(dissenting).
I disagree with the result reached in the majority opinion, with the majority’s holding concerning Rule 410, and especially with the rationale advanced to support that holding.
As for the result, affirming the convictions is not particularly offensive, because there probably was enough evidence, apart from Anderson’s statements to Officer Olson, to enable a jury to find beyond a reasonable doubt that he had committed the murder and the robbery — notwithstanding the trial court’s characterization of the evidence connecting defendant with the crimes (at least the robbery) as “razor thin” and “a vexatious problem.” The evidence of Anderson’s guilt certainly was not overwhelming, as indicated by the prosecution’s heavy reliance in its closing and rebuttal arguments on the statements to Officer Olson. The prosecutor drew the jury’s attention to those statements no less than five times in his closing argument and an additional five times in final rebuttal, saying at one point, “[W]hy did this man offer to confess to it? ... ‘I’ll confess to the murder, but I want to know what the deal is, and I want it in writing.’ ” Indeed, it is no exaggeration to say that Anderson’s “confession” was the centerpiece of the State’s case against him. The trial court’s admission of his statements, if erroneous, certainly could not be deemed harmless error, because no rational reviewing court could say with any confidence — and certainly that there was no reasonable possibility— that the error did not contribute to Anderson’s convictions. See Clark v. State, 112 N.M. 485, 487, 816 P.2d 1107, 1109 (1991) (Error in admission of evidence in criminal trial is “not harmless if there is a reasonable possibility that the evidence complained of might have contributed to the conviction.”); cf. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967) (for court to hold federal constitutional error harmless, court must be able to declare it harmless beyond a reasonable doubt). Consequently, if the trial court erred in admitting Olson’s testimony, as I believe it did, then the convictions must be reversed.
As for the holding that admission of Anderson’s offer to confess did not violate Rule 410, the holding is defensible based on the federal and state caselaw cited by the majority (not on the “reliance” rationale advanced by the majority), though I would adopt the opposite holding based on caselaw more directly related to our current rules and on the considerations set out below. In this connection, it is worth recalling the exact wording of Rule 410:
Evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime, or of statements made in connection with any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer.
[Emphasis added.]
It is also worth noting exactly what Officer Olson testified to concerning Anderson’s offer. (The testimony was given out of the presence of the jury when the State made an offer of proof to enable the trial court to rule on the admissibility of the evidence.) Olson, the Texas law enforcement officer who had conversed with Anderson after the New Mexico investigators had left the room while Anderson was in custody in Texas and charged with residential and commercial burglaries, testified as follows:
Olson: We were just discussing different things and he looked at me and said “I’d like to make a deal.” and I said ‘What?” And he said “I’ll give you a confession if we can work something out.”
Prosecutor: Do you remember his deal, his words, any more precisely?
Olson: He said he’d give me a confession to the murder if we could work something out.
Prosecutor: Was there any other condition that he placed on it?
Olson: Uh yes, it would have to be in writing.
Prosecutor: Realizing I just told you not to say anything about Texas charges, but since the jury is out, what did he say about that?
Olson: That I’d have to drop the charges on him and have it in writing and he’d give me a confession.
The court accepted the offer of proof, recalled the jury, and permitted Olson to testify to substantially the foregoing effect — without, of course, any reference to dropping the Texas charges. Olson made it clear, both in his in-chambers testimony during the offer of proof and in his subsequent testimony to the jury, that Anderson had not given him an actual “confession” to the murder, but rather that such a confession might be forthcoming if the stipulated conditions were met.
In light of the wording of the rule and Officer Olson’s testimony in chambers about his conversation with Anderson, some legitimate questions can be asked concerning the proper interpretation of the rule and its application to this case. These include: (1) Was Anderson’s offer to confess an “offer to plead guilty” within the contemplation of Rule 410? (2) Does Rule 410 apply to a conversation between a suspect and a law enforcement officer, or is it limited, as is the corresponding federal rule, to conversations between the accused and “an attorney for the prosecuting authority”?1
The State discusses these questions, relying in significant part (as does the majority opinion) on the 1979 amendment to Fed. R.Crim.P. 11(e)(6),2 which the State (like the majority opinion) treats as a “clarifying amendment” designed to make more explicit the original intent behind the pre-1979 rule, and on cases drawing a sharp distinction between a “confession” or an “admission” and an “offer to plead guilty.” None of the State’s authorities suggests the “reliance” or “awareness of the protection of the rule” rationale advanced by the majority here. Indeed, that rationale appears to be unprecedented and unsupported by any of the authorities that the majority cites.
