State v. Wheeler

• Decision Date: 23 July 1981
• Docket Number: No. 46767-7,46767-7
• Citation: 631 P.2d 376,95 Wn.2d 799
• Parties: The STATE of Washington, Respondent, v. Richard Lee WHEELER, Appellant.
• Court: Washington Supreme Court

Page 799

95 Wn.2d 799

631 P.2d 376

The STATE of Washington, Respondent, v. Richard Lee WHEELER, Appellant.

No. 46767-7.

Supreme Court of Washington, En Banc.

July 23, 1981.

Robert J. Wayne, Seattle, for appellant.

Norm Maleng, King County Prosecutor, Joanne Maida, Sr. Deputy Pros. Atty., Seattle, for respondent.

Robert H. Aronson, Seattle, for amicus curiae.

UTTER, Justice.

Richard Wheeler, by direct appeal from a verdict and judgment of second degree assault with a firearm, raises four issues. These involve the enforceability of a plea bargain, the admission of both altered testimony and hearsay, and a jury instruction defining "knowledge." We find no reversible error and accordingly affirm.

Early on the morning of December 26, 1978, Richard Wheeler, a white, middle-aged shipyard worker, returned to his houseboat from a Christmas party to find that the boat had been burglarized for the second time that month. Kelly, a younger white male whom Wheeler had met the previous day, was with Wheeler, and the two had been drinking heavily.

Wheeler had reported the first burglary to the police, but was dissatisfied with their investigation. Neighbors had given Wheeler descriptions of two black males who allegedly had been in the marina on several occasions. Wheeler and Kelly returned to Wheeler's pickup and left. Wheeler had a .410 gauge shotgun in the truck.

At about 2 a. m. Wheeler and Kelly drove alongside three young black males, two of whom ostensibly fit the description given by Wheeler's neighbors, and engaged the three in conversation. Two of the three soon fled, either because they recognized Wheeler or because they saw the shotgun. Wheeler and Kelly caught the third, a 15-year-old, and Wheeler knocked him down, allegedly to examine the tread on his shoes to determine if they matched prints left on the boat. Wheeler then struck the youth on the side of the head, tearing one ear in a manner that required several stitches to mend. The victim's mother and sister came running out of a nearby house to protest, and Wheeler shouted something at them, apparently to the effect that they would never see their boy again.

Wheeler and Kelly then forced the victim into the pickup and drove him to a secluded area about 6 miles away. During the trip, Wheeler threatened the youth, struck him with his elbow, and knocked his head into the back cab window, giving him a black eye, several facial cuts, and a bruised and bloodied scalp. Once they arrived, Wheeler physically kicked the youth out of the vehicle and, as the boy was running away, fired a shot either at him or into the air.

Wheeler and Kelly were apprehended before the youth was located, and in an inadvertent confrontation at the police station, Wheeler told the boy's mother that he had killed her son. Wheeler testified, however, that he never intended to seriously injure the youth, but only wanted to teach him a lesson and to scare him into telling where the stolen property was located.

Prior to trial the defendant's attorney and the trial prosecutor entered into a plea bargain negotiation whereby the defendant offered to plead guilty to second degree assault with a deadly weapon and the prosecution apparently agreed to drop the firearm allegation, to drop the kidnapping charge, and to recommend a 3-year deferred sentence conditioned on 120 days in jail (with work release), restitution, and payment of costs.

There is substantial evidence that the bargain was first accepted by the prosecutor who then revoked the acceptance shortly before the guilty plea was to be entered. The trial prosecutor maintains, however, that no formal acceptance occurred. A motion for specific performance was heard before Judge Barbara Rothstein on March 23, 1979. Judge Rothstein, assuming but not finding that an agreement had been reached, held that the plea bargain was not enforceable.

The trial prosecutor evidently changed her mind regarding the merits of entering into the plea bargain as a result of her interviews with witnesses and because of the reaction of the victim's family to the agreement. The plea bargain was officially retracted, however, by Prosecuting Attorney Norm Maleng, who announced a new departmental policy of personally reviewing all of the evidence in difficult cases and deciding whether "manifest injustice" would occur if an agreement were allowed to stand.

On May 1, 1979, after several continuances, Wheeler and Kelly were tried together by jury in a consolidated action. Defendant Wheeler was convicted of second degree assault with a firearm and was sentenced to prison.

