State v. King

• Decision Date: 24 October 1996
• Docket Number: No. 63247-2,63247-2
• Citation: 925 P.2d 606,130 Wn.2d 517
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Edward Lee KING, Petitioner. In re the Personal Restraint Petition of Edward Lee KING, Petitioner.

Page 517

130 Wn.2d 517

925 P.2d 606

The STATE of Washington, Respondent, v. Edward Lee KING, Petitioner In re the Personal Restraint Petition of Edward Lee KING, Petitioner.

No. 63247-2.

Supreme Court of Washington En Banc.

Argued March 27, 1996.

Decided Oct. 24, 1996.

Patricia Novotny, Seattle, for petitioner.

Christine Gregoire, Atty. Gen., Thomas Young, Talis Abolins, Asst. Attys. Gen., Olympia, Norm Maleng King County Prosecutor, Theresa Fricke, Deputy, Seattle, for respondent.

MADSEN, Justice.

The principal issue in this case is whether the Indeterminate Sentence Review Board properly based an exceptional minimum sentence partly upon disclosures the defendant made while undergoing court-ordered sexual psychopathy treatment. We affirm the Court of Appeals, which held that use of the defendant's disclosures did not offend the Fifth Amendment.

Facts

In July of 1981, the King County prosecutor charged Edward King with four counts of first degree rape while armed with a deadly weapon. The parties reached a plea agreement whereby King would plead guilty to two counts of first degree rape while armed with a deadly weapon and admit raping all four victims, and the State would recommend that he be sent to Western State Hospital for treatment as a sexual psychopath pursuant to RCW 71.06. The court accepted this plea on September 17, 1981. On October 21, 1981, the court sentenced King to two consecutive 20-year terms and suspended that sentence on several conditions, the most important being that King enter, and successfully complete, the sexual psychopathy program at Western State. The court then ordered King to Western State to undergo evaluation for determination of sexual psychopathy.

On January 18, 1982, King pleaded guilty in Snohomish County to three additional counts of first degree rape while armed with a deadly weapon. Before sentencing for those crimes, King was transferred to the custody of the Department of Corrections. He was subsequently returned to Western State for re-evaluation of his amenability to treatment.

In April of 1982, hospital staff reported to the King County Superior Court that King was a sexual psychopath. The report noted that during an intake assessment interview, King admitted committing five rapes in California and seven rapes in Washington between 1976 and 1981 for which he was never prosecuted. Based on that report, the court found King to be a sexual psychopath and committed him to Western State. This commitment was made subject to sentencing in Snohomish County.

On May 7, 1982, the Snohomish County court sentenced King to three consecutive 20-year sentences. The court suspended these sentences on the condition that King comply with all of the conditions set forth in his King County sentences. Pursuant to a subsequent stipulation between the parties, King agreed to be subject to the jurisdiction of King County with respect to his Snohomish County convictions.

King participated in the sexual psychopathy program for nearly three years and completed all of its 10 steps. During his treatment, he admitted to staff members in the program that he had committed approximately 40 to 50 rapes in addition to the ones of which he was convicted. Despite his completion of the program, the hospital staff was concerned that King "may not have integrated the necessary changes needed which would impact his character and personality." Clerk's Papers (CP) at 104. The hospital staff sought a second opinion from Irwin Dreiblatt, Ph.D., a sex offender program consultant. In February 1986, the staff at Western State reported to the court that while King had received the maximum benefit of treatment and should not be recommitted for further treatment, he was not safe to be at large. In support of its conclusions, the staff gave the court copies of evaluations performed on King at the hospital's request. The hospital also provided a copy of an evaluation prepared at defense counsel's request. In the evaluations of both the defense psychologist and the hospital staff, King confessed to approximately 50 rapes.

On April 25, 1986, the King County Superior Court revoked King's suspended sentences and committed him to the Department of Corrections. The court found that King had failed to successfully complete the sexual psychopathy program and had therefore violated the conditions of his probation. The court reinstated the original sentences in King and Snohomish counties with credit for time served in the Western State program, and ordered the King County terms to run concurrently with the Snohomish County terms. King appealed the revocation as an abuse of discretion and a denial of due process, but the Court of Appeals dismissed the appeal as frivolous and granted appellate counsel's motion to withdraw.

