Dzul v. State

• Decision Date: 31 October 2002
• Docket Number: No. 37880.,37880.
• Parties: Felipe DZUL, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

56 P.3d 875

118 Nev. 681

Felipe DZUL, Appellant, v. The STATE of Nevada, Respondent.

No. 37880.

Supreme Court of Nevada.

October 31, 2002.

Rehearing Denied December 27, 2002.

Marcus D. Cooper, Public Defender, and Sharon G. Dickinson, Deputy Public Defender, Clark County, for Appellant.

Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, and James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.

BEFORE THE COURT EN BANC.

OPINION

By the Court, BECKER, J.:

Appellant Felipe Dzul pleaded guilty, pursuant to North Carolina v. Alford,¹ to one count of attempted lewdness with a child under the age of fourteen years for grabbing and squeezing the breast area of a nine-year-old girl. The district court accepted Dzul's guilty plea and thereafter ordered him to undergo a psychosexual evaluation pursuant to NRS 176.139. Dzul maintained his innocence throughout the psychosexual evaluation, asserting that he was hugging and tickling the child and never intended to sexually gratify himself. After receiving the Division of Parole and Probation's presentence investigation report, which included the reports of two psychological professionals who interviewed Dzul, the district court sentenced Dzul to four to ten years in prison.

On appeal, Dzul contends that he was entitled to Miranda² warnings prior to his psychosexual evaluation. Dzul further contends that his Fifth Amendment right against self-incrimination was violated because he was denied probation for maintaining his innocence throughout the psychosexual evaluation. Dzul points out that NRS 176A.110 conditions the grant of probation on a favorable psychosexual evaluation and asserts that a favorable psychosexual evaluation virtually always requires an admission of guilt by the defendant.³ Dzul argues that this process violates his right against self-incrimination. We disagree with Dzul's contentions and, for the reasons set forth below, we affirm the judgment of conviction.

FACTS

In December 2000, police responded to a report of child molestation at a Las Vegas apartment complex. The mother of nine-year-old Jane Doe⁴ reported to police that her daughter went to return keys to Dzul's apartment and that Dzul invited the child inside and then grabbed and squeezed her breasts tightly. According to Jane Doe's mother, the distraught child ran from Dzul's apartment and immediately told her mother of the incident, including Dzul's warning not to tell her parents.

Based on those allegations and a records check, which revealed that Dzul was a registered sex offender with a previous conviction in 1980 for lewdness with a child, police contacted and arrested Dzul for lewdness with a child under the age of fourteen years. Dzul admitted playing with and tickling Jane Doe, but he insisted that he was not seeking sexual gratification and was simply hugging the child. Dzul also admitted that he was intoxicated at the time of the incident but otherwise maintained his innocence, asserting that any touching of Jane Doe's breasts was inadvertent and unintentional.

After accepting Dzul's Alford guilty plea to one count of attempted lewdness with a child under the age of fourteen years, the district court referred the matter to the Division of Parole and Probation (P&P) for a presentence investigation report (PSI) and ordered Dzul to undergo a psychosexual examination pursuant to NRS 176.135, and NRS 176.139.

As part of the psychosexual evaluation, Dzul interviewed with two psychological professionals to determine whether he represented a menace to the health, safety, or morals of others. Dzul maintained his innocence throughout the interviews. Dr. Dodge Slagle, D.O., concluded that Dzul did not represent a high risk to reoffend and opined that Dzul would not be a menace to the safety, welfare, or morals of others if granted probation as long as he abstained from consuming alcohol. However, licensed social worker John Pacalt opined that Dzul's denial of responsibility for the offense was a factor that increased his risk to reoffend, that Dzul represented a moderate to high risk to reoffend, and that Dzul was therefore a poor candidate for probation.⁵ Based upon the reports and his prior conviction for lewdness with a child under the age of fourteen years, the district court refused to grant Dzul probation.⁶ The district court thereafter sentenced Dzul to ten years in Nevada State Prison with parole eligibility after four years.

