NOTICE: This opinion is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, in order
that corrections may be made prior to permanent
publication.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
PATRICK MIKE BEAVER, )
) Court of Appeals No. A-6049
Appellant, ) Trial Court No. 4BE-95-089 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1516 - March 14, 1997]
______________________________)
Appeal from the Superior Court, Fourth Judicial
District, Bethel, Richard D. Savell, Judge.
Appearances: Scott Jay Sidell, Anchorage, for
Appellant. Nancy R. Simel, Assistant Attorney
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.
In 1992, Patrick Mike Beaver was adjudicated delinquent
for committing first- and second-degree sexual abuse of a minor upon
a six-year-old child. He was institutionalized for almost two
years. During his stay in the juvenile facility, Beaver
participated in sex offender treatment.
A few days following his release from the juvenile
facility, Beaver began to sexually abuse another child. This sexual
abuse continued for seven months, until Beaver was arrested. Beaver
eventually pleaded no contest to one count of second-degree sexual
abuse of a minor. At Beaver's sentencing, the State relied on
various statements that Beaver had made during his sex offender
treatment in the juvenile facility. In this appeal, Beaver argues
that the State was barred from relying on those statements.
Beaver contends that his statements during sex offender
therapy were obtained in violation of his privilege against self-
incrimination. He argues in the alternative that he was entitled
to Miranda warnings before he participated in the sex offender
therapy sessions. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,
16 L.Ed.2d 694 (1966). For the reasons explained in this opinion,
we conclude that the statements Beaver made during sex offender
therapy were not obtained in violation of his privilege against
self-incrimination, and we further conclude that Beaver was not
entitled to Miranda warnings. We therefore affirm the judgement of
the superior court.
Facts surrounding Beaver's sex offender therapy and the
statements he made during this therapy
Because of his adjudication as a delinquent minor, Beaver
was ordered institutionalized until May 31, 1994. The Department
of Health and Social Services placed Beaver at the Bethel Youth
Facility. The superior court had not ordered Beaver to participate
in sex offender treatment, but one of the counselors at the Youth
Facility approached Beaver and encouraged him to voluntarily
participate in the therapy.
Before beginning sex offender therapy, Beaver was asked
to sign a "contract" governing the therapy. The contract reiterated
that Beaver's participation in sex offender therapy was voluntary.
The contract advised Beaver that staff members would be making
written reports concerning his therapy participation, and that these
reports would become part of his institutional record. In addition,
the contract explicitly warned Beaver that any disclosures he made
during therapy would not be confidential þ that if he revealed other
crimes, this information might be forwarded to the police. Because
of this lack of confidentiality, the contract assured Beaver that
he was not required to reveal any identifying details of past
offenses. The pertinent clause of the contract stated:
I understand that if I tell specific dates,
times, location, events, and/or identities of
victims regarding crimes for which I have not
been charged or convicted, staff members may be
required by law to report this to the law
enforcement agencies[.] ... I further under-
stand that I could be subject to prosecution
for these crimes. I further understand that I
am expected to discuss all of my past as well
as current offenses, but that I am not required
to reveal any of the specifics outlined above.
(Emphasis in the original.)
Beaver agreed to this contract and began sex offender
therapy. During Beaver's ensuing therapy, he made statements about
the crimes for which he had been adjudicated delinquent. He also
made statements about other sex crimes he had committed. (EN1) In
addition, shortly before his release from the Bethel Youth Facility,
Beaver told his counselor that he felt there was a "90-percent
chance" that he would again sexually abuse a child, and he revealed
that he had already selected his next victim.
As already noted, Beaver began to sexually abuse a
fourteen-year-old boy just days after his release from the Youth
Facility. This abuse lasted for several months, leading to Beaver's
indictment and eventual conviction for second-degree sexual abuse
of a minor (sexual penetration with a child between the ages of 13
and 16), AS 11.41.436(a)(1). The pre-sentence report prepared in
Beaver's case contained references to Beaver's statements during sex
offender therapy þ in particular, Beaver's admissions that he had
committed other acts of sexual abuse before he was
institutionalized, his prediction that he would likely re-offend,
and his statement that he had already selected his next victim.
Beaver asked the superior court to strike these statements
from the pre-sentence report and to prohibit the State from relying
on them in any other way. Beaver argued that his statements during
therapy had been obtained in violation of his privilege against
self-incrimination. He also argued that, because he had been in
custody during the therapy, he should have received Miranda warnings
before the counselors asked him to discuss other offenses.
