State v. Draper
| Decision Date | 14 June 1988 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 762 P.2d 602,158 Ariz. 315 |
| Parties | STATE of Arizona, Respondent, v. Martin Hale DRAPER, Petitioner. 11423-PR. |
| Court | Arizona Court of Appeals |
The defendant pled guilty to attempted child molestation. We set aside the plea because we hold that the right to due process of law, the right to effective assistance of counsel, and public policy generally, forbid the prosecution from requiring, as a condition of a plea agreement, that a defendant forego his right to interview witnesses before deciding whether to accept a plea agreement. We also hold that it was improper for the prosecutor and defense counsel to withhold knowledge of this condition of the plea agreement from the court at the time the plea was entered.
The issue arose in the following manner. A nine-year-old girl was recuperating from surgery at St. Joseph's Hospital in Phoenix. Her mother testified at the preliminary hearing that she was sleeping in her daughter's hospital room and was awakened during the early morning hours when she heard her daughter say "ouch." She saw the defendant get off her daughter's bed. When she confronted him he tried to leave the room so she restrained him. The daughter told her mother that the defendant had awakened her, felt her chest, squeezed her thigh and put his hand into her pants and touched her vaginal area. The police were called, and the defendant was arrested.
The defendant said that he had gone to St. Joseph's because he thought he was going to experience alcohol withdrawal seizures, which he had experienced before. He was told to go to the Indian Hospital, but fell asleep in the waiting room. According to him, he did experience a seizure and remembered nothing until he was confronted by the hospital security guards. He assumed that he wandered into the girl's room looking for a place to lie down without knowing what he was doing.
The defendant was originally charged with child molesting, a Class 2 dangerous crime against children. The maximum penalty for this is 22 years' imprisonment, all of which must be served. Probation is not available. He entered into an agreement to plead guilty to attempted child molesting, a Class 3 felony, a dangerous crime against children in the second degree. Probation is available for this offense, and the maximum penalty is 15 years' imprisonment. The defendant was actually sentenced to 15 years.
When the defendant originally tried to plead guilty pursuant to a plea agreement, his attorney told the judge that he had been told by the prosecutor that if he attempted to interview witnesses the offer would be withdrawn. The prosecutor denied this, and when defense counsel further attempted to put this unwritten condition of the plea agreement on the record, the prosecutor threatened to withdraw from the plea. After further discussion, the trial judge continued the matter.
A week later, the defendant entered a guilty plea before a different trial judge. Among the rights explained to the defendant that he was giving up were his rights to confront and cross-examine witnesses and to compel the attendance of witnesses at trial. At this hearing, the judge did not ask the defendant if there were any other promises or conditions to the plea agreement, and no mention was made of any unwritten agreement that the plea would be withdrawn if the defendant or his counsel interviewed any witnesses.
In his petition for post-conviction relief, the defendant alleged that the state offered him a plea bargain on the condition that the defense not interview the victim in this matter and that this violated his right to confront the witnesses against him as guaranteed by the Sixth Amendment to the Constitution of the United States. He also alleged that the deputy county attorney insisted that no written record be made of this term of the plea agreement. These allegations were supported by an affidavit from the attorney who had represented the defendant at trial, and they were not refuted by the state. The trial judge dismissed the petition.
In his motion for rehearing, the defendant noted that the trial court had not honored his request to appoint an expert to interview the victim. In denying the motion for rehearing, the trial judge astutely noted that the real issue to be decided was whether the defendant's plea was invalid, thus keeping the issue alive for review. The trial judge found no basis for relief and denied the motion for rehearing.
While the state and a defendant may generally negotiate on any aspect of a case, the court must review every plea agreement to ensure that it serves the ends of justice. State v. Solano, 150 Ariz. 398, 724 P.2d 17 (1986). Some conditions and inducements are impermissible as a matter of public policy or constitutional law. See State v. Ethington, 121 Ariz. 572, 592 P.2d 768 (1979) (); State v. Horning, No. 1 CA-CR 10839 (filed March 17, 1988) (conjugal visits are not a proper inducement for a guilty plea); United States v. DeMarco, 401 F.Supp. 505 (C.D.Calif.1975) aff'd 550 F.2d 1224 (9th Cir.1977) (); People v. White, 32 N.Y.2d 393, 345 N.Y.S.2d 513, 298 N.E.2d 659 (1973) ().
