State v. Pitt
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State v. Pitt, No . 99, Septem ber Term , 2003. Op inion by Bell. CRIM INAL LAW - EVIDENCE - ADM ISSIBILITY OF STATEMENTS - PLEA AGREEMENTS Statements obtained pursuant to a p lea agreement con taining a provision that defen dant s statements are admissible at trial if the defendant breaches the agreement are in admissible where the State repudi ates the p lea agre emen t. IN THE COURT OF APPEALS OF MARYLAND No. 99 September Term, 2003 _______________________________________ STATE OF MARYLAND v. CHARLES LEE PITT Bell, C.J. Raker Wilner Cathell Harrell Greene Eldridge, John C. (retired, specially assigned), JJ. Opinion by Bell, C.J. Cath ell, J. , join s in th e res ult only. _______________________________________ Filed: February 1, 2006 The plea agreem ent plays a crucial role in the administration of b oth this State s and the nation s crimin al justice system. State v. Brockman, 277 Md. 687, 692-693, 357 A.2d 376 (1976). Indeed, courts have stated that plea agreements eliminate many of the risks, uncertain ties and prac tical burden s of trial, perm it the judiciary and prosecutio n to concentrate their resources on those cases in which they are most needed, and further law enforcement by permitting the State to exchange leniency for information and assistance. Id. at 693, 3 57 A.2 d at 381 . See also Brady v. United States, 397 U.S . 742, 752, 9 0 S. Ct. 1463, 1 471, 25 L. Ed. 2 d 747, 7 58 (19 70), People v. Selikoff, 35 N.Y.2d 227, 318 N.E.2d 784 (N .Y. 197 4), cert. denied, 419 U .S. 112 2 95 S . Ct. 806 42 L. E d. 2d 82 2 (197 5). Therefore, this Court has held that plea bargains, when properly utilized, aid in the administration of justice and, within reason, should be encouraged. Id. at 693, 357 A.2d at 381. Plea agreeme nts accoun t for the dispo sition of an o verwhe lming perc entage of all crimina l cases. See J. Bond, Plea Bargaining and Guilty Pleas ยงยง 1.02, 1.03, 1.07(2) (1975), A. Alschuler, Implementing the Criminal Defendant s Right to Trial: Alternatives to the Plea Bargaining System, 50 U. Chi. L. Rev. 931 (Summer 1983) (commenting that in some jurisdictions where plea bargaining has been prohibited, guilty pleas still account for a high percentage of felony convictions), S. Creaton, Plea Agreements: Progressing the Fight Against Crime or Bribing Witnesses?, 5 Suffolk J. Trial & App. Advoc. 37 (2000) (stating that plea bargains continue to increase in usage, accounting for an overwhelming percentage of guilty pleas in criminal cases), B. Kleinhaus, Two Masters: Evaluating Criminal or Civil Nature of the VWPA and M VRA Through the Lens of the Ex Post Facto Clause, The Abatement Doctrine, and the Sixth Amendment, 73 Fordham L. Rev. 2711 (May 2005) (stating that ninety-six percent of all federal criminal conviction s result from a plea agre ement by the defenda nt); see also State v. Rodriguez, 125 Md. App. 428, 446, 725 A .2d 635, 644 (1999). Plea bargains aid the system because the number of cases that go to trial are reduced, thus, preventing the courts from becom ing floo ded an d overc rowd ed. See Santobello v. New York, 404 U.S. 257, 260, 92 S. Ct. 495, 4 98, 30 L. E d. 2d 427 , 432 (197 1) ( If every crim inal charge were sub jected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number o f judges and cou rt facilities ). In Maryland, Md. Rule 4-243 prescribes the procedures to be followed and the conditions to be ob served regard ing plea agreem ents. Section (a) of that Rule, as relevant, provides: (a) Cond itions for A greemen t. (1) Terms. The defenda nt may enter into an agreement with the State's Attorney fo r a plea of g uilty or nolo contendere on any proper condition, including one or more of the following: (A) Tha t the S tate's Atto rney w ill amend the charging document to charge a specified offense or add a specified offense, o r will file a new charging d ocumen t; (B) That the State's Attorney will enter a nolle prosequi pursuant to Rule 4-247 (a) or m ove to ma rk certain charges against the defendant stet on the docket pursuant to Rule 4-248 (a); 2 (C) That the State's Attorney will agree to the entry of a judgment of acquittal on certain charges pending against the d efendan t; (D) That the S tate will not charge the defendant with the commission of certain other offenses; (E) That the State's Attorney will recommend, not oppose, or make no comment to the court with r espect to a particular sentence, disposition, or other judicial action; (F) That the parties will submit a plea agreement proposing a particular sentence, disposition, or other judicial action to a jud ge for con sideration pu rsuant to section (c) of th is Rule . Section (c) addresse s the effec t of a plea agreemen t and, in som e circumsta nces, its disposition. It provides: (c) Agreements of Sentence, Disposition, or Other Judicial Action. (1) Presentation to the Cou rt. If a plea agreement has been reached pursuant to subsection (a)(1)(F) of this Rule for a plea of guilty or nolo contendere which contemplates a particular sentence, disposition, or other judicial action, the defense counsel and the State's Attorney shall advise the judge of the terms of the agreement when the defendant pleads. The judge may then accept or reject the plea and, if accepted, may approve the agreement or defer decision as to its approval or rejection until after such pre-sentence proceedings and investigation as the judge directs. (2) Not Binding on the Court. The agreement of the State's Attorney relating to a particular sentence, disposition, or other judicial action is not binding on the cou rt unless the ju dge to whom the agreem ent is presen ted approv es it. (3) Approval of Plea Agreement. If the plea ag reement is 3 approved, the judge shall embody in the judgment the agreed sentence, disposition, o r other judicia l action encompa ssed in the agreement or, with the c onsent of the parties, a disposition more favorable to the defendant than that provided for in the agreeme nt. (4) Rejection of Plea Agreement. If the plea agreement is rejected, the judge shall inform the parties of this fact and advise the defendant (A) that the court is not bound by the plea agreement; (B) that the defendant may withdraw the plea; and (C) that if the defen dant persists in the plea of guilty or nolo contendere, the sentence or other disposition of the action may be less favorable than the plea agree ment. If the defendant persists in the plea, the court may ac cept the plea of guilty only pursu ant to Rule 4-242 (c) and the plea of nolo contendere only pursuant to Rule 4-2 42 (d). (5) Withdrawal of Plea. If the defendant withdraws the plea and pleads not guilty, then upon the objection of the defendant or the State m ade at that tim e, the judge to whom the agreement was presented may not preside at a subsequent court trial of the defendant on any charges involved in the rejected plea agreem ent. It is well settled in Maryland that plea agreements are at times entitled to judicial enforc emen t. Brockman, 277 Md. at 694, 357 A . 