Opinion
No. 2 CA-CR 2017-0235
03-28-2018
THE STATE OF ARIZONA, Appellee, v. JOHN ALLEN MCCLURE, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Tanja K. Kelly, Assistant Attorney General, Tucson Counsel for Appellee Emily Danies, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Gila County
No. S0400CR201500213
The Honorable Gary V. Scales, Judge Pro Tempore
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Tanja K. Kelly, Assistant Attorney General, Tucson
Counsel for Appellee Emily Danies, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Vásquez and Judge Eppich concurred. ESPINOSA, Judge:
¶1 John McClure appeals from the trial court's order revoking his probation and sentencing him to a 2.75-year prison term. He argues the revocation was improperly premised on his refusal to answer questions "that might incriminate him in future proceedings," thereby violating his Fifth Amendment right against self-incrimination. We affirm.
Factual and Procedural Background
¶2 In 2015, McClure pled guilty to failing to register as a sex offender, and three counts of surreptitious photographing, videotaping, filming or digitally recording, or viewing. The trial court imposed two-year, concurrent prison terms for the surreptitious viewing convictions and lifetime probation for McClure's failure to register.
¶3 In 2017, the state filed a petition to revoke McClure's probation, alleging he had failed to participate in his required sex-offender treatment, including by refusing to submit to psychological or physiological testing. At the violation hearing, McClure's probation officer testified McClure had reported for a polygraph examination required as part of his treatment, but had "refused to answer any questions" because his answers "could possibly potentially get him into trouble," although he apparently answered some questions. McClure stated that he refused because "he thought some of the questions asked were not appropriate for this polygraph." The trial court concluded McClure had violated the terms of his probation, revoked probation, and sentenced him to a 2.75-year prison term. This appeal followed.
Discussion
¶4 McClure argues that revocation of his probation was improper because his refusal to answer questions was a protected exercise of his Fifth Amendment right against self-incrimination. We review the superior court's order finding a defendant violated probation and revoking probation for an abuse of discretion, and will not, therefore, disturb the court's ruling "unless it is arbitrary or unsupported by any theory of the evidence." State v. Moore, 125 Ariz. 305, 306 (1980). We review alleged constitutional violations de novo. See State v. Moody, 208 Ariz. 424, ¶ 62 (2004). A probationer is entitled to invoke the Fifth Amendment to refuse to answer incriminating questions. State v. Eccles, 179 Ariz. 226, 228 (1994). Thus, a finding that a defendant has violated the terms and conditions of probation cannot be premised on that refusal, if that refusal was "a valid assertion of the privilege against self-incrimination." Id.
As the state acknowledges, it did not provide McClure use immunity, which would have permitted it to "compel answers to incriminating questions." Eccles, 179 Ariz. at 229. Nor does McClure suggest the terms of his probation were facially unconstitutional because they would require him to waive his right against self-incrimination. See id. at 228.
¶5 A probationer is not entitled, however, to decline to answer all questions. Instead, if required by the terms of probation, he "must truthfully answer all questions that could not incriminate him in future criminal proceedings . . . even if his answers may be evidence of probation violations and result in revocation." Id. For a probationer to validly invoke the privilege, it must "be evident from the implications of the question . . . that a responsive answer to the question or an explanation of why it cannot be answered" would lead to the disclosure of criminally incriminating information. Hoffman v. United States, 341 U.S. 479, 486-87 (1951); cf. State v. VanWinkle, 229 Ariz. 233, ¶ 12 (2012).
¶6 The record shows only that McClure refused to answer questions he believed were not "appropriate" because his answers "could possibly . . . get him into trouble." But those statements could refer to answers that would not lead to criminal liability but might instead give rise to probation revocation proceedings or other, non-criminal consequences. There was no evidence indicating which questions McClure refused to answer and, thus, no way for this court or the trial court to evaluate whether the answers could lead to criminally actionable disclosure. See Hoffman, 341 U.S. at 486-87; Eccles, 179 Ariz. at 228. Nor do we agree with McClure that we are required to conclude he was "reasonably afraid of self-incrimination" for criminal liability because he invoked the privilege, claimed to have spoken with a lawyer, and was advised of the limited protection provided by A.R.S. § 13-4066. His conduct did not necessarily reflect a fear of criminal liability, but instead was equally consistent with a fear of admitting a non-criminal probation violation. In sum, McClure has not demonstrated that his probation revocation was improperly based on a valid invocation of his right against self-incrimination.
We assume, without deciding, that McClure's conduct during the attempted polygraph examination was sufficient to notify the state he intended to invoke his Fifth Amendment rights. See Salinas v. Texas, 570 U.S. 178, 183 (2013) (witness must expressly invoke right against self-incrimination).
We do not suggest a probationer is required to answer the questions to demonstrate those answers are incriminating. See Hoffman, 341 U.S. at 486 ("[I]f the witness[ asserting the Fifth Amendment right against self-incrimination] . . . were required to prove the hazard in the sense in which a claim is usually required to be established in court, he would be compelled to surrender the very protection which the privilege is designed to guarantee.").
Section 13-4066 provides that statements made during sex offender treatment are inadmissible in a criminal proceeding except under Rule 404(b) and (c), Ariz. R. Evid., unless "there is a reasonable belief that the person has committed" certain new crimes. These protections are "not broad enough to provide the immunity that is required to force a defendant invoking his rights against self-incrimination to speak." Jacobsen v. Lindberg, 225 Ariz. 318, ¶ 10 (App. 2010). --------
Disposition
¶7 The trial court's revocation of probation and sentence of imprisonment are affirmed.