennsylvania Rules of Criminal Procedure, Fed. R. Crim. P. 11, or any comparable rule or provision of law of Pennsylvania or any other jurisdiction regarding the pleas identified in subsections (1) and (2) of this rule; or

          (4)  any statement made in the course of plea discussions with an attorney for the prosecuting authority which does not result in a plea of guilty or which results in a plea of guilty later withdrawn."

Therefore, VanDivner was invoking Pennsylvania Rule of Evidence 410(a)(4), and according to the Supreme Court of Pennsylvania, he did so unsuccessfully.  According to the court,

     "Rule 410 of the Pennsylvania Rules of Evidence provides that statements made during plea negotiations are not admissible in evidence against the defendant participating in the plea negotiations. Here, however, there is no suggestion that plea negotiations were ongoing at the time appellant made his statement to police. Rather, he had been apprehended a short time before spontaneously making the challenged statement to police. Appellant takes an absolute position on this, resting upon his suggestion that the statement was a negotiation. But the very word 'negotiation' posits the participation of two parties and not unilateral conduct. Here, there was no such negotiation, and thus, Rule 410 exclusion is not implicated."

As I noted above, I agree with this conclusion, but I disagree with the court's reasoning.  And the reason for my disagreement is that the court did not even need to address the unilateral nature of VanDivner's conduct because it was apparent that he was not talking with "an attorney for the prosecuting authority" or its agent.  As I noted in my article, Caveat Accused,

     "Based on disputes among courts over how to apply Federal Rule of Criminal Procedure 11(e)(6) and Federal Rule of Evidence 410 (and upon which Pennsylvania Rule of Evidence 410 is based)..., the Rules were amended in 1979 to provide clarification.  The first dispute was over whether the Rules operated to make plea negotiations between an accused and law enforcement officials inadmissible or whether they only applied when the discussion was between the accused (or his attorney) and a government attorney.  The Advisory Committee found that 'a literal reading of these two rules could reasonably lead to the conclusion that a broader rule of admissibility obtains....'  The Advisory Committee decided that this broader rule was incorrect because the legislative history behind the Rules indicated that their purpose was to allow candor in plea negotiations between the 'attorney for the government and the attorney for the defendant or the defendant when acting pro se ....'  Because this purpose related solely to communications with a government attorney, the Rules were amended so that plea negotiations with law enforcement officials were not covered by it, but were instead covered by the 'body of law dealing with police interrogations.'"

In other words, even if there were a bilateral exchange, VanDivner's statements still would have been inadmissible because he was not speaking to a prosecutor or his agent.



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