Matter of N.V.

No. 03-371
IN THE SUPREME COURT OF THE STATE OF MONTANA
2004 MT 80IN THE MATTER OF N.V.,
A Youth,
Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DJ 2001-13,
Honorable Richard A. Simonton, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Brock Albin, Albin Law Office, Bozeman, Montana
For Respondent:
Honorable Mike McGrath, Attorney General; Jim Wheelis, Assistant
Attorney General, Helena, Montana
Marty Lambert, County Attorney; Elizabeth Ridenour, Deputy
County Attorney, Bozeman, Montana
Submitted on Briefs: December 23, 2003
Decided: March 30, 2003
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 N.V. was adjudicated a delinquent youth before the Eighteenth Judicial District Court,
Gallatin County, and placed upon formal probation until his eighteenth birthday. A petition
to revoke N.V.’s probation was filed with the Youth Court when the youth was charged with
negligent arson and criminal mischief. N.V. admitted to the charges and his probation was
subsequently revoked. The court thereafter committed N.V. to the custody of the
Department of Corrections until eighteen years of age, and ordered him placed in the sexual
offender treatment program at Pine Hills Correctional Facility. The court also extended
jurisdiction over N.V. until the age of twenty-five. N.V. appeals from this disposition. We
affirm in part, reverse in part, and remand.
¶2 We restate the issues on appeal as follows:
¶3 Did the Youth Court err by considering evidence of the polygraph results?
¶4 Did the Youth Court err by considering the psychological evaluation of Dr. Robert
Page?
¶5 Did the Youth Court err by extending jurisdiction over N.V. until his twenty-fifth
birthday?
¶6 Did the Youth Court properly deny family counseling and travel expenses for N.V.’s
family?
¶7 Did the Youth Court properly deny N.V.’s request for travel expenses for counsel?
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FACTUAL AND PROCEDURAL BACKGROUND
¶8 In July of 2001, N.V., who was twelve years old at the time, was adjudicated a
juvenile delinquent after admitting to the offense of sexual intercourse without consent.
N.V. was placed upon formal probation until his eighteenth birthday and ordered to undergo
sexual offender treatment with Barbara Bottomly (Bottomly), a licensed clinical counselor
and member of the Montana Sexual Offender Treatment Association (MSOTA).
¶9 At Bottomly’s request, N.V. underwent a series of polygraph examinations in July
and November 2002. The examinations revealed that N.V. had been deceptive during his
sessions with Bottomly and had not fully disclosed his sexual victims or contacts. Bottomly
forwarded the results of the November 2002 polygraph examination to N.V.’s probation
officer, Dynise G. Ette (Ette), and recommended that N.V. be placed in a group home.
¶10 On December 27, 2002, the Gallatin County Attorney’s Office received Ette’s request
for revocation of probation. Ette reported that N.V. had been cited with criminal mischief
and negligent arson after splattering ink on a bulletin board and setting fire to paper towels
in the school restroom. After receiving Ette’s report, the State filed a petition to revoke
N.V.’s probation. On March 7, 2003, the State amended its petition, adding that N.V. had
violated the terms of his probation by failing to fully participate in sexual offender
treatment– a fact which came to light after examination of the polygraph results–and had
viewed pornography over the internet.
¶11 A hearing on the State’s petition was held before the Youth Court on March 18, 2003.
N.V. admitted to the offenses of negligent arson and criminal mischief, as well as to viewing
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internet pornography in violation of the rules of his probation. However, N.V. denied that
he had failed to fully participate in the sex offender treatment program and the State did not
pursue adjudication of this charge. At the request of N.V.’s probation officer, the court
ordered the youth to undergo a psychological evaluation prior to the disposition hearing,
which was scheduled for April 17, 2003.
¶12 On March 27, 2003, in compliance with the court’s order, Kristi Rydeen, L.C.P.C.
(Rydeen), reported the results of her evaluation and recommended placement of the youth
in a group home with continued therapy from a member of MSOTA. In preparing her
assessment, Rydeen had consulted with Leigh Schickendantz, L.C.P.C. (Schickendantz), who
had also reviewed N.V.’s relevant treatment history and polygraph reports. In light of N.V.’s
adjudicated sex offender status and failure to complete outpatient sex offender treatment,
Schickendantz recommended that N.V. be immediately returned to the direct supervision of
his probation officer and placed in a structured, adequately supervised setting until such time
as a viable treatment option could be determined.
