*1
OF
STATE
MONTANA,
Respondent,
Plaintiff
MATTHEW C. FULLER,
Appellant.
Defendant
No. 95-343.
January
Heard
Submitted
1996.
April
Decided
1996.
St.Rep.
325.
155.
Mont.
For Billings. P. Respondent: Joseph Mazurek, For Attorney General, Jen- nifer Anders, Attorney General; Assistant Dennis Paxinos, Yel- County Attorney, lowstone John Kennedy, Deputy Yellowstone County Attorney. Opinion
JUSTICE HUNT delivered the of the Court. (Fuller) Appellant charged Matthew C. Fuller in the Thir- Court, teenth County, Judicial District Yellowstone rape sexual assault. Fuller moved to dismiss charges, alleging that the constitutionally guaranteed privilege against State violated his com- pelled motion, self-incrimination. After the District Court denied his charges. Fuller pled guilty appeals Fuller the District Court’s denial of his motion to dismiss. We reverse.
ISSUE appeal: Fuller raises two issues on Did District err refusing grant 1. in Fuller’s motion to impermissibly constitutionally because State violated his dismiss guaranteed privilege against compelled self-incrimination? err refusing grant
2. Did the District Court motion dismiss because conviction offended the “fundamental fairness” (1989), set out in State v. Theil 263 Mont. 343? doctrine P.2d issue, necessary of the do Due to the resolution first we not find the second. to address
FACTS parties stipulated to the facts in this case. The charged December Fuller was with three On counts trial, assault. After a bench attempted sexual District Court found guilty of all three counts. The District Court suspended Fuller required, among things, other that he Fuller’s sentence but “obtain participation outpatient [an] and/or continue enrollment Program” policies Treatment and “follow all of that Sex Offender con- September attempt In this Court reversed the program.” evidence, acquitted Fuller to be ofthe for lack of and ordered victions P.2d v. Fuller 266 Mont. 1340. charges. See State reversal, to the 1994 Fuller was After his 1992 conviction but program Billings. a treatment Patients are not accepted into if program they into the treatment are in denial or do not admitted Further, honestly history. patients offense ter- disclose their will be dishonesty if or denial occur their program during minated from treatment, treatment, they or they during if re-offend if otherwise program. break the rules of the treatment required report of the treatment center are employees they possess past present about authorities evidence program. in the treatment Offend- committed individuals offenses fully required are disclose who enter the treatment ers histories. their offense treatment, presented to his treatment
During prepared offenses, past includ- history an which disclosed several group offense here, prepu- each of which involved a different the three at issue ing *4 30, 1994, the treatment contacted girl. program On March bescent (the notify Department Department) and Parole Probation In accordance with its policies. had violated treatment that Fuller Department informed statutory duty, the treatment also treatment. The during had revealed offenses Fuller prior of the three Billings Department. in turn notified the Police Fuller Department was subsequently probation. arrested for unrelated violations 14,1994, April petitioned the State the District Court to revoke On grounds sentence. The did suspended revocation not charges include the which are the basis of the instant appeal. The the suspended Court revoked sentence and Fuller District remanded of the Montana custody State Prison. Meanwhile, Billings Department investigated Police the inci- had dents Fuller revealed treatment took statements. No had investigation occurred to the police department receiving information obtained from the treatment center. On the basis of police investigation, Fuller was charged one count of sexual intercourse without consent and two counts of sexual assault. He charges, moved to dismiss the alleging the State’s actions vio- privilege against lated constitutional compelled self-incrimina- tion. The District denied the motion. Fuller then pled guilty charges, specifically right but reserved his to appeal the denial of is that appeal his motion. It which we today. decide
STANDARD OF REVIEW The grant or denial of a motion within to dismiss is the sound discretion of the trial court and will be disturbed unless an abuse of (1993), that discretion shown.State v.Barker 85, 89, 858 260Mont. P.2d 360, 362-63(citing 721). v. (1986), State Laster 223 Mont. 724 P.2d
Whether or not a defendant’s against compelled triggered self-incrimination is ais conclusion of law. “Our standard of review of district court’s conclusions of is plenary. law We determine whether the district court’s conclusions are correct.” State (1992), Sage Steer, 255 Mont. 841 P.2d (citing 601). Inc. v. Dept. Revenue 245 Mont. 803 P.2d alleges privilege against compelled self-incrimina- guaranteed tion violated. This to all citizens under both the Montana Constitution and the Fifth Amendment to the United States Accordingly, Constitution. resolution of Fuller’s appeal will II, Constitution, on Article Section 25 of rest the Montana as well as the interpretation United States Court’s ofthe Fifth Amendment.
