No November Term, STATE OF WEST CAROLINA, Petitioner, v. ON WRIT OF CERTIORARI TO THE SUPREME COURT OF WEST CAROLINA

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1 No IN THE SUPREME COURT OF THE UNITED STATES November Term, 2016 STATE OF WEST CAROLINA, Petitioner, v. RUBEN C. MASON, Respondent. ON WRIT OF CERTIORARI TO THE SUPREME COURT OF WEST CAROLINA BRIEF FOR THE RESPONDENT Team [2502] Counsel for the Respondent September 22, 2016 SOUTHERN ILLINOIS UNIVERSITY SCHOOL OF LAW NATIONAL HEALTH LAW MOOT COURT COMPETITION

2 TABLE OF CONTENTS TABLE OF CONTENTS.i TABLE OF AUTHORITIES..iii QUESTIONS PRESENTED 1 STATEMENT OF THE CASE...2 SUMMARY OF THE ARGUMENT..6 ARGUMENT...8 I. THIS COURT SHOULD AFFIRM THE SUPREME COURT OF WEST CAROLINA S HOLDING BECAUSE MR. MASON NEVER WAIVED HIS FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION, HIS STATEMENTS WERE COERCED, IN A CUSTODIAL SETTING, AND THE PROGRAM COUNSELOR TOOK ADVANTAGE OF MR. MASON S STATUS AS A MINOR.8 A. Because Mr. Mason Gave Testimony That Was Compelling and Self- Incriminating; His Privilege Against Self-Incrimination Was Violated Because He Was Not Read His Miranda Rights..9 B. Because Barker Was Aware of the Statutory Mandatory Duty to Report Acts of Child Abuse to Law Enforcement, the Interaction Between Barker and Mr. Mason Should Be Considered a Custodial Interrogation.11 C. Because Mr. Mason Was a Minor at the Time of His Confession, He Lacked the Experience, Perspective, and Judgment to Recognize and Avoid Choices That Could Be Detrimental to Himself..12 II. THIS COURT SHOULD AFFIRM THE SUPREME COURT OF WEST CAROLINA S RULING THAT THE ADMISSION OF A WRITTEN PSYCHOSEXUAL EVAULATION REPORT PRODUCED FOR A PRIOR JUVENILE SENTENCING HEARING BY A NOW UNAVAILABLE WITNESS VIOLATES THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT 14 A. The Evaluation was Inadmissible Because it Was a Testimonial Statement by an Unavailable Declarant, in Violation of the Confrontation Clause.15 B. The Report Was Inadmissible at Trial Because No Hearsay Exception Applies, it is Unreliable, and Similar Out of Court Statement Have Been Held to Be Inadmissible...19 III. THIS COURT SHOULD AFFIRM THE RULING OF THE SUPREME COURT OF WEST CAROLINA BECAUSE MR. MASON WAS NOT AFFORDED EFFECTIVE ASSISTANCE OF COUNSEL, GUARANTEED BY THE SIXTH AMENDMENT, AS HIS COUNSEL FAILED TO OBJECT TO EVIDENCE ON CONSTITUTIONAL GROUNDS..21 A. Mr. Mason Was Not Afforded Effective Assistance of Counsel Because His Attorney Failed to Object to the Admission of the Sexual Offender Management Program Treatment Record Under the Fifth Amendment s Privilege Against Self-Incrimination..22 i

3 B. Mr. Mason Was Not Afforded Effective Assistance of Counsel Because His Attorney Failed to Object to the Admission of Barbara Cohen s Psychosexual Report Under the Sixth Amendment s Confrontation Clause 24 CONCLUSION..27 ii

4 TABLE OF AUTHORITIES United States Supreme Court Cases Bullcoming v. New Mexico, 564 U.S. 647 (2011)..19 Crawford v. Washington, 541 U.S. 36 (2004) 15, 16, 18 Davis v. Washington, 547 U.S. 813 (2006)..15, 17, 18 Giles v. California, 544 U.S. 353 (2008)..20 Hiibel v. Sixth Judicial Dist. Ct. of Nev., Humbolt Cty., 542 U.S. 177 (2004)..9, 10 J.D.B. v. North Carolina, 564 U.S. 261 (2011) 12, 13 Maryland v. Shatzer, 559 U.S. 98 (2010) 10 Mathis v. United States, 391 U.S. 1 (1968) 14, 23 Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) 18, 19 Michigan v. Bryant, 562 U.S. 344 (2011) 16, 17, Miranda v. Ariz., 384 U.S. 436 (1966) 4, 6-14, 22 Ohio v. Clark, 135 S. Ct (2015)...17 Strickland v. Washington, 466 U.S. 668 (1984) Williams v. Illinois, 132 S. Ct (2012)..16 United States Court of Appeals Cases United States v. Conley, 779 F.2d 970 (4 th Cir. 1985).12 United States v. Saechao, 418 F.3d 1073 (9 th Cir. 2005)...11 District Court Cases Moses v. Allard, iii

5 779 F. Supp. 857 (E.D. Michigan. 1991) 8 K.A. ex rel. J.A. v. Abington Heights Sch. Dist., 28 F. Supp. 3d 356 (M.D. Pa. 2014)...13, 14 Tony M. Banks v. Warden, 2011 U.S. Dist. LEXIS State Supreme Court Cases State v. Felton, 110 Wis. 2d 485 (1985)..23, 24 Constitutional Provisions U.S. Const. amend. V.passim U.S. Const. amend. VI passim iv

