Denning v. Board of Parole ( 2023 )

26
Submitted February 27, affirmed March 29, 2023
JACK UDEAN DENNING,
Petitioner,
v.
BOARD OF PAROLE AND
POST-PRISON SUPERVISION,
Respondent.
Board of Parole and Post-Prison Supervision
A177329
527 P3d 1081
Petitioner seeks judicial review of a final order of the Board of Parole and
Post-Prison Supervision that imposes a special condition of supervision requir-
ing him to participate in random polygraph examinations in accordance with
ORS 144.102(4)(b)(J). On review, petitioner asserts that imposing the supervi-
sion condition infringes on his right against self-incrimination under the Fifth
Amendment to the United States Constitution. Held: The board’s imposition of
the polygraph condition did not run afoul of petitioner’s rights under the Fifth
Amendment. However, petitioner may choose on a question-by-question basis to
invoke the Fifth Amendment privilege, the exercise of which cannot be punished
under the terms of the supervision condition itself.
Affirmed.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Rond Chananudech, Deputy Public Defender,
Office of Public Defense Services, filed the brief for petitioner.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Emily N. Snook, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
POWERS, J.
Affirmed.
Cite as 325 Or App 26 (2023) 27
POWERS, J.
Petitioner seeks judicial review of a final order of the
Board of Parole and Post-Prison Supervision that imposes a
special condition of supervision requiring him to participate
in random polygraph examinations in accordance with ORS
144.102(4)(b)(J). Among his arguments on review, petitioner
asserts that the imposition of the supervision condition vio-
lates his rights under the Fifth Amendment. As explained
below, the imposition of the condition does not violate peti-
tioner’s rights under the Fifth Amendment, and petitioner
remains free to invoke his rights against self-incrimination
in response to a particular question. Accordingly, we affirm.
The procedural facts are uncontested. In 2010, peti-
tioner pleaded no contest to unlawful sexual penetration
with a foreign object and attempted unlawful sexual pen-
etration in the first degree and was sentenced to a lengthy
prison term. Shortly before he was released from prison onto
post-prison supervision (PPS), the board issued an Order of
Supervision Conditions that imposed a number of general
and special conditions of supervision that petitioner would
be subject to while he served 140 months of PPS in the com-
munity. As required by ORS 144.102(4)(b), the board imposed
what is commonly referred to as the Sex Offender Package
of conditions, which includes the challenged polygraph con-
dition. More specifically, ORS 144.102(4)(b)(J) requires the
following special conditions of supervision for a person who
was convicted of a sex crime as defined in ORS 163A.005
and then placed on PPS:
“Participation in random polygraph examinations to obtain
information for risk management and treatment. The per-
son is responsible for paying the expenses of the examina-
tions. The results of a polygraph examination under this
subparagraph may not be used in evidence in a hearing to
prove a violation of post-prison supervision.”
Petitioner sought administrative review of that condition,
arguing that the condition violated his rights under the
Fifth and Fourteenth Amendments to the United States
Constitution and Article I, sections 10 and 12, of the Oregon
Constitution. The board denied relief noting that the condi-
tion was required by ORS 144.102(4)(b)(J) and explaining
28 Denning v. Board of Parole
that the condition was imposed “for the purposes of risk
management and treatment, and not for the purposes of
proving that you violated [your] post-prison supervision.”
Petitioner timely sought judicial review.
On review, petitioner renews his challenge under
the Fifth Amendment, arguing that the condition is uncon-
stitutionally overbroad because it infringes on his Fifth
Amendment right against self-incrimination.1 Petitioner
asserts that the board’s failure to narrowly tailor the con-
dition to explain why the condition does not contain an
exception for the exercise of petitioner’s constitutional rights
makes the condition overbroad. We disagree. The board’s
imposition of the condition does not run afoul of petitioner’s
rights under the Fifth Amendment; rather, petitioner retains
his ability to assert his Fifth Amendment rights on a
question-by-question basis.
