State v. Carpenter

• Decision Date: 14 April 2021
• Docket Number: No. 53952-7-II,53952-7-II
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Petitioner, v. ROBERT GLEN CARPENTER, Respondent.

STATE OF WASHINGTON, Petitioner, v. ROBERT GLEN CARPENTER, Respondent.

No. 53952-7-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

April 14, 2021

UNPUBLISHED OPINION

SUTTON, A.C.J. — The State appeals the trial court's order disqualifying the entire Pierce County Prosecuting Attorney's Office (PAO) from prosecuting Robert Carpenter in a first degree assault case. There has never been an allegation that the Pierce County elected prosecutor had a conflict, but that Pierce County deputy prosecuting attorneys (DPAs) have had conflicts. The State argues that (1) the trial court erred by granting Carpenter's motion to disqualify the entire PAO when there were effective screening methods used by the DPAs from the inception of the assault case, and (2) public policy disfavors disqualification of an entire prosecuting attorney's office.¹ We hold that the trial court abused its discretion by granting Carpenter's motion to disqualify the entire PAO from prosecuting Carpenter when there were effective screening methods employed by the DPAs in the PAO. We reverse and remand for further proceedings consistent with this opinion.

FACTS

A CARPENTER'S EMPLOYMENT

At the time of the incident at issue, Carpenter was employed as a Sergeant with the Pierce County Sheriff's Office. Since 2008, he was the lead defensive tactics instructor for the sheriff's office. He was an expert witness in a case in 2009 prosecuted by DPAs Michelle Luna Green and Alicia Burton. In 2014, Carpenter was sued for alleged excessive use of force.² Carpenter spent "significant time" with the attorney representing him, Sean-Michael Davis of the PAO, and Carpenter discussed a wide variety of topics with Davis, including his defense philosophies.³ Clerk's Papers (CP) at 33. Finally, during his time with the sheriff's office, Carpenter conducted use of force and defensive tactics training for new-hire and in-service personnel, and at least four DPAs attended those trainings.

B. CURRENT CASE

On October 5, 2018, officers were dispatched to a reported stabbing in progress. Carpenter, who was off-duty at the time, and Samuel Corales were in the front seats of a car, and Corales' hands were covered in blood. The State's theory of the case is that Carpenter, Corales, and a third individual met earlier in the evening and consumed alcohol together before deciding to purchase marijuana and book a hotel room. The State alleges that Carpenter displayed his handgun and a fight ensued, resulting in Carpenter stabbing Corales.

On December 12, 2018, the PAO charged Carpenter with assault in the first degree. At that time, Mark Lindquist was the elected prosecuting attorney. Carpenter's case was initially screened by the Kitsap County Prosecuting Attorney's Office and assigned to Kitsap County DPA Coreen Schnepf. This screening was not done due to an alleged conflict of interest, nor did the court find one subsequently.

In January 2019, Mary Robnett became the newly elected prosecutor for the PAO. In March 2019, she hired Schnepf as a DPA, who remained assigned to prosecute Carpenter. One week later, Pierce County DPA Jonathan Salamas was also assigned to prosecute Carpenter. Salamas had been employed previously with the Washington State Attorney General's Office, but began working at the PAO in February 2019.

At the September 27, 2019, trial readiness hearing, Carpenter's counsel raised a possible conflict of interest issue for the first time. The court continued the trial readiness hearing one week to allow Carpenter time to file briefing on the conflict issue and continued the trial to October 16, at both parties' request.

Carpenter filed his motion to disqualify, which he called the "memorandum of authorities." CP at 30. Carpenter argued that under RPC 1.7(a) and RPC 1.9, the PAO must be disqualified. He argued that the current criminal case was analogous to Duckworth, where the plaintiff alleged Carpenter used excessive force as a law enforcement officer, and that "confidential client communications with the [PAO] would unfairly benefit the State in this prosecution." CP at 32. Carpenter attached to his motion a declaration consistent with the facts described above.

The State responded to Carpenter's motion and argued that disqualification was unnecessary. In its response, the State attached a declaration from Salamas, a declaration from Schnepf, and a declaration from Daniel Hamilton, one of the civil DPAs initially assigned to represent Carpenter in Duckworth. Salamas and Schnepf stated in their declarations that before Carpenter filed the motion, neither of them was aware of the Duckworth case or that Carpenter had ever testified as an expert witness, and that upon learning of this, they contacted Hamilton. They did not review any other records from the civil division of the PAO, including those regarding Duckworth, and they did not discuss Carpenter's case with anybody from the civil division. Salamas spoke with a computer business systems analyst for the PAO, who informed Salamas that "[DPAs] assigned to the criminal division cannot access internal []PAO civil division files, databases, or case information." CP at 22.

