Gonzalez v. State Of Ind.

• Citation: 929 N.E.2d 699
• Decision Date: 19 May 2010
• Docket Number: No. 82S01-0909-CR-408.,82S01-0909-CR-408.
• Parties: Gabino GONZALEZ, Appellant (Defendant below),v.STATE of Indiana, Appellee (Plaintiff below).
• Court: Supreme Court of Indiana

929 N.E.2d 699

Gabino GONZALEZ, Appellant (Defendant below),v.STATE of Indiana, Appellee (Plaintiff below).

No. 82S01-0909-CR-408.

Supreme Court of Indiana.

May 19, 2010.

Matthew Jon McGovern, Evansville, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Matthew Whitmire, Deputy Attorney General, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition to Transfer from the Indiana Court of Appeals, No. 82A01-0809-CR-406

BOEHM, Justice.

We hold that a defendant's statements made to a victim or to the court in an effort to gain acceptance of a plea agreement by the court are statements in connection with a plea agreement and therefore are not admissible in evidence pursuant to Evidence Rule 410. In this case the defendant's letter of apology to a victim was admitted at his trial after a plea agreement was rejected. This was error but under the facts of this case the error was harmless.

Facts and Procedural History

A truck driven by Gabino Gonzalez failed to yield at an intersection and struck a school bus operated by Evansville-Vanderburgh School Corporation (“EVSC”). The bus was declared a total loss and its driver and thirteen children sustained cuts and bruises resulting in hospital bills totaling approximately $9,000. Gonzalez was charged with criminal mischief, operating a vehicle while intoxicated, operating a vehicle with a blood alcohol content of 0.15 or more, and operating a vehicle while intoxicated endangering a person.

Gonzalez agreed to plead guilty to criminal mischief and operating a vehicle while intoxicated endangering a person. The trial court took the plea agreement under advisement and postponed the sentencing hearing to permit EVSC to consider whether to object to the agreement. Two weeks before the hearing, Gonzalez sent a letter to EVSC expressing his regret to all who were “involved in the terrible accident I caused,” apologizing for his “irresponsible actions” and “poor decision to drink that day,” and asking EVSC to show compassion to him and his family. He promised to seek alcohol counseling and asked EVSC to consider that “no one was hurt in the accident.”

The court rejected the plea and the case went to trial where Gonzalez's letter was admitted over his objection. After the court dismissed the charge of operating a vehicle with a blood alcohol content of 0.15 or more, the jury found Gonzalez guilty of the remaining charges.

The Court of Appeals reversed, finding that Gonzalez's letter was inadmissible because it was written as a part of a plea negotiation and that the error “likely had a significant effect on the jury.” Gonzalez v. State, 908 N.E.2d 313, 315, 319 (Ind.Ct.App.2009). We granted transfer.

I. Statements in Connection with a Plea Agreement

Gonzalez argues that his letter was inadmissible because he authored it and addressed it to EVSC in the course of the plea negotiation in an effort to convince EVSC not to object to the plea agreement. The State counters that the letter was not a part of the plea negotiation because it was written after the agreement between Gonzalez and the State had been signed. The State also argues that the letter was admissible because it was addressed to EVSC, the victim, and not to an entity with authority to enter into a binding plea agreement.

The common law, an Indiana statute, and Evidence Rule 410 all recognize that statements incident to plea bargaining may be inadmissible at trial. Gilliam v. State, 650 N.E.2d 45, 49 (Ind.Ct.App.1995). This rule is designed to encourage open discussion in the plea bargaining process. Stephens v. State, 588 N.E.2d 564, 565-66 (Ind.Ct.App.1992) trans. denied. This exclusion is rooted in the same policy considerations that underlie excluding offers of civil compromise in civil cases. 2 McCormick on Evidence § 266, at 237 (Kenneth S. Broun et al. eds., 6th ed. 2006); see Bules v. Marshall County, 920 N.E.2d 247, 252 (Ind.2010) ( [This rule] is designed to facilitate settlement by promoting candor in settlement discussions....).

We last addressed the scope of the privilege for plea negotiations in Martin v. State, 537 N.E.2d 491 (Ind.1989). Martin held that a suspect's inquiry of a probation officer regarding the prospects of a plea agreement was not within the privilege. Martin was decided under Indiana Code § 35-35-3-4, which provides:

A plea agreement, or a verbal or written communication concerning the plea agreement, may not be admitted into evidence at the trial of the case, should the plea agreement not culminate in approval by the court.

Martin dealt with statements by the defendant before any plea negotiations had begun and held the statements were therefore not within the privilege. We reasoned that the plea bargaining process does not start until the parties have agreed to negotiate. Martin, 537 N.E.2d at 493 (citing Chase v. State, 528 N.E.2d 784, 786 (Ind.1988)). We also held that in order to qualify as a privileged communication, a statement must meet two requirements: “first, the defendant must have been charged with a crime at the time of the statement, and, second, the statement must have been made to someone with authority to enter into a binding plea bargain.” Id. The State contends that this second requirement rendered the privilege unavailable for Gonzalez's letter to EVSC. As explained below, we do not agree.

In 1994, Indiana adopted the current Evidence Rules, including Evidence Rule 410, which reads:

Evidence of a plea of guilty or admission of the charge which was later withdrawn, or a plea of nolo contendere, or of an offer so to plead to the crime charged or any other crime, or of statements made in connection with any of the foregoing withdrawn pleas or offers, is not admissible in any civil or criminal action, case or proceeding against the person who made the plea or offer.

The rule arguably broadens somewhat the range of privileged communication, expanding from the statutory privilege for statements “concerning” a plea agreement to those “in connection with” an agreement.

As Martin held, the privilege attaches only after a plea negotiation has begun. In this case that is no issue because a plea agreement had been reached and was under consideration by the court. Only the prosecutor has the authority to enter into a plea agreement, and certainly a defendant's statements in the course of negotiation with the prosecutor are within the privilege afforded by the plea negotiation. The purposes of the rule require also excluding statements to some persons in addition to those with authority to enter into a binding agreement. Under Indiana law, after a defendant and the State enter into a plea agreement, the trial court is required to order a presentence report. I.C. § 35-35-3-3(a). The probation officer preparing this report is to gather information regarding “the circumstances attending the commission of the offense.” I.C. §§ 35-38-1-8(a), -9(b)(1). The plea agreement must also be shown to the victim, who has a right to comment on the crime and the proposed sentence. I.C. § 35-35-3-5. The agreement is not final until it is approved by the trial court. I.C. § 35-35-3-3. In the course of this process, the defendant may make statements to the victim, the trial judge, or other court officers. These statements are within the language of both the statute (“concerning” a plea agreement) and Evidence Rule 410 (“in connection with” a plea agreement). Moreover, the purposes of the rule-to encourage candor and facilitate a plea agreement-are best furthered by excluding any concessions from evidence if the plea is not finalized. Accordingly, we hold that for a statement to be a privileged communication, the defendant must have been charged with a crime at the time of the statement and the prosecutor and the defendant must have initiated discussions related to a plea agreement. Second, the statement...