6 QUESTIONS PRESENTED I. Does admission into evidence of the unwarned statements of a juvenile detainee in a sex offender management program violate the Self-Incrimination Clause of the Fifth Amendment? II. III. Does admission of a written psychosexual evaluation report produced for a prior juvenile sentencing hearing by a now unavailable witness violate the Confrontation Clause of the Sixth Amendment? Was appellant deprived of effective assistance of counsel when defense counsel neglected to object to the admission of evidence on Fifth and Sixth Amendment grounds? 1

7 STATEMENT OF THE CASE I. Procedural History The Respondent, Ruben C. Mason, asks this Court to affirm the Supreme Court of West Carolina s ruling reversing the judgment of the Court of Appeals of West Carolina. The Petitioner, the state of West Carolina, filed a petition for writ of certiorari with the Supreme Court of the United States. R. at 27. The District Court of West Carolina convicted Ruben C. Mason of felony aggravated sexual assault of a child, after admitting into evidence both a Sex Offender Management Program Report and a psychosexual evaluation, in violation of the Fifth and Sixth Amendments. Id. at 4. On appeal, the Court of Appeals of West Carolina affirmed the conviction, finding no violation of the Constitution. Id. at 5. The Court of Appeals of West Carolina also found that Mr. Mason was not subjected to ineffective assistance of counsel. Id. The Respondent then appealed to the Supreme Court of West Carolina, which reversed the judgments of the district and appellate courts. Id. at 23. The Supreme Court of West Carolina found that the district court erred in admitting into evidence both the Sex Offender Management Program Report and a psychosexual evaluation. Id. at 19, 21. That court indicated that the Fifth and Sixth Amendments precluded the admission of said evidence. Id. Additionally, the Supreme Court of West Carolina found that Mr. Mason s counsel was ineffective, in violation of the Sixth Amendment, because counsel failed to object to the admission of the evidence on any constitutional grounds. Id. at 23. The Petitioner filed an appeal to the Supreme Court of the United States, which granted certiorari. Id. at 27. II. Facts The Respondent, Mr. Mason, pleaded responsible to a charge of a felony sex offense against a minor in District Court, in 2005, when he was 14. R. at 2. Mr. Mason was sentenced to 2

8 juvenile detention for 24 months and ordered to complete a Juvenile Sex Offender Management (SOM) program, while in detention. Id. To aid the judge in making this sentence, the state ordered a psychosexual evaluation to be conducted on Mr. Mason, which was performed by Barbra Cohen. Id. At the time of this evaluation, Cohen was a psychology doctoral student at Brevemont University, but was supervised by a psychiatrist employed by the detention center, Dr. George Knowles, MD. Id. Dr. Knowles signed off on Cohen s assessment report. Id. Cohen s report diagnosed Mr. Mason as a pedophile with a personality disorder not otherwise specified and recommended that he complete the Juvenile Sex Offender Management program. Id. At sentencing, the District Court ordered Mr. Mason to complete the SOM program and that if he failed to do so, the detention center would have the power to extend his release date up to the end of his juvenile term, which would be until he was 18, or approximately an additional two years. Id. While in detention, Mr. Mason participated in the SOM program where he repeatedly claimed that he had committed no other sex offenses, other than that for which he was charged. Id. at 3. Unlicensed social worker Howard Barker, the SOM counselor, repeatedly pressed Mr. Mason about this claim and indicated that Mr. Mason could not complete the SOM program if he did not disclose other past misconduct. Id. While in the SOM program, Mr. Mason attended group treatment sessions, but did not disclose any other past criminal or sexual misconduct. Id. Three month before Mr. Mason s conditional release, Howard Barker told Mr. Mason that the detention center would not release him and would continue to detain him because he had not completed to SOM program or cooperated with the treatment. Id. In the very next SOM session, Mr. Mason admitted to new sexual misconduct, specifically that he had had prior sexual activity with his younger sister, a claim that was corroborated by a polygraph test. Id. After the session, the unlicensed social worker and SOM Counselor, Howard Barker, reported 3

9 Mr. Mason s disclosure to detention staff members, pursuant to his statutorily mandated duty to report. Id. Staff members then reported it to law enforcement officers. Id. Law enforcement investigated the claim and Mr. Mason was charged as an adult for two counts of felony aggravated sex offense with a child for sexual acts committed with his younger sister. Id. at 3-4. Mr. Mason remained in juvenile detention until he was 18, when he was transferred to adult jail pending his trial for the new charges. Id. at 4. It is undisputed that Mason was never informed by counsel, juvenile detention staff, including SOM treatment providers, or anyone else, of his Miranda rights while in sex offender treatment. Id. At trial, Howard Barker testified to Mr. Mason s disclosure made during his SOM sessions. Neither Mr. Mason nor his sister, the alleged victim, testified at trial. Id. The SOM treatment record was admitted at trial, including detailed disclosures and verbatim quotes by Mason. Id. Defense counsel for Mr. Mason objected to the admission of the SOM treatment record under the state counselor-patient privilege of communications, but this motion was denied. Id. Additionally, Barbra Cohen s psychosexual report was admitted into evidence even though Cohen was unavailable to testify at trial and Mr. Mason was never afforded the opportunity to cross-examine her. Id. Defense counsel never made any constitution objections to the admission of either the SOM report or the psychosexual evaluation. Id. Mr. Mason was convicted and sentenced to 15 years in prison and ordered to be on the public sex offender registry. Id. Mr. Mason appealed, claiming that the trial court erred in admitting into evidence the SOM report, as it violated his Fifth Amendment right against self-incrimination and he received no Miranda warnings before being questioned. Id. at 5. Additionally, Mr. Mason claimed that admitting the psychosexual evaluation into evidence violated his Sixth Amendment right to confrontation. Id. Finally, Mr. Mason argued that because his counsel failed to make these constitutional objections, he received ineffective assistance of 4