DISCUSSION grant Did the err refusing District Court Fuller’s motion to impermissibly constitutionally dismiss because State violated his self-incrimination? guaranteed privilege against *5 160 compelled from self-incrimi protected residents are
Montana the United States Constitutions. the Montana and under both nation that “no provides of the Montana Constitution II, Section 25 Article in criminal testify against [a] to himself compelled be person shall Fifth Amendment United States Constitution to the The proceeding.” person compelled that no “shall be similarly provides against himself.” to a witness case regardless protection, of enjoy this constitutional
All citizens
beyond
It extends
trial or
they are situated.
they are or how
who
does
situations,
privilege
Amendment]
“the [Fifth
because
custodial
protection
in which its
is
proceeding
the
upon
type
not turn
the
or admission and
the nature of
statement
invoked,
upon
but
(1981),
454, 462,
v. Smith
451 U.S.
it invites.” Estelle
which
exposure
(1967),
re Gault
387
1866, 1873,
(quoting In
Therefore, the State has not if obliga general “[A] does not attach. privilege Fifth Amendment truthfully not convert [does] questions and answer appear tion Murphy, ones.” into voluntary statements otherwise at 1142. at U.S. of the Fifth Amendment claiming protection
A person
(1943),
v.Monia
United States
affirmatively invoke it.
must
generally
duty to
409, 410-11,
In this Fuller never asserted his Fifth Amendment privilege, it, Instead, or, fully honestly refused to answer. pursuant questions put answered the to him the treatment program, with the inquiry here, accordance District Court’s order. If our ended precluded Fuller would be assigning error the District Court’s denial of his motion dismiss. however, an exception, general
There is
rule that a
affirmatively
defendant must
invoke the
enjoy
order to
protections.
its
Failure to invoke the privilege does not preclude the
placed
benefit if the defendant
in situation where he is not “free
admit, deny,
or refuse to
answer.”
465 U.S.
*6
1183).
at
(citing Garner,
657,
S.Ct.
1143
First,
Supreme
the
may
Court has held that gamblers
exercise
privilege
their Fifth Amendment
against self-incrimination by refus
ing to file a federal income tax return. “In recognition
pervasive
ofthe
regulation
gambling
of
activities
the
claiming
fact that
the
privilege
filing
in lieu
a return
incriminate,
would tend to
the
[Supreme] Court has held
privilege may
that the
be exercised
failing
439,
to file.” Murphy,
Second, Supreme the Court has held that subject an individual a custodial interrogation formally must be advised of his Fifth right Amendment to remain silent. Miranda v. Arizona 384 1602, 16 U.S. S.Ct. Supreme L.Ed.2d 694. The Court reasoned government that a agency conducting interrogation such an is aware responses that the likely elicited are to be incriminatory. Further, the intimidating isolation and atmosphere inherently police found in custody, not, whether intentional or might undermine the individual’s compel speak
will and
him to
when he would otherwise be silent.
430,
465
Murphy,
Therefore,
U.S. at
465 U.S. at
S.Ct. at
Roberts v. United States
622).
(1980)
1358, 1364, 445 U.S.
L.Ed.2d
Third,
Supreme
the
Court has
that an
need
held
individual
prevents
the
the
formally
privilege
government
voluntary
invoke
if
a
Amendment by
penalize
threatening
invocation of the Fifth
434,
he or she invoke it.
465 U.S. at
Murphy,
individual should
1186).
Garner,
(citing
1145-46
The threat of for reliance distin- ordinary sort case in which a guishes cases witness testimony. A merely required appear give may State probationer appear and discuss matters that affect his require status; requirement, more, such a without does not probationary may self-executing privilege. rise The result be different give question put probationer, if however relevant to his status, calls incriminate him probationary for answers that would prosecution. or later criminal There is thus a substan- pending concluding State, if the tial basis in our cases for either expressly by implication, privilege asserts invocation probation, would lead to revocation of it would have created the situation, the failure to would penalty classic assert excused, probationer’s and the answers would be deemed com- criminal prosecution. in a pelled and inadmissible (fn. omitted, emphasis 104 S.Ct. at *7 added). placed penalty the him in a classic situ
Fuller claims State asserts that his failure to invoke the Fifth consequently ation. He excused, prohibited and that the State is from Amendment should be prosecution. in subsequent made in treatment using any disclosure requirements the demanded of therefore must evaluate whether We in classic situation. penalty the him a by placed Fuller District his Fuller to “obtain and/or continue District Court ordered The Offender Treat- outpatient in the Sex participation enrollment ...” If he program all policies [and to] ... follow Program ment be sent and he would would be revoked probation comply, failed to fully he program required theof treatment policies The prison. so, to do history. if he failed Again, honestly his offense disclose prison. It is be sent revoked and he would probation would undisputed past that the State Fuller to divulge therefore it knew be criminal. activities which would undisputed divulged by It is further that the information Fuller self-incriminatory. history disclosed, On basis of the was the offense alone, charged and on that basis Fuller was and convicted of three additional crimes.
The State insists these circumstances did not rise the of a level penalty classic situation because the District Court never threatened punish exercising right. Fuller for his Fifth Amendment At time, the argues, State Fuller could have invoked his so, against argues, self-incrimination. Had he done the State further the District Court could lawfully punished not have him for its consequent invocation and his refusal to speak.
