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Defendant-Appellant Matthew Hanson was convicted of aggravated assault. At the sentencing phase, he exercised his Fifth Amendment privilege against self-incrimination and declined to participate in the preparation of the presentence investigation (PSI) report. Defendant later moved the court to order a presentence psychological evaluation. The district court ruled that unless Defendant agreed to participate in the PSI, his motion would be denied on the ground that a defendant may not selectively invoke his Fifth Amendment privilege with respect to different aspects of a single subject. Defendant again declined to participate, and the court denied his motion. Defendant's attorney subsequently requested a competency evaluation, which was also denied. Defendant was sentenced to five years, with three years fixed. He then moved for reconsideration of his sentence, which motion the district court denied. Defendant appealed the district court's denial of his requests for a psychological evaluation and for a competency evaluation. Upon review, the Supreme Court affirmed the district court's denial of Defendant's request for a competency evaluation. However, the Court reversed the district court's denial of Defendant's request for a psychological evaluation because: (1) the record showed Defendant's mental condition would be a significant factor at sentencing; and (2) it incorrectly held that Defendant could not invoke his Fifth Amendment privilege against self-incrimination with regard to the PSI but waive the privilege in order to obtain a psychological evaluation. Accordingly, the Court vacated the district court's judgment and remanded the case for further proceedings.
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IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 38512
STATE OF IDAHO,
MATTHEW W. HANSON,
Boise, December 2011 Term
2012 Opinion No. 10
Filed: January 6, 2012
Stephen Kenyon, Clerk
Appeal from the District Court of the Fourth Judicial District of the State of
Idaho, Elmore County. Hon. Michael E. Wetherell, District Judge.
The district court’s denial of the request for a competency evaluation is affirmed.
The district court’s denial of the request for a psychological evaluation
is reversed, the judgment is vacated and the case is remanded for proceedings
consistent with this opinion.
Molly J. Huskey, State Appellate Public Defender, Boise, for appellant. Diane
Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Jessica
Matthew W. Hanson was convicted of aggravated assault. At the sentencing phase, he
exercised his Fifth Amendment privilege against self-incrimination and declined to participate in
the preparation of the presentence investigation (PSI) report. Hanson later moved the court to
order a presentence psychological evaluation. The district court ruled that unless Hanson agreed
to participate in the PSI, his motion would be denied on the ground that a defendant may not
selectively invoke his Fifth Amendment privilege with respect to different aspects of a single
subject. Hanson again declined to participate in the PSI, and the court denied his motion.
Hanson’s attorney subsequently requested a competency evaluation, which was also denied.
Hanson was sentenced to five years, with three years fixed. Hanson moved for reconsideration of
his sentence, which motion the district court denied. Hanson appeals the district court’s denial of
his requests for a psychological evaluation and for a competency evaluation. We affirm in part,
vacate the judgment of the district court, and remand for proceedings consistent with this
I. FACTUAL AND PROCEDURAL BACKGROUND
Hanson was convicted of aggravated assault, and the district court imposed a five-year
sentence with three years fixed. Hanson’s appeal is before this Court on a petition for review
after the Court of Appeals vacated the judgment and remanded Hanson’s case for resentencing.
The Court of Appeals set forth the facts:
During a conversation at a bar, Hanson pulled two hunting knives on a
man and threatened to kill him. Hanson was arrested and charged with aggravated
assault. I.C. §§ 18-901 and 18-905(b). The Elmore County Jail log reveals that,
while Hanson was incarcerated awaiting trial, he exhibited erratic and volatile
behavior. On each of ten days, from July 19-29, 2007, Hanson refused to eat at
least one and oftentimes all of his meals. Hanson stated that he was on a hunger
strike because the people serving him food had bad attitudes. On July 19, jail staff
installed a camera in Hanson's cell so they could observe him better. On July 21,
jail staff requested Hanson undergo a mental evaluation, but Hanson refused to
participate. On July 23, after rising from bed, Hanson was seen swaying in his
cell. He fell twice, presumably from lack of food. On July 24, Hanson was
transported to the hospital and thereafter began taking an unspecified medication.
On August 10, Hanson requested that all his food be passed to him
through the bean slot because he required that his door remain closed at all times.
