¶ 1 In this special action, petitioner State of Arizona challenges the respondent judge’s order granting real party in interest Leland Florencio Croekwell’s motion in limine to preclude the state from introducing in its ease-in-chief in the underlying criminal proceeding statements Crockwell made to law enforcement officers on three separate occasions: in anticipation of a possible plea agreement, and on two separate occasions pursuant to a truthful-cooperation clause after Crockwell and the state had entered into a plea agreement from which the state subse
quently
Special Action Jurisdiction
¶ 2 It is appropriate that we exercise our discretion and accept jurisdiction of this special action.
See State ex rel. Thomas v. Ditsworth,
¶ 3 Crockwell correctly asserts that the state had a burden to provide this court with the portions of the record that relate to the issues it is raising in this special action.
See
Ariz. R.P. Spec. Actions 7(e) (petition “shall be supported by an appendix of documents in the record before the trial court that are necessary for a determination of the issues raised by the petition”). He argues, however, that the state did not sustain that burden and for this reason alone we should decline to accept jurisdiction of the special action. But the state has provided us with a sufficient record to address the disputed issues raised here. Neither the state’s nor Crockwell’s filings below or here raised any issues concerning the proceedings for which portions of the record are missing. The state therefore was not on notice that any additional portions of the record were necessaiy or that Crock-well would attempt to expand the issues. And any facts relating to the issues actually raised that might have been established by missing portions of the record have either been conceded by Crockwell in his response to the state’s special action petition or are adequately established by the record provided.
See Piner v. Superior Court,
¶4 Moreover, if Crockwell believed that portions of the record critical to issues he intended to raise had been omitted, he should have provided this court with those materials. See Ariz. R.P. Spec. Actions 7(e) (“The response to the petition shall, if necessaiy, be supported by an appendix of documents in the record before the trial court that are necessaiy for a determination of the issues raised by the petition which are not contained in the petitioner’s appendix.”). Accordingly, we reject Crockwell’s request that we decline jurisdiction on the ground that the state allegedly failed to provide this court with a complete record.
Background
¶ 5 Crockwell was charged by indictment with conspiracy to commit possession and/or transportation of marijuana for sale and possession of marijuana for sale. In a letter to Crockwell’s attorney dated March 30, 2007, the Deputy Pima County Attorney stated that, if Crockwell was interested in obtaining a beneficial, non-trial resolution of the charges and was willing to assist law enforcement, he would be required to participate in “a debriefing” or “free talk.” Once the state had the opportunity to evaluate the information he provided, a decision would be made
1. If your client gives false, misleading, or incomplete information during the debriefing, what he says may be used against him.
3. If no working agreement is reached after the debriefing, the debriefing will not be used by the State in its case in chief, but if your client takes the stand and testifies inconsistently to what was said in the debriefing, the debriefing will be used to impeach him and your client is subject to possible perjury prosecution. The same thing applies to Rule 32 hearings, ROPs, etc.
¶ 6 Accompanied by his counsel, Crockwell met with detectives Hedrick and Figueroa at the office of the Pima County Attorney on April 11, 2007, for the debriefing. Crockwell gave the officers a version of the events that had resulted in his arrest. In sum, Crock-well stated that a number of individuals, including his codefendants, had intimidated him into allowing them to bring almost 5,000 pounds of marijuana to Crockwell’s place of employment, leave the drugs there overnight, and transport them out the next morning. Crockwell maintained that these individuals had been armed and that he had been coerced into cooperating with them.
¶ 7 On April 19, 2007, Crockwell and the state entered into a plea agreement, pursuant to which Crockwell pled guilty to the conspiracy charge. The agreement provided that Crockwell would truthfully cooperate with the investigation and prosecution of, inter alia, “any co-defendants or co-conspirators.” The plea agreement further provided as follows:
Should the State in its sole discretion determine the Defendant has been untruthful or uncooperative, the State may in its sole discretion elect to declare this agreement, null and void thus placing the parties in the same position they were before this agreement was entered or the State may elect to advise the Court of its conclusion for the Court to consider in sentencing the Defendant.
