State v. Naone (Dissenting Opinion by Acoba, J.)

DISSENTING OPINION OF ACOBA, J.

The family court of the first circuit (the court) showed remarkable patience with Defendant-Appellant William K. Naone (Defendant) and thorough attention to the facts in this case. I must, however, respectfully express my disagreement with the majority opinion. I believe (1) the requirement that Defendant admit guilt notwithstanding acceptance of his no contest plea, may have been an unreasonable deferral and probation condition, (2) despite the special condition to the contrary, Defendant's statements were used against him in this case, and (3) appropriate standards for the administration and verifiability of polygraph examinations must first be adopted before such examinations are required of defendants and the results relied on by the court. Therefore, I would remand the case for consideration of these propositions by the court.

First, the conundrum in which the court and Defendant were enmeshed appeared to stem from conflicts between the purported objectives of the group therapy program assigned to Defendant and the no contest plea entered by Defendant and his understanding of the plea. Hawaii Rules of Penal Procedure (HRPP) Rule 11(a)(1) permits a defendant to plead "nolo contendere." Such a plea is allowed "only with the consent of the court[]" and "shall be accepted by the court only after due consideration of the views of the parties and the interest of the public in the effective administration of justice." HRPP Rule 11(b). In the event "the court refuses to accept a plea of . . . nolo contendere . . ., the court shall enter a plea of not guilty." HRPP Rule 11(a)(1).

Defendant pled no contest and requested deferral of his plea.⁽¹⁾ Since the court permitted Defendant to enter a no contest plea, it may be presumed the court considered the views of the parties and the public in doing so. Cf. State v. Sinagoga, 81 Hawaii 421, 427-28, 918 P.2d 228, 235 (App. 1996) (stating that "[t]he law presumes that judges will conscientiously fulfill their duty" to consider facts set forth in HRS § 706-606 when imposing a sentence). It is well recognized that a plea of no contest is not an expression of guilt. State v. Merino, 81 Hawaii 198, 218, 915 P.2d 672, 692 (1996) (citing North Carolina v. Alford, 400 U.S. 25, 35-36 n.8 (1970)); State v. Cambra, 9 Haw. App. 160, 163, 828 P.2d 295, 297 (1992) (stating that "the unanimous rule of law is that a no contest plea is not an admission of guilt"). Hence, although a guilty plea and a no contest plea

culminate[] in a criminal conviction, a defendant, by pleading guilty, admits to having unlawfully engaged in the charged criminal conduct, whereas, by pleading no contest, he or she neither admits to nor denies having done so, but rather chooses not to contest the charge to which the plea is entered.

Merino, 81 Hawaii at 217, 915 P.2d at 691 (citations omitted).

Our supreme court has held that the trial court, in its discretion, may inquire into the factual basis of a no contest plea under HRPP Rule 11(b) but is not required to do so, as would otherwise be the case if the trial court were considering the acceptance of a guilty plea under the mandate of HRPP Rule 11(f). Id. at 218, 915 P.2d at 691-92. According to the supreme court, this construction of the HRPP was garnered from the rationale governing similarly worded rules in the Federal Rules of Criminal Procedure (FRCP):

"At one time in the past the Advisory Committee on [federal] Criminal Rules proposed that a plea of nolo contendere not be accepted without the court first satisfying itself that the defendant committed the crime charged. This overlooked the fact that an innocent defendant may not wish to contest the charge and that the nolo plea is a means for him or her to do this. Accordingly that proposal was not adopted and Rule 11(f), requiring the court to determine the accuracy of a plea, applies to guilty pleas but not to pleas of nolo contendere."

Id. at 218, 915 P.2d at 692 (quoting 1 C. Wright, Federal Practice and Procedure: Federal Rules of Criminal Procedure § 177, at 670-71 (2d ed. 1982) (footnotes omitted)) (brackets and emphasis omitted; emphasis added). The supreme court also relied on Alford, where the United States Supreme Court reiterated that

"FRCP 11 preserves this distinction in its requirement that a court cannot accept a guilty plea unless it is satisfied that there is a factual basis for the plea; there is no similar requirement for pleas of nolo contendere, since it was thought desirable to permit defendants to plead nolo without making any inquiry into their actual guilt."

