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State v. Irby

Court of Appeals of Washington, Division 1

April 16, 2018



          DWYER, J.

         Terrance Irby appeals from the judgment entered on a jury's verdicts finding him guilty of one count of murder in the first degree and one count of burglary in the first degree. Irby contends that the trial court erred by denying his motion to dismiss. This ruling was based on the trial court's finding that Irby did not establish prejudice arising from the actions of jail guards who opened and read written communications from Irby to Irby's lawyer. The trial court erred, Irby asserts, because it reached this conclusion without presuming that the constitutional violation was prejudicial and without holding the prosecution to its burden to present evidence sufficient to prove, beyond a reasonable doubt, that the presumption of prejudice was overcome and that the violation did not prejudice him.

         We agree. Accordingly, we reverse the trial court's order denying Irby's motion to dismiss and remand this matter for further proceedings.[1]


         In April 2005, Irby was charged with one count of burglary in the second degree, alleged to have occurred on March 6, 2005, and the following counts alleged to have occurred on March 8, 2005, one count of aggravated murder in the first degree with an alternative allegation of first degree felony murder, one count of burglary in the first degree, one count of robbery in the first degree, three counts of unlawful possession of a firearm in the first degree, and one count of attempting to elude a police vehicle. The latter charges arose out of the robbery and bludgeoning death of James Rock.

         In January 2007, a jury found Irby guilty of murder in the first degree with aggravating circumstances, felony murder in the first degree, and burglary in the first degree. Four years later, the Washington Supreme Court reversed the judgment of conviction and remanded the cause for a new trial in light of the court's determination that Irby's due process rights had been violated during jury selection. See State v. Irby, 170 Wn.2d 874, 246 P.3d 796 (2011).

         Irby's retrial was held in 2013. The State prosecuted the same charges that were brought during the first trial and Irby was convicted as charged. Notably, at the retrial, Irby was allowed to proceed pro se. He also voluntarily absented himself from the trial. We subsequently reversed the judgment of conviction and remanded the cause for yet another new trial because the trial judge had erroneously seated a juror who had demonstrated actual bias against Irby during voir dire. See State v. Irby, 187 Wn.App. 183, 347 P.3d 1103(2015), review denied. 184 Wn.2d 1036, 379 P.3d 953 (2016).

         In March 2016, pretrial proceedings began for Irby's third trial. Attorney Jennifer Rancourt filed a notice of appearance on Irby's behalf. In mid-March, the State filed an amended information charging Irby with one count of premeditated murder in the first degree and one count of burglary in the first degree. Two days later, Irby appeared in court and was arraigned on the charges. He entered pleas of not guilty.

         In mid-March and again in late March, Irby requested to represent himself. Following a colloquy with the trial court in mid-April, Irby's request was granted.

         Four months later, Irby filed a pro se motion to dismiss the charges against him. In his motion, Irby alleged misconduct by jail guards, claiming that (during the period of time during which Ms. Rancourt represented him) they had improperly opened outgoing mail containing privileged legal communication intended for his attorney.

         The trial court denied Irby's motion. The trial court did determine that the jail guards had violated Irby's right to counsel by opening and reading privileged attorney-client communications. Although Irby argued that the trial court's determination mandated that a presumption of prejudice be imposed, the trial court placed on Irby the burden of proving prejudice and concluded that he did not do so.

         One month later, Irby informed the trial court that he had decided not to attend the trial and waived his right to be present at trial.

         After a jury was selected without Irby's participation, the evidentiary stage of Irby's third trial began. Irby did not attend the trial. The State presented its case in chief and gave closing argument. No defense or closing argument were presented on Irby's behalf.

         The jury returned verdicts finding Irby guilty as charged.

         Irby was sentenced to concurrent terms of incarceration of 388 months for the murder in the first degree conviction and 54 months for the burglary in the first degree conviction.


         Irby contends that the trial court erred in denying his CrR 8.3(b) motion to dismiss.[2] Irby's contention has merit.


         This matter involves an alleged deprivation of a defendant's Sixth Amendment right. In order to determine whether such a deprivation occurred- and whether a remedy must issue-the inquiry proceeds as follows:

1. Did a State actor participate in the infringing conduct alleged by the defendant?
2. If so, did the State actor(s) infringe upon a Sixth Amendment right of the defendant?
3. If so, was there prejudice to the defendant? That is, did the State fail to overcome the presumption of prejudice arising from the infringement by not proving the absence of prejudice beyond a reasonable doubt?
4. If so, what is the appropriate remedy to select and apply, considering the totality of the circumstances present, including the degree of prejudice to the defendant's right to a fair trial and the degree of nefariousness of the conduct by the State actor(s)?[3]

         In analyzing the matter before us, we bear this framework in mind.


         To determine whether the trial court erred in denying Irby's motion to dismiss, we initially address whether a State actor engaged in misconduct.

         "[T]he Sixth Amendment concerns the confrontation between the State and the individual." Michigan v. Jackson, 475 U.S. 625, 634, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986V overruled on other grounds by Monteio v. Louisiana, 556 U.S. 778, 129 S.Ct. 2079, 173 L.Ed.2d 955 (2009).

         Irby's motion to dismiss alleged that the confrontation between himself and the State involved conduct by jail guards employed by the county jail in which he was being housed. The trial court agreed. On appeal, neither party disputes that the jail guards were State actors.