Should the Court make a finding that the Defendant testified untruthfully or otherwise falsely incriminated others, the Court may order this agreement to be set aside, placing the parties in the same position they were before the agreement was entered, or may consider its findings in sentencing the Defendant under this agreement. Nothing in this agreement shields the Defendant in anyway [sic] from any consequences of any act of untruthfulness in the performance of [his] obligations pursuant to this agreement.
¶ 8 Crockwell met with Hedrick a second time on July 12, 2007, at defense counsel’s office. He provided additional information regarding the persons who had been involved in the marijuana transaction. Apparently, on August 26, either Crockwell or a family member reported to the Pima County Sheriff’s Department that someone had tried to force Crockwell into his car at gunpoint. Croekwell’s attorney contacted the county attorney’s office and, on the following day, August 27, Crockwell met Detective Hedrick and another officer at a fast-food restaurant and gave his third statement. Crockwell made statements that were inconsistent with what he had said in his previous two statements. He essentially admitted that his participation in the drug deal had not been under duress, that he had known and expected the drugs would be delivered, and that he had attempted to arrange transactions with the same individuals in the past.
¶ 9 The respondent judge subsequently permitted the state to withdraw from the plea agreement. In August 2008, Crockwell filed a motion in limine seeking to preclude the state from introducing at trial in its casein-chief what Crockwell referred to as his “four free talks.” Relying on the state’s letter of March 30, 2007, Crockwell asserted the thii’d exception to the state’s agreement not to use his statements against him applied and, therefore, based on “contractual theories” and Rule 17.4(f), Ariz. R.Crim. P., the state could only introduce his statements in the event Crockwell testified at trial inconsis
tently
Rule 410, Arizona Rules of Evidence, and Rule 17.4(f), Arizona Rules of Criminal Procedure
¶ 10 The state argues that neither Rule 410, Ariz. R. Evid., nor Rule 17.4(f), Ariz. R.Crim. P., applies to or precludes admission of Croekwell’s second and third statements, made in July and August. It implicitly concedes, however, that those rules do apply to the first “free talk” statement.
¶ 11 “[W]e review de novo questions involving the interpretation of court rules and ‘evaluate procedural rules using principles of statutory construction.’ ”
Haroutunian v. Valueoptions, Inc.,
¶ 12 Rule 410, Ariz. R. Evid., provides as follows:
Except as otherwise provided by applicable Act of Congress, Arizona statute, or the Arizona Rules of Criminal Procedure, evidence of a plea of guilty, later withdrawn, or a plea of nolo contenders or no contest, or an offer to plead guilty, nolo contendere or no contest to the ci’ime charged or any other ci’ime, or of statements made in connection with any of the foregoing pleas or offers is not admissible against the pei’son who made the plea or offer in any civil or ex’iminal action or administrative proceeding.
Rule 410 is consistent with Rule 17.4(f), Ariz. R.Cx’im. P., which pei’tains to disclosure and confidentiality in the context of plea negotiations and agreements. It provides as follows:
When a plea agreement or any tei’m thereof is accepted, the agreement or such tex’m shall become pai't of the record. However, if no agreement is x-eached, or if the agreement is revoked, rejected by the court, or withdrawn or if the judgment is later vacated or reversed, neither the plea discussion nor any resulting agreement, plea or judgment, nor statements made at a heai’ing on the plea, shall be admissible against the defendant in any criminal or civil action or administrative proceeding.
Ariz. R.Crim. P. 17.4(f).
¶ 13 We agree with the state that Rule 17.4(f) is clear and unambiguous. It plainly precludes the state from using statements a defendant made during “the plea discussion,” that is, statements made in a discussion that precedes the plea agreement and anything in the agreement itself, as well as statements made during a change-of-plea heai’ing.
See State v. Vargas,
¶ 14 But Rule 410’s language differs significantly from that of Rule 17.4(f). Rule 410 renders inadmissible against a defendant in a criminal or civil proceeding “evidence of a plea of guilty, later withdrawn, ... or an offer to plead guilty ... or of statements made
in connection with
any of the foregoing pleas or offers.” (Emphasis added.) The phrase, “in connection with” injects ambiguity into Rule 410.
