State v. Blish
Annotate this Case
State v. Blish (99-373); 172 Vt. 265; 776 A.2d 380
[Filed 13-Apr-2001]
[Motion for Reargument Denied 15-May-2001]
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
No. 99-373
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 1, Windsor Circuit
Robert William Blish January Term, 2001
Paul F. Hudson, J.
William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney
General, Montpelier, for Plaintiff-Appellee.
Robert Appel, Defender General, and William A. Nelson, Appellate Attorney,
Montpelier, for Defendant-Appellant.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
SKOGLUND, J. Defendant Robert William Blish appeals the Windsor
District Court's entry of his guilty plea to the charge of second degree
murder. Defendant contends that: (1) the crime described to him in the
trial judge's Rule 11(c) colloquy during his plea hearing was voluntary
manslaughter, not second degree murder, and therefore the colloquy cannot
support his conviction for second degree murder; (2) as a result of this
defect, the judge was unable to establish a factual basis for his plea, as
required by V.R.Cr.P. 11(f); and (3) as a result of these errors, his plea
was involuntary and the court's acceptance of it was therefore in
violation of his due process rights. As the plea colloquy was sufficient
to satisfy the requirements of Rule 11(c), we affirm.
It is uncontested that on October 12, 1996, defendant shot and killed
Plinio Raphael Diaz. The pertinent evidence, for purposes of this appeal,
pertaining to the circumstances surrounding this killing is as follows.
In the early morning on the date in question, defendant, Diaz, and Debra
Secord were traveling together in Diaz's car, en route from Claremont, New
Hampshire to Ascutney, Vermont. The car was driven by Secord, with
defendant riding in the front seat and Diaz alone in the left rear seat.
While driving along State Route 131 in Ascutney, defendant and Diaz
exchanged insults. Defendant referred to Diaz as "nigger," and Diaz
responded by calling defendant "fat boy." When Diaz called defendant "fat
boy," defendant pulled out a handgun, turned around to face Diaz, and shot
him in the face, killing him. Defendant stated immediately thereafter
"[t]here, call me fat boy again."
The information, entered on October 15, 1996, charged defendant with
first-degree murder. At that time, defendant pled not guilty, and
remained in custody. On February 5, 1997, after defendant underwent two
separate competency evaluations, a competency hearing was held, and
defendant was found competent to stand trial. In the following months, the
case proceeded towards trial. On November 3, eleven days before the jury
trial was scheduled to begin, defendant entered into a plea agreement.
Under the agreement, the State would dismiss separate charges of aggravated
assault, unlawful mischief, and attempt to elude, and in exchange defendant
would plead guilty to second degree murder, with the State recommending a
sentence of fifteen years to life.
At the plea hearing on the same date, with his counsel present,
defendant replied affirmatively to the judge's inquiries about whether he
had been accorded an opportunity to review the amended charge of second
degree murder, and if he was ready to enter a plea at that time. He then
pled guilty as agreed, and the judge engaged him in a V.R.Cr.P. Rule 11(c)
colloquy concerning
the nature of the crime charged, attempting to establish that he understood
each of the elements of the crime of second degree murder. After
acknowledging his understanding of the first two elements of the
crime-that, as the judge characterized these elements, there was an
unlawful killing of the victim, and that defendant's conduct had caused
this unnatural death-the judge proceeded to discuss the three possible
states of mind which can satisfy the mens rea requirement for second degree
murder.
The judge first asked defendant if he had intended to kill the victim,
to which defendant responded that he both understood the meaning of intent
to kill and had not so intended. (FN1) Defendant was next asked if he had
intended to do great bodily harm to the victim. He responded that he had
never intended to do bodily harm.
The judge then presented the third mens rea possibility, that he
"knowingly created a very high risk of death or great bodily harm." The
judge further described this third possible mental state as "[i]n other
words, your shooting of the weapon created a very high risk that the man
would die or he would receive serious bodily injury that would cause
protracted use of a bodily member or organ or might result in his death."
Defendant agreed that this type of mens rea for second degree murder could
be satisfied in this case. The judge concluded that the court was
satisfied with the factual basis for the third element of the offense, and
continued on with the colloquy.
At the end of the colloquy, the judge stated that "based on the plea
of guilty to the amended charge of second degree murder and the discussion
I've had with Mr. Blish, I will find that the plea
is knowing, voluntarily and intelligently made, with knowledge and
understanding of its consequences and that there is a fact basis for the
plea." The judge again asked the prosecution and defense counsel whether
there was "anything else," and both said no.
