ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Matthew Jon McGovern Gregory F. Zoeller
Evansville, Indiana Attorney General of Indiana
Matthew Whitmire
Deputy Attorney General
Indianapolis, Indiana
Ian McLean
Deputy Attorney General
Indianapolis, Indiana
FILED
______________________________________________________________________________
In the May 19 2010, 2:39 pm
Indiana Supreme Court CLERK
of the supreme court,
_________________________________ court of appeals and
tax court
No. 82S01-0909-CR-408
GABINO GONZALEZ,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
_________________________________
Appeal from the Vanderburgh Superior Court, No. 82D02-0610-FD-898
The Honorable Mary Margaret Lloyd, Judge
_________________________________
On Petition to Transfer from the Indiana Court of Appeals, No. 82A01-0809-CR-406
_________________________________
May 19, 2010
Boehm, Justice.
We hold that a defendant’s statements made to a victim or to the court in an effort to gain
acceptance of a plea agreement by the court are statements in connection with a plea agreement
and therefore are not admissible in evidence pursuant to Evidence Rule 410. In this case the
defendant’s letter of apology to a victim was admitted at his trial after a plea agreement was
rejected. This was error but under the facts of this case the error was harmless.
Facts and Procedural History
A truck driven by Gabino Gonzalez failed to yield at an intersection and struck a school
bus operated by Evansville-Vanderburgh School Corporation (―EVSC‖). The bus was declared a
total loss and its driver and thirteen children sustained cuts and bruises resulting in hospital bills
totaling approximately $9,000. Gonzalez was charged with criminal mischief, operating a
vehicle while intoxicated, operating a vehicle with a blood alcohol content of 0.15 or more, and
operating a vehicle while intoxicated endangering a person.
Gonzalez agreed to plead guilty to criminal mischief and operating a vehicle while
intoxicated endangering a person. The trial court took the plea agreement under advisement and
postponed the sentencing hearing to permit EVSC to consider whether to object to the
agreement. Two weeks before the hearing, Gonzalez sent a letter to EVSC expressing his regret
to all who were ―involved in the terrible accident I caused,‖ apologizing for his ―irresponsible
actions‖ and ―poor decision to drink that day,‖ and asking EVSC to show compassion to him and
his family. He promised to seek alcohol counseling and asked EVSC to consider that ―no one
was hurt in the accident.‖
The court rejected the plea and the case went to trial where Gonzalez’s letter was
admitted over his objection. After the court dismissed the charge of operating a vehicle with a
blood alcohol content of 0.15 or more, the jury found Gonzalez guilty of the remaining charges.
The Court of Appeals reversed, finding that Gonzalez’s letter was inadmissible because it
was written as a part of a plea negotiation and that the error ―likely had a significant effect on the
jury.‖ Gonzalez v. State, 908 N.E.2d 313, 315, 319 (Ind. Ct. App. 2009). We granted transfer.
I. Statements in Connection with a Plea Agreement
Gonzalez argues that his letter was inadmissible because he authored it and addressed it
to EVSC in the course of the plea negotiation in an effort to convince EVSC not to object to the
plea agreement. The State counters that the letter was not a part of the plea negotiation because
it was written after the agreement between Gonzalez and the State had been signed. The State
also argues that the letter was admissible because it was addressed to EVSC, the victim, and not
to an entity with authority to enter into a binding plea agreement.
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The common law, an Indiana statute, and Evidence Rule 410 all recognize that statements
incident to plea bargaining may be inadmissible at trial. Gilliam v. State, 650 N.E.2d 45, 49
(Ind. Ct. App. 1995). This rule is designed to encourage open discussion in the plea bargaining
process. Stephens v. State, 588 N.E.2d 564, 565–66 (Ind. Ct. App. 1992), trans. denied. This
exclusion is rooted in the same policy considerations that underlie excluding offers of civil
compromise in civil cases. 2 McCormick on Evidence § 266, at 237 (Kenneth S. Broun et al.
eds., 6th ed. 2006); see Bules v. Marshall County, 920 N.E.2d 247, 252 (Ind. 2010) (―[This rule]
is designed to facilitate settlement by promoting candor in settlement discussions . . . .‖).