The Fifth Amendment to the United States
Constitution provides, in part, that “[n]o person * * * shall
be compelled in any criminal case to be a witness against
himself.” The right against self-incrimination secured by
the Fifth Amendment may be asserted in “any proceeding,
civil or criminal, administrative or judicial, investigatory or
adjudicatory; and it protects against any disclosures that
the witness reasonably believes could be used in a crimi-
nal prosecution or could lead to other evidence that might
be so used.” Kastigar v. United States, 406 US 441, 444-
45, 92 S Ct 1653, 32 L Ed 2d 212 (1972). Not only does the
Fifth Amendment protect statements that could be directly
incriminating, but it also protects testimony that “would
furnish a link in the chain of evidence needed to prosecute
the * * * crime.” Hoffman v. United States, 341 US 479, 486,
71 S Ct 814, 95 L Ed 1118 (1951).
Importantly, the privilege is not a right to refuse
to honor a subpoena or take the stand as a witness. As we
recently explained:
“barring exceptional circumstances, the only way a per-
son can assert the privilege is on a question-by-question
basis. As to each question asked, the party has to decide
1
Petitioner does not renew his claim under the state constitution.
Cite as 325 Or App 26 (2023) 29
whether or not to raise [a] Fifth Amendment right. Mitchell
v. United States, 526 US 314, 321-22, 119 S Ct 1307, 143
L Ed 2d 424 (1999) (‘The privilege is waived for the matters
to which the witness testifies, and the scope of the waiver
is determined by the scope of relevant cross-examination[.]
The witness himself * * * determines the area of disclosure
and therefore of inquiry.’ (Internal citations and quotation
marks omitted.)); see also United States v. Bodwell, 66 F3d
1000, 1001 (9th Cir 1995) (holding that Fifth Amendment
invocation must occur on a question-by-question basis).
Barring exceptional circumstances, the requirement for
a question-by-question invocation is necessary for the court
to determine whether the privilege applies, by evaluating
whether ‘the answer to that particular question would sub-
ject the witness to a real danger of * * * crimination[,]’ as
opposed to ‘a mere imaginary possibility of increasing the
danger of prosecution.’ Rogers v. United States, 340 US 367,
374-75, 71 S Ct 438, 95 L Ed 344 (1951) (internal quota-
tion marks omitted). The witness claiming the privilege
bears the burden of establishing that an answer could be
injurious, although the court must construe the privilege
liberally ‘in favor of the right it was intended to secure.’
Hoffman v. United States, 341 US 479, 486, 71 S Ct 814, 95
L Ed 1118 (1951).”
State v. Rodriguez, 301 Or App 404, 412-13, 456 P3d 312
(2019) (bracketed text in original; footnote omitted). Thus,
just as the Fifth Amendment does not allow a person to dis-
regard a subpoena to appear as a witness in court because
that person must show up to invoke the right on a question-
by-question basis, the Fifth Amendment does not allow an
offender who is subject to a supervision condition requiring
participation in random polygraph examinations to disre-
gard a request to participate in a polygraph examination.
It is at that point—while participating in a polygraph
examination—that petitioner may choose on a question-by-
question basis to invoke the Fifth Amendment privilege, the
exercise of which cannot be punished under the terms of the
supervision condition itself. That is, the board explicitly rec-
ognizes as much when the supervision condition provides,
in part: “The results of a polygraph examination under this
subparagraph may not be used in evidence in a hearing to
prove a violation of post-prison supervision.” See, e.g., United
States v. Antelope, 395 F3d 1128, 1139 (9th Cir 2005) (holding
30 Denning v. Board of Parole
that the revocation of probation and supervised release vio-
lated the defendant’s Fifth Amendment right against self-
incrimination and that such “self-protective silence” could
not be punished).
Accordingly, because the imposition of the poly-
graph condition does not violate petitioner’s rights under
the Fifth Amendment, we reject his claims and affirm the
board’s supervision order.
Affirmed.