Marijuana Admission for TASC Drug Treatment Program Was Evidence at Criminal Trial
In this marijuana possession case, the statement made by defendant in order to participate in Maricopa County’s Treatment Assessment Screening Center (TASC) deferred prosecution program was admission of guilt used against him at trial; and was not barred by Ariz. Rule of Evidence 410(a)(4) which applies to plea negotiations.
In 2013, a security guard found the defendant in a restroom stall with several grams of marijuana. The defendant was initially charged with a class 6 felony for drug possession. In June 2014, the defendant rejected a plea agreement at a pretrial conference. In July, the charges were reduced to a class 1 misdemeanor.
Deferred Prosecution Agreement and TASC Registration
At a September 3, 2014, settlement conference, the defendant agreed to participate in the Maricopa County’s Treatment Assessment Screening Center (TASC), signing a deferred prosecution agreement. Registration in the TASC drug treatment program followed the same day.
Importantly, TASC registration included defendant’s completing a form: “Maricopa County Attorney / TASC Drug Diversion Program Statement of Facts.” He initialed that he understood his Miranda rights and, also, avowed he understood that “what I have written here may be used against me in a court of law should I fail to satisfactorily complete the TASC program.” He then described his offense as “the marijuana was found in the bathroom on the ground in my possession.” This was an admission.
In December 2014, the State resumed prosecution after the defendant failed to satisfactorily complete TASC. (Defendant tested positive for alcohol and marijuana, and missed required TASC seminars.) At a bench trial the defendant, through his criminal defense attorney, moved to suppress his TASC statements and admission of guilt arguing they were made during plea discussions and were inadmissible under Ariz. Rule of Evid. 410(a)(4). The motion was denied.
The defendant was convicted and sentenced to one year of unsupervised probation. Defendant appealed. The Arizona Supreme Court vacated the opinion of the Court of Appeals and affirmed the conviction and penalty imposed by the trial court.
Plea Discussions Are Not Deferred Prosecution Discussions
The main issue before the Arizona Supreme Court was of statewide importance. Does Rule 410(a)(4) apply to deferred prosecution agreements? No it does not.
Rule 410(a)(4) on pleas, plea discussions and related statements provides as follows:
(a) Prohibited Uses. Except as otherwise provided by statute, in a civil or criminal case, or administrative proceeding, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:
(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.
In other words, statements made by a defendant during plea negotiations with the prosecutor must be excluded from evidence if plea discussions do not result in a guilty plea.
In its analysis of the case, the Arizona Supreme Court answered three questions:
Are statements made in TASC in furtherance of plea discussions?
Did the TASC representative act as the prosecutor’s agent?
Did the defendant waive his Rule 410 protections?
On the first question, the TASC program is for diversion in lieu of prosecution and, therefore, is “deferred prosecution.” Looking at the facts of the case, at the September 3 settlement conference, only two alternatives were covered: trial or deferred prosecution.
The Supreme Court held that Rule 420(a)(4) does not apply to discussions about deferred prosecution.
Plea discussions and deferred prosecution discussions are categorically different. With a plea discussion, the prosecutor and defendant negotiate whether the defendant will plead guilty or no contest to the offense in exchange for some concession by the State in on any aspect of the disposition of the case. With a plea bargain, a guilty plea will not result in dismissal of all charges.
By contrast, deferred prosecution involves defendant and prosecutor negotiating whether the defendant will participate in “special supervision program” wherein the State “diverts or defers, before a guilty plea or a trial, the prosecution of a person who is accused of committing a crime.” ARS § 11-361. Defendant participates in the supervision program before a guilty plea or trial. With pretrial diversion, therefore, if the defendant satisfactorily completes the pretrial supervision program (TASC), then the court dismisses all charges. Ariz. R. Crim. P. 38.3(b). With pretrial diversion and a deferred prosecution agreement, the result can be a dismissal of all charges.
The Arizona Supreme Court held that discussions about pretrial diversions and deferred prosecutions are not governed by Rule 410(a)(4) or Ariz. Rule of Crim. P. 17.4(f). However, the court noted that if a settlement conference on plea discussion morphs into deferred prosecution, then Rule 410(a)(4) might apply. Furthermore, what are considered to be statements made during plea discussions should not be narrowly construed. Lower courts should not limit Rule 410 more narrowly than the rule’s text:
“Just because a defendant makes statements after rejecting a plea offer does not necessarily mean that those subsequent statements were not made during plea discussions. The category of statements made ‘during plea discussions’ is larger than merely statements made ‘before rejecting a plea offer,’ because plea discussions may involve a series of offers, rejections, and counter-offers before they are successfully concluded or terminated.” [Emphasis omitted.]
TASC Representative Was Not an Agent of the Prosecutor
On the second question, the Arizona Supreme Court cited authority that Rule 410 extends to the prosecutor’s agents even if those agents are non-attorneys who have been authorized by the prosecutor to negotiate pleas. The court held, however, that the TASC representative was not an agent of the prosecutor for purposes of negotiating a plea because no plea was negotiated at the September 3 settlement conference. Rule 410 was inapplicable.
When is a private party acting as an agent for the prosecutor for purposes of negotiating a plea? It depends upon the government’s knowledge and acquiescence and the intent of the private party.
Waiver of Protections Under Rule 410(a)(4)
On the final question, the Arizona Supreme Court held that any waiver must be “knowing and voluntary.” It applied federal authority as Arizona’s rule mirrors Fed. R. Evidence 410(a)(4). In 1995, the U.S. Supreme Court held that a Rule 410 waiver is enforceable “absent some affirmative indication that the agreement was entered into unknowingly or involuntarily.” Citing U.S. v. Mezzanatto, 513 U.S. 196, 210 (1995). That the waiver did not specifically reference Rule 410 did not render this defendant’s waiver unknowing or involuntary.
Arizona v. Gill, CR-16-0286-PR (Ariz. Sup. Ct. April 13, 2017)
For precise language, read the court’s original opinion. Legal citations omitted.
For more information about drug possession in Arizona, take a look at our discussion of dangerous drug offenses.