M.R.S. v. State

867 P.2d 836, 1994 Alas. App. LEXIS 6
CourtCourt of Appeals of Alaska
DecidedFebruary 4, 1994
DocketNo. A-4624
StatusPublished
Cited by3 cases

This text of 867 P.2d 836 (M.R.S. v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Alaska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
M.R.S. v. State, 867 P.2d 836, 1994 Alas. App. LEXIS 6 (Ala. Ct. App. 1994).

Opinion

OPINION

BRYNER, Chief Judge.

M.R.S., a minor, appeals a superior court order waiving children’s court jurisdiction [838]*838and allowing the state to charge him as an adult with first-degree robbery and attempted first-degree murder. On appeal, M.R.S. contends that the superior court erred during the waiver hearing by allowing expert testimony concerning a psychological evaluation of M.R.S. that had been submitted pursuant to court order in a previous delinquency proceeding involving M.R.S. We affirm.

FACTS

On January 5, 1992, an Anchorage taxicab driver was robbed; the robber fled after stabbing the driver eight times and cutting his throat. Several days later the state filed a delinquency petition in connection with the incident, charging M.R.S. — then only three months from his eighteenth birthday — with conduct that would have amounted to first-degree robbery and attempted first-degree murder if committed by an adult. The state also petitioned the superior court to waive children’s court jurisdiction over M.R.S. pursuant to AS 47.10.060.1

At a hearing on the issue of waiver, M.R.S. conceded that the state had established probable cause to believe that he had committed the alleged offenses, leaving in dispute only the issue whether M.R.S. was amenable to treatment as a minor — that is, whether he was capable of being rehabilitated before reaching his twentieth birthday. AS 47.10.-060(d). On this issue, the state, over M.R.S.’s objection, called two expert witnesses, Dr. Larry Bissey and Dr. Irvin Rothrock.

Bissey, a psychologist, had prepared a court-ordered psychological evaluation of M.R.S. two years previously, in 1990, to assist in disposition of a delinquency proceeding in which M.R.S. had admitted participating in an armed robbery. Based largely on his 1990 evaluation, Bissey testified at the current waiver hearing that M.R.S. could not successfully be treated by his twentieth birthday. Rothrock, a forensic psychiatrist, had never examined M.R.S. but had reviewed Bissey’s 1990 evaluation. Based on this review, Rothrock confirmed Bissey’s opinion that M.R.S. was not amenable to treatment as a minor.

After considering the evidence, the superi- or court found probable cause to support the accusations against M.R.S. and concluded that M.R.S. was not amenable to treatment as a minor. Accordingly, the court ordered children’s court jurisdiction waived and authorized the state to proceed against M.R.S. as an adult.

M.R.S. appeals the waiver order, challenging the admissibility of evidence derived from his 1990 court-ordered psychological evaluation. M.R.S. argues, as he did below, that this evidence violated two privileges: his privilege against self-incrimination and the psychotherapist-patient privilege. We consider each privilege in turn.

PRIVILEGE AGAINST SELF-INCRIMINATION

1. Compulsion

M.R.S. contends that all statements he made during the 1990 psychological evaluation, and any information derived therefrom, were sheltered from disclosure by the constitutional privilege against self-incrimination.2 The constitutional privilege, however, [839]*839attaches only to statements obtained by government compulsion. Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973). It may be, as M.R.S. contends, that he would invoke his constitutional privilege if he were now asked to submit to a psychological evaluation or to repeat his earlier statements. But if the government did not originally compel M.R.S.’s statements, the constitution does not bar the state from relying on them now, even though the statements may have acquired new or different significance.

In the present case, the record fails to disclose the requisite element of compulsion. The record establishes that, when the court ordered a psychological evaluation of M.R.S. in 1990 for use in disposition of the delinquency petition then pending against him, M.R.S. did not object; to the contrary, he actively joined the state in requesting that it be ordered. Given that the 1990 evaluation was conducted at M.R.S.’s behest and with his blessing, his statements during the evaluation were seemingly voluntary, rather than compelled.

Taken at face value, the record permits but one conclusion: that M.R.S.’s participation in the psychological evaluation was voluntary rather than compelled, and that, for this reason, the constitutional privilege did not attach to M.R.S.’s statements, or to the psychological evaluation that resulted therefrom. Garner v. United States, 424 U.S. 648, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976).

2. Self-incrimination

M.R.S. nevertheless contends that the record should not be taken at face value and that, despite the appearance of voluntariness, compulsion should be found. M.R.S. maintains that his failure to assert the constitutional privilege in 1990 — and his willing participation in the psychological evaluation— should not be deemed a waiver of his right to invoke the privilege in later proceedings.

In support of this argument, M.R.S. advances a two-pronged theory. First, he suggests that he had no occasion to assert the privilege in the prior delinquency proceeding, since the' disposition hearing for which his 1990 evaluation was ordered was the type of non-adversary proceeding — akin to a competency hearing — in which the constitutional privilege would not have applied. See R.H. v. State, 777 P.2d 204, 210 (Alaska App.1989). Alternatively, M.R.S. suggests that, when he participated in the 1990 evaluation, he reasonably expected that the results would be disclosed only in connection with the delinquency action then pending against him. M.R.S. reasons that any waiver of the constitutional privilege by him in 1990 did not extend to future proceedings.

Even if we accepted these arguments, however, they would be unavailing. M.R.S.’s alternative theories of compulsion rest on the assumption that, because his 1990 statements were made under circumstances excusing his failure to object on the ground of self-incrimination, his right to object on that ground was preserved and could be resurrected at some later point, regardless of the extent to which the 1990 statements were incriminatory when he originally made them. This assumption, a necessary component of M.R.S.’s claim of compulsion, runs afoul of a separate prerequisite of the constitutional privilege: the requirement of self-incrimination.

To be protected under the constitutional privilege, a statement must tend to incriminate its maker: “Without the threat of conviction or punishment, an individual may no[t] ... invoke the protection of the privilege against self-incrimination.” State v. Gonzalez, 853 P.2d 526, 529 n. 1 (Alaska 1993) (citation omitted). The pertinent question in determining the incriminatory potential of a compelled statement is whether it exposes the witness to a real or substantial hazard of incrimination. Id. at 529-30. The resolution of this question necessarily hinges on the circumstances-existing when the statement is compelled, for “a witness may not refuse to testify where there is no real or substantial hazard of incriminationf.]” E.L.L. v. State,

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Related

M.R.S. v. State
897 P.2d 63 (Alaska Supreme Court, 1995)
MRS v. State
867 P.2d 836 (Court of Appeals of Alaska, 1994)

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Bluebook (online)
867 P.2d 836, 1994 Alas. App. LEXIS 6, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mrs-v-state-alaskactapp-1994.