State v. Fuller

• Decision Date: 16 April 1996
• Docket Number: No. 95-343,95-343
• Citation: 276 Mont. 155,915 P.2d 809
• Parties: , 64 USLW 2680 STATE of Montana, Plaintiff and Respondent, v. Matthew C. FULLER, Defendant and Appellant. . Heard and
• Court: Montana Supreme Court

Page 809

915 P.2d 809

276 Mont. 155, 64 USLW 2680

STATE of Montana, Plaintiff and Respondent, v. Matthew C. FULLER, Defendant and Appellant.

No. 95-343.

Supreme Court of Montana.

Heard and Submitted Jan. 11, 1996.

Decided April 16, 1996.

[276 Mont. 157] Appeal from District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Robert W. Holmstrom, Judge presiding.

Gary E. Wilcox, Billings, for Appellant.

Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General; Dennis Paxinos, Yellowstone County Attorney, John Kennedy, Deputy Yellowstone County Attorney, for Respondent.

HUNT, Justice.

Appellant Matthew C. Fuller (Fuller) was charged in the Thirteenth Judicial District Court, Yellowstone County, with rape and sexual assault. Fuller moved to dismiss the charges, alleging that the State violated his constitutionally guaranteed privilege against compelled self-incrimination. After the District Court denied his motion, Fuller pled guilty to the charges. Fuller appeals the District Court's denial of his motion to dismiss. We reverse.

ISSUE

Fuller raises two issues on appeal:

1. Did the District Court err in refusing to grant Fuller's motion to dismiss because the State impermissibly violated his constitutionally guaranteed privilege against compelled self-incrimination?

2. Did the District Court err in refusing to grant Fuller's motion to dismiss because his conviction offended the "fundamental fairness" doctrine set out in State v. Thiel (1989), 236 Mont. 63, 768 P.2d 343?

Due to the resolution of the first issue, we do not find it necessary to address the second.

FACTS

The parties stipulated to the facts in this case.

On December 9, 1992, Fuller was charged with three counts of attempted sexual assault. After a bench trial, the District Court found Fuller guilty of all three counts. The District Court suspended Fuller's sentence but required, among other things, that he "obtain and/or continue his enrollment and participation in [an] outpatient Sex Offender Treatment Program" and "follow all policies of that program." In September 1994, this Court reversed the attempt convictions for lack of evidence, and ordered Fuller to be acquitted of the charges. See State v. Fuller (1994), 266 Mont. 420, 880 P.2d 1340.

After his 1992 conviction but prior to the 1994 reversal, Fuller was accepted into a treatment program in Billings. Patients are not admitted into the treatment program if they are in denial or do not honestly disclose their offense history. Further, patients will be terminated from the program if dishonesty or denial occur during their treatment, if they re-offend during treatment, or if they otherwise break the rules of the treatment program.

The employees of the treatment center are required to report to the authorities any evidence they possess about past or present offenses committed by individuals in the treatment program. Offenders who enter the treatment program are required to fully disclose their offense histories.

During treatment, Fuller prepared and presented to his treatment group an offense history which disclosed several past offenses, including the three at issue here, each of which involved a different prepubescent girl. On March 30, 1994, the treatment program contacted the Probation and Parole Department (the Department) to notify it that Fuller had violated treatment policies. In accordance with its statutory duty, the treatment program also informed the Department of the three prior offenses Fuller had revealed during treatment. The Department in turn notified the Billings Police Department. Fuller subsequently was arrested for unrelated violations of probation.

On April 14, 1994, the State petitioned the District Court to revoke Fuller's suspended sentence. The grounds for revocation did not include the charges which are the basis of the instant appeal. The District Court revoked the suspended sentence and remanded Fuller to the custody of the Montana State Prison.

Meanwhile, the Billings Police Department investigated the incidents Fuller had revealed in treatment and took statements. No investigation had occurred prior to the police department receiving the information obtained from the treatment center. On the basis of the police investigation, Fuller was charged with one count of sexual intercourse without consent and two counts of sexual assault. He moved to dismiss the charges, alleging that the State's actions violated his constitutional privilege against compelled self-incrimination. The District Court denied the motion. Fuller then pled guilty to the charges, but specifically reserved his right to appeal the denial of his motion. It is that appeal which we decide today.

STANDARD OF REVIEW

The grant or denial of a motion to dismiss is within the sound discretion of the trial court and will not be disturbed unless an abuse of that discretion is shown. State v. Barker (1993), 260 Mont. 85, 89, 858 P.2d 360, 362-63 (citing State v. Laster (1986), 223 Mont. 152, 724 P.2d 721).

