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Univ. of South Carolina School of Law

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Sunday, April 11, 2010

Pleading Out: Court Of Appeals Of North Carolina Deems Defendant's Statement To Judge During Plea Hearing Admissible

North Carolina Rule of Evidence 410(4) indicates that

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible for or against the defendant who made the plea or was a participant in the plea discussions....Any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

So, let's say that there is a hearing before at trial judge during which the prosecutor offers the defendant a plea bargain. The defendant then addresses the trial judge, admits complicity in the crime, and asks if the judge would impose a lesser sentence than that offered by the prosecutor. The trial judge refuses and allows the defendant to discuss the plea bargain with his counsel over the evening recess. The next day, the defendant rejects the plea bargain. Should the statement of complicity be admissible? According to the recent opinion of the Court of Appeals of North Carolina in State v. Haymond, 2010 WL 1286897 (N.C. App. 2010), the answer is "Yes." I disagree.

In Haymond, Gene Haymond was charged with several crimes, including Felonious Breaking or Entering, Felonious Larceny, Felonious Possession of Stolen Property. Thereafter, the sequence of events listed in the introduction occurred. The only event not mentioned in the introduction was the fact that after Haymond asked to address the trial judge, the judge advised him that any statement made by him could be used against him. At Haymond's ensuing trial, his statement of complicity was indeed used against him, and the ruling admitting this statement formed the partial basis for his appeal.

The Court of Appeals of North Carolina rejected that appeal, finding that North Carolina Rule of Evidence 410(4) implies that

"[p]lea negotiations, in order to be inadmissible, must be made in negotiations with a government attorney or with that attorney's express authority."..."In addition, conversations with government agents do not constitute plea discussions unless the defendant exhibits a subjective belief that he is negotiating a plea, and that belief is reasonable under the circumstances."...Here, defendant's statements at the 7 January 2008 hearing appear to have been made in an attempt to ask for either a continuance or the trial court's mercy in imposing a lesser sentence than that offered by the prosecutor. Defendant was clearly aware that the prosecuting attorney was unwilling to accept defendant's plea in exchange for the sentence which defendant requested, and defendant, therefore, made his request of the court....

In response to this request, the trial court indicated that it was not willing to impose any sentence less than what the prosecuting attorney had already offered. After having time to further consider the State's offer, defendant then decided to go to trial. From this evidence, it does not appear that defendant subjectively thought that he was negotiating a plea with the prosecuting attorney or with the prosecutor's express authority when he made statements at the 7 January 2008 hearing. Instead, the statements were made in the course of defendant's various requests to the trial court. Thus, defendant's argument that these statements were made during the course of plea negotiations, and thus inadmissible, fails.

I disagree. As noted above, at the hearing before the trial judge, the prosecutor offered Haymond a plea bargain. At the same hearing, Haymond addressed the judge regarding his complicity and the plea bargain offered, and the judge told him that he would not change the plea bargain and that Haymond could discuss the plea bargain with his attorney over the evening recess. This being the case, how was Haymond's statement regarding his complicity not made in the course of plea discussions with an attorney for the prosecuting authority? 

The way I see it, the hearing was the plea discussion, and Haymond's statement was clearly made during the course of that hearing. Sure, Haymond addressed the judge, but the statement was part of the plea hearing and dealt with the plea bargain offered by the prosecutor. The court construed these as "requests to the trial court," but they were requests made during the same hearing at which the plea bargain was offered. And if these requests were not part of the plea discussion, why did the judge respond by telling Haymond that he could consider the plea bargain overnight? If Haymond were talking to the judge outside the presence of the prosecutor, I could see the court's point. But that was not the case in Haymond. (I do not that the judge told Haymond that any statements that he made could be used against him, but that statement was meaningless if Haymond's statements were made in the course of plea discussions).

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/04/410--state-v-haymond----se2d------2010-wl-1286897ncapp2010.html

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