State v. Anderson, 20157

• Decision Date: 07 December 1993
• Docket Number: No. 20157,20157
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Charles Elijah ANDERSON, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 327

866 P.2d 327

116 N.M. 599

STATE of New Mexico, Plaintiff-Appellee, v. Charles Elijah ANDERSON, Defendant-Appellant.

No. 20157.

Supreme Court of New Mexico.

Dec. 7, 1993.

[116 N.M. 600] Sue Anne Herrmann, Santa Fe, for defendant-appellant.

Tom Udall, Atty. Gen., Joel Jacobsen, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

RANSOM, Chief Justice.

Charles Elijah Anderson appeals his convictions for the robbery and murder of Demecio Ulibarri. The major issue to be decided is whether SCRA 1986, 11-410 (rule of evidence regarding inadmissibility of offer to plead and statements made in connection with such offer) ("Rule 410") makes inadmissible Anderson's statement to a Texas law enforcement officer that he would confess to the New Mexico murder in exchange for the dropping of Texas burglary charges. Finding that the statement was not made in reliance on Rule 410, as a result of inducement by the state, nor during formal plea negotiations, we affirm.

Facts. Between October 12 and 18, 1989, Anderson, his girlfriend Melinda Sosa, and Helen Robinson stayed at a Santa Fe motel about two-tenths of a mile from the gas station where the crimes were committed. The Salvation Army paid for the motel room the 12th and 13th, but Anderson paid cash on the 14th and 15th and worked in exchange for the room the 16th and 17th. None of the three had any money on the morning of the 14th. On the afternoon of the 14th, Anderson returned to the motel room visibly upset, with blood on his clothing and body, and told Sosa that he had messed up. Anderson had purchased liquor and cigarettes and gave Sosa some money.

After leaving Santa Fe, Anderson went to Texas, where six months later he and Sosa were arrested and charged with commercial and residential burglary. Shortly before this arrest, Anderson had told Sosa that in October he had "choked a kid to death" in Santa Fe. Sosa told the Texas police about Anderson's confession to her. The Texas officials notified Santa Fe authorities of Sosa's claim.

While in custody on the Texas charges, Anderson agreed to talk to Santa Fe detectives about the murder. After receiving Miranda warnings, Anderson signed a card stating that he waived his Miranda rights. He later made several implicatory statements to the Santa Fe detectives, including a statement that he had been at the murder scene when Ulibarri was killed by a third person whom he knew. After having been told that Sosa had incriminated him, and during a break in questioning about the New Mexico crimes, Anderson said to Texas Officer Olson, who was guarding him, "I'd like to make a deal." Officer Olson replied, "What?" Anderson then stated, "I'll give you a confession if we can work something out." Officer Olson testified that Anderson proposed that he would confess to the Santa Fe murder if the Texas charges were dropped and the agreement was in writing.

Relevant statements are made inadmissible by Rule 410 only when defendant has relied upon the rule or upon inducement by the state in breaking his silence. Though at trial Anderson did not specify Rule 410 in his objection to the admission into evidence of his statements to Officer Olson, the trial court's comments indicate that it was adequately apprised of the application of the rule. See Albertson v. State, 89 N.M. 499, 501, 554 P.2d 661, 663 (1976) (no waiver by failure to raise specific objection when court alerted to the impropriety of questioning). Rule 410 states:¹

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

This Court has interpreted Rule 410 only once, in State v. Trujillo, 93 N.M. 724, 605 P.2d 232 (1980). In that case, in dictum, we stated:

For purposes of clarification, we wish to distinguish between the plea negotiation process and custodial police interrogations. As to the admissibility of statements made during each, Rule 410 applies to the former and established standards of voluntariness and relevancy apply to the latter.

Id., 93 N.M. at 727, 605 P.2d at 235. In Trujillo, the prosecution sought to admit for impeachment purposes a statement related to a failed plea agreement. It was not necessary for this Court to analyze what constitutes the negotiation process, who must be present, or whether formal charges must exist.

The New Mexico rule is based upon the original Federal Rule of Criminal Procedure 11(e)(6). The federal rule was amended in 1979 to clarify that it excluded only statements made in the course of plea discussions with an attorney representing the government. There is federal case law interpreting both the original and amended rules. Both Anderson and the State argue that federal case law should be followed by this Court. Anderson urges adoption of the analysis developed before the amendment of the corresponding federal rule; the State urges adoption of analysis developed after the clarifying amendment.

