In re Mulamba

• Citation: 508 P.3d 645
• Decision Date: 28 April 2022
• Docket Number: 99403-0
• Parties: In the MATTER OF the Personal Restraint of Reuben Denis MULAMBA, Petitioner.
• Court: United States State Supreme Court of Washington

508 P.3d 645

In the MATTER OF the Personal Restraint of Reuben Denis MULAMBA, Petitioner.

No. 99403-0

Supreme Court of Washington.

Argued October 28, 2021

Filed : April 28, 2022

Gregory Lee Zempel, Jodi Marie Hammond, Kittitas County Prosecuting Attorney, 205 W. 5th Ave., Ste. 213, Ellensburg, WA, 98926-2887, for Petitioner(s).

Neil Martin Fox Law, Office of Neil Fox, PLLC, 2125 Western Ave., Ste. 330, Seattle, WA, 98121-3573, for Respondent(s).

David L. Donnan, David Donnan, Attorney At Law, P. O. Box 55026, Shoreline, WA, 98155-0026, Alexandria Marie Hohman, The Washington Defender Association, 110 Prefontaine Pl. S., Ste. 610, Seattle, WA, 98104-2626, for Amicus Curiae on behalf of Washington Defender Association.

JOHNSON, J.

¶ 1 This case asks whether, under the facts in this case, the prosecution was required, under Brady v. Maryland ,¹ to turn over to the defense the jail and mental health records of the victims’ mother, who was a codefendant and a State's witness. Additionally, this case involves whether a Petrich jury unanimity instruction was required for charges of assault of a child. State v. Petrich , 101 Wash.2d 566, 683 P.2d 173 (1984). At trial, a jury found Reuben Denis Mulamba guilty of first degree assault of a child, second degree assault of a child, first degree criminal mistreatment of a child, and third degree criminal mistreatment of a child.

¶ 2 Mr. Mulamba filed a timely personal restraint petition (PRP) in the Court of Appeals, arguing multiple grounds for relief, based in part on the newly obtained jail records of a trial witness. The Court of Appeals, in an unpublished, split decision, granted Mr. Mulamba's petition with respect to his claims of a Brady violation and a Petrich jury unanimity violation.

¶ 3 We reverse the Court of Appeals on both the Brady violation and the jury unanimity claims, and we remand to the Court of Appeals for further consideration of any unresolved issues.

FACTS AND PROCEDURAL HISTORY

¶ 4 The trial testimony established that Mr. Mulamba and Ashly Eli met and started dating in August 2011. Beginning in November 2011, Ms. Eli and her four-year-old daughter, J., began staying in Mr. Mulamba's Ellensburg apartment. Ms. Eli's eight-year-old son, S., later joined his mother at Mr. Mulamba's apartment. Although Mr. Mulamba and Ms. Eli ended their romantic relationship, Ms. Eli and her children remained in the apartment when Ms. Eli lost her job in December 2011. Mr. Mulamba complained to Ms. Eli about the children's lack of discipline and called Ms. Eli a bad mother; his objections centered on the children's noise and J.’s tendency to wet herself.

¶ 5 By January 13, 2012, tensions between Mr. Mulamba and Ms. Eli had evidently escalated. Police were called after Ms. Eli and the children were barred from the apartment without shoes, extra clothes, or personal belongings. Mr. Mulamba and Ms. Eli reconciled after the incident, but abuse of the children began around this time.

¶ 6 According to Ms. Eli, Mr. Mulamba took control of disciplining the children. His discipline included beating both children with a belt or coaxial cables, threatening to burn S. with an iron and then beating the boy with a cold iron, pinching S.’s chest (possibly with pliers), and forcing S. to run behind the car while Mr. Mulamba drove. J. also suffered severe burns to her legs

that appeared to have been made by a hot iron; the burns were noted by Ms. Eli on January 29 when she asked Mr. Mulamba to bathe and treat J.’s injuries.

¶ 7 Ms. Eli did not meaningfully intervene in Mr. Mulamba's actions against the children before leaving Mr. Mulamba's apartment with the children on the night of January 29. After a short stay at a hotel, Ms. Eli and the children went to an emergency shelter. The shelter's supervisor contacted the police after Ms. Eli claimed her boyfriend had beaten the children. A detective interviewed Ms. Eli, but Ms. Eli would not identify Mr. Mulamba at that time. A subsequent interview with S. also failed to get a name for the boyfriend. Meanwhile, the shelter supervisor had noticed J. was in visible pain. The supervisor accompanied Ms. Eli and the children to a hospital emergency room. Doctors discovered extensive bruising on both children, plus second and third degree burns

on J.’s legs with open sores, which exhibited signs of rotting flesh. J. was also suffering from kidney failure. J. was airlifted to Harborview Medical Center in Seattle, and S. was transferred later—due to concerns about head and liver injuries—to the same hospital.