When jail staff refused to comply with his request, Hanson threw his tray against
his cell door spraying food around his cell and into the hallway beyond. For
twelve days, from August 10-22, Hanson again refused at least one and often all
of his meals. On August 20 Hanson returned his bed sheet with a message written
on it with dirt. On August 22, after twelve days without food, Hanson again
refused medical treatment. On August 24, Hanson called jail personnel
complaining that his cell was too hot and threatened that, if the ventilation was
not turned on, he would smear feces all over his cell. Hanson’s erratic behavior
continued from September 2007 to March 2008. Hanson refused daily recreation
sixty-seven times, and was often unresponsive to jail authorities. The jail log
reveals that after days without incident, Hanson would suddenly become abusive,
make threats to jail personnel, throw his food on the floor, and trash his cell.
After a jury trial, Hanson was found guilty of aggravated assault. Several
sentencing hearings were held in Hanson’s case. At the first sentencing hearing,
Hanson informed the district court that he would exercise his Fifth Amendment
right against self-incrimination and would not participate in a presentence
investigation report (PSI). Despite Hanson’s lack of participation, a PSI was
prepared that included his criminal history, his Elmore County Jail log, and a
1982 PSI and inmate records that were obtained from the Utah Department of
Corrections. The Utah PSI revealed that Hanson had a history of psychological
problems including a childhood history of bullying other children and torturing
animals, a juvenile psychological evaluation and treatment by an Idaho mental
hospital, and several failed suicide attempts.
At the second sentencing hearing, Hanson requested that the district court
order a psychological evaluation pursuant to I.C. § 19-2522. The district court
denied Hanson’s request for a psychological evaluation, reasoning that Hanson
could not invoke his Fifth Amendment right against self-incrimination with regard
to the PSI and subsequently waive that right so as to participate in a psychological
evaluation. The district court further reasoned that a psychological evaluation was
not necessary because it did not believe that the additional information provided
by a psychological evaluation would be helpful at sentencing.
During the third sentencing hearing, Hanson’s counsel requested that
Hanson undergo a competency evaluation pursuant to I.C. § 18-210 because of
counsel’s difficulty communicating with his client and because of Hanson’s
refusal to participate in the PSI. The district court denied the request for a
competency evaluation, reasoning that Hanson had demonstrated that he
understood the proceedings against him and was able to assist in his own defense.
The district court sentenced Hanson to a unified term of five years, with a
minimum period of confinement of three years. The district court also ordered
that Hanson undergo a psychological evaluation and treatment, as well as anger
management and therapeutic community programs while incarcerated in the state
penitentiary. Based on the district court’s imposition of a sentence without
ordering competency or psychological evaluations, Hanson filed a motion to
reconsider his sentence. The district court denied Hanson’s motion.
Hanson timely appealed. The Court of Appeals held that the district court abused its discretion
when it denied Hanson’s request for a psychological evaluation because Hanson’s exercise of his
Fifth Amendment privilege regarding the PSI did not preclude him from participating in a
presentence psychological evaluation and because the record contained sufficient evidence that
Hanson’s mental health was a significant factor at sentencing, thus triggering the mandatory
psychological evaluation required by I.C. § 19-2522. The Court of Appeals also held that the
district court properly considered whether Hanson was capable of assisting with his defense and
affirmed the court’s denial of Hanson’s request for a competency hearing. The Court of Appeals
vacated the judgment and remanded to the district court for a presentence psychological
evaluation and resentencing. This Court granted the State’s petition for review.
II. STANDARD OF REVIEW
“In cases that come before this Court on a petition for review of a Court of Appeals
decision, this Court gives serious consideration to the views of the Court of Appeals, but directly
reviews the decision of the lower court.” State v. James, 148 Idaho 574, 576, 225 P.3d 1169,
1171 (2010) (citing State v. Oliver, 144 Idaho 722, 724, 170 P.3d 387, 389 (2007)). “The test for
determining whether a district court abused its discretion is: (1) whether the court correctly
perceived that the issue was one of discretion; (2) whether the court acted within the outer
boundaries of its discretion and consistently with the legal standards applicable to the specific
choices available to it; and (3) whether it reached its decision by an exercise of reason.”
Schmechel v. Dillé, 148 Idaho 176, 181, 219 P.3d 1192, 1197 (2009) (citing Sun Valley Shopping
Ctr., Inc. v. Idaho Power Co., 119 Idaho 87, 94, 803 P.2d 993, 1000 (1991)).
A. The trial court erred in denying Hanson’s request for a psychological evaluation.
At Hanson’s second sentencing hearing, the district court invited appellate review of its
decision not to order a psychological evaluation pursuant to I.C. § 19-2522:
THE COURT: . . . But he can’t say I’m going to participate with one part of the
evaluation that I think might help me, but I’m going to stand silent with regard to
the rest of the evaluation which I think won’t help me. He can either exercise his
fifth amendment right or he can choose not to exercise his fifth amendment right.