The superior court held an evidentiary hearing to
determine the circumstances surrounding Beaver's decision to enter
the sex offender therapy program, and to determine the manner in
which that therapy had been conducted. As explained in more detail
below, the superior court found that Beaver had voluntarily entered
sex offender therapy þ that he had not been coerced into joining the
therapy program. The court further found that Beaver's therapy
counselors had not tried to elicit incriminating statements from
Beaver þ that the counselors had in fact warned Beaver against
providing identifying details of his prior offenses.
Based on these findings, the superior court denied
Beaver's motion to suppress the statements he made during therapy.
Those statements remained in the pre-sentence report, and the court
later relied on them when sentencing Beaver. In this appeal, Beaver
renews his arguments that those statements should have been
suppressed.
Was Beaver's privilege against self-incrimination violated
when he was asked to discuss other crimes during sex
offender therapy?
The privilege against self-incrimination (EN2) protects
individuals from being compelled to reveal information that could
potentially incriminate them. However, as we recently discussed in
Williams v. State, 928 P.2d 600 (Alaska App. 1996), the privilege
against self-incrimination is normally lost if a person fails to
assert it. This is true even when the person is under a compulsion
to answer questions þ for example, a witness testifying under
subpoena, Garner v. United States, 424 U.S. 648, 653; 96 S.Ct. 1178,
1182; 47 L.Ed.2d 370 (1976), or a probationer being interviewed by
their probation officer, Minnesota v. Murphy, 465 U.S. 420, 104
S.Ct. 1136, 79 L.Ed.2d 409 (1984).
These cases clarify that the "compulsion" outlawed by the
Constitution is not the person's obligation to appear and to submit
to questioning. Rather, "compulsion" exists when a person is
compelled or coerced to give up the protection of the privilege.
This might occur when a court erroneously overrules a valid claim
of privilege and directs a witness to provide a potentially
incriminating answer or face punishment for contempt. It might also
occur when a witness is threatened with adverse consequences simply
for claiming the privilege and, because of this, decides to
relinquish the privilege and provide potentially incriminating
information. Murphy, 465 U.S. at 434-35, 104 S.Ct. at 1145.
When Beaver participated in sex offender therapy at the
Bethel Youth Facility, he never invoked his privilege against self-
incrimination. Thus, he was never ordered to answer questions over
a claim of privilege. Normally, this would lead to the conclusion
that he voluntarily relinquished his privilege against self-
incrimination.
However, Beaver asserts that the rules governing the
Bethel Youth Facility coerced him to participate in the sex offender
therapy program, and that the criteria used to grade his success in
the sex offender therapy program required him to reveal
incriminating information during his therapy sessions. Thus, Beaver
contends, in order to maintain an acceptable inmate status at the
Youth Facility, he was forced to relinquish his privilege against
self-incrimination when he otherwise would have claimed it.
Beaver's argument rests on three assertions of fact:
first, that the Youth Facility required him to participate in sex
offender therapy; second, that the counselors running the therapy
program made it clear to Beaver that self-incriminatory statements
were a requirement of his satisfactory participation in the program;
and third, that Beaver would have claimed his privilege against
self-incrimination had it not been for this alleged institutional
coercion. As explained below, the superior court explicitly
rejected Beaver's first and second assertions of fact, and Beaver
presented no evidence on the third.
When Beaver objected to inclusion of the challenged
statements in the pre-sentence report, Superior Court Judge Richard
D. Savell held a hearing so that Beaver could present evidence to
support his assertions. Only one witness testified at this hearing:
David Matthews, a counselor at the Bethel Youth Facility who works
in the sex offender therapy program.
Based upon Matthews's testimony, Judge Savell found that
Beaver's participation in the sex offender therapy program had been
completely voluntary. The judge found that Beaver knew it was his
choice whether to participate or not, and he knew that this choice
would not affect the length of his confinement:
[Beaver's] [p]articipation in the sex
offender group at the youth facility [was] not
mandatory. It [was] voluntary[.] ...
Beaver's term of custody [would expire on] May
31, 1994, regardless of whether or not he
participated in [sex offender] treatment. The
youth facility did not have the power or
discretion to either lengthen or shorten
Beaver's residence at the facility. Sex
offenders ... are told that[, regardless of
whether they participate in sex offender
therapy,] they must stay [in the facility]
until the expiration of their institutional
order.
