Commonwealth vs. Richard Kinnard II No. CP-38-CR-443-2016; Commonwealth vs. Jared Donovan Jones No. CP-38-CR-424-2016

Criminal Action-Law-Motion in Limine-Admissibility of Evidence-Recorded Statements of Defendant-Correctional Facility-Expected Sentence-Guilty Plea-Relevance of Evidence-Probative Value-Prejudicial Effect

Defendants were charged with Criminal Homicide. One (1) week prior to trial, the Commonwealth filed a Motion in Limine seeking a determination regarding the admissibility of statements made by Defendant Kinnard during telephone conversations intercepted and recorded by the Lebanon County Correctional Facility to unidentified individuals including statements indicating that “…I got some time to do…,” the time would be measured in years, he wanted to prepare his family for the reality that he will be in prison for at least ten (10) years and he would take a reasonable deal and would pursue trial as long as the Commonwealth sought life in prison.

1. The Pennsylvania Rules of Evidence preclude the admission of any statement made during plea discussions with an attorney for the prosecuting attorney.

2. Discussions during plea negotiations are protected by the theory that to permit their admission in evidence at trial would be to place a chilling effect on such discussions.

3. The plea agreement privilege appropriately is applied in circumstances in which the defendant has a subjective expectation that he or she was negotiating a plea agreement and the claimant’s expectation was reasonable under the totality of the circumstances. Commonwealth v. Miller, 568 A.2d 228 (Pa.Super. 1990), citing U.S. v. Robertson, 582 F.2d 1356 (5^th Cir. 1978).

4. Since the statements sought to be admitted were not rendered during negotiation of a plea agreement with the prosecuting attorney, they are not rendered inadmissible under the plea negotiation privilege.

5. For the statements to be admissible, the Court also must determine whether the statements in question are relevant and whether the probative value of the statements outweighs the prejudicial effect of the statements.

6. In light of the fact that it is more probable that the one who expresses willingness to plead guilty to killing someone did, in fact, have a role in the death, the proffered statements are relevant.

7. Pa.R.E. Rule 403 provides that the court may exclude relevant evidence if the probative value of the evidence is outweighed by the danger of unfair prejudice, confusing the issues or misleading the jury.

8. While evidence will not be prohibited simply because it is harmful to the defendant, the court is responsible for excluding evidence that would be so prejudicial that it could divert the jury’s attention away from its duty of weighing the evidence impartially.

9. Sentencing considerations are not relevant during jury deliberations on guilt and may not be considered by the jury in the course of its deliberations.

10. Since the Pennsylvania Supreme Court has cautioned in Commonwealth v. Hicks, 91 A.3d 47 (Pa. 2014), that a trial court should avoid making determinations regarding the admission or exclusion of evidence based upon Rule 403 prior to trial, as Rule 403 generally is not susceptible to accurate pretrial evaluation because the evidence in question must be viewed as part of a whole, a decision regarding the admissibility of the proffered statements pursuant to Rule 403 will be deferred until prior to the end of the presentation of the Commonwealth’s case-in-chief, with Defendants afforded broad latitude to educate the jury regarding considerations in the plea agreement process and the Court’s delivery of carefully constructed instructions to the jury regarding the manner in which such evidence may and may not be considered if the evidence if the Court determines that the evidence is admissible pursuant to Rule 403.

L.C.C.C.P. Nos. CP-38-CR-0000443-2016 and CP-38-CR-0000424-2016, Opinion by Bradford H. Charles, Judge, February 6, 2017.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA CRIMINAL

COMMONWEALTH OF PENNSYLVANIA

VS

RICHARD W. KINNARD, II

NO. CP-38-CR-443-2016

________________

COMMONWEALTH OF PENNSYLVANIA

VS

JARED DONOVAN JONES

NO. CP-38-CR-424-2016

ORDER OF COURT

AND NOW this 6th day of February, 2017, in accordance with the attached opinion, a final decision regarding the Commonwealth’s proffer of tape recorded conversations at the Lebanon County Correctional Facility is deferred until the time of trial.

BY THE COURT:

BRADFORD H. CHARLES, J.

APPEARANCES

Nichole Eisenhart, Esquire

Megan Ryland-Tanner, Esquire For the Commonwealth

DISTRICT ATTORNEYS OFFICE

Nicholas J. Sidelnick, Esquire For Defendant Kinnard

Elizabeth Judd, Esquire

PUBLIC DEFENDERS OFFICE

Ian Ehrgood, Esquire For Defendant Jones

Jon Arnold, Esquire

OPINION BY CHARLES, J., February 6, 2017

Both of the Defendants have been charged with criminal homicide. Trial is scheduled to commence today. Late last week, the parties asked this Court to render an in limine decision regarding the admissibility of certain statements made by Defendant Kinnard during telephone calls that were intercepted and recorded by the Lebanon County Correctional Facility. The critical phone calls are as follows:

On March 27, 2016, Kinnard told an unidentified female that “I got some time to do” and the time would be measured in “years”.

On March 29, 2016, Kinnard told an unknown individual “I am looking at some time” and he references that he will be in prison at least 10 years. He indicated that he wanted to “prepare” his family for that reality.