He can’t exercise his fifth amendment on one thing and not on the other in terms
of the pre-sentence reports.
I don’t know of any case that addresses this, since this is a relatively
section [sic] of the statute, but I’m more than willing to try and make new case
law on it because I think the statute is poorly drafted and poorly interpreted by our
Court of Appeals at this point in time.
And so what I would like to see counsel is that if he wants to consent to
cooperation then I’m more than willing to let him cooperate in the pre-sentence
report and with the psychological evaluation. If he is going to say, no, I’m not
going to participate in [the] pre-sentence report, but I want the psychological
evaluation, I’m going to say no and we will let the Court of Appeals decide
whether or not that can be done under the statute as drafted.
We accept the district court’s invitation to address the Court of Appeals’ interpretation of I.C. §
19-2522. We agree with that court’s application of the plain language of the statute and hold that
the district court erred in failing to order a psychological evaluation.
The State argues that Hanson’s mental condition was not a significant factor at
sentencing and it was therefore within the discretion of the district court to deny Hanson’s
request for an evaluation. It is true that the decision to order a psychological evaluation lies
within the sentencing court’s discretion. I.C. § 19–2522(1); I.C.R. 32(d); State v. Schultz, 149
Idaho 285, 287, 233 P.3d 732, 734 (Ct. App. 2010). However, the language of the statute clearly
indicates that a psychological evaluation is mandatory under some circumstances, stating that
when “there is reason to believe the mental condition of the defendant will be a significant factor
at sentencing and for good cause shown, the court shall appoint at least one (1) psychiatrist or
licensed psychologist to examine and report upon the mental condition of the defendant.” I.C. §
19-2522(1) (emphasis added). See also State v. Coonts, 137 Idaho 150, 152, 44 P.3d 1205, 1207
(Ct. App. 2002) (holding that the language of I.C. § 19-2522(1) “is mandatory, requiring that the
trial court obtain a psychological evaluation whenever there is reason to believe that the
defendant’s mental condition will be of significance for the determination of an appropriate
sentence.”); State v. McFarland, 125 Idaho 876, 879, 876 P.2d 158, 161 (Ct. App. 1994)
(holding that under I.C. § 19-2522, “a psychological evaluation and report are mandatory ‘[i]f
there is reason to believe the mental condition of the defendant will be a significant factor at
sentencing.’”) (citations omitted) (emphasis original).
The district court considered the goals of sentencing and determined that because its
obligation to protect society was the primary factor in its sentencing decision, Hanson’s mental
condition would not be a significant factor at sentencing. This determination is not supported by
1. The record demonstrates that Hanson’s mental condition was a significant factor.
The defendant’s mental condition is a significant factor at sentencing if the sentencing
court is aware of a defendant’s lengthy history of serious mental illness. In a case where the
sentencing court denied the defendant’s request for an evaluation, the Court of Appeals
considered the facts known to the sentencing court:
From the point of [his] arraignment, it was known to the trial court that [the
defendant] claimed to suffer from a serious mental illness, manic depression, and
that he claimed an inability to remember having discussed a plea agreement that
had been recently negotiated. By the time he pleaded guilty, [he] was receiving
Lithium, a prescription medication for mental disorders. [The defendant] reported
to the presentence investigator that he had previously been treated with Lithium,
had been self-medicating with illegal drugs, had a history of suicide attempts, and
had received mental health treatment intermittently since 1968. . . . A
psychological evaluation could have provided useful illumination for the
evaluation of [the defendant’s] level of culpability and for formulation of a
sentence that would be appropriate to meet the goals of sentencing.
Coonts, 137 Idaho at 152-53, 44 P.3d at 1207-08. The Court of Appeals then held that “[t]hese
facts were sufficient to alert the district court that [the defendant’s] mental condition would be an
important consideration at sentencing.” Id. at 153, 44 P.3d at 1208. However, milder mental
disorders and behaviors may not be sufficient to put the sentencing court on notice. Schultz, 149
Idaho at 288, 233 P.3d at 735. In Schultz, the defendant claimed to have suffered from “mental
health issues” her entire life. Id. A prior psychological evaluation suggested that she had suffered
from a traumatic childhood that had caused “much damage to her psychologically,” and
diagnosed her with dysthymic disorder. 1 Id. The Court of Appeals considered the defendant’s
history, along with evidence from the PSI indicating substance abuse, and held that the
sentencing court did not err by failing to order an evaluation because the record did not
“establish a reason to believe her mental condition was a significant factor for sentencing.” Id.