During the trial, a police officer testified, on the basis of what he had been told by Kelly, that "Wheeler said he was going to go out and try to get the guy." Verbatim Report of Proceedings at 220. Wheeler's counsel objected on the basis of the hearsay rule, but the objection was overruled. The defense counsel then moved for mistrial, renewed motions for severance, and also offered to waive the jury. Counsel claimed one of these measures was necessary to preserve Wheeler's right to cross-examine the codefendant who would not take the stand. The court denied all three motions.

Sometime later, another police officer, over defense objections, altered his testimony regarding statements made by Wheeler. The policeman changed statements in the first person plural "we" to the singular form "I." The prosecutor had instructed the officer to do so.

At the conclusion of the trial, the court instructed the jury that "knowingly" is defined as "information which would lead a reasonable person in the same situation to believe that facts exist which facts are described by law as being a crime." Instruction No. 11. The defendant excepted on the grounds that the instruction created a constitutionally impermissible presumption. The trial court, however, denied the exception.

I

The defendant seeks specific performance of the prosecutor's initial offer. He contends that the prosecutor could not legally rescind the offer until he had an opportunity to accept it. The issue, as framed by his argument, is one of first impression in this state.

The weight of authority is that, absent some detrimental reliance by the defendant, the State may withdraw from any plea agreement prior to the actual entry of a guilty plea. Government v. Scotland, 614 F.2d 360 (3d Cir. 1980); State v. Collins, 300 N.C. 142, 265 S.E.2d 172 (1980); State v. Edwards, 279 N.W.2d 9 (Iowa 1979); Shields v. State, 374 A.2d 816 (Del.), cert. denied, 434 U.S. 893, 98 S.Ct. 271, 54 L.Ed.2d 180 (1977); People v. Heiler, 79 Mich.App. 714, 262 N.W.2d 890 (1977). That result has been reached by strictly applying contract principles and characterizing the plea bargain as a unilateral contract. That is, only the defendant's plea, or some other detrimental reliance upon the arrangement, constitutes an acceptance of the agreement; and consequently the bargain can be revoked if neither has occurred. Those courts have further reasoned that enforcing bargains made before the plea would inhibit the prosecutor's use of plea bargaining; and that the defendant, because she or he can still get a jury trial, has an adequate remedy for the State's revocation.

Only one case has deviated from that conclusion. Cooper v. United States, 594 F.2d 12 (4th Cir. 1979). Cooper held that a defendant was entitled to specific performance of a plea bargain, even though it was rescinded by the government prior to defendant's acceptance. In reaching that result, the court reasoned that contract principles cannot control the contours of constitutional rights. It found two constitutional rights which, it thought, require enforcement of plea proposals. They are:

(M)ost obviously and directly, the right to fundamental fairness embraced within substantive due process guarantees; less directly perhaps, but nonetheless importantly, the Sixth Amendment right to effective assistance of counsel. The general relevance of the former is too plain to require discussion. That of the latter can be readily stated.... To the extent that the government attempts through defendant's counsel to change or retract positions earlier communicated, a defendant's confidence in his counsel's capability and professional responsibility, as well as in the government's reliability, are necessarily jeopardized and the effectiveness of counsel's assistance easily compromised.

Cooper, at 18-19.

Like the other jurisdictions, we reject the Cooper analysis. A defendant does not have a constitutional right to plea bargain, see Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977), and thus the failure to enforce a plea proposal, as opposed to an "accepted" offer, cannot violate substantive due process. Substantive due process protects those rights which are

"so rooted in the traditions and conscience of our people as to be ranked as fundamental," ... or are "implicit in the concept of ordered liberty."

Rochin v. California, 342 U.S. 165, 169, 72 S.Ct. 205, 208, 96 L.Ed. 183, 25 A.L.R.2d 1396 (1952), quoting Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674, 90 A.L.R. 575 (1934), and Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937). The right to specific performance of a plea proposal, if it can be called a right, is not rooted in the "traditions and conscience of our people." That is evident by the fact that the overwhelming weight of judicial authority has refused to recognize any such right. See, e. g., Scotland, supra; Collins, supra; Edwards, supra; Shields, supra; Heiler, supra. While the defendant is to be treated with fairness, State v. Tourtellotte, 88 Wash.2d 579, 564 P.2d 799 (1977), which in most cases would dictate that the prosecutor comply with any extended offer, we cannot conclude that the right to any specific offer is so fundamental and so instrumental to our system of justice that it rises to constitutional...