While acknowledges that the District Court expressly never to punish Amendment, threatened him for on relying the Fifth that such argues implicit a threat was in its speak insistence that he punished. agree. or be We speak, A command to under threat of loss liberty, implicitly forecloses the option of remaining silent. are therefore imagine We unable to how the dissent can assert that support record does not position. facts in this case dispute; contrary, are not in on the parties stipulated them, as pointed we out earlier in opinion. stipulated this In the facts, both conceded this issue parties and that of the portion stipulation set out verbatim: signed judgment
[The Court] District and commitment order sentencing years Fuller to ten concurrently. on each count to run The execution of the sentence suspended upon perform- by conditions, [one] ance Fuller of certain [was] which following: shall obtain continue his enroll- and/or defendant out-patient ment and participation in sex treatment offender program professional who is in compliance with the stand- ards treatment... January, 1994,
After Fuller was first sentenced he entered offender treatment... prior sentencing, sexual a sexual offender evaluation was ordered accepted District Court. Fuller was imposition of into treatment sentence. they Patients are not admitted into a treatment are if Further,
in denial or do their honestly offending history. disclose patients will be program, terminated the same occurs if *8 164 treatment, treatment, they during their during other- reoffend programs. the rules the treatment [Emphasis added.] wise break prison to to if he
The District Court threatened send Fuller did not It honestly history. disclose his offense therefore threatened a real significant punishment if he remained silent. The State explains and only applied unexplained silence, threat to not to silence that this to Fifth But it is too pursuant maintained the Amendment. fine exercising between expect an individual to differentiate distinction merely remaining and a constitutional remain silent silent. extended to both. punishment implicitly The threat of supported Supreme This the United Stated Court’s decision of the Fifth Amendment as articulated in interpretation Murphy, though Supreme opposite even Court reached the conclusion Murphy probation required, among In the defendant’s that case. offender treatment things, participate program, that he a sex other officer, periodically he to his and he “be report probation U.S. probation Murphy, officer in all matters.” 465 truthful with program, 1139. After left the treatment Murphy at 104 S.Ct. at that, her probation officer informed while a counselor called treatment, rape had confessed to a and murder committed Murphy probation Murphy officer confronted years earlier. When counselor, again con- obtained from the treatment information officer rape probation and murder. The forwarded fessed to subsequently was tried and police Murphy information 422-25, U.S. 104 S.Ct. at Murphy, the murder. at convicted of 1139-41. Murphy found that had not claimed his Fifth Supreme Court excep- of the three privilege, and that his was not one
Amendment self-executing. Specifically, privilege where the tional situations placed in a classic found that was not statute probation the Minnesota revocation situation because penalty choice be silent. foreclose free impermissibly did not that Mur- at It therefore concluded at 104 S.Ct. 1147-48. U.S. and, since he self-executing was phy’s Fifth been waived. it, properly that it deemed have not invoked had Murphy, “[t]he far In state at bar is different. Factually, case Murphy’s contours of attempt precise define the court did not Murphy’s probation condition questions. obligation respond statements; nothing about his freedom only it said false proscribed questions Murphy, particular ...” to decline to answer bar, obligation was the case at at 1147. In clearly precisely required set out. He was to disclose his offense *9 history in order to maintain his in the place treatment prison. directly sent to Fuller was being avoid ordered to incriminate himself; general this is a condition far removed from the obligation Murphy. Simply to be truthful that constrained put, gave the State disclose, go prison. Fuller two choices: or to particularly Supreme acknowledged
The Court in Murphy that analysis Fifth Amendment proper might lead to an opposite conclu- is, that holding sion—that to the Fifth Amendment inwas fact specifically violated —if the defendant faced incriminating questions just a general obligation rather than to be truthful. As we have already noted, the in Supreme Court held that “[t]he result may be different if the question put probationer, to the however status, probationary relevant to his calls for answers that would in pending incriminate him a prosecution.” later criminal 435, 104 465 U.S. at S.Ct. at 1146. This is precisely what happened case, in this and precisely why we properly reach a conclusion opposite by that to reached the Murphy. Court in points out, however,
The State reality that in the District Court not probation could have revoked Fuller’s refusing to disclose his history, offense because this Court has found that it is unconstitu tional to revoke probation for failure to admit to a criminal act. See v. Imlay (1991), 82, State Mont. 813 P.2d granted, cert. L.Ed.2d 489 cert. dismissed 506 U.S. (1992). 444,121 113S.Ct. L.Ed.2d 310 It therefore contends that there prospect silent, was no real if of sanctions Fuller remained despite argument contrary. Fuller’s The dissent also devotes much energy arguing that interpretation Imlay Fuller’s of is incorrect.
The District Court threatened to probation revoke Fuller’s heif did in not remain the treatment program policies, including and followits history. disclosing argued his offense that the district court power carry threat, retained its out this in even the face of the Imlay contended, decision. The State agrees, the dissent that the that Imlay proposition stands for a district court does not have carry ability the out such threat. point, majority disagree.