2d at 38 1. See Tweed y v. State, 380 Md. 475, 488, 845 A.2d 1215, 1222 (2004) (holding that where the defendant has not received the benefit of a plea barg ain to which h e is entitled, the d efendan t ordinarily may elec t to have the barg ain spe cifically en forced or with draw th e guilty ple a), Jackson v . State, 120 Md. App. 113, 133, 706 A.2d 156, 166 (1998) (holding that enforcing pleas maintains the interest of the courts in sustaining the credibility of th e plea barg aining proc ess and the indispensa ble role that it plays in the management of an otherwise ove rwhelming case load). In fact, our 4 cases, and those of the Court of Special Appeals, make clear that we adhere to, and apply the teachings of, Santobello , 404 U.S. at 262, 92 S. Ct. at 499, 30 L. Ed. 2d at 433, that when a plea rests in any significant degree on a promise or agreement of the prosecu tor, so that it can be said to be part of the inducement or consid eration, s uch pro mise m ust be f ulfilled. See, e.g., Miller v. Sta te, 272 Md. 249, 253-255, 322 A.2d 527 (1974) (holding that when a defendant s guilty plea rests in part on the prosecution s promise not to make any recommendation as to senten cing or disp osition, and th e State violates its promise, the accused has a remedy, he or she may elect to have the guilty plea vacated o r allow it to stand and have th e agree ment e nforce d at re-se ntencin g), State v. Bittinger, 314 Md. 96, 101-102, 549 A.2d 10, 12 (1988) (holding that a defendant successful in challenging the plea must realize that the remedy is ordinarily to place the parties in their original position). The enforceability of the agreement is not the matter at issue in this ca se; it presents a question invo lving the adm issib ility of state men ts ma de by the accused during his plea negotiations. Such stateme nts gen erally are in admiss ible. Md. Rule 5-410;1 Fed. R. Evid. 1 Maryland Rule 5-410, Inadmissibility of Pleas, Plea Discussions, and Related Statements, provides: (a) Generally. Except as otherwise provided in this Rule, evidence of the following is not admissible against the defendant who made the plea or was a participant in the plea discussions: (1) a plea of guilty which was not accepted or which was later withdrawn or vacated; (2) a plea of nolo contendere, except as otherwise provided in these rules; (3) any statement made in the course of any proceedings under Rule 4-24 3 or comparab le state or federal procedure 5 410;2 see e.g., Elmer v. S tate, 353 Md. 1, 724 A.2d 625 (1999) (discussing the application regarding a plea specif ied in subse ction (a)(1) o r (a)(2) of this Rule, except in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath and on the record; or (4) any statem ent made in the cours e of plea d iscussions w ith an attorney fo r the prosec uting autho rity which do n ot result in a plea of guilty or nolo contendere or which result in a plea of guilty or nolo contendere which was not accepted or was later withdrawn or vacated. (b) Exceptions. (1) A statement of a type specified in subsections (a)(3) or (a)(4) of this Rule is not excluded under this Rule in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement o ught in fairn ess be con sidered w ith it; (2) A statement of the type specified in subsection (a)(3) of this Rule may be admissible in a subsequent civil proceeding as a prior inconsistent statement, if offered to attack the credibility of the p erson wh o made th e statemen t. (c) Definition. For purposes of this Rule, a guilty plea that is the subject of an appeal from the District Court to the circuit court is not considered withdr awn o r vacate d. 2 Federal Rule of Evidence 410, Inadmissibility of Pleas, Plea Discussions, and Related Statements, provides: Excep t as otherw ise provide d in this rule, ev idence of the follow ing is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions: (1) a plea of guilty which was later withdrawn; (2) a plea of nolo contendere; (3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or (4) any statem ent made in the cours e of plea d iscussions w ith an attorney fo r the prosec uting autho rity which do n ot result 6 of Md. R ule 5-4 10), see also United States v. So ckwell, 699 F .2d 213 (5th Ci r. 1983 ), cert. denied 461 U .S. 936 , 103 S . Ct. 2106, 77 L. Ed. 2d 311 (1983). There are exceptions, however, one of which this Court has recognized. In Wright v. S tate, 307 Md. 552, 515 A.2d 1157 (1986), where the plea agreement, which the defendant breached, provided that the defen dant s incu lpatory statemen ts would be used against him in such an event and the government neither rescinded nor breached the agreeme nt, we held those stateme nts we re adm issible ag ainst the defen dant. Id. at 580, 515 A.2d at 1171 . On the other hand, in Allgood v. State, 309 Md. 58, 52 2 A.2d 917 (1 987), where the State repudiated the plea agreement, despite reco gnizing that the State s repudiation of the plea agreement .... was not improper, id. at 71, 522 A.2d at 923, given the defendant s failure to pass a polygraph exam ination, which the trial court concluded was a part of t he agre emen t, id. at 70-71, 52 2 A.2d a t 923, the C ourt reache d the opposite conclusion; we held that the inculpa tory statements made by the defen dant to a grand jury pursuant to the plea agreement were inadm issible at t rial. Id. at 82, 522 A.2d at 928. The in a plea of guilty or which result in a plea of guilty later withdrawn. How ever, such a statement is a dmissible (i) in any proceed ing whe