We concur with the analysis of the Court of Appeals reflected in its previous published opinions
addressing I.C. § 19-2522 and hold that when the record shows a defendant has a substantial
history of serious mental illness, the defendant’s mental condition will be a significant factor in
determining an appropriate sentence and I.C. § 19-2522 requires the sentencing court to obtain a
psychological evaluation prior to sentencing. 2
A district court’s decisions or comments at sentencing may also demonstrate that the
defendant’s mental condition was a significant factor in determining the sentence. For example,
in a case where the sentencing court “made decisions about [the defendant’s] mental condition,
the role it played in his crimes, and how that was to affect his sentence,” the Court of Appeals
held that the court had abused its discretion because it made those decisions without the
assistance of “any formal psychological evaluation,” and “in the absence of any specific
information on [the defendant’s] mental condition.” State v. Collins, 144 Idaho 408, 410, 162
P.3d 787, 789 (Ct. App. 2007). In another case, the district court did not order an evaluation prior
to sentencing, but did order one after sentencing, during the period of retained jurisdiction,
because it “desired additional information” on the defendant’s mental condition. State v.
Banbury, 145 Idaho 265, 267, 178 P.3d 630, 632 (Ct. App. 2007). The Court of Appeals held
that by doing so, the sentencing court had “implicitly conclude[ed] that the requirements of I.C. §
19-2522 were applicable because the mental condition of the defendant would be a significant
factor at sentencing.” Id. at 268, 178 P.3d at 633; see also McFarland, 125 Idaho at 881, 876
P.2d at 163 (holding that the sentencing court should have ordered an evaluation before imposing
Dysthymia is considered to be more chronic and less severe than major depressive disorder.
A new evaluation does not need to be performed if an earlier evaluation has been conducted pursuant to I.C. § 192524 and the resulting report satisfies the requirements of I.C. § 19-2522. I.C. § 19-2522(6).
sentence, stating that “we note from the district court’s comments at sentencing that it clearly did
consider McFarland’s mental condition and rehabilitative potential as significant factors, albeit
without the benefit of a professional diagnosis of that condition or prognosis for improvement.”).
Here, the record shows that Hanson’s mental condition was a significant factor in
determining his sentence. At the sentencing hearing, the district court suggested that the primary
factor it considered in sentencing Hanson was its obligation to protect society. However, the
court explicitly stated its beliefs that “certain mental factors” existed in Hanson’s case and that
“the defendant does need psychological treatment.” The court recommended various treatments
and therapies for Hanson while incarcerated, and that Hanson receive a psychological evaluation.
Finally, the court stated that if a mental health facility is ever built at the Idaho State
Penitentiary, Hanson should be evaluated for placement there. These decisions and comments
demonstrate that the district court considered Hanson’s mental condition to be a significant
factor at sentencing.
There is also evidence in the record that Hanson has a substantial history of mental
illness. The 1982 Utah PSI shows that Hanson had a history of bullying, animal cruelty,
obsessive behavior, suicidal thoughts, attempted suicide, auditory hallucinations, and that he had
been hospitalized for mental health issues on multiple occasions. Further, Hanson’s conduct
while he was at the county jail awaiting trial was reported in the Elmore County jail log, which
was included within the PSI report. This behavior strongly suggested that Hanson suffered from
some form of mental disturbance. Hanson refused food, damaged his cell, threatened to smear
feces all over his cell, and was sent to the Elmore County hospital because of his conduct. The
sentencing court received the PSI and supporting materials before it denied Hanson’s request for
a psychological evaluation 3 and was therefore aware of Hanson’s erratic behavior while in jail
prior to trial and his history of mental illness and substance abuse. While the information
regarding Hanson’s mental health history is nearly thirty years old, when considered with his
more recent conduct and the district court’s comments at sentencing, it is manifest that Hanson’s
mental condition was a significant factor at sentencing. As the district court’s decision was
The district court ordered the PSI report at a hearing on January 22, 2008. The PSI report was stamped as
“Received” on February 15, 2008 and the Utah report as “Received” on February 27, 2008. The court denied
Hanson’s request at the second hearing, held on March 3, 2008. At that hearing, the court noted that it had “read the
reports” about Hanson’s conduct while he was in jail.
inconsistent with the applicable legal standards, we find that the district court abused its
discretion by failing to order a psychological evaluation.
2. Hanson’s waiver of the Fifth Amendment privilege against self-incrimination with
regard to the psychological evaluation did not apply to the entire sentencing proceeding.