DISCUSSION

I. Miranda warnings prior to the psychosexual evaluation

Dzul contends that the district court erred in considering the psychosexual evaluations because he was not Mirandized before the clinical interview portion of the evaluations in violation of his Fifth Amendment right against self-incrimination and Sixth Amendment right to counsel. Dzul asserts that those constitutional rights extend through sentencing, and he urges this court to vacate his sentence and remand this case for re-sentencing after another psychosexual evaluation.

The Fifth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment,⁷ provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself."⁸ In Miranda v. Arizona,⁹ the United States Supreme Court acknowledged that "the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves."¹⁰ Further, in Mitchell v. United States,¹¹ the High Court concluded that the Fifth Amendment privilege extends to sentencing proceedings.

Additionally, the Sixth Amendment right to counsel provides every criminal defendant with the right to have representation during each "critical stage" of adversarial proceedings.¹² The United States Supreme Court has concluded that sentencing is such a "critical stage" for purposes of the Sixth Amendment right to counsel.¹³

Dzul cites Estelle v. Smith¹⁴ in support of his position. In Estelle, the United States Supreme Court addressed whether the admission of a psychiatrist's testimony about statements made by a defendant violated the defendant's Fifth Amendment privilege against compelled self-incrimination.¹⁵ The Supreme Court held that a state's attempt to establish a defendant's future dangerousness at the penalty phase of a capital trial by relying on the statements made by him during a pretrial psychiatric evaluation violated his Fifth Amendment right against self-incrimination. The High Court concluded the defendant's statements were inadmissible because he was not advised before the psychiatric examination that he had a right to remain silent or that any statement he made could be used against him at a sentencing proceeding.¹⁶ The Supreme Court further held that a defendant's Sixth Amendment right to counsel attaches when he undergoes a pretrial psychiatric interview because such an interview is a "critical stage" of the proceedings.¹⁷ Finally, the Supreme Court noted that the defendant did not voluntarily consent to the interview and was denied the assistance of his attorneys in making the significant decision of whether to submit to the examination and to what extent the psychiatrist's findings would be used as a result.¹⁸

Dzul also relies on Brown v. State.¹⁹ In Brown, this court concluded that the appellant was entitled to a new sentencing hearing because the sentencing court abused its discretion under Estelle by basing the appellant's sentence on information obtained from his court-ordered psychological examination, which was performed to determine his competency to stand trial.²⁰ Specifically, this court held that the sentencing judge improperly relied on findings in the psychological report, on the appellant's unwarned statements to the psychiatrist, as well as on the psychiatrist's conclusions that the appellant was defensive, unwilling to acknowledge his psychological problems, "immature, egocentric, moody, and insecure," lacked self-confidence, likely would act out sexually, and was not falsely convicted as he maintained he was.²¹

We conclude that neither Estelle nor Brown are controlling in this case. Unlike the pretrial psychiatric evaluations ordered in Estelle and Brown, Dzul was interviewed after he entered his plea. Further, he was informed in advance that the psychosexual evaluation was for the purpose of determining his sentence. Moreover, Dzul had the assistance of counsel throughout the proceedings, never invoked his right against self-incrimination, and does not dispute that he was Mirandized when he first spoke with police during their investigation in this case. Nothing in the record indicates that Dzul objected or refused to submit to the psychosexual evaluation when he was interviewed. To the contrary, Dzul signed an acknowledgment of psychosexual evaluation stating that the "psychosexual evaluation shall be used for recommendations regarding sentencing and/or treatment." The acknowledgment form also contained an area that Dzul could have signed to indicate his refusal to consent to the evaluation.

Further, the holding in Estelle was narrowly applied to the facts of that case, as evidenced by the Supreme Court's statements that "[v]olunteered statements ... are not barred by the Fifth Amendment"²² and "we do not hold that the same Fifth Amendment concerns are necessarily presented by all types of interviews and examinations that might be ordered and relied upon to inform a sentencing determination."²³ Although this court has not yet had the opportunity to address this issue, other jurisdictions have determined that Miranda warnings are not required prior to routine presentence interviews.²⁴

In particular, the Tenth Circuit Court of Appeals in United States v. Rogers reasoned that routine presentence interviews do not constitute the type of...