State v. Post, 57846-0

CourtUnited States State Supreme Court of Washington
Citation826 P.2d 172,118 Wn.2d 596
Decision Date12 March 1992
Docket NumberNo. 57846-0,57846-0
Parties, 60 USLW 2635 STATE of Washington, Respondent, v. Charles William POST, Petitioner.

Page 596

118 Wn.2d 596
826 P.2d 172, 60 USLW 2635
STATE of Washington, Respondent,
v.
Charles William POST, Petitioner.
No. 57846-0.
Supreme Court of Washington,
En Banc.
March 12, 1992.

[826 P.2d 175]

Page 600

Carney, Stephenson, Badley, Smith & Spellman, P.S., James E. Lobsenz, John P. Griffin, Seattle, for petitioner.

Norm Maleng, King County Prosecutor, Donna L. Wise, Senior Appellate Atty., Jonathan M. Love, Deputy, Seattle, for respondent.

UTTER, Judge.

This case arises from the sentence Charles William Post received for first degree rape and burglary convictions in 1988. He received a sentence exceeding the standard range under the Sentencing Reform Act of 1981 (SRA), RCW 9.94A. Post's future dangerousness was one of the grounds for his exceptional sentence. As evidence of Post's future dangerousness, the trial court considered Post's prior rape convictions and the results of a 1980 interview that Post had with a Department of Corrections psychologist. Post claims the use of this information and the testimony at the sentencing hearing violated his Fifth Amendment right against compelled self-incrimination and

Page 601

the psychologist-patient privilege of RCW 18.83.110. We conclude that the trial court properly considered the 1980 report and the psychologist's testimony as evidence of Post's future dangerousness and affirm the sentence.

Facts

On October 10, 1988, Charles Post was convicted of first degree rape and burglary. See State v. Post, 59 Wash.App. 389, 797 P.2d 1160 (1990), review granted, 116 Wash.2d 1018, 811 P.2d 219 (1991). The trial court imposed an exceptional sentence of 180 months (15 years) 1 and listed four [826 P.2d 176] reasons as justification: (1) deliberate cruelty, (2) violation of the victim's zone of privacy, (3) future dangerousness, and (4) protection of the public.

The convictions arose from events that occurred on February 20, 1988. On that morning, shortly before 8 a.m., 15-year-old M awoke and was confronted in her bedroom at her parents' home by Charles Post. Post tried to choke M and then raped her. When he left the residence, he took a camera and camera bag that belonged to M's sister. Post was on parole for two prior first degree rape convictions when he committed the 1988 rape and burglary. Post did not testify at his trial.

The sentencing hearing was held on November 9, 1988. Post filed a notice to dispute material facts. The State presented testimony from Dr. Brett Trowbridge, a psychologist, and Thomas Porro, Post's community corrections officer. The judge had a copy of the presentence report prepared by Thomas Porro. He also had a copy of a report that Dr. Trowbridge prepared after interviewing Post in September 1980. Post objected to the use of both men's testimony

Page 602

and their reports to support the State's recommendation that an exceptional sentence be imposed. Post's objection against Dr. Trowbridge's testimony was based on the Fifth Amendment privilege against self-incrimination and the psychologist-patient privilege.

The objection against Porro's testimony was based on the appearance of fairness doctrine. Post had filed a civil suit against Porro and the Department of Corrections (hereafter DOC) prior to the preparation of the presentence report. In that suit Post alleged that his parole was terminated for his failure to submit to a lie detector test.

Dr. Trowbridge gave the court his current opinion that Post was "predatory" and had a high likelihood of reoffending if released into the community. He did not believe Post's chances for successful treatment were good. Trowbridge's opinion was based on the 1980 interview and Post's conduct since 1980. Post's refusal to admit his guilt in committing the most recent offense was a factor in Trowbridge's opinion because "[p]eople who deny their pattern of sexual deviancy are almost impossible to treat". Report of Proceedings, at 22 (sentencing hearing).

Dr. Trowbridge was a consultant to DOC in 1980. He interviewed Post in September 1980 after Post's parole officer referred Post to Trowbridge. Post had been transferred to work release in August 1980 and his parole officer was concerned about his progress. The purpose of this interview was to evaluate Post and give a recommendation to DOC work release personnel as to Post's potential dangerousness; what Post's problems might be; how quickly he could leave work release; and his suitability for work release. Trowbridge conducted no psychological tests on Post. The interview was limited to the subject of Post's prior crimes.