The majority does recognize the existence of cases reaching a result contrary to the one it favors — United States v. Herman, 544 F.2d 791 (5th Cir.1977); United States v. Brooks, 536 F.2d 1137 (6th Cir.1976); People v. Friedman, 79 Ill.2d 341, 38 Ill.Dec. 141, 403 N.E.2d 229 (1980) — but dismisses these cases as having been “overturned legislatively” or as having reached the wrong result.
While it is true that Herman and Brooks were overturned by Congress’s 1979 amendment to Rule 11(e)(6) of the Federal Rules of Criminal Procedure and the corresponding amendment to Rule 410 of the Federal Rules of Evidence, I believe that that fact argues in favor of construing and applying our own Rule 410 (and our corresponding SCRA 5-304(F)) consisténtly with the pre-1979 federal cases — not, as the majority does, by construing and applying the rule as if New Mexico had already adopted the federal amendments. Neither Rule 410 nor Rule 5-304(F) has been amended to conform to the federal amendments in the thirteen years since those amendments took effect. Rule 5-304 has been amended at least four times since 1979; none of those amendments introduced language paralleling the federal amendment.
Thus, I would follow eases like Herman and Brooks, which hold that a suspect’s statements to a government investigator or law enforcement officer, if made in connection with an offer to plead guilty to a crime (whether or not the suspect has been “charged”), are covered by the rule and inadmissible even though the government official may not have actual authority to negotiate a plea. See Herman, 544 F.2d at 798 (“The twin goals of encouraging unrestrained plea negotiations and assuring fairness to defendants dictate that any statements made by a defendant as part of an effort to reach a plea agreement must be excluded; it makes no difference that the defendant’s efforts are misguided because the official cannot or will not accept the offer.”); Brooks, 536 F.2d at 1139 (where defendant called postal inspector and offered to plead guilty if sentenced to maximum of two years, “ ‘The testimony concerning the discussion between the agent and [the defendant] should not have been admitted. It should not have been made the subject of comment in the closing argument.’ ”) (quoting United States v. Ross, 493 F.2d 771, 775 (5th Cir.1974)).
I would also follow cases like Friedman and People v. Oliver, 111 Mich.App. 734, 314 N.W.2d 740 (1981), both of which applied rules substantially similar CFriedman) or virtually identical (Oliver) to our own Rule 410. In Friedman, the defendant telephoned an investigator for the state, inquired about “making a deal,” and stated, “If I’m convicted, I would rather go to a Federal prison as opposed to a State prison.” 38 Ill.Dec. at 146, 403 N.E.2d at 234. The trial court admitted the investigator’s testimony about this conversation, but the Supreme Court of Illinois upheld an appellate court’s reversal, pointing out “the devastating effect of the introduction of plea-related statements in the trial of the accused.” The supreme court continued:
The fact that the party to whom this statement was made did not have the actual authority to enter negotiation is not, standing by itself, sufficient to render the statement admissible. Defendant could have reasonably assumed that [the investigator] was an appropriate party to whom he could convey his offer to bargain.
Id., 38 Ill.Dec. at 147, 403 N.E.2d at 235 (citation omitted).
In Oliver, the Michigan court reversed defendant’s conviction of first degree murder because the trial court had erroneously admitted an investigating officer’s testimony that the defendant had inquired, “[I]f I said I did it, would it still be first degree murder[?]” and because the prosecutor (as in the present case) had reminded the jury in closing and rebuttal arguments of the defendant’s offer to plead, asking rhetorically (as in the present case), “Why did the defendant plea bargain and why did he say if I say I did it, would it still be murder in the first degree?” 314 N.W.2d at 750. The court commented: “The nature of defendant’s question indicates a subjective expectation to negotiate a plea. Moreover, it does not appear that this expectation was unreasonable____ It was reasonable for defendant to assume that [the investigating officer] could be talked to regarding a plea to reduce charges.” Id at 751.