On this and dissent do not holding Imlay proposition probation stands for the that cannot be solely revoked on the that the ground defendant refuses to admit that guilty Therefore, claim, he or she is of a crime. the dissent’s reading Imlay incorrect, may Fuller’s is well have some merit. minimize potential importance Imlay ofthe We do decision however, case, this cases; holding Imlay largely in other Court, emphasizes pursuant The dissent District irrelevant. ability carry out its Imlay, lacked actual threatened revoca- he probation if chose to remain silent. But whether tion Fuller’s actually could have carried out its threat is the District beside It is itself a credible the issuance threat which crucial. point. Court, presumably knowing that could not revoke The District (and past if he refused to admit crimes such probation certainly phrase history” what the “offense admissions are contem- exactly threatened to do Fuller cannot be plates), nevertheless that. acting taking accordingly. the District Court its word faulted for Moreover, Imlay reliance the State and the dissent on the He ignores the realities of Fuller’s situation. was under a decision policies the treatment comply program; court order so, probation do would be revoked. He told that if he failed to *10 ability carry authority Court had the and the to the District believed threat, eminently reasonable. It is less its and that belief was far out expect empty to him to know that the threat was an one. reasonable have argues next that this entire situation would never The State negotiations, honest the State plea if Fuller had been arisen to crimes to the State or the District revealing previous three earlier, If Fuller had disclosed the offenses at an earlier date. Court prosecuted however, the State would have him earlier. It presumably upon defendant to assist the State in his never been incumbent a has to so failure do is not relevant prosecution. Fuller’s
own was violated. privilege of whether his Fifth question knowledge of the particularities we find Fuller’s lack of Nor do “ludicrous,” apparently to be as dissent does. this area of law learned members ofthe United States Considering that the myriad Court, legal of this and a Court, learned members an individual’s agree parameters on the exact cannot scholars self-incrimination, it would be ludicrous compelled privilege against Every its intricacies. appreciate defendant to lay-person expect to concept, with the Fifth Amendment as may be familiar schoolchild widely- not, however, to a does translate claims. That the dissent as every subtlety. its nuance and understanding of held inquiry Murphy, proper out in analysis set Following merely required him conditions probation [a defendant’s] is “whether probation to his testimony matters relevant about give and appear to to required him choose further and they went or whether ary status Ms making incriminating jeopardizing statements con- between U.S. at liberty remaining ditional silent.” solely “required precisely latter choice” is what S.Ct. at 1147. TMs extra, “the impermissible the State offered Fuller’s case. This is step” which serves to make Fifth Amendment self-exe- cuting. Murphy, 465 U.S. S.Ct. at 1147. State improperly compelled past
Because the Fuller to disclose privilege against criminal acts in violation his Fifth Amendment constitutionally self-incrimination and Ms guaranteed silent, prohibited to it is using remain of the informa- later, tion elicited as the basis for a separate prosecution. Therefore, the District erred in denying motion to grounds. dismiss on these While we have devoted considerable time lengthy to a of the of the application discussion Fifth Amendment Constitution, the United States it to be noted that holding this also on separately independently based Fuller’s right to remain II, pursuant silent Article Section 25 of Montana Constitution. We emphasize holding that tMs not does stand for the propo may compel sition the State a defendant It can; answer. indeed, in order for effective, must, treatment because a defendant Mstory who refuses disclose Ms offense cannot be successfully However, treated. if the State chooses to compel answers incriimnatmg questions, it cannot use those answers agamst later defendant criminal proceedmg.
Judgment reversed.
JUSTICE LEAPHART concurs. concurring.
JUSTICE TRIEWEILER majority I concur with the all opinion and is included in its discussion. I separately respond write to the dissenting opiMon unnecessarily wMch seems to confuse what be a straightfor- should application ward of clear *11 principles. constitutional The Fifth Amendment of provides the United States Constitution “ part person in relevant that o compelled any [n] shall be ... in criminal case to be a witness against himself.” 25, II,
Article Section of the provides Montana Constitution that compelled shall be person testify against “[n]o to himself in a criminal proceeding.”
The United States Court has noted that: that long prohibition [the It has been held tMs Fifth Amendment] only permits person testify not a to refuse against Mmself at a 168 defendant, trial in but him “privileges which also questions any in put proceeding,
not answer official him other criminal, informal, civil or formal or where the answers might criminal proceedings.” him future incriminate in 420, 426, 104 U.S. 1136, 1141, Minnesota v. Turley (1973), (quoting 79 L.Ed.2d Lefkowitz 274). 316, 322, L.Ed.2d hold that Montana’s constitutional to avoid I would self-in- II, similarly applicable at Article Section found crimination a person’s might when answers in- proceedings formal informal or her in future criminal proceedings. criminate him undisputed clearly The facts this case establish that Fuller was about his provide information own criminal conduct prosecution that The then formed the basis for for conduct. which January order dated which suspended District Court’s provided part sentence as follows: original prison suspended upon following conditions ...: sentence is .... [S]aid 12. The defendant shall obtain and/or continue enrollment Pro outpatient in the Sex Offender Treatment participation professional compliance who is with standards gram with by developed the Montana Sex Offender Association. for treatment policies program The shall all and shall defendant follow of his prior approval terminate from such treatment without .... Supervising Officer. ORDERED, ADJUDGED AND DECREED
IT IS FURTHER comply fails of the if the defendant above-condi- issued, will the defendant tions, bench warrant arrest be required appear the said defendant will apprehended, proceedings. Court for further before this added.) (Emphasis to on behalf ofthe State Montana facts subscribed stipulated Dis- County Attorney and filed with the Yellowstone Deputy following undis- provide decision Court as the basis its
trict satisfactory for Fuller’s the requirements about information puted a condition to which was the sex offender completion of his sentence: suspension *12 program they
Patients are not admitted into treatment if honestly or history. are in denial do not disclose their ... offending Employees of South Central Treatment Associates are under a duty any statutory report they possess evidence past about by in present offenses committed individuals their treatment pro gram. ... who enter in program required the treatment are Offenders fully disclose their ... . offense histories. ... E an represents history by
... Exhibit offense prepared pursuant to treatment rules presented group February in on 15,1994, which subject [s] reflect the incidents which are the ofthis case. added.)
