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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
EMIL L. WILLIAMS, JR., )
) Court of Appeals No. A-5635
Appellant, ) Trial Court No. 4BE-93-1278 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1498 - November 22, 1996]
______________________________)
Appeal from the Superior Court, Fourth Judicial
District, Bethel, Mark I. Wood, Judge pro
tempore.
Appearances: Scott Jay Sidell, Anchorage, for
Appellant. John A. Scukanec, Assistant Attor
ney General, Office of Special Prosecutions and
Appeals, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Emil L. Williams, Jr., appeals his convictions for second-
degree sexual abuse of a minor, AS 11.41.436(a)(2). He also appeals
the composite sentence he received for these crimes. We affirm.
On September 16, 1993, Williams was staying at his
parents' home in Akiak. His cousins þ eleven-year-old J.W. and her
ten-year-old sister, C.W. þ were also spending the night at the
house, the guests of Williams's four sisters. Williams's parents
were away from home that night; they left Williams and his eldest
sister, Ruby, in charge of the house.
Everyone went to bed around midnight. J.W. fell asleep
in one of her cousins' beds, dressed in jeans and a shirt. Shortly
after 3:00 a.m., J.W. awoke to find that her pants had been removed
and that someone was touching her genitals. She could not see who
was touching her because she was lying on her stomach and the person
was behind her on the bed. The touching continued for a few
seconds. Shortly after the touching stopped, J.W. opened her eyes,
turned around, and saw Williams ten to twelve feet away, walking
toward his father's bed. J.W. pulled up her pants and went back to
sleep.
A little while later, J.W. woke up again with her pants
pulled down and someone's hands touching her genitals. She kept her
eyes closed because she was too scared to open them. This time,
when she heard footsteps walking away, she did not look to see who
it was. Afterwards, she pulled up her pants and again fell asleep.
J.W. woke a third time, again with her pants pulled down
and with a hand touching her genitals. This time, after the
touching had stopped, she looked up and saw Williams sitting on his
father's bed, facing away from her.
During that same night, C.W. (who had fallen asleep on the
floor) awoke to find Williams on top of her, "going up and down".
C.W. told the interviewing trooper that, through her clothing,
Williams's genitals were touching hers. When C.W. woke up, Williams
got off her. Afterwards, C.W. climbed into bed with J.W. and said
"He's crazy." J.W. replied, "I know. Just go to bed."
The following day, J.W. told a teacher at school what had
happened; the teacher reported the incident to the authorities.
Williams was indicted on four counts of second-degree sexual abuse
of a minor: one count for each of the three incidents involving
J.W., and a fourth count for the incident involving C.W.. Following
a jury trial in the superior court, Williams was found guilty of all
four charges.
Williams contends that State Trooper Rosemary Decker was
allowed to give inadmissible "victim profile" evidence during her
testimony at his trial. In her direct examination, Decker described
J.W. as "quiet, shy, [and] embarrassed" during their interview; she
described C.W. as "the same, except she was a lot more reluctant to
talk about what happened." Decker also testified that she had
investigated over 200-250 cases of child sexual abuse.
At this point, Williams's attorney made a pre-emptive
objection, arguing that it appeared the prosecutor was about to
introduce evidence that J.W. and C.W. manifested the characteristics
of sexual abuse victims. Superior Court Judge pro tem Mark I. Wood
allowed the examination to continue after the prosecutor assured him
that he was not seeking expert opinion from Decker and was not
trying to compare J.W.'s and C.W.'s behavior with the behavior of
other sexual abuse victims. Moments later, however, the prosecutor
sought permission to ask Decker whether J.W. and C.W. had behaved
like other victims of sexual abuse whom Decker had interviewed.
Williams's attorney again objected, but Judge Wood overruled this
objection. Decker then testified that the demeanor of J.W. and C.W.
("embarrassed and shy and reluctant") was consistent with the
demeanor of other sexually abused girls she had encountered in her
investigative experience.
On appeal, the State concedes that Judge Wood erred in
allowing this testimony. This concession is well-taken. As this
court has repeatedly held, testimony concerning the behavioral or
psychological characteristics of sexual abuse victims is inadmis-
sible "when it is used affirmatively, to establish that an alleged
victim is in fact a victim þ that a particular individual's claim
of abuse is truthful because it is in some characteristic way
'consistent' with typical reports of abuse." Reece v. State, 881
P.2d 1135, 1136-37 (Alaska App. 1994); see also Nelson v. State, 782
P.2d 290, 297-99 (Alaska App. 1989); Anderson v. State, 749 P.2d
369, 373 (Alaska App. 1988).
