State v. Garza

• Decision Date: 15 February 2000
• Docket Number: No. 17984-2-III., No. 17982-6-III, No. 17983-4-III
• Citation: 994 P.2d 868,99 Wash.App. 291
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Adam GARZA, Appellant, State of Washington, Respondent, v. Robert R. Mendenhall, Appellant, State of Washington, Respondent, v. Ronald L. Casebeer, Appellant.

994 P.2d 868

99 Wash.App. 291

STATE of Washington, Respondent, v. Adam GARZA, Appellant, State of Washington, Respondent, v. Robert R. Mendenhall, Appellant, State of Washington, Respondent, v. Ronald L. Casebeer, Appellant.

Nos. 17982-6-III, 17983-4-III, 17984-2-III.

Court of Appeals of Washington, Division 3, Panel One.

February 15, 2000.

Kevin L. Holt, Kennewick, for Appellants.

Andrew K. Miller, John V. Jensen, Prosecuting Attorney's Office, Kennewick, for Respondent.

KATO, J.

The defendants in these cases, which we have consolidated for purposes of this decision, have obtained discretionary review of the superior court's denial of their motions to dismiss. The cases require us to consider whether, and in what circumstances, jail officials may seize and examine criminal defendants' legal documents. We remand for additional factfinding.

On July 25, 1998, officers at the Benton County Jail discovered that a window bar had been partially cut with what appeared to be a hacksaw blade. They also discovered that a desk's base support and a window screen had been damaged.

Concluding one or more inmates had attempted to escape from the jail, officers conducted an extensive search of the pod where the damage occurred. They strip-searched the inmates and issued new clothes, removed mattresses and checked them with metal detectors, and examined drains, light fixtures, and the insides of television sets. The inmates' personal property, including legal documents containing private communications with their attorneys, was seized and "gone through."

Among the inmates whose property was seized were Adam Garza, Robert R. Mendenhall, and Ronald L. Casebeer. Mr. Garza was charged with two counts of conspiracy to commit murder and faces a mandatory life term under the three-strikes statute, RCW 9.94A.120(4). Mr. Mendenhall was charged with first degree assault with a deadly weapon. Mr. Casebeer was charged with first degree robbery and also faces a mandatory life term under the three-strikes statute. The inmates testified they were deprived of their legal materials for up to 32 days, during which time their trial dates were approaching. Mr. Garza testified he saw an officer reading his legal materials. Mr. Mendenhall and Mr. Casebeer testified that when their materials were returned, they were out of order and appeared to have been read or copied. The superior court's written findings of fact do not expressly determine whether the inmates' legal materials were read or copied. In its oral ruling¹ the court stated: "It's pretty clear that the inmates, all three of the inmates' legal papers were seized and then looked through and in one case read by Officer Mancillas."

The three inmates moved to dismiss the cases on various grounds, including that the seizure and examination of the legal materials denied them effective assistance of counsel and violated the attorney-client privilege. After a hearing, the court entered the following conclusions:

1. There were reasonable grounds to believe that an escape was attempted and that a cutting tool was used in the attempt.

2. The search of the jail pod was legal and the seizure of the defendants['] items was legal.

3. The search was done in good faith for objective security reasons. A thorough search of all items including legal paperwork was necessary due to the fact that the item was small in nature.

4. The defendant[]s had a diminished expectation of privacy with regards to there [sic] personal items located in the jail. In balancing ... the defendants['] right to private communication with their attorney[s] and the institution[al] concerns for security the court finds that there was no misconduct.

5. There is also no foreseen prejudice in this case and no evidence that any confidential communication[s] were obtained.

6. The defendants['] paper work should have been returned in a more timely fashion.

7. Any misconduct arising from the delay of returning the paperwork did not cause the defendant[]s to be prejudiced. All the defendants were represented by counsel and when a request was made to the court the paperwork was returned.

8. The State acted in good faith throughout the process.

Based on these conclusions, the court denied the motions to dismiss. The defendants then moved for discretionary review, which this court granted.

CrR 8.3(b) provides in pertinent part:

The court, in the furtherance of justice, after notice and hearing, may dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect[s] the accused's right to a fair trial.