See United States v. Davis,
¶ 15 New Arizona cases have addressed the scope and application of Rule 410, Ariz R. Evid., and none addresses the issues raised here. In
Vargas,
¶ 16 But in
State v. Stuck,
¶ 17 In 1977, Arizona adopted, “with a few changes,” the Federal Rules of Evidence, including Rule 410, Ariz. R. Evid., which, “for all intents and purposes, ... [was] essentially the same as” Rule 410, Fed.R.Evid., before it was amended in 1979.
Wilson v. Riley Whittle, Inc.,
¶ 18 “When interpreting an evidentiary rule that predominantly echoes its fedei’al countex’part, we often look to the latter for guidance.”
State v. Green,
¶ 19 We find the discussion of these two rules in
United States v. Davis,
¶ 20 The Davis court noted that “[t]he legislative history and the wording of subdivision (e)(6) ... indicate that its main purpose is to promote the free and open negotiation that must precede any compromise between the defense and the prosecution.” Id. at 685. The court noted the defendant in that case testified before the grand jury after all plea negotiations had been concluded. Id. Thus, the court reasoned, the rale’s purpose of “encouraging compromise” would not be served by excluding this testimony. Id. “Indeed, such a rule would permit a defendant to breach his bargain with impunity: he could renounce the agreement and return to the status quo ante whenever he chose, even though the Government has no parallel power to rescind the compromise unilaterally.” Id.
¶ 21 The
Davis
court found persuasive
United States v. Stirling,
¶ 22 Characterizing Herman as a decision giving the rule “its most generous interpretation,” 2 the Stirling court surmised that even the Herman court “would not likely immunize” the defendant’s testimony before a grand jury after a plea has been entered but subsequently withdrawn. Id. The court commented, “The negotiations were over. All [the defendant] had to do was live up to his end of the bargain. His failure to do so justly exposed him to prosecutorial use of his Grand Jury testimony.” Id. at 731-32.
¶ 23 As we previously noted, in 1979, Rule 410, Fed.R.Evid., and Rule 11(e)(6), Fed. R.Crim.P., were amended, replacing the phrase “in connection with, and relevant to,” with “in the course of.” Clearly, this was intended to narrow the interpretations of the rule. The Advisory Committee Note to the 1979 amendment to Rule 11(e)(6), which mirrored the same amendment to Rule 410, includes the following commentary:
The major objective of the amendment to rale 11(e)(6) is to describe more precisely, consistent with the original purpose of the provision, what evidence relating to pleas or plea discussion is inadmissible. The present language is susceptible to interpretation which would make it applicable to a wide variety of statements made under various circumstances other than within the context of those plea discussions authorized by rule 11(e) and intended to be protected by subdivision (e)(6) of the rule.
The note goes on to point out the purpose behind Rule 11(e)(6) and Rule 401, as articulated in initial Advisory Committee Notes and reflected in congressional commentary: namely, to promote the resolution of criminal cases by plea agreements and encourage defendants to be candid during plea negotiations. The commentary observed that a consequence of the rules’ ambiguity was varying interpretations by federal courts and that some courts, including the Fifth Circuit in
Herman
and the Sixth Circuit in
United States v. Brooks,
¶ 24 Based on these federal authorities and the intent reflected in the rules’ history and commentary, we construe our Rule 410 narrowly, consistent with its original intent. Our supreme court has not changed the wording of Arizona Rule 410, as Crockwell points out, but there are no cases in Arizona construing the rule as broadly as some of the prior federal decisions, which had prompted the change in the federal rule to reinforce the rule’s original intent. Like its federal counterpart, Arizona’s Rule 410 was intended to encourage criminal defendants to enter into plea agreements by assuring them statements made while negotiating an agreement and in entering the plea agreement itself cannot be used against the defendant in the event no agreement is reached or
¶ 25 The state does not dispute that the statements Crockwell made during the debriefing or “free talk” on April 11, 2007, fall within the purview of Rule 410’s protection. They are also pi-oteeted by Rule 17.4(f), Ariz. R.Crim. P. But the statements Crockwell made pursuant to the truthful-cooperation clause on July 12 and August 27, months after he had entered into the plea agreement, were not made “in connection with ... the foregoing pleat ] or offers.” Ariz. R. Evid. 410. And they are plainly not covered by Rule 17.4(f). Thus, to the extent the respondent judge based his decision to grant Crockwell’s motion in limine on his conclusion that the July and August statements were protected by Rule 410, he erred. 4
March 30 Letter and the Plea Agreement
¶ 26 The state next argues that Crockwell waived any protection provided by the rules in the March 30, 2007 free-talk letter and the plea agreement. Based on the language the respondent judge used in his October 21, 2008 minute entry granting Crockwell’s motion in limine and his January 5, 2009 minute entry denying the state’s motion for reconsideration, it appears the respondent based his rulings on the March 30 letter.