10 counsel, in violation of his Sixth Amendment rights. Id. The appellate court affirmed the holding of the District Court, and then the Supreme Court of West Carolina reversed the district and appellate courts. Id. at 5, 23. 5

11 SUMMARY OF THE ARGUMENT Minors should be evaluated with higher scrutiny when assessing whether a person is afforded the Fifth Amendment right against self-incrimination. The Fifth Amendment protects defendants from coercion by state actors where defendants do not have adequate protection by way of an attorney. Without such rights, state actors would act as the judge, jury, and executioner, which would undermine the judicial system. Mr. Mason was a minor in a juvenile detention center and was coerced into making statements against his own interest, under threats of continued detainment. Additionally, Mr. Mason was not read his Miranda rights and was not afforded an opportunity to consult with an attorney. Even where defendants are not in a traditional custodial setting, like that of a police station, their Fifth Amendment rights should still be protected when a confession could be used as self-incriminating information. Here, Mr. Mason was in a custodial setting, and under the guise of a treatment program was deceived by a social worker into giving damaging statements, which he had refused to make for years prior. As a public policy measure, to allow a minor s confession into evidence that was the result of bribery and coercion from a state agent, while he was being detained, would be an egregious departure from the integrity of the United States justice system. Criminal prosecutors should not be allowed to circumvent defendants constitutional rights because a witness is unavailable at trial. The Sixth Amendment to the Constitution guarantees a criminal defendant the right to confront the witnesses against him. Mr. Mason was not afforded his constitutionally protected right to cross-examine Barbara Cohen, before or during trial. Despite this, the trial court erroneously admitted into evidence Cohen s damaging psychosexual report, which accused Mr. Mason of being a pedophile and a sex offender. The Sixth Amendment s Confrontation Clause is designed to protect defendant s in exactly Mr. 6

12 Mason s position. The clause allows for cross-examination to rebut and call into question a declarant s statements. Mr. Mason was deprived of this constitutional right. In this case, Barbara Cohen was an absent declarant, her report contained testimonial statements, which were admitted at trial without any opportunity for cross examination, in violation of the Sixth Amendment. Allowing prosecutors to admit testimonial declarations from an absent declarant, who the defendant never had an opportunity to cross-examine, is a violation of the United States Constitution, opens the door to unreliable trial verdicts and injustice, and must not be permitted by this Court. Counsel is ineffective, in violation of the Six Amendment, when it fails to submit objections to the admission of evidence that clearly violate Constitutional rights. Counsel is ineffective when it is deficient and when this deficiency causes the defendant prejudice. Mr. Mason s counsel was deficient because he failed to make constitutional objections to the admission into evidence of a damaging SOM report and psychosexual evaluation. These objections would be obvious to any attorney, sworn to uphold the Constitution, or any American citizen who is familiar with the Constitution. This deficient conduct greatly prejudiced the Mr. Mason because the reports contained statements that were detrimental to his defense. Had counsel made these objections, the trial result would have been different as the evidence would not have been admitted and the prosecution would not have been able to meet its burden of production. Because counsel did not object to the SOM report, containing a coerced confession, made without a Miranda warning, it was admitted into evidence. That report is the only evidence that in any way indicated the defendant s guilt. This Court must not allow a defendant s Constitutional rights be trampled because of a counselor s incompetence and lack of understanding of the Constitution. 7

13 ARGUMENT I. THIS COURT SHOULD AFFIRM THE SUPREME COURT OF WEST CAROLINA S HOLDING BECAUSE MR. MASON NEVER WAIVED HIS FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION, HIS STATEMENTS WERE COERCED, IN A CUSTODIAL SETTING, AND THE PROGRAM COUNSELOR TOOK ADVANTAGE OF MR. MASON S STATUS AS A MINOR. The self-incrimination clause of the Fifth Amendment states that no person shall be compelled in any criminal case to be a witness against himself. U.S. Const. amend. V. There are three policies behind the self-incrimination clause: (1) the belief that the government should not force a person to choose among self-accusation, perjury, and contempt; (2) the desire to curb the excesses of prosecutorial zeal; and, (3) the inherent distrust of self-incriminating statements. Moses v. Allard, 779 F. Supp. 857, 875 (E.D. Mich. 1991). Under Miranda v. Ariz., 384 U.S. 436 (1966), the prosecution cannot use selfincriminating statements from a defendant stemming from a custodial interrogation, unless the state actor has given the Miranda warning and the defendant waives his rights. Id. at 444. Without the protection of Miranda warnings and the right to an attorney, the greatest compelling proof of guilt the confession would be obtained at the unsupervised pleasure of the police. Id. at 466. Coercing a statement from a defendant instead of allowing evidence to come out organically undermines the United States adversarial system. Id. at 460. The first issue in this case is whether Mr. Mason waived his Fifth Amendment rights as a subject of a sex offender management program. The evidence and case law will show that Mr. Mason should have been afforded the privilege to invoke his Fifth Amendment rights. Barker took advantage of Mr. Mason s status as a minor and coerced a confession that was damaging in a custodial situation. 8