rein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the reco rd and i n the pr esence of cou nsel. 7 Allgood plea agreement did not contain the provision that was in the plea agreement at issue in Wright, specifying that, in the event of breach, the inculpatory statements could be used against him at trial. The plea agreeme nt sub judice does. Consequently, we must resolve the proper balance when the defendant breaches the plea agreement and the State, in response, rescinds the agreeme nt. A. Charles Pitt ( Pitt ), the respondent, was arrested on an arrest warrant, prior to the search of his residence pursuant to a search and seizure w arrant, issued in connectio n with the investigation of a burglary of a Joppa, M aryland hom e. At his initiation and b ased on h is statement that he had knowledge and informa tion regard ing the Jop pa burglary, an d his expression of an interest in cutting a deal, a plea agreement was drafted, which, after the respondent was given Miranda warnings, 3 was signe d by both the re sponden t and the lead investigating officer an d later by the A ssistant State s A ttorney assigned to the case. Under that agreement, the respondent committed fully and truthfully [to] disclose to the State any and all knowledge and information he may have concerning the investigation [of the Joppa burglary] and, upon his comp lete and truthf ul coopera tion, the State a greed to sch edule a bond hearing, at which it would recommend personal recognizance for the respondent and, subs equently, to nol pros all charges against the respondent arising from the investigation. 3 Miranda v. Arizona, 384 U.S. 436, 86 S . Ct. 1602, 16 L. Ed. 2d 694 (1966). 8 The agreement also specifically provided that, in the event of the respondent s breach, by knowin gly withholding evidence from the State or by being less than completely truthful, the State could prosecute [the respondent] for any offen ses in whic h the State a greed no t to prosecute in exchange for cooperation by [the respondent] with the investigation. It also permitted the State to u se against [th e respond ent] in all prosecutions the information and documents that he has disclosed to the State during the course of his cooperation. After the plea agreement was executed, the respondent provided the State with information implicating an acquaintance, Jerome Bagley ( Bagley ), whom he indicated purchased a cellular phone, using a checkbook stolen in the burglary, and had a gold watch from the burglary hanging from the rear view mirror of his automobile. He also informed the State tha t Bag ley ha d purcha sed o ther item s wit h the stole n checks and paw ned jewelry, the origin of which he claimed not to have know n. Additionally, he accompanied the police to Bagley s home, where a sketch of the watch hanging from the rear view mirror was made, and identified by the victims. With this information and corroboration of some of it, the police obtained and executed an arrest warrant for Bagley and a search & seizure warrant for his hom e. After Bagley was questioned, the lead investigator became concerned that the respondent may not have told us everything as he was required to do by the agreement. He may have kno wledge c oncerning where th e property w as and ad ditional information concerning the burglary. When the respondent was confronted with this concern and 9 requested to submit to a polygraph te st,4 the respondent immediately acknowledged that he had not disclosed everything. Moreover, he admitted committing the burglary, with an accomplice. Nevertheless, the respon dent stated that he wan ted to keep his earlier deal, adding that he knew more information, but he was going to hold back and he wan ted us to honor this deal. Having been informed of the foregoing, the A ssistant State s Attorney considered the appellant s contract null and void due to him not comp letely disclo sing the inform ation. That conclusion was communicated to the respondent by the lead investigating officer, who inform ed him that the a greem ent had been te rminate d. All of the resp ondent s sta tements to th e police w ith respect to the burglary investigation were admitted at his trial and he was subsequently convicted of first degree burg lary, theft over $ 500, a nd ma licious d estructio n of pr operty. The respondent noted an appeal to the Court of Special Appeals, which reversed the judgments of the C ircuit Court for Harfo rd Cou nty. Pitt v. State , 152 M d. App . 442, 83 2 A.2d 267 (2 003). The interm ediate appellate court concluded that, although inducements in the context of plea agreements are proper, when the State rescinded the plea agreement, statements obtained und er it immedia tely lost their voluntary status and became inadmissible at trial. Id. at 458, 832 A.2d at 277. It relied largely on Wright and Allgood. 4 Another provision of the plea agreement required that the respondent submit to a polygraph examination. 10 We granted the State s P etitio n for Wr it of C ertio rari in ord er to address, and clari fy, the admissibility of statements made during plea negotiations when the plea agreement contains a provision making such statem ents admis sible at trial in th e even t of brea ch. State v. Pitt, 378 Md. 617, 837 A.2d 92 8 (2003). W e shall affirm the judgm ent of the in termediate appellate co urt. B. The State claims that neither Wright nor Allgood are directly on point and, thus, are wholly inapplicable. Indeed, it says, they are factually distinguishable from the case sub judice - in Wright, the defendant rescinded the agreement, here, it was the State ; in Allgood, the plea agreement did not contain the clause present in Wright, permitting the state to use the inculpatory statements made pursuant to the a greemen t in the even t of breach , in this case, it does. Consequently, the State subm its, neither Wright nor Allgood or their combination requires the result reached by the C ourt of Special Appeals. The State further argues that the pertine nt inquiry in reso lving the issu e of the ad missibility of statements made during plea nego tiations or in reliance on a plea agreement should be which party breached, rather than which party rescinded, the agreement. Using that approach, because the respondent breached the plea agr eement, the State maintains, the statements are admissible. It