In re Pers. Restraint of Cross ( 2013 )

Fl L E
IN CLERKS OFFICE
llJIAEME COURT, STATE OF WASHINGTON
This oplnlonwas filed fOr record.
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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In the Matter of the Personal )
Restraint of ) No. 79761-7
)
DAYVA CROSS, ) EnBanc
)
Petitioner. ) Filed -SEP 2 6 2013
CHAMBERS, J. *-Dayva Cross pleaded guilty to killing his wife and two of
her three daughters in 2001 and was sentenced to death. State v. Cross, 156 Wash. 2d
580, 592, 132 P.3d 80 (2006). We affirmed his sentence on direct review. !d. When
Cross entered his plea he did so by what we commonly call an A!fori plea. In an
Alford plea, the accused technically does not acknowledge guilt but concedes there is
sufficient evidence to support a conviction. A judge may accept such a plea only if it
is made voluntarily, competently, with an understanding of the nature of the charge
and the consequences of the plea, and when the judge is satisfied that there is a factual
*Justice Tom Chambers is serving as a justice pro tempore of the Supreme Court pursuant to
Washington Constitution article IV, section 2(a).
1
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). We adopted the
Alford holding in State v. Newton, 87 Wash. 2d 363, 552 P.2d 682 (1976).
In re Pers. Restraint of Cross, No. 79761-7
basis for the plea. State v. A.NJ, 168 Wash. 2d 91, 117, 225 P .3d 956 (20 10) (citing In
re Pers. Restraint of Mendoza Montoya, 109 Wash. 2d 270, 277, 744 P.2d 340 (1987));
CrR 4.2(d). In his first personal restraint petition challenging the judgment and
sentence, Cross contended, among other things, that an Alford plea is insufficient to
support capital punishment and asked that we vacate his sentence and remand to the
trial court with direction that the Alford plea be set aside, essentially rolling this case
back to where it was in 2000. If Cross had prevailed on this issue, much of his
personal restraint petition would have been mooted, so this court agreed to consider
the issue separately. After oral argument we denied relief by order with opinion to
follow. This is that opinion. We hold that a capital sentence can be predicated on an
Alford plea and deny that portion of his personal restraint petition. The remaining
issues will be disposed ofby separate opinion.
ANALYSIS
The character of the claimed error as constitutional or non constitutional would
normally both structure our review and establish the petitioner's burden. At
minimum, Cross must establish error and actual and substantial prejudice. In re Pers.
Restraint of Cook, 114 Wash. 2d 802, 810-12, 792 P.2d 506 (1990). The parties have
elected not to discuss this character of the error and instead focus on the claimed error
itself. Applying the minimum burden Cross must meet, we find no error and thus
need not decide its character.
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In re Pers. Restraint of Cross, No. 79761-7
1. Common Law No-Contest Pleas
Essentially, Cross proposes a syllogism. At common law, a defendant could
not plead no-contest to a capital charge. An Alford plea, he argues, is essentially a no-
contest plea. Therefore, he concludes, Judge Joan DuBuque should not have accepted
't
1 .2
Cross's first premise is correct. By the mid-fourteenth century, English courts
were accepting various types of no-contest pleas in misdemeanor cases. Neil H.
Cogan, Entering Judgment on a Plea ofNolo Contendere: A Reexamination ofNorth
Carolina v. Alford and Some Thoughts on the Relationship Between Proof and
Punishment, 17 ARIZ. L. REV. 992, 1003, 1007 (1975). For example, by 1431,
defendants could enter a plea of"'ponit se in gratiam domini Regis'- he puts himself
in the grace of the lord King," without specifically admitting guilt. !d. at 1005. But if
charged with a felony, the defendant had the choice of confession, what we now call a
guilty plea, or denial, what we now call a not guilty plea. !d. at 999, 1002. If the
defendant denied the charge, he had to consent to some sort of trial. !d. If the
defendant declined to plea, he could be tortured or imprisoned until he did. !d. at
1002-03 & n.86. There was apparently no mechanism for a trial judge to enter a plea
on the defendant's behalf.
