STATE of Idaho, Plaintiff-Respondent, v. Anthony COUTTS, aka Gerald Ralph Anthony Cootz, aka William Lee Schmidt, aka Billy Lee, Defendant-Appellant.
No. 12874.
Supreme Court of Idaho.
April 10, 1980.
609 P.2d 642
David H. Leroy, Atty. Gen., Lynn E. Thomas, Deputy Atty. Gen., Boise, for plaintiff-respondent.
McFADDEN, Justice.
Following a plea of guilty before the district court, defendant-appellant Gerald Anthony Coutts was found guilty of a charge of grand larceny (theft of a pickup truck) and was sentenced to an indeterminate term of fourteen years imprisonment. He appealed from the judgment of conviction.
In State v. Colyer, this court stated:
Whether a plea is voluntary and understood entails inquiry into three areas: (1) whether the defendant‘s plea was voluntary in the sense that he understood the nature of the charges and was not coerced; (2) whether the defendant knowingly and intelligently waived his rights to a jury trial, to confront his accusers, and to refrain from incriminating himself; and (3) whether the defendant understood the consequences of pleading guilty. It is clear that the voluntariness of a guilty plea can be determined by considering all of the relevant surrounding circumstances contained in the record. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Schneckloth v. Bustamonte, 412 U.S. 218, 238 n. 25, 93 S.Ct. 2041, 36 L.Ed. 854 (1973).
98 Idaho at 34, 557 P.2d at 628 (Emphasis added.)
In this case, the district judge who handled this stage of the proceedings first explained to the defendant the nature and circumstances of the charge against him, the consequences of his guilty plea, including his waiver of the right to a speedy trial before a jury, the right to confront witnesses called against him, and the right to present evidence. He was advised that in the event of a trial he would not have to take the witness stand or give any testimony unless he chose to do so, of his right to an attorney, and that the State must prove to the jury his guilt beyond a reasonable doubt. The trial court advised him of the maximum sentence that could be imposed, and that if he had been previously convicted of a crime, especially a felony, it would weigh heavily against him. After that explanation, Coutts entered his plea of guilty. The trial court then further inquired as to the reason he wished to plead guilty. After still further inquiry the court advised him that it wanted to be certain he knew what he was doing, and Coutts replied that he had been in prison and knew what he was doing.
Only after this exhaustive inquiry was the court fully satisfied that it should accept the defendant‘s plea of guilty. The record thus clearly shows that the district court meticulously explained to Coutts the nature and circumstances of the charge and the consequences of his guilty plea; it also clearly appears that Coutts actually understood the judge‘s explanation.
Coutts argues, however, that the plea was not voluntary, in light of his statements at arraignment and at the sentencing hearing that he was subjected to extreme conditions of incarceration, that the confession which was the heart of the state‘s case was the product of a deal, and that he was dissatisfied with his attorney.
Coutts claims that during his incarceration at the Boundary County jail he was denied cigarettes, and that he was placed in a cell which had no toilet and no running water. The record also indicates that Coutts had threatened an escape attempt and had physically threatened a guard, and that because of this he was forced to lie on his stomach and to place his hands behind his back for handcuffing prior to being removed from his cell for arraignment.
But Mr. Coutts’ attorney, who also represents him on appeal, stated at the arraign-
this is not the reason for his plea. He is not pleading so he can be moved to another prison or the plea has not been coerced. [sic] I think he is objecting to the conditions here and his treatment. But I think from my meeting with him he is aware of what he is doing [by pleading guilty].
We hold that the record supports the attorney‘s conclusion.
Nor did Coutts’ allegation that his confession may have been part of a deal compel the judge to refuse to accept his guilty plea. The place to challenge the voluntariness of the confession was, of course, at trial. Such challenges are by no means unusual and are often successful. In addition, at both the arraignment and the sentencing hearing before another district judge, Coutts was repeatedly offered the opportunity to change his plea and declined to do so.
Finally, Coutts cannot successfully ground his claim of coercion on his dissatisfaction with his attorney. The clear indication from the arraignment transcript was that Coutts did not feel that he was poorly represented, but that his attorney left something to be desired in the lawyer-client relationship. That is, he thought that his counsellor was a good attorney, and his dissatisfaction was just personal.
It is the conclusion of this court that the record reflects that Coutts’ guilty plea was voluntary and that he understood its consequences, and it was not error for the district court to accept it.
Coutts also contends that certain unsworn remarks made by the prosecutor at the sentencing hearing were so inflammatory as to taint that hearing beyond the limit of due process.
