State v. Boone

• Decision Date: 07 November 1974
• Citation: 66 N.J. 38,327 A.2d 661
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. John BOONE, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 38

66 N.J. 38

327 A.2d 661

STATE of New Jersey, Plaintiff-Appellant, v. John BOONE, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Sept. 9, 1974.

Decided Nov. 7, 1974.

Michael A. Graham, Deputy Atty. Gen., for plaintiff-appellant (William F. Hyland, Atty. Gen., attorney; Michael A. Graham, of counsel and on the brief).

John H. Ratliff, Asst. Deputy Public Defender, for defendant-respondent (Stanley C. Van Ness, Public Defender, attorney; John H. Ratliff, of counsel and on the brief).

The opinion of the Court was delivered by

PASHMAN, J.

Defendant appealed his conviction to the Appellate Division, challenging there the propriety of the trial court's failure to grant a mistrial after the jury learned of the defendant's prior guilty plea, later withdrawn by leave of court. The Appellate Division reversed. State v. Boone, 125 N.J.Super. 112, 309 A.2d 1 (App.Div.1973). We granted the State's petition for certification, 64 N.J. 310 (1973) ¹ and we now affirm.

Following purchase of morphine from defendant and one Watson Dixon by a confidential informant, detectives of the Narcotics Division of the Paterson Police Force arrested defendant Boone and Dixon in the latter's parked automobile. A search of the car revealed 51 glassine envelopes of morphine which were concealed in the armrest.

The Passaic County Grand Jury indicted Boone and Dixon for possession of a controlled dangerous substance in violation of N.J.S.A. 24:21--20. Boone initially pleaded not guilty on April 29, 1971 but on June 9, 1971 he entered a guilty plea to the indictment before the Honorable Vincent C. Duffy, J.C.C. On July 14, 1971, however, Judge Duffy permitted Boone to withdraw his guilty plea and enter a substituted plea of not guilty. ² Watson Dixon also entered a plea of guilty and was permitted to withdraw it. But Dixon elected to re-enter his guilty plea a few days before trial.

Boone was tried in September 1971 and was convicted by a jury on the charge of possession of morphine. He was sentenced to a term of three to five years in the State prison.

At his trial, Boone sought to prove that he was not in possession of the narcotics, and was in Dixon's automobile only briefly when the detectives made their arrest. To corroborate this version, Boone called Dixon as a defense witness. It was the State's position that the alternating entry and withdrawal of guilty pleas by both Boone and Dixon were merely a tactic to see who would 'take the weight' for the crime. ³ In an attempt to impeach Dixon's testimony that he alone had possession of the narcotics, the State questioned him concerning the substituted pleas:

Q. You pleaded guilty to this charge once before, didn't you?

A. Yes.

Q. In September?

A. Yes.

Q. Then you changed your mind and decided not to plead guilty, isn't that right?

A. Right.

Q. Then you pleaded guilty again, a couple of days ago?

A. Yes.

Q. Now in September--withdraw that. When you pleaded guilty the first time, Mr. Boone also pleaded guilty, didn't he?

MR. OSOFSKY: I object, that is totally irrelevant.

THE COURT: I will sustain the objection.

MR. OSOFSKY: It is so prejudicial to this case.

MR. DONATO: Of course it's prejudicial.

MR. OSOFSKY: No, no.

MR. DONATO: The whole case is prejudicial.

THE COURT: The jury will disregard that.

After the completion of the State's cross-examination and a short re-direct by the defense, Boone's attorney moved for a mistrial on the basis of the disclosure of the defendant's guilty plea, which, in his judgment, created 'an attitude in the minds of the jury that cannot be overcome.' The court reserved decision on the motion. After the verdict, Boone's counsel renewed his motion for mistrial which the court then denied.

On appeal, the defendant contended, Inter alia, that the trial court erroneously denied his motion for a mistrial and that error was of constitutional proportion. The Appellate Division recognized that it could be argued that a plea is in the nature of an admission, or if withdrawn, a prior inconsistent statement, but nonetheless reversed and remanded the case for a new trial. Following the reasoning first set forth almost 50 years ago by the United States Supreme Court in Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927), the court held that withdrawn guilty pleas are not admissible in evidence. State v. Boone, Supra, 125 N.J.Super. at 114, 309 A.2d 1.

Although the State initially conceded before the Appellate Division that New Jersey 'follows the rule that a withdrawn plea of guilty is not admissible in evidence,' ⁴ the State now contends that the prosecution should be allowed to introduce evidence of a withdrawn guilty plea. The State argues that the plea should be admissible both in its case in chief, on the theory that the plea amounts to a declaration against the declarant's penal interest, Evid.R. 63(10), ⁵ and to impeach a defendant who takes the stand at his trial on the theory that the withdrawn plea is inconsistent with his present claim of innocence.

