State v. Christopher P.

801 P.2d 662, 111 N.M. 80
CourtNew Mexico Court of Appeals
DecidedSeptember 17, 1990
Docket11178
StatusPublished
Cited by1 cases

This text of 801 P.2d 662 (State v. Christopher P.) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Christopher P., 801 P.2d 662, 111 N.M. 80 (N.M. Ct. App. 1990).

Opinion

OPINION

APODACA, Judge.

The child appeals the children’s court’s orders transferring the proceedings filed against him to district court and denying his motion to suppress certain statements made to police after his arrest. The children’s court ordered the transfer after concluding that the child was not “amenable to treatment or rehabilitation as a child through available facilities” as required by NMSA 1978, Section 32-l-30(A)(4) (Repl. Pamp.1986).

The two issues raised on appeal involve implications of the fifth amendment privilege against self-incrimination: (1) whether the child’s statements concerning the subject incident, made during a court-ordered psychological examination, can be used as a basis for the psychologist’s opinion testimony on the amenability issue; and (2) whether the children’s court’s holding that the child voluntarily, knowingly, and intelligently waived his constitutional rights before making the statements was supported by substantial evidence. Being unpersuaded by the child’s arguments, we affirm on both issues. A third issue raised in the docketing statement but not briefed is deemed abandoned. State v. Vogenthaler, 89 N.M. 150, 548 P.2d 112 (Ct.App.1976).

On February 23, 1988, a petition was filed in the children’s court charging the child and a co-respondent, another child, with the delinquent acts of two counts of first degree murder (willful and deliberate with firearm enhancement), and conspiracy to commit murder, of the co-respondent’s parents. The assistant children’s court attorney petitioned to have the matter transferred to district court and that the child be directed to undergo a psychological examination on the question of whether he was amenable to treatment or rehabilitation through available facilities under Section 32-l-30(A)(4).

The transfer hearing was bifurcated. The children’s court first heard evidence on the question of whether there were reasonable grounds to believe the child committed the alleged delinquent acts as required under Section 32-l-30(A)(5), before ruling on the state’s motion for the psychological evaluation. After hearing the psychologist’s testimony on amenability at a separate hearing, the children's court entered an order transferring the proceedings to district court.

ISSUE I: PSYCHOLOGICAL EXAMINATION

The child does not contest the children’s court’s authority to require the psychological evaluation. See State v. Doe, 97 N.M. 263, 639 P.2d 72 (Ct.App.1981), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982) (97 Doe I). Instead, he contends compelled self-incriminating answers given by him to the psychologist’s questions were improperly used against him. In so arguing, he points to two separate alleged violations of his fifth amendment privilege: (1) he was compelled to answer the psychologist’s questions concerning the incident giving rise to the petition; and (2) because the psychologist’s testimony was the only evidence presented on the amenability issue, his compelled self-incriminating answers were used improperly against him in a criminal proceeding. U.S. Const, amend. Y.

In making its determination concerning the psychological evaluation, the children’s court concluded that the evaluation would be of significantly less assistance in determining amenability if the evaluator was not able to communicate with the child concerning the incident. The child maintains this conclusion by the children’s court impermissibly compelled him to make self-incriminating statements to the psychologist. However, we believe the children’s court was legitimately concerned with the level of expert assistance regarding amenability. See State v. Doe, 93 N.M. 481, 601 P.2d 451 (Ct.App.1979) (amenability is an evidentiary question requiring careful and cautious consideration) (93 Doe).

The child argues that, because the contemplated transfer would expose him to more severe punishment and because his amenability to treatment and rehabilitation was the only remaining issue, the hearing at which such amenability was considered should be deemed a “penalty phase” of the criminal proceedings. See Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) (fifth amendment privilege applies in penalty phase of criminal proceedings). The child does not claim that transfer to district court was based on a determination of guilt or directly resulted in punishment. In State v. Doe, 103 N.M. 233, 704 P.2d 1109 (Ct.App.1985) {103Doe), this court observed that, although the consequences of a transfer are important to the child, the transfer process determines only where he will be tried.

Alternatively, the child contends it does not matter if we do not agree with his characterization of the transfer process as a “penalty phase.” In support of this contention, he relies on In re Gault, 387 U.S. 1, 49, 87 S.Ct. 1428, 1455, 18 L.Ed.2d 527 (1967), which stated that “the availability of the privilege does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure which it invites.” However, in this case, the children’s court, in its order permitting the evaluation, expressly protected the child against potential exposure by reason of his statements to the psychologist. Specifically, the order allowing the psychologist’s evaluation clearly stated that any information gleaned by the evaluator about the incident could be used only at the amenability portion of the transfer hearings. Thus, the order protected the child from his statements being used in any future criminal proceeding.

The fifth amendment

privileges a defendant not to answer questions put to him in any proceeding, civil or criminal, formal or informal, where the answers might tend to incriminate him in future criminal proceedings. Defendant [has] the right to refuse to answer until he [is] protected against the use of his compelled answers, and evidence derived [from those answers], in any subsequent criminal case in which he might be a defendant.

Rainbo Baking Co. of Albuquerque, Inc. v. Apodaca, 88 N.M. 501, 504, 542 P.2d 1191, 1194 (Ct.App.1975) (emphasis added). In 97 Doe I, we declined to hold “that expert testimony resulting from an involuntary examination ordered by the court which is acceptable on a transfer motion would necessarily withstand a Fifth Amendment attack if offered at trial.” Id., 97 N.M. at 266, 639 P.2d at 75. Thus, because of the express language contained in the children’s court order protecting the child from the use of the statements in any future criminal proceedings, the potential for exposure prohibited by Gault is nonexistent in this appeal.

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Related

Christopher P. v. State
816 P.2d 485 (New Mexico Supreme Court, 1991)

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Bluebook (online)
801 P.2d 662, 111 N.M. 80, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-christopher-p-nmctapp-1990.