14 A. Because Mr. Mason Gave Testimony That Was Compelling and Self- Incriminating; His Privilege Against Self-Incrimination Was Violated Because He Was Not Read His Miranda Rights. This Court should honor Mr. Mason s Fifth Amendment rights against self-incrimination (U.S. Const. amend. V) by following the Miranda v. Ariz., 384 U.S. 436 (U.S. 1966) rule, which states that the [self-incrimination] privilege is fulfilled only when the person is guaranteed the right to remain silent unless he chooses to speak in the unfettered exercise of his own will. Id. at 460; (U.S. Const. amend. V). Forcing an individual to speak is not part of the adversarial system and is what the privilege against self-incrimination seeks to protect. Id. This Court should not waiver from the precedent set in Miranda, which protects the accused from self-incrimination. See id. This court should also follow the rule established in Hiibel v. Sixth Judicial Dist. Ct. of Nev., Humbolt Cty., 542 U.S. 177 (2004). The Hiibel court stated that to qualify for the Fifth Amendment [self-incrimination] privilege, a communication must be testimonial, incrimination, and compelled. Id. at 189. Because the compelled statements from Hiibel were not incriminating, his argument for the privilege against self-incrimination fell short. Id. In the present case, Mr. Mason s communication was testimonial, incriminating, and compelled. Because the testimony was testimonial, incriminating, and compelled, this Court should hold that the confession should be suppressed. The facts in Miranda are similar in application to the present case. Miranda was arrested for kidnapping and rape, taken into a police station, questioned, and signed a written admission of his guilt. Miranda, 384 U.S. at 491. The Miranda court held that the written confession must be suppressed because Miranda s testimony was compelled to incriminate himself. Id. Similar to the present case, there is indisputable evidence that Mr. Mason was never allowed his Fifth 9

15 Amendment rights. R. at 4. After months of prodding into Mr. Mason s criminal history, Barker informed Mr. Mason that administrators at the detention center intended to recommend a longer juvenile sentence because of Mr. Mason s lack of cooperation. Id. at 3. Consequently, Mr. Mason acquiesced to Barker s prodding and gave incriminating testimony that was confirmed by a polygraph test. Id. Mr. Mason s statements were in fact testimonial, incriminating, and compelled by Barker, which implicates the privilege against self-incrimination, as stated by the Hiibel court. Hiibel, 542 U.S. at 189. Because the fact pattern in the present case follows the line of reasoning in the seminal case of Miranda, this Court should uphold the Supreme Court of West Carolina s ruling that Mr. Mason s privilege against self-incrimination was violated. This Court should not follow the logic of the Court of Appeals of West Carolina when the court relied on Maryland v. Shatzer, 559 U.S. 98 (2010). In Shatzer, after invoking his Miranda rights, the defendant had a break in custody where, during the second investigation, he revealed incriminating information about sexually abusing his own son. Id. at While the Shatzer court correctly held that there was a break in custody, allowing the self-incriminating statements to come in, the West Carolina Court of Appeals in the current case relied on the language that confessions are an unmitigated good R. at 7. (quoting Shatzer 559 U.S. at 108). This Court should not rely on this language because such language undermines the purpose of the Fifth Amendment and Miranda warnings. Such language encourages biased power on behalf of the State against a defendant. Defendants like Mr. Mason should not have to convey their thoughts unless the decision is made to waive their Fifth Amendment rights. Because Mr. Mason was not read his Miranda rights prior to being coerced by Barker, R. at 4, his confession should be suppressed. 10

16 B. Because Barker Was Aware of the Statutory Mandatory Duty to Report Acts of Child Abuse to Law Enforcement, the Interaction Between Barker and Mr. Mason Should Be Considered a Custodial Interrogation. This Court should follow the rule laid out in Miranda, which states the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation. Miranda, 384 U.S. at 444. The Court in Miranda went on to define custodial interrogation as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Id. The Miranda Court focused on interrogations done in custody because they are private and secrecy... results in a gap of knowledge. Id. at 448. During these custodial interrogations, the Miranda Court was concerned with the psychological advantages that law enforcement has. Id. at 449. To determine whether the situation is custodial, a court should look at the totality of circumstances [that] deprived the defendant of a free choice to admit to deny, or to refuse to answer. Id. at 534. This Court should hold that the interaction between Barker and Mr. Mason was custodial because Barker coerced Mr. Mason into statements that ultimately were damaging to himself. The facts in United States v. Saechao, 418 F.3d 1073 (9 th Cir. 2005) are similar to the facts of the current case. In that case, Saechao was in a meeting with his probation officer who repeatedly asked whether Saechao possessed a firearm. Id. at Saechao succumbed to the probation officer s questioning, and admitted there was a firearm in his apartment, which was illegal because he was a felon. Id. The probation officer turned the admitted statements over to the federal authorities and they charged Saechao with being a felon in possession of a firearm. Id. The Ninth Circuit held that because Saechao had to choose between making self-incriminating statements and maintaining his conditional liberty, the incriminating statements had to be suppressed. Id. at Similar to Saechao, Mr. Mason had to choose between self-implicating 11