At the outset it should be observed that while rules of court preclude the use in subsequent criminal prosecutions of guilty pleas not accepted and offers to plead to lesser offenses, there is no rule which governs the inadmissibility of pleas which are accepted and later withdrawn with court approval. ⁶ Nor does it appear that this Court has considered the problem in the context of criminal prosecutions other than for murder. ⁷ The issue is novel in our State. However, it has been considered by the courts of other jurisdictions with varying results. See generally Annotation, 'Propriety and Prejudicial Effect of Showing, in Criminal Case, Withdrawn Guilty Plea,' 86 A.L.R.2d 326 (1962).

The leading case in this area is Kercheval v. United States, Supra, upon which the Appellate Division relied. Kercheval was a federal mail fraud prosecution in which the defendant received a three year sentence after pleading guilty. Following sentencing the defendant petitioned the court for permission to withdraw his plea on the ground that he had been promised a lighter sentence by the prosecution. The court permitted the withdrawal, but in the subsequent trial, the prosecution was allowed to introduce the guilty plea in its case in chief. The court instructed the jury to consider the plea as evidence of guilt only if it found that it was not induced by promises of leniency. The jury found the defendant guilty and the Court of Appeals affirmed. Kercheval v. United States, 12 F.2d 904 (8 Cir. 1926).

The Supreme Court, however, reversed, stablishing a broad exclusionary rule against the use of withdrawn pleas in the federal courts. In reaching its decision the Court emphasized the incompatibility between use of the plea as evidence and the privilege of withdrawal.

The effect of the court's order permitting the withdrawal was to adjudge that the plea of guilty be held for naught. Its subsequent use as evidence against petitioner was in direct conflict with that determination. When the plea was annulled it ceased to be evidence. By permitting it to be given weight the court reinstated it pro tanto. * * * As a practical matter, it could not be received as evidence without putting petitioner in a dilemma utterly inconsistent with the determination of the court awarding him a trial. Its introduction may have turned the scale against him. 'The withdrawal of a plea of guilty is a poor privilege, if, notwithstanding its withdrawal, it may be used in evidence under the plea of not guilty.' 274 U.S. at 224, 47 S.Ct. at 583, 71 L.Ed. at 1012 (citations omitted).

The Court concluded that the 'weight of reason' precludes introduction of the withdrawn guilty plea at the subsequent trial. 274 U.S. at 225, 47 S.Ct. at 584, 71 L.Ed. at 1013.

In general, the state courts which have considered the problem in the wake of Kercheval have excluded any reference to the withdrawn guilty plea, in some instances overruling earlier cases which permitted admission. See, e.g., State v Wright, 103 Ariz. 52, 436 P.2d 601 (1968) overruling Rascon v. State, 47 Ariz. 501, 57 P.2d 304 (1936); People v. Quinn, 61 Cal.2d 551, 39 Cal.Rptr. 393, 393 P.2d 705 (1964); People v. Haycraft, 76 Ill.App.2d 149, 221 N.E.2d 317 (App.Ct.1966); State v. Joyner, 228 La. 927, 84 So.2d 462 (1955); State v. Reardon, 245 Minn. 509, 73 N.W.2d 192 (1955); People v. Spitaleri, 9 N.Y.2d 168, 212 N.Y.S.2d 53, 173 N.E.2d 35 (1961) overruling People v. Steinmetz, 240 N.Y. 411, 148 N.E. 597 (1925); Perry v. State, 84 Okl.Cr. 211, 181 P.2d 280 (Crim.App.1947); State v. Thomson, 203 Or. 1, 278 P.2d 142 (1954); Brooks v. State, 187 Tenn. 67, 213 S.W.2d 7 (1948), cert. denied 340 U.S. 837, 71 S.Ct. 21, 95 L.Ed. 614 (1950). See also ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty, § 2.2 (Approved Draft 1968).

Various arguments have been advanced to justify the exclusion of withdrawn pleas. In People v. Quinn, Supra, for example, the Supreme Court of California observed that the majority of recent cases have held withdrawn pleas to be inadmissible. In the course of the opinion, the court summarized the major reasons which it gleaned from the cases prohibiting use of the plea:

(1) an order withdrawing a plea of guilty annuls the plea for all purposes * * *;

(2) admission of the plea violates the privilege against self-incrimination * * *;

(3) a plea of guilty is not within the admission exception of the hearsay rule, for it is often based on motives other than admitting guilt * * *; (and)

(4) admitting the plea into evidence is inconsistent with the privilege to obtain its withdrawal * * *.

39 Cal.Rptr. at 396, 393 P.2d at 708 n. 2 (citations omitted).

We find, as did the California court, that the final reason is most persuasive. The privilege of withdrawal is indeed a hollow one if evidence of the guilty plea can be used against the defendant in a subsequent trial. In our view, basic ...