Appeal from the District Court of the Sixth Judicial District, State of Idaho, Bannock County. Hon. Ronald E. Bush, District Judge.
The opinion of the court was delivered by: Lansing, Chief Judge
Sentence for attempted strangulation, vacated, and case remanded for resentencing.
On appeal from his judgment of conviction for attempted strangulation, Michael L. Jockumsen argues that the district court violated his Fifth Amendment privilege against self-incrimination and Idaho Code § 18-215 by considering for sentencing purposes information contained in reports of psychiatrists who performed competency evaluations of Jockumsen. Jockumsen also asserts that the district court erred when it failed to sua sponte order a separate mental health evaluation for sentencing purposes pursuant to I.C. § 19-2522. We vacate Jockumsen's sentence and remand for resentencing.
Jockumsen was charged with second degree kidnapping, I.C. §§ 18-4501, 18-4503, and attempted strangulation, I.C. § 18-923(1), for holding his girlfriend captive and attempting to strangle her. Upon defense counsel's request, the magistrate court ordered that Jockumsen be evaluated for mental competence to stand trial, and he was initially found to be incompetent. However, after subsequent evaluations, the district court determined that he was competent and accepted Jockumsen's guilty plea to attempted strangulation. The kidnapping charge was dismissed. No psychological evaluation was requested or ordered for sentencing purposes, but the reports from Jockumsen's competency evaluators were attached to the presentence investigation report (PSI). Information from these competency evaluations was referenced by the presentence investigator and reviewed by the district court for sentencing. The court expressed a need for additional information on Jockumsen's mental health and said that it intended to retain jurisdiction for 180 days and request that the Department of Correction prepare a mental health evaluation during the retained jurisdiction period. Jockumsen did not object to this proposal. Jockumsen was sentenced to a unified eight-year term of incarceration with three years fixed, with the court retaining jurisdiction for 180 days pursuant to I.C. § 19-2601.
As planned, before the hearing to determine whether to relinquish jurisdiction, and without objection from either party, the district court wrote to Dr. Mary Perrien, a psychiatrist at the Idaho Department of Correction, requesting that she prepare a report giving her opinion as to Jockumsen's mental health and whether he could be successful on probation. Along with the letter, the court sent to Dr. Perrien Jockumsen's competency evaluation reports, Jockumsen's letters to the court, and a copy of the PSI. After receiving Dr. Perrien's response, the court relinquished jurisdiction. On appeal, Jockumsen contends that the district court committed fundamental error by violating Jockumsen's Fifth Amendment right against self-incrimination, and also violated I.C. § 18-215, when it used information contained in Jockumsen's competency evaluations for sentencing purposes. Jockumsen also asserts that the district court erred by failing to sua sponte order a separate mental health evaluation for sentencing purposes pursuant to I.C. § 19-2522.
A. Fifth Amendment Violation
Jockumsen did not object to the trial court's use of his competency evaluations for sentencing purposes. When a party fails to preserve an issue for appeal through a timely objection, the issue ordinarily will be reviewed on appeal only if it constitutes fundamental error. State v. Lovelass, 133 Idaho 160, 167, 983 P.2d 233, 240 (Ct. App. 1999). The Idaho Supreme Court has defined fundamental error as, such error as goes to the foundation or basis of a defendant's rights or must go to the foundation of the case or take from the defendant a right which was essential to his defense and which no court could or ought to permit him to waive. Each case will of necessity, under such a rule, stand on its own merits. Out of the facts in each case will arise the law.
State v. Johnson, 145 Idaho 970, 979, 188 P.3d 912, 921 (2008); State v. Christiansen, 144 Idaho 463, 470, 163 P.3d 1175, 1182 (2007); State v. Bingham, 116 Idaho 415, 423, 776 P.2d 424, 432 (1989). The Supreme Court has also described fundamental error as error which "so profoundly distorts the trial that it produces manifest injustice and deprives the accused of his constitutional right to due process." State v. Mauro, 121 Idaho 178, 180, 824 P.2d 109, 111 (1991). See also State v. Anderson, 144 Idaho 743, 748, 170 P.3d 886, 891 (2007); State v. Sheahan, 139 Idaho 267, 281, 77 P.3d 956, 970 (2003); State v. Lavy, 121 Idaho 842, 844, 828 P.2d 871, 873 (1992). In addressing Jockumsen's claim of fundamental error, we begin by determining whether there was error at all. See Anderson, 144 Idaho at 748, 170 P.3d at 891.
