Moulder v. State

• Decision Date: 30 November 1972
• Docket Number: No. 472A180,472A180
• Parties: , 59 A.L.R.3d 432 Charles M. MOULDER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 522

289 N.E.2d 522

154 Ind.App. 248, 59 A.L.R.3d 432

Charles M. MOULDER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 472A180.

Court of Appeals of Indiana, Third District.

Nov. 30, 1972.

Harold Abrahamson, Crumpacker, Abrahamson & Reed, Hammond, for appellant.

Theodore L. Sendak, Atty. Gen., John McArdle, Deputy Atty. Gen., for appellee.

STATON, Judge.

STATEMENT ON THE APPEAL. Charles M. Moulder was tried before a jury upon an indictment charging him with second degree murder. The jury found him guilty of involuntary manslaughter. He was sentenced to the Indiana State Prison for a term of not less than one nor more than ten years. ¹

The day before Charles M. Moulder's jury trial, June 15, 1971, he mentioned to the sheriff that the prosecutor had refused to take a plea of manslaughter. The next day during his jury trial, the sheriff testified to Moulder's statement regarding the prosecutor's refusal to accept Moulder's guilty plea to manslaughter. This testimony was received over the objection of Charles M. Moulder's attorney. Whether the trial court committed reversible error by receiving in evidence the sheriff's testimony concerning the plea bargaining communication is the only question which will be discussed in this opinion. ² In our opinion, we hold that the trial court committed reversible error when it admitted the sheriff's testimony regarding a communication involved in the plea bargaining process.

STATEMENT OF THE FACTS: Charles M. Moulder and his wife had been drinking most of the day on February 27, 1971. Their fifteen year old son returned home from the skating rink with some friends around 10:30 o'clock P.M. His parents were engaged in an argument. Charles M. Moulder went into the bedroom of his son and told him that he intended to kill his mother and himself. Later in the night, Charles M. Moulder's brother was awakened by gunshots. He found Charles M. Moulder on the floor next to a pistol and his wife in a chair. Both had been shot. Charles M. Moulder's wife was dead.

Charles M. Moulder was indicted and charged with second degree murder. During the jury trial the prosecutor asked these questions of the sheriff who answered them over the objection of Charles M. Moulder's defense counsel:

'Q. During your investigation, as a matter of fact, as early as yesterday, you had a conversation with the defendant here, didn't you?

'A. Yes.

'Q. What did he tell you?

'MR. BOWER: Well I will object, I will object to that, your Honor. Now, this is, this is quite obvious, after the time, there is no showing of waiver here, and what type of trickery that, after the trial is in process, that the Prosecution is up to in trying to obtain additional evidence from the defendant--

'THE COURT: There is no, there is no reason to accuse the Prosecution of trickery, at all. Make an objection, and the Court will rule on it.

'MR. BOWER: I think I have, your Honor.

'THE COURT: Well, state it. The Court hasn't heard any yet.

'MR. BOWER: Well, your Honor, I would object to this on the basis that it's been taken from the defendant. Counsel has been employed in this case for three months. He was not notified of any attempted interrogation of the defendant. And if not, the defendant was not warned of his rights and was not known that this particular comment could possibly be used against him, and there is additional, no--I don't know of its relevancy right now. I have never, it's never been produced to me prior to this trial, your Honor, and the Prosecution has been under an order to do so. Any statements of the defendant that are going to be used.

'MR. VANN: Talking about a statement he made yesterday, after he had been defended and advised of his rights.

'THE COURT: He's been fully advised of his constitutional rights. You may answer. The Court did it himself.

'Q. What did he tell you yesterday?

'MR. BOWER: I will object for the same reasons, your Honor.

'THE COURT: I heard the objection and overruled it.

'Q. Did you have a conversation with him? What did he tell you? Mr.--the defendant.

'A. I have a conversation with him all the time.

'MR. BOWER: Well--

'A. That--

'MR. BOWER: Your Honor, this is highly--I object again.

'THE COURT: You, now you only object once, and the Court's only going to rule once, and the Court has ruled, you may answer.

