State v. Jacobsen, s. 22941-2-I

• Citation: 95 Wn.App. 967,977 P.2d 1250
• Decision Date: 11 June 1999
• Docket Number: 23061-5-II,Nos. 22941-2-I,s. 22941-2-I
• Court: Court of Appeals of Washington
• Parties: STATE of Washington, Respondent, v. Terry L. JACOBSEN, Appellant.

Page 967

95 Wn.App. 967

977 P.2d 1250

STATE of Washington, Respondent, v. Terry L. JACOBSEN, Appellant.

Nos. 22941-2-II, 23061-5-II.

Court of Appeals of Washington Division 2.

June 11, 1999.

Law Offices of Sverre O. Staurset P.s. (Court Appointed), Tacoma, for Appellant

John Christopher Hillman, Barbara L. Corey-Boulet, Pierce County Deputy Pros. Attys., Tacoma, for Respondent.

ARMSTRONG, J.

Terry L. Jacobsen moved for accelerated review of the manifest injustice disposition imposed following his juvenile court adjudication of guilt of two counts of child molestation in the first degree. Jacobsen argues (1) the court-ordered psychological and polygraph tests violated his constitutional protection against self-incrimination, and (2) the trial court abused its discretion by imposing a manifest injustice disposition. We affirm.

FACTS

Terry Jacobsen appeals a Pierce County Superior Court, Juvenile Department, disposition in excess of the Juvenile Justice Act standard range. The sentence was imposed following his adjudication of guilty of two counts of child molestation in the first degree, RCW 9A.44.083. The standard range is 8-12 weeks confinement per count. The juvenile court imposed a 26-week commitment for each count, to be served consecutively. Jacobsen moved for accelerated review. RAP 18.13.

In two separate cases, the State charged Jacobsen with six counts of first-degree child molestation. The cases were consolidated for trial and appeal. The victims were in the care of Jacobsen's mother, who ran a daycare out of her home. One of the victims, D.R., is Jacobsen's cousin and was five years old at the time of the offense. The other victim, a six-year-old child, D.E., regularly attended the daycare. Jacobsen was twelve years old when the offenses occurred. After a trial, the juvenile court adjudicated Jacobsen guilty of one count of child molestation in each case.

At the disposition hearing, Jacobsen requested additional time to obtain a psychosexual evaluation. The State then asked for a second evaluation from a state-approved treatment provider to determine Jacobsen's amenability to treatment. Although Jacobsen conceded the State was entitled to the evaluation, he objected because the evaluator, Michael Comte, required polygraph testing as part of the evaluation. Nevertheless, the court ordered a second evaluation.

The State subsequently moved to compel Jacobsen to submit to the psychosexual evaluation. Jacobsen objected to the polygraph examination as part of the court-ordered evaluation. Jacobsen's probation counselor, Marty Robinson, testified that polygraph testing was a standard part of a psychosexual evaluation. Robinson further testified that both of the treatment providers customarily used by the court for psychosexual evaluations required polygraph testing. The court then ordered Jacobsen to submit to polygraph testing as part of the psychosexual evaluation.

At the disposition hearing, the State recommended a manifest injustice sentence of a 52-week commitment to the Juvenile Rehabilitation Administration (JRA). The State offered the testimony of Comte in support of its sentencing recommendation. Jacobsen objected, arguing that admission of evidence obtained during the psychosexual evaluation would violate his right against self-incrimination. The court allowed Comte's testimony.

Comte testified that he completed a psychosexual evaluation In addition to this testimony and testimony from Robinson, the court considered Comte's psychosexual evaluation and Robinson's original and amended reports. Comte's written evaluation supported his testimony and concluded, "I do not consider [Jacobsen] safe to be at large and I consider him at significant risk for further sexually assaultive behavior."

                of Jacobsen and relied upon interviews, school records, investigative reports, and the polygraph results in compiling his report.  Comte testified that polygraph testing by state-certified sex offender treatment providers is standard in the industry.  Jacobsen denied any sexual misconduct to the polygraph administrator, and this answer was found to be deceptive.  Comte opined that Jacobsen had a "sexual deviation, specifically:  [a]n attraction to prepubescent males."   Based upon his interviews, the psychological testing and the polygraph test, he also opined that Jacobsen had an entrenched denial of the sexual misconduct for which he was convicted.  Comte recommended a 52-week commitment to ensure adequate treatment of Jacobsen's sexual deviancy
                

The juvenile court probation department, relying primarily on Comte's evaluation, also recommended a manifest injustice sentence of a 52-week commitment to JRA. Robinson explained that her initial report recommended a standard range sentence, but her recommendation changed after reviewing the psychosexual evaluation prepared by Comte.

