OPINION PUBLISHED IN PART
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.
agree. Accordingly, we reverse the trial court's order
denying Irby's motion to dismiss and remand this matter
for further proceedings.
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.
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).
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
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.
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.
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.
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
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.
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.
jury returned verdicts finding Irby guilty as charged.
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.
contends that the trial court erred in denying his CrR 8.3(b)
motion to dismiss. Irby's contention has merit.
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)?
analyzing the matter before us, we bear this framework in
determine whether the trial court erred in denying Irby's
motion to dismiss, we initially address whether a State actor
engaged in misconduct.
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).
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.
Irby established that the conduct underlying his claim
involved State actors.
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.
calls for us to initially determine whether the information
exposed to the scrutiny of the jail guards included
privileged attorney-client communications.
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
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
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.
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
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.
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
indicated, government prying into privileged attorney-client
communications is a "blatant violation" of the
Sixth Amendment. Peǹa Fuentes, 179Wn.2d at 811.
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
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
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.
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'
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.
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.
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 ...