Defendant first argues that the colloquy between himself and the judge
violated Rule 11(c)(1) because the judge did not adequately explain the
nature of the charge to which the plea was offered. See V.R.Cr.P. 11(c)
("The court shall not accept a plea of guilty . . . without first, by
addressing the defendant personally in open court, informing him of and
determining that he understands the following: (1) the nature of the
charge to which the plea is offered.").
Before an examination of the substantive argument presented by
defendant, we must first address the standard of review applied to a claim
of a violation of Rule 11(c) when such claim is, as here, made in a direct
appeal to this court. It is well established in Vermont that "an issue
under Rule 11(c), alleging violations in taking a plea, absent plain
error, demands a factual record and opportunity for the trial court to
grant relief before this Court may properly review it." State v.
Thompson, 162 Vt. 532, 534, 650 A.2d 139, 140 (1994); see also State v.
West, 164 Vt. 192, 203, 667 A.2d 540, 547 n.* (1995) (Morse, J. concurring
and dissenting) (citing Thompson with approval); State v. Ploof, 162 Vt.
560, 562-63, 649 A.2d 774, 776 (1994) (same). In Thompson, the defendant
brought a direct appeal to this Court from a plea of nolo contendere to,
and subsequent conviction on, charges of sexual assault. In that appeal
defendant raised a challenge to the plea based on alleged violations of
Rule 11(c), claiming the court failed to both inform him of, and determine
whether he understood, the nature of the crimes charged. Thompson, 162 Vt.
at 533, 650 A.2d at 139. We held that the proper channel for defendant to
bring his claim was through post-conviction relief in superior court, as
there was no plain error present which warranted this Court's review. Id.
at 534, 650 A.2d at 140. Defendant argues that we should revisit the plain
error standard of review we apply to claims of Rule 11(c) violations made
directly from the plea hearing to this Court. Because it will have no
effect on the outcome of this case, we decline this invitation and hold
that there was no error in the Rule 11(c) colloquy in this case.
Defendant does not dispute the fact that he killed Diaz. Rather, he
claims that, in a line of cases beginning with State v. Johnson, 158 Vt.
508, 615 A.2d 132 (1992) and State v. Brunell, 159 Vt. 1, 615 A.2d 127
(1992), this Court has sought to reformulate in more modern language the
traditional common law definitions of second degree murder, voluntary
manslaughter, and involuntary manslaughter. He contends, citing State v.
Hatcher, 167 Vt. 338, 344, 706 A.2d. 429, 432 (1997), Brunell, 159 Vt. at
7-8, 615 A.2d at 130-31, Johnson, 158 Vt. at 515, 615 A.2d at 136, and
State v. Doucette, 143 Vt. 573, 582, 470 A.2d 676, 682 (1983), that the
distinction between these crimes is marked by the degree and character of
the actor's recklessness, with second degree murder representing conduct
manifesting an extreme indifference to human life, and the risk of death
resulting from the actor's conduct must be more than a mere unreasonable
risk, or even a high degree of risk. Defendant further contends that the
definition provided by the trial judge at the plea hearing, that he
"knowingly created a very high risk of death or great bodily harm,"
constitutes the crime of reckless homicide, or manslaughter, and not
second degree murder.
Defendant is correct that we have recently endeavored to modernize,
and in so doing clarify, the distinct definitions for the various types of
criminal homicide. However, defendant's attempted distillation of our
description of the three mens rea possibilities for second degree murder is
not as close to the mark. We have recently, subsequent to Johnson,
Brunell, Hatcher, and Doucette, specifically identified the mens rea
requirement for second degree murder. In State v. Shabazz, 169
Vt. 448, 739 A.2d 666 (1999), we were presented with a challenge to jury
instructions describing the crime of voluntary manslaughter. The
defendant, Bahiyod Shabazz, stabbed and killed a man during a failed
robbery attempt. The testimony at trial varied as to the purpose of the
robbery, but provided that the robber was seeking either crack cocaine or
money. After the robbery was in progress, a scuffle ensued, and the
robber was disarmed and unmasked. The unmasking revealed that the robber
was a person known to Shabazz, and the disarming revealed that the gun
presented by the robber was in fact a toy.