5
And, the respondent seems to have found the third exception set forth in the letter applied to the statements Crockwell had made on all three occasions. We therefore must determine whether, in the March 30 letter, Crockwell waived any protection
¶ 27 The March 30 letter set forth specific terms and conditions relating to the state’s consideration of a “non-trial disposition” of the charges against Crockwell. Like plea agreements, “cooperation ... agreements ... are contractual in nature.”
State v. Platt,
¶ 28 The letter made clear that a condition precedent to any negotiations for a beneficial, non-trial resolution of the charges was Croekwell’s -willingness to cooperate truthfully with and assist law enforcement. The letter made equally clear that the state would not offer Crockwell a plea until he could be questioned during a “debriefing” and the state had the opportunity to evaluate the information it obtained. The letter encouraged Crockwell to be candid by assuring him no statements would be used against him, subject to five exceptions. The first exception applies here. It permits the state to use any statements Crockwell made during the anticipated debriefing if he gave “false, misleading, or incomplete information.” The exception contains no limitation on the state’s use of the statements. Thus, the letter allows the state to use for any purpose the April 11 statement, which was otherwise protected under Rule 410, Ariz. R. Evid., and Rule 17.4(f), Ariz. R.Crim. P.
¶ 29 The third exception in the letter, on which Crockwell relies, is the only one that permits the state to use his statements for impeachment purposes only. But that exception does not apply here. First, the entire agreement is premised on Crockwell’s truthful cooperation; because Crockwell did not give truthful statements, the first exception governs and we need not look to any of the other exceptions. And the third exception only applies if the state and Crockwell had been unable to reach a “working agreement ... after the debriefing.” Under those circumstances, the state would have been permitted to use the statements for impeachment purposes if Crockwell were to “take[ ] the stand and testifLy] inconsistently to what was said in the debriefing.” But the parties did reach an agreement — albeit one that Crockwell breached by providing law enforcement untruthful information. Even though the agreement was declared “null and void” and the parties were returned to their original position because of Crockwell’s breach, the parties’ intent was that that provision not apply if an agreement were reached. Therefore, the third exception does not apply.
¶ 30 Having determined that Crockwell and the state intended that the March 30 letter waive the protection the rules afforded the April statement, we must now determine if that waiver is permissible. In
United States v. Mezzanatto,
¶ 31 Reversing the Ninth Circuit, which had found the rights under the rule could not be waived, the Supreme Court reasoned that, “absent some affirmative indication of Congress’ intent to preclude waiver, we have presumed that statutory provisions are subject to waiver by voluntary agreement of the parties.”
Id.
at 201, 211,
evidentiary stipulations are a valuable and integral part of everyday trial practice. Prior to trial, parties often agree in writing to the admission of otherwise objectionable evidence, either in exchange for stipulations from opposing counsel or for other strategic purposes. Both the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure appear to contemplate that the parties will enter into evidentiary agreements during a pretrial conference.
Id.
at 203,
¶ 32 The Supreme Court in
Mezzanatto
rejected the defendant’s suggestion that stipulations implicating plea-statement rules are somehow distinguishable, finding the distinction to be one without a difference.
Id.