(Emphasis objective
No of fair review the record before this Court can lead any by conclusion other than that Fuller was compelled order of participate court to in which required that prior he admit criminal offenses and that those then admissions formed the basis prosecution State’s Fuller in this case. These admis- therefore, sions, violated the federal and state constitutional rights against self-incrimination. position
The dissent takes the that all perfectly above was okay because had Fuller chosen test the District authority Court’s to do what it threatened to (put do him in prison) probably could pursuant have succeeded to our decision in State Imlay (1991), Mont. P.2d 979. The point dissent misses the practical perspective. Supreme Court,
The United States Miranda v. Arizona 384 U.S. L.Ed.2d recognized right that the to remain silent the face of interrogation by custodial law enforce ment was meaningless average officials person unless that was informed of his or person right. her constitutional The U.S. Supreme Court therefore held that before persons suspected of com a crime can be mitting interrogated situation, they in custodial must ofthe consequences be advised remain silent and the offailing to do so. however, dissenting
The opinion, proceeds from the assumption average person be expected that while cannot that understand person he or she has a Fifth Amendment right, that same should be fully rights pursuant of his or her aware to this Court’s decision Imlay, person specifically that instructed though even contrary by agents logic escapes for State. that conclusion me. I, one, Imlay, outcry as the author of recall from the in this Attorney prosecutors General’s Office and State about their totally Their it was surprise complaint decision. unjustified decisions of this Court or unforeseeable *13 disagree, I am at a strongly courts. While I now loss to the federal to people how the result could have been so unforeseeable understand of the of legal years experience educations and in area with law, yet totally and constitutional and some uneducated unin- implications. to be of the case’s suspect supposed formed is aware arguments stranger I there have been made before this suppose However, immediately to none come mind. Court. that penalty report
This a classic case. Fuller was told he either history of sex offenses or he accurately completely prior his would suspended and his program be allowed remain in his treatment not suspended of sentence would revoked. Revocation his sentence be He that had a right was never advised he imprisonment. meant Imlay to this Court’s decision in to refuse to disclose pursuant history prison that could be sent to for of offenses and not prior penalty not a threat of for exercise of doing There could clearer so. right to remain silent. person’s a no for that suggestion concluding that we have basis dissent’s offending history admitted it require because was the quoted portion is incorrect. The of
ment
his treatment
the
stipulated
to which
State
District Court’s order and
facts
absolutely
Furthermore,
case
case
fact
clear.
after
before
make that
offending history
that
we have been told
admission of
this Court
program.
sex offender treatment
participation
a condition
1256,
(1994),
349, 357,
1262;
267 Mont.
883 P.2d
State v. Skroch
See
95, 108,
1284,
(1992),
830 P.2d
1292-93
v.
253 Mont.
State
Cameron
Imlay,
85-86, 813
982;
P.2d at
(Trieweiler, J., dissenting);
249 Mont. at
(1990),
89,
Donnelly
244 Mont.
798 P.2d
95.
State
Supreme
Court’s decision in
U.S.
suggests
The dissent
immunity
prosecution
for
clearly
provide
from
based
Murphy
does
subject
appeal.
this
If that
which are
the statements
on
suggests,
interesting
I find it
the dissent
is as obvious as
conclusion
before the United States
just
opposite position
State took
(1992),
5,
U.S.
113
Imlay
it
State v.
argued
Supreme Court when
of certiorari was
Although
writ
At were raised controversy concerning persists whether live case. this ... Second, [the counsel for petitioner Montana] State stated his probationer enjoy immunity belief that a would from prosecution incriminating during statements made court-ordered therapy. assumption This statement calls into doubt critical underpinning judgment might the Montana Court’s suggest that really disagreement there is no about the Fifth Amendment’s application to this case. appeared solely
... This “concession”
to rest
on the State’s as-
sumption that this Court’s decision in Minnesota v. Murphy, 465
S.Ct.
U.S.
Imlay, 5, 7-8, 113 at 444, 446 (White, J., dissenting). even the
Apparently, Attorney General’s Office agree did not interpretation dissent’s when the opposite interpreta- greater tion was to its advantage.
Finally, I find incredible that the dissent bemoans the fact that someone to admit offenses be given immunity should *14 prosection as a result of those Immunity disclosures. for compelled nothing disclosures is new. It is provided by See 46-15-331, statute. § The nothing MCA. dissent does less suggest than that the State’s ability depends ability to enforce the law on compel its to citizens to incriminating disclose information about sugges- themselves. This completely tion abrogate plain would language of the Fifth II, 25, Amendment and Article Section of the Montana Constitution. successfully Law enforcement has operated years, for over 200 by spite imposed of the constraints the Fifth Amendment. nearly hysterical
The tone of the totally dissent’s concerns is its legal hand, inconsistent with initial conclusion. On the one that argues dissent Fuller should have known pursuant that to our Imlay any decision in he had a to right prior refuse to disclose (in history offending which event no one would about it; have known prosecuted he not it; could have been for and his victims could not treated). hand, have been On other the dissent suggests that if prior history he does disclose that in an effectively effort to be treated prosecute and the State cannot him on the basis his disclosures, justice system, it, as we now will know and the ofthis in their crumble citizens state will be unsafe somehow positions How can possibly the two be reconciled is never homes. explained. the general public in Montana is much better suggest
I would long by in the term effective treatment sex and their off offenders victims, further, complete open by which disclosure would than could suggestion simply dissent’s first which that Fuller have in the and avoided revocation of program suspended remained his by invoking right Imlay his his pursuant conceal sentence offending history. may reading conclude that while dissent make sensational
I nonlawyers, makes point it little sense from a constitutional for followed, ability effectively if view, impair would State’s offenders and their victims. treat sex joins foregoing concurring opinion.
