Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit
Touch N' Go's Website to see how.
James v. State (8/8/2003) ap-1893
James v. State (8/8/2003) ap-1893
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts.
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DARYLE D. JAMES, )
) Court of Appeals
No. A-8109
Appellant, )
Trial Court No. 1KE-S94-791 CR
)
v. ) O P I N I
O N
)
STATE OF ALASKA, )
)
Appellee. )
[No. 1893 - August 8, 2003]
)
Appeal from the Superior Court, First Judi
cial District, Ketchikan, Michael A.
Thompson, Judge.
Appearances: Dan S. Bair, Anchorage, for
Appellant. Nancy Simel, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Gregg D. Renkes,
Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
The superior court revoked Daryle D. Jamess probation
for violating a probation condition requiring him to participate
in a sex offender treatment program. James was rejected for sex
offender treatment because he would not admit and take
responsibility for his convictions for sexual abuse of a minor in
the second degree and sexual assault in the second degree. James
argues that his privilege against self-incrimination protected
him from having to admit these prior offenses because he had a
pending application for post-conviction relief, which, if
successful, could result in a new trial at which his statements
concerning these offenses could be used as evidence against him.
He also points out that because he had previously testified that
he had not committed the offenses, if he participated in sex
offender treatment and admitted these offenses, the State could
use his admissions to prosecute him for perjury. We conclude
that Jamess refusal to discuss his offenses was protected by the
privilege against self-incrimination. We therefore reverse the
revocation of his probation.
Background information
James was on probation for his 1995 convictions for
sexual abuse of a minor in the second degree and sexual assault
in the second degree. The superior court sentenced James to a
composite sentence of 10 years with 4 years suspended.1 A
special condition of Jamess probation required James to
participate in a sex offender treatment program while
incarcerated. The court placed James on probation for a period
of 5 years following his release.
James subsequently filed an application for post-
conviction relief. After an evidentiary hearing, Superior Court
Judge Michael A. Thompson denied Jamess application. While Judge
Thompsons denial of the post-conviction relief application was on
appeal, Jamess probation officer filed a petition to revoke
Jamess probation on the ground that James had not participated in
a sex offender treatment program.
Judge Thompson held a hearing in February 2001 to
determine the merits of the probation revocation petition. At
the hearing, John Steven Dempsey, a clinical social worker who
worked with convicted sex offenders for the Department of
Corrections, testified that he had met with James to determine if
James was amenable to participate in a sex offender treatment
program. Dempsey testified that when he asked James about what
he had done, James responded by telling Dempsey, Ive invoked the
Fifth Amendment, Im not going to talk about any of this because
basically I didnt do it and Im under appeal. Dempsey told James
that it did not make any sense to talk to him until the appeal
was settled. Dempsey testified that the program could not treat
someone who was denying his guilt.
After Dempseys original meeting with James, Jamess
probation officer asked the Office of the Attorney General for an
opinion about whether James had a valid privilege against self-
incrimination. The Office of the Attorney General informed the
department that the privilege against self-incrimination did not
excuse James from participating in sex offender treatment.
Jamess probation officer informed James of this decision and told
him that he would have another opportunity to meet with Dempsey.
At the subsequent meeting, James again denied
committing the crimes for which he had been convicted and refused
to talk to Dempsey because his case was on appeal. After Dempsey
reported this to Jamess probation officer, the probation officer
filed the petition to revoke Jamess probation.
At the conclusion of the evidentiary hearing on the
petition to revoke Jamess probation, James argued that he had a
Fifth Amendment right to remain silent and that the State could
not compel him to admit that he had committed the offenses for
which he had previously been convicted.
Judge Thompson ruled that James had simply not invoked
his Fifth Amendment rights. He concluded that James was merely
insisting that he was innocent and that this did not excuse him
from satisfying the probation condition to obtain sex offender
treatment. He found that James was in violation of his
probation. However, Judge Thompson delayed disposition for six
months in the hope that this court would issue a decision on
Jamess application for post-conviction relief, possibly
clarifying any Fifth Amendment concerns.
Approximately six months later, in August of 2001,
Judge Thompson held a disposition hearing. Judge Thompson
imposed 1 year of Jamess 4-year suspended sentence. Judge
Thompson again concluded that James had not exercised his Fifth
Amendment rights. He concluded that, regardless of the status of
Jamess appeal, James would under any circumstances continue to
insist that he had not committed the crimes for which he had been
convicted.