2
The only court to consider whether an Alford plea could be accepted to a capital charge
squarely dismissed the argument in three summary paragraphs, albeit with no discussion of the
common law. State v. Ray, 310 S.C. 431, 435, 427 S.E.2d 171 (1993).
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"Because the plea of ponit se in gratiam presented proof of guilt with reduced
certainty, the punishment meted out to the accused appears to have been
correspondingly reduced." I d. at 1011 (citing WILLIAM LAMBARD, EIRENARCHA 512
(1599)). Ponit se in gratiam could not be pleaded to felonies (which at the time
almost always carried a potential death sentence) because "an implied admission was
proof of insufficient certainty upon which to put a person to death." Cogan, supra, at
1013; see also Nathan B. Lenvin & Ernest S. Meyers, Nolo Contendere: Its Nature
and Implications, 51 YALE L. J. 1255, 1262-63 (1942).
Defendants were pleading nolo contendere in England by 1716 and New York
by 1721. Cogan, supra, at 1014, 1015 (citing THOMAS FARRESLEY, MODERN CASES
(1716); JULIUS GOEBEL, JR. & T. RAYMOND NAUGHTON, LAW ENFORCEMENT IN
COLONIAL NEW YORK 592-93 & n.180 (1944)). Over the years, nolo contendere and
non vult contendere pleas were allowed for noncapital felonies, but less than a century
ago the Pennsylvania Supreme Court observed, "[N]either in England nor in this
country has the plea ever been allowable in capital cases." Commonwealth v. Shrope,
264 Pa. 246, 250, 107 A. 729 (1919); see also Cogan, supra, at 999. Instead, in
capital cases, "guilt must be established by evidence which excludes all reasonable
doubt. An implied confession of guilt cannot rise to the degree of certainty which
would make it the equivalent of an express confession." Shrope, 264 Pa. at 250; see
also Hudson v. United States, 272 U.S. 451, 451-52, 47 S. Ct. 127, 71 L. Ed 347
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In re Pers. Restraint of Cross, No. 79761-7
(1926); 3 State ex rel. Clark v. Adams, 144 W.Va. 771, 779, 111 S.E.2d 336 (1959)
("The courts, however, are unanimous in holding that in the absence of a statute to the
contrary the plea of nolo contendere can not be accepted to an indictment for an
offense for which capital punishment is prescribed."). Despite the history of refusing
to accept the plea in felonies, in 1926, the United States Supreme Court approved the
use of a nolo contendere plea in crimes that carried a prison sentence. Hudson, 272
U.S. at 452, 457.
There is nothing mystical about common law courts' reluctance to accept these
various types of no-contest pleas in capital cases. While a confession was accepted as
sufficient evidence of guilt at common law, once various types of duels and ordeals
were set aside, there was no other way to test whether there was sufficient evidence of
guilt except by trial. Cogan, supra, at 1000, 1003. Trial, it seems, could be held only
if the defendant consented. !d. at 999 & nn.68-69. If the defendant did not consent to
3
As the Supreme Court noted in Hudson,
"An implied confession is where a defendant, in a case not capital, doth not
directly own himself guilty, but in a manner admits it by yielding to the king's
mercy, and desiring to submit to a small fine: in which case, if the court think fit
to accept of such submission, and make an entry that the defendant posuit se in
gratiam regis, without putting him to a direct confession, or plea (which in such
cases seems to be left to discretion), the defendant shall not be estopped to plead
not guilty to an action for the same fact, as he shall be where the entry is quod
cognovit indictamentum."
Hudson, 272 U.S. at 453 (emphasis added) (quoting 2 WILLIAM HAWKINS, PLEAS OF THE CROWN
466 (8th ed. 1824)).
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In re Pers. Restraint of Cross, No. 79761-7
some method of proof, the judge could be put in the position of sentencing a man to
death with only the accusation as evidence of guilt. As Professor Cogan noted:
[A]n accused's refusal to confess or deny/consent, even if characterized as an
implied admission, provided no such sufficient proof, evil fame of the accused
notwithstanding. An accused might have refused to confess or deny/consent
for many reasons, including among others, avoidance of forfeiture of lands and
tenements, and distrust of the mode of proof. Thus, while it might have been
reasonable to imply guilt from an accused's refusal to expressly admit or deny,
such an implied admission appears not to have been clothed with enough
certainty to constitute sufficient proof for a felony. Misdemeanors, on the other
hand, were treated somewhat differently.
