Argued September 12, 2013.
Appeal from King County Superior Court. 09-1-06212-5. Honorable Ronald Kessler.
Richard A. Hansen (of Allen Hansen & Maybrown PS ), for petitioner.
Daniel T. Satterberg, Prosecuting Attorney, and Brian M. McDonald, Deputy, for respondent.
Sheryl C. Peterson, Mary Katherine Young High, Lila J. Silverstein, and Katherine C. Wax on behalf of Washington Association of Criminal Defense Lawyers, amicus curiae.
AUTHOR: Justice Susan Owens. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Charles W. Johnson, Justice Mary E. Fairhurst, Justice James M. Johnson, Justice Debra L. Stephens, Justice Charles K. Wiggins, Justice Steven C. Gonzá lez, Kevin M. Korsmo, J. Pro Tem., result only.
[179 Wn.2d 811] ¶ 1 The Sixth Amendment guarantees a criminal defendant the right to assistance of counsel, which includes the right to confer privately with that counsel. State intrusion into those private conversations is a blatant violation of a foundational right. We strongly condemn " the odious practice of eavesdropping on privileged communication between attorney and client." State v. Cory, 62 Wn.2d 371, 378, 382 P.2d 1019 (1963). We presume that such eavesdropping results in prejudice to the defendant and have vacated criminal convictions when there was no way to isolate the prejudice to the defendant from such " shocking and unpardonable conduct." Id.
¶ 2 In this case, we are asked whether a conviction must be vacated even if it were shown that the eavesdropping did not result in any prejudice to the defendant--in other words, whether the presumption of prejudice from such eavesdropping is rebuttable. That question is crucial in this case because here, the police detective eavesdropped on attorney-client conversations after the trial was complete and the jury had found the defendant guilty. Thus, while the conduct was unconscionable, there was no way for the [179 Wn.2d 812] eavesdropping to have any effect on the trial itself. Further, the prosecutor submitted a
declaration stating that the detective on the case never communicated any information about the attorney-client conversations to the prosecution.
¶ 3 In light of these circumstances, we hold that eavesdropping is presumed to cause prejudice to the defendant unless the State can prove beyond a reasonable doubt that the eavesdropping did not result in any such prejudice. In this case, the record does not provide enough information to make this determination, and we remand for additional discovery.
¶ 4 While the most significant issue in this case involves the detective eavesdropping on conversations between Jorge Nahun Peña Fuentes and his attorney, there are also legal challenges to four other rulings: (1) the trial judge's decision regarding discovery related to the eavesdropping, (2) the trial judge's evidentiary ruling related to a letter by Peña Fuentes's daughter (who is also the victim's half sister), (3) the trial judge's ruling that Peña Fuentes's convictions for both rape of a child and child molestation violated his double jeopardy rights, and (4) the Court of Appeals' denial of Peña Fuentes's motion to supplement the record. Below is a summary of the basic facts in this case, as well as the facts related to each of the various legal issues.
J.B. Reports Abuse
¶ 5 In November 2008, ninth grader J.B. told her school counselor that her stepfather, Peña Fuentes, had touched her inappropriately when she was younger. The counselor immediately contacted Child Protective Services and J.B.'s parents. The police investigated, and Peña Fuentes was eventually charged with first degree rape of a child, three counts of first degree child molestation, and three counts of second degree child molestation.
[179 Wn.2d 813]Overview of the Trial
¶ 6 Peña Fuentes was put on trial in October 2010. Because of the ongoing nature of the abuse and the limitations of J.B.'s memories from childhood, the prosecution did not know the specific dates of particular incidents of abuse. However, J.B. could recall the location of abuse, and because the family had moved somewhat frequently, the different incidents of abuse could be connected with specific time periods based on where the family was living when the abuse occurred. Therefore, the prosecution based its charges on conduct occurring during a certain time period, which it determined based on where the family was living at the time:
o Count II was based on abuse alleged to have occurred while the family was living at an apartment in Bellevue, between November 26, 2000 and June 1, 2003.
o Counts I, III, and IV were based on abuse alleged to have occurred while the family was living at a condo between January 1, 2003 and November 25, 2005.
o Counts V, VI, and VII were based on abuse alleged to have occurred after Peña Fuentes and J.B.'s mother had divorced, while J.B. was living with her mother in Sammamish and Peña Fuentes was living in Redmond between November 26, 2005 and November 25, 2007.
¶ 7 At trial, J. B. testified about many incidents of inappropriate touching, beginning when she was in first grade. Her memories of the early abuse at the Bellevue apartment (related to count II) were " [n]ot very good," 2 Verbatim Report of Proceedings (VRP) at 322, and the jury ultimately found Peña Fuentes not guilty on count II.
¶ 8 J.B.'s memories of later abuse at the condo (related to counts I, III, and IV) were much clearer. She testified in detail about repeated incidents of Peña Fuentes abusing [179 Wn.2d 814] her at the condo. Id. at 329-30. J.B. also testified about two specific and particularly severe incidents involving penetration that occurred while they were living at the condo. The jury ultimately found Peña Fuentes guilty on counts I, III, and IV.
¶ 9 J.B. indicated that the abuse was less frequent after Peña Fuentes and her mother divorced. During this time, J.B. testified that the abuse occurred at Peña Fuentes's home in Redmond (related to counts V, VI, and VII). The jury was unable to reach unanimity on the remaining charges.
¶ 10 No witnesses directly corroborated or refuted J.B.'s testimony. Some of the State's witnesses, including J.B.'s grandmother, testified that J.B. sometimes expressed discomfort about having to go to Peña Fuentes's house, and two of J.B.'s friends testified that she had alluded to the abuse in previous years.
¶ 11 Peña Fuentes himself did not testify at trial, but the original police interview of Peña Fuentes was submitted as evidence. During that interview, he denied most of the abuse but acknowledged a few incidents ...