State v. Decker

• Decision Date: 31 December 1992
• Docket Number: No. 28148-8-I,28148-8-I
• Citation: 842 P.2d 500,68 Wn.App. 246
• Parties: STATE of Washington, Respondent, v. Joseph Albert DECKER, Appellant.
• Court: Washington Court of Appeals

Page 246

68 Wn.App. 246

842 P.2d 500

STATE of Washington, Respondent, v. Joseph Albert DECKER, Appellant.

No. 28148-8-I.

Court of Appeals of Washington Division 1.

Dec. 31, 1992.

James W. Conroy, Soc. of Counsel Representing Accused Persons, Seattle, for appellant.

Norm Maleng, Pros. Atty., and Gregg R. Hubbard, Asst. Chief Deputy Pros. Atty., Seattle, for respondent.

COLEMAN, Judge.

Joseph A. Decker appeals the trial court's order compelling him to attend a predisposition psychological evaluation without the presence of counsel. Decker argues that the order violates his privilege against self-incrimination and his right to counsel. He also argues that the trial court erred in granting him use immunity for information obtained during the evaluation about unadjudicated crimes. We affirm.

On March 7, 1991, Decker, a juvenile, participated in an assault on Vinton Eberly. During the assault, Decker stepped on Eberly's eyeglasses, destroying them. The State charged Decker with one count of fourth degree assault and one count of third degree malicious mischief.

Pursuant to a plea agreement with the State, Decker pleaded guilty to the assault charge, and the State dropped the malicious mischief charge. A psychological evaluation was scheduled to take place prior to disposition of the case. However, Decker's attorney objected to the evaluation on the ground that Decker might make statements that could incriminate him in other, unadjudicated and uncharged, matters.

The trial court ordered Decker to submit to the evaluation and prohibited counsel from attending. The court also imposed a protective order, stating that "any discussion with evaluator in reference to matters that have not been adjudicated shall be granted use immunity." The trial court granted Decker's motion to stay proceedings pending resolution of this issue on appeal. This court granted Decker's motion for discretionary review.

We first decide whether the trial court erred in compelling Decker to attend a predisposition psychological evaluation without the presence of counsel.

Criminal defendants may not be compelled to testify against themselves. U.S. Const. amends. 5, 14; Estelle v. Smith, 451 U.S. 454, 462, 101 S.Ct. 1866, 1872, 68 L.Ed.2d 359 (1981). Criminal defendants also have the right to assistance of counsel at all critical stages of the proceedings. U.S. Const. amend. 6; Estelle, at 470, 101 S.Ct. at 1876 (citing Coleman v. Alabama, 399 U.S. 1, 7-10, 90 S.Ct. 1999, 2002-2003, 26 L.Ed.2d 387 (1970) (plurality opinion); Powell v. Alabama, 287 U.S. 45, 57, 53 S.Ct. 55, 59, 77 L.Ed. 158, 84 A.L.R. 527 (1932)). These procedural protections apply to juvenile adjudicatory proceedings; however, the extent to which they apply to juvenile postadjudicatory proceedings has been left open by the Supreme Court. See In re Gault, 387 U.S. 1, 31 n. 48, 87 S.Ct. 1428, 1445 n. 48, 18 L.Ed.2d 527 (1967).

Several cases are pertinent to our discussion of a criminal defendant's Fifth and Sixth Amendment rights in the context of presentencing interviews and evaluations. In Estelle v. Smith, supra, the defendant was required to submit to a pretrial psychiatric examination. Subsequently, he was found guilty of murder and sentenced to death. During his sentencing hearing, the psychiatrist, who was the State's only witness, testified regarding the defendant's future dangerousness. Estelle, 451 U.S. at 460, 101 S.Ct. at 1871. The Supreme Court held that the defendant's Fifth and Sixth Amendment rights were violated. Specifically, the Court held that the defendant had the right to be warned that his statements could be used against him and that he had the right to consult with counsel prior to the evaluation. Estelle, at 468-69, 101 S.Ct. at 1875-76.

In State v. Escoto, 108 Wash.2d 1, 735 P.2d 1310 (1987), the court declined to extend Estelle to a case involving a juvenile convicted of a noncapital offense. The juvenile had pleaded guilty to second degree theft. Escoto, 108 Wash.2d at 2, 735 P.2d 1310. Prior to sentencing, the trial court ordered him to submit to a psychological evaluation. However, the trial court limited the evaluation to "matters for which the juvenile had been found guilty and not any unadjudicated charge." Escoto, at 3, 735 P.2d 1310. Based in part on the psychologist's written report, the trial court concluded that the juvenile was a danger to society and imposed an exceptional sentence. Escoto, at 4, 735 P.2d 1310.