submits, moreover, that, even if rescission is determined to be the pertinent inquiry, the responde nt, by agreeing to the use of his inculpatory statements against him in the event that 11 he brea ched th e agree ment, w aived a ny protec tion pu rsuant to the plea agreem ent. The responde nt rejoins that Wright and Allgood are dispositive of this case. Therefore, he urges, because the State rescinded the plea agreement, his statements w ere inadmissib le in the State s case-in-chief, and, therefore, the trial court s denial of his motion to supp ress wa s impro per. The starting point of our analysis is Wright and Allgood. In Wright v. S tate, the Court of Appea ls held that when a defendant reneges on a plea agreement and the plea agreement provides f or the use, by the State, agains t the defen dant, of inculpatory statements in that event, statements he made when negotiating and performing the plea agreement were admissible against him at trial, the State having neither rescinded nor breached the agreement. 307 Md. at 584-585, 515 A.2d at 1173-1174. Kenneth Coley ( Coley ), one of thre e co-defe ndants charged with felony murder, premeditated first degree murder, and attempted robbery, had entered into a plea agreement with the State, pursuant to which he agree d to give a full statement and testify both before a grand jury and at trial in exchange for the State s promise to accept a guilty plea to second degree murder. H e made inculpatory statements concerning his role in the charged crimes. The plea agreement explicitly stated that if Coley broke his promise and breached the plea agr eement, the State could use any and all of his statements against him at trial. Coley reneged and rescinded the agreement by pleading not guilty and choosing to stand trial. He moved to suppress all the inculpatory statements he had made, arguing that they were involuntary. 12 Although acknowledging that he had been given Miranda warnings, Coley maintained that his plea was induced by the State s promise to accept a second degree murder plea. 307 Md. at 579, 515 A.2d at 1171. Thus, he argued, relying on the rule in Hillard v. Sta te, 286 Md. 145, 406 A.2d 415 (1979), 5 his statements made in reliance on the rescinded plea agreement were rendered inadmissib le as a resu lt of this in ducem ent. Re jecting th ese con tentions , the trial court denied the sup pressio n motio n and th e statem ents w ere adm itted at tria l. This Court recognized that the circumstances surrounding Coley s plea agreement 5 In Hillard, this Court held that promises of help or other advantages rendered a confession inadmissible. 286 Md. at 153, 406 A.2d at 420. Other cases have demo nstrated this poin t. See Stokes v. S tate, 289 Md. 155, 423 A.2d 552 (1980) (holding inadmissible inculpatory statements resulting from a promise made by police that defendant s wife would not be arrested if defendant produced drug evidence, and rejecting the State s argument that benefit to a family member was not the type of advantage contemplated in Hillard); Nicholso n v. State, 38 Md. 141 (1873) (excluding statements m ade by defe ndant as a re sult of police threat that def endant co nfess first to avoid harm resulting fro m co-def endants co nfession); Biscoe v. S tate, 67 Md. 6, 8 A. 571 (1887) (ho lding inadm issible stateme nt procured under a h ope of fa vor); Watts v. Sta te, 99 Md. 30, 57 A. 542 (1904) (holding inadmissible confession that was induced by newspa per reporter) ; Dobbs v. State, 148 Md. 34, 129 A. 275 (1925) (applying the inducement rule to the conduct of the State s Attorney, who told the defendant, Tell the truth about it. You ve go t nothing to fear if you tell the truth, and you we ren t in it ); Lubinsk i v. State, 180 Md. 1, 22 A.2d 455 (1941) (holding inadmissible a confession obtained by a police officer who told defendant that an admission was not necessary but certainly favora ble); Streams v . State, 238 Md. 278, 208 A.2d 614 (1965) (holding involuntary statements obtained by police officer who promised probation if defendant cooperate d and long er sentence if he did no t cooperate ); Kier v. State , 213 Md. 556, 132 A.2d 494 (1957) (holding inadmissible statements made by defendant while under medical examination, where doctor offered to stop the examination if defendant confesse d); Edwar ds v. State, 194 M d. 387, 71 A .2d 487 (1 950) (hold ing inadm issible confession resulting from police showing defendant a letter from convict displaying convict s regret at not confessin g when he h ad the opportunity). 13 negotiation were different from those surrounding the defendant s confession in Hillard: Under the princip le applied in the [Hillard], if the [State] h ad simply told Coley that a confession and guilty plea to second degree m urder wo uld result in his not being prosecuted for first degree murder, and if Coley had confessed because of that inducem ent, his confession would be deemed involuntary and inadmissib le at his trial. The instant case, howev er, involves s omething quite different ... Here, the inducement by the State took the form of promises under a negotiated plea barga in agreem ent, made in exchange for Coley s promises under that agreement. The agreement was sanctioned and regulated by Maryland Rule 4-243. The mutual promises were specifically authorized by Rule 4-243. The State neither r escinded n or breache d the agree ment. Fina lly, the agreement specified that if Coley reneged, his inculpatory statements c ould be used against him at trial. None of the Maryland cases relied upon involved circum stances like thes e. 307 Md. at 584-585, 515 A.2d at 1173-1174. Observing that previou s Maryland decisions th at held that inducements by the State were imprope r did not inv olve induc ements tha t occurred d uring a plea negotiation, the Court held, [i]t would be anomalous .... to hold that the State s actions were improp er when they are expressly authorized by law (i.e., Rule 4-243) and when the State neither rescinds nor breaches the plea bargain agreement. 307 Md. at 585, 515 A.2d at 1174. Although the Court re cognized that defen dants wo uld be reluc tant to enter plea bargaining agreements if the State could thereafter rescind or breach the agreements, and then use at trial the defendant s inculpatory statement made as part of the agreement, 307 Md. at 586, 515 A.2d at 1174-1175, it also saw that Coley s plea contained an agreement that provided for such statements to be admitted at trial in the event of breach and that th e State neither rescinded nor breached the agreement. 