The testimony at trial varied as to whether Shabazz stabbed the robber
before or after discovering the gun was a toy. He was eventually charged
with murder for the killing, but argued that his actions were in
self-defense. At the conclusion of the trial, the judge instructed the
jury on the doctrine of self-defense, as well as on the lesser-included
offense of voluntary manslaughter. He stated that there are three ways
that the prosecution may prove the intent requirement of voluntary
manslaughter-by proving "an actual intent to kill or an intent to cause
great bodily harm or a wanton disregard that the likelihood that his acts
would cause death or great bodily harm." Id. at 449, 739 A.2d at 667.
The trial judge in that case elucidated on the concept of wanton disregard,
defining it for the jury as the condition where "the defendant actually
knew . . . of the likelihood that his conduct might naturally cause death
or great bodily harm, and nonetheless engaged in the act." Id. at 450,
739 A.2d at 667. He was subsequently convicted of voluntary manslaughter.
On appeal, Shabazz argued that the jury instruction was insufficient
to support his conviction for voluntary manslaughter, as only involuntary
manslaughter, and not voluntary manslaughter, may be premised on intent to
kill implied from indifference to human life or intent to do serious bodily
injury. Id. We disagreed, holding that the mens rea requirement for
voluntary manslaughter could
indeed be premised upon implied intent, and that "the better view of the
phrase 'intent to kill' [as used in the definition of voluntary
manslaughter] is that it serves as a short-hand description of the fuller
definition of the mental state for second degree murder." Id. at 453, 739 A.2d at 669. We described the "intent to kill" required for second degree
murder as including actual intent to kill, and also "encompassing intent
to do serious bodily injury as well as extreme indifference to human life."
Id. We held that there was no error in the jury instruction, and that it
"properly delineated the three types of mens rea that would ordinarily
constitute murder if not mitigated to voluntary manslaughter." Id. at
455, 739 A.2d at 470.
The confusion displayed by defendant over the nature of the mens rea
requirement for second degree murder, and its correlation to that required
for voluntary manslaughter, indicates that clarification is in order. It
is well established in Vermont that "[v]oluntary manslaughter is an
intentional killing committed under extenuating circumstances that may
negate willfulness, such as sudden passion or provocation that would cause
a reasonable person to lose control." Hatcher, 167 Vt. at 345, 706 A.2d
at 433 (citing State v. Turgeon, 165 Vt. 28, 32, 676 A.2d 339, 342 (1996)
and State v. Wheelock, 158 Vt. 302, 310, 609 A.2d 972, 977 (1992)); see
also Shabazz, 169 Vt. at 451-52, 739 A.2d at 668 (voluntary manslaughter
has "traditionally been characterized as an intentional killing committed
under extenuating circumstances occasioning sudden passion or great
provocation that negate 'malice'") (citing State v. Duff, 150 Vt. 329,
331, 554 A.2d 214, 215 (1988); In re Estate of Mahoney, 126 Vt. 31, 35,
220 A.2d 475, 478 (1966)); State v. Pelican, 160 Vt. 536, 543, 632 A.2d 24, 29 (1993) (Morse, J., concurring) ("Although we have spoken previously
of diminished capacity as 'negating' malice, the correct way of explaining
its effect is as a defense mitigating the degree of homicide from murder
to voluntary manslaughter. Like second degree murder, voluntary
manslaughter is an intentional killing, but, unlike second degree murder,
it is 'committed under extenuating circumstances that would mitigate, but
not justify, the killing.'").
This view is consistent with the textbook definition of voluntary
manslaughter. See 2 C. Torcia, Wharton's Criminal Law § 155, at 346-47
(15th ed. 1994) ("Voluntary manslaughter is an intentional killing in the
heat of passion as a result of severe provocation . . . which would
otherwise constitute murder, [but] is mitigated to voluntary
manslaughter."). Furthermore, our definition is in accord with a majority
of states which recognize voluntary manslaughter as a distinct crime:
Voluntary manslaughter in most jurisdictions consists of an
intentional homicide committed under extenuating circumstances
which mitigate, though they do not justify or excuse, the killing.
The principal extenuating circumstance is the fact that the
defendant, when he killed the victim, was in a state of passion
engendered in him by an adequate provocation . . . .
. . . .
The usual view of voluntary manslaughter thus presupposes an
intent to kill (or perhaps an intent to do serious injury or to
engage in very reckless conduct), holding that in spite of the
existence of this bad intent the circumstances may reduce the
homicide to manslaughter.
2 W. LaFave and A. Scott, Jr., Substantive Criminal Law § 7.10, at 252, 254
(1986) (citing cases). See also Commonwealth v. Whitman, 722 N.E.2d 1284,
1288 (Mass. 2000) ("Voluntary manslaughter . . . is a crime that would
otherwise be murder if a killing arises from a sudden transport of passion
or heat of blood upon a reasonable provocation or upon sudden combat.")