On May 7, 2016, the Defendant complained to an unknown female about how the Lebanon District Attorney wanted to lock him up for life. In that conversation, he indicated that he would take a “reasonable” deal but that he would take his case to trial so long as the DA continued to ask for life in prison.

The Commonwealth argues that the above conversations should be admitted because they prove that the Defendant knew that he had done something wrong and was going to have to suffer punishment as a result. The Defendants argue that the conversations implicated the possibility of a plea agreement and that it is not appropriate for juries to hear about such matters.

We begin our analysis with the recognition that plea agreement discussions are privileged. In fact, the Pennsylvania Rules of Evidence specifically preclude the admissibility of any statement “made during plea discussions with an attorney for the prosecuting authority…” Our appellate courts have recognized that plea bargaining plays an “essential role… in the administration of justice.” Commonwealth v. Stutler, 966 A.2d 594, 599 (Pa. Super.2009). Accordingly, discussions during plea negotiations “are protected by the theory that to permit their admission in evidence at trial, if negotiations fail or the plea is withdrawn, would be to place a chilling effect on such discussions.” Commonwealth v. Miller, 568 A.2d 228, 231 (Pa.Super.1990).

Of course, not all statements made by a defendant are covered by the plea negotiation privilege. In Commonwealth v. Miller, 568 A.2d 228 (Pa.Super.1990), a suspect called an assistant district attorney to report that the man held by authorities in prison was innocent. During the conversation, the man confessed that he had possession of the weapon used in the crime. After this confession, discussions about a possible plea agreement were undertaken. The confession communicated to the district attorney was admitted in evidence at trial. The defendant appealed on the basis that his confession was part of plea negotiations and should have been suppressed. In addressing the issue, the Pennsylvania Superior Court cited U.S. v. Robertson¸ 582 F.2d 1356 (5^thCir.1978), which is the leading federal case regarding the scope of plea negotiations. In Robertson, the Court applied the plea agreement privilege to circumstances where:

(1) the defendant had a subjective expectation that he was negotiating a plea; and

(2) the defendant’s expectation was reasonable under the totality of circumstances presented.

Using this formula, the Superior Court in Miller held that the defendant’s confession was not made in furtherance of a plea agreement. Rather, the statement was a voluntary admission that subsequently led to plea negotiations. As such, the confession was admitted. See also Commonwealth v. Wolfe, 510 A.2d 764 (Pa.Super.1986).

Admittedly, the law cited above does not specifically address the issue now before this Court. In fact, this jurist conducted roughly six hours of research and could not find any Pennsylvania decision even close to the one now before us. Therefore, we expanded the scope of our search to include decisional precedent from other jurisdictions. Our search revealed two cases almost identical to the one at hand.

In State v. Hill¸2003 W.L. 21321179 (Neb.2003), authorities recorded a conversation between the defendant and his brother. In that conversation, the defendant proclaimed that he would accept a plea agreement if one were to be offered. The trial judge admitted this statement and the defendant appealed by asserting the plea negotiation privilege of Nebraska which is almost identical in its terms to the one we employ in Pennsylvania.

In Hill, the Nebraska appellate Court began its analysis by citing the rule of law articulated in U.S. v. Robertson, supra. The Court then concluded that Hill could not possibly have believed that he was engaging in a plea negotiation when he was speaking with his brother: “clearly, Hill’s brother had no authority to negotiate a plea bargain, and Hill could not even subjectively have believed that his discussion with his brother was part of any plea negotiations.” After rendering this conclusion, the Nebraska Court proceeded to discuss the defendant’s secondary argument involving relevance. The Court also rejected this argument and stated:

It is more probable that one who is willing to plead guilty to killing someone – even manslaughter – did in fact have a role in the death. The precise role of the recording likely depends on the jury’s view of the other evidence, as the weight to be given evidence of willingness to plead guilty has an interdependent relationship with other evidence of guilt.

Having rejected the defendant’s second argument regarding relevance, the Nebraska Court proceeded forward to undertake a “probative value versus prejudicial effect” analysis. Under the unique facts presented, the Nebraska Court held that the probative value of the plea bargain statement outweighed its prejudicial effect. Therefore, the Court affirmed the trial judge’s ruling.

In People v. Aguilar, 2008 W.L. 2352493 (Cal.App.2008), the defendant had a conversation with his brother that was intercepted and recorded by prison officials. In this recorded conversation, the defendant expressed a willingness to accept a plea agreement that called for him to serve sixteen months in prison. The defendant objected to the admissibility of this statement on the basis of the plea negotiation privilege. The California Appellate Court rejected this argument and declared that the plea negotiation privilege applies only to statements made during “bona fide plea negotiations.” The Court stated that the defendant’s statements were “volunteered to an unidentified acquaintance during a telephone call the defendant knew was being monitored and recorded. Because the defendant’s statements were not made within the context of bona fide plea negotiations, evidence of this plea deal was properly admitted.”