Id. (quoting Alford, 400 U.S. at 35-36 n.8 (internal quotation marks and citation omitted)) (brackets omitted; emphasis added). Accordingly, a trial court is not required to ascertain the factual basis for a no contest plea, in view of the fact that in entering such a plea the defendant does not admit guilt:

The primary purpose of the nolo contendere plea is to allow the court and the defendant to avoid the time and expense of trial. If the court allows the plea without requiring the defendant to present a factual basis for the plea, the defendant avoids having to admit guilt, "saves face," and is shielded from having the plea used against him or her in any civil suit based on the alleged illegal conduct.

Id. (citing State v. Medeiros, 8 Haw. App. 39, 42-44, 791 P.2d 730, 733-34 (1990)) (emphasis added). Here, Defendant signed a pre-printed plea form which indicated he thought it "better to put [himself] at the mercy of the court." There is no record of Defendant himself presenting a factual basis for his plea.

As indicated, there may be various grounds for pleading no contest, and such a plea may be entered even if a defendant is innocent under the law. I submit, then, that if a trial court allows a defendant to enter a no contest plea, the premise of which is that the defendant would thereby avoid having to admit guilt, it may be unreasonable to require, as a condition of deferral or probation, that the defendant would have to do so. However that is, in effect, what occurred in this case.

II.

In setting aside the reinstatement of Defendant's deferred acceptance of nolo contendere (DANC) plea on July 11, 1997 and resentencing Defendant to probation and six months' imprisonment as a condition thereof, the court pointed to Defendant's refusal to admit guilt:

Specifically, he failed to show victim empathy, he failed to take responsibility for his actions, and he failed to show less cognitive distortions, he failed in completing his assignment[s].

He did not--I believe, as Mr. [Joseph] Giovannoni [(Giovannoni)] indicated, that he did not intervene sufficiently in this--his denial and he did not demonstrate understanding of circumstances leading to his offense. And, of course, he did [not] take the polygraph examination and so he was terminated for all of those reasons.

(Emphases added.) Under the course which was adopted in this case, Defendant was logically doomed to failure because the 1989 Master Plan for Adult Sex Offender Treatment (Master Plan) states, "A basic admission criteria is that the offender must admit committing the crime(s)." Majority opinion at 33.

I do not suggest that under such circumstances the only alternative left to the court would have been to reject Defendant's DANC plea. Indeed, under the appropriate facts, the rejection of a DANC plea may amount to an abuse of discretion. But as shown, there were other professionals available to treat Defendant. Defendant did propose treatment without group therapy through a psychologist or by Dr. Robert C. Marvit (Marvit), a psychiatrist, who was willing to meet the treatment requirements of the family court. The court ordered treatment by Marvit, but at the same time required group treatment under Giovannoni. The treatment plan proposed by Marvit appears to satisfy the planning assumptions of the Master Plan which called, in part, for "complete, individualized assessment of [a defendant's] needs" and "[a] broad range of therapeutic interventions." Accordingly, other treatment was apparently available which was tailored to the circumstances, one of those circumstances being Defendant's

no contest plea. There may have been other treatment programs available which are not reflected in the record.

The court's and probation department's continued emphasis on polygraph examinations seems counter to the HSOT principle that treatment interventions can be "eclectic." Likewise, the insistence on group therapy seems inconsistent with the Hawaii Sexual Offender Treatment (HSOT) principle that group therapy is the "preferred" and therefore implicitly not the exclusive modality of treatment. Certainly, in prescribing conditions, the court was not statutorily bound to any one program or course of treatment.

III.

Second, I find nothing salutary in the majority's reliance on the special condition which directed that Defendant's statements during treatment "may not be used against him in this proceeding or [in] any other proceedings." Defendant gained nothing by this special condition.