Jockumsen asserts that because he was not warned that statements he made to the competency evaluators could be used against him and was not advised of his right against self-incrimination before the evaluations were conducted, the district court violated his Fifth Amendment rights by relying on information contained in his competency evaluations at sentencing, by not excluding the evaluations from use in the PSI, and by allowing the competency evaluations to be used in Dr. Perrien's subsequent mental health evaluation. The Fifth Amendment, which protects against compelled self-incrimination, applies to both the guilt and penalty phases of a trial. Estelle v. Smith, 451 U.S. 454, 462-63 (1981); Estrada v. State, 143 Idaho 558, 563-64, 149 P.3d 833, 838-39 (2006); State v. Lankford, 116 Idaho 860, 871-72, 781 P.2d 197, 208-09 (1989). Generally, the Fifth Amendment is not implicated in the course of a competency evaluation of one charged with a crime because any disclosures made by the defendant are not used against the defendant but are used only for the neutral, limited purpose of determining whether he is competent to stand trial. See Estelle, 451 U.S. at 465. However, Fifth Amendment rights come into play if disclosures made during a competency evaluation, or medical conclusions derived from such disclosures, are later used against the defendant at either the guilt or penalty phase of the proceedings. Id. See also Estrada, 143 Idaho at 564, 149 P.3d at 839 ("Incrimination is implicated . . . when punishment could be enhanced as a result of the defendant's statements"). Consequently, statements made by an accused during a competency evaluation, and psychiatric opinions based on those statements, generally may not be admitted against the individual for sentencing purposes unless the defendant was advised of the right against self-incrimination and waived those rights. Estelle, 451 U.S. at 469.
An exception to this rule of the exclusion of statements made in competency evaluations can arise if the defendant introduces mental health evidence as a defense at trial or in mitigation at sentencing. The Supreme Court addressed this situation in Buchanan v. Kentucky, 483 U.S. 402 (1987), where the prosecutor and defense counsel had jointly moved the Court to order an evaluation of the defendant pursuant to a statute governing involuntary hospitalization for psychiatric treatment. The evaluation was conducted by Dr. Lange, without the defendant having waived his Fifth Amendment rights. At trial, the defendant attempted to establish the affirmative defense of "extreme emotional disturbance," and toward that end presented evidence from several evaluations of his mental condition, though not Dr. Lange's evaluation. In response to the defendant's mental health evidence, the prosecutor introduced Dr. Lange's evaluation, to which the defendant objected. The Supreme Court held there was no Fifth Amendment violation in this circumstance. The Court said that a defendant may not stand on the Fifth Amendment privilege to preclude the prosecution from using such an evaluation to rebut psychiatric evidence introduced by the defendant himself. The Court said, "If a defendant requests such an evaluation or presents psychiatric evidence, then, at the very least, the prosecution may rebut this presentation with evidence from the reports of the examination that the defendant requested." Buchanan, 483 U.S. at 422-23. See also Powell v. Texas, 492 U.S. 680, 684 (1989) ("[I]n Buchanan the Court held that if a defendant requests a psychiatric examination in order to prove a mental-status defense, he waives the right to raise a Fifth Amendment challenge to the prosecution's use of evidence obtained through that examination to rebut the defense."); White v. Mitchell, 431 F.3d 517, 536-37 (6th Cir. 2005) (holding that Estelle principles were not violated where a defendant introduced mental-state testimony of a psychiatrist, who referenced the competency evaluation as part of the materials he reviewed when forming his opinion, during the penalty phase of trial for mitigation purposes, thereby prompting the prosecution to use the competency evaluation on cross-examination for purposes of rebutting the defense witness's findings); Copeland v. Washington, 232 F.3d 969, 975-76 (8th Cir. 2000) (holding that the State could introduce testimony of competency evaluator that defendant did not have battered spouse syndrome at penalty phase of trial in rebuttal to defendant's introduction of psychiatric testimony that she did have battered spouse syndrome).
In this case, Jockumsen's competency evaluations were attached to the PSI and also were used by Dr. Perrien in formulating her report to the court. The district court used against Jockumsen statements that he made in the competency evaluations as the court determined whether Jockumsen's mental illness should be a mitigating factor in sentencing and whether he had taken responsibility for his actions. The court also used the evaluations adversely in making its decision to relinquish jurisdiction. Neither party here contends that Jockumsen was properly advised of his Fifth Amendment rights or warned that his statements could be used against him before he submitted to the competency evaluations, or that he thereafter knowingly waived those rights to enable the district court to consider the competency evaluations at sentencing. Neither did Jockumsen implicitly waive or forfeit his Fifth Amendment rights as occurred in Buchanan and Powell, for Jockumsen did not introduce mental health evidence at the sentencing hearing and thereby entitle the prosecution to use ...