State v. Yates
| Decision Date | 15 December 1988 |
| Docket Number | No. 54970-2,54970-2 |
| Citation | 765 P.2d 291,111 Wn.2d 793 |
| Parties | STATE of Washington, Respondent, v. Daniel Joseph YATES a/k/a Dan Joseph Yates a/k/a Michael Wayne Smith, Petitioner. |
| Court | Washington Supreme Court |
C. Danny Clem, Kitsap County Prosecutor, Irene K. Cleavenger, Deputy, Port Orchard, for respondent.
Appelwick, Trickey, Sluiter & Spicer, Michael J. Trickey, Seattle, amicus curiae for petitioner Washington Ass'n of Criminal Defense Lawyers.
Norm Maleng, King County Prosecutor, Saul Gamoran, Deputy, Bellevue, amicus curiae for respondent Washington Ass'n of Pros. Attys.
This matter concerns a challenge to an order of the trial court granting the State's motion for pretrial discovery of "any tape recorded interviews, notes taken during any interviews and summaries of such interviews prepared by defendant's counsel or by their investigator of witnesses listed by the State." (Italics ours.) 1 We affirm in part and reverse in part.
The defendant, Daniel Joseph Yates, is charged with aggravated first degree murder, for which the State is seeking the death penalty, and with two counts of attempted first degree murder. He also stands charged with unlawful possession of a pistol and three counts of first degree rape.
After the State filed its list of State's witnesses, listing the potential prosecution witnesses, defense counsel and/or defense counsel's investigator interviewed certain of the persons listed. The State was required to disclose to defense counsel the statements of all of the State's witnesses. 2 The defendant apparently does not intend to call any of these prosecution witnesses at trial. The State moved for discovery of transcripts of any tape-recorded statements, interview notes, or summaries of interviews with the State's witnesses made by defense counsel or their investigator in the course of their investigation of the case.
The Superior Court for Kitsap County granted the discovery motion but provided:
That in order to protect work product under CrR 4.7(f)(1) and any privileged material the Court shall review in camera all such transcripts of tape recorded interviews, notes or summaries and will exclude those portions of the tape recorded interviews or notes which are work product as defined in CrR 4.7(f)(1) or any privileged material.
(Italics ours.) Findings of Fact and Conclusions of Law and Order Regarding State's Motion for Discovery, at 3.
On motion of defense counsel, the trial court's discovery order was stayed pending direct review by this court.
Defendant's various objections to the trial court's order reduce to the following issue.
Did the trial court abuse its discretion when it ordered defense counsel to produce for in camera review all transcripts of interviews, notes taken during such interviews and summaries of interviews of State's witnesses prepared by defense counsel and the defense investigator?
CONCLUSION. To the extent the trial court's order encompassed the pretrial disclosure of statements, signed or unsigned, recorded or written, given by potential prosecution witnesses during interviews with defense counsel or their investigator, such order was not an abuse of the trial court's discretion. The notes taken during such interviews, as well as the summaries of interviews prepared by defense counsel or their investigator, should not be included in this pretrial discovery order; they may, however, be subject to disclosure at trial if counsel or the investigator should be called as a witness by the defense for the purpose of impeaching the testimony given by a previously interviewed prosecution witness. 3
Generally speaking, the scope of discovery is within the trial court's sound discretion and the decisions of the trial court will not be disturbed absent a manifest abuse of that discretion. 4 In this state, the criminal discovery provisions of the Superior Court Criminal Rules, CrR 4.7, guide the trial court in the exercise of its discretion over discovery. CrR 4.7 is a reciprocal discovery rule, with the prosecutor's and defendant's obligations being separately listed, and with other subsections of the rule encompassing additional and discretionary disclosures and matters not subject to disclosure also being carefully set out.
The principles underlying CrR 4.7 have been stated as follows:
In order to provide adequate information for informed pleas, expedite trials, minimize surprise, afford opportunity for effective cross-examination, and meet the requirements of due process, discovery prior to trial should be as full and free as possible consistent with protections of persons, effective law enforcement, the adversary system, and national security.
Criminal Rules Task Force, Washington Proposed Rules of Criminal Procedure 77 (West Pub'g Co. ed. 1971). 5 Guidance in construing the criminal discovery rule is also found in CrR 1.2:
These rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration, effective justice, and the elimination of unjustifiable expense and delay.
We cannot agree with defendant that the trial court's order here was entirely beyond the scope of the rules. Rather, bearing the foregoing principles in mind, we conclude that CrR 4.7 gave the trial court the authority to here order production of the recorded or transcribed statements of potential prosecution witnesses that were taken during interviews of those persons by defense counsel or their investigator. CrR 4.7(b)(2)(x) specifically provides:
(2) Notwithstanding the initiation of judicial proceedings, and subject to constitutional limitations, the court on motion of the prosecuting attorney or the defendant, may require or allow the defendant to:
* * *
(x) allow inspection of physical or documentary evidence in defendant's possession;
(Italics ours.)
Allowing the State access to the written and recorded statements of the witnesses fosters the goal of preventing surprise, which could cause trial disruption and further continuances of the trial. Counsel for the State in the exercise of prudence would undoubtedly want to give the State's witnesses the opportunity to review their statements in order to refresh their recollections prior to testifying. We see no reason why the State and the State's witnesses should not also have the opportunity to review the statements these witnesses may have given to the defense, particularly since the trial of this case was considerably delayed at the request of the defense, and since the State was required to provide the defense with copies of the statements of the State's witnesses. Under modern trial practice, the possibility of the defense using statements it took to ambush or "sandbag" State's witnesses on cross examination is not a valid reason to reverse the trial court's order. 6
Our decision herein also accords with the clear policy this court expressed over two decades ago:
At this point, we momentarily pause to observe that the rules of discovery are designed to enhance the search for truth in both civil and criminal litigation. And, except where the exchange of information is not otherwise clearly impeded by constitutional limitations or statutory inhibitions, the route of discovery should ordinarily be considered somewhat in the nature of a 2-way street, with the trial court regulating traffic over the rough areas in a manner which will insure a fair trial to all concerned, neither according to one party an unfair advantage nor placing the other at a disadvantage.
State v. Boehme, 71 Wash.2d 621, 632-33, 430 P.2d 527 (1967), cert. denied, 390 U.S. 1013, 88 S.Ct. 1259, 20 L.Ed.2d 164 (1968). The United States Supreme Court expressed similar sentiments in United States v. Nixon, 418 U.S. 683, 709, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974): 7
We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence.
Production of the statements of the prosecution witnesses in this case increases the chance that all relevant facts will be developed in an efficient and fair manner.
Defendant argues, however, that disclosure of these statements deprives him of his constitutional rights under the fifth, sixth and fourteenth amendments to the United States Constitution, 8 and violates the attorney-client privilege and the work product doctrine. We disagree. We perceive no constitutional basis for preventing disclosure to the State of the recorded and written statements given by prosecution witnesses to defense counsel or their investigator.
The right against compulsory self-incrimination, guaranteed by the Fifth Amendment, is personal to the defendant. 9 "[I]f the production does not involve defendant's own communication ... the privilege would not apply no matter when disclosure is required." 2 W. LaFave & J. Israel, Criminal Procedure § 19.4(g), at 523 (1984). The statements in question were not made by the defendant, therefore, the trial court's disclosure order does not violate his right against compulsory self-incrimination. 10
Similarly, we perceive no violation of defendant's right to effective assistance of counsel. We cannot conclude that the trial court's order would have a chilling effect on either trial preparation by defense counsel or on the attorney-client relationship such as to deny d...
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