Upholding the sentence, the court refused to apply Estelle. Escoto, 108 Wash.2d at 4, 735 P.2d 1310. The court distinguished Estelle primarily on the grounds that it was a death penalty case. The court also relied on a statement by the Estelle court that not all types of presentencing examinations present the same Fifth Amendment concerns as the one in that particular case. Escoto, 108 Wash.2d at 5-6, 735 P.2d 1310 (quoting Estelle, 451 U.S. at 469 n. 13, 101 S.Ct. at 1876 n. 13). In her concurring opinion, Justice Durham further distinguished Estelle on the basis of differences between the adult and juvenile criminal systems. She stated:

It is essential to consider the applicability of the privilege against self-incrimination to the circumstances of this case in light of the unique rehabilitative purpose of the disposition of juveniles. Because it is crucial for the court to have access to information obtained from the psychological evaluation ..., I believe that less stringent application of the privilege against self-incrimination is warranted under these circumstances than in an adult setting.

(Footnote omitted.) Escoto, 108 Wash.2d at 10-11, 735 P.2d 1310 (Durham, J. concurring). Apparently agreeing with this point, the Escoto majority suggested that, in the juvenile system, the privilege against self-incrimination should be applied differently depending on whether the proceeding is adjudicatory or dispositional. Escoto, at 7, 735 P.2d 1310 (quoting RCW 13.40.140(8)).

Escoto clearly sanctions the use of presentencing psychological evaluations in noncapital juvenile cases. See Escoto, at 6-7, 735 P.2d 1310. However, neither Estelle nor Escoto answers the question of whether a criminal defendant, juvenile or adult, is entitled to have his attorney present during the presentencing psychological evaluation. In Estelle, the defendant argued only that he had a right to consult with his attorney prior to the interview. In a footnote, the Court stated:

Respondent does not assert, and the Court of Appeals did not find, any constitutional right to have counsel actually present during the examination. In fact, the Court of Appeals recognized that "an attorney present during the psychiatric interview could contribute little and might seriously disrupt the examination."

Estelle, 451 U.S. at 470 n. 14, 101 S.Ct. at 1877 n. 14 (quoting Smith v. Estelle, 602 F.2d 694, 708 (1979)). In Escoto, the court cited with approval the fact that the trial court had permitted counsel to be present during the examination. Escoto, 108 Wash.2d at 7, 735 P.2d 1310. However, the court did not address the issue of whether the defendant had a constitutional right to have counsel present. Escoto, at 6, 735 P.2d 1310.

In the context of presentencing interviews with probation officers, this court has held that juveniles convicted of noncapital offenses do not generally have a right to presence of counsel. State v. P.B.T., 67 Wash.App. 292, 834 P.2d 1051 (1992); see also Brown v. Butler, 811 F.2d 938, 941 (5th Cir.1987) (counsel's presence not constitutionally required because presentencing interview is not a critical stage of the proceedings); Baumann v. United States, 692 F.2d 565, 578 (9th Cir.1982) (defendants in noncapital cases do not have constitutional right to have counsel present during presentencing interviews).

In P.B.T., the court held that, under the Fifth Amendment, a juvenile has the right to the presence of counsel during a presentencing interview only if (1) the juvenile affirmatively requests that counsel be present, and (2) there are pending charges that are closely related to the charge which has been adjudicated. P.B.T., 67 Wash.App. at 300, 834 P.2d 1051. The court reasoned that this rule was necessary to protect the defendant's right to remain silent with respect to the pending charge. P.B.T., at 300, 834 P.2d 1051. The court did not, however, believe that the presence of counsel was required in every case. As the court stated:

Although we agree that allowing counsel at such interviews may be the better practice and may contribute to a greater appearance of fairness, we do not think that such a practice is mandated by the constitution or the requirements of the orderly administration of justice.

P.B.T., at 298, 834 P.2d 1051.

We conclude that the law established by cases dealing with presentencing interviews should be applied to the present case. Presentencing interviews and psychological examinations are both used to help the trial court determine an appropriate sentence, and the same constitutional concerns appear to be raised by both. Overall, the case law indicates that, absent a showing of special circumstances, defendants in noncapital cases do not have a constitutional right to have counsel present during presentencing interviews. This rule should also apply in the context of psychological examinations. ¹ It makes sense particularly in the juvenile context, where the defendant's right against self-incrimination may be less stringently applied after adjudication than in an adult setting. See State v. Escoto, 108 Wash.2d 1, 10-11, 735 P.2d 1310 (1987) (Durham, J. concurring).

The trial court in this case, as well as the psychologist, expressed concern that the presence of counsel would undermine the evaluation. However, other procedural protections were provided. The trial court...