State v. Escoto , 108 Wash. 2d 1 ( 1987 )

Brachtenbach, J.

This appeal by a juvenile arises from a sentence outside the standard range. The essential issue is whether the proceedings violated the juvenile's Fifth Amendment privilege against self-incrimination.

The juvenile pleaded guilty to theft in the second degree. With his criminal history the standard range was 21 to 28 weeks. The court imposed an 80-week sentence after appropriate hearings and findings. We affirm.

At the time of the offense and at sentencing the juvenile was 12 years of age. At the time of sentencing, he had convictions for three burglaries, five thefts, four simple assaults, one possession of stolen property, one malicious mischief, and theft in the second degree, the latter being the subject of the sentencing and this appeal.

Understandably, the court made these findings of fact:

7. Disposition within the standard range would fail to protect the citizenry from the respondent's criminal behavior because the respondent's behavior is escalating in frequency and degree of violence. Dr. Von Cleve's report indicates that Anthony derives pleasure from injuring others and his behavior will worsen unless intervention is ordered.

8. Disposition within the standard range would fail to make the respondent accountable for the offense because the respondent is out of control and long-term treatment is necessary to impact Anthony.

9. Disposition within the standard range would fail to provide necessary treatment and supervision of the respondent because Dr. Von Cleve's Report indicates that any treatment plan less than two years would have inconsequential impact.

10. Disposition within the standard range would pose a serious and clear danger to society beyond a reasonable doubt.

11. The sentence imposed by the Court in this matter is reasonably related to the purposes of the Juvenile Justice Act of 1977.

Supplemental Clerk's Papers, at 2-3.

At a preliminary hearing in October, the caseworker told the court that the juvenile is "dangerous, and extremely dangerous". He recommended that there be a psychological evaluation, stating "I would hate to have to recommend, which by law I could, four years in the State institution just to cover all the bases." Motion Hearing, Oct. 16, 1985, at 2-3.

When defense counsel objected to any evaluation for any purpose, the court noted that it believed it had inherent authority to order an evaluation. The court stated that any evaluation would relate only to matters for which the juvenile had been found guilty and not any unadjudicated charge. The court quite accurately said: "the purpose of this whole thing is to allow the Court ... to have adequate information in order to reach a decision, that is the most fundamental issue, the public policy regarding the privilege [Fifth Amendment] once there has been a conviction, becomes secondary to that." Motion Hearing, Oct. 16, 1985, at 11-12. The court, nonetheless, granted defense counsel the right to be present at the evaluation interview; defense counsel chose not to attend.

At the November disposition hearing the court heard from both counsel, the juvenile's father, the juvenile, the caseworker and the evaluating psychologist; the court received written reports from the psychologist and the probation officer.

The court concluded: "Well, I think it is overwhelmingly clear that a sentence outside of the standard range is essential here, both to protect the public, and to protect the respondent." Disposition Hearing, Nov. 8, 1985, at 14. Further,

I think the basis for the finding of Manifest Injustice lies in the recent criminal history, lies in the report of Dr. Von Cleve particularly in the concerns that are expressed about the nature of the assaultive behavior, the lack of remorse or understanding of the impact on the victims, and I think the somewhat callous or disregard for people in general that the young man has shown. I think that presents an extremely high risk of reoffending so that clearly the evidence is overwhelming and beyond a reasonable doubt that this young man represents a clear danger to society.

Having said that we have to function I think in a way that meets those demands, but also meets the demands of his eventual release into society. . . .

Disposition Hearing, Nov. 8, 1985, at 15-16. On the theft charge the court held:

And finally on the Theft in the second degree, I am going to go beyond the standard range, and impose a maximum of 80 weeks in the institution. I say that with the idea that that will give the department I think a long enough time to deal with him in a way that I think is of such a length that they can make some progress, but also have some light at the end of the tunnel, so that depending on how he reacts, he can determine where he goes from there, and when. And I think he needs to have some of the responsibility for that as well as the State. I am deeply troubled by his age, by the course that his life has taken up to now — I just hope that we are doing it early enough, and I hope that professionals are telling me that we can make a substantial change so that as he reaches his teen years, particularly his middle to late teen years he will have some semblance of understanding, and better behavior.

Disposition Hearing, Nov. 8, 1985, at 16-17.

The juvenile's major reliance is upon Estelle v. Smith, 451 U.S. 454, 68 L. Ed. 2d 359, 101 S. Ct. 1866 (1981). The facts of Estelle destroy its relevance. It was a death penalty case. The State used in the death penalty phase a pretrial psychiatric examination, informally ordered by the court sua sponte, administered to determine competency to stand trial. However, the State went further. It relied upon testimony of the psychiatrist which went far beyond the contents of the written, pretrial report. The doctor was the State's only witness on the critical issue of future dangerousness, a matter never addressed in the written report.