JUSTICE GRAY dissenting. NELSON JUSTICE summary, the Court’s decision in this case. In I would
I dissent from interpretation Imlay (1991), ofState 249 Mont. that under our hold 979, improvidently granted, (1992), cert. as 82, 813 P.2d dismissed if 121 L.Ed.2d even Fuller had been the sex treat from or refused treatment under offender dismissed his to not right because invoked Fifth Amendment ment uncharged offenses, other his himself disclosure of sex incriminate Accordingly, have been revoked. Fuller was under could not probation exercising or implicit penalty threat of sanction explicit no not, fact, right to remain silent. He did face Fifth Amendment have situation or “Hobson’s choice” would penalty” “classic self-executing. There against self-incrimination rendered actually right, failing invoke that and in fore, he was required so, protection against Fifth Amendment self-incrimi he waived his do to criminal for the other subjected prosecution himself nation voluntarily which he disclosed. crimes against compelled self-incrimi protection Fifth Amendment’s testify against himself only person not refuse to permits
nation him defendant, privileges but also in which he is a criminal trial put proceeding, him in other questions to answer official *15 informal, in might or where the answers criminal, formal civil criminal v. proceedings. Minnesota him in future criminate 409, 1136, 1141, 418 420, 426, 79 L.Ed.2d (1984), 104 S.Ct. 465 U.S. 316, 322, (1973), 70, 77, 94 414 Turley U.S. S.Ct. (quoting Lefkowitz
173 $23,691.00 274, 281). See also Currency 38 L.Ed.2d Seizure in U.S. of 152, (1995), 474, 148, 273 Mont. 905 P.2d where we cited with rule. approval this same
However, except
discussed,
in certain circumstances hereafter
self-incrimination is
privilege against
“self-executing.” Rather,
words,
affirmatively
be
claimed. In other
a general obligation
must
questions truthfully
and answer
does not in
appear
itself convert
voluntary
otherwise
person’s
compelled
statements
into
ones. A
person’s
questions put
compelled
answers to
to him are not
within
the Fifth
meaning
required
Amendment unless the witness is
his valid claim of privilege. Murphy,
427,
to answer over
465 U.S. at
person
protection
104
at 1142. If the
desires the
privilege
S.Ct.
it or
he must claim
his answers will not be deemed
for Fifth
purposes. Murphy,
427,
Moreover,
person
“if a
compulsion
testify
under
makes disclo
claiming
sures instead of
privilege,
government has not
himself,”
‘compelled’ him
Murphy,
427, 104
incriminate
465 U.S. at
at
(quoting
(1976),
S.Ct.
1142
Garner v. United States
424
648,
U.S.
377)
96
654,
370,
S.Ct.
47 L.Ed.2d
and those disclosures
voluntary
may
are deemed
used against
him in a subsequent
prosecution. Murphy,
440, 104
465 U.S. at
S.Ct. at 1149. This
government
is true even where the
should reasonably expect questions to elicit incriminating
(Murphy,
evidence
465
429,
U.S. at
1143),
104 S.Ct. at
where the nature
the questions
asked are
465
incriminating (Murphy,
U.S. at
S.Ct. at 1142-43 (quoting
Monia,
433,
317
at
63
at
U.S.
S.Ct.
413 and
United
citing
States v.
Mandujano (1976),
564, 574-75,
1768,
425 U.S.
1775-76,
48
221))
212,
L.Ed.2d
or where the
person
reasonably
alone
aware of
tendency
incriminating
questions
(Murphy,
428,
465
at
U.S.
(Brennan, J.,
104
at 1142-43
concurring)
S.Ct.
(quoting Roberts v.
552,
n*,
United States
445 U.S.
n*,
n*)).
being
63 L.Ed.2d
If the person
questioned chooses to
answer,
voluntary
his choice is considered to be
because he was free
privileged
to claim the
because he was
privilege,
to decline to answer
penalty
and because he would suffer no
if he did so.
465
posed
exceptions
one of the
to the above-stated rule that
Fifth
is within
against
protection
Amendment’s
self-incrimination is
self-execut-
but, rather,
affirmatively
ing,
must be
asserted. The Court in
exception,
the “classic-penalty”
this
known as
situation or
described
443,
choice,”
465 U.S.
(Murphy,
“Hobson’s
at
where the assertion so silent, competí] incriminating a free choice remain and ... ... 661, 424 at testimony.” Garner U.S. at 96 S.Ct. 1186.
[*] [*] [*] [*] cases, only “penalty” In each of the so-called the State not testify, compelled appear sought an and but also individual forgo privilege threatening him to the Fifth Amendment induce “capable forcing other sanctions the self-in- impose economic or Cunningham crimination which the Amendment forbids. Leftowitz 805, 2135, (1977), 801, 2132, 1, U.S. 97 53 L.Ed.2d 7. 431 S.Ct.
[*] * * * may not impose cases make clear that “a State substantial These a witness elects to exercise his Fifth Amendment penalties because testimony give incriminating against himself.” right not 805, Lefkowitz, [97 2135-36]. 431 U.S. at S.Ct. at
[*] * * *
State,
expressly
by implication,
or
asserts that
either
[I]f
probation,
lead to revocation of
privilege
invocation of
would
penalty situation,
failure
created
classic
would have
an-
excused,
probationer’s
and the
privilege
would be
assert
in a criminal
and inadmissible
would be deemed
swers
prosecution.