Because Defendant had been permitted to enter a no contest plea, any evidence obtained in this proceeding could not in any event be used in "any other proceeding," whether Defendant's deferral motion was ultimately granted or not. Further, contrary to the majority's contention, Defendant was not "immunized" from the adverse consequences of his statements. The results of the polygraph examination were in fact "used against him in this proceeding." His purported denial of responsibility was the basis for expulsion from Giovannoni's program, the resulting denial of a DANC disposition, and subsequent probationary sentence of imprisonment. See infra part IV.B. Under such facts, this special condition was violated and Defendant's responses on the polygraph examination should not have resulted in termination from the group program.⁽²⁾

IV.

Third, the record gives rise to concerns about the polygraph examination requirement.

On February 27, 1996, Defendant was apparently terminated by Giovannoni for refusing to undergo a polygraph examination. As a special condition of probation, the court ordered in a May 15, 1996 probation order, that Defendant take "polygraph examinations as required." In its September 30, 1996 findings of fact, conclusions of law and order, the court found that the "primary reason for [Defendant's] termination from the group program was [D]efendant's refusal to undergo a polygraph examination."

It should be observed that a polygraph examination is "not specifically discuss[ed] . . . as a treatment tool" under the Master Plan. Majority opinion at 34. Further, upon reviewing the recommendations of the Association for Treatment of Sexual Abusers (ATSA) which Giovannoni followed, Marvit stated, "[T]here is no empirical, objective or scientifically validated evidence[] that polygraphs can either effectively monitor or prevent relapse in sexual offenders." (Boldfaced and underscored emphasis in original).

On June 3, 1996, after being placed on probation, Defendant did in fact undergo a polygraph examination. As a result, Defendant was readmitted to Giovannoni's program. According to the resulting polygraph report, Defendant "was deceptive to all of the questions except that of alcohol use and illegal criminal activity." Thereafter, the parties stipulated that Defendant was terminated from the program again because "he didn't pass [the polygraph exam] and he [was] still in denial from [Giovannoni's] point of view." (Emphasis added)

At the September 27, 1996 hearing, Giovannoni presented a "guideline" for polygraph examination which he had prepared on August 19, 1996. Giovannoni admitted that prior to August 19, 1996, and thus at the time of Defendant's examination, he "did not have any written guidelines for [a] polygraph examination." (Emphasis added.) The twelve-line "guideline" itself establishes no parameters for the polygraph procedure and is addressed to the taker, not the examiner.

Under his polygraph procedure, Giovannoni related that he would call the polygraph examiner prior to the exam in order to "give some information about the person's sexual history" which might be relevant to appropriate questions to be asked. He conceded that the procedure he had described was never reduced to writing. Even after the polygraph examination was challenged, the "guideline" produced did not set forth any procedure for initiating, administering, or evaluating a polygraph examination or its results.

At a July 11, 1997 hearing, Defendant entered into evidence a March 27, 1997 letter from Stan Abrams, Ph.D. (Abrams), which asserted that "[there is no research that demonstrates [the administered test's] accuracy and no one in the sex abuser testing programs uses it that I'm aware of." Abrams further stated that he "d[id] not think [Defendant's] test [was] of much value" and concluded that he "would not place any value in these charts or . . . technique."

At the same hearing, Defendant also entered into evidence an April 28, 1997 letter from Edward Clarke (Clarke) of the Hawaii Organization of Polygraph Examiners (HOPE), which disclosed that the type of questions asked of Defendant were "non-standardized." According to Clarke, the HOPE Quality Control Committee "was unable to render an opinion concerning this examinee's truthfulness to any of the questions. If the issue of the examinee's truthfulness is still an issue, the committee recommends retesting with a standardized technique." (Emphasis added.) Clarke noted that the examiner retained by Giovannoni "no longer utilized this technique."

The substance of Clark's and Abrams's comments are not rebutted and Defendant was never retested.