307 Md. at 586, 515 A.2d at 1174-1175. 14 Concern ed that def endants would thereby be en couraged to rescind p lea agreem ents without justification, we declined to extend Hillard to the Coley situation, where the defendant breaches a plea agreement with a provision for the use against the defendant of any inculpatory statement by the State and the State neither breaches nor rescinds the plea agreement. We concluded that when plea agreements contain a clause that provides for statements made during plea negotiations to be used at trial in the event of a breach by the defendant and the State neither rescinds nor breaches the agreement, such statem ents are admissible at trial. 307 Md. at 585-587, 515 A.2d at 1175. In Allgood v. State, the Court held that, w here the Sta te repudiates a plea agre ement, inculpatory statements made by the defendant to a grand jury pursuant to that plea agreement are not admissible at trial. Allgood was arrested and charged with, inter alia, first degree murder and robbery with a deadly weapon. He entered into a plea agreement with the State, pursuant to which, in exchange for his truthful testimony and full disclosure of what he knew of the murder, the state would pursue only the manslaughter charge against him and agree to a probationary, rather than a prison, sentence.6 After accepting the plea and providing the 6 The plea agreement stated the following: The Defendant, George Allgood, in case # 18335307-11, agrees to testify truthfully before the Grand Jury and in all criminal proceedings against those suspected and or ch arged w ith the murd er of M r. Marion H arris on or ab out Nov ember 16 , 1983, in Baltimore City. In addition to testifying truthfully as stated heretofore, George Allgood also agrees to testify to everything he remembers or should reasonably remember regarding the murder of Mr. Marion Harris. George Allgood also agrees to reveal to the State's Attorn ey Office o f Baltimo re City, prior to an y sworn testim ony the truth concernin g the murd er of M r. Marion H arris leaving n othing ou t that he reaso nably 15 State with information pursuant to it, the State, suspicious and concerned that Allgood was not being completely forthcoming, demanded that he take a polygraph test. When Allgood subseque ntly took the po lygraph test and failed, the Sta te, deeming the plea agr eement to have been brea ched by A llgood, 309 Md. at 64 , 522 A.2d at 920, wro te a letter to Allgood s attorney to officially notify you that there is no plea agreement concerning this murder case between the State and you r client, G eorge A llgood . (Emp hasis in o riginal). Id. Further, the letter advised: The [State] .... had discussed a plea agreement with you concerning this case which was predicated upon your client successfully passing a polygraph examination administered by Corporal Sheldon of the Maryland State Police. As you are aware, on July 3, 1984, your client took a polygraph examination and C orpora l Sheld on fou nd that yo ur client 's answ ers indic ated de ception ... Accord ingly, your client's failure to pass the polygraph examination is a material breach of any plea agreement and renders such agreement null and void. The State intends to call for trial this case as well as the case of the co-Defendant, Michael Walker, on Indictment Nos. 18417201-03 on September 11, 1983 in Part 3. Furthermore, the State intends to take the steps necessary to have George Allgood returned from the Navy to the Baltimore City Jail pe nding t he trial o n Septe mber 1 1, 1984 . Id. should remem ber. The State's Attorney's Office for Baltimore City, as considerations for the above, agrees to proceed against George Allgood only on the charge of manslaughter. This office also agrees to a suspended sentence along with a probationary period in lieu of any sentence involving actual incarceration after he enters a guilty plea to manslaughter in the case involving the death of Mr. Marion Harris. Further, this office will recommend the release of G eorge A llgood from jail to the U.S . Navy on Ju ne 11, 198 4. Finally, this office will write a letter to the U.S. Navy citing George Allgood's cooperation in pursuing the conviction of those responsible for the murder of Mr. Marion Harris. 309 Md. at 58, 522 A.2d at 917. 16 Allgood denied breaching the agreem ent. 7 He mo ved, on the contrary, to enforce the plea agreement. That motion was denied, and he was convicted. Comparing Coley s situation to Allgoo d s, this Cou rt found that, [t]he decisive difference between Coley's situation and that of Allgood is that the defendant reneged on the agreement in the form er but the Sta te termina ted the a greem ent in the latter. In Coley's case, the State neither rescinded nor breached the agreement. 309 Md. at 77, 522 A.2d at 926, citing Wright, 307 Md. at 586, 515 A.2d at 1174. In Allgood, the State flatly rescinded the agreement in a letter to def ense cou nsel, and the reafter refu sed to subm it the plea agreement to the trial co urt. The State pr oceed ed to try A llgood , using his incu lpatory statemen ts agains t him, de spite his desire to plead p ursuan t to the ag reeme nt. The Allgood court acknowledged that the Coley plea agreement contained a provision the Allgood plea did not, it "specified that if Coley reneged, h is inculpatory state ments cou ld 7 There was a dispute, which the trial court resolved, as to whether the failure of the polygraph test, the proffered basis by the State, was a part of the plea agreement. 309 Md. at 68-70, 522 A.2d at 921-923. The State argued that the purpose of the polygraph was to determine whether [Allgood] was lying or not, and the purpose of determining whether he was lying or not was to determine whether we were bound by the agreement. 309 Md. at 67-68, 522 A.2d at 921. Allgood maintained that it was not, that the polygraph test was no t part of the p lea agreem ent, and that its re sults did not p lay any role in determining whether or not Allgood s plea agreement was valid or invalid. 