(internal quotations omitted); Selby v. State, 761 A.2d 335, 342 (Md. 2000)
(voluntary manslaughter is "an intentional homicide, done in a sudden heat
of passion, caused by adequate provocation, before there has been a
reasonable opportunity for the passion to cool") (emphasis in original);
People v. Breverman, 960 P.2d 1094, 1100 (Cal. 1998) ("[H]eat of passion
and unreasonable
self-defense reduce an intentional, unlawful killing from murder to
voluntary manslaughter by negating the element of malice that otherwise
inheres in such a homicide.") (emphasis in original); State v. Hockenhull,
525 A.2d 926, 930 n.4 (R.I. 1987) ("Although voluntary manslaughter has
been defined as an intentional killing, such intent is either mitigated by
heat of passion resulting from adequate provocation or is reduced to a
general intent rather than a specific intent crime as a result of
diminished capacity."); Commonwealth v. Pitts, 404 A.2d 1305, 1308 (Pa.
1979) ("Voluntary manslaughter . . . involves the specific intent to kill
but, by reason of passion and provocation, contains no legal malice.");
State v. Hilliker, 327 A.2d 860, 865 (Me. 1974) ("An unlawful killing is
punishable as voluntary manslaughter, 'as when the act is committed with a
real desire and purpose to kill but in the heat of passion occasioned by
sudden provocation.'"); Cf. N.Y. Penal Law § 125.20(2) (McKinney 1998)
("The fact that homicide was committed under the influence of extreme
emotional disturbance constitutes a mitigating circumstance reducing murder
to manslaughter in the first degree.").
As previously noted, and consistent with the aforementioned
definitions of voluntary manslaughter, we have specifically held that the
intent component of voluntary manslaughter is the same as that required
for second degree murder-actual intent to kill, intent to do serious bodily
injury, or extreme indifference to human life. Shabazz, 169 Vt. at 453,
739 A.2d at 669. This extreme indifference to human life may be
characterized as knowing of the likelihood that the act might naturally
cause death or great bodily harm, but engaging in the action nonetheless,
see id. at 451, 455, 739 A.2d at 670 (recognizing correctness of jury
instruction so describing the third mens rea element), or, as described by
the trial court judge in this case, the knowing creation of a very high
risk of death or great bodily harm. The critical factor distinguishing
second degree murder from
voluntary manslaughter is not the mental state of the actor, but the
existence of mitigating circumstances. See id. at 451-52, 739 A.2d at 668
([V]oluntary manslaughter is composed of: adequate provocation; inadequate
time to regain self-control ('cool off'); actual provocation; and actual
failure to cool off. . . . [V]oluntary manslaughter had traditionally been
characterized as an intentional killing committed under extenuating
circumstances occasioning sudden passion or great provocation that negate
'malice.'") (emphasis added).
Defendant repeatedly claims that the mens rea he pled to encompassed a
degree and character of risk which constitutes simple recklessness. We
disagree. In light of the Shabazz trial court judge's parallel definition
of the third mens rea element possibility as a "wanton disregard of the
likelihood that the behavior might naturally cause death or great bodily
harm," id. at 449, 739 A.2d at 667, we distinguished "wanton" from
"reckless" as they apply to voluntary and involuntary manslaughter.
"Whereas the recklessness pertaining to involuntary manslaughter is conduct
that disregards the possible consequence of death resulting, the
wantonness pertaining to voluntary manslaughter is extremely reckless
conduct that disregards the probable consequence of taking human life."
Id. at 455, 739 A.2d at 670 (emphasis in original). In light of the higher
penalties associated with a second degree murder conviction, compare 13
V.S.A. § 2303(b) (establishing sentence range for second degree murder at
twenty years to life imprisonment, absent mitigating or aggravating
circumstances); with 13 V.S.A. § 2304 (establishing sentence range for
manslaughter convictions as between one year minimum to fifteen year
maximum imprisonment), this distinction is consistent with our recognition
that knowing or voluntary action involves a higher degree of culpability
than reckless or negligent behavior, and reckless action invokes lesser
criminal liability than knowing action. State v. Bolio, 159 Vt. 250,
252-53, 617 A.2d 885, 886 (1992). Here, the trial
judge properly characterized the mens rea requirement for second degree
murder as either intent to kill, intent to do great bodily injury, or
knowingly creating a very high risk of death or great bodily harm. In so
doing, he did not characterize any of the possible elements of mens rea as
recklessness or as engaging in conduct which disregarded a possibility,
rather than a probability, of death resulting. Defendant pled to
knowingly creating a very high risk of death or great bodily harm. The
instruction at issue here was in conformity with our contemporary
description of the mens rea for second degree murder, and, therefore,
there was no error in the Rule 11(c) colloquy.