James asserted his privilege against self-
incrimination
The Fifth Amendment of the United States Constitution
protects a person in a criminal case from being compelled by the
government to be a witness against himself.2 A person claiming
the protection of the Fifth Amendment must affirmatively invoke
it.3 We initially must decide whether James invoked his Fifth
Amendment rights. Judge Thompson apparently concluded that James
was not invoking his privilege against self-incrimination because
James insisted that he did not commit the offenses for which he
had been convicted. He concluded that, even if Jamess appeals
were final, James would continue to deny committing the offenses.
But a review of the record shows that James
consistently invoked his privilege against self-incrimination.
Although James did repeatedly declare in his interviews with
Dempsey that he was innocent, he also indicated that he was
invoking the Fifth Amendment and that he would not talk about any
of the offenses because he had an appeal pending. Dempsey
recognized that James was invoking his Fifth Amendment rights,
and he informed the Department of Corrections. In response, the
Department of Corrections contacted the Office of the Attorney
General to determine whether James had a valid Fifth Amendment
right to refuse to discuss the offenses. The Office of the
Attorney General responded that he did not, and the Department of
Corrections adopted that position. Aside from Judge Thompson,
there seems little question that everyone connected to the case
understood that James was attempting to exercise his Fifth
Amendment right to not discuss the offenses for which he had been
convicted. We accordingly conclude that James invoked his right
to remain silent.
James had a Fifth Amendment right to refuse
to discuss the offenses for which he had been
convicted
To establish a Fifth Amendment claim, parties invoking
the privilege have the burden of demonstrating a valid reason to
believe that their compelled statements might incriminate them.4
This burden is not great: To sustain the privilege, it need only
be evident from the implications of the question, in the setting
in which it is asked, that a responsive answer to the question or
an explanation of why it cannot be answered might be dangerous
because injurious disclosure could result.5
There is no question that requiring James to discuss
the offenses for which he had been convicted was an attempt to
elicit testimonial evidence. Furthermore, the State does not
appear to contest that Jamess statements were compelled because
James faced imprisonment based on his failure to admit his
offenses.6 The State contends, however, that James does not face
a threat of incrimination sufficient to give rise to a Fifth
Amendment claim of privilege.
In Gyles v. State, this court explained that [a]
probationer or parolee cannot validly invoke the constitutional
privilege ... when there is no real or substantial hazard of
incrimination.7 [A]n individual faces a hazard of incrimination
whenever the answers elicited could support a conviction or might
furnish a link in the chain of evidence leading to a conviction.8
Thus the question becomes whether James faced a real or
substantial hazard that his admitting responsibility for the
crimes for which he was convicted could support a conviction or
furnish a link in the chain of evidence leading to a conviction.
Dempsey, the social worker, testified that when he
interviews defendants to evaluate them for treatment, the
defendants statements are not confidential, and he shares any
information he obtains with the probation office. He stated that
he had testified against former interviewees using information
that came out during the interviews. It thus appears that James
had a legitimate fear of self-incrimination.
Jamess case is complicated because his appeal is a
collateral attack on his conviction. The State appears to
concede that defendants have a valid privilege not to discuss
their offense so long as a direct appeal is pending. But the
State maintains that the privilege should not extend to a
collateral attack. James contends that if he is forced to
discuss the facts about the incidents that led to his
convictions, the State could use those statements against him if
he were to ultimately win a retrial on any of his remaining post-
conviction relief claims. He also points out that because he
testified at his original criminal trial and denied his guilt, if
he admitted committing the offenses during treatment, the State
could use those statements to prosecute him for perjury. The
State responds that Jamess chances of success on a post-
conviction relief application are minimal, and therefore there is
no basis to continue to extend James the privilege.
The State relies on McCormick on Evidence, which favors
granting the privilege on a collateral appeal when the facts [of
the case] present a real and appreciable danger of
incrimination.9 The treatise suggests that [i]n the absence of
some specific showing that collateral attack is likely to be
successful, a conviction should be regarded as removing the risk
of incrimination and consequently the protection of the
privilege.10 But Jamess case demonstrates the practical
difficulties associated with this standard it places the trial
court in a position of reviewing its own decisions.
