State v. Stacy, 32403

• Decision Date: 29 September 1953
• Docket Number: No. 32403,32403
• Citation: 43 Wn.2d 358,261 P.2d 400
• Court: Washington Supreme Court
• Parties: STATE, v. STACY.

Page 358

43 Wn.2d 358

261 P.2d 400

STATE, v. STACY.

No. 32403.

Supreme Court of Washington, Department 2.

Sept. 29, 1953.

Fred E. Stacy, pro se.

Don G. Abel, Aberdeen, Paul B. Fournier, Montesano, for respondent.

FINLEY, Justice.

The question presented in this appeal is whether a trial court errs in accepting a plea of guilty, made on the advice of counsel, where the plea is on its face equivocal and couples a protestation of innocence with the admission of guilt.

Fred Stacy was brought to trial in the superior court for Grays Harbor county on charges of first-degree kidnapping and first-degree assault. Stacy was represented at his trial by two members of the bar, Mr. Ray DeKraay and Mr. Orville Peebles, who each had twenty and twenty-five years' experience, respectively, at the bar. As the trial proceeded and as the state put on its witnesses, a strong case was built up against the defendant. On the second day of the trial, after the state had put on most of its witnesses, the defendant, his mother, wife and aunt, and his attorneys met in conference with prosecutor Paul Fournier and a deputy sheriff during the morning recess. Allegedly, the prosecutor stated that, unless the defendant changed his plea of not guilty to that of guilty, the state could and would have Stacy confined to a hospital for the criminally insane for the rest of his life. The defense attorneys appeared to be apprehensive that the jurors would believe the strong case theretofore built up against the defendant, and apparently thought it was likely that defendant would get a life sentence on the kidnapping charge or might even receive the death sentence. The prosecution was willing to drop the more serious kidnapping charge, if the defendant would plead guilty to a charge of first degree assault. The defense attorneys urged the defendant to plead guilty to the charge of first degree assault. He agreed to do so.

In this connection the record shows that the following occurred:

'[After returning from the conference held at the recess]

'Mr. Fournier: If your Honor please, at this time Mr. Peebles and I and Mr. DeKraay, having talked this matter over, and with the consent of the defendant, it is my understanding that the defendant wishes to withdraw his plea of not guilty by reason of insanity and enter a plea of guilty to the crime of First Degree Assault, and with that understanding, if the defendant does so plead, I would move that the First Degree Kidnapping count be dismissed. The Court: You ask leave of the Court to withdraw your former plea? Mr. Peebles: That is correct, your Honor. The Court: Have the defendant come forward then. (Defendant comes forward to the bench) Then it will be granted, a leave to withdraw his former plea of not guilty to both counts of the Amended Information, and also his plea of not guilty by reason of insanity. Do you desire to have the Amended Information read? Mr. Peebles: No, we do not. We will waive the reading of the Information, your Honor. The Court: All right. I will ask you, Mr. Stacy, as to Count 2 of the Amended Information, which charges you with First Degree Assault, how do you plead to that, guilty or not guilty? Mr. Stacy: I plead guilty to that charge, your Honor, and I would like to make a statement to that charge. Even though I am pleading guilty to that charge, it is a lie on my part. I am doing so on the advice of counsel.' (Emphasis supplied)

When subsequently brought before the court for sentencing, the defendant again made a statement of an equivocal nature as to whether or not be was guilty. Asked by the court if he had anything to say before the judgment was pronounced, Mr. Stacy made the following statement:

'Mr. Stacy: I said at the very start I was not guilty and challenged the prosecution three different times to give the truth serum, and now I am pleading guilty on the advice of my wife.' (Emphasis supplied)

Overlooking the equivocal nature of the change of plea, the trial court sentenced the defendant to twenty years in the penitentiary at Walla Walla on an amended information charging the defendant with first degree assault. On December 30, 1952, a motion was made to vacate the judgment. At the hearing on the motion, on January 26, 1953, the defendant represented himself. He contended that his plea of guilty to the amended information, charging him with first degree assault, had been wrested from him by duress exercised by his defense attorneys, and by the threats of the prosecution. It was also contended that this same duress was exercised over the defendant's mother and his former wife so they would induce him to accept the change of pleas as recommended by counsel. The trial court denied the motion to vacate the judgment and defendant Stacy has appealed.