[When] Matthews approached Beaver about
participation in the sex offender group[,] [h]e
explained that it was voluntary[.] ... There
were no sanctions, punishments, or loss of
privileges for not joining the group. And
while the [treatment] contract stated that
attendance was required at all group sessions,
participants were, in fact, free to refuse to
attend any session or to attend and not
participate, as ... Beaver [himself did] on
occasion. (EN3)
Moreover, Judge Savell found that, even after Beaver signed up for
sex offender therapy, he remained free to "stay in his room and not
attend group sessions" or, if he chose to attend the sessions, he
was "free [to] remain silent" during the sessions.
Judge Savell further rejected Beaver's claim that his
participation in the sex offender therapy program would not be
deemed satisfactory unless he revealed incriminating information
about past offenses. Judge Savell found that the Youth Facility
counselors had explicitly told Beaver that his participation in the
sex offender therapy program did not require him to reveal details
of prior offenses. In fact, the counselors warned Beaver not to
reveal details of prior offenses þ because he might face prosecution
if he disclosed such details:
Matthews ... presented Beaver with a written
treatment contract. Beaver signed the
contract, keeping a copy, and entered the
program. ... The contract [declares] that
disclosure of details of past [acts of sexual]
abuse (dates, places, times, identity of
victims) is not required[,] and [it warns] that
if such details are disclosed they have to be
reported to police agencies and could lead to
his prosecution for these crimes.
Finally, Judge Savell noted that Beaver had submitted the
issue to the court on Matthews's testimony alone. Beaver presented
no evidence to controvert Matthews's testimony that Beaver entered
treatment voluntarily and that he could have refused to participate.
Nor did Beaver present any evidence to controvert Matthews's
testimony that inmates participating in sex offender therapy are not
compelled to make incriminatory disclosures (and are in fact warned
against doing so). Along these same lines, we note that Beaver
presented no evidence that he wished to assert his privilege against
self-incrimination but felt pressured not to do so.
On appeal, Beaver argues that Judge Savell adopted an
overly simplistic view of institutional life when he found that
Beaver was under no compulsion to participate in the sex offender
therapy group. Beaver contends that an inmate's status and
privileges within the Bethel Youth Facility depend in large measure
on the staff's subjective appraisal of his behavior and his
willingness to rehabilitate himself. These institutional pressures,
Beaver argues, essentially forced him to "choose" to attend sex
offender therapy.
As noted above, Judge Savell rejected Beaver's argument
that the possibility of greater inmate privileges constituted a
"compulsion" on Beaver to participate in sex offender therapy.
Beaver does not argue that Judge Savell misconstrued the facts of
his confinement, only the legal significance of these facts. Beaver
argues that the possibility of pleasing corrections authorities and
thus gaining greater institutional privileges is, for constitutional
purposes, a "compulsion" on inmates to participate in rehabilitative
programs. However, Beaver presents no case authority to support his
argument. In fact, as discussed in the next section of this
opinion, case law on this subject rejects Beaver's argument.
Further, the broad implications of Beaver's argument make
it suspect: if we were to adopt Beaver's reasoning, scarcely any
utterance or decision made by an inmate in any institution (penal,
juvenile, or psychiatric) would be "voluntary" for constitutional
purposes. We therefore uphold Judge Savell's ruling that Beaver
voluntarily participated in sex offender therapy.
Even if we assumed for purposes of argument that Beaver's
choice to attend sex offender therapy was not completely voluntary,
this brings Beaver only one step toward his goal of proving a Fifth
Amendment violation. Beaver must still show that the counselors
running the therapy program coercedincriminating information, and
Beaver must also point to some evidence to support his contention
that he would have asserted his privilege against self-incrimination
during the sex offender counseling had it not been for this
institutional coercion. Murphy, 465 U.S. at 427-29, 434-36; 104
S.Ct. at 1142-43, 1146-48.
In his brief to this court, Beaver asserts that, as a
participant in the sex offender therapy program, "he was expected
to discuss, under threat of punishment and promise of reward, all
of his past and [planned] future criminal conduct". As explained
above, Judge Savell reached exactly the opposite conclusion. Judge
Savell found that candidates for the sex offender therapy program
were explicitly told (before they began the program) that, even
though they would be asked to discuss their past behavior, they were
not required to speak about "the specific dates, times, location,
events, and/or [the] identities of [the] victims" of any offenses.