The State may introduce testimony analyzing the victim's
behavior to rebut a defense argument that the victim failed to
behave as one would expect a sexual abuse victim to behave. In
Williams's case, however, the prosecutor was not responding to any
defense attack on the credibility of J.W. and C.W.. Rather, the
prosecutor presented Decker's testimony as affirmative evidence that
J.W. and C.W. had been sexually abused. Offered for this purpose,
Decker's testimony should not have been allowed.
We conclude, however, that this error was harmless in
light of the way Williams argued his case. Through cross-examina
tion and through argument, Williams's attorney presented the theory
that the two girls had in fact been sexually abused but that they
were mistaken when they identified Williams as their assailant.
Relying on testimony that the Williams residence was frequently
visited by other villagers, the defense attorney argued that an
unknown intruder had entered the house while everyone was sleeping
and had sexually abused the girls. Williams's attorney contended
that J.W. and C.W. jumped to the conclusion that Williams had
touched them because "as far as both of these girls knew, there was
only one adult male at home, [only one man whom] they expected to
see ... in the darkened house."
Williams's attorney essentially conceded that J.W. had
been sexually abused, but he argued that J.W. could not accurately
identify the person who touched her. The defense attorney pointed
out that J.W. had kept her eyes closed during the three incidents
and had only looked up after the touching stopped.
DEFENSE ATTORNEY: [J.W.] looked up,
glanced for a moment, and saw someone who she
thought [w]as a man, walking away in the
direction of the bed over there. ... She did
not look at that person for the purpose of
trying to make an identification[;] ... she
looked up to make sure that this person was
walking away from her. And the two times that
she saw someone walking ... away from her, she
was, of course, not able to see that person's
face, nor did she testify that there was
anything about this person that she recognized
as her cousin.
Because Williams conceded that J.W. had been sexually abused,
Decker's testimony that J.W. behaved as one would expect a sexual
abuse victim to behave had no prejudicial effect on the jury's
deliberations on Counts I through III (charging sexual abuse of
J.W.).
The error with respect to Count IV (charging sexual abuse
of C.W.) is arguably a closer issue. With respect to this fourth
count, Williams's attorney first argued that C.W. had been abused
by an unknown intruder þ that she was confused and mistaken when she
identified Williams as her assailant:
DEFENSE ATTORNEY: [C.W.] says it was her
uncle. Why? Two possibilities. Possibility
number 1: it really was her uncle. [The
prosecutor] has already covered that, so I
think I'll talk about possibility number 2.
This is a child, [only] ten years old. Some-
thing strange and disturbing and unusual had
happened to her.
However, in light of C.W.'s testimony that she actually
looked up and saw Williams while he was on top of her, Williams
presented an alternative argument: that, regardless of who had been
touching C.W., there was actually no genital contact, and thus this
touching had not constituted "sexual contact" as defined in the
statute. (Because of this argument, the court instructed the jury
on the lesser-included offense of attempted sexual abuse of a minor
in the second-degree. The jury found Williams guilty of the charged
offense, thus rejecting Williams's argument that no genital contact
had occurred.)
Even though Williams presented the alternative defense
that C.W. had suffered no genital contact, we again conclude that
the error in admitting Decker's "profile" testimony was harmless.
Even when making this alternative argument, Williams essentially
conceded that someone had climbed on top of C.W. during the night
and had attempted to have sexual contact with her (even though the
assault resulted in no actual genital contact). Thus, even if the
assault on C.W. involved only attempted sexual contact, the jury
could easily conclude that it would not be surprising for C.W. to
behave like a sexual abuse victim. We conclude that the error in
admitting Decker's testimony was harmless with respect to Count IV,
given Williams's theories of defense.
Williams next contends that the three touchings of J.W.'s
genitals were all part of a single continuing episode, so that (as
a matter of law) the three touchings constituted only one offense
of second-degree sexual abuse. See Tuckfield v. State, 621 P.2d
1350, 1352-53 (Alaska 1981); Tookak v. State, 648 P.2d 1018, 1022-23
(Alaska App. 1982); Oswald v. State, 715 P.2d 276, 280-81 (Alaska
App. 1986), overruled on other grounds by Yearty v. State, 805 P.2d
987, 995 n.3 (Alaska App. 1991). The question is whether there was
a sufficient break in time and circumstance between each act of
sexual contact to support separate convictions.