¶ 8 Child Protective Services interviewed the children; both children reported that their mother's boyfriend had beaten them. Neither child would name the boyfriend initially, claiming their mother had asked them not to identify him. Ms. Eli had been worried that Mr. Mulamba would be arrested, interrupting his college education, and that Mr. Mulamba might blame her for the abuse if he were arrested. During questioning, J. said that "Dennis [sic]" had hurt her. Report of Proceedings (RP) (Nov. 6, 2012) at 594 (Wash. Ct. App. No. 31314-0-III).²

¶ 9 Based on this investigation, Mr. Mulamba was charged with first degree assault of a child and first degree criminal mistreatment for the injuries to J., and with second degree assault of a child and second degree criminal mistreatment for S.’s injuries. The State alleged, for each count, victim vulnerability under RCW 9.94A.535(3)(b) as an aggravating factor.

¶ 10 Ms. Eli was also arrested and charged with assault and criminal mistreatment of the children. Originally a codefendant with Mr. Mulamba, Ms. Eli agreed to plead guilty to two counts of criminal mistreatment and to testify against Mr. Mulamba. In exchange, the State agreed to reduce the recommended sentence from 15 years to 10 years.

¶ 11 In the months before and during Mr. Mulamba's trial in October 2012, Ms. Eli was incarcerated at the Kittitas County Corrections Center. Jail records indicate that she was a disruptive inmate. Jail officials cited Ms. Eli 13 times for infractions that included possession of contraband, possession of a weapon, passing notes between inmates, inappropriate language and screaming, refusing orders, escape, damaging property, resisting restraints, attempting to riot, and self-mutilation. An October 26 note written by a jail sergeant noted that Ms. Eli " ‘cannot be trusted’ " because she " ‘hides, hordes [sic], and lies.’ "³ In re Pers. Restraint of Mulamba , No. 35087-8-III, slip op. at 12, 2020 WL 7231103 (Wash. Ct. App. Dec. 8, 2020) (unpublished), https://www.courts.wa.gov/opinions/pdf/350878_unp.pdf (quoting Suppl. Decl. of Neil M. Fox with Additional Exs. at 215 (Wash. Ct. App. No. 35087-8-III (2018)).

¶ 12 Ms. Eli additionally refused meals, inappropriately removed clothing, and smuggled razors into the jail (at least once admitting that the razor was intended for a suicide attempt). Mental health records from the jail noted that Ms. Eli was suffering from depression and maintained suicidal ideation. Individual incidents supported this diagnosis: Ms. Eli was confined to a restraint chair and then a restraint board on September 11; Ms. Eli banged on her cell door for over an hour that same night; she refused meals and tore up an infraction notice on September 12; Ms. Eli slit her arm with a razor on October 21; she wrote a suicide note on October 23; and, after Mr. Mulamba's trial ended, Ms. Eli attempted suicide by hanging.

¶ 13 At trial, the State's case included testimony from Ms. Eli, both children, police officers, social workers, doctors, neighbors, teachers, and hotel clerks. The children's out-of-court statements were admitted under the child hearsay statute. Ms. Eli's testimony included her admission that she had also abused the children (although she testified that Mr. Mulamba caused the severe injuries) and that she had entered into a plea agreement with the State. On cross-examination, Ms. Eli admitted to lying to the police, to making inconsistent statements about abusing the children, and to hiding Mr. Mulamba's identity from authorities.

¶ 14 The defense theory was that Ms. Eli—and not Mr. Mulamba—had inflicted the severe injuries on the children. Mr. Mulamba testified that he had not assaulted the children, although he did admit to incidents of hitting and pinching the children with his hand. Noting that he and Ms. Eli had argued about discipline of the children, Mr. Mulamba testified that he had observed Ms. Eli hitting the children with wires. He claimed to be unaware of the children's injuries or need for medical treatment.

¶ 15 The jury found Mr. Mulamba guilty on the counts of first degree assault of a child as to J., second degree assault of a child as to S., and first degree criminal mistreatment as to J. The jury found Mr. Mulamba guilty of a lesser-included count of third degree criminal mistreatment as to S. For all charges, the jury found the aggravating factor of victim vulnerability.

¶ 16 On direct review, the Court of Appeals affirmed Mr. Mulamba's convictions and sentence. State v. Mulamba , No. 31314-0-III, 2015 WL 3618594 (Wash. Ct. App. June 9, 2015) (unpublished), https://www.courts.wa.gov/opinions/pdf/313140.ord%20amn%20opn.pdf. He then filed a PRP in the Court of Appeals alleging (1) county staff had failed to ensure random jury selection, (2) Kittitas County was an inappropriate venue for the trial, (3) the State's failure to release Ms. Eli's jail records constituted a Brady violation (or represented ineffective assistance of counsel), (4) the jury failed to receive a required unanimity instruction, and (5) the trial judge committed errors in sentencing.⁴

¶ 17 The Court of Appeals ordered a reference hearing to determine whether the actions of Kittitas County staff had interfered with the jury selection process, and the Kittitas County Superior Court found no basis supporting that claim.⁵ A panel of judges then rejected Mr. Mulamba's vicinage claim but granted his petition regarding...