The Estelle Court specifically stated that the first issue was whether the privilege against compelled self-incrimination was violated "because [defendant] was not advised before the pretrial psychiatric examination that he had a right to remain silent and that any statement he made could be used against him at a sentencing proceeding." Estelle, at 461. Additionally, the trial court had ordered the State to disclose the witnesses it planned to use in both the guilt and the penalty phase. The trial court had granted a defense motion to bar the testimony of any witness not named on the State's list. The doctor's name did not so appear.

It is clear the Supreme Court rested its holding upon the fact that it was a death penalty case. It referred to the nature of the statement and "the exposure which it invites." Estelle, at 462 (quoting In re Gault, 387 U.S. 1, 49, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1967)). It referred to the ultimate penalty of death, to the defendant being an instrument of his own execution, and to the gravity of the decision. It noted an insistence that capital sentencing procedures be unusually reliable. Estelle, at 462-63, 468.

Further, at the time of the pretrial psychiatric examination, counsel had been appointed for the defendant. Counsel was not notified of the examination which took place in the jail, lasting 90 minutes.

Highly significant is the Supreme Court's own limitation upon the Estelle holding. The Court said: "Of course, we do not hold that the same Fifth Amendment concerns are necessarily presented by all types of interviews and examinations that might be ordered or relied upon to inform a sentencing determination." Estelle, at 469 n.13.

The juvenile also relies upon State v. Ammons, 105 Wn.2d 175, 713 P.2d 719, 718 P.2d 796 (1986). There we upheld the sentences in that case, but the opinion states: "However, all encounters, examinations and interviews do not necessarily present the same Fifth Amendment concerns." Ammons, at 185. Ammons is of no aid to the juvenile. It involved adults being sentenced under the specific provisions of the Sentencing Reform Act of 1981, RCW 9.94A, which is not applicable to juvenile proceedings.

In contrast, here the court ordered that the juvenile's attorney had a right to be present at the evaluation interview and presumably render whatever advice was appropriate. Prior to the evaluation, defendant's counsel told the court "that the Court would expect me to be present if I wanted to be, and if my client wanted me to be present at this evaluation. My advice to my client would be under the Fifth Amendment to refuse to participate in any evaluation whatsoever." Motion for Reconsideration Hearing, Oct. 25, 1985, at 6. The court indicated it would rule upon that question if such a situation developed.

Defense counsel chose not to be present at the evaluation; the juvenile obviously participated without objection and without asserting a right to remain silent. The juvenile was in court when the colloquy about remaining silent took place. The defendant has made no record as to what advice was given him by his counsel nor why counsel absented himself from the evaluation. While the defendant raised the question in court before and after the evaluation, his attorney, for whatever reason, did not appear at the evaluation. The court had ordered that counsel had a right to be present. Considering the totality of the circumstances, on this record there was a waiver, even if the privilege attached.

A sincere, sensible and concerned trial judge was attempting to fashion the best disposition of a juvenile very much in need of all the help the system could provide. The juvenile's criminal history was such that a disposition outside the standard range was virtually inevitable. The trial court was seeking the most thorough information it could obtain to help this youngster and still protect society against an increasingly dangerous child. The court was precisely careful to limit use of the evaluation to matters already adjudicated and to permit presence of counsel. That is a far cry from the facts and indeed the holding of the Estelle death penalty case.

Quite apart from the psychologist's report, the court had before it the report from the probation counselor to which no objection was raised. That report contained information quite similar to that of the psychologist. It concluded that the juvenile's attitude was not conducive to short term treatment. It stated that the juvenile expressed no empathy or sympathy for his victims and basically wants to spend his time hassling people. The probation counselor's recommendation was as follows:

Tony needless to say, continues to offend at an alarming rate.

There are six criteria established for Manifest Injustice finding. Only one is needed for the finding to hold up. Tony's offenses and behavior place him in four of the six categories. I therefore strongly recommend that the court follow my recommendations for a Manifest Injustice finding and sentence Tony to a maximum of 104 weeks with the Department of Juvenile Rehabilitation.

State's Exhibit 1, at 8.

The psychologist likewise recommended a sentence of 104 weeks. The court imposed a maximum of 80 weeks.

The juvenile act itself recognizes the difference between the adjudicatory state and disposition. RCW 13.40.140(8) provides in part:

(8) A juvenile shall be accorded the same privilege against self-incrimination as an adult. An extrajudicial statement which would be constitutionally inadmissible in a criminal proceeding may not be received in evidence at an adjudicatory hearing over objection.

Affirm.

Dolliver, Andersen, and Callow, JJ., concur.