The district court also denied Hanson’s request for a psychological evaluation because
Hanson refused to participate in the preparation of the PSI report. The court reasoned that
Hanson could either exercise or waive his Fifth Amendment privilege as to the presentencing
proceedings, but that he could not assert the privilege regarding the PSI while waiving it for a
psychological evaluation. At the next hearing, the court further explained its decision, suggesting
that Hanson was attempting to manipulate the information before the court to his benefit by
invoking his privilege as to matters that he believed would not be helpful to him and then
waiving the privilege with regard to matters he thought would be helpful. 4 Thus, the court’s
decision was based on its determination that Hanson was attempting to use his Fifth Amendment
privilege to control what information the court had available to it. We now hold that a defendant
may waive the Fifth Amendment privilege against self-incrimination in order to submit to a
psychological evaluation without waiving the privilege with respect to participation in the PSI.
This Court recently held that it is clear “both at the point of sentencing and earlier, for
purposes of a psychological evaluation, a defendant’s Fifth Amendment privilege against selfincrimination applies.” Estrada v. State, 143 Idaho 558, 563, 149 P.3d 833, 838 (2006).
Nonetheless, a defendant may not selectively assert his Fifth Amendment privilege against selfincrimination in order to control what information is before the court. The general rule regarding
waiver of the privilege is that “a witness, in a single proceeding, may not testify voluntarily
about a subject and then invoke the privilege against self-incrimination when questioned about
the details.” Mitchell v. United States, 526 U.S. 314, 321 (1999) (citing Rogers v. United States,
340 U.S. 367, 373 (1951)). Therefore, “[t]he privilege is waived for the matters to which the
witness testifies, and the scope of the ‘waiver is determined by the scope of relevant crossexamination.’” Id. (quoting Brown v. United States, 356 U.S. 148, 154-155 (1958)). The United
States Supreme Court’s rationale in Mitchell was that permitting a witness to “pick and choose
what aspects of a particular subject to discuss” would cast doubt on the “trustworthiness of the
In its order denying Hanson’s Rule 35 Motion for Reconsideration, the district court also noted that, in a letter to
the court, Hanson had admitted that he believed cooperating with the PSI would be unfavorable to his case.
statements” and diminish “the integrity of the factual inquiry.” Id. at 322. That Court was
concerned that permitting a witness to control the topics on which he or she will answer
questions could distort the facts and “make of the Fifth Amendment not only a humane safeguard
against judicially coerced self-disclosure but a positive invitation to mutilate the truth a party
offers to tell.” Id. Thus, when a defendant puts a matter before the sentencing court, thereby
waiving the privilege, the defendant may not then invoke the privilege as to other matters related
to the same subject.
The State argues that the general waiver rule applies to bar Hanson from participating in
a psychological evaluation while refusing to participate in a PSI because the two reports cover
several of the same topics and share the purpose of assisting the court in its sentencing decision
and thus encompass a single subject. While there are topics common to both a PSI and a
psychological evaluation, the resulting reports do not constitute a single subject such that waiver
of the privilege as to one constitutes waiver as to the other.
The Idaho Criminal Rules require that a PSI report contain the following elements:
(1) The description of the situation surrounding the criminal activity with which
the defendant has been charged, including the defendant’s version of the criminal
act and the defendant’s explanation for the act, the arresting officer’s version or
report of the offense, where available, and the victim’s version, where relevant to
the sentencing decision.
(2) Any prior criminal record of the defendant.
(3) The defendant’s social history, including family relationships, marital status,
age, interests and activities.
(4) The defendant’s educational background.
(5) The defendant’s employment background, including any military record, and
defendant’s present employment status and capabilities.
(6) Residence history of the defendant.
(7) Financial status of defendant.
(8) Health of the defendant.
(9) The defendant’s sense of values and outlook on life in general.
(10) The presentence investigator’s analysis of the defendant’s condition. That
analysis of the defendant’s condition contained in the presentence report should
include a complete summary of the presentence investigator’s view of the
psychological factors surrounding the commission of the crime or regarding the
defendant individually which the investigator discovers. Where appropriate, the
analysis should also include a specific recommendation regarding a psychological
examination and a plan of rehabilitation.
I.C.R. 32(b). This list is essentially a requirement for a comprehensive background report on the
defendant and the crime for which he is being sentenced. While some of these elements could be
said to have at least an indirect connection to the defendant’s mental condition, most are not
related to mental condition at all. Further, the structure of I.C.R. 32 recognizes that the PSI report
does not provide detailed information regarding mental condition, stating in subsection (10) that
the report should contain a “specific recommendation regarding a psychological evaluation.” Id.