Cogan, supra, at 1003 (footnote omitted).
2. Alford Pleas
However, the next leg of Cross's syllogism, that the Alford plea4 is essentially
the same as the common law no-contest plea, fails. Unlike the common law no-
contest pleas that could be entered without any factual support or independent
determination of the existence of sufficient evidence to support a finding of guilt, an
Alford plea in Washington State courts can be accepted only if the trial judge finds
4Henry Alford had been charged with first degree murder inN orth Carolina. After his attorney
interviewed his proposed alibi witnesses and found they were unwilling to corroborate his
absence from the crime scene, he agreed to plead guilty while maintaining his innocence. He
later sought habeas relief in the federal courts on the theory that the due process clause of the
Fourteenth Amendment did not allow a court to accept a guilty plea from defendants who
maintained their innocence. The court disagreed. "In view of the strong factual basis for the
plea demonstrated by the State and Alford's clearly expressed desire to enter it despite his
professed belief in his innocence, we hold that the trial judge did not commit constitutional error
in accepting it." North Carolina v. Alford, 400 U.S. 25, 38, 91 S. Ct. 160, 27 L. Ed. 2d 162(1970).
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In re Pers. Restraint of Cross, No. 79761-7
that it is knowingly, voluntarily, and intelligently made, and that there is a satisfactory
evidentiary basis to accept the plea:
The court shall not accept a plea of guilty, without first determining that it is
made voluntarily, competently and with an understanding of the nature of the
charge and the consequences of the plea. The court shall not enter a judgment
upon a plea of guilty unless it is satisfied that there is a factual basis for the
plea.
CrR 4.2( d). That evidence can come from any reliable source and must be sufficient
for a jury to conclude the defendant is guilty. State v. Newton, 87 Wash. 2d 363, 369-70,
552 P.2d 682 (1976).
Thus, looking beyond the mere title of the pleas, the practical reason for
refusing to accept a no-contest plea at common law-that there was no mechanism to
decide if there was an evidentiary basis for the plea-does not exist for an Alford plea.
A trial judge may not accept an Alford plea without an evidentiary basis and without
concluding that the plea is knowing, voluntary, and intelligent. CrR 4.2( d). We
conclude that the historical common law bar to no-contest pleas in capital cases does
not apply to Alford pleas.
Alternatively, Cross argues that the trial judge was implicitly forbidden from
accepting his Alford plea by statute. As he notes, the Washington Legislature has, in
broad terms, incorporated the common law:
The provisions of the common law relating to the commission of crime and the
punishment thereof, insofar as not inconsistent with the Constitution and
statutes of this state, shall supplement all penal statutes of this state and all
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In re Pers. Restraint of Cross, No. 79761-7
persons offending against the same shall be tried in the courts of this state
having jurisdiction of the offense.
RCW 9A.04.060. But his alternative argument fails for the same reason the
substantive argument fails-because it presumes that an Alford plea is substantially
similar to a common law no-contest plea, and thus the common law prohibition would
apply.
Cross also stresses that no-contest pleas have never been explicitly authorized
by our legislature or by court rule. See CrR 4.2(a) ("A defendant may plead not
guilty, not guilty by reason of insanity, or guilty."); CODE OF 1881, § 1054 ("There
are but three pleas to the indictment. A plea of: 1. Guilty. 2. Not guilty. 3. A former
judgment of conviction or acquittal .... "). Therefore, he reasons, "this Court can
only conclude that the Legislature has declined to authorize the acceptance of an
Alford plea in a capital case." Suppl. Br. ofPet'r at 10. But while the legislature has
not explicitly approved of Alford pleas, this court has. Newton, 87 Wn.2d at 372.