Judge Wood found, based on the evidence, that the three
acts of sexual contact were separate incidents. We review the trial
judge's finding under the "clearly erroneous" standard. Coleman v.
State, 846 P.2d 141, 142 (Alaska App. 1993) (citing Donnybrook Bldg.
Supply, Inc. v. First Natþl Bank of Anchorage, 798 P.2d 1263, 1266
(Alaska 1990)).
Although J.W. could not estimate the amount of time that
elapsed between each of the three touchings, she testified that she
pulled up her pants and fell back to sleep after each incident.
That is, Williams stopped touching J.W. and walked away each time
she woke up; after she fell asleep again, he returned to touch her,
each time pulling her pants down again. This evidence supports the
conclusion that Williams made three separate, conscious decisions
to go to J.W.'s bed and sexually abuse her. Each time he returned
to her bed, Williams initiated a new and separate sexual contact.
The record thus supports Judge Wood's conclusion that there were
sufficient breaks in time and circumstance to warrant three separate
convictions for sexual abuse.
Williams's next argument is that the pre-sentence report
contained information that was protected by Williams's privilege
against self-incrimination. In 1987, Williams was adjudicated a
delinquent minor for having committed a sexual assault; he was
institutionalized at McLaughlin Youth Center. During a counseling
session at McLaughlin, Williams admitted that he had committed other
sexual offenses. This information was included in Williams's pre-
sentence report in the present case.
In the sentencing proceedings in the present case,
Williams argued that this information was elicited in violation of
his privilege against self-incrimination because he had been in
custody at McLaughlin and he had never received an explicit warning
that what he revealed during counseling sessions could later be used
against him. Williams therefore asked Judge Wood to strike this
information from the pre-sentence report. Judge Wood denied this
motion for two reasons.
First, Judge Wood found that Williams had previously
waived any claim of privilege. In 1991, following his release from
McLaughlin, Williams was arrested for a new incident and subsequent-
ly convicted of third-degree sexual assault. The pre-sentence
report in that 1991 case explicitly referred to the statements
Williams made at McLaughlin:
[W]hile Mr. Williams was in the entry level
program[,] he "disclosed in CTU [the Closed
Treatment Unit] that he ha[d] committed at
least five other rapes. These incidents
involved females of various ages who apparently
were passed out or incapacitated with alcohol.
Emil also reported fondling a three-year-old
male when he was fifteen."
The pre-sentence report in Williams's present case
referred to this 1991 pre-sentence report and suggested that Judge
Wood review that earlier report, pointing out that the 1991 report
indicated that Williams had "acknowledged at least five other rapes
[of] women ... who were apparently passed out or incapacitated from
alcohol". The current pre-sentence report also pointed out that
Williams had acknowledged molesting a three-year-old boy.
Judge Wood ruled that Williams, by failing to object to
the inclusion of this information in the 1991 pre-sentence report,
had waived any claim of privilege with respect to the use of this
information in future sentencing proceedings (such as the present
one).
As a second ground of decision, Judge Wood ruled that the
privilege against self-incrimination never applied to Williams's
statements at McLaughlin. The judge reasoned that Williams's
revelation of these other offenses posed no danger of self-
incrimination, given the fact that Williams had already been
adjudicated a delinquent and had been ordered institutionalized
until his nineteenth birthday. (EN1)
On appeal, Williams again asserts that his statements at
McLaughlin were protected by the privilege against self-incrimina
tion and that therefore they should not have been included in his
most recent pre-sentence report. We find that Williams forfeited
any self-incrimination claim. Assuming that Williams could have
relied on his privilege against self-incrimination to block the use
of these statements in his 1991 pre-sentence report, Williams failed
to raise a claim of privilege. Williams allowed the superior court
to rely on this information when the court sentenced him for third-
degree sexual assault in 1991. Having allowed the court to use this
information in 1991, Williams could not belatedly raise a claim of
privilege in 1994.
Williams argues that he never "waived" his privilege
against self-incrimination in 1991. He relies on cases defining
"waiver" of a constitutional right as the "intentional relinquish
ment or abandonment of a known right or privilege". See Johnson v.