Judge Thompson originally dismissed Jamess application
for post-conviction relief, after which James filed a timely
appeal to this court. While that appeal was pending, the State
filed its petition to revoke Jamess probation for failing to
participate in the sex offender program. Judge Thompson presided
over the probation revocation hearing as well. Thus, applying
the standard suggested by the State would force Judge Thompson to
reassess his earlier ruling on Jamess application for post-
conviction relief and determine if the petition is likely to be
successful a determination he has already made. Requiring him
to once again rule on the application while Jamess case awaits
appeal is pointless because if he thought the application had any
merit, he would not have dismissed it in the first place.
The State also points out that, if a defendant
continues to have a privilege against self-incrimination during
the pendency of a post-conviction relief application, a defendant
could potentially avoid participating in a treatment program for
a long period of time. The State postulates that a defendant
could keep appeals going indefinitely, thereby avoiding sex
offender treatment. We recognize that upholding Jamess exercise
of his Fifth Amendment right might allow him to avoid sex
offender treatment. But if James has a legitimate Fifth
Amendment right, that right must trump practical difficulties
raised by the legitimate exercise of that right.
The State finally rests its argument on cases from
other jurisdictions that it alleges hold that prisoners and
probationers have no privilege against self-incrimination in
regard to the requirement that the prisoner accept responsibility
for criminal behavior during treatment. But our review of those
cases shows that they are inapplicable to the circumstances of
Jamess appeal. In the majority of the cases that the State
cites, the defendant faced no future threat of self-incrimination
and therefore did not have a privilege against self-
incrimination.11 We relied on similar cases in Gyles v. State.12
Other cases that the State cites are inapplicable for a variety
of reasons.13
One case cited by the State actually appears to support
Jamess position. In Eccles v. State,14 the Arizona Supreme Court
struck down probation conditions that forced the defendant to
choose between incriminating himself and losing his probationary
status by remaining silent.15 The court only allowed a condition
that required the defendant to truthfully answer all questions
that could not incriminate him in future criminal proceedings.16
While the court did hold that the defendant could be forced to
talk about offenses for which he had already been convicted, the
defendant had to do so only to the extent he had lost the
privilege to remain silent.17 Based on the United States Supreme
Courts decision in Minnesota v. Murphy,18 the court held that the
government could compel answers to incriminating questions only
if it offers the probationer use immunity.19
Another case the State cites, State v. Mace,20 was
later vacated by the United States District Court of Vermont.21
Mace plead guilty to one count of lewd and lascivious conduct for
his sexual conduct with his stepdaughter.22 Mace was required,
as a condition of his probation, to participate in sex offender
treatment.23 During treatment, Mace admitted that he had oral
sex with his stepdaughter but denied having sexual intercourse
with her.24 Mace was informed by his probation officer that his
refusal to admit sexual intercourse with his stepdaughter was
interfering with the successful completion of his therapy and
constituted a violation of his conditions of probation, which
required him to complete a sex offender therapy program.25 At a
subsequent hearing, the trial court found that Mace violated his
probation condition and revoked 60 days of his previously
suspended sentence.26
Mace argued that requiring him to admit having sexual
intercourse with his stepdaughter violated his Fifth Amendment
rights.27 He pointed out that he was admitting to a greater
offense than the one for which he had been convicted.28 He
argued that the State might be able to prosecute him for this
greater offense.29 He also argued that since his stepdaughter
testified that he had been having sexual intercourse with her for
a substantial period of time, he still faced potential
prosecution for sexual acts he committed against his stepdaughter
during these different time periods.30 The Supreme Court of
Vermont, while accepting that this was theoretically true,
concluded that Mace had not shown a realistic threat of self-
incrimination.31 The court upheld the revocation of Maces
probation.32
Mace filed a petition for a writ of habeas corpus, and
the United States District Court in the District of Vermont
reversed the Supreme Court of Vermont and vacated the revocation
of Maces probation.33 The federal district court rejected the
Vermont Supreme Courts conclusion that Mace had not shown that he
faced a realistic threat of self-incrimination.34 The court
reasoned that Mace should not be left to the good intentions of
the State when forced to incriminate himself or face
incarceration.35 The court stated:
Contrary to the states position, the state