At that hearing the court had before it the presentence report previously ordered. The court determined that Coutts had received a copy of the report in sufficient time to examine it and then offered him an opportunity to comment on any portions of it he felt were incorrect. Coutts took advantage of this opportunity and agreed that the general account of his past history was accurate and explained certain other portions of the report. The trial court then inquired whether the plea of guilty had in any manner been forced or compelled, and advised Coutts that if he had entered a plea of guilty which he did not wish to enter the court could and would set it aside and afford an opportunity for a full jury trial. The defendant declined this offer and advised the court there was no reason sentence should not be imposed.
The prosecutor then made a statement in the course of which he stated in essence that Coutts had failed to mention several items
for example the car which he was in control of was allegedly a stolen vehicle out of Texas . . . Allegedly his wife, just through three independent sources that I have confirmed and that I believe to be viable sources, has been beaten, shot ---
MR. SHELTON [counsel for defendant]: Your honor, I object unless there is an opportunity for the defendant to ---
THE COURT: He will have that opportunity.
MR. DAY: [prosecutor] --- has been beaten and shot by Mr. Cootz. When she was in town she was in mortal fear of Mr. Cootz.
Appellant contends on this appeal that the trial court failed to follow the provisions of
19-2515. Inquiry into mitigating or aggravating circumstances -- (a) After a plea or verdict of guilty, where a discretion is conferred upon the court as to the extent of the punishment, the court, upon the oral or written suggestion of either party that there are circumstances which may be properly taken into view either in aggravation or mitigation of the punishment, may, in its discretion, hear the same summarily, at a specified time, and upon such notice to the adverse party as it may direct.
19-2516. Inquiry into circumstances -- Examination of witnesses. -- The circumstances must be presented by the testimo-
ny of witnesses examined in open court, except that when a witness is so sick or infirm as to be unable to attend, his deposition may be taken by a magistrate of the county, out of court, upon such notice to the adverse party as the court may direct. No affidavit or testimony, or representation of any kind, verbal or written, can be offered to or received by the court, or a judge thereof, in aggravation or mitigation of the punishment, except as provided in this and the preceding section.
Appellant has argued that the prosecutor‘s reference to the alleged incidents was a presentation of unsworn evidence contrary to these statutory provisions.
In response to appellant‘s contentions in this regard, other states have dealt with similar contentions, and two lines of authority have developed. In People v. Neal, 97 Cal.App.2d 668, 218 P.2d 556 (1950), and State v. Willms, 117 N.W.2d 84 (N.D.1962) those courts have required a strict compliance with the particular states’ statutory schemes. The other line of authority, which holds that in the absence of a formal request for a hearing of evidence by actual testimony, the court may on a sentencing hearing hear the presentation in a more informal manner. See Barber v. Gladden, 228 Or. 140, 363 P.2d 771 (1961), interpreting
In Coffman v. Gladden, 229 Or. 366, 366 P.2d 171 (Ore.1961), the court reaffirmed Barber v. Gladden, supra, and its interpretation of the statutes to require the taking of evidence only upon formal request. In the Coffman case, the court stated in language appropriate here,
To hold otherwise would be little short of ridiculous. It would require the trial court when hearing the most perfunctory facts to proceed only by the formal process of swearing witnesses. The legislature would never have intended such a useless formality. The trial courts were granted a sensible discretion. Or that the formal procedure should be mandatory only when demanded by either party. [sic] Obviously, if either party requests formal hearing or the facts themselves suggest sworn testimony, the trial courts should and will proceed by that method.
The validity of this statement from the Oregon court is buttressed in Idaho by the enactment in 1947 of
In this proceeding appellant did not present any request to the trial court for a formal hearing as required by
Judgment of conviction and sentence affirmed.
DONALDSON, C. J., BAKES, J., and SCOGGIN, J. Pro Tem., concur.
BISTLINE, Justice, dissenting.
I cannot agree that the following statement by the prosecuting attorney at the sentencing hearing did not constitute reversible error:
MR. DAY [prosecutor]: Mr. Cootz, in explaining his reasons for doing stuff today has failed to mention quite a bit that I believe should have been mentioned, for example the car that he was in control of was allegedly a stolen vehicle out of Texas, Amarillo, Texas. Allegedly his wife, just through three independent sources that I have confirmed and I believe to be viable sources, has been beaten, shot by Mr. Cootz. When she was in town she was in mortal fear of Mr. Cootz. Also as far as the escape of the jail he forgot to tell us about the knives he had constructed and were in his possession.