309 Md. at 68, 522 A.2d at 922. He submitted that he agreed to the test so that he could be transferred to the Nav y and out of c ity lockup and that he und erstood the polygraph o nly to relate that req uest. [cite] Th e trial court fou nd that there was a ple a agreem ent prior to its withdrawal by the State, that the polygraph test was part of the agreement, and that the parties were to be guided by the results. 309 Md. at 70-71, 522 A.2d at 923. We determined that the trial court s findings in that regard were not clearly erroneous. 309 Md. at 72, 522 A.2d at 923-924. 17 be used against him at trial." 309 Md. at 77, 522 A.2d a t 926, citing Wright, 307 Md. at 585, 515 A.2d 1157. Nevertheless, we determined the teachings of Wright to be: 1) When statements are obtained from a defendant upon promises made him by the State by way of a plea bargain agreement, the statements, in the light of Rule 4-243, are not inadmissible per se, under the induce ment doc trine, in the State's case in chief at trial on the merits. 2) When the State rescinds, repudiates, or breache s the plea ba rgain agreeme nt, for whatever reason, after the statements are so obtained, the statements, as a matter o f law, are in admissible per se in the State's cas e in chief a t trial on th e merits . 309 Md. at 78, 522 A.2d at 926-27. We explained how we arrived at that distillation: Wright fully appreciated that promises to the defendant of the nature u sually encompassed in plea bargain agreements certainly suffice to induce a statement obtained, so that, ordinarily, the inducement most assuredly would be improper. The intervention of a plea bargain agreeme nt, howev er, expressly authorized by law, serves to make the inducement proper. Thus, the plea agreeme nt, in itself, does not render the statement inadmissible. On the other hand, Wright recognized the chilling effect on plea bargaining were the S tate permitted to enter into a plea agreement, obtain a statem ent thereunder, abort the agreeme nt, and then use the statem ent in its case in chief at trial on the merits. The reason for the State's repudiation of the agreement is immaterial with respect to the admissibility of the statement. Whether its reason be sound or unsound, technical or substantial, in good faith or simply because the prosecutor had misgivings or a change of heart, or was utterly arbitrary, is of no matter. The justification vel non of the rescission, repudiation, or breach of the agreement by the State goes to whether the defendant is entitled to have the agreement enforced; it does not affect the admissibility of the statement obtained under it. This is in accord with the rationale of Wright. Id. at 78-79, 522 A.2d at 927. 18 C. Like the Court of Special Appeals, we are unpersuaded that, by including in the plea agreement a clause, like that inserted in the Coley plea agreement, permitting the State to use any inculpatory statements made by the respondent should he breach the agreement, the respondent s inculpatory statem ents are rend ered adm issible notw ithstanding the State s rescission of the plea agreement. That clause, in other words, is not dispositiv e. It is Allgood s analysis of Wright, reconciling the two situations those cases presented, makes that quite clear. A s indica ted, Allgood interprets Wright as making clear that w hen the Sta te rescinds a plea agreeme nt for any reaso n, the obtaine d statemen ts are rendere d inadmiss ible per se. 152 Md. App. at 459, 832 A.2d at 277. Again, as already seen, it explain ed clearly its basis for that conclusion: The reason for the State's repudiation of the ag reement is immaterial with respect to the admissibility of the statement. Whether its reason be sound or unsound, technical or substantial, in good faith or simpl y because the prosecutor had misgivings or a change of heart, or was utterly arbitrary, is of no matter. The justification vel non of the rescission, repudiation, or breach of the agreeme nt by the State goes to whether the defendant is entitled to have the agreement enforced; it does not affect the admissibility of the statement obtained under it. This is in accord with the rationale of Wright. 309 Md. at 79 , 522 A.2d at 927 (emphasis added ). Wright controls the situation in which a defendant breaches a plea agreement containing a provision burdening that defendant s breach with the admissibility of the inculpatory statements he or she made pursuant to the plea agreement, and there has been no breach or rescission by the State: the plea is rendered invalid in favor of the State, the 19 admissibility clause is triggered, and as a result, the defendant s statements are admissible. Allgood controls, however, where the State does breach or rescind the plea agreement, even though the defen dant s brea ch of the a greemen t may have ca used or justif ied the State s rescission and even though the defendant s breach would have permitted the admission of his or her inculpatory statements: the defendant s statements are inadmissible, the plea agreement having been being rendered invalid by virtue of the rescission. Neither Allgood nor Wright is compromised by this decision. If there has been no breach or rescission by the State, the defendant s statemen ts, under the express provision , are admitted, consistent with Wright. If the State rep udiates, rescinds, or breaches for any reason, including because it believed, in good faith, that the defendant had breached first, the statements are inadm issible to protect the d efendan t s Fifth Amendm ent interests ( Wright recognized the chilling effect on plea bargaining were the State permitted to enter into a plea agreeme nt, obtain a statement thereunder, abort the agreement, and then use the statement in its case in chief on the merits ). 309 Md. at 79, 522 A.2d at 927. D. The State rel ies on tw o cases , People v. Saunders, 482 N.E.2d 85 (Ill. App.1985) and McGowan v. State, 706 So.2d 231 (Miss. 1997), as persuasive authority, as, it proffers, they demons trate how other courts, in analyzing cases where the defendant, as part of the plea agreeme nt, agreed to the admissibility of his or her inculpatory statements in the event of the 20 defendant s breach, they fo cused prim arily on the element of breach. We are not persuaded that these cases support using breach as the dispositive element in determining the admissibility of statements made during or pursuant to a plea agre eme nt. O n the contrary, they provide support for con sidering rescission as the dispositive fac tor. In Saunders, a negotiated plea agreement provided that the defendant, Saunders, would give a complete statement to the authorities regarding the murder with which he was charged, in exchang e for wh ich, the State promised favorable pretrial release and sentencing considerations. 