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In George, the Court of Appeals reversed the defendant's conviction, which was based upon a judicial statement providing a basis for the defendant's later-invalidated guilty plea.
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Docket No. 20743.
Decided June 14, 1976. Leave to appeal applied for.
Appeal from Oakland, Robert B. Webster, J. Submitted April 7, 1976, at Lansing. (Docket No. 20743.) Decided June 14, 1976. Leave to appeal applied for.
Nolan R. George was convicted of second-degree murder. Defendant appeals. Reversed and remanded.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Thomas S. Richards, Assistant Prosecuting Attorney, for the people.
Faintuck, Shwedel, Roether, Wolfram McDonald, for defendant.
Before: T.M. BURNS, P.J., and V.J. BRENNAN and D.E. HOLBROOK, JR., JJ.
The defendant was charged with first-degree murder, MCLA 750.316; MSA 28.548, in the March, 1969, slaying of Frances Brown. He subsequently pled guilty to second-degree murder. MCLA 750.317; MSA 28.549. As part of the plea-taking procedure the plea-taking court elicited sufficient facts from the defendant to establish a factual basis for the defendant's guilt. Accord, People v Barrows, 358 Mich. 267, 273; 99 N.W.2d 347 (1959).
In March, 1973, this Court reversed the defendant's plea-based conviction because the trial court failed to properly advise the defendant of his Jaworski rights. The defendant was then tried for second-degree murder but when the jury was unable to agree upon a verdict a mistrial was declared. A second jury, however, returned a verdict of guilty of second-degree murder. He received a sentence of 40 to 60 years in prison. Defendant appeals as of right.
People v George, (Docket No. 15597), March 6, 1973 [unpublished order].
People v Jaworski, 387 Mich. 21; 194 N.W.2d 868 (1972).
Prior to the defendant's first trial defense counsel made a motion to prevent the prosecutor from making any reference to the defendant's vacated guilty plea. The trial court granted the motion and continued it during the defendant's second trial. However, during defendant's second trial, the trial court held a hearing to permit the prosecution to establish that the defendant had been informed by his plea counsel of his Jaworski rights. Having determined that the defendant actually knew of his Jaworski rights, the trial court permitted the prosecution to introduce the statements made by the defendant at the prior plea taking to establish the factual basis for a vacated guilty plea.
At the hearing defendant's plea counsel testified that he had advised the defendant of all his constitutional rights. The defendant was unable to invoke the lawyer-client privilege since defendant's putative common law wife was present when he was informed of his rights.
The use of a vacated guilty plea at a subsequent trial has long been condemned, both in Michigan and in many other jurisdictions. People v Street, 288 Mich. 406; 284 N.W. 926 (1939), see, e.g., Kercheval v United States, 274 U.S. 220; 47 S Ct 582; 71 L Ed 1009 (1927), Green v State, 40 Fla. 474; 24 So. 537 (1898), State v Anderson, 173 Minn. 293; 217 N.W. 351 (1927), State v Leaks, 124 N.J.L. 261; 10 A.2d 281 (1940), Heath v State, 23 Okla. Cr. 382; 214 P. 1091 (1923), cf., State v Meyers, 99 Mo 107; 12 S.W. 516 (1889). In recent years jurisdictions that had previously permitted such evidence to be introduced have repudiated the policy. 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 Spitaleri, 9 N.Y.2d 168; 173 N.E.2d 35; 212 N.Y.S.2d 53; 86 ALR2d 322 (1961), overruling People v Steinmetz, 240 N.Y. 411; 148 N.E. 597 (1925). The evidence is inadmissible whether the vacated plea is introduced as substantive evidence of the defendant's guilt, People v Street, supra, or only as impeaching evidence when the defendant testifies. People v Trombley, 67 Mich. App. 88; 240 N.W.2d 279 (1976).
