A Defendant's In Court Explanation For Rejecting A Plea Offer May be Admissible Under Rule 410.

State v. Brown, Mn.Ct.App., 12/16/2008.

The State charged Mr. Brown with attempted second degree murder, and with possession of a pistol without a permit.  The state offered a plea to the attempt, with a recommended sentence of 130 months.  At the pretrial, in the midst of making a record of this offer, Mr. Brown engaged in a spirited colloquy with the trial court, after which he entered a plea of not guilty.  Among other statements, Mr. Brown asserted a defense of self defense and defense of others, and claimed that he had a permit for the pistol.

At trial, Mr. Brown testified, again asserting his claims of self defense and defense of others.  He also testified that he did not have a permit for the gun.  The prosecutor was all over this, asking if it wasn't true that Mr. Brown had previously told the court that he did have a permit.  After the trial court over ruled the objection to the question, Mr. Brown stated that he did recall saying that.  The defense thought that Mr. Brown's statements during the discussion of the plea offer were excluded from evidence under Rule 410, which states in pertinent part:

Evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime or of statements made in connection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, criminal, or administrative action, case, or proceeding whether offered for or against the person who made the plea or offer.

The Court of Appeals agreed with the trial court's ruling.  It pointed out that Mr. Brown neither pled guilty nor offered to do so.  In fact, he mostly complained that he should not have been charged with the attempt because his actions were justified, and then he lied about having a gun permit. 

Whether Rule 410 excludes a defendant's statements is a question of law that the appeals court reviews de novo.  Whether the rule excludes statements that are made in response to a plea offer made by the state is to be decided under the totality of the circumstances, employing a two step inquiry.  First, did the defendant exhibit an actual subjective expectation to negotiate a plea at the time of the discussion; and, second, was the expectation reasonable under the totality of the objective circumstances.

Now, the colloquy that is reproduced in the Opinion does support the conclusion that Mr. Brown had no interest in pleading guilty to the attempt charge.  At the same time, he had no need to say anything about the permit charge because the deal called for its dismissal.  His admittedly false statement about having a permit was a throw away at the time he made it.  The court could have admitted the pretrial false claim about having a permit without any regard for Rule 410 at all.  Instead, the court engages in a Rule 410 analysis of other statements then includes this permit claim into the mix.