Hamilton had no recollection of Carpenter's civil case, and he had only briefly represented him by filing a notice of appearance and moving to remove Duckworth from King County Superior Court to federal court. Another attorney, Davis, litigated the case alone for its duration until it was dismissed in 2016. Davis left the PAO in 2017. Hamilton also stated that he had contact with Salamas and Schnepf only to the extent necessary to determine whether he had, in fact, represented Carpenter in Duckworth.

Neither party offered any evidence to suggest that either elected prosecutor, Lindquist or Robnett, was personally conflicted.

On October 9, 2019, the trial court held a hearing on Carpenter's motion. The court granted the motion and disqualified the entire PAO based on the "long period of representation" by the PAO in Duckworth and Carpenter's experience in 2009 "as an expert witness in other cases" citingState v. Nickels, 7 Wn. App. 2d 491, 434 P.3d 535 (2019), aff'd, 195 Wn.2d 132, 456 P.3d 795 (2020). Verbatim Report of Proceedings (VRP) (Oct. 9, 2019) at 13-14.

I think that under these facts, the office should be disqualified. I think the appearance of it - even though everyone would act in good faith, and even though I know the civil section does have a separate computer system, but we all know how information travels within an office, especially someone who the office has represented and defended previously and used as an expert witness now becomes charged in a serious criminal case, I just think the appearance of that results in the disqualification.

I do appreciate the briefing material that went into it. I think it's a close call, but I think it would be a terrible waste of resources to have to retry this case because, if on appeal, it gets reversed because the office wasn't disqualified.

VRP (Oct. 9, 2019) at 14-15.

The court then entered the following written findings of fact (FF):

1. On 10.4.18, [Carpenter] was involved in an altercation in a parking lot, in Tacoma, Wa., that led to the instant charges.

2. On 10.4.18, [Carpenter] was employed by the Pierce County Sheriff's Department (PCSO) as a Sgt.

3. After fielding the case in Thurston County, the Thurston office declined review.

4. The investigation was then sent to Kitsap for review by their prosecutor's office.

5. Following the review of the Kitsap prosecutors office, on 12.12.18, this case was charged by Information, charging one count of felony assault.

6. [Carpenter] has been employed by PCSO for 2+ decades.

7. While employed by PCSO, [Carpenter] has been represented by the [PAO] in a federal law suit that was dismissed approximately 2 years after it was filed. The claim against [Carpenter] was for excessive force, and the allegation was analogous to the instant charges. Throughout the course of said representation, [Carpenter] shared confidential communications with the [PAO], dealing with same/similar issues as those now at bar.

8. [Carpenter] also testified for the County of Pierce as a use of force expert, engaging in strategic and confidential communications.

9. The Court finds that, even though the civil section of the [PAO] has a separate computer system, information still travels within that office. Moreover, some of the prosecutors who dealt with/represented [Carpenter] are still employed in the office.

10. It would be a terrible waste of resources to have to retry the instant case in the event it were reversed on appeal.

CP at 39-40. Based on these findings, the court entered the following conclusions of law (CL):

1. The Court has jurisdiction over the parties and the subject matter.

2. The Rules of Professional Conduct mandate when an office is personified, and in this case the Pierce County Prosecutors Office has a conflict prosecuting [Carpenter].

3. This conflict arises as a result of the [PAO] prior representation of [Carpenter] in a same or similar civil allegation in federal court, to include [Carpenter's] prior employment by said office in the capacity as a use of force expert.

CP at 40.

We granted the State's motions for discretionary review and to stay proceedings in the trial court pending review

ANALYSIS

I. DISQUALIFICATION

The State argues that the trial court abused its discretion by disqualifying the entire PAO because (1) the one remaining attorney who worked on Duckworth was effectively screened from Carpenter's prosecution in this case, (2) the plain language of the RPCs provides that the conflict of one DPA does not impute the entire office so long as the elected prosecutor has no conflict, and (3) substantial evidence does not support the trial court's findings of fact and they do not supportthe court's conclusion to disqualify the entire office. We hold that the trial court abused its discretion by disqualifying the entire PAO when there were effective screening...