17 himself and his conditional liberty. R. at 3. If Mr. Mason did agree to confess in a polygraph session, the detention administrators were going to recommend a longer sentence. Id. If Mr. Mason continued to be uncooperative, his conditional liberty would be in jeopardy. Id. Even though Barker is not a probation officer, this Court should rule that the testimony given by Mr. Mason was in a custodial setting because he was deprived of his freedom significantly. This Court should not follow the logic used by the Fourth Circuit in United States v. Conley, 779 F.2d 970 (4 th Cir. 1985), which held that a prison inmate in a conference area was not in custody. Id. at 973. There are two reasons why Conley can be distinguished from the current case. First, it is undisputed that Conley and the officers who questioned were familiar and friendly with one another. Id. There is less likely to be coercion in this scenario where the parties are friendly with one another. See id. Second, Conley admitted that his statements were made voluntarily. Id. Any statement that is made voluntarily without coercive influence is admissible evidence. Miranda, 384 U.S. at 478. In the present case, Mr. Mason was not on friendly terms with Barker and Mr. Mason did not feel like he had the option to cooperate or not. See R. at 3. Because Mr. Mason was deprived of his free choice to cooperate with Barker, this Court should distinguish Conley from the present case because the circumstances of the two interviews were different. Because Mr. Mason was not allowed his free choice to cooperate in the interview with Barker, See R. at 3, his interview should be considered a custodial interrogation. C. Because Mr. Mason Was a Minor at the Time of His Confession, He Lacked the Experience, Perspective, and Judgment to Recognize and Avoid Choices That Could Be Detrimental to Himself. This Court should follow the J.D.B. decision to give heightened attention to the developmental stage of minors. J.D.B. v. North Carolina, 564 U.S. 261, 273 (2011). Courts have 12

18 found that children are more inclined to cave to outside pressures than adults. Id. at 272. Further, a child who is subject to a custodial interrogation cannot be compared to an adult. Id. When a person caves to undue influence during an interrogation, the voluntary statement at that point is not a waiver of a Fifth Amendment privilege. Miranda, 384 U.S. at 476. This Court should take into account the fact that minors are vulnerable to outside pressures during interrogations and when they cave to those interrogations, their statements are involuntary and not a waiver of their Fifth Amendment rights. This Court should follow the rule in J.D.B. that a minor s age should be taken into account when deciding whether or not the child is in custody. J.D.B., 564 U.S. at 277. The facts in J.D.B. align similarly with the present case. A seventh grade student confessed to multiple robberies after he was pressed to tell the truth by police officers and his assistant school principal. Id. at 266. The assistant principal specifically said, [d]o the right thing, and the truth always comes out in the end. Id. J.D.B was never read his Miranda rights and he was not allowed to speak to his guardian. Id. Similar to the present case, Mr. Mason, a teenager, was coerced into incriminating himself without being read his Miranda rights. R. at 4, 22. The program counselor notified Mr. Mason that the administrators would be recommending that his juvenile detention sentence be extended because of his lack of cooperation. R. at 3. Because Mr. Mason did not have the maturity to realize that his confession could implicate himself, he appeased Barker and the detention center administrators. See R. at 3-4. Therefore, this Court should hold that Mr. Mason s age should have been considered in determining whether there was a custodial interrogation. The present case can be distinguished from the holding in K.A. ex rel. J.A. v. Abington Heights Sch. Dist., 28 F. Supp. 3d 356 (M.D. Pa. 2014). In K.A. ex rel J.A., where a middle 13

19 school student was called into the vice principal s office by school administrators for suspicion of distributing spice. Id. at 360. The court held that the student was questioned for school disciplinary purposes and was not being questioned by state actors. Id. at 366. Further, the court reasoned that students are not entitled to Miranda warnings for disciplinary actions in a public school setting. Id. The present case is distinguishable from K.A. ex rel. JA because Barker was acting on behalf of the state when he was questioning Mr. Mason. See R. at 3, 15. Further, Barker did not need to be a member of law enforcement to trigger the privilege against selfincrimination. See, e.g., Mathis v. United States, 391 U.S. 1, 4 (1968). Because Barker was acting as a state agency, he should have been required to read Miranda warnings to Mr. Mason. Additionally, this Court should consider Mr. Mason s status as a minor because he was not in a school setting he was in a custodial setting. Because Barker did not give Miranda warnings, this Court should hold that the damaging testimony should be suppressed. This Court should look at Mr. Mason s age with heightened scrutiny because he was a minor at the time of questioning who did not realize he could refrain from implicating himself in a criminal case. II. THIS COURT SHOULD AFFIRM THE SUPREME COURT OF WEST CAROLINA S RULING THAT THE ADMISSION OF A WRITTEN PSYCHOSEXUAL EVAULATION REPORT PRODUCED FOR A PRIOR JUVENILE SENTENCING HEARING BY A NOW UNAVAILABLE WITNESS VIOLATES THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT. This Court should not allow an out of court statement by an unavailable declarant to be admitted into evidence at trial because it would violate the Sixth Amendment s Confrontation Clause. (U.S. Const. amend. VI). The Confrontation Clause indicates that [i]n all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. This clause forbids admission of testimonial statements of a witness that did not appear 14

