State v. Cory

• Decision Date: 20 June 1963
• Docket Number: No. 35694,35694
• Citation: 5 A.L.R.3d 1352,382 P.2d 1019,62 Wn.2d 371
• Court: Washington Supreme Court
• Parties: , 5 A.L.R.3d 1352 The STATE of Washington, Respondent, v. William F. CORY, Appellant.

Page 371

62 Wn.2d 371

382 P.2d 1019, 5 A.L.R.3d 1352

The STATE of Washington, Respondent, v.William F. CORY, Appellant.

No. 35694.

Supreme Court of Washington, En Banc.

June 20, 1963.

Frederick B. Cohen, Bremerton, for appellant.

James Munro, Pros.Atty., Bremerton, for respondent.

Kenneth A. MacDonald, MacDonald, Hoague & Bayless, Marjorie Rombauer, Maurice Sutton, John Darrah, Seattle, amici curiae.

ROSELLINI, Judge.

The defendant was arrested in Bremerton on March 8, 1960, on a charge of lewdness, and incarcerated in the Kitsap County jail in Port Orchard.On March 9he was charged with second-degree burglary and larceny.Various amended informations followed, until at last he was tried on twelve counts of burglary and larceny.The jury found him guilty of five of these counts, and he has appealed, assigning numerous error sin the conduct of the trial.

We find it necessary to discuss only one of these assignments of error, inasmuch as our decision in regard to it disposes of the case.This is a contention that the court erred in denying the defendant's motions to dismiss the case, grounded upon his assertion that he was denied the full enjoyment of his right to counsel when sheriff's officers eavesdropped on his conversations with his attorney.

The record shows that the defendant, being unable to post bail, remained in the county jail from the time of his arrest throughout the trial and thereafter.A room was provided in the jail for consultations between prisoners and their attorneys.After the defendant had consulted with his attorney several times, he discovered that these conversations were being eavesdropped upon through a microphone installed in the conference room.When this matter was reported to the trial court, it conducted an investigation and discovered that the conference room did contain a microphone and that the conversations were listened to by the sheriff and his officers.At first they contended that only one tape was made of conversations, but later produced a second tape.The trial court ordered that these tapes be played for the defendant and his counsel, and also directed that the prosecutor might hear the recordings.

The trial judge refused to dismiss the case but did indicate that he would exclude any evidence derived through the eavesdropping, on motion of the defendant.It is the defendant's contention that the excluding of evidence which he could show was obtained by reason of information gleaned through the eavesdropping was not sufficient to dispel the harm done by the officers, and that this activity vitiated the entire proceeding.

The right to counsel is protected by the fifth ¹ and sixth amendments of the constitution of the United States and by amendment 10,Art. 1, § 22, of the state constitution, which provides, inter alia, 'In criminal prosecutions, the accused shall have the right to appear and defend in person, and by counsel, * * *.'

In interpreting this provision, in In re Wilken v. Squier, 50 Wash.2d 58, 309 P.2d 746, we said:

'Under amendment 6 of the Federal constitutionandamendment 10 of our state constitution, a denial of aid of counsel to one pleading guilty to a serious crime is a violation of his constitutional right.'

In the case of State v. Hartwig, 36 Wash.2d 598, 219 P.2d 564, where the court had appointed counsel for the indigent defendant but had allowed him only a few hours in which to consult with the attorney and prepare his defense, we held that the defendant had been denied his constitutional right to counsel, saying,

'When the court recognized the constitutional right of appellant to have counsel and appointed an attorney to represent him, it then became the duty of the court to allow the appointed attorney a reasonable time within which to consult his client and make adequate preparation for trial.The constitutional right to have the assistance of counsel, Art. I, § 22, carries with it a reasonable time for consultation and preparation, and a denial is more than a mere abuse of discretion; it is a denial of due process of law in contravention of Art. I, § 3 of our consulation.* * *

'Although it may have been made to appear to the court that the issues of fact and law were comparatively simple, and hence a continuance was not needed, nevertheless it was the duty of appointed counsel to make a full and complete investigation of both the facts and the law in order to advise his client and prepare adequately and efficiently to present any defenses he might have to the charges against him.No sufficient time was allowed for such purposes.'

While our research and that of diligent counsel and amicus curiae have not disclosed a Washington case which speaks of the right of a defendant to confer with his counsel in private, it is universally accepted that effective representation cannot be had without such privacy.The cases are annotated in 23 A.L.R. 1382and54 A.L.R. 1225, and numerous citations are listed in the supplements to these annotations.

It is also obvious that an attorney cannot make a 'full and complete investigation of both the facts and the law' unless he has the full and complete confidence of his client, and such conference cannot exist if the client cannot have the assurance that his disclosures to his counsel are strictly confidential.

In the case of Matter of Fusco v. Moses, 304 N.Y. 424, 107 N.E.2d 581, where an informer had ingratiated himself with other employees charged with neglect of duty and had attended their conferences with their attorney, the court held that the employees were deprived of their full right to be represented by counsel, and the determination of the administrative body hearing the charges against them was annulled, with the result that they were reinstated in their jobs.

Another case involving an informer is Caldwell v. United States, 92 U.S.App.D.C. 355, 205 F.2d 879.There the informer had won the confidence of the defendants and they had solicited him to negotiate the theft of certain files involved in their case.Because he attended their conferences with their attorneys, the court held that they had been deprived of their constitutional right to effective assistance of counsel.The court said:

'We do not mean to deny the right--indeed the duty--of prosecuting officials to seek to uncover, prosecute and punish resort by accused persons and their counsel to theft of files or other unlawful means of defense.We recognize that the prosecutor in this case was faced with a real dilemma, once the possibility of a theft of the files had been reported by Bradley.We do not question that he then acted with what must have seemed high motives, and certainly with active diligence.But high motives and zeal for law enforcement cannot justify spying upon and intrusion into the relationship between a person accused of crime and his counsel.The Ocnstitution's prohibitions against unreasonable searches, and its guarantees of due process of law and effective representation by counsel, lose most of their substance if the Government can with impunity place a secret agent in a lawyer's office to inspect the confidential papers of the defendant and his advisers, to listen to their conversations, and to participate in their counsels of defense.Conduct of that sort on the part of our Government is no doubt extremely rare.But if it does occur a conviction tainted by it cannot stand.Appellant's motion for a new trial should have been granted.'

The court in that case cited and followed Coplon v. United States, 89 U.S.App.D.C. 103, 191 F.2d 749(cert. den.342 U.S. 926, 72 S.Ct. 363, 96 L.Ed. 690), the case most nearly in point, since it involved the interception of telephone conversations between the defendant and her attorney through wiretapping.Federal agents investigating possible espionage activities on the part of the defendant resorted to this device to secure information.The trial court denied a motion for a new trial on the ground that the defendant had not shown that the agents procured evidence by this means which was used to obtain her conviction.In reversing this order, the court of appeals, after citing many cases upholding the right of a defendant to conduct his consultations with counsel in private, said:

'* * * The prosecution is not entitled to have a representative present to hear the conversations of accused and counsel.We consider it equally true that a defendant and his lawyer have a right to talk together by telephone without their conversations being monitored by the prosecution through a secret mechanical device which they do not know is being used.It would not be an answer to say that the accused cannot complain of the interception of his telephone conversations with his counsel if he had on other occasions ample personal consultation with his lawyer, face to face, which no person overheard.That fact would not erase the...