While the issue has been addressed in terms of a constitutional requirement, generally the courts have adopted the rule for policy reasons. Compare United States ex rel Spears v Rundle, 268 F. Supp. 691, 698-699 (ED Pa 1967), aff'd, 405 F.2d 1037 (CA 3 1969), with People v Street, supra at 408-409, Kercheval v United States, supra at 225. The philosophy behind this policy was succinctly stated by Mr. Justice Butler writing for the Court in Kercheval v United States, supra at 224:
"The withdrawal of a plea of guilty is a poor privilege, if, notwithstanding its withdrawal, it may be used in evidence."
What was true in 1927 is equally true today. "A defendant may wish to plead guilty for any one of several reasons having nothing to do with his guilt." State v Weekly, 41 Wn.2d 727, 731; 252 P.2d 246, 249 (1952) (Donworth, J., dissenting). This is especially true when the pervasiveness of plea bargaining is considered. See People v Byrd, 12 Mich. App. 186, 194-197; 162 N.W.2d 777 (1968) (LEVIN, J., concurring), lv den, 381 Mich. 775 (1968), Santobello v New York, 404 U.S. 257, 261; 92 S Ct 495; 30 L Ed 2d 427 (1971), see also Report of the National Advisory Commission on Criminal Justice Standards and Goals, Courts, ch 3, pp 4245 (1973).
The prosecutor notes, however, that the instant case is distinguishable from the cases cited in the preceding paragraphs. In those cases the fact that the defendant had previously pled guilty to the charge was directly introduced into evidence. In the instant case, on the other hand, both the trial court and the prosecutor were very careful not to permit any reference to the fact that the defendant's statement was taken at a time when the defendant pled guilty.
We view the prosecutor's distinction as one without any real significance. Admittedly, introducing only the factual statement of the defendant into evidence infringes the defendant's right to have his guilty plea vacated less than introducing the fact of the prior plea itself. But as the Minnesota Supreme Court has noted, "it can be said that no one familiar with courtrooms could believe that the jury did not understand that a plea of guilty had been entered". State v Hook, 174 Minn. 590, 592; 219 N.W. 926, 927 (1928). We hasten to add that we do not think that jurors today are so naive as to think that a criminal defendant walks into a courtroom and answers questions by a judge with a court reporter present without pleading guilty.
Furthermore, when a guilty plea is vacated it is a nullity. People v Street, supra at 408, Kercheval v United States, supra at 224. That means that everything that transpired pursuant to the guilty plea is a nullity. We find it impossible to separate the plea taking into valid and invalid parts. State v Hook, supra. The fact that an evidentiary hearing in this case established that the defendant was in fact advised of his Jaworski rights cannot render the prior plea taking any less of a nullity. Cf., Guilty Plea Cases, 395 Mich. 96, 121; 235 N.W.2d 132 (1975), People v Napier, 69 Mich. App. 46, 244 N.W.2d 359 (1976).
The prosecutor also attempts to distinguish the cited cases on the basis that those cases involved a guilty plea that was withdrawn rather than one that was reversed by an appellate court. However, that argument misses the mark generally, and specifically in this case. The defendant sought to withdraw his guilty plea before seeking relief from this Court. Consequently, this Court's determination that the defendant's guilty plea conviction should be reversed is only a holding that the trial court should have granted the defendant's motion to withdraw his guilty plea. See People v Taylor, 387 Mich. 209, 218-221; 195 N.W.2d 856 (1972).
We therefore hold that the factual basis for a vacated guilty plea may not be introduced into evidence at the defendant's subsequent trial. This holding is consistent with modern thought on the topic. McCormick, Evidence (2d ed), § 265, p 635; 1 Wright, Federal Practice and Procedure, § 172 (pp 99 of 1975 pocket part); ABA Standards, Pleas of Guilty 2.2 (1967); Uniform Rules of Evidence, rule 410, 13 ULA 216; Note, Improvident Guilty Pleas and Related Statements: Inadmissible Evidence at Later Trial, 53 Minn L Rev 559, 573-577 (1969). This rule has been adopted by various evidentiary codes. FR Evid, 410, FR Crim P, 11(e)(6), Cal Evid Code, § 1153.
Reversed and remanded.