20 at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct (2004). Barbara Cohen s psychosexual evaluation of the defendant, Mr. Mason, was a testimonial out of court statement that was used as evidence against him at his criminal trial. Since Mr. Mason was never afforded the opportunity to confront Mrs. Cohen at or before trial, the psychosexual evaluation was inadmissible. Therefore, this Court should affirm the Supreme Court of West Carolina s ruling that the trial court erred in admitting the evaluation into evidence, requiring vacation of Mr. Mason s conviction and sentence. A. The Evaluation was Inadmissible Because it Was a Testimonial Statement by an Unavailable Declarant, in Violation of the Confrontation Clause. This Court should affirm the Supreme Court of West Carolina s holding because Cohen s psychosexual evaluation was an out of court testimonial statement, which affords a criminal defendant the right to confront the declarant, under the Sixth Amendment to the United States Constitution. Testimonial statements of witnesses absent from trial [can be] admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine. Crawford, 541 U.S. at 59. Mr. Mason was not afforded the right to confront the witness against him, and therefore the trial court erred in admitting the report into evidence. See R. at This Court in Davis v. Washington said that statements are testimonial when the circumstances objectively indicate that there is no ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. 547 U.S. 813, 822 (2006). Additionally, this Court has indicated that testimonial statements include material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially. Crawford, 541 U.S. at

21 Cohen s psychosexual evaluation fits into the category of a testimonial statement because it was used prosecutorily at trial, thus it was potentially relevant to later criminal prosecution, and the defendant was unable to cross-examine the declarant of said testimonial statement. See R. at 4. Further, the evaluation was not conducted during an ongoing emergency, as any alleged crime occurred long before, and Mr. Mason had already pleaded responsible in juvenile court and was in detention. R. at 2. This Court has declared that there is no ongoing emergency when the suspect of a crime is in custody or has been captured. See Williams v. Illinois, 132 S. Ct. 2221, 2243 (2012). The Supreme Court of West Carolina rightly found, contrary to the trial and appellate courts, that the psychosexual evaluation was testimonial in nature. R. at 21. That court correctly emphasized that even though the report was written initially for juvenile court sentencing purposes, Cohen was serving the state under supervision of state employee, detention center psychiatrist, Dr. Knowles, and that involvement of government officers increases the risk that a statement is testimonial. Id; see Crawford, 541 U.S. at 53. The report was prepared because the State of West Carolina requested it in order to evaluate Mr. Mason for sentencing purposes when he was a fourteen-year-old juvenile detainee. R. at 20. Additionally, state and government employee Dr. Knowles signed off the report. R. at 2. This government involvement further indicates that the psychosexual evaluation was testimonial in nature and that the trial court erred in admitting it into evidence because the declarant was unavailable and Mr. Mason was unable to cross-examine Cohen, in violation of his Sixth Amendment rights. For a statement to be testimonial, it need not be given under oath, but must demonstrate formality and solemnity, such as a declaration or affirmation. See Michigan v. Bryant, 562 U.S. 344, 378 (2011) (Thomas, J., concurring). [F]ormalized testimonial statements include 16

22 statements from depositions, affidavits, and prior testimony, as well as statements resulting from formalized dialog. Id. at 379. Mrs. Cohen s psychosexual evaluation had a formal structure, was professionally written, was based on the formalized dialog between she and Mr. Mason, and was used not only for sentencing purposes, but also later at a separate criminal trial. R. at 20. Therefore, the report was testimonial in nature and was subject to the Confrontation Clause of the Sixth Amendment. The Supreme Court of West Carolina s ruling should be affirmed because the trial court erred in admitting Cohen s report, in violation of the Confrontation Clause. As this Court stated in Bryant, all relevant circumstances must be considered when determining if a statement is testimonial. 562 U.S. at 369. One factor to consider in making such a determination is the informality of the situation. Id. at 377. The more formal the exchange, the more likely it is to provoke a testimonial statement. Ohio v. Clark, 135 S. Ct. 2173, 2180 (2015). Conversely, less formal questioning is less likely to elicit testimonial statements. Id. Cohen s psychosexual evaluation was very formal in nature, as it was conducted by court order, while Mr. Mason was detained, and under the supervision of an agent of the state, R. at 20, evincing that the statements were testimonial in nature. This Court must affirm the decision of the Supreme Court of West Carolina because Cohen s report was testimonial, the declarant was unavailable at trial, and Mr. Mason was not afforded his constitutional right of confrontation. Further, the Supreme Court of West Carolina indicated that the lower courts, in analyzing the Confrontation Clause issue, failed to consider the proposition from Davis that testimonial statements are present when the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. 547 U.S. at 822; R. at 21. This test would easily encompass a report such as Cohen s. R. at 21. The primary purpose of the report was not to provide mental health treatment, but rather to discover past events in order to reach a 17

23 medical diagnosis and aid the court in sentencing. See id. In concluding that the report was not testimonial, the appellate court in the present case erroneously relied solely on the narrower Crawford test, which asks whether the report was made with an eye toward trial. (R. at 9.) The lower courts erred by failing to contemplate the other relevant issues that were raised in the Davis case, which was decided after Crawford. R. at 21. The Supreme Court of West Carolina was correct in granting Mr. Mason a new trial because the trial court failed to make the proper considerations, when it incorrectly admitted constitutionally inadmissible evidence. The report was also testimonial because it was obviously potentially relevant to later criminal prosecution, as it was in fact used at trial to help convict Mr. Mason. Davis, 547 U.S. at 822; R. at 21. The use of the report at trial was undoubtedly very prejudicial, as parts were quoted during the trial, including that Mr. Mason was a pedophile with a personality disorder not otherwise specified and included Cohen s recommendation that Mr. Mason complete a Sex Offender Management program. R. at 9. The error in admitting the report was extremely prejudicial, as the jury, in a sex offense prosecution, heard out-of-court statements from a student of mental health, which alleged that Mr. Mason was a pedophile. R. at 19, 21. This Court must therefore affirm the Supreme Court of West Carolina s holding that Mr. Mason s criminal conviction should be overturned. Testimonial statements are offered for the truth of the matter asserted. Crawford, 541 U.S. at 59. It is uncontested, by the parties, that the facts and conclusions found in the evaluation were used at trial to prove the truth of the matter asserted, as the report had no impeachment value. R. at 20. In Melendez-Diaz v. Massachusetts, this Court found that forensic reports were testimonial statements and forensic analysts were witnesses for Sixth Amendment Confrontation 18