We are well aware that neither Hill nor Aguilar represents binding precedent in this Commonwealth. Nevertheless, Hill and Aguilar were the only cases we found in six hours of research that involved a statement by defendant to someone unaffiliated with law enforcement about his willingness to accept a plea agreement. We find the analysis of the Courts in Hill and Aguilar to be persuasive.

By definition, acceptance of a plea agreement presupposes an admission of guilt. By definition, a willingness to accept ten years in prison presupposes a willingness to accept responsibility for some antisocial act. To borrow the words of the Nebraska Appellate Court: “It is more probable that one who is willing to plead guilty to killing someone … did in fact have a role in the death.” Because of this reality, we conclude that the Commonwealth’s proffered evidence is relevant.

Based upon the above, we reject the defendants’ argument that the intercepted prison telephone calls are inadmissible due to the plea negotiation privilege. We also reject the defendants’ argument that the evidence lacks relevance. Reaching these conclusions gets the Commonwealth two-thirds of the way toward its goal of presenting the telephone calls to the jury. One additional hurdle exists.

PaREv 403 states: “the Court may exclude relevant evidence if its probative value is outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury…” Thus, “trial judges have authority to oversee the presentation of evidence so that overtly passionate, intentionally biased and inflammatory material is kept out of the courtroom.” See 27 Standard Pa.Practice 2d §135:186 (probative value outweighed by prejudice or other circumstances). While evidence will not be prohibited simply because it is harmful to the defendant, trial courts are responsible to exclude evidence that would be so prejudicial that it could divert the jury’s attention away from its duty of weighing evidence impartially. See comment to Pa.R.Ev. 402, Commonwealth v. Antidormi, 84 A.3d 736 (Pa.Super.2014).

In this case, we confess to a certain degree of uneasiness about the evidence proffered by the Commonwealth. The contents of the telephone conversations implicate the type of punishment that the defendants could face if convicted. We are aware that “sentencing considerations are not relevant during deliberations on the degree of guilt.” Commonwealth v. Washington, 700 A.2d 400, 413 (Pa.1997), and that “the question of punishment is one left to the court and may not be considered by jurors during the course of deliberations.” Commonwealth v. Bowser, 624 A.2d 125, 135 (Pa.Super.1993). In addition, we have always found that the concept of plea bargaining is one that is very difficult for the general public to understand. Therefore, there is some risk that a jury could be confused by the telephone calls, especially if they are unaccompanied by proper context.

Our Commonwealth’s highest court has cautioned us that we should avoid making “probative value versus prejudicial effect” decisions prior to trial. In Commonwealth v. Hicks, 91 A.3d 47 (Pa.2014), our Commonwealth’s highest Court stated:

Here, the trial court excluded proffered testimony pre-trial pursuant to Rule 403, a rule that, as explained infra, is generally not susceptible to accurate pre-trial evaluation. Unlike other rules of evidence, rule 403 requires a trial court to weigh probative value and prejudice – the cost and benefits of relevant evidence – viewing it as part of a whole and not in isolation. Inherent in the Rule is the assumption that the Court has an adequate record, one that will mirror or provide great insight into what will develop at trial. In the majority of cases, and particularly manifested in this one, the trial court has no way of knowing beforehand exactly what evidence will be presented at trial. Depending on the case and the inevitable vagaries of litigation, the pre-trial record may be entirely different than the record that eventuates as matters unfold. Even if the evidence the parties intend to present is set, a trial rarely follows the anticipated script. The actual value of evidence may differ substantially from pre-trial expectations, depending on all manner of factors, such as the availability, appearance, memory or demeanor of a witness, admissions on cross-examination, the defense theory, or the defendant’s decision whether or not to testify. Even a relatively developed pre-trial record will be of limited utility in predicting the probative value or prejudice a particular piece of evidence will ultimately have. Therefore, the ruling is better deferred until the situation is clear, not speculative.

Id. at p.52-53.

As we stated to both counsel repeatedly, we do not have anything close to a perfect understanding of what will be presented at this trial… and we are not prescient. Because of this, we simply cannot and will not render a final decision regarding admissibility of the Commonwealth’s proffered telephone conversations. However, we will communicate the following to all parties:

(1) The Defendants’ objections to the Commonwealth’s profer based upon the plea bargain privilege and relevance are overruled.

(2) The Commonwealth will be directed to delay presentation of the evidence regarding the intercepted prison telephone calls until the end of its case in chief. At that time, we will conduct an argument outside the presence of the jury regarding the probative value versus prejudicial effect question.

(3) If we decide to admit the evidence proffered by the Commonwealth we will afford the defense with broad latitude to educate the jury regarding the plea agreement process, and the difficult decisions that the process sometimes creates for defendants charged with crimes.

(4) If the Commonwealth’s evidence is admitted, we will carefully craft instructions to the jury that outline how they can and cannot consider the evidence contained in the telephone conversations. Of course, we will solicit input from all counsel regarding these instructions before they are offered.

 

1) See also, People v. Gonzalez, 2008 W.L. 1072274 (Cal.App.2008), where the Court declared that the statement “I’m going to take ten years, the first deal they give me. Ten years is better than life” to be relevant to the Defendant’s “consciousness of guilt.”