Thus, the report must not contain the same information as a report prepared following a
psychological evaluation, or the rule would not require the presentence investigator to make
recommendations regarding a psychological evaluation where appropriate.
In contrast, when a psychological evaluation is ordered pursuant to I.C. § 19-2522, the
report must contain:
(a) A description of the nature of the examination;
(b) A diagnosis, evaluation or prognosis of the mental condition of the defendant;
(c) An analysis of the degree of the defendant's illness or defect and level of
(d) A consideration of whether treatment is available for the defendant's mental
(e) An analysis of the relative risks and benefits of treatment or nontreatment;
(f) A consideration of the risk of danger which the defendant may create for the
public if at large.
I.C. § 19-2522(3). These requirements do not merely provide the sentencing court with general
background information about the defendant or the offense for which the defendant is to be
sentenced. Rather, each requirement is focused directly and exclusively on the defendant’s
mental condition. The Court of Appeals has held that a “cursory” report is insufficient because a
psychological evaluation must provide “in-depth analysis” of the defendant’s mental condition.
See, e.g., State v. Durham, 146 Idaho 364, 371, 195 P.3d 723, 730 (Ct. App. 2008); Banbury, 145
Idaho at 270, 178 P.3d at 635; McFarland, 125 Idaho at 881, 876 P.2d at 163; State v. Pearson,
108 Idaho 889, 891, 702 P.2d 927, 929 (Ct. App.1985). Additionally, the examination and report
must be done by a “psychiatrist or licensed psychologist.” I.C. § 19-2522(1). The PSI report, on
the other hand, “relies greatly on information already available in public records, such as
educational background, residence history and employment information.” Estrada, 143 Idaho at
562, 149 P.3d at 837. Thus, a psychological evaluation is a much narrower and more detailed
report that requires professional evaluation, and there is little actual overlap between its contents
and that of the PSI report.
Similarly, although a PSI and psychological evaluation share the general purpose of
assisting the sentencing court, the specific content of the report prepared following a
psychological evaluation demonstrates that it is intended to be used in a distinct manner at
sentencing. The PSI report provides the sentencing court with broad background information
regarding the defendant’s life and criminal history, and this Court has held that “the primary
purpose of a PSI is to assist the district court in sentencing.” State v. Draper, 151 Idaho 576, ___,
261 P.3d 853, 873 (2011). The purpose of a psychological evaluation, however, “is to assist the
district court at sentencing in determining whether to recommend psychological treatment under
section 19-2523 during a defendant’s confinement or probation.” State v. Harper, 129 Idaho 86,
91, 922 P.2d 383, 388 (1996). Although both reports aid the sentencing court in its determination
of an appropriate sentence, the purpose of a psychological evaluation is specific to the court’s
evaluation of the defendant’s mental condition. Therefore, we hold that a PSI and a
psychological evaluation do not cover the same subject for purposes of a defendant’s waiver of
his Fifth Amendment privilege.
The State also contends that where a defendant refuses to participate in the PSI but is
willing to participate in a psychological evaluation, there is a concern about the trustworthiness
of the information he provides. It argues that there is no reason to believe the same reasons
offered for declining to participate in the PSI do not also apply to a psychological evaluation,
suggesting that Hanson’s selective waiver is an attempt to manipulate the information before the
We note that the policy justifications for the waiver rule in the trial setting are of less
concern in the context of the presentence process because PSI and psychological evaluation
reports cover different topics. In Mitchell, the United States Supreme Court was concerned about
the integrity of the “factfinding” process during trial, explaining that the waiver rule exists to
prevent a trial witness from using the privilege to manipulate his or her testimony on “a
particular subject” in a way that could “open the way to distortion of facts.” 526 U.S. at 322. It
then distinguished the trial setting from a plea colloquy, noting that a guilty plea does not involve
a factual dispute and thus does not “pose a threat to the integrity of factfinding proceedings.” Id.
In this case, there is little danger that Hanson will manipulate the information available to
the court for purposes of sentencing. Again, we note the difference in the subject matter
addressed by a PSI report as compared to a report of psychological evaluation. Additionally, the
integrity of the proceedings is preserved because the sentencing court identifies and appoints the
psychiatrist or psychologist preparing the report and the State receives a copy of the
psychological evaluation and may present arguments to the court at the sentencing hearing
regarding what effect, if any, the results of the evaluation should have in the court’s
determination of an appropriate sentence. See I.C. § 19-2522(4). Consequently, we find the
policy considerations underlying application of the waiver rule in the guilt phase to be less
persuasive in the context of the sentencing phase.