482 N.E.2d at 88. Prior to trial, he moved to suppress statements made during plea negotiations with the State, alleging that his prior trial testimony against a codefendant and statements mad e to the prosecutor w ere violative of Supreme Court Rule 402 (f)[8] and principles of due process and voluntariness, as they were induced by promises of leniency by the Sta te, whic h were not fulf illed. Id. at 87. It was disputed whether Saun ders had fully cooperated, the defendant alleging that he had and the State maintaining that he had not, as required by the plea agr eement, given a co mplete statement p rior to the arrest o f his co-def endan ts. Saun ders s m otion w as deni ed and he wa s conv icted. 48 2 N.E .2d at 89 . 8 Illinois Supre me Cou rt Rule 402 (f) provide s: If a plea d iscussion do es not result in a plea of g uilty, or if a plea of guilty is not accep ted or is with drawn, o r if judgme nt on a plea of guilty is reversed on direct or collateral review, neither the plea discussion nor any resulting agreement, plea, or judgment shall be admissible against the defen dant in a ny crimin al proce eding. 21 On appeal, the Illinois Appellate Court concluded that Supreme Court Rule 402 (f) was not applicable in the matter of the admissibility of the defendant's prior testimony and statement to the prosecutor. It explained: This is not a situation where the agreement has been withdrawn or unaccepted by the court, bu t is rather a situatio n where the defen dant himse lf was in breach of the agre ement. Being in this position, the defenda nt cannot c omplain about the State's failure to live up to its end of the bargain. Further, the defe ndant's testimony, although made af ter and purs uant to the agreement, was not made w hile he was negotiating over the disposition of his case. Thus, the purpose of the ru le, i.e., to encourage the negotiated disposition criminal cases, would not be served by rendering the statements inadmissible. 482 N.E.2d at 94. In reaching this conclusion, the court relied on, adopting the rationale of, United States v. Stirling, 571 F.2d 708 (2d Cir . 1978) , cert. denied 439 U.S. 824, 99 S. Ct. 93, 58 L. Ed. 2d. 116 (1978) and United S tates v. Dav is, 617 F.2d 677 (D.C. Cir. 1979). Saunders, 482 N.E.2d at 94. In Stirling, the defendant failed to plead guilty, thus violating the terms of a plea agreement. The court opined on that violation and its consequence, as follows: All [the defendant] had to do was live up to his en d of the ba rgain. His failure to do so justly exposed him to pro secutorial use of his Gran d Jury testimo ny.... It may be true th at [the defe ndant] w ould not h ave testified before the Gra nd Jury h ad it not b een fo r the plea agreem ent.... [The defenda nt] voluntarily negotiated his plea agreement...and voluntarily decided to violate his ple a agreem ent. He could have relied on the agreement to protect himself .... His bre ach of the agre emen t remov ed that p rotectio n. 571 F.2d at 732-733. Addressing the plea agreement violations by the defendants in that case, the Davis court observed: Excluding testimony made after - and pursuant to - the agreement would not serve 22 the purpose of enco uraging comp romise...such a rule wo uld permit a defenda nt to breach his bargain with impunity: he could renounce the agreement and return to the status qu o ante w henev er he ch ose.... Id. at 685. The Saunders court took note, and emphasized, that the breach by the defen dants in Stirling and Davis negated a ny failure of co mpliance on the State s part. 482 N.E.2d at 95. The State in this case also relies on McG owan v . State, supra, a robbery conspiracy and murder case, that also relies on the rationale of both Stirling and Davis. 706 So.2d at 239-241. There, the defendant entered into a plea agreement pursuant to which, in exchange for his cooperation and testimony against the other robbers at any subsequent trial, he was allowed to plead guilty and receive a recomm ended ligh ter sentence , thus avoidin g a possible capital senten ce. 706 So.2d at 233. W hen, however, the defendant breached the plea agreement by refusing to testify against a co-conspirator, his guilty plea was vacated, the original charges were reinstated and he was tried and, with the use of the statements he made during plea negotiations, convicted of capital murder. 706 So.2d at 233-234 . Before trial, the defendant moved to suppress the statemen ts he gave after his guilty plea. The trial court denied that motion and the Supreme Court of Mississippi affirmed that ruling. 706 So.2d 231. In so doing, it opined, even though [the defendant s] agreement did not include language that information obtained could later be used, it appears fundamentally fair that such statements g iven after the plea agree ment be a dmissible. 7 06 So.2d at 241. Acc ordingly, the court adopt[ed] the view that where a defendant willfully breaches a plea 23 bargain agreeme nt, statements made by the defendant after a valid plea agreement has been entered be admissible at the later trial of the defendant if voluntarily made. Id. Neither Saunders nor McGowan is persuasive. First, their basic premise and approach is directly contrary to this C ourt s prece dents. Wh ile we have recognized that a rescission of a plea a greem ent by the State ha s conse quenc es, Allgood, 309 Md. at 78-79, 522 A.2d at 927, they, both cases, focus only on the defendant s breach, and, in that context, emphasizing the need to disadvantage the defendant as a result of that breach, excuses the State s failure to comply with its obligations under t he agre emen t. Saunders, 482 N .E.2d a t 93-94 , citing Stirling, 571 F.2d at 732-733, Davis, 617 F.2d at 685. M oreover, this Court has specifically and clearly prescribed the disadvantage that a defendant will suffer should he or she breach his or her plea agreement: he