We last addressed the scope of the privilege for plea negotiations in Martin v. State, 537
N.E.2d 491 (Ind. 1989). Martin held that a suspect’s inquiry of a probation officer regarding the
prospects of a plea agreement was not within the privilege. Martin was decided under Indiana
Code § 35-35-3-4, which provides:
A plea agreement, or a verbal or written communication concerning the plea
agreement, may not be admitted into evidence at the trial of the case, should the
plea agreement not culminate in approval by the court.
Martin dealt with statements by the defendant before any plea negotiations had begun and held
the statements were therefore not within the privilege. We reasoned that the plea bargaining
process does not start until the parties have agreed to negotiate. Martin, 537 N.E.2d at 493
(citing Chase v. State, 528 N.E.2d 784, 786 (Ind. 1988)). We also held that in order to qualify as
a privileged communication, a statement must meet two requirements: ―first, the defendant must
have been charged with a crime at the time of the statement, and, second, the statement must
have been made to someone with authority to enter into a binding plea bargain.‖ Id. The State
contends that this second requirement rendered the privilege unavailable for Gonzalez’s letter to
EVSC. As explained below, we do not agree.
In 1994, Indiana adopted the current Evidence Rules, including Evidence Rule 410,
which reads:
Evidence of a plea of guilty or admission of charge which was later withdrawn, or
a plea of nolo contendere, or of an offer so to plead to the crime charged or any
other crime, or of statements made in connection with any of the foregoing
withdrawn pleas or offers, is not admissible in any civil or criminal action, case,
or proceeding against the person who made the plea or offer.
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The rule arguably broadens somewhat the range of privileged communication, expanding from
the statutory privilege for statements ―concerning‖ a plea agreement to those ―in connection
with‖ an agreement.
As Martin held, the privilege attaches only after a plea negotiation has begun. In this
case that is no issue because a plea agreement had been reached and was under consideration by
the court. Only the prosecutor has the authority to enter into a plea agreement, and certainly a
defendant’s statements in the course of negotiation with the prosecutor are within the privilege
afforded by the plea negotiation. The purposes of the rule require also excluding statements to
some persons in addition to those with authority to enter into a binding agreement. Under
Indiana law, after a defendant and the State enter into a plea agreement, the trial court is required
to order a presentence report. I.C. § 35-35-3-3(a). The probation officer preparing this report is
to gather information regarding ―the circumstances attending the commission of the offense.‖
I.C. §§ 35-38-1-8(a), -9(b)(1). The plea agreement must also be shown to the victim, who has a
right to comment on the crime and the proposed sentence. I.C. § 35-35-3-5. The agreement is
not final until it is approved by the trial court. I.C. § 35-35-3-3. In the course of this process, the
defendant may make statements to the victim, the trial judge, or other court officers. These
statements are within the language of both the statute (―concerning‖ a plea agreement) and
Evidence Rule 410 (―in connection with‖ a plea agreement). Moreover, the purposes of the
rule—to encourage candor and facilitate a plea agreement–—are best furthered by excluding any
concessions from evidence if the plea is not finalized. Accordingly, we hold that for a statement
to be a privileged communication, the defendant must have been charged with a crime at the time
of the statement and the prosecutor and the defendant must have initiated discussions related to a
plea agreement. Second, the statement must have been made with the intent of seeking a plea
agreement or in contemplation of a proposed agreement. Third, the statement is privileged if
made to someone who has the authority to enter into or approve a binding plea agreement or who
has a right to object to or reject the agreement.
Here, Gonzalez and the State had agreed to a proposed plea agreement. Before the
agreement could be finalized, it required approval of the trial court. EVSC, as a victim of the
accident, had a right to express its opinion to the court as to approval of the agreement.