Neither the defendant nor the state has cited any authority that discusses the condition the state imposed in this case, and we have not found a case that directly discusses this issue. Our decision is based on our belief that to forbid a defendant the right to attempt to interview witnesses undermines the adversary system and threatens the foundation of our system of justice. Such a condition violates the right to due process of law as guaranteed by the Fifth Amendment to the Constitution of the United States and article 2 § 4 of the Arizona Constitution, and the right to the effective assistance of counsel as guaranteed by the Sixth Amendment to the Constitution of the United States and article 2 § 24 of the Arizona Constitution. Even if the condition were not violative of these constitutional rights, it nonetheless is against public policy because it corrupts the truth finding process.
It is a constitutional requirement that any plea of guilty must be entered with sufficient awareness of the circumstances relevant to the case so that it can be said to be a voluntary and intelligent act. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970). To enter an intelligent plea the defendant must assess "the numerous factors which bear upon his choice of whether to formally admit his guilt or to put the state to its proof." United States ex rel. Healey v. Cannon, 553 F.2d 1052, 1056 (7th Cir.1977) cert. denied Mitchell v. Healey, 434 U.S. 874, 98 S.Ct. 221, 54 L.Ed.2d 153 (1977). This requirement stems from the constitutional right to due process of law. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); Smith v. O'Grady, 312 U.S. 329, 61 S.Ct. 572, 85 L.Ed. 859 (1941). See also State v. Cordova, 105 Ariz. 597, 469 P.2d 82 (1970); Ex Parte Lewis, 587 S.W.2d 697 (Tex.App.1979) (). While the requirement that a guilty plea be voluntary and intelligent does not set up a particularly stringent test, it does require that the defendant possess an understanding of the law in relation to the facts. McCarthy, 394 U.S. at 466, 89 S.Ct. at 1171, 22 L.Ed.2d at 425.
The defendant's ability to assess the facts of the case bear on the intelligence of the plea. The state's duty to disclose exculpatory information to the defendant at some point in time has long been recognized. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). It has been held that the government must provide exculpatory evidence to the defendant before he pleads guilty. Fambo v. Smith, 433 F.Supp. 590 (W.D.N.Y.1977). See also Ostrow, The Case for Preplea Disclosure, 90 Yale L.J. 1581 (1981); Brady v. Maryland and the Prosecutor's Duty to Disclose, 40 Univ. of Chicago L.R. 112 (1972/1973). While presumably we do not deal with undisclosed exculpatory evidence here, there is a strong similarity between the prosecution's failure to disclose exculpatory evidence and the prosecution's foreclosure of the defendant's right to attempt to discover exculpatory evidence himself.
Outside the context of what conditions may be imposed by plea agreement, the cases solidly support the proposition that a defendant has a right to attempt to interview witnesses. While a witness does not have to talk to defense counsel, it is improper for the state to interfere with the right of the defense to attempt to talk to witnesses. In State v. Moncayo, 115 Ariz. 274, 564 P.2d 1241 (1977), our supreme court observed:
A defendant and his counsel certainly have a right to talk with any witness having knowledge of matters which may be beneficial or detrimental to the defense.
Id. at 277, 564 P.2d at 1244. In United States v. Castillo, 615 F.2d 878 (9th Cir.1980), a case dealing with the deportation of witnesses before the defendant had an opportunity to interview them, the court, in explaining the earlier case of United States v. Mendez-Rodriquez, 450 F.2d 1 (9th Cir.1971), said:
The gist of a Mendez-Rodriquez violation lies in the interferance with the opportunity to formulate a...
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State v. Draper
...that a defendant forego his right to interview witnesses before deciding whether to accept a plea agreement." State v. Draper, 158 Ariz. 315, 316, 762 P.2d 602, 603 (App.1988). Second, the court of appeals held that both counsel improperly withheld knowledge of this condition from the court......