434-35,
Murphy, 465 situation or Hobson’s choice—i.e. penalty with a classic When faced suffering between self-incrimination forced to choose being Fifth Amend- choosing to remain silent —the penalty sanction “self-executing.” It does self-incrimination is against ment See, Cunningham, affirmatively asserted or claimed. not have to 79-84, 94 2135-36; U.S. at Turley, at 414 97 U.S. S.Ct. at (1968), 392 323-26; v. Sanitation Comm’r Sanitation Men S.Ct. 280, 283-84, 88 1917, 1919, 20 U.S. 1089, 1092; L.Ed.2d Gardner 273, 278-79, v. Broderick 392 U.S. 1913, 1916, 88 S.Ct. 1082, 1087; Garrity Jersey (1967), L.Ed.2d v. New 498-99, 17 L.Ed.2d 566. claims, and the majority agrees, that he just was faced with penalty
such a classic situation or Hobson’s choice. He argues that he required honestly disclose his offending history in order to complete his sex offender program was, turn, which a requirement probation. of his He contends that he was faced with the choice of truthfully disclosing his uncharged other sex crimes and facing criminal or not prosecution disclosing truthfully being subject to termination from the sex offender probation. revocation of *17 argument fails, however,
Fuller’s
because he and the majority
ignore his third alternative. Fuller could have asserted his Fifth
Amendment
right
to not incriminate himself. He could have simply
refused
say anything
about
uncharged
his
sex offenses.
option
This
was available to Fuller
Imlay,
because under
had he chosen to remain
silent,
the State could not have imposed any sanction whatsoever
against him for his assertion of his Fifth Amendment
right. It could
not have revoked his probation even if
participation
his
in the sex
offender
by
was terminated
reason of his refusal
to disclose
uncharged
his
sex
Imlay,
offenses.
The ignores the fact that Fuller’s position is premised in large part on his erroneous and reading unreasonable of our decision in Imlay. While in order to reach the result sought, the majority baldly Imlay declares that point beside the irrelevant, and is it is precisely because of this Imlay Court’s decision in that against self-incrimination was not self-executing for Fifth Amend- ment purposes absolutely no sanction which the State —there impose could on Fuller if he chose to exercise his right to remain Moreover, silent. Fuller did Imlay not consider beside the point or fact, irrelevant. In on brief and argument, at oral premised Fuller his position interpretation on his case, of our decision in that and he spent arguing Imlay considerable effort did prohibit not the State from revoking probation his if he exercised his Fifth Amendment rights and refused to disclose his offending history. As Fuller stated on brief:
Two central questions control the decision in this case. Will the court determine that Minnesota v. Murphy [465 420] 104 S. (1984) 1136 [79 409] Ct. L.Ed.2d controls? Is this court willing to P.2d 979 Imlay [249 82] Mont. holding its in State expand added). (1991)? (Emphasis Imlay argues that our
However, narrowly Fuller reads while the trial court from precluded would not have holding in that case Imlay prohibits is revocation of a because “all revoking probation his guilt charged to admit to the because of refusal suspended sentence clearly opinion our stands for. We stated crime,” that is not what Imlay: case, the defendant would have to guilt in this
[B]y admitting Amendment, only the Fifth right guaranteed abandon convicted, also to the crime which he has been but the crime as to for defense at trial and he had testified in is own [since perjury charged.] the offense with which was committing denied added). State v. Henrich (emphasis See also P.2d at 985 Imlay, 813 402, 411 “Imlay prevents 258, 273, 886 (stating P.2d (1994), 268 Mont. refusing a defendant for incarcerating sentencing court that is a condition treatment complete crime in order confess sentence”). correctly interpreted Imlay has State suspended aof because of the defendant’s probation the revocation precluding as but to other crime only charged crime to not to admit refusal mandating Imlay as correctly interpreted The District Court as well. way. Imlay in the same interpret result. We acknowledged States Moreover, even the United constitutionally carry out cannot clearly, government that, of the Fifth legitimate exercise probation to revoke threat at 1148. U.S. at privilege. Murphy, Imlay, is unrea- misreading position in his stands alone or state law. It is in either federal support no and finds sonable *18 Fifth Amend- Imlay in that Fuller’s decision of our because precisely self-executing, and was not self-incrimination right against ment here, That decision, wrong. is majority Imlay that the of is because under- is, accordingly, Imlay disregard majority chooses not, however, law does simply ignore Its choice standable. analysis correct. legal its render from Fuller prevented have nothing that would short,
In
there
his
to disclose
refusing
and
right
Fifth Amendment
his
exercising
the sex offender
terminated
Even if he was
history.
offending
law,
federal
of state and
not, as matter
could
probation
his
program,
a
doubt, faced with
was, without
While Fuller
revoked.
been
have
offending
his sex
to disclose
to whether
choice as
difficult, technical
not, in fact
silent, he was
to remain
right
on his
to stand
history or
a
law,
with classic
situation nor with Hobson’s
penalty
or in
faced
erroneously
majority
choice
has
concluded.
as
Fuller,
sworn,
truth,
In
who was not
who was not in
custodial
subpoena
was not under a
when he made
interrogation
who
his
disclosures,
intimidating
than
pressure
was faced
even less
is a
upon being
testify
to tell the truth
person
required
who
jury
court,
grand
proceeding
or in some other
where he
before
pain
under
is sworn and is under
Even in
subpoena,
contempt.
those
circumstances the law is clear
the witness must affirm-
and,
atively
privilege,
case,
assert his Fifth Amendment
in the usual
must
on the basis of his own
of his
knowledge
rights,
do so
without
(which
any
warning
required,
the benefit
Miranda
is not
is no
any event, since there
custodial
interrogation)
without the
benefit of counsel. If the witness fails to claim his Fifth Amendment
silent,
right to remain
his statements can
used against
be
him in a
subsequent
prosecution.