In fact, not only were prospective participants told that their
counselors would not be seeking such revelations, but participants
were also affirmatively warned that, because of the risk of future
prosecution, they should not speak about such things in their
counseling sessions.
Beaver offers nothing to show that Judge Savell's findings
of fact are clearly erroneous. Wilburn v. State, 816 P.2d 907, 911
(Alaska App. 1991) (a trial court's findings of fact made in
connection with a motion to suppress evidence are reviewed under the
"clearly erroneous" standard). Given Judge Savell's findings,
Beaver's claim that he was pressured into revealing his past
offenses has no merit.
Finally, as explained above, even when a person is under
pressure (or even legal compulsion) to answer questions, there is
no "compulsion" in a Fifth Amendment sense unless the person is
pressured to relinquish the protection of the privilege against
self-incrimination. Beaver points to no evidence suggesting that
he wished to assert his privilege against self-incrimination at any
point during the sex offender counseling sessions. The record
(especially the explicit warning to participants not to discuss the
details of other crimes) gives every reason to believe that the
authorities would have honored an assertion of the privilege (if
Beaver had asserted it).
For these reasons, we conclude that the authorities did
not violate Beaver's privilege against self-incrimination when they
asked him to discuss his past conduct during sex offender therapy.
Beaver was not coerced into revealing incriminatory information;
thus, the privilege against self-incrimination did not bar the
superior court from relying on that information when the court
sentenced Beaver for a new crime. (EN4)
With respect to Beaver's statements concerning his
intended future conduct (his assessment that he would likely re-
offend, and his statement that he had already selected his next
victim), Beaver has even less of a Fifth Amendment claim. The only
foreseeable circumstance in which Beaver 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 (Alaska
App. 1994), reversed on other grounds, 897 P.2d 63 (Alaska 1995);
United States v. Apfelbaum, 445 U.S. 115, 128; 100 S.Ct. 948, 955;
63 L.Ed.2d 250 (1980); Marchetti v. United States, 390 U.S. 39, 53-
54; 88 S.Ct. 697, 705; 19 L.Ed.2d 889 (1968).
Was Beaver entitled to Miranda warnings before he
participated in sex offender therapy sessions?
Beaver argues in the alternative that inmates in a jail
or a juvenile facility are under inherent pressure to cooperate with
correctional authorities and to participate in rehabilitative
programs. Even if an inmate's decision to participate in sex
offender therapy is not "compelled" as that term is defined for
purposes of the Fifth Amendment, Beaver contends that such a
decision is nevertheless inevitably tainted by coercion. According
to Beaver, this coercion arises because inmates know that their
prisoner classification (and thus the quality of their life within
the correctional facility) depends to a substantial degree on the
authorities' appraisal of their willingness to cooperate and their
attitude toward rehabilitation. Because of this inherent coercion,
Beaver argues, the law should require therapists and counselors to
give Miranda warnings before they ask an institutionalized person
to discuss potentially incriminatory matters during therapy.
Compare Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d
694 (1966) (before police officers subject a person to custodial
interrogation, the officers must advise the person of the right to
remain silent, the right to cease answering questions at any time,
the right to obtain the advice of a lawyer before answering
questions, and the right to obtain a lawyer at government expense
if the person can not afford to hire one).
The unadorned fact that government-employed counselors
engaged in discussions with Beaver while he was an inmate at the
Youth Facility is not enough to trigger the need for Miranda
warnings. Illinois v. Perkins, 496 U.S. 292, 297; 110 S.Ct. 2394,
2397-98; 110 L.Ed.2d 243 (1990) (rejecting the argument "that
Miranda warnings are required whenever a suspect is in custody in
a technical sense and converses with someone who happens to be a
government agent"). Miranda warnings are required only when a
person is subjected to custodial interrogation. In Perkins, the
Supreme Court clarified that "custodial interrogation" refers to
more than simply posing questions to someone who is in custody:
The warning mandated by Miranda was meant to
preserve the privilege [against self-
incrimination] during "incommunicado
interrogation of individuals in a police-
dominated atmosphere" ... that generate[s]
"inherently compelling pressures ... to
undermine the individual's will to resist and
to compel him to speak [when] he would not
otherwise do so freely."