In sum, Defendant was required to undergo a polygraph examination which was not subject to objective standards and subsequently determined to be of questioned reliability. Despite his emphasis on the importance of such exams, Giovannoni did not have any established written guidelines prior to the one proposed on August 19, 1996. The questions to be asked during the polygraph examination were of critical importance; however, Giovannoni related at the September 27, 1996 hearing that he lacked any standard procedure for the administration of such exams.

I agree that the trial courts may require a defendant to undergo a polygraph examination as a condition of deferral or probation. However, it is difficult to give credence to the polygraph results or to the use of a polygraph in this case. Polygraph practitioners have concluded that the questions used by the examiner did not conform to any known procedure and the results cannot be validated. The examiner himself apparently received little guidance. Such circumstances call into question the polygraph examination, the use of the polygraph data, the monitoring of such a program, and the reliance placed on it by the therapist and in turn, the court. Under these circumstances, this polygraph requirement is not a reasonable condition of deferral or probation. Unless appropriate standards and procedures are first adopted to ensure that polygraph results are verifiable and reliable, the data derived from polygraph examinations serve no purpose and should not have been used as a reason to terminate Defendant from the program. See supra note 2.

It is no answer, as the majority suggests, that Defendant was given the option of being examined by a polygraph examiner of his choice. I note, first, that the court never entered an order permitting or directing that that be done. Second, the responsibility for structuring a valid polygraph examination was with the HSOT program, not with Defendant. Finally, this option was clearly empty of substance since there were no governing criteria for a defendant's administration of his own polygraph examination. Indeed, at the July 18, 1997 hearing, Defendant's counsel asked, in reference to such a suggestion, "[W]hat type of polygraph examination am I suppose[d] to administer to [Defendant?]" Regardless of the apparent unreliable results from the polygraph examination, the court rejected counsel's offer of "having [Defendant] comply with this polygraph examination" by using another examiner.

It should be emphasized that Defendant apparently complied with all conditions of the deferral except for conditions relating to the admission of guilt under Giovannoni's program. Indeed, in its September 30, 1996 findings of fact, the court found that even after Defendant was terminated from the group program on February 27, 1996, he "continued to attend [Giovannoni's] weekly therapy sessions . . . and, as of July 30, 1998, had paid Giovannoni a total of more than $2000" for treatment. In addition, Defendant continued his individual sessions with Marvit.

Under the July 24, 1997 order of resentencing, the court reimposed, as terms and conditions of probation, the same polygraph and Giovannoni "Group Rules" conditions as were in place under the prior orders. These terms and conditions invite, in the future, the same problems encountered under Defendant's deferral motion.

On acceptance of his no contest plea, the court was authorized to impose such probation conditions as might be imposed on a convicted person. However, it is arguable that, reasonably, such conviction means Defendant should be required to admit guilt on the pain of probation revocation, when in the first place, Defendant was permitted to avoid admitting guilt through the acceptance of his no contest plea.

VI.

For the foregoing reasons, I would remand the case to the court for its reconsideration in light of the matters discussed above. Assuming arguendo Defendant's delay in taking a polygraph examination constituted sufficient grounds for denying deferral of the no contest plea, I would remand the case for the court's consideration of the matters discussed herein in

connection with the last probation order, because that order incorporated the same disputed conditions imposed under the deferral orders.

SIMEON R. ACOBA, JR.

Associate Judge

1. It may be noted that according to the record, this case was referred to the Honolulu Police Department by the State of Hawaii Child Protective Service.

2. The "Relapse Prevention Group Rules" imposed by Joseph Giovannoni do not state that failure to pass a polygraph examination results in expulsion from the program. Rather, the "rules" indicate that the polygraph exam is used as an ongoing treatment tool. The rules state in relevant part, "[A] polygraph . . . is to insure honesty in treatment, and encourage further disclosure. As [a client] demonstrate[s] compliance, the frequency of the polygraphs may decrease accordingly." (Emphasis added.)