In adopting the State's recommendation of 52 weeks, the court relied upon three factors: (1) the victims were particularly vulnerable; (2) Jacobsen abused a position of trust; and (3) Jacobsen presented a future danger to society.

Jacobsen appealed, the cases were consolidated, and we granted accelerated review.

ANALYSIS

A. Psychological Testing

Jacobsen contends that the results of the court-ordered psychological test were inadmissible at the disposition hearing because the evidence was obtained in violation of his constitutional protection against self-incrimination. Jacobsen argues that because the court ordered him to submit to a psychological evaluation and then used the results to increase his sentence, the State compelled him to testify against himself.

"The Fifth Amendment, made applicable to the states through the Fourteenth Amendment, commands that no person 'shall be compelled in any criminal case to be a witness against himself.' " State v. King, 130 Wash.2d 517, 523, 925 P.2d 606 (1996). This prohibition not only permits an individual to refuse to testify against himself at a criminal trial in which he is a defendant, but it also " 'privileges him 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.' " Minnesota v. Murphy, 465 U.S. 420, 426, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984) (quoting Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973)). The availability of the Fifth Amendment privilege does not turn on the type of proceeding in which its protection is invoked, but upon the nature of the statement and the exposure it invites. State v. Post, 118 Wash.2d 596, 604, 826 P.2d 172, 837 P.2d 599 (1992); In re Application of Gault, 387 U.S. 1, 49, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).

Generally, to obtain Fifth Amendment protection, a person must invoke the privilege against self-incrimination, i.e., refuse to answer. Murphy, 465 U.S. at 427, 104 S.Ct. 1136 (citing Garner v. United States, 424 U.S. 648, 654, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976)). Otherwise, the individual " 'will not be considered to have been 'compelled' within the meaning of the Amendment.' " Murphy, 465 U.S. at 427, 104 S.Ct. 1136 (quoting United States v. Monia, 317 U.S. 424, 427, 63 S.Ct. 409, 87 L.Ed. 376 (1943)). But failure to claim the privilege is excused where: (1) a state agent interrogates a person in custody; or (2) assertion of the privilege is penalized (Jacobsen does not contend that he was threatened with a penalty). Murphy, 465 U.S. at 429, 434, 104 S.Ct. 1136.

"[S]elf-incriminating statements obtained from an individual in custody are presumed to be involuntary, and to violate the Fifth Amendment, unless the State can show that they were preceded by a knowing and voluntary waiver of the privilege." State v. Sargent, 111 Wash.2d 641, 648, 762 P.2d 1127 (1988). Miranda warnings, ¹ which provide the information for a knowing waiver, should be given when there is a custodial interrogation by an agent of the state. State v. Warner, 125 Wash.2d 876, 884, 889 P.2d 479 (1995); State v. Walton, 64 Wash.App. 410, 413, 824 P.2d 533 (1992) (citing Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966)). Comte did not advise Jacobsen of his Fifth Amendment rights and Jacobsen did not assert them during his interview with the doctor. Thus, to determine whether Jacobsen voluntarily waived his right against self-incrimination, we must examine whether he was in "custody." ²

The Court discussed whether the defendant was "in custody" in Minnesota v. Murphy. There, after a treatment counselor informed Murphy's probation officer that he had confessed to a rape and murder in 1974, the officer requested a meeting with Murphy. When Murphy met with his probation officer in her office, he admitted committing the rape and murder. Although Murphy was subject to a number of restrictive conditions governing various aspects of his life, the Court concluded he was not "in custody" for purposes of receiving Miranda protection. "Custodial arrest is said to convey to the suspect a message that he has no choice but to submit to the officers' will and to confess. It is unlikely that a probation interview, arranged by appointment at a mutually convenient time, would give rise to a similar impression." Murphy, 465 U.S. at 433, 104 S.Ct. 1136. Because Murphy was not physically restrained and could have left the office, the Court concluded that his situation "was not comparable to the pressure on a suspect who is painfully aware that he literally cannot escape a persistent custodial interrogator." Murphy, 465 U.S. at 433, 104 S.Ct. 1136.

In Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977), the defendant, on parole, voluntarily came to the police station in response to a police request. When he arrived, he was immediately informed that he was not under arrest. The defendant gave a one-half hour interview, during which he confessed to a burglary. After his...