         Thus, Irby established that the conduct underlying his claim involved State actors.

         Having established that Irby has implicated conduct by State actors, we next turn to whether the jail guards' conduct infringed upon his Sixth Amendment right.

The Sixth Amendment guarantees a criminal defendant the right to assistance of counsel, which includes the right to confer privately with that counsel. U.S. Const, amend. VI. 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).

State v. Peǹa Fuentes, 179 Wn.2d 808, 811, 318 P.3d 257 (2014). Plainly, a defendant's Sixth Amendment right to assistance of counsel is violated when the State intrudes into a privileged attorney-client communication. By implication, a defendant's Sixth Amendment right is not necessarily infringed upon when the attorney-client information acquired by the State is not privileged.

         This calls for us to initially determine whether the information exposed to the scrutiny of the jail guards included privileged attorney-client communications.


         "The attorney-client privilege, codified in RCW 5.60.060, protects confidential attorney-client communications from discovery so clients will not hesitate to fully inform their attorneys of all relevant facts." Barry v. USAA, 98 Wn.App. 199, 204, 989 P.2d 1172 (1999) (citing Escalante v. Sentry Ins. Co., 49 Wn.App. 375, 393, 743 P.2d 832 (1987)).

To qualify for attorney-client privilege, a communication must be made in confidence. Dietz v. John Doe, 131 Wn.2d 835, 849, 935 P, 2d 611 (1997). The presence of a third person during the communication waives the privilege, unless the third person is necessary for the communication, State v. Martin, 137 Wn.2d 774, 787, 975 P.2d 1020 (1999), or has retained the attorney on a matter of "common interest, " Broyles v. Thurston County, 147 Wn.App. 409, 442, 195 P.3d 985 (2008).

Morgan v. City of Fed. Way, 166 Wn.2d 747, 757, 213 P.3d 596 (2009). Thus, if the information contained in an attorney-client communication is not confidential, the information is not protected by the attorney-client privilege.

         Irby's motion to dismiss-and accompanying exhibits and addendum- alleged that he had sent 14 pieces of confidential correspondence containing privileged information to Rancourt that, he argued, had been improperly opened and read by jail guards in the Skagit County Jail. The correspondence constituted Irby's handwritten statements on both a "Public Defender Request Form" and jail kites-multi-purpose request forms available to inmates in the Skagit County Jail.

         Irby's filings alleged that, prior to sending the correspondence, he had folded each piece of paper in half, sealed each piece of paper with tape, and written on the outward facing side, "CONFIDENTIAL, " "RANCOURT, " and "ATTORNEY BOX."[4]

         The parties did not dispute in the trial court nor do they dispute on appeal that the folded and taped pieces of paper were intended to be confidential and included privileged attorney-client information. Thus, the aforementioned correspondence from Irby to his counsel contained privileged attorney-client information protected by the Sixth Amendment.


         The next matter to address is whether the jail guards' opening and reading of Irby's privileged attorney-client correspondence infringed upon his Sixth Amendment right to counsel.

         As indicated, government prying into privileged attorney-client communications is a "blatant violation" of the Sixth Amendment. Peǹa Fuentes, 179Wn.2d at 811.

         In beginning its analysis, the trial court stated:

I'm going to be finding, and I could be wrong number wise, that 12 out of the 14 communications that we're talking about here were opened and time stamped by corrections deputies in the jail. The other two were not stamped. And, of course, subsequently could have been opened by the jail or not opened until they got to the receiving party. But by the time anyone saw them again they had already been opened. But 12 of the 14 were stamped and opened by the jail.

         The trial court continued, "I am assuming that they were opened and opened incorrectly and that the contents were reviewed by the custodial branch of the Sheriffs Office."

         The parties do not dispute the trial court's finding that jail guards had opened and read Irby's privileged attorney-client communications. Thus, the jail guards-and therefore the State-infringed on Irby's Sixth Amendment right to counsel. This constitutes misconduct, within the meaning of CrR 8.3.


         Having established that State actors engaged in governmental misconduct by reading privileged attorney-client communications, we now turn to whether Irby was prejudiced by the misconduct. We begin with analyzing the trial court's ruling that no prejudice resulted from the jail guards' misconduct.


         After determining that the jail guards had engaged in misconduct by opening and reading Irby's privileged attorney-client correspondence, the trial court stated:

The next step is[, ] having found that violation[, ] does the presumption of prejudice immediately kick in? And I have reviewed the cases cited by both sides, and under these circumstances without any indication of the investigative branch involved or direct taping, listening into or obtaining by an investigator this information I simply can't make the connection automatically that this was provided to anyone in the Prosecutor's Office or anyone on the investigation side of the Sheriffs Office.

         In this way, the trial court determined that it would not presume prejudice to Irby because no law enforcement "investigative" personnel were involved in the jail guards' infringing conduct.

         In reaching this determination, the trial court emphasized what it perceived as a significant distinction between two types of State actors, law enforcement and jail security. In making this distinction, the trial court ostensibly reasoned that State misconduct by law enforcement is more likely to prejudice a defendant's fair trial right than is State misconduct by jail security. From this, the trial court then reasoned that a presumption of prejudice must apply to misconduct by law enforcement but not to misconduct by jail ...

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