'A. He stated to me that, 'You would not take--on, going on to the jail, right? He stated to me that, 'You wouldn't take a plea of manslaughter?'

'Q. Did he indicate he was--what did he tell you?

'MR. BOWER: Well, your Honor, this I will object and move for a mistrial on it. This is highly prejudicial to the defendant. This is a violation of--

'THE COURT: Now, we are not arguing to the jury. The motion is overruled.

'A. What's that question again?

'Q. What did he say? Just tell you, what you said.

'A. He said, that, 'He would not'--'You would not take a plea of manslaughter?'

'Q. Did he indicate that he wanted to?

'MR. BOWER: Objection, the question is leading, calls for the conclusion of the witness and the frame of mind of the defendant.

'THE COURT: The--if there are statements made they are always admissible, of this nature.

'A. I don't believe he indicated he would or wouldn't at that time.

'Q. That's what he told you yesterday.

'A. Yes.'

STATEMENT OF THE ISSUE: The only issue to be discussed in this opinion is whether it is reversible error to receive in evidence any testimony regarding the plea bargaining process where the defendant has not subsequently pleaded guilty.

Charles M. Moulder's defense counsel has chosen to express the contention of error as follows in his motion to correct errors:

'(5) Uncorrected error of law occurring and properly raised in the proceedings during the trial in denying defendant's motion for a mistrial after the prosecutor had elicited testimony concerning a conversation between Sheriff Mullen and the defendant (as set forth in paragraph 4 hereinabove) concerning whether or not defendant would enter a guilty plea to involuntary manslaughter and whether or not the prosecutor would accept such a plea. The Court made no effort to correct the error but summarily overruled the motion with the comment 'Now we are not arguing to the jury.' Notwithstanding the subsequent testimony of defendant that he did not want to enter such a plea, the defendant's rights were violated and he was denied a fair trial when the prosecutor, through these means, planted in the minds of the jury the idea that defendant's counsel had advised him to plead guilty to involuntary manslaughter.'

STATEMENT ON THE LAW: The privileged status of communications relating to attempted compromise of civil litigation and the attempted compromise known as plea bargaining for a reduction of punishment in criminal prosecutions by the State has its roots in well-established public policy. ³ The growth of the public policy in each field of law, criminal and civil, has been different. In the civil field, the public policy growth has been unswerving, consistent and unequivocal. The rule of law in civil cases is that communications and acts of a party in an attempt to compromise the claims of another party in order to settle the lawsuit are not admissible in evidence. Such communications are privileged. ⁴ In contrast, the criminal field has experienced a schizoid public policy growth. ⁵ Communications by a criminal defendant to compromise the punishment demanded by the State for certain alleged criminal offenses and includable offenses have been treated as confessions, ⁶ admissions against interest, ⁷ evidence showing consciousness of guilt ⁸ or privileged. ⁹ New mounting case loads and old disposed of cases revisiting the judicial process by way of post-conviction petitions have inundated our criminal courts. This has had a residual effect. It has solidified plea bargaining public policy. Plea bargaining is now an accepted and honorable practice. The majority of our courts now follow the rule that communications relating to plea bargaining in criminal prosecutions are privileged and are not admissible in evidence. ¹⁰

The present case is one of first impression in Indiana. Our courts have never determined the status of such a communication as presented here.

The plea bargaining process is an essential component of the administration of criminal justice. Approximately 80% of all criminal charges are disposed of by resorting to the plea bargaining process. ¹¹ Without it, even a proliferation of additional courts and judges could not adequately fill the vacuum. Chief Justice Burger of the Supreme Court of the United States expressed the need and desirability of the plea bargaining process in Santobello v. New York (1971), 404 U.S. 257, 92 S.Ct. 495, 498, 30 L.Ed.2d 427:

'. . . The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called 'plea bargaining,' is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and and the Federal Government would need to multiply by many times the number of judges and court facilities.

'Disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons. It leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned. See Brady v. United States, 397 U.S. 742, 751--752, 90 S.Ct. 1463, 1470--1471, 25 L.Ed.2d 747 (1970).'

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