Dr. Trowbridge concluded in the 1980 report that Post was potentially dangerous, recommending "close scrutiny and monitoring", noting that Post had not appreciably changed after 6 years in prison. In his report, Trowbridge concluded that Post was manipulative and showed little

Page 603

insight into his sexual deviancy. Post denied any sexual motivation in the rapes he committed in 1974 and contended that the rapes were motivated by money.

During the interview Dr. Trowbridge told Post that the report would not be confidential. He routinely told individuals that his reports became part of their permanent Department of Corrections file. In testimony at the sentencing hearing, Trowbridge acknowledged that he did not anticipate that his report would be used 8 years later in a sentencing hearing and did not warn Post about such a possibility. Trowbridge also acknowledged that Post was "required" to submit to his evaluation in the sense that it was widely known that if individuals did not cooperate during the interview process, it was a factor considered[826 P.2d 177] against them: "There were people who refused to see me and were sent back to the institutions...." Report of Proceedings, at 25 (sentencing hearing). He did not advise Post of his Miranda rights before conducting the 1980 interview.

Thomas Porro concurred in the State's recommendation of a 30-year exceptional sentence. Porro based his conclusion on Post's current and prior offenses and his institutional record. Porro also believed that Post was likely to reoffend.

The Court of Appeals found no grounds for a new trial and affirmed the sentence. State v. Post, 59 Wash.App. 389, 396, 406, 797 P.2d 1160 (1990), review granted, 116 Wash.2d 1018, 811 P.2d 219 (1991). It invalidated the deliberate cruelty and zone of privacy factors supporting the exceptional sentence. Post, 59 Wash.App. at 398-402, 797 P.2d 1160. The Court of Appeals then ruled that Post's statements to Dr. Trowbridge were not protected by the psychologist-patient privilege. Post, at 404, 797 P.2d 1160. It held that Trowbridge's testimony and 1980 report should not have been considered at the sentencing hearing because Post had not been given Miranda warnings prior to the 1980 interview. Post, 59 Wash.App. at 405, 797 P.2d 1160. While the Court of Appeals ruled that the sentencing judge's consideration of Dr. Trowbridge's testimony and 1980 report violated Post's Fifth Amendment privilege against self-incrimination, it held

Page 604

that Post's criminal history alone supported the future dangerousness finding.

Post filed a motion for reconsideration on October 25, 1990. This court's decision in State v. Pryor, 115 Wash.2d 445, 799 P.2d 244 (1990) was released the same day. On November 7, 1990, the Court of Appeals denied Post's motion for reconsideration.

Post now asks that his exceptional sentence be vacated in light of State v. Pryor, supra, and that we remand for resentencing. Post also claims that the appearance of fairness doctrine bars the trial court from considering the presentence report written by Thomas Porro. Finally, Post seeks a new trial. We address these claims each in turn.

I
EXCEPTIONAL SENTENCE

The main issue presented in this claim is whether at sentencing the trial court was able to consider Dr. Trowbridge's opinion and testimony regarding Post's amenability to treatment. Post argues that the Fifth Amendment and the psychologist-patient privilege bar the use of this information for sentencing purposes. The State, while conceding the Fifth Amendment applies to a sentencing hearing where the State seeks an exceptional sentence, 2 counters that the trial court properly considered Dr. Trowbridge's opinion and testimony regarding Post's lack of amenability to treatment. We begin with the Fifth Amendment question.

The Fifth Amendment, made applicable to the states through the Fourteenth Amendment, commands that "[n]o person ... shall be compelled in any criminal case to be a witness against himself". Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). The availability of 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. In re Gault, 387 U.S. 1, 49, 87 S.Ct. 1428, 1455, 18 L.Ed.2d

Page 605

527 (1967). Thus, in the past this court has said that it does not allow statements made by a convicted defendant to a probation officer or psychiatrist revealing prior criminal but unconvicted behavior to influence the sentencing decision. 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.

[826 P.2d 178] A

Did the use of Post's 1980 statements to Dr. Trowbridge as grounds for an exceptional sentence violate Post's Fifth Amendment rights? The general rule is that if a person desires not to incriminate himself or herself, he or she must invoke the protection of the Fifth Amendment privilege against self-incrimination rather than answer. Garner v. United States, 424 U.S. 648, 654 n. 9, 96 S.Ct. 1178, 1182 n. 9, 47 L.Ed.2d 370 (1976); State v. Sargent, 111 Wash.2d 641, 648, 762 P.2d 1127 (1988)...

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