State v. Kay

• Decision Date: 07 March 1986
• Docket Number: No. 20265,20265
• Citation: 717 P.2d 1294
• Parties: STATE of Utah, Plaintiff and Respondent, v. Douglas Edward KAY, Defendant and Appellant.
• Court: Utah Supreme Court

Page 1294

717 P.2d 1294

STATE of Utah, Plaintiff and Respondent, v. Douglas Edward KAY, Defendant and Appellant.

No. 20265.

Supreme Court of Utah.

March 7, 1986.

Rehearing Denied April 7, 1986.

R. Clayton Huntsman, Phillip Lang Foremaster, St. George, for defendant and appellant.

David L. Wilkinson, Earl J. Dorius, Salt Lake City, for plaintiff and respondent.

ZIMMERMAN, Justice:

Defendant Douglas Kay appeals from the trial court's refusal to adhere to the terms of a plea bargain. He pleaded guilty to three counts of capital homicide in exchange for a promise that he would be sentenced to life imprisonment rather than death. The trial court accepted the pleas without objection from the State. Two weeks later, following a change in the State's position, the court ruled that it was not bound by the agreement to impose life imprisonment. The court gave Kay the option of being sentenced, with the possibility of receiving the death sentence, or withdrawing his guilty pleas. Kay took an interlocutory appeal and seeks specific enforcement of the plea bargain. He alleges not only that principles of double jeopardy preclude the court from setting the pleas aside and forcing him to begin the process anew, but also that the trial court's actions violated his constitutional right to due process. For reasons unique to the facts of this case, we find no constitutional infirmity in the trial court's setting aside the condition of the pleas. The case therefore is remanded. Kay may withdraw his pleas of guilty or he may proceed to sentencing.

This appeal presents several issues. The first is whether the Utah statute governing the sentencing of capital felons, U.C.A., 1953, § 76-3-207 (Repl.Vol. 8B, 1978, & Supp.1985), permits a defendant to plead guilty to a capital felony in exchange for a promise of life imprisonment. The second issue is whether a violation of Rule 11 of the Utah Rules of Criminal Procedure, U.C.A., 1953, § 77-35-11 (Repl.Vol. 8C, 1982, Supp.1985)--either because of the trial judge's participation in the plea process or because the plea was conditional in nature--requires the plea to be set aside. The third issue is whether the acceptance of a plea agreement that is subsequently broken places a defendant in jeopardy and precludes trial. Finally, we must determine what constraints due process places on the State when it seeks to breach a plea agreement.

We hold that neither the statute governing the sentencing of capital felons nor Rule 11 of the Utah Rules of Criminal Procedure prevented Kay from entering and the trial judge from accepting the conditional plea presented here. We hold that the trial judge did violate the procedural requirements of Rule 11 when he accepted Kay's unilateral plea, but find that the violation did not render the plea agreement invalid. We also hold that while Kay was placed in jeopardy within the meaning of the fifth amendment to the United States Constitution and article I, section 12 of the Utah Constitution, the trial judge was entitled to rescind his acceptance of the agreement under the circumstances of this case, and neither double jeopardy nor due process considerations bar the State from proceeding to trial.

The facts leading up to this appeal are relatively simple. Kay is charged with three counts of first degree murder, all capital felonies, and four counts of aggravated robbery, all first degree felonies. These charges arose out of the execution-style shooting deaths of three people during the robbery of a bar in Cedar City, Utah, in February of 1984. ¹ Kay was arraigned on April 17, 1984, and again on May 8th. A number of pretrial motions were presented throughout the summer. The trial was originally scheduled for August 13, 1984, but at the State's request, was continued until September 17th.

Three weeks before trial, defendant's counsel presented the court with an "In-Camera Motion for Conditional Plea of Guilty" in which Kay offered to plead guilty to all counts and to give his confession in open court in exchange for a promise by the judge that he would not be sentenced to death. Although the State had two days' notice that Kay intended to enter a conditional plea, it was unaware of the terms of the proposed plea until the motion was presented to the court.