While Newton suggests that a trial court should be careful in accepting an Alford plea
when the defendant actually asserts innocence, the question is whether the plea is "'a
voluntary and intelligent choice among the alternative courses of action open to the
defendant"' and whether there is a factual basis for the plea. !d. at 372-73 (quoting
Alford, 400 U.S. at 31 ). Cross cites no authority for the implicit proposition that the
court rules or superseded statutes trump this court's opinions.
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RCW 10.01.060 5 prevents bench trials in capital cases. Cross argues from that
that the legislature meant to prevent Alford pleas from being accepted in capital cases.
This is an interesting argument. However, nothing in chapter 10.95 RCW, the capital
punishment act, prevents a defendant from pleading guilty, and nothing in Newton
limits it to noncapital crimes. An Alford plea is a type of guilty plea. Certainly, a trial
judge can refuse to accept the plea. Judge DuBuque considered briefing and held
several hearings on the subject before she did accept it. Clerk's Papers (CP) at 1638-
47, 1171-77; Verbatim Report of Proceedings (VRP) (Oct. 19, 2000) at 7-39
(discussions of the appropriate evidentiary basis); VRP (Oct. 23, 2000) at 5-65 (more
discussion of appropriate evidence), 65-193 (plea colloquy).
Cross does not make a compelling case that the legislature disapproves of
Alford pleas. There is nothing direct in the Washington code that shows disapproval.
Nor has the legislature taken any steps to amend chapter 10.95 RCW in the wake of
Newton or after our opinion affirming Cross's death sentence in 2006, despite the fact
5
No person informed against or indicted for a crime shall be convicted thereof,
unless by admitting the truth of the charge in his or her plea, by confession in
open court, or by the verdict of a jury, accepted and recorded by the court:
PROVIDED HOWEVER, That except in capital cases, where the person
informed against or indicted for a crime is represented by counsel, such person
may, with the assent of the court, waive trial by jury and submit to trial by the
court.
RCW 10.01.060.
9
In re Pers. Restraint of Cross, No. 79761-7
the opinion says on its second page that Cross entered an Alford plea. Cross, 156
Wn.2d at 593.
There are advantages to an Alford plea. It permits a defendant to plead guilty
without bearing the burden of some collateral effects that accompany an admission of
guilt. For example, a defendant who enters either an Alford plea or a nolo contendere
plea is not estopped from denying guilt in a subsequent civil case. Clark v. Baines,
150 Wash. 2d 905, 917, 84 P.3d 245 (2004); Cogan, supra, at 1007 (citing, e.g., Y.B. 9
Hen. 6, f. 60, pl. 8 (1431) (Eng.)). Cross argues that this supports the principle that an
Alford plea should not be accepted in a capital case since "this advantage would cease
to be of any significance. Avoiding the preclusive effect of collateral estoppel is of
little use if one is dead." Suppl. Br. ofPet'r at 14. However, a defendant in a capital
case does glean at least one advantage from an Alford plea: it limits the amount of
evidence the State may seek to introduce.
3. Whether the Plea was Knowing and Voluntary
Cross makes a point which is well taken and could be persuasive if this were
not a postjudgment collateral attack and if Cross seriously asserted his innocence to
crimes of which he was convicted. Conviction requires proof of guilt beyond a
reasonable doubt. In re Winship, 397 U.S. 358, 361, 90S. Ct. 1068, 25 L. Ed. 2d 368(1970). CrR 4.2( d) only requires the judge find a satisfactory factual basis for the
plea. For example, there may be satisfactory evidence that a defendant committed the
10
In re Pers. Restraint of Cross, No. 79761-7
charged act, such as a sex act or a killing, but little evidence that requisite states of
mind were present. Cf A.NJ., 168 Wn.2d at 118. But this is true of every guilty plea.
The defendant could almost always later claim that the evidence presented did not
establish "beyond a reasonable doubt" every element of the crime, particularly when
the crime includes an intent element. However, unlike common law no-contest pleas,
Alford pleas may only be accepted upon an adequate factual showing, among other
things.
