Mangarella v. State
| Citation | 17 P.3d 989,117 Nev. 130 |
| Decision Date | 16 February 2001 |
| Docket Number | No. 35212.,35212. |
| Parties | Michael Attilio MANGARELLA, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Supreme Court of Nevada |
Morgan D. Harris, Public Defender, and Bita Khamsi, 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 YOUNG, ROSE and BECKER, JJ.
In this appeal, Michael Attilio Mangarella challenges the constitutionality of NRS 176A.410, which imposes mandatory conditions of probation on individuals sentenced to probation after having been convicted of certain sexual offenses. Mangarella contends that (1) the statute's polygraph requirement is overbroad, thereby infringing upon his privilege against self-incrimination, and (2) the statute is unconstitutionally vague because it does not adequately define residence, work, and curfew requirements.
We conclude that because NRS 176A.410 does not allow an unbridled examination of the probationer, the statute is not unconstitutionally overbroad. Further, we hold that NRS 176A.410 is not unconstitutionally vague. Accordingly, we affirm the district court's judgment of conviction.
On September 2, 1999, Mangarella pleaded guilty to one count of lewdness with a minor pursuant to North Carolina v. Alford.1 The district court sentenced Mangarella to serve a minimum of 36 months to a maximum of 120 months in the Nevada State Prison. Mangarella's sentence was suspended and he was placed on probation for a term not to exceed five years. The district court, over Mangarella's objection, imposed the probation conditions required by NRS 176A.410. NRS 176A.410(1) provides, in relevant part, that:
Mangarella challenges the constitutionality of NRS 176A.410 on three separate grounds. First, Mangarella contends that the provision in the statute relating to polygraph examinations is overbroad because it would permit a probation officer to ask questions about topics unrelated to a defendant's probation. Next, Mangarella argues that requiring a probationer to submit to polygraph examinations violates his Fifth Amendment privilege against self-incrimination. Finally, Mangarella asserts that the failure of the statute to specify guidelines for what constitutes appropriate employment, curfews or residences results in unconstitutional vagueness.
NRS 176A.410(1)(e) states that, as a condition of probation, the defendant shall "[s]ubmit to periodic tests to determine whether the defendant is using a controlled substance and submit to periodic polygraph examinations, as requested by the parole and probation officer assigned to the defendant."
Statutes should be given their plain meaning and "must be construed as a whole and not be read in a way that would render words or phrases superfluous or make a provision nugatory."2 In addition, there is a presumption that every word, phrase, and provision in the enactment has meaning.3
The parties suggest three possible interpretations of the polygraph subsection. We address these interpretations from least to most expansive, starting with the State's interpretations.
First, the State asserts that the subsection authorizes polygraph testing to monitor controlled substance usage. In light of the placement of the polygraph testing condition in the same subsection as the requirement that the defendant submit to testing for drug use, it is plausible that the legislature intended for the probation officer to only use polygraph testing to monitor drug usage.
The State also argues that the subsection allows questioning regarding compliance with any condition of probation. The subsection is part of the required probation conditions for sex offenders. Therefore, it is reasonable to assume that the legislature intended that probation officers use polygraph testing to monitor the probationer's compliance with all of his or her conditions of probation.
Finally, Mangarella proposes a third interpretation. Mangarella argues that because NRS 176A.410(1)(e) sets forth no parameters to the polygraph questioning, a probation officer may ask questions on any subject that has no reasonable relation to the probationer's offense. Mangarella reads the subsection as authorizing two separate tests: controlled substance and polygraph. This interpretation is also reasonable.
Because NRS 176A.410(1)(e) is subject to more than one reasonable interpretation, the statute is ambiguous as to the scope of questioning permitted in polygraph examinations.4 While we normally review ambiguous statutes in light of legislative intent and public policy, different rules of statutory construction apply to penal statutes.
Generally speaking, we narrowly construe ambiguous provisions of penal statutes.5 Moreover, the rules of statutory interpretation that apply to penal statutes require that provisions which negatively impact a defendant must be strictly construed, while provisions which positively impact a defendant are to be given a more liberal construction.6 Applying these rules to NRS 176A.410(1)(e), we hold that the scope of the polygraph examination must be limited to questions relating to the use of controlled substances by the defendant. Thus, the statute is not unconstitutionally overbroad, as it does not permit a probation officer to conduct a polygraph examination on any issue.
Mangarella also contends that NRS 176A.410(1)(e) is unconstitutional because it would require defendants to answer questions that could tend to incriminate themselves in violation of the Fifth Amendment of the United States Constitution. Whenever possible, we must interpret statutes so as to avoid conflicts with the federal or state constitutions.7
The Fifth Amendment provides, in part, that no person "shall be compelled in any criminal case to be a witness against himself."8 The United States Supreme Court has held that this prohibition is not limited to circumstances where a defendant refuses to testify against himself at a criminal trial. A person is privileged "not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings."9
Persons who have been convicted of crimes only lose their Fifth Amendment protections as to the facts and circumstances of the crime for which they have been convicted. The privilege is still applicable to questions relating to any other activity.10 The protection is therefore available for convicted offenders who have been granted probation. A defendant's probation may not be revoked simply because he or she has asserted the privilege against self-incrimination in response to questions from a probation officer. A state may require that a probationer truthfully answer questions posed by probation officers or other law enforcement personnel and impose sanctions if questions are not answered truthfully, but a state may not revoke probation because the probationer validly asserts the privilege.11
We have not had the opportunity to evaluate the constitutionality of requiring submission to polygraph examinations as a condition of probation. It is a matter of first impression in Nevada. Mangarella argues that compelling a probationer to answer questions in a polygraph violates the privilege against self-incrimination. We disagree.
Mangarella cites to State v. Eccles,12 in support of his argument. In Eccles, the sentencing court required that, as a condition of probation, the defendant submit to polygraph questioning and waive his Fifth Amendment privilege against self-incrimination. The Arizona Supreme Court, however, struck the waiver condition pursuant to Murphy. The court removed the waiver condition and stated, "The condition thus sanitized would read: as a `critical part of the Sexual Offender Treatment Program,' defendant must agree to `answer[ ] truthfully, any questions [asked by] the probation officer, counselors, polygraph examiners, or any other agent of the Probation Department's treatment programs.'"13
Mangarella fails to recognize that the constitutional violation in Eccles was the requirement that the defendant waive his Fifth Amendment privilege, not the requirement that he submit to polygraph examinations. Nothing in Murphy or Eccles can be read to prohibit a state from requiring a probationer to submit to a polygraph examination. Moreover, we do not interpret NRS 176A.410(1)(e) as requiring a waiver of the Fifth Amendment privilege against self-incrimination.
Unlike the statute at issue in Eccles, NRS 176A.410(1)(e) is silent as to waiver. In light of the constitutional privilege against self-incrimination, we interpret the statute as allowing a valid assertion of the privilege against self-incrimination if the probationer...
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