Therefore, because a PSI and a psychological evaluation do not cover the same subject
matter and because there is little reason to apply the general waiver rule in presentencing
proceedings, we hold that a defendant may waive the Fifth Amendment privilege against selfincrimination in order to submit to a psychological evaluation without waiving it with respect to
participation in the PSI.
3. The district court’s failure to order a psychological evaluation was not harmless error.
The State argues that even if the district court erred by failing to order a psychological
evaluation, the error was harmless because the court considered Hanson’s mental status and
recommended evaluation and treatment while incarcerated. We disagree.
The harmless error rule “establishes that any error, defect, irregularity or variance cited
on appeal which does not affect substantial rights shall be disregarded.” Harper, 129 Idaho at 91,
922 P.2d at 388 (citing I.C.R. 52; State v. Zimmerman, 121 Idaho 971, 976, 829 P.2d 861, 866
(1992)). The State relies on Harper for the proposition that the sentencing court’s error in failing
to order an evaluation is harmless where the court orders or recommends treatment as a
component of the sentence. In Harper, the district court’s order for a psychological evaluation
did not require the evaluation to address all of the factors in I.C. § 19-2522(3), and therefore the
report to the court did not contain all of the required elements. However, we held that any error
was harmless because the district court had the missing information before it from other sources
and considered that information prior to imposing sentence. Id. 5 Thus, in Harper, the defendant
suffered no prejudice because the sentencing court considered all the statutorily-required
information before imposing sentence thereby satisfying the purpose of the requirement.
The Court also noted that the purpose of a psychological evaluation is to assist the court in determining whether to
recommend psychological treatment during the defendant’s confinement, that the defendant’s request was for
treatment at the state penitentiary, and that the court had in fact ordered that treatment. Harper, 129 Idaho at 91, 922
P.2d at 388.
As noted, the language of I.C. § 19-2522 is mandatory and indicates that the court is to
consider the report before sentencing. Similarly, upon receipt of evidence pertaining to the
defendant’s mental condition, I.C. § 19-2523(1) mandates that the sentencing court consider the
defendant’s mental condition, “in addition to other criteria provided by law,” when “determining
the sentence to be imposed.” In view of this unambiguous expression by our Legislature that
sentencing courts are to obtain and consider evidence of the defendant’s mental condition, we are
unable to find that the failure to do so in this case is harmless error.
We acknowledge that the district court recommended that Hanson receive a
psychological evaluation while incarcerated. However, when there is reason to believe that the
defendant’s mental condition will be a significant factor at sentencing, as there is here, the
sentencing court may not ignore the obligation imposed by law because of a belief that the
applicable statute is “poorly drafted” or because of a disagreement with the interpretation of that
statute by the appellate courts of this state. 6 Therefore, we vacate the judgment.
B. The district court did not abuse its discretion when it denied Hanson’s request for a
Hanson argues that the district court abused its discretion by denying his request for a
competency evaluation prior to sentencing. Hanson contends that the court only considered
whether he understood the charges against him, but did not evaluate whether he had the ability to
assist his attorney with his defense during the sentencing proceedings. We affirm the ruling of
the district court.
The decision to order an evaluation to determine a defendant’s competency to stand trial
is within the discretion of the trial court. State v. Moore, 126 Idaho 208, 212, 880 P.2d 238, 242
(1994). By statute, if there is a reason to doubt the defendant’s competency, the court must order
a “qualified psychiatrist or licensed psychologist to examine and report upon the mental
Trial courts are not free to willfully disregard precedent from the appellate courts of this state. We reiterate our
previous position on this subject:
The entire Court membership had the same understanding as to the effect of a new principle of law
announced by the Court of Appeals; it becomes precedential law of this state, and all tribunals
inferior to the Court of Appeals are obligated to abide by decisions issued by the Court of
Appeals. To our knowledge, neither a district judge nor a trial judge has ever suggested not being
bound by new principles of law, whether they emanate from this Court or from the Court of
State v. Guzman, 122 Idaho 981, 986, 842 P.2d 660, 665 (1992) (emphasis in original). Although the district court’s
statements in this case demonstrate that the final partial sentence in this quotation is now outdated, we take this
opportunity to remind trial judges that they do not have the liberty to consciously disregard the principles of law
articulated by the appellate courts of this state.
condition of the defendant to assist counsel with defense or understand the proceedings.” I.C. §
18-211(1). The two-pronged test for competency “to stand trial is ‘[w]hether a defendant has
sufficient present ability to consult with his lawyer with a reasonable degree of rational
understanding and whether he has a rational, as well as factual, understanding of the proceedings
against him.’” Dunlap v. State, 141 Idaho 50, 59, 106 P.3d 376, 385 (2004) (quoting State v.
