State v. Wilkins

• Citation: 125 Idaho 215,868 P.2d 1231
• Decision Date: 08 February 1994
• Docket Number: No. 20158,20158
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Randall Floyd WILKINS, Defendant-Appellant. Boise, November 1993 Term
• Court: Idaho Supreme Court

Page 1231

868 P.2d 1231

125 Idaho 215

STATE of Idaho, Plaintiff-Respondent, v. Randall Floyd WILKINS, Defendant-Appellant.

No. 20158.

Supreme Court of Idaho,

Boise, November 1993 Term.

Feb. 8, 1994.

Margolin, Arguimbau & Battson, San Francisco, CA, and Manweiler, Bevis & Cameron, P.A., Boise, for defendant-appellant. Ephraim Margolin argued.

Larry EchoHawk, Atty. Gen., and Michael A. Henderson, Deputy Atty. Gen., argued, Boise, for plaintiff-respondent.

JOHNSON, Justice.

This is a criminal sentencing case. We conclude that the trial court improperly required the defendant, who had pleaded guilty, to testify for the prosecution at sentencing concerning matters beyond the facts of the case and concerning matters beyond what was necessary at the plea hearing to establish that the defendant pleaded guilty freely and voluntarily. We also conclude that the trial court improperly required the defendant's personal psychiatrist to testify at the sentencing hearing, invading privileged communications with the defendant. Therefore, we vacate the sentence and remand for resentencing.

I.

THE BACKGROUND AND PRIOR PROCEEDINGS.

As the result of an incident between Randall Floyd Wilkins (Wilkins) and his former girlfriend, Susan Gockel (Gockel), Wilkins was charged with misdemeanor battery, and Gockel sought and obtained a protection order preventing Wilkins from having contact with her. Despite the order, Wilkins continued to contact Gockel. Eventually, the police arrested Wilkins for violation of the protection order.

While in jail, Wilkins began thinking of killing Gockel and then himself. Following his release from jail on bail, Wilkins proceeded to Gockel's apartment carrying a handgun. After gaining entry to Gockel's apartment by deception, Wilkins put the gun to Gockel's neck and told her that he was going to kill her and then himself. Gockel eventually calmed Wilkins down and persuaded him to let her go to work. From work, she telephoned the police, who arrested Wilkins.

After his arrest, Wilkins was transported to the Ketchum Police Station, where the police read Wilkins his Miranda rights and interrogated him. When Wilkins's parents arrived in the booking room, the officer who was interrogating Wilkins offered to leave Wilkins alone with his parents. Wilkins said he would like to be alone with his parents, if the officer would turn off the tape recorder the officer had been using during the interrogation. After the officer turned off the tape recorder and left the booking room, Wilkins spoke to his parents. The emergency dispatcher for the city heard and recorded the conversation over an intercom system.

The prosecutor charged Wilkins with assault with intent to commit a serious felony. Wilkins pleaded not guilty and requested a mental examination to determine his fitness to proceed. After a psychiatrist determined Wilkins was competent to proceed, Wilkins pleaded guilty pursuant to a plea agreement. As part of the plea agreement, prior to sentencing, Wilkins was to undergo a psychological evaluation and to be transported to a California mental health care facility, where he would be evaluated and treated for a period of sixty days prior to sentencing. The plea agreement also provided that the misdemeanor charges for battery and for violation of the protective order would be continued until after the sentencing, and then dismissed.

At the time of Wilkins's guilty plea, the trial court informed Wilkins:

You give up your constitutional privilege against self-incrimination. You can be required to take the witness stand under oath as to the facts of this case, and the Court can decide whether your plea is freely and voluntarily given and can accept that plea.

Prior to the sentencing hearing, Wilkins filed a motion in limine seeking to preclude the prosecution from: (1) compelling Wilkins to take the stand and testify against himself; (2) introducing any testimony from Wilkins's private psychiatrist, on the ground that compelling such testimony would violate the psychotherapist and patient privilege; and (3) introducing evidence of the recorded conversation between Wilkins and his parents in the police department booking room. The trial court refused to preclude the prosecution's presentation of this evidence.

At the sentencing hearing, the prosecution called both Wilkins and his private psychiatrist to testify. The prosecution also introduced evidence of the taped conversation between Wilkins and his parents in the police department booking room. At the beginning of the sentencing hearing, the prosecution informed the trial court that the two misdemeanors against Wilkins had been dismissed.

The trial court sentenced Wilkins to a ten-year unified sentence, with the first five years to be served on a determinate basis. Wilkins appealed.

II.