--Interpretation urged by defendant. Anderson urges this Court to use the federal common-law two-tier analysis to determine whether a defendant's statement is considered a plea negotiation: First, the court determines "whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion," and, second, the court determines whether the accused's expectation that he was actually engaged in plea negotiations "was reasonable given the totality of the objective circumstances." United States v. Robertson, 582 F.2d 1356, 1366 (5th Cir.1978) (en banc); United States v. Pantohan, 602 F.2d 855, 857 (9th Cir.1979). Several states have adopted this analysis since the amendment. See, e.g., People v. Rolih, 233 Ill.App.3d 484, 174 Ill.Dec. 648, 651, 599 N.E.2d 194, 197 (1992), appeal denied, 148 Ill.2d 650, 183 Ill.Dec. 28, 610 N.E.2d 1272 (1993); People v. Oliver, 111 Mich.App. 734, 314 N.W.2d 740, 751 (1981), disapproved on other grounds by People v. Williams, 422 Mich. 381, 373 N.W.2d 567, 572 (1985).

Anderson argues that both tiers of the Robertson test are satisfied, but the State counters that, should this Court decide to follow the two-tier analysis, Anderson did not manifest a subjective expectation that he was engaged in negotiations because his statement was not an offer to plead guilty; and, even if he did manifest a subjective expectation, it could not have been reasonable because no one was present with authority to plea bargain.

--Interpretation urged by the State. The State argues that New Mexico courts should follow the amended federal rule of excluding statements only if they are made after a defendant has been charged, during formal plea negotiations when an attorney for the state or the attorney's agent is present, and when the defendant reasonably understands that he is engaging in the bargaining process. See Fed.R.Crim.P. 11(e)(6)(D) (rule amended in 1979 to clarify that it covered only statements made in course of plea discussions with an attorney for the government ); Fed.R.Crim.P. 11(e)(6) advisory committee's note (stating that 1979 amendment manifests intention to move away from earlier federal decisions suggesting that Rule 11 could be applied to police custody situations; statements made in those situations should be covered by body of law dealing with police interrogations); see also United States v. Penta, 898 F.2d 815, 818 (1st Cir.) (holding that statements are not plea discussions when made by unindicted defendant to U.S. attorney and investigator, when attorney was openly trying to build case against defendant's associates and defendant feared he also would be indicted; holding 'plea discussions' not to include anything outside actual plea discussions), cert. denied, 498 U.S. 896, 111 S.Ct. 246, 112 L.Ed.2d 205 (1990); cf. United States v. Grant, 622 F.2d 308, 313 (8th Cir.1980) (holding that rule excludes statements made to agent for U.S. attorney where the agent informed defendant he was authorized to make offer).

The State also urges that we follow Colorado's lead and hold that the New Mexico rule is equivalent to the federal rule after the federal amendment. The Colorado rule, which (like the rule in New Mexico) is based on the original federal rule, has been interpreted to apply only to discussions involving an attorney for the state. One Colorado court has stated:

The policy which precludes admission of communications made during plea bargaining necessarily restricts plea bargaining to those negotiations involving a prosecuting attorney with authority to bind the government in a courtroom settlement.... [Otherwise], virtually any inculpatory statement by a suspect to police could be viewed as an effort to obtain leniency and, thus, a form of "plea bargaining" inadmissible in the prosecution's case in chief.

People v. Rollins, 759 P.2d 816, 818 (Colo.Ct.App.1988), cert. denied.

The State further argues that Anderson's statement was not a plea, but an offer to confess that is not subject to the protection of the rule. At least one federal court has held that an offer to confess is not a plea negotiation, even if bargained for. See Robertson, 582 F.2d 1356, 1369. In Robertson, the court found that there had been a "confession bargain" but affirmed the conviction because the defendant only offered to make incriminating statements and did not indicate any desire to plead guilty. See also United States v. Sikora, 635 F.2d 1175, 1175-76 (6th Cir.) (holding no violation of Rule 11 when defendant has not tendered plea, proposal for plea, or proposal to negotiate), cert. denied, 449 U.S. 993, 101 S.Ct. 530, 66 L.Ed.2d 290 (1980). The State urges that this Court make a distinction between offering to confess and offering to plead guilty because confessions have their own test of admissibility and...