Zerbst, 304 U.S. 458, 464; 58 S.Ct. 1019, 1023; 82 L.Ed. 1461, 1466
(1938). Williams points out that, during the sentencing proceedings
in the 1991 case, no one personally addressed Williams, informed him
of his right to object to the inclusion of the McLaughlin informa
tion in the pre-sentence report, and asked him if he was willing to
waive his privilege against self-incrimination. Because of this,
Williams asserts, his failure to object to inclusion of this
information in the 1991 pre-sentence report did not constitute a
waiver of his privilege against self-incrimination, and he was
therefore free to renew his claim of privilege when the State again
sought to use this information against him.
Although courts often speak of a "waiver" of the privilege
against self-incrimination, this is inaccurate. No "waiver" (in the
Johnson v. Zerbst sense) is required. The privilege is lost through
a failure to assert it. The Supreme Court clarified this rule of
law in Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d
409 (1984), when it addressed the claim that a probationer's answers
to his probation officer's questions were extracted in violation of
the Fifth Amendment:
We note first that the general obligation
to appear and answer questions truthfully did
not in itself convert Murphy's otherwise
voluntary statements into compelled ones. In
that respect, Murphy was in no better position
than an ordinary witness at a trial or before
a grand jury who is subpoenaed, sworn to tell
the truth, and obligated to answer on the pain
of contempt, unless he invokes the privilege
and shows that he faces a realistic threat of
self-incrimination. The answers of such a
witness to questions put to him are not com-
pelled within the meaning of the Fifth Amend-
ment unless the witness is required to answer
over his valid claim of privilege. ...
... The [Fifth] Amendment speaks of
compulsion. It does not preclude a witness
from testifying voluntarily in matters which
may incriminate him. If, therefore, he desires
the protection of the privilege, he must claim
it or he will not be considered to have been
"compelled" within the meaning of the Amend-
ment. United States v. Monia, 317 U.S. 424,
427, 63 S.Ct. 409, 410, 87 L.Ed. 376 (1943)
(footnote omitted).
This principle has been applied in cases
involving a variety of criminal and noncriminal
investigations. [citations omitted] These
cases, taken together, "stand for the proposi
tion that, in the ordinary case, if a witness
under compulsion to testify makes disclosures
instead of claiming the privilege, the govern
ment has not 'compelled' him to incriminate
himself." Garner v. United States, 424 U.S.
648, 654, 96 S.Ct. 1178, 1182, 47 L.Ed.2d 370
(1976) (footnote omitted). Witnesses who
failed to claim the privilege were once said to
have "waived" it, but we have recently aban-
doned this "vague term," Green v. United
States, 355 U.S. 184, 191, 78 S.Ct. 221, 225,
2 L.Ed.2d 199 (1957), and "made clear that an
individual may lose the benefit of the privi-
lege without making a knowing and intelligent
waiver." Garner v. United States, supra, 424
U.S., at 654, n.9, 96 S.Ct., at 1182, n.9.
Minnesota v. Murphy, 465 U.S. at 427-28, 104 S.Ct. at 1142, 79
L.Ed.2d at 419 (most internal quotations omitted).
Thus, even though disclosure of certain information is
protected by the Fifth Amendment privilege against self-incrimina
tion, and even though a person is subpoenaed as a witness in a
proceeding (and thus is under compulsion to testify), "a witness who
reveal[s] information instead of claiming the privilege los[es] the
benefit of the privilege". Garner v. United States, 424 U.S. 648,
653; 96 S.Ct. 1178, 1182; 47 L.Ed.2d 370, 377 (1976) (citing United
States v. Kordel, 397 U.S. 1, 7-10; 90 S.Ct. 763, 766-69; 25 L.Ed.2d
1, 7-9 (1970)).
Williams argues that, while he was institutionalized at
McLaughlin, he faced pressures to reveal incriminating information
during the counseling sessions. He contends that, because of these
pressures to reveal incriminating information, the normal rule (that
the privilege is lost by failure to assert it) should not apply to
institutionalized juveniles. Instead, Williams argues, he should
have received an express advisement of Fifth Amendment rights before
he was asked to participate in the counseling sessions. Compare
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966) (creating such a rule for persons subjected to custodial
interrogation by the police).