BY HIS GUILTY PLEA, WILKINS WAIVED HIS PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION ONLY WITH REGARD TO THE FACTS OF THE CASE AND WHETHER HE PLEADED GUILTY FREELY AND VOLUNTARILY.

Wilkins asserts that his guilty plea did not waive his privilege against self-incrimination at sentencing under both the Fifth Amendment to the United States Constitution and art. 1, § 13 of the Idaho Constitution. We agree, to the extent that Wilkins was required to testify about matters that went beyond the facts of the case and whether he pleaded guilty freely and voluntarily.

In State v. Carrasco, 117 Idaho 295, 787 P.2d 281 (1990), the Court stated:

When a defendant enters a plea of guilty, the defendant waives, among others, the following rights of constitutional dimension: the privilege against compulsory self-incrimination....

Id. at 297, 787 P.2d at 283.

This excerpt from Carrasco is derived from the United States Supreme Court case of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). In Boykin, the Supreme Court stated that the Fifth Amendment privilege against compulsory self-incrimination is waived when a guilty plea is entered. 395 U.S. at 243, 89 S.Ct. at 1712, 23 L.Ed.2d at 279. The purpose of this waiver is to permit the trial court to interrogate the defendant to determine the voluntariness of the plea and to establish a factual basis for accepting it. This is what Wilkins was told by the trial court, when the trial court stated that if Wilkins pleaded guilty, he could "be required to take the witness stand under oath as to the facts of this case, and the Court can decide whether your plea is freely and voluntarily given and can accept that plea."

In State v. [Bryan] Lankford, 116 Idaho 279, 775 P.2d 593 (1989), rev'd on other grounds, Lankford v. Idaho, 500 U.S. 110, 111 S.Ct. 1723, 114 L.Ed.2d 173 (1991), the Court concluded that the defendant's voluntary decision to take the stand during trial waived his privilege against self-incrimination at sentencing as well, but only in a limited fashion:

Lankford argues that the sentencing was a proceeding entirely separate from his trial and that he can therefore reassert his waived privilege. However, if a defendant has previously waived his privilege against self incrimination by voluntarily testifying at trial, that waiver continues into sentencing with respect to the testimony voluntarily given at trial.

Id. at 282, 775 P.2d at 596 (emphasis added).

In Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), the Supreme Court rejected the prosecution's argument that a defendant has a Fifth Amendment privilege against self-incrimination only during the guilt phase of a trial, and not during the penalty phase after the defendant has been found guilty. Id. at 462, 101 S.Ct. at 1872, 68 L.Ed.2d at 368. Concerning the Fifth Amendment, the Supreme Court stated:

The essence of this basic constitutional principle is "the requirement that the State which proposes to convict and punish an individual produce the evidence against him by the independent labor of its officers, not by the simple, cruel expedient of forcing it from his own lips."

Id., (emphasis in original).

The Supreme Court continued:

We can discern no basis to distinguish between the guilt and penalty phases of respondent's capital murder trial so far as the protection of the Fifth Amendment privilege is concerned. Given the gravity of the decision to be made at the penalty phase, the State is not relieved of the obligation to observe fundamental constitutional guarantees. Any effort by the State to compel respondent to testify against his will at the sentencing hearing clearly would contravene the Fifth Amendment.

Id. at 462-63, 101 S.Ct. at 1873, 68 L.Ed.2d at 369 (citations omitted) (footnotes omitted).

Although Estelle involved sentencing following a guilty verdict, and this case involves sentencing following a plea of guilty, the principle stated in Estelle is equally applicable, except as to the matters into which the trial court could have inquired at the time of the guilty plea.

At the sentencing hearing, Wilkins was required to testify to matters that went well beyond the facts of the case and information that would have been appropriate to determine whether he pleaded guilty freely and voluntarily. The trial court relied heavily on this testimony in sentencing Wilkins. Therefore, we conclude it is necessary to vacate the sentence and remand for resentencing.

III.

THERE IS AN INADEQUATE RECORD TO ADDRESS THE ADMISSION OF EVIDENCE DURING THE SENTENCING HEARING OF STATEMENTS WILKINS MADE AFTER HE ASSERTED HIS RIGHT TO COUNSEL.

Wilkins asserts that it was a violation of his privilege against self-incrimination for the trial court to allow the prosecution to present at the sentencing hearing statements taken from Wilkins by the police in violation of his Miranda rights after he asserted his right to counsel. We decline to address this issue, because there is an inadequate record for review.

Wilkins has not presented us with a record in this appeal which reveals whether Wilkins was advised of his Miranda...