6/30/16 Arizona Rules of Evidence Rule 410(a)(4) provides, “a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.” is not admissible as evidence against the defendant.
In State v. Gill, Court of Appeals No. 1 CA-CR 15-0509 (6/23/16) the defendant was charged with felony possession of marijuana. The State designated the offense a class one misdemeanor and offered the defendant a plea offer, which the defendant rejected. Next the State offered the defendant a deferred prosecution if the defendant completed a TASC (Treatment Assessment Screening Center) counseling program. As a condition of participation in TASC the defendant was required to complete a “statement of facts” form. On that form, which he and his attorney signed, the defendant said he understood his Miranda rights and avowed that, “I fully understand that what I have written here may be used against me in a court of law should I fail to satisfactorily complete the TASC program.” When asked about “the facts of the offense,” Gill wrote on the form: “The marijuana was found in the bathroom on the ground in my possession.”
The defendant failed to successfully to complete TASC and therefore the State resumed the prosecution. Before trial the defendant made a motion to suppress the use of the statement of facts he had given to TASC. The defendant asserted the statement was made in the course of plea negotiations and therefore the use of the statement was prohibited under Rule 410(a)(4). The trial court denied the defendant’s motion and thereafter he was convicted at trial. The defendant then appealed the issue to the court of appeals.
The court of appeals denied the defendant’s appeal and in doing so held the statement of fact was not made in the course of plea negotiations and therefore could not be suppressed using Rule 410(a)(4). In doing so the court pointed out several factors. First, the court said the defendant had agreed to participate in the TASC program, and provided the statements challenged here, after he rejected a plea offer, therefore, no plea discussions were ongoing when he provided TASC the statement of facts. Second, the court said Rule 410(a)(4) applies to statements made to an attorney. Since the TASC representative to whom the defendant made the statement was not an attorney, Rule 410(a)(4) does not apply. Third, the court said a defendant can waive the protections under Rule 410(a)(4). In the statement the defendant waived his Miranda rights and specifically said, “I fully understand that what I have written here may be used against me in a court of law should I fail to satisfactorily complete the TASC program.” The court said that constituted a valid waiver of his rights under Rule 410(a)(4).
The case may be found at:
http://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2016/CR%2015-0509.pdf
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