Denial of a motion to dismiss under this rule is reviewed for abuse of discretion. State v. Michielli, 132 Wash.2d 229, 240, 937 P.2d 587, 71 A.L.R.5th 705 (1997). To support dismissal under this rule, a defendant first must show arbitrary action or governmental misconduct. Id. at 239, 937 P.2d 587. The arbitrary action or mismanagement need not be evil or dishonest; simple mismanagement is enough. Id. Second, the defendant must demonstrate the arbitrary action or misconduct resulted in prejudice affecting his right to a fair trial. Id. at 240, 937 P.2d 587. "[D]ismissal of charges is an extraordinary remedy available only when there has been prejudice to the rights of the accused which materially affected his or her rights to a fair trial." City of Seattle v. Orwick, 113 Wash.2d 823, 830, 784 P.2d 161 (1989); see State v. Baker, 78 Wash.2d 327, 474 P.2d 254 (1970). Dismissal is not justified when suppression of evidence will eliminate whatever prejudice is caused by the action or misconduct. Orwick, 113 Wash.2d at 831, 784 P.2d 161.

The defendants here do not contend generally that the searches of their cells and personal items were improper. See Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (inmates have no reasonable expectation of privacy in prison cells). Nor do they contend that deprivation of their materials violated their rights to access to the courts.²See Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (to prevail on access-to-court claim, prisoner must demonstrate actual injury to a specific claim that sought to vindicate a basic constitutional right). They do contend, however, that their legal materials contained confidential information protected by the attorney-client privilege and that the jail officers' inspection of those materials violated their right to counsel, which is protected by the Sixth Amendment and by article I, section 22 (amendment 10) of the Washington Constitution.

Effective representation requires that a criminal defendant be permitted to confer in private with his or her attorney. State v. Cory, 62 Wash.2d 371, 373-74, 382 P.2d 1019, 5 A.L.R.3d 1352 (1963). Intrusion into private attorney-client communications violates a defendant's right to effective representation and due process. Id. at 374-75, 382 P.2d 1019. Even "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." Id.

Although the State argues there was no misconduct here, the superior court's findings, particularly when clarified by its oral ruling, make it clear that the jail officers seized, examined, and perhaps even read the defendants' legal materials (including private attorney-client communications). The State's actions, although motivated by a legitimate concern over a serious security breach, intruded into the defendants' private relationships with their attorneys. See Bishop v. Rose, 701 F.2d 1150 (6th Cir.1983) (jail officers obtained defendant's statement to his attorney during a search of his cell and turned the statement over to the prosecutor); State v. Granacki, 90 Wash.App. 598, 601-02, 959 P.2d 667 (1998) (State conceded misconduct when detective looked at defense counsel's legal pad during courtroom recess); see also Wolff v. McDonnell, 418 U.S. 539, 576-77, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (opening legal mail in presence of inmates, without reading it, accommodates prison's security concerns while protecting inmates' right to private communications with attorneys).

The critical issue, then, is the appropriate remedy. The State, relying on the prejudice requirement in CrR 8.3(b), contends dismissal is not proper because the defendants have failed to demonstrate they were harmed. The defendants and amicus curiae counter by citing two cases which they contend establish the State bears the burden of proving lack of prejudice. See State v. Sherman, 59 Wash.App. 763, 801 P.2d 274 (1990); State v. Getty, 55 Wash.App. 152, 777 P.2d 1 (1989). However, both cases addressed the harmless error rule, which assigns to the State the burden on appeal of demonstrating a constitutional error was harmless beyond a reasonable doubt. Sherman, 59 Wash.App. at 768, 801 P.2d 274; Getty, 55 Wash.App. at 155-56, 777 P.2d 1. These authorities do not apply in this context.

In fact, we have found no Washington authority that directly addresses who bears the burden of proof in this circumstance. The Supreme Court's decision in Cory comes the closest. In that case, officials electronically eavesdropped on an inmate's conversations with his attorney in a jail conference room. Cory, 62 Wash.2d at 372, 382 P.2d 1019. The trial court declined to dismiss the charges but excluded any evidence derived from the eavesdropping. Id. The Supreme Court held dismissal was the appropriate remedy:

There is no way to isolate the prejudice resulting from an eavesdropping activity, such as this. If the prosecution gained information which aided it in the preparation of its case, that information would be as available in the second trial as in the first. If the defendant's right to private consultation has been interfered with once, that interference is as applicable to a second trial as to the first. And if the

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