Stop the Shilly-Shallying

In a felony DWI case, (Gaal, v. State) the defendant was set to plead guilty. When the time came for him to plead, however, he refused. The trial judge stated, “All right. We’re supposed to have a plea here today. It appears that [the defendant] does not want to plea. For the record, I will not accept any plea bargain in this matter, unless it’s for the maximum term of ten years.”

The defendant later filed a motion to recuse the trial judge, contending that his statement that he would not accept a plea deal for less than the maximum, showed that he could not be fair and impartial. Another judge, at a recusal hearing, denied the request. On appeal, the 2nd District Court of Appeals (Fort Worth) held that appellant was denied due process by the trial judge’s statements and that the judge should have been recused.

The Court of Criminal Appeals now holds that the lower court got it all wrong. The CCA characterizes the trial judge’s statement not as a denial of due process.

The trial judge’s comment could quite logically and reasonably have been a short-hand rendition of a statement that it was time for the defendant to quit shilly-shallying because he has twice rejected favorable plea bargains…and was continuing to drink in violation of his bond conditions.

The CCA goes on:

A reasonable person, based on the totality of the circumstances, would translate the judge’s statements as, “I’m not going to reset this case for any more plea negotiations; we’re going to trial.”

And as the Court points out, a “defendant does not have an absolute right to enter into a plea bargain” and “the trial judge doesn’t have to take a plea bargain.”

Who Says Plea Negotiations Aren't Admissible?

Bowley v. State (CCA Opinion HERE)

It was a DWI case (enhanced to felony-level by 2 previous DWI convictions).  The defendant took the stand and explained to the jury that he pled guilty to the 2 previous cases, because he was actually guilty.  Then, on cross-examination, this was the exchange between the defendant and the prosecutor:

Q:  Okay. [Defense counsel] said that you pled guilty to all those up there because you were; is that right?
A: Yes, sir, that is correct.
Q:  You're not pleading guilty here today because you're not guilty; is that right?
A:  Right. That is correct.
Q:  Could it be that it's because we couldn't agree on a plea agreement that you preferred?

Hmm...I seem to remember a certain rule of evidence...ah, yes, Rule 410, which prohibits the admission of pleas negotiations.  The underlying rationale behind Rule 410 is to promote "free and frank" plea negotiations.  Additionally, if we face the facts, not all defendants that plead guilty are actually guilty.  Sometimes it's just easier to plead than to risk being convicted of a greater crime or awarded a stiffer sentence.

Thankfully, the Defense counsel sprung to action:

DC: Judge, I guess I will have to object on that.  That's-
Court: Sustained.
DC:  Judge, as well, let me go ahead and ask that this Court instruct the jury not to consider that in any type of deliberation, this it's simply just not a proper area for a trial, Judge.
Court:  No instruction will be given.
DC:  Judge, I guess to finish that and perfect my objection, I will ask for a mistrial.
Court:  Denied.

The defendant was later convicted of felony DWI and was sentenced to 30 years confinement as a habitual felony offender.

On direct appeal, the 7th District Court of Appeals (Amarillo) concluded that the judge erred by not giving the instruction to disregard the prosecutor's question about the plea negotiations and reversed the conviction.  The 7th Court's reasoning was that under Rule 403, the question was "higly misleading and prejudicial" and that there was a "grave risk" that the jury would make the "common sense" inference that because the defendant has negotiated for a plea, he had committed the crime.

Yesterday, however, the Court of Criminal Appeals (in a sharply divided 5-4 decision) reversed the 7th Court's decision, stating

We hold that no instruction was required because [the defendant's] testimony opened the door to the prosecutor's question.  A party who opens the door to inadmissible evidence risks the adverse consequences of having it admitted.  It was admissible for the prosecutor to cross-examine [the defendant] by questioning the circumstances surrounding his plea in this case to establish an alternatie motive for pleading not guilty - that it was the result of failed plea negotiations.

The holding is simply shocking - especially when the trial court excluded the evidence!  Although it was not clear on the appellate record whether the trial court excluded the evidence under a Rule 403 or Rule 410 analysis, if either is within the so-called "zone of reasonable disagreement" the appellate court should have upheld the trial court's ruling excluding the evidence and required a curative instruction for the jury to disregard the question.

Perhaps Judge Price, in one of the dissenting opinions got it right:

But even if the majority were right with respect to the Rule 403 issue, it grievously errs simply to affirm the judgment of the trial court without further ado. If the court of appeals was wrong about the propriety of the trial court’s ruling as a matter of Rule 403, the question remains whether the trial court’s (probable) actual ruling under Rule 410(a) was within its discretion. Because the court of appeals has never resolved this issue, the correct disposition at this juncture would be to remand the cause to the court of appeals so that it may do so. I must therefore dissent on the additional basis that the Court does not remand the cause for further proceedings in the court of appeals.  Ultimately, I rue that we ever, in our capacity as a discretionary review court, should have allowed ourselves to get embroiled in a case like this in the first place.

At least for now, the takeway from this case, is don't introduce prior guilty pleas of your client in the hope that the jury might infer that because he isn't pleading guilty to the current charge, he is actually not guilty. Wow, a lot of double negative in that sentence, but you understand what I mean.

Two other dissenting opinions were also submitted by Judges Johnson and Holcomb.