We need not resolve this issue. We assume, without
deciding, that Williams did not lose his Fifth Amendment privilege
when he made the statements during the McLaughlin counseling
session. Nevertheless, Williams raised no claim of privilege when
his statements were included in the 1991 pre-sentence report and
when the superior court relied on these statements in sentencing
Williams for the 1991 sexual assault. Once Williams allowed
disclosure of this information in the 1991 sentencing proceeding,
he could no longer rely on the privilege against self-incrimination
to block the superior court's further use of the information. See
Garner v. United States, 424 U.S. 648, 96 S.Ct. 1178, 47 L.Ed.2d 370
(1976); Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95
L.Ed.2d 344 (1951); John William Strong et al., McCormick on
Evidence (4th ed. 1992), sec. 140, pp. 523-25. By failing to object
in 1991, Williams forfeited his right to object to the superior
court's renewed use of those statements in the present case.
We now turn to Williams's sentencing issues. As described
above, Williams was convicted of four counts of second-degree sexual
abuse of a minor. This crime is a class B felony, punishable by
imprisonment of up to 10 years. AS 11.41.436(b); AS 12.55.125(d).
Williams was a second felony offender by virtue of his 1991
conviction for third-degree sexual assault. He therefore faced a
presumptive term of 4 years' imprisonment on each count. AS 12.55.-
125(d)(1).
The State proved three aggravating factors under
AS 12.55.155(c): (c)(5) þ that J.W. and C.W. were particularly
vulnerable because of their youth and because Williams assaulted
them while they slept; (c)(19) þ that Williams had been adjudicated
a delinquent minor for a sexual assault that would have been a
felony had he been an adult; and (c)(20) þ that Williams was on
parole from his 1991 sexual assault conviction when he committed the
crimes in the present case.
In addition, Judge Wood found that Williams was a worst
offender. In 1987, at the age of fifteen, Williams was adjudicated
a delinquent minor because he committed first-degree sexual assault.
While he was in juvenile custody, Williams admitted that he had
assaulted five other females who were either asleep or passed out
from intoxication. In 1991, a few months after his release from
juvenile custody at the age of nineteen, Williams committed third-
degree sexual assault. And in 1993, a few months after he was
released on parole from the 1991 conviction, Williams committed the
offenses in this case.
Judge Wood noted that Williams had twice committed new
sexual offenses shortly after his release from custody for prior
sexual offenses. Judge Wood also noted that Williams's present
offenses were committed while he was on parole and receiving
counseling. Given these facts, Judge Wood declared that the
paramount sentencing goal should be protection of the public.
THE COURT: [Williams] has a pattern of
offending that's well-established þ that goes
back to 1987 or prior. ... [W]e're dealing
with a young man who's been out of jail [a
total of] ten months since 1987. And, since
1987, [he] has [committed] three felonies
related to sex. ... [H]e has [assaulted] four
victims for whom [he has been convicted]: two
in this case, one in the '91 case, and one in
the juvenile case. And ... five or six other
victims that he has admitted to ... , for a
total of nine or ten victims.
... [H]ow many victims is it going to
take before Mr. Williams conforms to society's
norms? ... [T]here is a tremendous risk to
the public with Mr. Williams at large.
. . .
Mr. Williams is a young man; he's twenty-
one years old. But, unfortunately, the past is
the best predictor of the future. And I agree
with [the prosecutor] that it's not speculation
as to what would happen if [Williams] were
released this minute without further treatment.
[He would] re-offend[.] Absolutely.
Judge Wood concluded that Williams was a worst offender within his
class, and that the only way to stop Williams from committing more
crimes was to keep him in jail. Judge Wood also found that
protection of the public required a composite term longer than the
10-year maximum for any one of Williams's offenses. See Mutschler
v. State, 560 P.2d 377, 381 (Alaska 1977). Based upon these
findings, Judge Wood sentenced Williams to a composite term of
20 yearsþ imprisonment with 8 years suspended (12 years to serve).
On appeal, Williams acknowledges that sentences this
lengthy have been upheld for defendants convicted of second-degree
sexual abuse of a minor. See, e.g., Kirlin v. State, 779 P.2d 1251
(Alaska App. 1989). See also Turpin v. State, 890 P.2d 1128, 1131-
34 (Alaska App. 1995), and Skrepich v. State, 740 P.2d 950 (Alaska
App. 1987) (approving sentences of 6 years to serve plus suspended
time). However, Williams argues that the defendants in those cases
were middle-aged men with engrained patterns of sexual abuse, while
Williams is still in his twenties and therefore has time to change.