Perkins, 496 U.S. at 296, 110 S.Ct. at 2397. Stated differently,
even when the person being questioned is incarcerated,
[t]he standard for determining Miranda custody
[remains] objective: Miranda warnings are
required [when] police interrogation [is]
conducted under circumstances in which a
"reasonable person would feel he was not free
to ... break off the questioning". Hunter v.
State, 590 P.2d 888, 895 (Alaska 1979).
Carr v. State, 840 P.2d 1000, 1003 (Alaska App. 1992). Miranda
warnings are not required if the inmate is not being subjected to
the type of compulsion envisioned in Miranda þ a compulsion to speak
arising from "the interaction of custody and official
interrogation". Carr, 840 P.2d at 1003 (quoting Perkins, 496 U.S.
at 297, 110 S.Ct. at 2397).
In Perkins and Carr, the police used secret agents to
engage prison inmates in conversation about their crimes. In both
instances, the inmates remained unaware that their answers were
being relayed to law enforcement officials. The inmates were not
subjected to either "formal questioning [or] a personal
confrontation with a law enforcement officer". Carr, 840 P.2d at
1004. There was nothing in the record to indicate that the inmates
felt compulsion to engage in conversation with the informants or to
answer their questions about criminal activities. Nor was there
anything to indicate that the inmates did not feel free to break off
the conversations at any time. Thus, in both Perkins and Carr, the
inmates were not entitled to Miranda warnings.
Beaver acknowledges that his status as an inmate at the
Youth Facility did not automatically turn all his conversations with
counselors and guards into "custodial interrogations". Beaver
points out, however, that his case is distinguishable from the facts
of Perkins and Carr, in that Beaver knew he was being questioned by
Youth Facility counselors who had a significant degree of control
over him (more specifically, control over his inmate classification
within the Youth Facility). Beaver argues that he was pressured
into joining the sex offender therapy group and that, once a member
of the group, he was pressured into revealing incriminating
information to his counselors. These institutional pressures,
Beaver asserts, were the equivalent of the psychological pressures
exerted on a newly-arrested suspect who is subjected to incommuni-
cado interrogation. Thus, Beaver argues, he was entitled to Miranda
warnings before his sex offender therapy sessions.
Beaver's argument is completely at odds with the facts as
found by Judge Savell. As explained above, Judge Savell flatly
rejected Beaver's contention that he was coerced into joining sex
offender therapy. Based on the evidence presented at the hearing,
Judge Savell concluded that Beaver had voluntarily decided to
participate in the sex offender therapy program after being assured
that "[t]here were no sanctions, punishments, or loss of privileges
for not joining the [therapy] group". Moreover, Judge Savell found
that, even after Beaver signed up for sex offender therapy, Beaver
remained free to "stay in his room and not attend group sessions",
and Beaver was likewise "free to attend [but to] remain silent".
Judge Savell further rejected Beaver's contention that the
possibility of obtaining greater inmate privileges (by favorably
impressing the Youth Facility staff) was such a strong compulsion
to join the therapy program that Beaver was incapable of exerting
his normal will. Recently, the Washington Supreme Court reached the
same conclusion in State v. Warner, 889 P.2d 479 (Wash. 1995).
The defendant in Warner was declared delinquent and
institutionalized for sexually abusing a child. While incarcerated,
Warner participated in sex offender therapy and, during group
therapy sessions, Warner disclosed that he had abused other
children. Warner was later charged with these additional offenses.
He moved to suppress his admissions, claiming that he should have
received Miranda warnings before he was asked about other offenses
in his sex offender therapy. The Washington court disagreed:
Arguably, there was some compulsion here[,] in
that ... Warner could have felt [that]
cooperation (i.e., making confessions) would
lead to more lenient treatment or avoid
reprisals. This type of "compulsion" is not
contemplated in Miranda, however. ... When
dealing with a person already incarcerated,
"custodial" means more than just the normal
restrictions on freedom incident to
incarceration. ... In [State v.] Post, [826
P.2d 172 (Wash. 1992),] this court rejected the
argument that an interview by a Department of
Corrections psychologist was custodial where
the [inmate being interviewed] was on work
release, even though "Post was 'required' to
submit to [this] evaluation in the sense that
it was widely known that[,] if individuals did
not cooperate during the interview process, it
was a factor considered against them." Post,
... 826 P.2d [at 181 n.5]. We held that [such]
psychological pressure is not enough to
establish "custody" for Miranda purposes.