See
465 U.S.
430-31,
Here, represented by Fuller was at all times counsel from whom he sought could have advice as to the exercise of Fifth Amendment as to rights consequences doing of his Knowing so. that he would offending history have disclose his sex part as of his sex treatment, offender could sought immunity he have from prosecution during plea negotiations. He availed himself of neither option.
Moreover, the actual record in this case does not support position. Neither the portion stipulated upon by facts relied any majority part imply, nor other state concede, thereof or much less told, that Fuller was ever or threatened led to believe that the exercise right his Fifth Amendment his being would result in sanctioned. Rather, found, concedes, as District and as Fuller he was never led to told or believe that the exercise of his Fifth Amendment privilege would result revocation of his probation, and there is no evidence in the record that Fuller admitted to his prior crimes because he feared revocation if chose to remain silent. There is no evidence from claiming was deterred his Fifth Amend- ment privilege nothing the threat of revocation. There is in any subjective stipulated part facts which describes belief on Fuller’s exercising that he be sanctioned for Fifth would threat, explicit to remain or that he was under real silent implicit, probation that his would revoked. contrary, only are self-serving,
To the we left with Fuller’s after- justifications privilege against the-fact for his failure to assert his *19 self-incrimination Imlay and his unreasonable of interpretation —an only language which flies not in the face of the clear interpretation of majority, in the which opinion Murphy that but face of he and the cite authority position. regard, only as for their In this the reason Fuller that he upon argues Murphy, Imlay, and misreads relies errone- maintaining that decision in that ously permit our case would had probation revocation of his if he exercised his Fifth Amendment agrees to remain silent. No one with that contention. privilege majority Murphy, proposition cites does so on the While that factually “far Murphy Nothing case and are different.” could be from the truth. The facts are almost identical. Murphy’s further statements, Fuller’s, incriminating like were first made to his sex counselor, and, here, treatment as it was program offender reported previously proba- who unknown crimes to the counselor officer, police. to the 465 U.S. reported Murphy, tion who turn at at 1140. 423, 104 S.Ct. majority Murphy’s states that to tell the truth obligation
While obligation, “clearly precisely and Fuller’s and only general was was truly a out,” Murphy set this is distinction without difference. As the opinion states: required, other Murphy’s probation among things, terms of
[t]he in treatment sexual offenders participate that he at directed, House, report to his officer as Alpha probation “in Failure probation truthful with the officer all matters.” informed, conditions, Murphy these could result comply with sentencing probation court for a revocation in his return hearing. 1139. 422, 104 Accordingly, 465 U.S. at S.Ct. at whether the
Murphy, it is clear general specific, to be truthful was that obligation precisely pressure faced with same sort of Murphy was (revocation lying probation potential sanction for importance as was Of more is the fact that in Fuller. imprisonment) any proscription nor in the instant case was there neither questions to answer particular freedom to decline the defendant’s on his probation waiving was conditional suggestion no either’s respect further with Fifth Amendment See, 1147-48. U.S. at 104 S.Ct. at Murphy, 465 prosecution. already Fuller —a who was Moreover, any implication person system justice appreciate with the criminal acquainted well —did As the remain silent ludicrous. or understand Court noted: point history virtually every this in our schoolboy
[a]t is familiar if not the concept, language, [Fifth Amendment]. 465 U.S. at (citing Michigan v. Tucker *20 190). 2357, 2361, 417 U.S. S.Ct. 41 L.Ed.2d Contrary majority’s opinion, Murphy and the instant case fours, should, are on all and the same result accordingly, Yet, obtain. incredibly, this Court relies on to come precisely on the opposite result same essential facts. Murphy,
As in not faced with a classic penalty situation or a Hobson’s choice. His right to be free from self-incrimination was self-executing, not incriminating his disclosures of his uncharged sex crimes were not compelled within the meaning of the result, Fifth Amendment. As a he could prevent his volunteered being against disclosures from used him in the subsequent criminal prosecutions at issue Murphy, here. See 437-40, 104 465 U.S. at S.Ct. at majority’s 1147-49. The conclusion to the contrary is wrong. foregoing aside, it also deserves mention that the ramifica- today’s opinion tions of go beyond the mere reversal of Fuller’s conviction and premature his release from a much-deserved, lengthy Rather, term of imprisonment. the greater mischief in majority’s decision is that in failing to apply this case the well-established rules principles that a correct Fifth Amendment analysis re- quires, we have now effectively established rule of absolute immu- nity (and from prosecution for criminal defendants who confess who confess) now, according to opinion, our must to otherwise unknown during Now, crimes sex offender treatment. when the defendant tells all past his crimes to the therapist, he complete obtains absolution and a plenary indulgence; he’s home free. There will likely henceforth be more sins forgiven in sex offender treatment than in the confessional.
In Murphy,
defendant,
as part of sex
treatment,
offender
previously
disclosed a
unknown homicide perpetrated
as part of a
previously
rape.
Fuller,
unknown
Just like
he sought
suppress
statements
in connection with his subsequent prosecution for the
undisclosed crimes on the basis that his confession was obtained in
violation of his Fifth
right against
self-incrimination.
Murphy,
422-25,
CHIEF dissent. foregoing in the