Gonzalez then wrote the letter in question to EVSC in an attempt to persuade it to accept the
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agreement. Gonzalez’s letter had ―as its ultimate purpose the reduction of punishment or other
favorable treatment from the State to the defendant.‖ Gilliam, 650 N.E.2d at 49 (quoting
Crandell v. State, 490 N.E.2d 377, 380 (Ind. Ct. App. 1986) trans. denied). Gonzalez’s letter was
therefore a communication made in connection with his guilty plea. Accordingly, the trial court
erred in admitting the letter at trial.
II. Harmless Error
The State contends that even if the trial court erred in admitting Gonzalez’s letter at trial,
the error was harmless. We agree.
An error in admitting evidence does not require reversal unless it affects the substantial
rights of a party. Stewart v. State, 754 N.E.2d 492, 496 (Ind. 2001). The effect of an error on a
party’s substantial rights turns on the probable impact of the impermissible evidence upon the
jury in light of all the other evidence at trial. Id. Put differently, the error is harmless when the
conviction is supported by such substantial independent evidence of guilt that there is no
substantial likelihood that the impermissible evidence contributed to the conviction. Barker v.
State, 695 N.E.2d 925, 931 (Ind. 1998).
To convict Gonzalez of criminal mischief as a Class D felony, the State was required to
prove that Gonzalez recklessly, knowingly, or intentionally damaged EVSC’s property without
its consent, and the damage was worth more than $2,500. I.C. § 35-43-1-2(a). To convict
Gonzalez of operating a vehicle while intoxicated endangering a person, a Class A misdemeanor,
the State was required to prove that Gonzalez drove his truck, while intoxicated, in a manner that
endangered a person. I.C. § 9-30-5-2.
At trial, one bystander who witnessed the accident testified that Gonzalez’s truck was
―flying down the street‖ and ―going way faster than the speed limit‖ in a residential
neighborhood, almost hit a car, and forced a second vehicle to drive into a yard. Gonzalez failed
to yield at an intersection and struck the school bus with such force that the bus fell on its side.
The bystander and the bus driver both testified that they did not hear Gonzalez attempting to
brake before hitting the bus. The bystander also testified that Gonzalez was disoriented, needed
to be held up, and urinated as he was taken from his truck.
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Sergeant Darren Sroufe, who was called to the scene, testified that the damage to the bus
and Gonzalez’s truck suggested that Gonzalez was driving fifty to sixty miles per hour—in a
thirty miles-per-hour zone—and that the absence of skid marks showed a failure to brake.
Sroufe also testified that Gonzalez and his passenger were both trapped in his truck and had to be
released by the Fire Department. After Gonzalez exited his truck, Sroufe observed that
Gonzalez’s eyes were bloodshot, his speech was slurred, and he was disoriented and unable to
stand on his own. Sroufe smelled alcohol on Gonzalez’s breath and in the truck itself.
Detective Douglas Daza, who responded to the scene and tried to elicit information from
Gonzalez, testified that Gonzalez appeared to be intoxicated because his eyes were ―extremely
bloodshot and watery,‖ he smelled ―strongly‖ of alcohol, and he had problems responding to
questions. Officer Chris Joergen, who met with Gonzalez after he was taken to the hospital,
testified that Gonzalez smelled of alcohol, was uncooperative, and was intoxicated or impaired.
The nurse who treated and admitted Gonzalez as an ―inebriated post-trauma patient‖ testified
that he said he had been at a party drinking that day.
In short, the evidence supporting Gonzalez’s conviction was overwhelming without the
letter. Five witnesses—including four who had received training in identifying intoxicated
individuals—testified that Gonzalez appeared to be intoxicated at the time of the accident.
Gonzalez’s excessive speed and failure to yield constituted reckless driving. Gonzalez ―flew‖
through a residential neighborhood, caused more than $25,000 in damages to the bus he struck,
and endangered thirteen students, the bus driver, Gonzalez’s passenger, and other bystanders.
There was essentially uncontroverted independent evidence supporting each charge, and the error
in admitting his letter was therefore harmless.
Conclusion
Gonzalez’s conviction and sentence are affirmed.
Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ., concur.
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