Whether or not a defendant's privilege against compelled self-incrimination is triggered is a conclusion of law. "Our standard of review of a district court's conclusions of law is plenary. We determine whether the district court's conclusions are correct." State v. Sage (1992), 255 Mont. 227, 229, 841 P.2d 1142, 1143 (citing Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 803 P.2d 601).

Fuller alleges that his privilege against compelled self-incrimination was violated. This right is guaranteed to all citizens under

both the Montana Constitution and the Fifth Amendment to the United States Constitution. Accordingly, the resolution of Fuller's appeal will rest on Article II, Section 25 of the Montana Constitution, as well as the United States Supreme Court's interpretation of the Fifth Amendment.

DISCUSSION

Did the District Court err in refusing to grant Fuller's motion to dismiss because the State impermissibly violated his constitutionally guaranteed privilege against compelled self-incrimination?

Montana residents are protected from compelled self-incrimination under both the Montana and the United States Constitutions. Article II, Section 25 of the Montana Constitution provides that "no person shall be compelled to testify against himself in [a] criminal proceeding." The Fifth Amendment to the United States Constitution similarly provides that no person "shall be compelled in any criminal case to be a witness against himself."

All citizens enjoy this constitutional protection, regardless of who they are or how they are situated. It extends beyond trial or custodial situations, because "the [Fifth Amendment] privilege does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure which it invites." Estelle v. Smith (1981), 451 U.S. 454, 462, 101 S.Ct. 1866, 1873, 68 L.Ed.2d 359 (quoting In re Gault (1967), 387 U.S. 1, 49, 87 S.Ct. 1428, 1455, 18 L.Ed.2d 527). Accordingly, the privilege extends to those already convicted of a crime. Minnesota v. Murphy (1984), 465 U.S. 420, 426, 104 S.Ct. 1136, 1141-42, 79 L.Ed.2d 409 (citing Baxter v. Palmigiano (1976), 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810).

The language of the Fifth Amendment speaks of "compulsion." Therefore, if the State has not compelled the defendant to respond, the Fifth Amendment privilege does not attach. "[A] general obligation to appear and answer questions truthfully [does] not convert otherwise voluntary statements into compelled ones." Murphy, 465 U.S. at 427, 104 S.Ct. at 1142.

A person claiming the protection of the Fifth Amendment generally must affirmatively invoke it. United States v. Monia (1943), 317 U.S. 424, 427, 63 S.Ct. 409, 410-11, 87 L.Ed. 376. This duty to claim the privilege remains with the individual even when the government is unquestionably attempting to compel a response. "[I]f a witness under compulsion to [answer] makes disclosures instead of claiming the privilege, the government has not 'compelled' him to incriminate himself." Garner v. United States (1976), 424 U.S. 648, 654, 96 S.Ct. 1178, 1182, 47 L.Ed.2d 370. Moreover, a defendant's ignorance of his Fifth Amendment rights generally will not excuse his failure to claim the privilege. An individual may lose the benefit of the privilege without making a knowing and intelligent waiver; if he simply fails to assert the privilege, it will be deemed waived. Garner, 424 U.S. at 654, 96 S.Ct. at 1182; Maness v. Meyers (1975), 419 U.S. 449, 466, 95 S.Ct. 584, 595, 42 L.Ed.2d 574.

In this case, Fuller never asserted his Fifth Amendment privilege, or, pursuant to it, refused to answer. Instead, he fully and honestly answered the questions put to him by the treatment program, in accordance with the District Court's order. If our inquiry ended here, Fuller would be precluded from assigning error to the District Court's denial of his motion to dismiss.

There is an exception, however, to the general rule that a defendant must affirmatively invoke the privilege in order to enjoy its protections. Failure to invoke the privilege does not preclude the benefit if the defendant is placed in a situation where he is not "free to admit, deny, or refuse to answer." Murphy, 465 U.S. at 429, 104 S.Ct. at 1143 (citing Garner, 424 U.S. at 657, 96 S.Ct. at 1183). In such cases, a defendant's privilege against self-incriminating is said to be "self-executing." The United States Supreme Court has applied this exception to three different types of cases.

First, the Supreme Court has held that gamblers may exercise their Fifth Amendment privilege against self-incrimination by refusing to file a federal income tax return. "In recognition of the pervasive criminal regulation of gambling activities and the fact that claiming the privilege in lieu of filing a return would tend to incriminate, the [Supreme]...