Post, ... 826 P.2d [at 180]. [Likewise, the]
circumstances surrounding Mr. Warner's
disclosures [during sex offender therapy]
cannot be considered "custodial" [for Miranda
purposes].
Warner, 889 P.2d at 482-83.
Beaver's case presents even less of an argument for
finding "coercion" and requiring Miranda warnings. Even assuming
that Beaver's decision to join sex offender therapy might have been
influenced by psychological pressure (in the form of a desire to
gain increased inmate privileges), and even assuming that such
psychological pressure might have amounted to "coercion" for Miranda
purposes, Judge Savell found that Beaver was not coerced to
incriminate himself in the therapy sessions. Just the opposite:
Beaver's counselors expressly told him that they did not wish to
hear any identifying details of his prior offenses. Indeed, the
counselors warned Beaver that if he did volunteer identifying
details of past offenses, he might be prosecuted for those offenses.
The record unambiguously supports Judge Savell's finding;
it completely belies Beaver's claim that the authorities coerced him
to make incriminating statements so that they might prosecute him
for other crimes. Beaver was not subjected to "inherently
compelling pressures [designed] to undermine [his] will to resist
and to compel him to speak [when] he would not otherwise do so
freely". Perkins, 496 U.S. at 296, 110 S.Ct. at 2397 (quoting
Miranda, 384 U.S. at 467, 86 S.Ct. at 1612). We therefore hold that
the counselors in the sex offender therapy program were not required
to administer Miranda warnings to Beaver.
Conclusion
Beaver's statements concerning his other crimes were not
obtained in violation of his privilege against self-incrimination.
Further, the counselors at the Youth Facility were not required to
give Beaver Miranda warnings before the sex offender therapy
sessions. Beaver's statements were therefore admissible against him
at his sentencing. Accordingly, the judgement of the superior court
is AFFIRMED.
ENDNOTES:
1. These statements were sufficiently detailed that the Youth
Facility staff reported them to the authorities. However, Beaver
was not prosecuted for these newly revealed offenses þ apparently
because the offenses were committed while Beaver was a juvenile and
because no additional penalty could be imposed on Beaver under the
juvenile system (i.e., Beaver had already been ordered
institutionalized until his twentieth birthday).
2. Fifth Amendment to the United States Constitution and Article
I, Section 9 of the Alaska Constitution.
3. In his brief to this court, Beaver asserts that Bethel Youth
Facility records reveal "that Beaver was in fact punished for not
participating in treatment during the first month of his
incarceration". To support this assertion, Beaver cites a page
from his Division of Family and Youth Services (DFYS) annual
review. The author of the annual review notes that Beaver was
placed on restricted status "for his lack of participation in group
and individual counseling". However, it appears that this is a
reference to Beaver's lack of participation in the general
counseling that occurs at the Youth Facility, not sex offender
therapy. The author states that Beaver's restricted status
occurred during his first month at the Youth Facility; only in a
later paragraph of the annual review does the author speak of
Beaver's "[beginning] to attend the Sex Offender Group".
In other words, the portion of the record cited by Beaver does
not appear to support his assertion that he was penalized for
failing to participate in sex offender counseling. To the extent
that the cited portion of the annual review might be construed to
suggest this possibility, Beaver failed to raise this issue in the
trial court; thus, the potential ambiguity was never clarified.
4. As we did in Williams, 928 P.2d at 10 n.1, we again note but
do not decide a subsidiary legal issue raised by Beaver's case.
Fifth Amendment law distinguishes between (a) the possibility
that Beaver's statements about past, unprosecuted offenses might
lead the authorities to investigate these offenses and prosecute
Beaver for them, and (b) the possibility that these statements
might work to Beaver's disadvantage if he ever committed a new
crime. The Fifth Amendment protects Beaver against possibility
(a), but it does not protect Beaver against possibility (b).
Williams, supra.
As explained above (in footnote 1), the State of Alaska
apparently considered possibility (a) þ prosecuting Beaver for the
past juvenile offenses he had revealed þ but decided against it
because Beaver was already institutionalized until his twentieth
birthday. Thus, by the time Beaver raised his Fifth Amendment
claim, only possibility (b) remained þ the possibility that the
State would make adverse use of this information at Beaver's
sentencing for a new crime.
This raises the question: 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, does the Fifth Amendment block use of the statement? We
need not resolve this issue because we hold that Beaver was not
compelled to make the incriminatory statements.
