Original Proceeding Pursuant to C.A.R. 21 Douglas County District Court Case No. 08CR109 Honorable Richard B. Caschette, Judge
Attorneys for Plaintiff: George H. Brauchler, District Attorney, Eighteenth Judicial District Richard Orman, Senior Deputy District Attorney Centennial, Colorado
Attorneys for Defendant: Douglas K. Wilson, Public Defender Lynn Noesner, Deputy Public Defender Denver, Colorado
¶1 In this original proceeding, the People challenge the district court's order denying the probation department's complaint to revoke Bryan Roberson's sex offender intensive supervision probation ("SOISP"). As pertinent here, the People sought to revoke Roberson's probation because he, among other things, allegedly failed to participate actively in a sex offender evaluation and treatment program. The alleged failure was based on Roberson's post-trial refusal to answer a polygraph examiner's questions regarding Roberson's use or viewing of child pornography while on probation and sexual fantasies that he had had involving minors. Roberson refused to answer these questions based on the advice of counsel and on his fear that his answers could be used against him in future criminal proceedings, given that the direct appeal of his conviction remained pending at that time.
¶2 The district court denied the People's revocation complaint, concluding that "to require Roberson to answer sexual oriented [sic] questions, under the circumstances, violates his Fifth Amendment rights, and his probation cannot be revoked on those grounds."
¶3 We agree with the district court that on the facts presented here, Roberson's privilege against self-incrimination precluded the court from revoking Roberson's probation based on his refusal to answer the polygraph examiner's question regarding his use or viewing of child pornography while he was on probation. On the record before us, however, we are unable to determine whether the court correctly found that Roberson's privilege against self-incrimination precluded the court from revoking Roberson's probation based on his refusal to answer questions concerning any sexual fantasies involving minors that he might have had within the preceding six months.
¶4 Accordingly, we make absolute the order to show cause and remand this case to the district court with directions that the court conduct further proceedings as more fully set forth in this opinion.
I. Facts and Procedural History
¶5 Roberson's nine-year-old niece spent the evening at Roberson's house. The next day, she reported to her mother that during the evening, Roberson had rubbed her "pee-pee." Based on these allegations, Roberson was charged with sexual assault on a child by one in a position of trust, sexual assault on a child, and sexual assault (victim under 15).
¶6 At trial, Roberson defended against the charges by presenting evidence that he had a sleep sex disorder that would cause him to initiate sexual contact while he was sleeping. He testified that he never would have consciously assaulted his niece and that he had no memory of the alleged incident. The jury ultimately found Roberson guilty as charged.
¶7 Thereafter, the probation department prepared a presentence investigation report. In this report, the department recommended that Roberson be placed on SOISP. The terms of the recommended SOISP included requirements that:
(3) [Roberson] enter, attend and successfully participate in offense specific treatment with [a Sex Offender Management Board ("SOMB")] approved sex offender treatment provider, as directed by his probation officer; [and]
(4) he submit to an index offense, sexual history disclosures, and routine maintenance polygraphs as deemed appropriate by the community supervisions team[.]
¶8 At the subsequent sentencing hearing, the prosecutor asked the court to adopt the probation department's recommendations. The prosecutor observed, however, that very few people with Roberson's level of denial succeed on SOISP, and the prosecutor predicted that "there would be a reckoning" when Roberson would either admit what he did or face "far more severe consequences than [SOISP]."
¶9 At this point, the court interrupted and stated that it appeared that to be successful, "there has to be an acknowledgment." The prosecutor responded that "acknowledgement does not have to come now but it will have to come very soon . . . ."
¶10 Roberson's counsel then made his sentencing argument, after which Roberson addressed the court. In the course of his statement, Roberson proclaimed his innocence and asserted prosecutorial misconduct during his trial. The court then reminded Roberson what the prosecutor had said and explained that the prosecutor was prepared to go along with the probation department's SOISP recommendation but that the prosecutor was concerned, based on Roberson's mental attitude, as to whether Roberson would follow the intensive supervision probation and acknowledge what had happened. The court added, "I'm just giving you a warning."
¶11 Roberson replied that he understood and would "cooperate and do what is necessary to be successful during this probation, during this intensive probation." The court then sentenced Roberson to SOISP for ten years to life under the pertinent terms recommended by the probation department.
¶12 Thereafter, Roberson appealed his judgment and sentence to the Colorado Court of Appeals, see People v. Roberson, No. 11CA11 (Colo.App. Dec. 26, 2013) (not published pursuant to C.A.R. 35(f)), and began participating in offense specific treatment. Because Roberson's direct appeal was pending, however, his counsel advised him not to speak about anything that might be relevant to the case or that might be used against him if his case went back to trial. Roberson shared this information with his probation officer and treatment providers.
¶13 Based on their discussions with Roberson, Roberson's treatment providers placed him in a "modified sort of an appeal group, " which allowed him to continue treatment without having to discuss his offense or anything related to it. This process was interrupted, however, when in the course of a polygraph examination, the examiner asked Roberson questions about (1) his using or viewing child pornography while on probation and (2) sexual fantasies involving minors within the prior six months, which was after he was placed on SOISP. Roberson became concerned that the examiner was fishing for information that might be used to incriminate him. He thus asserted his Fifth Amendment right against self-incrimination and did not answer those questions.
¶14 As a result of Roberson's refusal to answer, he was unable to meet the SOMB guidelines for successful compliance in sex offender treatment and was discharged from his treatment program. The probation department then filed a complaint to revoke Roberson's SOISP.
¶15 In a written order, the district court denied the revocation complaint. The court began by noting what it viewed as "three controlling factors in this case": (1) Roberson had asserted his Fifth Amendment right against self-incrimination, and his fear of self-incrimination was reasonable in light of the prosecutor's admission that on retrial, he would use available CRE 404(b) evidence; (2) Roberson's case was on appeal, and he had testified at trial (thus presenting a risk of perjury charges); and (3) Roberson had not been granted use immunity or provided with other assurances about the use of information that he provided during treatment.
¶16 In light of these factors, the court concluded that Roberson's Fifth Amendment right against self-incrimination protected him from answering potentially incriminating questions in his treatment program. The court based this conclusion on its belief that requiring Roberson either to answer incriminating questions or to assert his Fifth Amendment right against self-incrimination and risk having his probation revoked would impermissibly impose a substantial penalty on Roberson for asserting his privilege against self-incrimination. Accordingly, the court concluded that Roberson's probation could not be revoked based on his refusal to answer the questions at issue.
¶17 The People subsequently petitioned this court, pursuant to C.A.R. 21, for an order to show cause why the district court's order should not be reversed. We issued the requested order, received full briefing, and heard oral argument.
II. Original Jurisdiction
¶18 "Original relief pursuant to C.A.R. 21 is an extraordinary remedy that is limited in purpose and availability." People v. Steen, 2014 CO 9, ¶ 8, 318 P.3d 487, 490. Nonetheless, we will generally elect to hear C.A.R. 21 cases when they raise issues of first impression that are of significant public importance. Id.
¶19 This case satisfies both of these criteria. First, we have not previously considered whether and under what circumstances an SOISP probationer's invocation of the privilege against self-incrimination in the course of treatment precludes a court from revoking the probationer's SOISP for failure to participate actively in treatment. Second, the issue presented is an important one that implicates common SOISP conditions ...