has the burden of eliminating the threat of
incrimination. If the state wishes to carry
out rehabilitative goals in probation by
compelling offenders to disclose their
criminal conduct, it must grant them immunity
from criminal prosecution.[36]
In State v. Cate,37 the Vermont Supreme Court adopted
the reasoning of the federal district court in Mace.38 Cate was
charged with sexual assault.39 He testified at trial that the
sexual intercourse was consensual.40 He was convicted.41 The
trial court, as part of Cates sentence, imposed a condition of
probation requiring Cate to admit his guilt as part of sex
offender therapy.42 The court required Cate to sign an
acknowledgment of responsibility for sexually assaulting the
victim.43 Cate argued that signing the acknowledgment would
violate his rights against self-incrimination because it would
subject him to a potential prosecution for perjury.44
The Vermont Supreme Court, relying on the district
courts decision in Mace, concluded that Cate had a legitimate
Fifth Amendment claim and that the State could not require him to
sign the acknowledgment of responsibility for the sexual assault
to avoid revocation of his probation.45 However, the court went
further than the district court in protecting defendants. Rather
than relying on a prosecutorial grant of immunity, the court
extended judicial use immunity.46 The court stated:
Accordingly, in situations such as this,
where the prosecutor has failed to eliminate
the threat of future prosecution, we hold
that the proper remedy for protecting a
probationers privilege against self-
incrimination is a grant of judicial use
immunity that makes any statements required
for successful completion of rehabilitative
probation inadmissible against a probationer
at a subsequent criminal proceeding.[47]
The court concluded that the trial court
may reimpose the challenged probation
condition, but only if it first assures
defendant on the record that statements
required for successful completion of
probation, and their fruits, will not be
admissible against him at any subsequent
criminal proceeding. Absent such assurance,
the State may not seek, nor the court impose,
a probation condition requiring defendant to
admit culpability for the conduct of which he
stands convicted.[48]
Similarly, in State v. Imlay,49 the Montana Supreme
Court upheld a defendants Fifth Amendment rights in a case
factually similar to Jamess. Imlay was rejected from a number of
sex offender treatment programs after he repeatedly denied that
he had committed a sexual offense.50 No outpatient sex therapy
program in the state would accept him because he denied that he
was guilty of sexual misconduct.51 As a result of Imlays failure
to complete a sex therapy program, as dictated by his conditions
of probation, the trial court revoked his probation and imposed
the remainder of his 5-year suspended sentence.52 Imlay appealed
the courts order revoking his probation.
The Supreme Court of Montana concluded that requiring
Imlay to admit his guilt to avoid revocation of his probation
violated his rights under the Fifth Amendment.53 The court
pointed out that Imlay still had the right to challenge his
conviction, based on newly discovered evidence, or by collateral
attack.54 The court also pointed out that because Imlay had
testified in his own defense at trial and denied his guilt, he
also faced prosecution for perjury:
In addition, by admitting guilt in this case,
the defendant would have to abandon his right
guaranteed by the Fifth Amendment, not only
as to the crime for which he has been
convicted, but also to the crime of perjury.
He testified in his own defense during his
trial and denied committing the offense for
which he was charged.
Under the circumstances, and absent any
grant of immunity, we believe that the better
reasoned decisions are those decisions which
protect the defendants constitutional right
against self-incrimination...[55]
We agree with these courts that defendants in Jamess
position face a realistic threat of self-incrimination sufficient
to justify the protections of the Fifth Amendment. Like the
defendants in Cate and Imlay, James testified at his trial that
he did not commit the offenses for which he was convicted. Any
statement that James made during therapy admitting to the
offenses could be used by the State to prosecute him for perjury.
Therefore, Jamess claim that he faced a realistic threat of self-
incrimination is valid. In addition, James still had an
application for post-conviction relief pending. If James was
successful in that application, he could have obtained a new
trial. Any statements James made, particularly statements
admitting responsibility for the offenses, could then be used
against him. This supports Jamess position that he had a
legitimate Fifth Amendment claim.
Conclusion
We conclude that James asserted his Fifth Amendment
rights and that he has valid reasons to fear that discussing the
facts surrounding his former convictions would force him to
incriminate himself. We accordingly conclude that James has a
valid Fifth Amendment privilege not to be compelled to discuss
the facts surrounding the charges for which he has been
convicted, and his probation cannot be revoked for his failure to
do so.
