Appeal from Superior Court of King County. Docket No: 94-1-04856-9. Date filed: 03/23/95. Judge signing: Hon. Richard M. Ishikawa.
Authored by Faye C. Kennedy. Concurring: C. Kenneth Grosse, Ann L. Ellington.
The opinion of the court was delivered by: Kennedy
KENNEDY, A.C.J. - Richard Gholston appeals his convictions of two counts of rape in the first degree and one count each of robbery and kidnapping, contending that the trial court erred by failing to suppress his statement to police, in that Gholston requested counsel and the police nevertheless continued to question him. Gholston also challenges four of the conditions of community placement imposed by the trial court, contending that these conditions exceed the court's authority under the Sentencing Reform Act (SRA) and that they are unconstitutional because they are vague, overly broad or both. Because Gholston's statement was not introduced during the State's case-in-chief, but was used instead to impeach Gholston with the inconsistencies between his testimony at trial and his custodial statement to police, and because Gholston himself testified at the suppression hearing that he gave the statement voluntarily, we affirm the conviction. Because a defendant's constitutional rights during community placement are subject to the infringements authorized by the SRA, and because each of the challenged conditions is authorized by the SRA, we affirm the conditions of community placement, subject, however, to limitations as described in this opinion.
Gholston was arrested by Tacoma police, advised of his Miranda. *fn1 rights and placed in the back seat of a patrol car to await the arrival of Seattle Police Detective Christine Lyon. Gholston, who was not told by Tacoma police that he was being arrested for the charges that eventually resulted in the instant convictions, mistakenly assumed that he had been arrested for an unrelated domestic matter and requested an attorney. When Detective Lyon arrived, she was told by Tacoma police that Gholston had requested in attorney in relation to a domestic matter. She got into the patrol car with Gholston, who also told her that he had requested an attorney with respect to the domestic matter. Detective Lyon then informed Gholston what he had actually been arrested for, advised him of his Miranda rights, and asked him if he wished to speak about the crimes for which he had been arrested. According to Detective Lyon, Gholston replied that he did wish to speak, and gave a tape-recorded statement. According to Gholston, he repeated his request for an attorney twice more on the way to the Seattle Police Department, and once again when he arrived at the station, but Detective Lyon did not respond to his requests. Gholston testified at the ensuing suppression hearing that he nevertheless voluntarily gave the recorded statement. The trial court denied the defense motion to suppress the custodial statement.
At trial, the State did not offer the statement during its case-in-chief. After Gholston testified in a manner that was inconsistent with the recorded statement, the State was allowed to impeach Gholston with the inconsistencies between his testimony and the custodial statement. Gholston contends that the trial court's refusal to suppress his custodial statement violated his Fifth Amendment privilege against self-incrimination because an accused person in custody who has "expressed his desire to deal with the police only through counsel is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981). In McNeil v. Wisconsin, 501 U.S. 171, 177, 111 S. Ct. 2204, 115 L. Ed. 2d 158 (1991), the high court held that once a suspect invokes the Miranda right to counsel with respect to one offense, he may not be approached regarding any other offense unless counsel is present, and if police do subsequently initiate an encounter in the absence of counsel, "the suspect's statements are presumed involuntary and therefore inadmissible as substantive evidence at trial, even where the suspect executes a waiver and his statements would be considered voluntary under traditional standards." McNeil, 501 U.S. at 177 (emphasis ours). The purpose of this prophylactic rule is to "prevent police from badgering a defendant into waiving his previously asserted Miranda rights." Michigan v. Harvey, 494 U.S. 344, 350, 110 S. Ct. 1176, 108 L. Ed. 2d 293 (1990).
In his opening brief, Gholston fails to point out that his statement was not offered as substantive evidence during the State's case-in-chief, but instead was used for impeachment purposes after Gholston testified at trial inconsistently with his recorded statement. In his reply brief for this appeal, Gholston argues, without citation to authority, that this makes no difference in that "the use of the statement is irrelevant when the statement was taken in violation of the declarant's constitutional rights." Appellant's Reply Brief at 2. Gholston is mistaken in concluding that his constitutional rights were violated. He testified that he gave the statement voluntarily. Thus, his constitutional right not to be compelled to incriminate himself was not violated. At most, the prophylactic rule designed to protect that right arguably may have been violated an issue that we need not decide in that the statement was used for impeachment and not as substantive evidence.