at 203, n. 3,
¶ 33 In
United States v. Hardwick,
¶ 34 Like the court in
Hardwick,
“[w]e are persuaded by the reasoning of these courts.... ”
¶ 35 We
now turn to the statements Crockwell made in July and August. As we previously noted, in his response to the state’s special action petition, Crockwell addressed the three statements simultaneously, as if the March 30 letter and the rales applied equally to them all. The respondent judge appears to have done the same. But the March 30 letter only applied to the April 11 debi’iefing. It specified that the required debriefing had to take place “no later than
April 13, 2007,”
before the state would offer Crockwell a plea agi’eemeixt. Thus, the letter cannot serve as a justification for the respondent judge’s restricting the state’s use of the subsequent statements to impeach
ment
¶ 36 The agreement that governed the July and August statements was the plea agreement. Among its special terms was Crock-well’s agreement to “cooperate with authorities in investigating and prosecuting those criminals and organizations of which he is aware[,] including testifying fully, truthfully, and completely in the prosecution of any eodefendants or co-conspirators.” The plea agreement did not protect Crockwell with respect to any untruthful statements. Indeed, the plea agreement provided that “[s]hould the State in its sole discretion determine the Defendant has been untruthful ... the State may in its sole discretion elect to declare this agreement[J null and void thus placing the parties in the same position they were before this agreement was entered....” It further stated: “Nothing in this agreement shields [Crockwell] in anyway [sic] from any consequence of any act of untruthfulness in the performance of [his] obligations pursuant to this agreement.” The state withdrew from the plea agreement after it learned in August 2007 that Crock-well had not been truthful in April or July. That was its right. Thus, the respondent judge abused his discretion by granting Crockwell’s motion in limine, preventing the state from using the July and August statements in its case-in-chief and only allowing their use to impeach Crockwell should he testify.
Conclusion
¶37 For the reasons stated herein, we conclude the respondent judge abused his discretion by granting Croekwell’s motion in limine to preclude the state from using in its ease-in-ehief statements he had made to law enforcement officers on April 11, 2007, before he entered into a plea agreement, and statements he made on July 12 and August 27, 2007, after he entered into an agreement from which the state subsequently withdrew after Crockwell breached the agreement. The respondent erred as a matter of law and thereby abused his discretion.
See
Ariz. R.P. Spec. Actions 3(c);
see also State v. Kelly,
Notes
. Rule 11(e)(6), Fed.R.Crim.P., was amended in 1975 to add the language, “and relevant to,” see Ad of July 31, 1975, Pub.L. No. 94-64, § 3(10), 89 Stat. 370, and the same language was then added to Rule 410, see Act of Dec. 12, 1975, Pub.L. No. 94-149, 89 Stai. 805. Thus, there were times when the language of the two rules differed, but those differences were slighl and insignificant.
. In
Herman,
the Fifth Circuit held Rule 11(e)(6) protected statements the defendant had made to a postal inspector, who the defendant erroneously believed had the authority to conduct plea negotiations, "during the course of a conversation in which he sought concessions from the government in return for a guilty plea."
. In his second notice of supplemental authority, filed after oral argument in this court, Crockwell asks us to consider two cases, which he referred to during the argument in support of his contention that his statements were inadmissible pursuant to Rule 410, Ariz. R. Evid.:
Gooden v. State,
. Crockwell asserted lor the first lime in his April 2, 2009 notice of supplemental authority that the respondent judge never found Crockwell had been untruthful and argued the respondent therefore did not abuse his discretion by finding unpersuasive the federal cases the state had relied on below. Crockwell repeated that assertion at oral argument in this court, further arguing that because the state has not provided us with transcripts of the hearing during which the respondent permitted the state to withdraw from the plea agreement or the initial hearing on Crockwell’s motion in limine, we cannot assume his lack of truthfulness or failure to cooperate were the reasons the state withdrew. Asserting new arguments in a notice of supplemental authority is a misuse of the rule permitting a party to file such a notice.
See
Ariz. R. Civ.App. P. 17; Ariz. R.P. Spec. Actions 7(i) (Arizona Rules of Civil Appellate procedure apply to special actions when not inconsistent with the special action rules);
see also Rowe Int'l, Inc. v. Ariz. Dep't of Revenue,
. The respondent's comments during the hearing on the motion for reconsideration suggest he granted t he state's request for a hearing and also may have based his rulings on principles of "fundamental fairness.” But the supreme court rules govern the admissibility of evidence. See generally Ariz. R. Evid. 101, 102.
. In his April 2 notice of supplemental authority and during oral argument in this court Crockwell argued for the first time that, to the extent the March 2007 letter or the plea agreement are ambiguous, they should be construed in his favor. Again, as previously noted, this is an improper use of a notice of supplemental authority,
see
Ariz. R. Civ.App. P. 17;
Rowe Int’l, 165
Ariz. at 128,