To my mind this uncorroborated statement constitutes reversible error because it violates the provisions in
To properly understand this issue, it is necessary to distinguish between (1) the formal sentencing hearing required under
To my mind, the legislature enacted
Other states have taken language similar to Idaho‘s at face value and have held that whenever evidence is presented in mitigation or aggravation of punishment, it must be presented by the testimony of witnesses examined in open court. In People v. Neal, 97 Cal.App.2d 668, 218 P.2d 556 (1950), for instance, the prosecutor referred to the defendant‘s prior criminal record in an unsworn statement at the sentencing hearing. The court, relying on Cal.Pen.Code § 1204, which was identical to
The statement of the district attorney, wholly unsupported by any evidence, was highly inflammatory and prejudicial. If any of the matters referred to by the district attorney was true, it should have been presented to the court in the form of evidence. The statute demands that the duty of determining the question of aggravation or mitigation of punishment be performed with scrupulous fairness to the defendant.
218 P.2d at 561.
In State v. Willms, 117 N.W.2d 84 (N.D. 1962), the North Dakota Supreme Court, interpreting N.D.Cent.Code § 29-26-18, which is similar to
Where the defendant objects to presentation of such circumstances by the hearsay statement of the State‘s Attorney, giving the information in any way other than as provided by statute, after such objection, would be error.
117 N.W.2d at 88.
The court determined that in Willms’ case the introduction of the testimony was harmless error, but nonetheless the court made it clear that failure to follow the strict requirements of the equivalent of
The A.B.A. project on Standards for the Administration of Criminal Justice is in accord:
Where the need for further evidence has not been eliminated by a presentence conference (section 4.5[b]), evidence offered by the parties on the sentencing issue should be presented in open court with full rights of confrontation, cross-examination and representation by counsel.
A.B.A. Standards, Sentencing Alternatives and Procedures § 5.4(b) (1968).
The majority sets forth two reasons for holding that
In the present case the only statements made by the trial judge to the defendant in this regard were: Is there anything in the presentence report that you would like to explain, deny, refute or make any comment about? and You may add anything that you wish to in the way of a statement to explain why you did the act or any other circumstances that you feel would constitute mitigation. If the Court insists on holding that a formal request is needed before
First, the statements made by the prosecutor below were not the most perfunctory facts. Secondly, the statutory language makes no exception for perfunctory facts. If it is to be proper that the trial court hear some facts relevant to aggravation of punishment without the formality of
As to the argument that by providing for presentence reports in
Under the practice of individualizing punishments, investigational techniques have been given an important role. Probation workers making reports of their investigations have not been trained to prosecute but to aid offenders. Their reports have been given a high value by conscientious judges who want to sentence persons on the best available information rather than on guesswork and inadequate information. To deprive sentencing judges of this kind of information would undermine modern penological procedural policies that have been cautiously adopted throughout the nation after careful consideration and experimentation. We must recognize that most of the information now relied upon by judges to guide them in the intelligent imposition of sentences would be unavailable if information were restricted to that given in open court by witnesses subject to cross-examination. And the modern probation report draws on information concerning every aspect of a defendant‘s life.
(Footnotes omitted.)
The provision for presentence reports reflects a legislative determination that in many instances individualized sentencing can be better effectuated through a full report by a trained investigator in addition to or absent both sides presenting testimony in open court.
This does not mean, however, that the provisions of
As to the other exception to the requirements of
Furthermore, not only does allowing the State an unbridled right of allocution serve no useful purpose in aid of individualized sentencing, it also violates the defendant‘s basic rights. It must be remembered that the defendant has a substantial interest in his sentencing,10 an interest that must be balanced against the necessity of allowing the trial court a large degree of latitude regarding the information it may consider for purposes of sentencing. This balance has been achieved by limiting the latitude of the trial court by three safeguards, regardless of the provisions of
(1) that the defendant be afforded a full opportunity to present favorable evidence; (2) that the defendant be afforded a reasonable opportunity to examine all the materials contained in the pre-sentence report; (3) that the defendant be afforded a full opportunity to explain and rebut adverse evidence.
State v. Yoelin, 94 Idaho 791, 794, 498 P.2d 1264, 1267 (1972), quoting State v. Ballard, 93 Idaho 355, 360, 461 P.2d 250, 255 (1969).
These safeguards are present when the trial court considers the presentence report because the defendant and his attorney are given a full opportunity to examine the presentence investigation report so that, if the defendant desires, he may explain and defend adverse matters therein.