Statements taken in violation of only the prophylactic Miranda rule, i.e., the rule imposed upon the states that is designed to protect the right against self-incrimination, may not be used in the prosecution's case-in-chief but are admissible to impeach conflicting testimony by the defendant. Harris v. New York, 401 U.S. 222, 225, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971). The same law applies whether a violation of the prophylactic rule designed to protect the Fifth Amendment privilege against self-incrimination or the Sixth Amendment right to counsel is involved. Harvey, 494 U.S. at 351. "In neither case should 'the shield provided by [the prophylactic rule] be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.'" Harvey, 494 U.S. at 353 (quoting Harris, 401 U.S. at 226). Gholston testified at the suppression hearing that he voluntarily decided to waive his right to remain silent and to give the statement. Thus, to the extent that Detective Lyon may have violated the prophylactic rules designed to preserve Gholston's Fifth and Sixth Amendment rights by questioning him after he requested counsel with respect to the unrelated domestic matter, Gholston's statement nevertheless was admissible for impeachment purposes, in that it was voluntarily given.
We have never prevented use by the prosecution of relevant voluntary statements by a defendant, particularly when the violations alleged by a defendant relate only to procedural safeguards that are not themselves rights protected by the Constitution, but are instead measures designed to ensure that constitutional rights are protected.
In such cases, we have decided that the search for truth in a criminal case outweighs the speculative possibility that exclusion of evidence might deter future violations of rules not compelled directly by the Constitution in the first place. Harvey, 494 U.S. at 351-52 (internal quotation marks and citations omitted). Accord: State v. Greve, 67 Wash. App. 166, 834 P.2d 656 (1992), review denied, 121 Wash. 2d 1005, 848 P.2d 1263 (1993); State v. Thompson, 73 Wash. App. 122, 867 P.2d 691 (1994); Riddell v. Rhay, 79 Wash. 2d 248, 484 P.2d 907, cert. denied 404 U.S. 974, 30 L. Ed. 2d 291, 92 S. Ct. 336 (1971); State v. Hubbard, 103 Wash. 2d 570, 693 P.2d 718 (1985).
We conclude that it is unnecessary to determine whether the trial court erred in failing to suppress the statement, in that any error there may have been was cured when the State elected not to offer the statement as substantive evidence during its case-in-chief but to offer it instead to impeach Gholston's trial testimony.
The sentencing Judge imposed various conditions of community placement, four of which Gholston challenges on appeal: the condition requiring him to enter into and make reasonable progress in mental health and/or sexual deviancy therapy; the condition requiring him to have no contact with any minor children without the approval of his community corrections officer and mental health treatment or sexual deviancy counselor; the requirement that he submit to polygraph and plethysmograph testing upon the request of his therapist or community corrections officer, at his own expense; and the requirement that he not possess or peruse pornographic materials as defined by his sexual deviancy treatment specialist and/or community corrections officer without prior approval of those individuals or attend x-rated movies, peep shows or adult book stores without the approval of those individuals.
Gholston argues first that the sentencing court had no authority under the SRA to require him to enter into mental health or sexual deviancy treatment because rehabilitation under the SRA is strictly voluntary and, therefore, the court lacked authority to require affirmative rehabilitative conduct of him. We disagree. RCW 9.94A.120 (9)(c)(iii) plainly provides that the court may order sex offenders such as Gholston to "participate in crime-related treatment or counseling services." *fn2 See State v. Eaton, 82 Wash. App. 723, 733, 919 P.2d 116 (1996). Gholston also contends that this subsection only allows the court to require the offender to participate in the treatment, and that the court has no authority to require that the offender make reasonable progress in the treatment. The Eaton court rejected this same argument, as do we, and for the same reasons. See Eaton, 82 Wash. App. at 734-35 (requirement that offender make reasonable progress in the treatment program is a fair reading of the statute and does not exceed trial court's authority to require treatment in the first place). Moreover, community placement serves the punitive purposes of deterrence and protection of the public. See State v. Ross, 129 Wash. 2d 279, 286, 916 P.2d 405 (1996). It seems reasonable that the Legislature believes that sex offenders who makes reasonable progress in crime-related treatment are less likely to pose a future danger to the public ...