24 Clause purposes. 557 U.S. 305, 307, 311 (2009). In that case, this Court overturned a criminal conviction because the reports were admitted at trial, they indicated that the defendant was guilty, the analysts were unavailable, and the defendant was not afforded any opportunity to confront the analysts at or before trial. See id. at 307, 309, 329; see also Bullcoming v. New Mexico, 564 U.S. 647, 651, (2011) (holding that a criminal conviction for driving while intoxicated must be overturned due to a Sixth Amendment Confrontation Clause violation, as the trial court erred in admitting a testimonial blood alcohol laboratory test, where the forensic analyst that performed the test was unavailable). Just as this Court held in Melendez-Diaz that forensic analyst reports were testimonial statements requiring the right of confrontation, so too should this Court hold that the doctoral psychology student intern s psychosexual report is a testimonial statement that required the right of confrontation. Therefore, this Court should affirm the holding of the Supreme Court of West Carolina that Mr. Mason s criminal conviction must be overturned, as his Sixth Amendment right to confrontation was violated. B. The Report Was Inadmissible at Trial Because No Hearsay Exception Applies, it is Unreliable, and Similar Out of Court Statement Have Been Held to Be Inadmissible. This Court should affirm the Supreme Court of West Carolina s ruling because Cohen s psychosexual report was not and cannot be admitted into evidence as a hearsay exception. In Michigan v. Bryant, this Court said that the right of confrontation does not prevent statements from unavailable declarants where the statements bear adequate indicia of reliability. 562 U.S. 344, 353 (2011). However, the Court also went on to explain reliability exists where the evidence falls within a firmly rooted hearsay exception. Id. This Court has recognized two common law hearsay exceptions for the admission of unconfronted testimonial statements: (1) where the declarant was on the verge of death and the speaker knew that he was dying; and (2) where a 19

25 witness was detained or kept away from the proceedings by some act of the defendant. Giles v. California, 544 U.S. 353, (2008). Neither of these exceptions are applicable to the psychosexual report because there was no dying declaration and the declarant, Mrs. Cohen, was unavailable because she was deployed overseas. R. at 19. Since no hearsay exception is applicable and the prosecution has waived any claim of a hearsay exception, the report was inadmissible at trial, as Mr. Mason was not afforded his confrontation right to cross-examine the absent declarant. This Court should affirm the Supreme Court of West Carolina s decision because the declarant was unavailable at trial and her report is unreliable. The psychosexual evaluation was conducted and the report authored by Barbara Cohen, at the time a psychology doctoral student from Brevemont University. R. at 2. Although Cohen was supervised by psychiatrist Dr. George Knowles, MD, who signed off on the report, the fact remains that the evaluation was conducted by a student and not a licensed medical doctor, psychiatrist, psychologist, or other mental health care professional. Id. Because the report was written by a student, it is inherently more suspect than if it had been written by an actual doctor. The trial court should have afforded Mr. Mason his right to confront the witness against him in order for the report s damaging testimonial statements to be admitted into evidence. The report s lack of reliability is even more of a reason to afford Mr. Mason his constitutional right to confront an adverse witness. Although this Court has never ruled on the admissibility of statements made by an out-ofcourt declarant in a psychosexual evaluation, this Court has ruled on admissibility of similar types of reports, such as those created by police officers during witness interrogations. Police interrogations, even those conducted in good faith, entail the right of confrontation if information gained by said interrogations is used at trial. Bryant, 562 U.S. at 358. In that case, the defendant 20

26 would have the right to cross-examine his accuser, and if the declarant was unavailable, their statements to police would be inadmissible at trial. See id. The psychosexual report, in this case, is similar to police interrogation reports because it was made at the direction of the state and the court, and it was used for the purpose of aiding a judge in administering a sentence. (R. at 2.) Just as this Court ruled in Bryant that the right of confrontation attaches to statements made during a police interrogation, so too should this Court rule that the right of confrontation attaches to declarations made in a court-ordered psychosexual evaluation, conducted under state authority, for sentencing purposes. Both of these types of reports involve state action for the purpose of criminal court proceedings and are testimonial in nature. This Court should therefore affirm the Supreme Court of West Carolina s ruling and find that the psychosexual report was inadmissible because it violated Mr. Mason s Sixth Amendment right of confrontation. III. THIS COURT SHOULD AFFIRM THE RULING OF THE SUPREME COURT OF WEST CAROLINA BECAUSE MR. MASON WAS NOT AFFORDED EFFECTIVE ASSISTANCE OF COUNSEL, GUARANTEED BY THE SIXTH AMENDMENT, AS HIS COUNSEL FAILED TO OBJECT TO EVIDENCE ON CONSTITUTIONAL GROUNDS. This Court should not allow a criminal conviction to stand when counsel failed to perform reasonably and comparable to the prevailing professional norms. Under the Sixth Amendment, a criminal defendant shall enjoy the right to have the Assistance of Counsel for his defense. (U.S. Const. amend. VI). A convicted defendant can prove ineffective assistance of counsel by proving two components. Strickland v. Washington, 466 U.S. 668, 687 (1984). First, the defendant must prove that his counsel s performance was deficient, insofar as counsel made such serious errors that he ceased to function as the counsel of the defendant, which is guaranteed by the Sixth Amendment. Id. Second, the defendant must prove that the counsel s performance prejudiced the defense because the serious errors amounted to the deprivation of 21