The judgment of the superior court is REVERSED.
_______________________________
1 James v. State, Alaska App. Memorandum Opinion and
Judgment No. 3734 (Dec. 24, 1997).
2 U.S. Const. amend. V.
3 United States v. Monia, 317 U.S. 424, 427, 63 S.Ct. 409,
410-11, 87 L.Ed. 376 (1943).
4 Hoffman v. United States, 341 U.S. 479, 486-87, 71 S.Ct.
814, 817-18, 95 L.Ed. 1118 (1951); Gyles v. State, 901 P.2d 1143,
1148 (Alaska App. 1995).
5 Hoffman, 341 U.S. at 486-87, 71 S.Ct. at 818.
6 See McKune v. Lile, 536 U.S. 24, 36, 41, 122 S.Ct. 2017,
2026, 2029, 153 L.Ed.2d 47 (2002).
7 Gyles, 901 P.2d at 1148 (quoting State v. Gonzalez, 853
P.2d 526, 530 (Alaska 1993)).
8 Gonzalez, 853 P.2d at 530 (quoting State v. E.L.L., 572
P.2d 786, 788 (Alaska 1977)).
9 1 John W. Strong, McCormick on Evidence, 120 at 465 (5th
ed. 1999).
10 Id.
11 See, e.g., Russell v. Eaves, 722 F. Supp. 558, 560-61
(E.D. Mo. 1989) (holding that Missouri sex offender treatment
does not violate Fifth Amendment because no future criminal
proceeding identified); State v. Gleason, 576 A.2d 1246, 1250
(Vt. 1990) (holding that defendants plea of nolo contendre and
protections of double jeopardy removed subsequent threat of
incrimination and the protections of the privilege); State v.
Mace, 578 A.2d 104, 107-08 (Vt. 1990) (holding that Fifth
Amendment did not protect defendant because defendant could not
be prosecuted for a greater offense, and defendant had not shown
a realistic threat of self-incrimination regarding other
prosecutions); State v. Carrizales, 528 N.W.2d 29, 30-32 (Wis.
App. 1995) (holding that Fifth Amendment did not protect the
defendant because he had plead no contest, and in any case, the
statements could only have been used for rehabilitative
purposes).
12 See Gyles, 901 P.2d at 1149.
13 See, e.g., Warren v. Richland County Circuit Court, 223
F.3d 454, 457 (7th Cir. 2000) (holding that sex counseling
sessions did not violate defendants plea agreement on due process
grounds rather than Fifth Amendment grounds); United States v.
Ross, 9 F.3d 1182, 1191 (7th Cir. 1993), revd on other grounds,
40 F.3d 144 (7th Cir. 1994) (holding that Fifth Amendment not
implicated where probation requirement inquired into defendants
possession of prohibited firearms and condition did not force him
to admit responsibility for any crimes); People v. Ickler, 877
P.2d 863, 866-67 (Colo. 1994) (deciding case without ever
reaching or discussing issue of Fifth Amendment privilege).
14 877 P.2d 799 (Ariz. 1994).
15 Id. at 801.
16 Id.
17 Id. Unfortunately, the court is silent on how a
defendant may lose the protections of the Fifth Amendment under
such circumstances.
18 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984).
19 Eccles, 877 P.2d at 802.
20 578 A.2d 104, 107-08 (Vt. 1990).
21 Mace v. Amestoy, 765 F. Supp. 847 (D. Vt. 1991).
22 Id. at 848.
23 Id.
24 Id.
25 Id.
26 Id. at 849.
27 Id.
28 Mace, 578 A.2d at 107-08.
29 Id.
30 Id.
31 Id. at 108.
32 Id.
33 Amestoy, 765 F. Supp. at 848.
34 Id. at 851-52.
35 Id. at 852.
36 Id. at 851-52.
37 683 A.2d 1010 (Vt. 1996).
38 Id. at 1018.
39 Id. at 1013.
40 Id.
41 Id. at 1014.
42 Id. at 1014, 1018.
43 Id. at 1018-19.
44 Id. at 1018.
45 Id.
46 Id. at 1019.
47 Id.
48 Id. at 1020.
49 813 P.2d 979 (Mont. 1991).
50 Id. at 982.
51 Id.
52 Id.
53 Id. at 985.
54 Id.
55 Id.