Defendant also argues that because the factual basis of the offense
admitted by defendant during the colloquy consisted of simple
recklessness, the plea-taking colloquy failed to establish a factual basis
for the plea. See V.R.Cr.P. 11(f) ("Notwithstanding the acceptance of a
plea of guilty, the court should not enter a judgment upon such plea
without making such inquiry as shall satisfy it that there is a factual
basis for the plea."). We have held that Rule 11(f) requires not only that
a court perform an inquiry to satisfy that there is a factual basis for a
defendant's guilty plea, but also that the defendant understand that the
conduct admitted violates the law as explained by the court. State v.
Yates, 169 Vt. 20, 25, 726 A.2d 483, 486 (1999) (citing In re Dunham, 144
Vt. 444, 451, 479 A.2d 144, 148 (1984); In re Kasper, 145 Vt. 117, 120,
483 A.2d 608, 610 (1984)).
As previously discussed, there was no error in the definition of
second degree murder that was provided by the trial judge, and which the
defendant agreed could be proven by the prosecution. The record from the
plea hearing clearly shows not only that defendant was presented with the
correct elements of the crime pled, but also that he understood these
elements and believed the State could prove these elements at trial.
Furthermore, Dunham and Yates, which defendant relies upon for his
Rule 11(f) argument,
are distinguishable from the present case. In Dunham, the defendant pled
to second degree murder for his role involving the murder of an accomplice
to an earlier attempted burglary. At the change-of-plea hearing, a
written plea agreement was submitted to the court, in which defendant
agreed to plead guilty to second degree murder and to testify against
another defendant charged with the same murder, in exchange for an
agreed-upon sentence. At the hearing, the prosecutor read into the record
a description of the events constituting the offense charged. After
presenting a description of the events immediately preceding the murder,
the defendant testified briefly as to what he saw and did during that
time. After defendant testified, the prosecutor requested that the court
inquire as to the willfulness element of second degree murder, because the
prosecutor did not believe the defendant's testimony had established this
element. The record showed that there was no further inquiry made of
defendant, and that the prosecutor's request went unanswered. Dunham, 144
Vt. at 445-47, 479 A.2d at 145-46.
We reversed, vacating the judgment and sentence imposed, and granting
defendant leave to withdraw his guilty plea. In so doing, we recognized
that the court failed to comply with Rule 11(f) by not establishing a
"factual basis for the willful element of second degree murder." Id. at
448, 479 A.2d at 147. We held that:
Since the defendant's understanding of the elements of an offense
as applied to the facts goes directly to the voluntariness of
[the] plea, the record must affirmatively show sufficient facts
to satisfy each element of an offense. The requirement of
V.R.Cr.P. 11(f) involves an understanding by the defendant that
the conduct admitted violates the law as explained to him by the
court.
Id. at 451, 479 A.2d at 148.
In Yates, the defendant had pled guilty to aggravated domestic assault
and simple assault.
The charges arose out of an incident involving his then-wife and a friend
of hers. The charge of aggravated domestic assault was based on acts
committed by defendant against his then-wife, and the simple assault
charge was based on acts committed against her friend. At a status
conference, the court accepted the pleas, entered judgment, and sentenced
defendant according to the agreement. Approximately six months later,
defendant moved to withdraw his guilty plea to the aggravated domestic
assault charge. At the status conference where the pleas were accepted,
the court failed to make any inquiry into the facts concerning the
altercation with defendant's then-wife, instead soliciting facts which
concerned only the altercation with her friend. Yates, 169 Vt. at 23-24,
726 A.2d at 486.
While recognizing that a court may obtain facts about the case from
sources other than the defendant, such as prosecutor and presentence
reports, we held that "ultimately, the court's inquiry into the accuracy
of the plea must be addressed personally to the defendant." Id. at 24, 726 A.2d at 486. Yates reiterated the proposition that rule 11(f) requires
"the defendant admit to and possess an understanding of the facts as they
relate to the law for all elements of the charge or charges to which
defendant has pleaded." Id. "The accuracy of the factual basis goes to
the defendant's understanding of the relationship between the law and the
facts, which ultimately goes to voluntariness. The defendant's
understanding cannot be probed except through personal interrogation, which
then appears in the record of the proceedings." Id. at 26-27, 726 A.2d at
487-88. We held the court's failure to establish any factual basis for
the aggravated domestic assault charge was a total violation of Rule
11(f). Id. at 24, 726 A.2d at 486.