or she loses the entitlement to have the plea agreement enforc ed, Allgood, 309 Md. at 74, 522 A.2d at 924, and, if the plea agreement so provides, and the State has not breached or rescinded the agreement, his or her statements made pursuant to or during the plea agreement or negotiations may be used b y the State at trial in its case in chief. Id. at 77, 522 A .2d at 926; Wright, 307 Md. at 586, 515 A.2d at 1174-1175. We hav e also clearly prescribed the effect of the State s rescission, repudiation or breach, for whatever reason, of a plea agreement after the defendant has made statements pursuant to the agre emen t: the state ments a re inadm issible in the State s case in chief. Allgood, 309 Md. at 78, 52 2 A.2d at 927. A gain, [t]he justification vel non of the rescission, repudiation, or breach of the agreement by the State goes to whether the defendant is entitled to have the 24 agreement enforced; it does not affect the admissibility of the statement obtained under it. Id. at 79, 52 2 A.2d at 927. The effect of Allgood and Wright is to ensure that neither the defendant nor the State benefits from b reachin g the ple a agree ment. A defendant who breaches a plea agreement loses his or her entitlement to enforce the agreement and, if the agreement so provides and the State has not also breached, rescinded, or repudiated the agreement may have any plea related statements used against him or her at trial. On the other hand , where the State breaches, rescinds or repudiates the ag reement, it will lose the benefit of the d efendant s inculpatory stateme nts. Where b oth breach, the parties are returned to square one, the status quo ante.9 We do not sh are the State s concern that, under the Allgood approach , defenda nts will be motivated to breach with imp unit y in order to compel the State to rescind the agreeme nt. It is difficult to see what a defendant would gain from doing so. More to the point, aware of the groun d rules, it is difficu lt to imagine that the S tate would fall prey to such a p loy. E. Fina lly, the State argues that even if the adm issib ility of the statem ents mad e by a defendant pursuant to a plea agreement turns on whether the State rescinded the agreeme nt, 9 The courts in People v. Saund ers, 482 N.E.2d 85 (Ill. App.1985) and United States v. D avis, 617 F.2d 677 (D.C. Cir. 1979) find the idea of defendant s breach[ing] with im punity to be retur ned to th e status q uo ante to be ap palling, t hus, im proper result. 25 the statements may nevertheless be admissible, if the d efen dant waives their inad miss ibility. Relying on United S tates v. Me zzanatto, 513 U.S. 196, 115 S. Ct. 797, 130 L. Ed. 2d. 697 (1995), the State maintains that the respondent, by agreeing to th e admissibility of any inculpatory statements he might make in the course of plea negotiations or pursuant to the plea, waived any right he had to suppress his inculpatory statements and that he should be held to th e terms of the a greem ent. In Mezza natto, the defendant was charged with possession of metham phetamin e with the intent to distribu te. Before tria l, he and his attorney met with the prosecutor to discuss the possibility of cooperating with the Government. As a condition for the meeting, the prosecutor required the defendant to agree that any statements he made during the meeting could be used to impeach any contradictory testimony he might give at trial if the case proceeded that far. 513 U.S. at 198 , 115 S. Ct. a t 800, 130 L . Ed. 2d at 702. A fter conferring with his counsel, the defendant agreed to so proceed. Id. When the defe ndant s statements were determined to be inconsistent with the surveillance evidence the Government had amassed, the prosec utor term inated th e meeti ng. Id. at 199, 115 S. Ct. at 800, 130 L. Ed. 2d at 703. The prosecutor cross-examined the defendant at his trial, over his objection, using the statements he made during the plea discussion meeting and, when the defendant denied having made certain statements, called an agent to impeach him. Id. at 199, 115 S. Ct. at 800-801, 130 L. Ed.2d at 703. His conviction having been reversed, the Ninth C ircuit Court of Appeals holding that in creating the exclusionary provisions of Federal Rule of 26 Evidence 410 and Federal Rule of Criminal Procedure 11(e)(6), Congress intended to preclude waiver agr eemen ts, United S tates v. Me zzanatto, 998 F.2d 1452, 14 54-1456 (9th Cir. 1993), the Supreme Court issued the writ of certiorari to review that decision. Reversing, the Court held, absent some affirmative indication that the agreement was entered into unk now ingly or invo luntarily, an agreement to waive the exclusionary provisions of the plea-statement Rules is valid and enforceable. 513 U. S. at 210, 115 S. Ct. at 806, 130 L. Ed. 2d at 710. It is evident that Mezza natto is inapposite. In this case, rather than for impeachment purposes, the statements in this case were introduced and admitted in the State s case in chief. The Supreme Court in Mezza natto, as elucidated by the three concurring justices,10 513 U. S. at 211, 115 S. Ct. at 806, 130 L. Ed. 2d at 710, determined that waiver applied to plea statements only for purposes of impeachment. They expressed doubt as to the enforc eability of waiver where the prosecution wished to use the plea statements in its case-in-chief, as the State does here, stating that, to use such statements in the case-in-chief w ould more severely undermine a defendant s incentive to negotiate, and thereby inhibit plea bargaining. 513 U .S. at 211 , 115 S . Ct. at 80 6, 130 L . Ed. 2d at 710 ( Ginsb erg, J., co ncurrin g). Moreover, applying Mezza natto to hold that any knowing and voluntary waiver of the exclusionary provisions of Maryland Rule of Evidenc e 5-410 is v alid and en forceable would 10 Two other Justices, Souter and Stevens dissented and, thus, would have not have permitte d waiv er even for imp eachm ent. United S tates v. Me zzanatto, 513 U.S. 196, 211, 115 S. Ct. 797, 806, 130 L. Ed. 2d. 697, 710-711 (1995), Souter, J., dissenting. 27 undermine both Wright and Allgood, rendering the question of whether the State rescinded or breache d the plea ag reement irre levant. JUDGMENT A FFIRMED, WITH COSTS. Judg e Ca thell joins in th e result only. 28
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