State v. Eccles
| Decision Date | 14 July 1994 |
| Docket Number | No. CR-93-0310-PR,CR-93-0310-PR |
| Parties | STATE of Arizona, Appellee, v. Michael ECCLES, Appellant. |
| Court | Arizona Supreme Court |
Defendant Michael Eccles petitioned this court to review a memorandum decision of the court of appeals that (1) held that there was a sufficient factual basis to support his guilty pleas and (2) approved a condition of probation requiring him to waive his privilege against self-incrimination. We granted review only on the self-incrimination issue and now vacate the portion of the court of appeals' decision dealing with that issue. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. § 12-120.24.
Defendant pled guilty to molestation of a child under 14 years of age and to attempted sexual conduct with a minor under 14 years of age. The trial court sentenced defendant to prison on one of the counts and to lifetime probation on the other. Although the written plea agreement did not specifically so provide, the trial judge orally told defendant that, as one of the conditions of probation, and as a "critical part of the Sexual Offender Treatment Program," defendant must agree to
waive any and all rights against [self-incrimination], granted under the United States and/or the State of Arizona constitutions, by answering truthfully, any questions that the probation officer, counselors, polygraph examiners, or any other agent of the Probation Department's treatment programs--whether the question concerns the offense for which you are on probation, or for any other event of sexual contact, whether charged or uncharged--any answers you give may be used, not only in treatment, but also in the--if the offense is not previously known to the State--as evidence to revoke your conditions of probation, or for the filing of new charges, and at trial, on those new charges.
Refusal to follow any of these instructions would be a violation of your conditions of probation, and can result in a revocation of probation, and imposition of a prison sentence.
1. Whether the state can impose mandatory waiver of the privilege against self-incrimination as a condition of probation.
2. Whether defendant voluntarily waived his right against self-incrimination.
The state concedes that if we reject its voluntary waiver argument, discussed infra, the probation condition is at least partially invalid. Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984), makes clear that the state cannot make waiver of the privilege against self-incrimination a condition of probation. In Murphy, one of the conditions of the defendant's probation was that he would be truthful with his probation officer "in all matters." Id. at 422, 104 S.Ct. at 1139. In analyzing whether this condition improperly forced the probationer to choose between incriminating himself and jeopardizing his probation, the Court stated that
[o]ur decisions have made clear that the State could not constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege.... [T]he State submits that it would not, and legally could not, revoke probation for refusing to answer questions calling for information that would incriminate in separate criminal proceedings.
Id. at 438, 104 S.Ct. at 1148. Not only is the state prohibited from revoking probation for a legitimate invocation of the privilege against self-incrimination, we perceive the import of the Murphy decision as being that the state is also prohibited from making waiver of the privilege a term of probation.
The Court ultimately held that the precise condition of probation involved in Murphy did not improperly impinge on probationer's Fifth Amendment rights because it did not require him "to choose between making incriminating statements and jeopardizing his conditional liberty by remaining silent." Id. at 436, 104 S.Ct. at 1147. Instead, the Murphy condition merely required the probationer to speak truthfully about matters relevant to his probationary status. The Court reasoned that because the probation condition was silent about the probationer's freedom to choose not to answer particular questions, and "contained no suggestion that his probation was conditional on his waiving his Fifth Amendment privilege," it did nothing more that proscribe false statements. Id. at 437, 104 S.Ct. at 1147.
Unlike the condition involved in Murphy, the probation condition at issue in this case plainly took the "extra, impermissible step" by attempting to require defendant to waive his right against self-incrimination under penalty of having his probation revoked. Id. at 436, 104 S.Ct. at 1147. The state may not force defendant to choose between incriminating himself and losing his probationary status by remaining silent. The fact that defendant has not yet been presented with the dilemma of either incriminating himself or jeopardizing his probation does not affect our decision. The Supreme Court has held that "the mandate of the great privilege against self-incrimination does not tolerate the attempt, regardless of its ultimate effectiveness, to coerce a waiver of the immunity it confers on penalty of the loss of employment." Gardner v. Broderick, 392 U.S. 273, 279, 88 S.Ct. 1913, 1916, 20 L.Ed.2d 1082 (1968); see also Murphy, 465 U.S. at 444, 104 S.Ct. at 1151 () (Marshall, J., dissenting).
The condition of probation that requires defendant to waive his Fifth Amendment rights is unconstitutional and must be removed from the terms of his probation. 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...
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...2000), 224 F.3d 1175, 1189. 43 See In re Amanda W. (1997), 124 Ohio App.3d 136, 141, 705 N.E.2d 724, 727. 44 See State v. Eccles (1994), 179 Ariz. 226, 229, 877 P.2d 799, 802. 45 See Ainsworth v. Risky (C.A.I. 2001), 244 F.3d 209, 216. 46 See United States v. Bayer (1947), 331 U.S. 532, 540......
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...United States v. Saechao (9th Cir.2005) 418 F.3d 1073; United States v. Antelope (9th Cir.2005) 395 F.3d 1128; State v. Eccles (1994) 179 Ariz. 226, 877 P.2d 799.) Second, we construe the waiver of the psychotherapist-patient privilege as requiring waiver only insofar as necessary to enable......