There is no doubt that defendant Stacy expected that his pleading to the charge of first degree assault would remove the threat of life imprisonment and, perhaps, the threat of a death sentence relative to a possible conviction on the kidnapping charge. Despite any benefits anticipated by the defendant, the question before us is whether the purported plea of guilty, although made on the advice of counsel, was so equivocal on its face that the trial court should have required the defendant to stand trial rather than to accept such an equivocal plea.

At this point we note that cases, such as Thorne v. Callahan, 39 Wash.2d 43, 234 P.2d 517, which involve equivocal pleas (a) made without the benefit of legal counsel and (b) made at the time of arraignment, are not strictly applicable to the case at bar because here we have a plea of guilty, made (1) on the advice of counsel, and (2) after the state had practically finished its case against the appellant--that is, after more than one day of trial. Furthermore, the Thorne case involved the question of whether certain equivocal language used by the accused amounted to a waiver, intelligently and understandingly made, of the right to counsel.

Where a clear-cut plea of guilty is made on the advice of counsel, and where counsel is experienced and able to weigh the desirability of pleading guilty to a lesser offense rather than risking all against the hazard of losing on a greater offense, there would seem to be little doubt that a knowing, intelligent choice is exercised in making the plea of guilty. This would be especially true in a case such as the one at bar, where the state has built up a devastating record against the appellant before he made his change of pleas.

But the case at bar is not quite so simple. The record shows that a plea of not guilty by reason of insanity was withdrawn and an equivocal or self-contradictory plea of guilty was substituted.

As the trial was stopped during the state's case and the matter was disposed of on the basis of the plea of guilty, the defendant presented no witnesses and, obviously, did not take the stand. However, in his brief on appeal, Mr. Stacy went outside the record and stated that he is a World War II veteran; that, following hospitalization during the war for a neurotic condition, he underwent a prefrontal lobotomy, improved after the operation, married, and had three children; that in 1951, with the onset of marital difficulties, he became nervous again and was subject to spells of amnesia and that he decided it best to seek psychiatric advice; that in November of 1951, he set out for the Veterans' hospital in Seattle and, upon reaching Aberdeen, began to suffer from depression and an intense anxiety; that, fearing he might harm himself or someone else, he went to the local police authorities and had himself locked up for protection; that arrangements were made with the Veterans' administration authorities to have him transferred, but, before the transfer could be effected, he was sent on his way by a police officer, who did not know of the prior arrangements, and who told him that the city was not running a hotel. He was unable to start his car and decided to hitch-hike to Seattle, as there was no bus leaving for Seattle until nine a. m. the next morning.

The state's witnesses testified that Mr. Stacy, while hitch-hiking toward Seattle, was picked up and given a ride by them. That Stacy appeared to be rational and conducted himself properly for a short time thereafter, but then drew a hunting knife and threatened to use it on one of the women passengers in the car unless the driver and other passengers followed his directions. They testified that he stated he was on his way to Seattle to kill a doctor. After the car had proceeded from around McCleary to a point between Olympia and Tacoma, Stacy ordered the driver to turn around and to drive to Portland. He permitted a woman passenger to leave the car temporarily to go to a restroom; she got word to the police and the car was stopped in Centralia and Stacy was arrested.

It is our opinion that, under the circumstances, the trial court erred in accepting the equivocal plea, even though it was made pursuant to the advice of competent counsel. While the trial court can accept a plea of either guilty or not guilty, we believe that, nevertheless, the important considerations which are presented in each criminal case require that, whenever a defendant attempts to make a plea which by its very wording couples a protestation of innocence with an assertion of guilt, the trial court should refuse to accept the plea until the equivocation therein has been eliminated; and, if the defendant persists in attempting to enter such a plea, the trial court should require the defendant to stand trial on the offense charged.

Such a rule is consistent with the orderly and proper administration of justice in criminal cases. It clearly protects the defendant's right to an opportunity to establish his innocence in a trial before a jury. Furthermore, it obviates a collateral attack on a judgment (as in the instant case, or in a habeas corpus proceeding) by a later claim that the...