Under our rules and case law, a Washington court will not accept a plea (let
alone permit a defendant to be put to death upon that plea) unless the court first
determines that the defendant is competent and fully understands the nature of and
consequences of each and every charge to which the defendant pleads. See id. at 113-
17. The plea must be voluntary and the trial judge must be fully satisfied there is a
factual basis to support each charge. A record of that factual basis is preserved for
rev1ew.
Cross does not seriously assert that his plea was not knowingly and voluntarily
given and has not moved to withdraw his plea. A plea may be withdrawn if it is not
given knowingly, intelligently, and voluntarily. Id. at 119 (citing In re Pers. Restraint
of Isadore, 151 Wn.2d 294,298, 88 P.3d 390 (2004)). We are aided in our review by
Cross's statement on plea of guilty and the extensive colloquy between Judge
DuBuque and Cross when he entered his plea. Cross entered his plea during voir dire.
11
In re Pers. Restraint of Cross, No. 79761-7
By pleading guilty Cross bypassed the guilt phase of his trial and went directly to the
penalty phase. The penalty phase was to determine whether or not the death penalty
would be imposed. In his statement on plea of guilty, Cross admitted that he killed
the three women but specifically stated that he did not believe that he committed the
crimes in premeditated fashion or as part of a common scheme or plan. CP at 1656.
Premeditation is an element of aggravated murder and common scheme or plan is an
aggravator that subjects the defendant to the death penalty. Cross's plea was a
calculated decision. Cross acknowledged that "there is a substantial likelihood that a
jury would find premeditation beyond a reasonable doubt" and that he would be
convicted. CP at 1205. The record strongly suggests Cross felt he had a better chance
of persuading the jury in the penalty phase that he lacked a plan or premeditation if
the jury did not hear the evidence in the guilt phase of the trial.
When taking his plea, Judge DuBuque and the State painstakingly walked
Cross through the elements of the crimes of which he was charged, his potential
defenses, the rights he was relinquishing, and the punishment he faced. VRP (Oct. 23,
2000) at 64-160. On the issues of premeditation and common scheme or plan, the
judge had Cross state in his own words his understanding of the meaning of those
concepts. Id. at 122-26. There is sufficient evidence upon this record for a jury to
find guilt beyond a reasonable doubt. There is no doubt from the trial transcript that
12
In re Pers. Restraint of Cross, No. 79761-7
there was substantial evidence from which the jury could find beyond a reasonable
doubt that Cross acted with both premeditation and a common scheme or plan.
Entering an Alford plea was a legitimate tactical move. Because he pleaded
guilty, it is highly likely the jury did not hear some of the gruesome details of the
murders. By entering an Alford plea, he was not barred from arguing in the penalty
phase that he lacked premeditation or a common scheme or plan. The tactic did not
work. He cannot now say that he was unaware that the Alford plea could lead to a
sentence of death. 6
CONCLUSION
At common law, there existed a procedure for defendants to enter no-contest
pleas and place themselves within the grace of the King. Because the plea was not
supported with any evidence to support a finding of guilt, such pleas we considered
insufficient to support a capital penalty. However, the Washington State statutes and
rules that provide for accepting an Alford plea are much different than those of ancient
no-contest pleas and, if followed, do provide an adequate basis to support capital
punishment. Current Washington law does not permit the acceptance of a guilty plea,
including an Alford plea, "without first determining that it is made voluntarily,
competently and with an understanding of the nature of the charge and the
6
Because we uphold the plea, we find it unnecessary to reach the State's argument that any
defect in the plea was invited error.
13
In re Pers. Restraint ofCross, No. 79761-7
consequences of the plea. The court shall not enter a judgment upon a plea of guilty
unless it is satisfied that there is a factual basis for the plea." CrR 4.2(d). A careful
review of the record reveals that Cross's Alford plea was a calculated one. It likely
avoided having all the gruesome details of the murders presented to the jurors at the
guilt phase and preserved his ability to argue at the penalty phase of the trial that he
killed the three women without premeditation or a common scheme or plan.
Unfortunately for Cross his tactic did not work. The record reflects that his plea was
knowing, voluntary, and intelligent. Cross has failed to show error. His petition on
this issue is denied.
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In re Pers. Restraint of Cross, No. 79761-7
WE CONCUR:
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