Neither Dunham nor Yates assists this defendant in his claim. In this
case, there was no failure to adhere to the requirements of Rule 11(f).
The record shows that the court fully engaged
the defendant in an inquiry on each of the elements of the crime being pled
to. The defendant acknowledged that there had been an unlawful killing of
Diaz, that he had perpetrated the killing, and that, in pointing a gun at
Diaz's face and pulling the trigger, he was knowingly creating a very high
risk of death or great bodily injury. These affirmations suffice to
support the factual basis for the crime of second degree murder, and in so
doing satisfy the requirements of Rule 11(f).
Defendant further argues that the plea colloquy constituted a
violation of due process, based on his aforementioned arguments of error.
For this proposition he cites Henderson v. Morgan, 426 U.S. 637 (1976),
which he argues is materially indistinguishable from the case at bar. The
defendant in Henderson appeared in state court, with counsel, and pled
guilty to second degree murder. In the colloquy with the trial judge, the
defendant stated that he understood that he was accused of killing the
victim, that he was waiving his right to trial by jury, and that he would
be sent to prison. There was no mention of the elements of second degree
murder. At a later hearing in federal district court, challenging the
plea, defendant testified that, had he known that intent to kill was an
element of second degree murder, he would not have pled guilty to that
crime. The United States Supreme Court stated that "such a plea cannot
support a judgment of guilt unless it was voluntary in the constitutional
sense." Id. at 644-45. It elaborated on the notion of the voluntary
nature of a guilty plea, describing a plea as involuntary "either because
the accused does not understand the nature of the constitutional
protections that he is waiving, or because he has such an incomplete
understanding of the charge that his plea cannot stand as an intelligent
admission of guilt." Id. at 645 n.13 (internal citations omitted). The
plea at issue, the Court stated, "clearly . . . could not be voluntary in
the sense that it constituted an intelligent admission that he committed
the offense unless the defendant received real notice of the true nature
of the charge against him, the first and most universally
recognized requirement of due process." Id. at 645 (internal quotations
omitted). The Court noted that there was no support in the record for a
finding that the defendant had the requisite intent to support the guilty
plea. There was no evidence that defendant had ever been informed of the
intent element of second degree murder, and therefore, "[s]ince [he] did
not receive adequate notice of the offense to which he pleaded guilty, his
plea was involuntary and the judgment of conviction was entered without
due process of law." Id. at 647. Justice Byron White's concurrence,
joined by Justices Potter Stewart, Harry Blackmun, and Lewis Powell,
further refined the issue as it pertains to the case at bar, stating:
The problem in this case is that the defendant's guilt has been
established neither by a finding of guilt after trial nor by the
defendant's own admission that he is in fact guilty. The
defendant did not expressly admit that he intended the victim's
death (such intent being an element of the crime for which he
stands convicted); and his plea of guilty cannot be construed as
an implied admission that he intended her death because the
District Court has found that he was not told and did not know
that intent to kill was an element of the offense with which he
was charged.
Id. at 649 (White, J., concurring).
The Henderson concurrence's description of that case clearly
illustrates its distinction from the case at bar. In the present case,
not only were all the elements of the crime pled to presented to
defendant, but the intent element was both presented and admitted to by the
defendant. There has been no claim made that the defendant did not intend
to kill the victim, as such intent was described to him, and he has not
claimed that he would not have pled to second degree murder even if there
had been an error in the colloquy, which we have held there was not. In
this defendant's plea colloquy, there was no lack of voluntariness as
described in Henderson. As we have found no error in either the Rule
11(c) colloquy or the Rule 11(f) inquiry into the factual basis of the
plea,
defendant's due process claim is without merit.
Affirmed.
FOR THE COURT:
_______________________________________
Associate Justice
------------------------------------------------------------------------------
Footnotes
FN1. During this portion of the colloquy, defendant stated that the act
he committed was in self-defense. After the judge explored this concept
with defendant, defendant stated that, now that he had "a clear mind," he
understood the nature of the defense of self-defense, and he also
understood that by pleading guilty he was giving up the right to make that
defense.
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