Gillum v. State
| Decision Date | 17 April 1984 |
| Docket Number | No. F-81-683,F-81-683 |
| Citation | 681 P.2d 87 |
| Parties | Johnny Glen GILLUM, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Johnny Glen Gillum was convicted of three counts of Murder in the First Degree, and was sentenced to life in prison. A co-defendant, Olan Randall Robison, received death sentences for the same crimes, which were affirmed by this Court on direct appeal. Robison v. State, 677 P.2d 1080 (Okl.Cr.1984).
This cause must be reversed and remanded due to the use at trial of evidence in violation of 12 O.S. 1981, § 2410.
This conviction arose out of a triple homicide at a residence in Velma, Oklahoma, on the evening of June 12, 1980. Appellant was arrested in connection with the investigation near Clarkston, Washington, on August 19, 1980. He was interviewed in Clarkston by Oklahoma investigators on August 21, 1980. He waived extradition, and was interviewed a second time on September 8, 1980, after his return to this State.
At trial, the State used in its case-in-chief statements by the appellant at the August 21 interview. These statements reflected appellant's admission that he had accompanied two other men to the scene of the crime. However, he maintained that he had no advance knowledge of the men's purpose, and that he took no part in the crimes. He claimed that he had been threatened by his companions, and insisted that he was innocent.
In the defense case-in-chief, the appellant testified along these same lines. He specifically testified that he was unarmed at all relevant times, and that he had no prior awareness that a robbery was planned.
On cross-examination, appellant denied making prior inconsistent statements to investigators. In rebuttal, the State introduced evidence of statements given by the appellant at the September 8 interview. These statements included: that prior to departing with the other two men for the journey to the Velma location, appellant heard co-defendant Robison say on two occasions that they were going to get some money; that en route to the scene of the crimes, Robison gave appellant a .25 caliber automatic; and that during the trip appellant inquired of Robison how much money they were going to get on the job, and that Robison replied, "five or six thousand dollars."
Title 12 O.S. 1981, § 2410 provides:
Except as otherwise provided in this paragraph, evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime, or of statements made in connection with, and relevant to, any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea offer. However, evidence of a statement made in connection with, and relevant to, a plea of guilty, later withdrawn, a plea of nolo contendere, or an offer to plead guilty or nolo contendere to the crime charged or any other crime, is admissible in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.
The question in this case is whether the statements at the September 8 interview were "made in connection with, and relevant to" an offer to plead guilty. In order to decide this question, we
must apply a two-tiered analysis and determine, first, whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion, and, second, whether the accused's expectation was reasonable given the totality of the objective circumstances.
United States v. Robertson, 582 F.2d 1356, 1366 (5th Cir.1978) () (citations omitted). See also United States v. Pantohan, 602 F.2d 855 (9th Cir.1979); Blackwell v. State, 663 P.2d 12 (Okl.Cr.1983) (); and Annot., 60 A.L.R.Fed. 854 (1982).
According to appellant's original court-appointed counsel, who was called by the State on rebuttal, a plea bargain had been negotiated under which defendant would be allowed to plead guilty to one count of Murder in the First Degree, and the State would dismiss the other two murder counts and assist in securing permission for the appellant to serve his sentence in a federal penitentiary. However, the agreement was predicated upon the appellant telling the truth concerning the crimes.
Three investigators were present at the interview to evaluate the information disclosed by the appellant in the light of the facts already known to the State and to formulate a recommendation to the District Attorney concerning the validity of the information given by appellant. On the date of the interview, appellant's counsel admonished him to tell the truth to the investigators.
It is manifest that the statements were given at the September 8 interview in the reasonable subjective belief that they were part of the plea bargain.
We must conclude that the statements were inadmissible under 12 O.S. 1981, § 2410.
That the statements were used for the purpose of impeachment does not require a different result. No exception for impeachment is set out in the rule, and we cannot conclude that we should add one of our own making. State v. Jackson, 325 N.W.2d 819 (Minn.1982) (). The purpose of Section 2410 and similar provisions is to encourage plea bargaining. To permit the use of plea discussions to impeach could have a chilling effect on plea negotiations, and raise constitutional questions concerning the voluntariness of statements made in the expectation of a plea agreement. State v. Vargas, 127 Ariz. 59, 618 P.2d 229, 231 (1980) (...
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