¶13 Notwithstanding the previous evaluations by Rydeen and Schickendantz, Ette sought
an evaluation from Dr. Robert Page, L.C.P.C. (Dr. Page). Dr. Page had previously evaluated
N.V. following the charges of sexual intercourse without consent in 2001, and had likewise
received a copy of the polygraph reports. After a complete reassessment of N.V., Dr. Page
recommended placement in an inpatient sex offender therapy program until such time as it
could be determined that N.V. could safely participate in outpatient therapy. At the
disposition hearing, N.V. maintained that Dr. Page’s evaluation was obtained without prior
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notice to defense counsel, without a valid waiver of the youth’s constitutional rights, and that
the evaluation went beyond that which was authorized by the court’s March 18, 2003 order.
¶14 On April 11, 2003, the Youth Placement Committee convened to discuss an
appropriate placement for N.V. After considering the polygraph reports, Dr. Page’s
evaluation, Ette’s report and recommendations, as well as information prepared by N.V.’s
physician and counselors, the committee recommended N.V. be placed in the inpatient
sexual offender treatment program at Pine Hills Youth Correctional Facility until his
eighteenth birthday.
¶15 A disposition hearing was held as scheduled on April 17, 2003. Pursuant to defense
counsel’s objections, the Youth Court found that it had not, and would not, consider the
polygraph information. Nevertheless, the court refused to remove the polygraph reports from
the official file, or to exclude the evaluation prepared by Dr. Page, who had reviewed the
polygraph information.
¶16 After receiving the sworn testimony of the witnesses and recommendations for
placement, the court declared N.V. a delinquent youth and committed him to the Department
of Corrections until his eighteenth birthday, to be placed at the Pine Hills Correctional
Facility for treatment within its sexual offender program, and further, retained jurisdiction
over the youth until he reached twenty-five years of age. Counsel for the youth requested
provisions be provided to enable N.V.’s parents to visit him at the facility at least once a
month, and that N.V. be allowed to have counseling with his family. He additionally asked
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that he be permitted to visit the youth at the facility at the expense of the public defender
system. These requests were denied. From this disposition and order, N.V. appeals.
STANDARD OF REVIEW
¶17 The standard of review for evidentiary rulings is whether the court abused its
discretion. Samson v. State, 2003 MT 133, ¶ 17, 316 Mont. 90, ¶ 17, 69 P.3d 1154, ¶ 17.
We review a court’s conclusions of law to determine whether its interpretation of the law is
correct. State v. DuBray, 2003 MT 255, ¶ 28, 317 Mont. 377, ¶ 28, 77 P.3d 247, ¶ 28.
DISCUSSION
¶18 Did the Youth Court err by considering evidence of the polygraph results?
¶19 N.V. challenges the use of the polygraph examinations, which he contends indirectly
entered into the court’s review in the form of recommendations and evaluations by
individuals who had considered the polygraph information. The State concedes that the
polygraphs impermissibly entered into the court’s review and requests this matter be
remanded to the Youth Court for a disposition hearing uninfluenced by the polygraph
reports.
¶20 This Court has consistently ruled that polygraph results, even if indirectly presented
to a district court, are inadmissible. DuBray, ¶ 105; State v. Anderson, 1999 MT 58, ¶ 12,
293 Mont. 472, ¶ 12, 977 P.2d 315, ¶ 12 (polygraph evidence may not be used in any court
proceeding, even during sentencing); see also State v. Staat (1991), 248 Mont. 291, 293, 811
P.2d 1261, 1262. This is true even if the polygraph evidence is introduced into evidence via
a court-ordered sex offender evaluation. Anderson, ¶ 12. In Anderson, ¶ 14, we stated,
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simply, that “[i]f a finder of fact, judge, hearing officer, evaluator or any other person in a
similar position directly or indirectly allows polygraph results to be made a part of the review
leading to a finding or recommendation in a court proceeding, no matter how careful such
person may be in not disclosing such fact, the entire review leading to the finding, decision
or recommendation is tainted and may not be introduced into evidence.”
¶21 Here, each of the evaluations leading up to the final disposition was influenced by the
polygraph information, which had been provided to the court, the youth placement
committee, the probation officer, and each of the doctors and therapists performing the
evaluations. Notwithstanding the court’s assurances that it had not, and would not, consider
the polygraph reports, the inescapable reality is that the polygraph results became part of the
court’s review in the form of evaluations and recommendations for placement. Accordingly,
we reverse the disposition and remand this case to the Youth Court with the instruction that
a new disposition hearing be held without influence from the polygraph information.
¶22 Did the Youth Court err by considering the psychological evaluation of Dr.
Robert Page?
¶23 N.V. contends the Youth Court erred in considering Dr. Page’s April 2003 evaluation.
Although the youth’s primary argument is that he was not advised of nor waived his
constitutional rights prior to the evaluation, as required by § 41-5-1503, MCA, and thus, the
evaluation was unlawfully performed, we need not reach that argument. We conclude that
Dr. Page’s evaluation was likewise improper pursuant to our resolution of the foregoing
issue.