In January 1987, the Indeterminate Sentence Review Board (hereafter referred to as the Board) conducted an admission hearing and set King's minimum terms at 180 months on Count 1 of his Snohomish County convictions, 95 months on each of Counts 2 and 3 of the Snohomish County convictions, and 84 months on each of the two King County convictions. The Board maintained the concurrent/consecutive designations ordered by the trial courts, whereby the minimum terms for each cause number would run consecutively to each other but concurrently with the terms for the other cause number. The total minimum term thus was 370 months (180 plus 95 plus 95). The Board based this exceptional term in part on Western State's 1986 report on King as well as the subsequent evaluations of King. ¹ The Board also noted that King himself stated at the admission hearing that he "had upwards of 55 rapes." CP at 98.

In February 1989, King filed a personal restraint petition in the Court of Appeals challenging the Board's reliance on the uncharged and unproved crimes to which he admitted during therapy when setting his exceptional minimum term sentence. King claimed that his therapists had promised him confidentiality. In October 1989, the Court of Appeals transferred the petition to King County Superior Court for a decision on the merits. In February 1992, King moved to withdraw his guilty pleas. King also moved to vacate the trial court judgments and sentences, his probation revocation, and the Board's minimum term. The superior court denied those motions and, following a fact-finding hearing, dismissed the personal restraint petition as well. The superior court found that King was told in February 1982 that information he provided Western State could be made available to the court and that the rules of confidentiality did not apply. The court also found that King was warned that his admissions could be used against him and that he was told that fully admitting his crimes was a treatment requirement. The court found further that while King thought his disclosures would be confidential, he was in fact told that they would be confidential only with respect to third parties such as spouses, friends, and relatives. He never was advised that his disclosures were confidential in regard to the court system, its officers, or agents.

The Court of Appeals affirmed the trial court in all respects. State v. King, 78 Wash.App. 391, 897 P.2d 380 (1995). This court then accepted King's petition for review.

I

The first issue is whether the Board violated the defendant's Fifth Amendment rights by considering statements he made at Western State Hospital in setting his minimum term. 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." This prohibition not only permits a person to refuse to testify against himself at a criminal trial, but also allows him not to answer official questions put to him in any other proceeding, civil or criminal, where the answer might incriminate him in future criminal proceedings. Minnesota v. Murphy, 465 U.S. 420, 426, 104 S.Ct. 1136, 1141-42, 79 L.Ed.2d 409 (1984); Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 322, 38 L.Ed.2d 274 (1973).

The availability of the Fifth Amendment privilege thus does not turn on the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure it invites. Post, 118 Wash.2d at 604, 837 P.2d 599; In re Gault, 387 U.S. 1, 49, 87 S.Ct. 1428, 1455, 18 L.Ed.2d 527 (1967). In any type of proceeding,

"a witness protected by the privilege may rightfully refuse to answer unless and until he is protected at least against the use of his compelled answers and evidence derived therefrom in any subsequent criminal case in which he is a defendant.... Absent such protection, if he is nevertheless compelled to answer, his answers are inadmissible against him in a later [proceeding]."

Murphy, 465 U.S. at 426, 104 S.Ct. at 1141 (quoting Lefkowitz, 414 U.S. at 78, 94 S.Ct. at 322-23).

The Fifth Amendment analysis generally entails two considerations: whether the defendant's statements exposed him to a "realistic threat of self-incrimination" in a subsequent proceeding and whether the State compelled the defendant's incriminating statements. Murphy, 465 U.S. at 427, 104 S.Ct. at 1142. Because the first of these considerations is dispositive, we do not reach the second.

Realistic Threat of Self-Incrimination in a Subsequent Proceeding

The Fifth Amendment clearly is implicated when a defendant's statements revealing prior criminal, but unconvicted, behavior are allowed to influence the sentencing decision. State v. Post, 118 Wash.2d 596, 604, 826 P.2d 172, amended, 118 Wash.2d 596, 837 P.2d 599 (1992; State v. Ammons, 105 Wash.2d 175, 184, 713 P.2d 719, 718 P.2d 796, cert. denied, 479 U.S. 930, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986)). "It is no less important that constitutional guaranties be observed at the sentencing phase than at the investigative and trial phases of a criminal prosecution....