27 a fair and reliable trial. Id. Additionally, the defendant must prove that but for the ineffective assistance of counsel, there is a reasonable probability that the outcome of the trial would have been different, or that the jury would have had a reasonable doubt regarding the defendant s guilt. Id. at 695. The benchmark for judging any claim of ineffective assistance of counsel must be whether counsel s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Id. at 686. In this case, Mr. Mason s criminal conviction must be overturned as his assistance of counsel was ineffective. Counsel s performance was both deficient and his errors prejudiced the defense to the point of an unfair and unreliable trial result. It is likely that had counsel objected to the admission of the SOM report and the psychosexual evaluation, under the Fifth and Sixth Amendments, the evidence would not have been admitted and the jury would have had a reasonable doubt concerning the defendant s guilt. This Court should affirm the decision of the Supreme Court of West Carolina, ordering the defendant s conviction to be reversed, as Mr. Mason was not afforded his Sixth Amendment right to effective assistance of counsel. A. Mr. Mason Was Not Afforded Effective Assistance of Counsel Because His Attorney Failed to Object to the Admission of the Sexual Offender Management Program Treatment Record Under the Fifth Amendment s Privilege Against Self-Incrimination. This Court should affirm the Supreme Court of West Carolina s holding because Mr. Mason was not afforded effective assistance of counsel, as his attorney failed to make a Fifth Amendment privilege against self-incrimination objection. The defendant must first prove that his counsel s performance was deficient. Id Not coming forth with a basic Constitutional defense should be considered ineffective counsel when there are relevant grounds to prove that Mr. Mason s confession should have been Mirandized. The Court of Appeals of West Carolina and the Supreme Court of West Carolina both agreed that Barker did not need be a member of 22

28 law enforcement to implicate the Fifth Amendment. R. at 6, 16; see Mathis, 391 U.S. at 4. The West Carolina Supreme Court went so far as to say that Mr. Mason never waived his Fifth Amendment rights. R. at 14. Further, Mr. Mason was in an interrogation setting where he did not feel he had the option to end the interrogation. See R. at These factors are the very root of what the privilege against self-incrimination seeks to protect. To not bring such a basic claim as a Constitutional right defense is a serious miscarriage of justice and should be considered deficient performance. Second, the defendant must prove the prejudice prong, which states that but for ineffective counsel, the outcome of the proceeding would have been different. Strickland, 466 U.S. at 687. Had defense counsel raised a privilege against self-incrimination defense, it is likely that the outcome of the trial would have been different. If the claim is brought forward and this Court rules that evidence should have been suppressed under the privilege against selfincrimination, the state does not have a case against Mr. Mason. The state s case centrally relies on only the circumstantial evidence from Mr. Mason s confession. Without this evidence, the state cannot win and therefore the outcome of the trial would have been different. The application of law regarding ineffective assistance of counsel in State v. Felton, 110 Wis. 2d 485 (1985) case should be similar to the way this Court applies the ineffective counsel standard. In that case, Felton killed her husband and her defense counsel did not raise a heat of passion defense claim. Id. at 487, 505. The Wisconsin Supreme Court held that counsel s investigation into the law was subpar and violative of a prudent lawyer s duty to investigate. Id. at 516. Similarly, in the present case, it was Mr. Mason s counsel s duty to research a defense issue so basic as a Constitutional defense. Because Felton s counsel did not raise a heat of 23

29 passion defense, she was awarded a new trial. Id. Similarly, in the present case, because the proper defense was not raised, R. at 23, Mr. Mason should be awarded a new trial as well. B. Mr. Mason Was Not Afforded Effective Assistance of Counsel Because His Attorney Failed to Object to the Admission of Barbara Cohen s Psychosexual Report Under the Sixth Amendment s Confrontation Clause. This Court should affirm the Supreme Court of West Carolina s holding because Mr. Mason was not afforded effective assistance of counsel, as his attorney failed to make a Sixth Amendment Confrontation Clause objection. R. at 23. Assistance of counsel is effective when an attorney performs reasonably under prevailing professional norms, and Mr. Mason s counsel failed to meet this standard when he did not object to the admission of the psychosexual report, under the Sixth Amendment. Strickland, 466 U.S. at 688. The statements in the report were made out of court, by an absent declarant. See R. at 19. Any competent counselor knows that the Confrontation Clause of the Sixth Amendment guarantees a defendant s right to confront witnesses against him. Clearly, Barbara Cohen s statements in the psychosexual report constituted a potential violation of the defendant s constitution rights, and counsel for the defendant should have made this objection, as it is very likely that such an objection would have prevented the admission of the damaging evidence contained in the report. For a defendant to prove ineffective assistance of counsel, he must first prove that his representation was deficient and that counsel s serious errors resulted in a ceasing of functioning as defendant s counsel. Strickland, 466 U.S. at 687. Mr. Mason s representation was deficient because his counsel should have objected to the admission of the psychosexual report, under the Sixth Amendment, because it was an out of court testimonial statement, made by an unavailable declarant. R. at 21. These facts strongly indicate a constitutional violation, as the defendant was not afforded his right to confront witnesses against him. See R. at 21. Failing to make this 24