Both Friedman and Oliver rely on pre1979 federal cases, including Herman and United States v. Robertson, 582 F.2d 1356 (5th Cir.1978). In the latter case, the Court of Appeals for the Fifth Circuit formulated its well-known “two-tier” analysis: “first, whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion,” and “second, whether the accused’s expectation was reasonable given the totality of the objective circumstances.” Robertson, 582 F.2d at 1366. This analysis was recognized as valid in Friedman and Oliver and is still used by courts, at least in jurisdictions that have not adopted the federal restrictions, to evaluate a defendant’s claim that he was involved in plea-related discussions. See, e.g., State v. Little, 527 A.2d 754, 757 (Me.1987); McKenna v. Nevada, 101 Nev. 338, 705 P.2d 614, 618-19 (1985). As these eases, and Robertson itself, demonstrate, use of the Robertson analysis does not always lead to a ruling that a suspect’s offer to incriminate himself is inadmissible; in many cases the defendant making the offer will not evince a subjective expectation to negotiate a plea or, if he does, the expectation will not be objectively reasonable. In Robertson, the defendant incriminated himself and another in a conversation with government agents in an attempt to secure the immediate release of their female companions:
[Defendant] and [the co-accused] were then only concerned with gaining the release of the women. Knowing that what they said would be brought to the attention of the “Judicial Authorities,” they detailed their involvement and sought to exonerate the women. This, then, was the only purpose of the parking lot conversation [with the agents]: they admitted their own complicity in order to exonerate the women. They did not offer to plead guilty. They did not even contemplate pleading guilty.
Id at 1369-70. Since defendant’s admission was neither an offer to plead guilty nor a statement made in connection with such an offer, his statements in the parking lot were properly admitted and his conviction was affirmed. Id at 1371.
As the majority notes, the court in Robertson held that an offer to confess is not a plea negotiation. However, the court most definitely did not hold that an offer to confess, to be followed in the ordinary course by a guilty plea, is always admissible unless an express willingness to plead guilty accompanies the offer.
The initial inquiry into the accused’s subjective state of mind must be made with care to distinguish between those discussions in which the accused was merely making an admission and those discussions in which the accused was seeking to negotiate a plea agreement. The trial court must appreciate the tenor of the conversation. In those situations in which the accused’s subjective intent is clear and the objective circumstances show that a plea bargain expectation was reasonable, the inquiry may end. For example, if the accused unilaterally offers to “plead guilty,” or to “take the blame,” in exchange for a government concession, then the policy underlying Fed.R.Crim.P. 11(e)(6) and Fed.R.Evid. 410 is served only if the discussions are held inadmissible. That is not to say that we require “a preamble explicitly demarcating the beginning of plea discussions,” United States v. Herman, 544 F.2d at 797. Yet, when such a preamble is delivered, it cannot be ignored. Indeed, even when such nascent overtures are completely ignored by the government, such express unilateral offers ought to be held inadmissible, if the context is consistent.
Robertson, 582 F.2d at 1367 (citations omitted). See also id. at 1371-72 (concurring opinion):
When such a confession is the result of bargaining, I do not believe the protection of the rules should depend on whether the accused utters a few magic words like, “and, of course, I’m also going to plead guilty.” ... Thus, I conclude that ordinarily a bargained for confession is tantamount to a plea negotiation because the reasonable expectation of all parties is that the question of innocence will be disposed of without trial.