This balance is also maintained when evidence is presented in open court through sworn testimony, but it is not maintained where in effect there is a swearing contest between the prosecuting attorney and the defendant. As noted by defendant in his brief, the Appellant was confronted with a situation where it was his word against the Prosecutor --- the word of a handcuffed admitted felon against the word of a duly elected public official in courtroom attire. The defendant had no notice that these charges would be made against him, no opportunity to examine the materials that would be used against him and thus no opportunity to prepare an adequate rebuttal to them. When the defendant went in for his sentencing, he had been given an opportunity to review the presentence report and prepare any reply he wished to make. He also could expect the prosecutor to put on sworn witnesses, witnesses he could cross-examine. Instead the prosecutor chose to present his own unsubstantiated information to the court. As stated in United States v. Fatico, 579 F.2d 707, 713 (2d Cir. 1978), with regard to sentencing procedures, the reliability of evidence that is difficult to challenge must be ensured through cross-examination or otherwise, by demanding certain guarantees of reliability. There were absolutely no safeguards in the present case to protect the defendant from the uncorroborated charges levied against him by the prosecuting attorney.
While I would agree that at sentencing the prosecutor can comment on the evidence which is properly before the court, see, e. g., People v. Vatelli, 15 Cal.App.3d 54, 92 Cal.Rptr. 763, 769 (1971); State v. Gillette, 171 Cal.App.2d 497, 341 P.2d 398, 402 (1959), the prosecutor‘s statements in this case went far beyond comment. In alleging car thefts, batteries and attempted homicide, none of which appear to have been in the record, the prosecutor was presenting extensive and damaging hearsay. And the fact that the prosecutor‘s statements were made in response to the defendant‘s exercise of his right of allocution does not save them. If defendant were guilty of car theft, or if he had been charged with car theft, such convictions or charges should have appeared in the presentence report.
For the trial court to exercise a reasoned discretion in sentencing the individual offender, it is necessary that he be provided with information about that offender. The proper procedure for doing this is through a presentence report and the sworn testimony of any witnesses the prosecuting attorney may wish to use to supplement whatever information is before the court. The defendant also has the right to put on evidence, but beyond that he has a right to a final statement before sentencing. The State can comment on evidence before the court in replying to that statement, but the State has no inherent right to bring forth unsupported charges in response to the defendant‘s right of allocution.
I reject out of hand the State‘s argument that the prosecutor‘s comments, if error at all, were harmless error. On their face, the comments were extremely prejudicial, and the defendant was sentenced to the maximum term of imprisonment. It ought not be assumed that the prosecutor‘s inflammatory and improper comments did not contribute to the extreme sentence. The defendant‘s sentence should be set aside.
Attention should also be directed to the Court‘s opinion (and my dissenting opinion) in State v. Griffiths, No. 12367, 101 Idaho 163, 610 P.2d 522 (1980), wherein one of the principal issues discussed is prosecutorial misconduct in commenting to a jury on matters not in evidence and improperly urging the jury to draw conclusions therefrom. Both the opinion of the Court and the dissenting opinion in Griffiths recognize that state courts are as bound by the federal constitution as by their own state constitutions to protect individual freedoms against such a denial of due process. And it is now firmly understood that the rule of Chapman v. State of California, 386 U.S. 125, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) applies to state appellate courts called upon to determine whether federal constitutional error has deprived a defendant of his right to a fair trial --- the test being that the state is bound to demonstrate to the appellate court beyond a reasonable doubt that the error was harmless.
It would seem to me that the Chapman rule should also have application to sentencing hearings and, in fact, I would say especially to sentencing hearings, having in
To my mind the Court‘s opinion in this case must be read as sanctioning the denial of the due process to which all defendants are entitled. Our statutes as written, and as they should be read, have long embodied proper concepts of due process at sentencing hearings --- until today. While a defendant can waive constitutional rights, and can agree to an informal hearing, an insurmountable principle of law is that such a waiver may not merely be presumed.
Nor do I think that statutes providing for presentence investigation and report can or do waive a defendant‘s right to due process at his sentencing hearing. A defendant in Idaho has a right to ask for leniency of penalty, and equally has a right to ask for probation and rehabilitation in that manner. It is in those instances that this Court has stated that presentence investigations must be made. But, the Court has also held that where the trial court has ruled out any chance of probation, a presentence report is not required. A presentence report serves the purpose of providing the court with a multitude of factors in the defendant‘s history, and is aimed at enabling the court to evaluate the defendant‘s probabilities of becoming rehabilitated through a supervised probation --- rather than by being incarcerated, where institutionalizing rather than rehabilitating is the main factor.
A presentence report will contain much hearsay, but an opportunity is provided a defendant to examine it and raise a challenge to portions which are thought to be incorrect. That the court may request and consider a presentence report should not serve, however, as an excuse for condoning the type of inflammatory hearsay remarks which the prosecution heaped upon a defendant exercising his right of allocution, and objection thereto being made, or at least attempted.
BISTLINE, Justice, dissenting.