We acknowledge that Williams is a youthful offender, but
unlike the defendants in Kirlin, Turpin, and Skrepich, he is not a
first felony offender. Williams is a second felony offender for
presumptive sentencing purposes. Moreover, before Williams became
an adult for criminal law purposes, he had a delinquency adjudica
tion for first-degree sexual assault. As Judge Wood pointed out,
Williams has been institutionalized, based on his commission of sex
offenses, for all but a few months since he was fifteen. Williams
committed his present offenses just months after his release on
parole from his 1991 conviction.
Judge Wood recognized that Williams, because of his youth,
still had prospects for rehabilitation. But Judge Wood also
believed that Williams's youthfulness had to be gauged against his
already lengthy pattern of sexual offenses:
THE COURT: I find that it's necessary,
absolutely necessary in this case, to [empha-
size] isolation, because I don't know of any
other way to protect the public from you at
this point in time. ... [R]ehabilitation and
treatment is not a magic wand. I mean, the
fact that you go into [the] Highland Mountain
[sexual offender treatment program] does not
mean you're going to be cured. [A treatment
program is] not going to change your life, Mr.
Williams. You have to change your life, and
you have to do it from the inside out. You
have to change the way you think, your atti-
tudes towards yourself, towards women, ...
towards your own sexuality[.] ... And then
treatment might have [an effect]. But until
you decide to make changes in your life, ...
[to make] changes in your behavior ... , you
are a complete risk to re-offend. And I have
to protect the public.
Having independently reviewed the record, we find that it
supports Judge Wood's conclusions and his decision to impose a
composite sentence exceeding the 10-year maximum for any single
count. We therefore conclude that Williams's composite sentence
(20 years with 8 years suspended) is not clearly mistaken. McClain
v. State, 519 P.2d 811, 813-14 (Alaska 1974).
The judgement of the superior court is AFFIRMED.
ENDNOTES:
1. The gist of Judge Wood's ruling was that, even though
Williams's revelations during the McLaughlin counseling session
worked to his disadvantage when he later committed additional
sexual offenses as an adult, these revelations were not
incriminatory at the time Williams made them. The judge believed
that the only foreseeable circumstance in which Williams might
suffer criminal consequences on account of these statements was if
he later committed another crime. The Fifth Amendment does not
protect against this danger. M.R.S. v. State, 867 P.2d 836, 840-41
(Alaska App. 1994), reversed on other grounds, 897 P.2d 63 (Alaska
1995); see also United States v. Apfelbaum, 445 U.S. 115, 127-28;
100 S.Ct. 948, 955-56; 63 L.Ed.2d 250, 261-62 (1980) (the Fifth
Amendment does not preclude the use of a defendantþs immunized
testimony at a subsequent prosecution for making false statements).
But see Marchetti v. United States, 390 U.S. 39, 53-54; 88 S.Ct.
697, 705; 19 L.Ed.2d 889, 900-01 (1968) (the Fifth Amendment
privilege may in some instances be claimed when a personþs
statements will tend to incriminate him with respect to
contemplated crimes).
In his ruling, Judge Wood referred in passing to the
possibility that Williams might have been waived to adult status
based on his admission of these other crimes. However, Judge Wood
appears to have dismissed this possibility because (1) it had not
happened and (2) by 1994, there was no further possibility that it
would.
The double jeopardy clause of the United States Constitution
would have prevented the State from re-opening Williams's juvenile
delinquency petition and seeking to have him waived to adult status
based on the crime for which he had already been adjudicated
delinquent. Breed v. Jones, 421 U.S. 519, 531; 95 S.Ct. 1779,
1786-87; 44 L.Ed.2d 346 (1975). It is conceivable, however, that
the State could have filed a new juvenile delinquency petition
based on Williams's newly-revealed offenses, then sought waiver
proceedings to have Williams tried as an adult for these newly-
revealed offenses.
Obviously, this did not happen. Judge Wood appears to have
assumed that if a statement is potentially incriminating when made,
but if that potential for incrimination has disappeared by the time
the government wishes to use the statement, then the Fifth
Amendment does not block use of the statement. We need not delve
farther into this issue because, as explained below, we hold that
Williams forfeited his privilege against self-incrimination.