The Michigan court in Oliver applied these realistic principles when it observed that the defendant’s question “If I said I did it, would it still be first degree murder[?]” indicated a subjective expectation to negotiate a plea. 314 N.W.2d at 751. Similarly, in the present case, Anderson’s offer to plead guilty to the murder, viewed realistically, indicated a subjective expectation to negotiate a plea in exchange for Olson’s (or someone’s) dropping the Texas burglary charges. To expect that Anderson would append to his offer a ritualistic formula like “and, of course, I’m also going to plead guilty,” and to insist that Anderson’s subjective expectation was unreasonable because he should have recognized that Officer Olson had no authority to negotiate a plea (ie., to arrange for dropping the Texas charges in exchange for a confession to the murder) is the height of artificiality. See Herman, 544 F.2d at 798 (“An accused does not have ready in hand an almanac showing the jurisdictions and powers of the various public officials.”).
Finally, I return to the majority’s novel “reliance” and “awareness of the protection of the rule” rationale to support its holding. I certainly agree with the majority that Rule 410 should be construed in light of its purpose, which, as the majority says, is to encourage negotiations between the defendant and the government. But I cannot see how the majority’s holding that “absent a finding by the court that statements were made in the belief they were under the protection of the rule, ... there is no reason to presume that [the defendant] was motivated to make inculpatory statements in reliance on the rule” furthers this purpose. Indeed, I believe that the “twin goals of encouraging unrestrained plea negotiations and assuring fairness to defendants[,]” Herman, 544 F.2d at 798, are undermined, not promoted, by the majority’s rigid “reliance” and/or “inducement” rule. To borrow from some of Herman's language, id. at 796-97 (making a different, but related, point): “Defendants must be free to participate in open and uninhibited plea discussions, and their decisions to do so must not later be subjected to microscopic judicial examination to determine whether the statements were” made with knowledge of, and consequent reliance upon, the protection afforded by the rule.
I know of no other evidentiary rule whose protection is extended only to a party who knows about, and relies upon, the protection afforded by the rule. For example, the attorney-client privilege and the psychotherapist-patient privilege apply to the client and the patient regardless of whether he or she is aware of the privilege. See SCRA 1986, 11-503 (lawyer-client privilege) and 11-504 (psychotherapist-patient privilege) (both rules defining “confidential” communications; neither including in definitions any requirement that communicator know about or rely upon privilege afforded by rule); see also 81 Am.Jur.2d Witnesses § 377 (1992) (stating that it is not necessary for protection of client against disclosure of communications to client’s attorney that communications be made under injunctions of secrecy and that it is sufficient that attorney-client relation subsists between the parties; if law were otherwise, client would repeatedly have to preface statements to counsel with warning that they were confidential in order to be assured that court might not subsequently deem communications nonconfidential). The purpose of these rules is to facilitate candor, trust, and productivity in the respective relationships. That purpose can hardly be achieved by a “microscopic judicial examination” of whether a particular client or patient, in a specific case, knew about and relied upon the evidentiary rule.
I would reverse the convictions and remand for a new trial. The majority having decided otherwise, I respectfully dissent.
FRANCHINI, J., concur.. The federal rule, as amended effective December 1, 1980, reads in pertinent part as follows:
Except as otherwise provided in this rule, evidence of the following 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 statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.
Fed.R.Evid. 410 (emphasis added).
Before the 1980 amendment, the pertinent part of the rule was almost identical to our own Rule 410 as presently worded. See United States v. Robertson, 582 F.2d 1356, 1364 n. 18 (5th Cir.1978).
. Before its amendment in 1979, the pertinent part (the first sentence) of federal Rule 11(e)(6) was substantively identical, or virtually so, to our own current Rule 5-304(F), which reads: "Evidence of a plea of guilty, later withdrawn, a plea of no contest or guilty but mentally ill, or of an offer to plead guilty, no contest or guilty but mentally ill to the crime charged or any other crime, or of statements made in connection with any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer.” For the text of the pre-1979 federal rule, see United States v. Herman, 544 F.2d 791, 795 n. 6 (5th Cir.1977).
As amended in 1979, federal Rule 11(e)(6), like the current and corresponding federal rule of evidence, makes inadmissible "any statement made in the course of plea discussions with an attorney for the government which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.” Fed.R.Crim.P. 11(e)(6)(D) (emphasis added).