The motion was presented to the court in chambers and was discussed at length off the record. The judge, defendant's counsel, the Iron County attorney, and a Utah assistant attorney general were all present. A one-hour recess was then called to allow the State to consider the matter and to allow defense counsel to consult with Kay. Following another brief in camera session with all counsel, proceedings were held on the record. The court questioned Kay at length about his understanding of both the plea agreement and its consequences and concluded that the pleas were knowingly and voluntarily given. Kay then pleaded guilty to each count of capital homicide "on the condition that [his] life not be forfeited," pleaded guilty to all four counts of aggravated robbery, and gave a full confession on the record, describing the robbery and the murders in detail. The trial judge accepted the pleas and scheduled a sentencing hearing for September 17, 1984. At no time did the prosecution object in open court to the pleas or to any other aspect of the proceedings.

Two weeks later, the State asked the trial court to reconsider its acceptance of the conditional pleas. This motion was made after a new lawyer appeared as lead counsel for the State, after the details of Kay's confession had been widely reported in the media, and after several public demonstrations in Cedar City had protested the agreement to sentence Kay to life imprisonment. One such incident involved parading an effigy of Kay crowned with the head of a dead pig through the town with a placard calling for the recall of the trial judge in the upcoming elections.

Following a lengthy hearing on the State's motion to reconsider, the trial judge entered an order vacating the promise of life imprisonment. He gave several reasons for his action. First, he found that the State had been surprised by the original motion for the conditional guilty plea, had disagreed with the plea agreement (despite its failure to object on the record), and had not had sufficient time to respond to Kay's request for a conditional plea. In addition, he found that the conditional plea was illegal and that accepting it would constitute plain error. The trial judge gave Kay the option of standing on the guilty pleas and facing a sentencing proceeding at which the death penalty might be imposed; withdrawing the guilty pleas, reinstating the not guilty pleas, and going to trial; or pursuing an interlocutory appeal. Kay chose the last alternative.

In this Court, Kay seeks specific enforcement of the plea agreement. Kay asserts that the trial court did not exceed its authority in accepting the pleas and that, in any event, the State's failure to timely object precludes it from challenging them now. He argues that the trial court's actions violated his constitutional right not to be placed twice in jeopardy, as well as his due process right to a fair, speedy, and public trial.

The State contends that the trial judge properly vacated the promise of life imprisonment because conditional and unilateral pleas are unlawful and therefore void under both the Utah Rules of Criminal Procedure and the death penalty statute. In response to Kay's constitutional arguments, the State asserts that because the conditional pleas were void, Kay was not placed in jeopardy. In addition, the State argues that because Kay acted improperly in offering the guilty pleas, he cannot now complain that the resulting publicity and delay deny him due process.

I

We first consider Utah's death penalty statute to determine whether it permits a trial judge to accept a guilty plea conditioned upon the judge's promise not to impose the death penalty. In capital cases, trials are bifurcated: the defendant's guilt or innocence is determined in the first phase, while the penalty of death or life imprisonment is determined in the second. U.C.A., 1953, §§ 76-3-206 and -207 (Repl.Vol. 8B, 1978, & Supp.1985).

This bifurcated scheme was adopted by Utah in 1973 in response to the United States Supreme Court's decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Furman held that the death penalty was prohibited by the cruel and unusual punishment provisions of the eighth and fourteenth amendments to the United States Constitution when the decision to impose the penalty was left to the "uncontrolled discretion of judges or juries." 408 U.S. at 253, 92 S.Ct. at 2733 (Douglas, J., concurring). Following Furman, the Georgia legislature amended its death penalty statute, bifurcating the guilt and penalty phases and specifying detailed standards to guide the fact finder in deciding between death and life imprisonment in the penalty phase. The Supreme Court reviewed this amended statute and held that it was not per se unconstitutional. Gregg v. Georgia, 428 U.S 153, 206-07, 96 S.Ct. 2909, 2940-41, 49 L.Ed.2d 859 (1976). The Georgia statute upheld in Gregg is essentially identical to Utah's death penalty statute, which we have also upheld against constitutional challenge. State v. Pierre, Utah, 572 P.2d 1338, 1345 (1977), cert. denied, 439 U.S. 882, 99 S.Ct. 219, 58 L.Ed.2d 194 (1978).

As enacted in 1973, Utah's death penalty statute required a separate sentencing proceeding only for capital felons found guilty after trial. In 1983, however, the legislature amended the law to require a separate sentencing proceeding for those who plead guilty, as well as for those who are convicted by a judge or jury after trial. 1983 Utah Laws, ch. 19, § 1; U.C.A., 1953, § 76-3-207(1) (Repl.Vol. 8B, 1978, Supp.1985). No legislative history exists to explain this change.

The language of the sentencing statute, ...