Green, 130 Idaho 503, 505, 943 P.2d 929, 931 (1997)). There are “no fixed or immutable signs
which invariably indicate the need for further inquiry to determine fitness to proceed.” Drope v.
Missouri, 420 U.S. 162, 180 (1975). The opinion of the defendant’s attorney “certainly is not
determinative,” but the attorney “is in the best position to evaluate a client’s comprehension of
the proceedings.” Dunlap, 141 Idaho at 59, 106 P.3d at 385 (citing Hernandez v. Ylst, 930 F.2d
714, 718 (9th Cir. 1991)). 7 However, “[t]he mere fact that [a defendant] did not heed his
counsel’s advice and was uncooperative or that his conduct on the stand would have more likely
hurt than help his case, does not render him incompetent to stand trial.” State v. Longoria, 133
Idaho 819, 823, 992 P.2d 1219, 1223 (Ct. App. 1999). Thus, where the court reasonably
considers both prongs of the test, its decision to deny an attorney’s request for a competency
evaluation is not an abuse of discretion.
Here, the district court properly considered the request for a competency evaluation. We
first note that Hanson’s conflict counsel gave only two reasons for requesting the competency
evaluation: because he believed it would help determine why Hanson declined to participate in
the pre-sentence report, and because he was having difficulty communicating with Hanson.
Counsel did not state that Hanson was unable to participate or assist in the sentencing
proceedings. However, the court’s comments at the sentencing hearing demonstrate that it
considered whether Hanson was capable of assisting with his defense. The court noted that
Hanson was able to express concern about his original attorney’s ability to represent him during
the sentencing phase. Further, Hanson wrote letters to the court in support of his own defense on
issues concerning due process and the legal process in general. While the court did not recite the
exact language of the standard, these comments indicate the court considered both prongs of the
At oral argument, Hanson’s attorney suggested that this Court should adopt a rule requiring trial courts to give
great weight to the opinion of trial counsel requesting competency evaluations. However, there is little we could add
to our statement in Dunlap without entirely removing the decision from the district court’s discretion.
legal standard applicable to its exercise of discretion. We therefore affirm the district court’s
denial of Hanson’s request for a competency evaluation. 8
C. The remaining issues on appeal are moot.
An issue is moot if “a favorable judicial decision would not result in any relief.” Dunlap,
141 Idaho at 62, 106 P.3d at 388 (citing Murphy v. Hunt, 455 U.S. 478, 481–82, (1982)). In
Dunlap, we held that where the district court had already granted a new sentencing hearing for
another error, the defendant’s request for resentencing because of ineffective assistance of
counsel was moot. Id. Consequently, an issue is moot if its resolution will not result in relief
beyond that already granted.
Here, Hanson argues that the district court failed to properly consider his mental health
and its effect on his actions. He suggests that in its denial of his request for a psychological
evaluation, the district court committed reversible error because that denial prevented the court
from fully complying with I.C. § 19-2523(1). Hanson also argues that the district court
improperly denied his Rule 35 Motion for Reconsideration because, by failing to order a
psychological evaluation prior to sentencing, it imposed his sentence in an illegal manner. Thus,
the basis for both of these issues is that the district court erred in failing to order a psychological
evaluation as required by I.C. § 19-2522, the same underlying argument Hanson asserts as
grounds for the other issues in his appeal. Because we have already determined that the district
court erred by not ordering a psychological evaluation and that the judgment must therefore be
vacated, these issues are moot and we do not address them in this opinion.
We affirm the district court’s denial of Hanson’s request for a competency evaluation.
We reverse the district court’s denial of Hanson’s request for a psychological evaluation
pursuant to I.C. § 19-2522 because 1) the record shows Hanson’s mental condition would be a
significant factor at sentencing, and 2) it incorrectly held that Hanson could not invoke his Fifth
Amendment privilege against self-incrimination with regard to the PSI but waive the privilege in
order to obtain a psychological evaluation. We vacate the district court’s judgment and remand
for further proceedings consistent with this opinion.
Due to the amount of time that has passed since Hanson was sentenced, we note that upon remittitur the district
court will possess the authority to order a competency evaluation if it finds there is reason to doubt Hanson’s
competency at the time of resentencing.
Chief Justice BURDICK and Justices EISMANN, J. JONES and W. JONES CONCUR.