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¶24 Montana has a broad rule of prohibiting the use of polygraph information in “any
proceeding.” Staat, 248 Mont. at 293, 811 P.2d at 1262. “In addition to precluding the
direct introduction of the results of a polygraph test, it is the law in Montana that any
evidence which would otherwise be admissible may be rendered inadmissible where a
polygraph is used in the production of or for the purpose of influencing the outcome of such
evidence.” Anderson, ¶ 12.
¶25 Such is the case here. In preparing his evaluation, Dr. Page utilized the information
provided by N.V.’s probation officer, which included the polygraph reports, as well as
reports prepared by N.V.’s physician and counselors, many of whom had reviewed the
polygraph information. At least one such report indicated that N.V. had failed to fully
participate in sexual offender therapy–a fact that came to light after examination of the
polygraph results–of which Dr. Page took note in his evaluation. Given the foregoing, we
conclude the Youth Court erred in considering the evaluation.
¶26 Did the Youth Court err by extending jurisdiction over N.V. until his twenty-fifth
birthday?
¶27 N.V. argues, and the State concedes, that the Youth Court incorrectly extended
jurisdiction over this matter until N.V.’s twenty-fifth birthday. We agree.
¶28 Generally, a youth court’s jurisdiction over a delinquent youth ceases when the youth
reaches the age of twenty-one. Section 41-5-205(1), MCA (2001). Under the Extended
Jurisdiction Prosecution Act, § 41-5-1602, MCA, provisions exist for extending the youth
court’s jurisdiction over a juvenile prosecution when the youth is alleged to have committed
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an offense that would be a felony if committed by an adult. Section 41-5-1602(1), MCA.
However, jurisdiction may not be extended when the offense is one punishable by death or
life imprisonment, or when a sentence of one hundred years could be imposed. Section 41-5-
1602(1), MCA.
¶29 In this case, N.V. was charged with sexual intercourse without consent, a felony, in
violation of § 45-5-503, MCA. A person convicted of this offense faces a potential sentence
of life imprisonment, or a term in state prison of not more than one hundred years. Section
45-5-503(2), MCA. As an offense punishable by life imprisonment or a potential sentence
of one hundred years, the Extended Jurisdiction Prosecution Act does not apply.
Accordingly, the Youth Court was without legal basis to extend its jurisdiction beyond
N.V.’s twenty-first birthday.
¶30 Did the Youth Court properly deny family counseling and travel expenses for
N.V.’s family?
¶31 N.V. argues that the Youth Court’s denial of his request for funds to enable his family
to visit him at the correctional facility and participate in counseling was in contravention to
the purpose of the Montana Youth Court Act to preserve the unity and welfare of the family
whenever possible.
¶32 Although it is true that one of the stated purposes of the Youth Court Act, § 41-5-
101(1), MCA, is “to preserve the unity and welfare of the family whenever possible,” N.V.
has cited no provision which would authorize the court to award travel costs for a family.
Moreover, N.V. has not presented any evidence showing that family visits would be
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beneficial, that counseling was required, that funds were available, or that the Department
of Corrections would not have made similar arrangements following disposition. Therefore,
we conclude the Youth Court did not abuse its discretion in denying N.V.’s request for such
funds.
¶33 Did the Youth Court properly deny N.V.’s request for travel expenses for
counsel?
¶34 N.V. argues that, pursuant to the remuneration of appointed counsel statute, § 46-8-
201, MCA, his counsel is entitled to receive reimbursement for the reasonable costs of travel
to visit him at Pine Hills. N.V. contends that the court’s denial of such costs prevents him
from conferring with his court-appointed counsel, in violation of his Sixth Amendment
rights. The State responds that denial of such costs was appropriate since there is no
evidence indicating that personal consultation, as opposed to consultation via telephone, is
necessary.
¶35 We have long since recognized that determining a reasonable compensation to a court-
appointed attorney is a discretionary function of the district court, which we will not overturn
absent an abuse of discretion. State v. McKenzie (1979), 186 Mont. 474, 478-79, 608 P.2d
425, 427.
¶36 In this case, we do not believe the Youth Court abused its discretion in denying
N.V.’s request for reimbursement of counsel’s costs to travel to Pine Hills. While it may be
advantageous to meet with a client in person, there is no actual evidence supporting N.V.’s
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assertions that consultation with counsel cannot occur over the telephone. Accordingly, the
Youth Court’s denial of such costs is affirmed.
¶37 Affirmed in part, reversed in part, and remanded to the Youth Court for further
proceedings consistent with this opinion.
/S/ JIM RICE
We concur:
/S/ JAMES C. NELSON
/S/ PATRICIA O. COTTER
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
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